JUDGE CARTER: That is not the way the statement says. I suggest the language be amended to read. "During the cross examination the following documents were introduced relating to the defendant Dehner were those mentioned." I believe there should be no objection to the actual numerical introduction of the documents.
DR. GAWLIK: The prosecution should have made it clear these documents also related to Dehner.
PROSECUTION: During the examination of the defendant Dehner Dr. Gawlib covered each one of these subjects. The matter of superior orders and commando orders.
DR. GAWLIK: But not with respect to the fact these documents also related to Dehner.
PRESIDING JUDGE CARTER: I think if you recall on these occasions we gave opportunity to each of the defendants'counsel to cross examine. I think it has been the policy that the exhibits offered are also offered on behalf of the defendants. You had full opportunity to examine. That's my understanding.
DR. LATERNSER: If the tribunal please, I would like to make a correction on behalf of all my colleagues regarding these lists pending verification of the facts. Surely if during cross examination of one of the defendants certain documents are submitted, it must be assumed the documents will be submitted to the defendant concerned so that counsel of other defendants did not refer to documents not submitted to their own clients. These will be defense documents which were submitted on the assumption that they were to be submitted only to the defendant on whose behalf they were offered. I should like, therefore, to reserve the right of objecting to the introduction of the List.
PRESIDING JUDGE CARTER: I think it agreeable to make a statement after you have had an opportunity to check them. The tribunal will take into consideration the circumstances under which those exhibits were offered.
MR FENSTERMACHER: We now offer in rebuttal NOKW 2475. This is offered as Exhibit 643.
DR. LATERNSER: If the tribunal please, during the rebuttal we are concerned with direct evidence, therefore the documents concerned have to be made available to the defense twenty-four hours ahead of time. This was not the case and I therefore object, quoting the general rules of procedure.
MR FENSTERMACHER: I don't think the twenty-four hour rule applies any more to rebuttal documents, if your honor then to documents submitted on cross examination.
DR LATERNSER: If the tribunal please that is not correct. The rebuttal is direct evidence and is not to be treated in a similar manner as cross examination evidence. Just as the prosecution announced its witnesses twenty-four hours ahead of time it will be in a position to raise objections if necessary. As I am just now being informed, the same procedure was applied in other trials during rebuttal.
MR FENSTERMACHER: I think it somewhat ungracious of Dr. Laternser to make these objections at this time, as we have to sit day after day, just being given the defense documents about two or three minutes prior to their introduction.
DR LATERNSER: If it please the tribunal, if there is to be any talk about the conditions about which we have had to work here, I would like to state these conditions are more favorable to the prosecution than to anybody else. We filed our documents weeks ahead and they have been somewhat delayed due to delay in the translation.
PRESIDING JUDGE CARTER: The objection is overruled. The twenty-four hour rule does not apply to rebuttal testimony.
MR FENSTERMACHER: Contrary to practically all the statements of the defense this document is offered to show the German marry itself construed arm bands to satisfy the insignia rules of Article I of the Hague Rules. An order of the OKW dated 6 November 1942, Subject: Distinguishing Marks of Combatants who Wear no Uniform, has a rather wide distribution list and I want to point out further the Wehrmacht Legal Branch also received a copy and also the receipt stamp of Army Group North dated 7 December 1942. The document reads, page 2:
"Those who are called up within the framework of the Wehrmacht for armed participation with the Waffen-SS in combat, who wear no uniforms, are to be made recognizable as combatants by a yellow armband (stamped: "German Wehrmacht") in the sense of the Hague Rules of Land Warfare and are to be provided with a pass to this effect.
The members of the OT, of the RAD, as well as of the Party, its branches and units wear uniforms, have a pass, and therefore are freed from wearing a special armband with the stamp "German Wehrmacht".
The Chief of the OKW (signed) Keitel
MR. FENSTERMACHER: The next document we offer is NOKW 1231, which is offered as Exhibit 644.
JUDGE CARTER: The previous exhibit was 643?
MR. FENSTERMACHER: That is right, Your Honor.
DR. LATERNSER: If the Tribunal please, I object to the introduction of this document. The affiant Schmauser is in Nurnberg, or at least he was in Nurnberg at the time when this statement was executed.
MR. FENSTERMACHER: Your Honor please --.
DR. LATERNSER: I have not quite finished. Just a moment, please. If he was in Nurnberg at that time, or if he still is in Nurnberg, he will have to produced as a witness here. That is the first reason for my objection, and supporting this I would like to say the following. As far as I could glean from this document, because after all we have only just received the document, and did not have it twenty-four hours ahead of time, the affiant makes statements concerning the interpretation of law regulations. That is the work of the Tribunal and not a matter for the affiant. He can not do that. Furthermore, he is not here. For this reason alone this statement should not be admitted. The first reason for my objection is (a) that the witness is or was in Nurnberg; and (b) that the statement, as far as I could glean from it, deals with the interpretation of law and regulations which are not admissible, since they are conclusions of the affiant.
DR. SAUTER: Dr. Sauter for the defendants Lanz and Geitner. May it please the Tribunal, this affidavit which is being submitted here, is dated 26 March 1947. It is almost ten months old. I content that concerning these problems, if one is to examine somebody here as an expert, one ought to do it correctly and fairly and not do that during the rebuttal evidence. I am not quite certain, if the Tribunal please, whether it is really the task of the rebuttal evidence to discuss the most difficult questions of international law in a manner which in the final analysis tends only to assist the prosecution in surprising the defendants and defense counsel.
To the best of my information and from my activity of two and a half years in American courts, the rebuttal has as its purpose to check on the credibility of a defendant who has been heard on the stand and testified under oath. No other purpose of the rebuttal has so far been known to me. I notice here that this is a statement given by Dr. Schmauser concerning the very most difficult questions of penal law and of international law. All those are problems and questions which have to be answered first of all by the Tribunal and not by an affiant witness who just happens to be in Nurnberg. We are prepared, to be best of our ability, to give information to the Tribunal for the decision of these difficult questions, but it is quite impossible during the rebuttal to gather such difficult questions out of the blue and decide them in this way. Dr. Laternser did not know just now when he made his statement exactly how long the defendant Schmauser was in Nurnberg, and whether he is still here. About two or three weeks ago I saw Dr. Schmauser down here in the jail and I talked to him with the permission of the prosecution. I would feel inclined to assume that Dr. Schmauser is still here today. If that is the case justice and fairness would demand, in my opinion, that either such a statement be not given any consideration at all, or that the witness be heard here in person. Very formally I might still point out, if the Tribunal please, that this affidavit does in no way comply with what we are so far accustomed to concerning the form of affidavits. I do not like to raise such objections, but I am doing this because the Prosecution has been a little petty in some ways concerning the form of certain matters. All that is being stated here is, "Schmauser, Karl, he states:", and then below in an additional paragraph we have a confirmation by the interrogator Kaufman, which, of course, is not given in the German. All that is said is, as I said just now, that it is supposed to be sworn to, but from actual practice we know that in other cases the American interrogators say in the introduction that the affiant made certain statements, deposes and states under oath.
Now, why didn't it say so in this statement? This statement does not say anything about an oath. It only contains the statement that the statement was sworn to, strangely enough, towards the end of the affidavit in the appendant statement by the interrogator, Fred Kaufman. In my opinion that is not sufficient. I move, therefore, that this communication -- be it an affidavit or an expert opinion or just a statement -- I don't know -- be either not admitted or that Dr. Schmauser be brought here to the stand, and if it is not possible to bring him over here these 100 yards, I would like for this statement not to be admitted.
DR. LATERNSER: If the Tribunal please, I just learned that only a week ago the affiant Schmauser was still in Nurnberg. Furthermore, I have just had an opportunity to read through this expert opinion. It is nothing but an opinion given by the affiant, and I point out again that the rebuttal evidence is supposed to be direct evidence and that opinions concerning law questions should not be admitted.
MR. FENSTERMACHER: Now, if Your Honor please, it would appear that the defense are really objecting to the fact that the Prosecution is putting in an affidavit rather than calling the witness, which I think in view of the nature of the defense case is somewhat strange, to say the least. My information is that Schmauser is not in Nurnberg at the present time. If the defense can prove that he is here and that he was brought here on behalf of the Prosecution Staff and not as a voluntary witness for the defense, so that the Prosecution ought to have known that he was here, then I suppose they can strike the affidavit and we will have to produce him in person. Secondly, they seem to object on the ground that this affiant is discussing questions of law which are properly for the Tribunal to decide. I submit that is not so. This affiant is discussing the legal interpretation which the legal branch of the German Army placed upon paragraph 47 of the German Military Code.
Each one of these defendants has gone on the witness stand in turn and testified that he did not know that certain of these hostage orders were unlawful. This affiant states in effect that those defendants should have known that those orders were unlawful, and that by virtue of Paragraph 47 they should have disobeyed those orders. This then is a construction of internal German military law and not of international law, properly speaking. Regarding the element of surprise, I submit that we could not have known prior to this time just what the defendants would have said regarding the lawfulness or unlawfulness of the various orders and the applicability of Paragraph 47 thereto. Now with respect to Dr. Sauter's final objection that this form of affidavit with respect to the oath is not in accordance with what he would like, I submit that the certificate of Fred Kaufman, the interrogator, is completely satisfactory. He says that Schmauser was known to him and in his presence signed the foregoing interrogation and swore that the same was true. If Dr. Laternser had read this certificate he would have known that this statement was taken in Garmisch and not in Nurnberg, but in view of the fact that eighty per cent of the defendants' affidavits were themselves taken in Nurnberg, and the witnesses or affiants were not produced on the witness stand at that time, I submit that objection is similarly somewhat inconsistent with the defense's attitude.
JUDGE CARTER: It is the opinion of the Tribunal that all except the last paragraph of the affidavit is a matter of interpretation of a rule; that is the province of the court and not for the testimony of witnesses. The objection will be sustained to all except the last paragraph of the affidavit.
MR. FENSTERMACHER: Your Honor please, we will withdraw the exhibit in that case and not offer it.
JUDGE CARTER: Very well.
MR. FENSTERMACHER: The next document we offer is NOKW 787, which is offered as Prosecution Exhibit 644.
DR. LATERNSER: If the Tribunal please, at the moment I couldn't get the German translation. Maybe there is some technical fault.
MR. FENSTERMACHER: This document is offered to show that the partisans did wear insignia and also to show that the interrogations of captured partisans were not kept within the proper bounds.
DR. LATERNSER: If the Tribunal please, I would like to ask for the Prosecution to be a little in its presentation so that at least we could throw a brief glance at the document to see whether we have to raise objections or not.
MR. FENSTERMACHER: I will be glad to do that. I will wait for your nod, Dr. Laternser.
DR. LATERNSER: If the Tribunal please, I object to the introduction of this document also. Evidence of this sort has already been submitted by the Prosecution to a large extent. This, therefore, is cumulative evidence, whereas during rebuttal evidence has to be confined to the rebutting of a new fact produced by the defense. With this document the Prosecution, therefore, does not touch rebuttal subject matter, but only adds to its case in chief. That is not admissible and, therefore, I move the rejection of this document. And, by the way, against whom is this document to be submitted? After all, this trial is waged against individual defendants and not against a collective number of people.
MR. FENSTERMACHER: If Dr. Laternser's first objection was sustained, Your Honor, then any document which the Prosecution received after its direct case had been rested could not be introduced. Each of the defendants has testified in great detail that the partisans did not wear insignia. I submit we can certainly introduce additional material to rebut that contention. In addition we made no reference whatever in our direct proof to the manner in which interrogation of captured prisoners was carried out.
At the time particular document is dated, 6 July 1943, the defendant Foertsch was Chief of Staff of Army Group E under Colonel General Loehr.
DR. RAUSCHENBACH: Dr. Rauchenbach for the defendant Foertsch. The document is dated 6 October 1943. The Prosecution has not yet proved that General Foertsch was at that time Chief of Staff for General Loehr. I believe there is some error here.
MR. FENSTERMACHER: Did you check the original document, Dr. Rauschenbach? At any rate, if it is later than that, it certainly can be introduced against the defendant Dehner and the defendant Rendulic, and similarly against the defendant Foetsch, who is in October or November was Chief of Staff to Army Group F.
DR. RAUSCHENBACH: In the original the document is also dated 6 October. It is only in the English text, which is in the hands of the Tribunal, that it says 6 July. Therefore, the original, has not the same date as the English Document.
MR. FENSTERMACHER: I think we are in error, Your Honor, If you would change your document to read 6 October instead of 6 July 1943.
DR. LATERNSER: If the Tribunal please, this again shows that the defendants can have enormous disadvantages through the fact that the Prosecution did not inform us of the documents before hand, as we have to do with every individual document which we submit.
JUDGE CARTER: Just a moment, please. It is quite evident that we are going to have some rule here about who is going to make objections to these exhibits. We can't have eight or ten men running up to the microphone and all of them making an argument. I suggest that if the document applies to some particular defendant that the counsel for that particular defendant make the objection; otherwise, that someone make it for all. That is just necessary from the standpoint or order. However, we will hear what you have to say, Dr. Gawlik.
DR. GAWLIK: The Prosecution has just said that this document is also supporting evidence against General Dehner. The Prosecution has never maintained and has at no time proved that the 369 Croatia Infantry Regiment was at any time subordinate to the 69th Reserve Corps.
This is an assertion which is made to me for the first time, and no evidence to this effect has ever been submitted.
MR. FENSTERMACHER: The document is certainly relevant to the defendant Foertsch, who at this time, 6 October 1943, was Chief of Staff of Army Group F. It is also relevant against the defendant Rendulic, who at this time was Chief of the IInd Panzer Army, to which at this time the 369th Infantry Regiment was subordinate.
JUDGE CARTER: The exhibit will be received for what it is worth. However, I will warn counsel that we are not going to retry the case, and exhibits are merely cumulative of the case on direct are not proper on rebuttal. I merely state that to warn you that we will not receive on rebuttal evidence that should have been introduced in direct.
MR. FENSTERMACHER: This is an order of the 369th Croatian Infantry Division, Division Command Post, 6 October 1943. "Subject: Directives for the Utilization of Bandit-Pursuit Troops.
"The Bandit Pursuit Troops are to be trained in advance in 4-week special training for their missions. The work of the bandit Pursuit unit is made easier, if their presence and their camouflaged activity remains concealed from the enemy for as long as possible. Accordingly preservation of secrecy even before our own troops!
"Uniforming and other equipment:
"Camouflage clothing: partly pieces of uniforms of the German and Croatia Wehrmacht, partly civilian clothes, three-cornered caps and or Litovka with Soviet Stars, Opu bags. The camouflage clothing furnished troops is currently to assimilate the equipment of the brigades operating in the operational area. Cut of the hair, beard, wearing of mustaches must be similar to those of the brigades."
On page 3 of the order, which is signed by Neidholdt, the commanding officer of the division, under Paragraph, under Paragraph 10 there is a notation that a questionnaire for interrogation of prisoners is enclosed.
I call your Honor's attention to certain of the questions on this questionnaire.
"1.) Brigade, Battalion, Company?
"2.) What is the name of the Company, Battalion, and Brigade, and Brigade Commander, Commissar, and their deputies? (Last name, first name, residence, personal description.)
"3.) Strength and armament of the Brigade, or Battalion, and Company?"
Question 9: "Do they march in Company, Battalion, or Brigade formation?
"In the case of a)? In the case of b)?"
Question 17: "Where does the Company, Battalion, Brigade Commander march?"
Question 20: "Do the Companies or Battalions spend the night together or are they divided up into the individual houses?
Question 21) Where do the Company, Battalion, and Brigade Commanders sleep? Are they specially guarded?
22.) What is the strength of Battalion and Brigade Headquarters, how many messengers do they have?"
Question 28: "What parts of uniforms are worn and with what insignia?
29.) What insignias of rank and other insignias of the German, Croatian, and Italian Army removed and which are worn?
30.) What percentage wears civilians trousers or jackets.
31.) What percentage wears three-pointed caps, Litovka caps, Likaner caps, civilian caps or other headgear? Shape and cut?
32.) What percentage wears shoes, Opanken shoes, boots, mountaineer shoes, or goes bare-fooded?
33.) What insignia does the ordinary bandit wear, which are worn by his superiors?"
Question 37: "Does every bandit know the name of his Company, Battalion, and Brigade Commander?
38.) Does everyone know to what Brigade, Battalion, Division he belongs?"
The next document is NOKW 1734, which is offered as Exhibit 645.
DR. LATERNSER: If the Tribunal please, the prosecution should in each instance announce whom the document is submitted. During this first submission of documents we can't possibly ascertain that nor can we know the intentions of the Prosecution. Furthermore, most of defense counsel - it takes some time to distribute the document, and I would like to ask the Prosecution to take this fact into consideration.
Jan.14,48.M-GJ-5-1-Meehan-(Schaeffer)
DR. SAUTER: Perhaps the prosecution would enlighten us where the affiant resides. The affiant states: "I, Theodor Fischer, born 19 December 1888 in Stuhm, West Prussia, etc." We therefore know that he was born in Stuhm, but it does now show in the affidavit whether he lives there. In June of 1937 the affiant was in Nuernberg, therefore, I would like to have a statement from the prosecution as to whether the affiant is in Nuernberg still or possibly when he was dismissed from Nuernberg if so.
MR. FENSTERMACHER: At the time this affiant gave this affidavit, he was in the custody of the United States Government as a Prisoner of War, he had not yet been discharged. Since that time I believe he has been discharged, although I am not certain. I do not know at the present time where he is, but I believe I can ascertain that fact sometime during the day.
DR. SAUTER: In view of that fact, if your Honors please, I move that this affidavit be not accepted for the moment, but instead that one should wait until Mr. Fenstermacher can give us an explanation as to where the affiant is now and when he was discharged. For the following reason I attach some importance to this last point because in several previous cases we have had the experience that affiants, who for some time have been in Nuernberg, disappear from here a few days before the date when they might possibly have to be examined here or rather before their affidavit is submitted here. I contend that if a witness has been in Nuernberg for a considerable period of time, and if his affidavit is read, let us say today, it would not be fair and just that such an affiant should leave from Nuernberg about a week prior to this day in order that he should not be cross-examined here. For that reason, I would like the prosecution to clarify when the affiant left Nuernberg and where he went from here.
MR. FENSTERMACHER: It may be possible that Dr. Sauter's observation is possibly correct to some extent. I remember myself last week in the case of Dr. Gawlik, he had a witness here who could have testified in person, but after he introduced the affidavit of the affiant disappeared from Nuernberg.
However, in the case of this affidavit from Fischer, I can ascertain the exact time when he left Nuernberg. I know myself it was sometime during the month of June, a few days after he gave the affidavit.
JUDGE CARTER: I think it is necessary that some showing be made, in view of the fact that it is not in the affidavit itself. In view of that fact the affidavit is not received.
MR. FENSTERMACHER: Could we not offer it subject to the motion to strike, Your Honor?
JUDGE CARTER: I think it would be better to just hold it until we ascertain the facts.
DR. GAWLIK: Concerning the statement of the prosecution, I would like to say that the affiant did not disappear. The prosecution could have been able to know from the affidavit where the affiant was at the moment. The affiant came here and it was for me to say whether I wanted an affidavit from the witness or whether I wanted to put him on the witness stand. The affiant was not to testify to anything in particular of importance, therefore, I myself, after appraising the witness, decided not to put him on the witness stand but to have him submit an affidavit, I am at all times prepared to produce a witness here for cross-examination.
MR. FENSTERMACHER: I might reserve Exhibit 644 for that last document Your Honor, I beg your pardon, Exhibit 645.
We offer next NOKW 25049. Withdrawn.
We offer NOKW 1431 as Exhibit 646. This is offered to rebut the contention at the time reprisal measures were taken it was felt that reprisal measures at the time reprisal measures would work from a military standpoint. This document indicates an opposite theory. This document is dated 4 October 1943, and is offered against all of the defendants except the defendants List and Kuntze.
I can anticipate, Dr. Tipp, I made one error. It is not offered against the defendant Leyser, who was not in the southeast at that time.
DR. RAUSCHENBACH (For the defendant Foertsch.): If the Tribunal please, this document which deals with the Evacuation Measures is quite certainly cumulative evidence. At the moment I cannot gather from it to what extent it is a specific point of the prosecution against the defendant Foertsch or against anything he said on the witness stand or on testimony given on behalf of him. It is quite a general decree against the Evacuation Measures. This is a subject matter which has been discussed by the prosecution at great length.
MR. FENSTERMACHER: Practically all of the defendants testified that evacuations were a military necessity. This document will show that in the case of Evacuations it was felt at this time by Army Group F that evacuations would do more harm than good.
DR. SAUTER (For the defendant Geitner). If the Tribunal please, this order contained in Document NOKW 1431 is signed by Winter. If I am not mistaken the prosecution intends to produce this man, General Winter, as a witness here. If General Winter is produced as a witness here, I would think that it is correct that the submission of this document be with-held until this witness Winter has been heard. Furthermore, I would like to have an explanation as the extent to which Brigadier General von Geitner is to be incriminated by this document. This is a document issued by Army Group E, which was sent to Army Group F. General von Geitner was neither under Army Groups E or F. Furthermore, I would like to ask for an explanation as to whether the prosecutions intends to assert concerning such measures, that the Chief of the General Staff of the Corps Headquaters or the Commanding staff led by him was competent for them.
As defense counsel for the defendant Lanz, I should be interested to hear what extent this order by Army Group E should incriminate the defendant Lanz.
I would be grateful if the prosecution would make a statement to this effect.
JUDGE CARTER: The objection will be over-ruled.
DR. GAWLIK: If the Tribunal please, I object to the introduction of this document against General Dehner. At least, the prosecution would have to prove that General Dehner received the document or in some other way gained knowledge of the document. This is a communication from Army Group E to Army Group F. The prosecution has not submitted any further evidence, therefore I move that this document not be admitted as evidence against General Dehner.
JUDGE CARTER: The objection is over-ruled. The Tribunal will evaluate the value of these documents against each of these defendants.
MR. FENSTERMACHER: This is a report from High Command Army Group E, dated the 4th of October 1943 to the Commander in Chief Southeast, High Command, Army Group F, Subject: Evacuation Measures.
After thorough investigation of the execution of evacuation measures, the following comment was made concerning the teletype above:
1.) Partial evacuations
a) In the event of the hostiles actions against the occupation troops, male population from 16 to 60 years of age will be concentrated in work camps and as far as they are capable of work deported to the Reich as a reprisal measure.
b) Additional penal measures against members of the population showing a hostile attitude will be decided and carried out separately in each case.
2.) Total Evacuations.
Under present circumstances the total evacuation of entire areas as a Command measure for the security of Coastal Sectors as well as of areas along railroad tracks and supply roads is impracticable. Such a large scale resettlement can be successful only if efficient forces are available to occupy the evacuated territory in order to prevent a return of especially suspicious elements into the evacuated areas.
The present strength situation in the large area and the intended grouping of the available forces does not guarantee the occupation of completely evacuated areas, which is absolutely necessary and thus cannot be carried out. In addition a measure has the inherent danger that the present mood of the population which is against the German Occupation Troops will be aggravated. This could only be considered if the evacuation carried with it factual tactical advantages.
In all probability, the start of a total evacuation would do more harm than good.
Consequently, the High Command of Army Group E believes that only the reprisal and penal measures stated in paragraph 1 can be applied and that considering the present situation, the evacuation of the total area should not take place. Report will be made concerning paragraph 1 in each individual case." (Signed) For High Command Army Group E, Chief of General Staff Winter.
MR. FENSTERMACHER: We offer next KNOW 1905 as Exhibit 647. This offered against the defendants Kuntze, Rendulic and Lanz to reject the contention that there was a military necessity to shoot commissars and that orders were very widely known and distributed and further to reject the contention that partisans were shot in combat, rather than after combat, also to show that partisans were regular members of the Russian Army and not partisans.
DR. LATERNSER: If the Tribunal please, the document cannot be submitted in these proceedings. The Second Army from which this document originated was in the east in September of 1941 as the document itself shows and it is to Army Group Center 1-E. The prosecution would first have to prove that at that time the Second Army was in the Balkans but it was not there, as in July 1941 it went to the East.
MR. FENSTERMACHER: Dr. Laternser is laboring under a misapprehension against the full Prosecution's case against commissars. He seems to believe that evidence concerning the activities of commissars is only relative as far as the Balkans is concerned and he has introduced much evidence to show the commissar order was not applicable in the southeast. If he will read Charge 3 of the indictment he will see that the application of the commissar order is not limited either in time or in space and that commissars were executed in Russia by units under the command of these defendants. We submit that is relevant under Count 3 of our indictment and the commissar allegations are not limited to the Balkans.
DR. FRITSCH: If the Tribunal please, Mr. Fenstermacher has stated among other things that this document is submitted against defendant General Rendulic I may point out that the prosecution in that case would have to produce proof for the fact that the defendant General Rendulic for the period covered here, namely in September 1941, was subordinated to the headquarters of the 2nd Army. The defendant General Rendulic at that time was a divisional commander and not, which might be misunderstood, commander in chief of the Second Army.
MR. FENSTERMACHER: The period under which we offer this document has nothing to do with who commanded the Second Army at this time. This document is offered to show and to refute the statement of defendant Rendulic that commissars were shot in the course of combat and that commissars were partisans. This document makes it clear that at this time and by this unit there was a general theory expressed that commissars were not partisans but were rather regular members of the Russian army. That is true and the defense seems to forget that our case is built upon captured documents. We did not capture all of them and it may be that the weight to be given this document is a little less because it is a document referring to a unit, not commanded by the defendants and that depends upon the weight that the Tribunal will evaluate.
DR. FRITSCH: If the Tribunal please, I did not understand all the statements made by Mr. Fenstermacher because the interpreter could not keep up all the time. However, I have just ascertained that the prosecution so far has not produced any proof to the effect that the defendant General Rendulic was actually during the period covered here subordinate to the Second Army. Only if that had been the case could this document be connected with him in any way.
DR. SAUTER: (Counsel for the defendant Lanz); Mr. Fenstermacher was kind enough when introducing the document to state expressly that it was also submitted against General Lanz. I would now like to ask the prosecution to give an explanation as to what this document is to have to do with General Lanz. The document is dated September, 1941 and at that time Lanz was stationed in the East at the Russian front, but at no time was he a member or subordinate to the Second Army as he and his division were part of the 17th Amy, therefore, we cannot comprehend how this document is to be used as incriminating General Lanz, who has been especially mentioned by the prosecution as being incriminated by the document.
MR. FENSTERMACHER: This document refers to the weight which should be given to the testimony of the defendant Lanz when he discussed commissars, the distribution of the commissar order, the degree of its execution and the military necessity of it, whether commissars were partisans and whether they were shot in combat.
DR. BEIER: (Counsel for the defendant Kuntze.) If your Honors please, I object to the introduction of this document to the extent to which it is submitted against the defendant Kuntze. General Kuntze had nothing to do whatsoever with the 2nd Army, which is mentioned in the document. He was in the East at that time, but he was at no time subordinate to the 2nd Army, now has the prosecution been able to produce any evidence at any time that General Kuntze had anything to do with the 2nd Army. Therefore, such a document cannot be submitted now against General Kuntze.
JUDGE CARTER: The document will be received for what it is worth. We want it understood, however, that the commissar order, as any other charge, has to be connected up with the defendants and of course if they are not, it will have no application.
MR. FENSTERMACHER: This is a report from Army Croup 2 dated 9 September 1941 to Army Group Center.
"For the period 25 August to 7 September 1941 two cases are reported with respect to the reference (Preceded by telephone)." For the Army Command, the Chief of the General Staff.
Then on page 2 of the document, dated the same date, the same reference from Army. Command two to Army Group Center:
"According to numerous investigations the tenacious opposition of the Soviet troops is to be attributed in great measure to the acute terror of the political Commissars and politruks. According to what has been ascertained, they defend themselves for the most part to the end, frequently even kill themselves in order not to fall into captivity and endeavor with all means to induce the officers and soldiers also to a similar behavior. According to the investigations made this attitude of the Commissars is to be traced back above all to the fact that they are convinced, that as prisoners they will be shot. Thus one Politruk, who was seized in civilian dress, has stated: