MR. FENSTERMACHER: I would be willing to stipulate to that effect, Dr. Laternser. In the English language, according to my understanding, the execution of an operation and it's carrying out are one and the same thing. Murder or killing is not intended by this word "execution" here. I am willing to stipulate that.
We offer next NOKW 1019, which is offered as Prosecution Exhibit 651. This document, if I may anticipate some objections, originates not with any of the units commanded by the defendants or even from a certain army office: it originates with the office of the Security Police and the S.D. The document, however, shows the relationship between the army units and the S.D. with respect to the carrying out of the Commando order. As appeared from the preceding document, the army was going to hand over a captured commando to the S.D. in compliance with the Fuehrer order. This document and a succeeding document will clarify the interrelationship between the S.D. and the army. The document further mentions specifically the turning over of captured commandos by an army unit in Serbia in Belgrade. At that time, the defendant Geitner was in Belgrade. The document is not limited to Geitner, it is offered, as was the preceding document, to show the wide distribution of the Commando order and the fact that it was executed.
DR. GAWLIK (Counsel for the defendant Dehner): Your Honor, I object to the submission of this document against General Dehner. The document is dated 1944 and according to prosecution's own admission General Dehner was only in the Southeast until March, 1944, and the prosecution itself limited to this period its case as regards General Dehner, therefore for this reason alone the document is inadmissable and irrelevant against General Dehner, and also the evidence which I have submitted only runs up to 9 March 1944.
DR. TIPP (Counsel for the defendant von Leyser): Your Honor, I object to the submission of this document against my client for various reasons. In my opinion it is not admissable for a document of this kind to be submitted as the prosecution desires, against a number of defendants.
The Prosecution offers it primarily in order to show that the statements of the defendants, with regard to the Commando order are not correct. In this connection, I would like to remark the following: General Leyser of course could only talk for his area and for the area his corps and state that the Commando order was not carried out here, because he has only positive knowledge about his own area. Also the affidavits submitted by us to this point refer only to the area of the 15th or 21st Corps. If the Tribunal checks the contents of this document, it will find that there is no mention of the area of the 15th or 21st Corps but merely of Belgrade, as the Prosecutor himself correctly stated. I do not know therefore, to what extent this document is supposed to be suitable to shake the credibility of General Leyser regarding his own testimony. Whatever is to be proven by this document cannot be proven against General Leyser. This document is without probative value as regards General von Leyser, and therefore I object to its submission.
DR. MUELLER TORGOW (Counsel for the defendant Felmy): Your Honors, the same applies for the LXVIII Corps, since there is no connection with it in the document. The document has no relevant probative value against General Felmy therefore I object to it.
DR. FRITSCH (Counsel for the defendant Rendulic): The same applies to my client here, and I would like to join the statements of Dr. Tipp.-This document has nothing at all to do with the area of the command of General Rendulic and therefore cannot be of any relevant probative value.
DR. WEISSGERBER (Counsel for the defendant Speidel): I join with the statements of my colleagues, and in the case of my client, I would like to point out this document is dated 15 June 1944, therefore, that is after the period when my client was in Greece and I would like to recall to the Tribunal .....
THE PRESIDENT: Is that not a matter of argument, Doctor?
DR. WEISSGERBER (Counsel for the defendant Speidel): Your Honor, I am stating this to prove that this document has no probative value and my objection is that this document is lacking in probative value as regards my client.
I would also like to point out that we, the defense counsel, cannot be referred to the closing arguments as regards this document, for if we have to deal with all these documents in our final plea, then the two hours which we are allowed is certainly not sufficient to deal with all the mistakes which we have to correct in these documents. Therefore, I would ask, and I believe my colleagues join with me in this, that just these objections which are being made here against these documents will be especially taken into account, because it is practically impossible for us to go into detail with these documents in our final plea, which is limited to two hours.
THE PRESIDENT: As bearing on the question as to the inter-relationship between these various departments and the Wehrmacht, the exhibit will be admitted. The Tribunal will be in recess at this time for fifteen minutes.
(a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. FENSTERMACHER: I was about to read into the record Exhibit 651, if your Honors please. This is a communication from the chief of the Security Police and SD:
"Berlin 15 June 1944 to the OKW Wehrmacht Operations Staff: Subject: Commando Operations -- Fuehrer Order of 18 October 1942."
On page 2:
"In the affair mentioned above the same lack of clarity continues with the subordinate Wehrmacht units. The Commander of Security Police and of the SD in Belgrade reported a short time ago that 5 English Soldiers who had been captured by the Wehrmacht during a "Kommando Operation" against the Adriatic Island of Oljet on 22 May 1944 had been turned over to the Security Police in Belgrade.
I have ordered the Commander of the Security Police and of the SD in Belgrade to return these Englishment immediately to the Wehrmacht. If they are to be considered as members of a Commando Operation - they participated in an operation which was about 400 men strong and emanated from the Special Service Commandos under Brigadier William Churchill from the Island of Vis - they should not have been taken prisoners at all, but they should have been annihilated by Wehrmacht units during combat or during flight. If one does not wish to consider them members of a Kommando Operation but prisoners of War. The final transfer to the Security Police interrogation has been superfluous. In the latter case, the Commander of the Security Police and SD Belgrade would have been interested at most in a Security Police interrogation of the Englishmen concerned.
I again must call your attention to the fact that the lower Wehrmacht units have not been given any clear policy regarding the implementation of the Fuehrer order of 18 Oct. 42. Of course, this is not surprising, when even from the OKW they receive directives which do not co-incide with this Fuehrer Order.
Which office in OKW, Counter Intelligence III?? Inquiry and Counter Intelligence Belgrade on 8 July by FS:
At what date and to which office has the alleged information of the OKW been given?
I am reading in another report of the Commander of the Security Police and of the SD in Belgrade that the Army Group located there received in answer to an inquiry the directive from the OKW, former office of Foreign Intelligence, to treat members of English and American missions with the bands of Mihalovic and of Tito as if they were members of Commandos and to turn them over to the "SD" - they mean the Security Police.
Again, I must call your attention to the fact that normally a delivery to the Security Police is altogether out of the question because these members of Commando Operations are not to be taken prisoner at all. Even if in exceptional cases they are spared for the purpose of an interrogation, the ultimate treatment of such people is the affair of the Wehrmacht, whereby the people concerned are to be treated a prior as killed in action.
Only those members of Commando Operations are to be turned over to the Security Police, who were not exposed to battle by the Wehrmacht, but who fell into the hands of the Wehrmacht by other means, for instance, by the indigenous police in occupied territories.
The Wehrmacht Unit taking prisoners presumably has not been instructed sufficiently regarding the Fuehrer Order of 18 October 1942 and/or his application; otherwise the Englishmen mentioned above would not have been taken prisoner and would not have been turned over to the Security Police. If one wishes to designate the operation mentioned above as a Commando Operation, the Englishmen should have had been treated in accordance with the Fuehrer directive. Then several individuals could have been secured for interrogation purposes and later on have been treated in the same manner. But this would have been an affair of the unit, excepting the inclusion of the Security Police for the interrogation.
Instead, the Englishmen mentioned above were taken prisoner and supposedly, after having been treated at first like regular prisoners of war, they were turned over to the Commander of the Security Police and of the SD.
I have directed the Commander of the Security Police and of the SD in Belgrade to return the Englishman mentioned above to competent Wehrmacht authority with the comment that it is not the duty of the Security Police to correct mistakes made by the Wehrmacht in the implementation of the known Fuehrer Order.
Simultaneously, I have pointed out that in consideration of the mistake which has been made, no objections exist here to combining the treatment of the Englishmen as regular prisoners of war. Since it is merely a matter of one sergeant and four men, their use for the known counteroperation "Charkow" is probably out of the question.
I again ask that the subordinate troop units be given clear directives as soon as possible regarding the treatment of members of commando operations and that I be informed of the action so that I may be able to inform the subordinate offices of the Security Police accordingly.
The final document in this complex of the carrying out of the Commando Order in the Southeast the prosecution offers is number NOKW1020. This is offered as Exhibit 652 and, since it originates in the same office as the preceding office, that is, the office of the Chief of the Security Police and SD and is just two or three weeks after the preceding document and again relates to the relationship between the SD and the Wehrmacht particularly the army units in Belgrade, it is offered under the same period as the preceding document.
THE PRESIDENT: Have all the defense counsel had an opportunity to read this document?
DR. MUELLER-TORGOW (Counsel for defendant Felmy): I object to the admission of this document -- I withdraw my objection.
THE PRESIDENT: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, Your Honor.
This document is dated Berlin 9 July 1944 and originates in Amt. IV which your Honor will note from the preceding document, is a sub division of the Chief of the Security Police and SD.
"To the Office of Military Intelligence.
"Subject: Commando Operation -- Fuehrer Order of 18 October 1942.
"The evident lack of knowledge on the part of lower troop units respecting the application of the known Fuehrer order of 18 Oct. 42 has again made it necessary for a Wehrmacht unit to bring members of a Commando enterprise to a local office of the Security Police. This has occurred despite the fact that the English falling into German hands were supposed to be handled by the Wehrmacht office directly.
"According to a report of the commander of the security police and of the security service in Belgrade of 8 June 44 the following English soldiers were captured on 22 May 44 on the "Adriatic Island Olject:
1.) S t e v e n s, Richard, NCO
2.) L e d g a r d, Lous, Sailor
3.) M u r d o c h, james, Sailor
4.) P e t t i s, Roy, Sailor and
5.) W a s h, Josef, Sailor As members of a Commando of Special Service the strength of which was 400 men they were trying to bring in prisoners from this island Vis which at the same time is a naval base and the supply center of the forces of Tito.
As the Commander of the Security Police and of the Security Service in Belgrade further communicates, the High Command of the Army Group in Serbia received instructions to treat members of Anglo-American missions found with the bands as prisoners of war. As far as we can see from our position, this attitude towards most of the Anglo-American Staffs found with the bands is justified, because they do not come under the Fuehrer Order of 18 Oct. 42. They only have communication tasks to perform rather than tasks of sabotage and terror.
Since even bandits are made prisoners in Serbia and then in practice arc treated as prisoners of war, even though, as far as I know, the rights of prisoners of war are formally not granted to them, it is difficult to be of the opinion that members of the Anglo-American staff who are captured together with members of bandits, dressed in English or American uniforms, should be treated worse than bandits. I would have no scruples respecting the general adoption of the procedure already practiced somewhat thus far whereby English and Americans after close interrogation are to be treated as prisoners of war if they have not had clear out Commando assignments.
Naturally an those cases in which English and Americans appear as agents in civilian clothes would remain untouched by this ruling.
In the scope of the well known "Counter action Charkow" or number of English and American were captured who may be reproached which having been in connection with bands. To what extent the above will have an influence on the counter measures that are intended against the Charkow spectacular trials, I must leave to your estimation.
I request again to see that a definite clarification of instructions be forwarded to the lower Wehrmacht units concerning the treatment of members of Commando operations, because in the procedure followed heretofore, my subordinate offices have often been charged with unnecessary work.
I beg you to inform me concerning the stops you have taken."
And an illegible signature as deputy.
We offer next KNOW-2679. This is offered as prosecution Exhibit 653. This affidavit of the department chief of the legal division of the OKH is offered against all defendants and is to rebut the contention that when the words "Standrechtlich Erschiessen" are found in the captured documents it means that legal proceedings were undertaken. This affidavit rebuts that contention.
DR. LATERNSER: If it please the Tribunal, I object to the affidavit. It is not a testimony but a judgment of the person concerned. For that reason, admission of this affidavit not proper.
MR. FENSTERMACHER: If your Honor please, all of the defendants who testified concerning this matter were also giving judgments, if Dr. Laternser's contention is correct.
DR. GAWLIK: If it please the Tribunal, I should like to draw the Court's attention to the fact that the personal data of the affiant are not given. It merely reads "I, Dr. Erich Lattmann," so there is no information as to whether the affiant has the necessary knowledge. He says "we in the OKH." There ought to be the affiant's address, it ought to be stated who Lattmann was, what he did in the OKH, in order to establish whether he is able to pronounce on legal questions in this respect. I am also of the opinion that it is a legal question and not testimony. Therefore, the document is inadmissible for two reasons.
MR. FENSTERMACHER: If your Honor please, the interpretation of words in a document that would appear to be ambiguous is certainly not a matter of law. Now as to the first objection of Dr. Gawlik, personal data of the affiant is not given.
I would like to say this. That particular point was raised before in these proceedings. I brought it up once myself and your Honor who was presiding at the time asked whether I would be satisfied with a statement of counsel. At that time I said I would. I don't believe any of these defendants who certainly know a good deal more about personalities in the OKH than I do would dispute of their own knowledge that Dr. Erich Lattmann was throughout the war a department chief in the legal division of the OKH. He specifically mentions here, "We in the OKH."
DR. LATERNSER: If it please the Tribunal, that is pure conjecture on the part of the prosecution. I should like to point out that I have a photostat. The statement initially referred to--and I now am quoting-- "At the beginning of the Russian campaign." It has then been deleted and replaced by the wards "During the War." The affiant therefore wrote at first "At the beginning of the Russian campaign" and then struck out these words and substituted the words "During the war". If, contrary to expectations, the Court is prepared to admit this affidavit, I insist on the affiants being called as a witness for cross-examination. I should like to draw the attention of the Court to the modification.
MR. FENSTERMACHER: I should like to call the Court's attention to the fact that the modification has been initialed by the affiant.
DR. LATERNSER: Even if the affiant did initial it on the left-hand margin, even then I, as defense counsel, should be most interested in knowing for what reasons he made those corrections because he at first wrote "during the Russian campaign", then amended it and put it in a very general way. I should like to know by way of cross-examination how the affiant came to make this amendment.
MR. FENSTERMACHER: I don't understand, Dr. Laternser. Are you applying to have the witness called for cross-examination?
DR. LATERNSER: In case the affidavit is to be admitted, I should like to have the witness here for cross examination.
MR. FENSTERMACHER: I will be glad to produce him for you.
DR. SAUTER: If it please the Tribunal, may I point out the document does not show who Dr. Lattmann is.
Whether the statements by Dr. Fenstermacher are correct cannot be seen from the document. I do not know a Dr. Lattmann but I can say at this stage that here in the prison I have for hours discussed this problem with the chief of the legal department of the OKW. That was Ministerialdirektor Lehmann and he had a completely different view from that expressed by Dr. Erich Lattmann. It is therefore not evident why the prosecution should insist on having Dr. Lattmann as a witness and not the chief of the legal department concerned who ought to be the best informed on these matters. For that reason, I object to the admission of the document.
MR. FENSTERMACHER: Now, your Honor, I object to Dr. Sauter telling the prosecution how to try its case. We don't want his suggestions as to what witnesses to call. When he argues up here that Dr. Lehmann has a different opinion regarding the interpretation of these words, then I submit that he should have called Dr. Lehmann as a witness on his own behalf.
DR. TIPP: If it please the Tribunal, I should like to add another aspect to what has already been said by my colleagues. In this affidavit it reads "During the war, we in the OKH understood by the term 'standrechtlich erschiessen.." Now it ought to be a matter of recognized law that an affiant if he is to be consulted on his own opinion can only give his own opinion, but he cannot possibly say "We in the OKH." I do not know how many persons the OKH comprised but one thing is certain, there were at least several hundred persons, perhaps a thousand of them, I do not know. At any rate Dr. Lattmann whose name I am hearing here for the first time is indubitably not competent to declare that the whole OKH had a certain legal view. For that reason, I object to the admission of the affidavit.
THE PRESIDENT: The objection will be overruled and the exhibit received for such probative value as the Tribunal deems that it merits.
DR. LATERNSER: If it please the Tribunal, I assume that the prosecution will then be obliged to produce the witness for cross-examination.
THE PRESIDENT: You will kindly do so.
MR. FENSTERMACHER: The affidavit reads as follows:
"I, Dr. Erich Lattmann, swear, state, and declare:
During the war, we in the OKH understood under the concept "standrechtlich erschiessen" liquidate a person without any sort of proceedings. That is therefore something different from the concept "Standrechtliche Erledigung" since this latter pre-supposes a proceedings before a summary court, which passes a judgment. In addition this must be certified. There was only one execution to this, that in case all 3 judges of the summary courts agreed,the death sentence could be executed at once."
There follows the jurat, signed 11 December 1947, Dr. Erich Lattmann.
We offer next NOKW-2835. This is offered as Exhibit 654 and it is to rebut the testimony of the defendants that it was impossible for them to disobey orders of their military superiors, particularly orders which emanated from Hitler, because very dire consequences would have followed such disobedience. If I might anticipate one objection, the affiant here is Hans Felber who appeared as a witness during the prosecution's direct case. At that time, we, of course, could not know that the defendants were going to raise specific examples.
THE PRESIDENT: This witness is still a witness, being held at the instruction of the Court, and I understand that he will be called before the close of the testimony. Besides, he is here in Nurnberg.
MR. FENSTERMACHER: Your Honor, I don't believe that is quite true. He is now, according to my latest information, sent to the prisoner-of-war enclosure at Kallendorf to work for the historical section of the U.S. Army.
THE PRESIDENT: He was ordered by this Tribunal to be held here.
MR. FENSTERMACHER: If I might take execution, your Honor, I believe Judge Burke made the statement at the end of the examination of General Felber that he could be released from the Courtroom but that Judge Burke expected that if he were wanted back here at any time prior to the close of the case, he should be produced. If we have instructions from the Tribunal to that effect, we shall of course comply.
JUDGE BURKE: It was my thought Mr. Fenstermacher, but I desired to ask a few questions of General Felber and I assumed it would be possible to have him returned to Court, perhaps at the conclusion of Fieldmarshal von Weichs' testimony, but regardless of that fact I wish to interrogate him to some little extent.
MR. FENSTERMACHER: You would like him brought here?
JUDGE BURKE: Yes.
MR. FENSTERMACHER: Very well, your Honor, we can do that.
JUDGE BURKE: Very well.
MR. FENSTERMACHER: I withdraw this exhibit in that case.
I offer next Document NOKW-2829. Withdrawn--we don't have the mimeographed copies ready on that as yet.
We offer next OKW-2631. This is offered as prosecution Exhibit 654. This is an excerpt from the German newspaper "Voelkischer Beobachter" under date of 12 September 1943. It relates entirely to the Italian surrender and is offered to rebut the contentions of General Lanz and General Rendulic that at the time they were negotiating with the Italian commanders for a surrender they did not know that Bagdolio had ordered his subordinate Italian commanders not to surrender.
The document also goes to the question of the good faith of the negotiations between the German army and the Italian army. While this is a newspaper excerpt, it is offered not for the truth of the statements contained herein but rather to show that there was wide publication and great knowledge in Germany itself; and presumably the defendants who were in high places had better information than the general public regarding the matter of the Italian surrender.
DR. SAUTER: If it please the Tribunal, I object to this document which is to be submitted. It is a newspaper article written by a certain Wilhelm Weiss. This Wilhelm Weiss was a high official in the National Socialist press, a thorough party functionary, and a propagandist of the Third Reich. It is therefore no official notice and no information which may claim the credibility attached to an official notice. May I point out two more aspects?
This newspaper article is dated Sunday the 12th of September 1943. Up to now I have never heard that the prosecution can possibly contend or wants to contend that General Lanz used to read the "Voelkischer Boebachter" in the Balkans and that in particular he saw the issue of Sunday the 12th of September 1943, before dealing with the Korfu affair. That is one -
THE PRESIDENT: What is the objection you wish to make, Doctor? Maybe we can shorten it up. I say what is the objection that you desire to make?
DR. SAUTER: The prosecution has offered this article saying that the article showed that the facts asserted in the article were common knowledge and, therefore, were also known to General Lanz. How I contend that General Lanz at that time -- that is in September, 1943 -- was thousands of kilometers away from Munich and Berlin and that the article cannot claim any probative value as long as the prosecution does not contend that General Lanz did read the "Voelkischer Beobachter". A second point I wish to make is that there were a series of newspaper articles presented by the defense which have not been admitted.
For example, a number of newspaper articles concerning the officers who were in Greece; even notices by the Greek bishop have been refused by the Court. I don't think that in these circumstances, newspaper articles and certainly not from the "Voelkischer Beobachter" --- a nazi party organ --- ought to be admitted in evidence.
DR. FRITSCH: If it please the Tribunal, I object to the admission of this document in rebuttal evidence for the following reason. Mr. Fenstermacher has stated that he submitted this document on the grounds that, -- he had mentioned he did not know of Bagdolio having given an order to fight against the Germans. This assertion of Mr. Fenstermacher is erroneous. I believe he will recognize this if I draw his attention to the fact that in my submission of evidence I have proved the very contrary.
THE PRESIDENT: I take it that these various comments may be summarized that both you gentlemen are raising the objections that this testimony-offered testimony-- is hearsay, that the affiant cannot be cross-examined, and inasmuch as it has been our holding in connection with similar objections which have been made by the prosecution, the objection will be sustained. You may proceed.
MR. FENSTERMACHER: We offer next NOKW-1511 which is offered, if Your Honor pleas, as Exhibit 694. This document which is a captured document from the German files is offered to rebut the contention that the hostage practice by the armies of the world is unsettled and was unsettled during the last war. This document reveals the attitude of a high-ranking general of the British army on the question of the execution of hostages, General Alexander, and the document is offered further to show that the attitude of the British army on that matter was known to the German officials at the time.
DR. LATERNSER: If it please the Tribunal, I object to the submission of this document. It is not, as asserted by the Prosecution, an official comment of Field Marshal Alexander on the question of whether hostages can be killed or not, but, instead, an appeal by Field Marshal Alexander to German troops in Italy, which was necessarily to have a certain propaganda effect. Such an appeal is not to be construed as being an official comment on such an important or intricate problem as whether or not hostages could be used.
MR. FENSTERMACHER: Your Honor please, I believe Dr. Laternser's objection goes only to the weight to be given the document.
DR. GAWLIK: If the Tribunal please, I have another objection because the Prosecution submits this document in order to discuss a legal question which is to be decided by the Tribunal. That is the issue in this case whether hostages can be killed or not, and according to universal principles of law the submission of documents on legal questions to be decided by the Tribunal is not admissible.
DR. LATERNSER: I have another comment to add, if the Tribunal please. It is not the best evidence, but merely secondary evidence. The Prosecution in their position would have found it very easy and we would have been grateful to them, if they could have submitted an official comment by Field Marshal Alexander regarding his conception -- that is, an official conception of the British Army, as to whether hostages could be shot in reprisal or not. I refer the Tribunal to the fact that I, myself, have wanted to submit a statement by the second highest judicial official of the British Empire, which was not admitted because it was objected to by the Prosecution and in this statement the probably more competent second highest Judge of Great Britain stated that it was not excluded that hostages could be killed by way of reprisals. I say, therefore, that this is not the best evidence, but secondary evidence, and the Prosecution would have found it very easy to obtain the official comment of Field Marshal Alexander. For that very reason, the document should be rejected.
Furthermore the statements are not sworn to, this is merely propaganda.
THE PRESIDENT: This is an official captured war document and will be admitted as bearing upon whether or not the law of hostages was settled at he times in question. Admitted for that purpose only.
MR. FENSTERMACHER: I suggest that Your Honors number this document pages 1 through page 7, because in the course of referring to it, there will be some skipping around.
THE PRESIDENT: They are all numbered except the first page.
MR. FENSTERMACHER: Oh, I beg pardon, Your Honor. You are quite correct. I refer first to page 3, which is a communication to the Reichsfuehrer SS and Chief of the German Police, under date of 7 November 1944.
"The 'Neue Zuricher Zeitung' of 3 Sept. 44, page 2, contains an item concerning the report of an investigating commission, copy of which is enclosed.
"The Chief of the Wehrmacht Legal Branch requests information whether the Wehrmacht Investigation Branch for violations of International Law is to proceed with an investigation. Before this inquiry is answered, the Wehrmacht Operations Staff requests comment of Reichfuehrer SS in this matter."
If Your Honors will bear that point in mind regarding whether the Legal Branch of the Wehrmacht is to investigate this question until, a later document will be submitted by the Prosecution which reflects the attitude of the American Army so far as investigating violations of international law are concerned. Turn next to page 2 of the document, which is dated, "Fuehrer Headquarters, 25 November 1944," about two weeks after the preceding reference. Again the subject is the report of Neue Zuricher Zeitung, concerning the alleged murder of hostages in Rome on 25 March 1944. It is to the Reichsfuehrer SS and Chief of the German Police. There follows -- I believe I neglected to point out on reading from page 3 that the communication there to the Reichsfuehrer SS originated with the OKW, the operations staff, and is dated "Fuehrer Headquarters, 6 November 1944". Nov, continuing on page 1 is the reply of the Reichsfuehrer SS dated Berlin, 11 December 1944, and it is sent to the OKW, and again the subject is the same.
"In answer to your letter of 6 Nov. '44 I wish to inform you that the Reichsfuehrer SS considers it more practical for the Wehrmacht investigation branch for violations of International Law to refrain from an investigation of this affair, particularly since this incident has been exploited thoroughly by enemy propaganda, after Rome was occupied by the Anglo-Americans. Comments concerning it have dimished. However, it is feared that a new wave of propaganda will bestarted if we, on our part, take up the case again." Signed "SS Obersturmbahnfuehrer and Chief Executive Officer of the Reichsfuehrer-SS, Grothmann".
Turning to Page 7, this is from the Wehrmacht Fuehrungs Stab, dated 18 December 1944, to the Wehrmacht Legal Staff. "By agreement with Reichsfuehrer SS, it is not considered practical to have the incident investigated by the Wehrmacht Investigation Branch. We are returning enclosure to your letter of 15 Oct. 1944."
Then on page 5 and 6 is the Proclamation by General Alexander to the various communications between the Wehrmacht Legal Branch, the OKW and the Reichsfuehrer-SS which was the subject of "Proclamation by General Alexander to the German Troops in Italy, 23 October." I think this whole matter relates to charges which were later brought against Field Marshal Kesselring, who was Dr. Laternser's client, and I believe he will agree the date of the Proclamation is 23 October 1944. "General Alexander issued the following warning to German Officers and troops in Italy:
"Murders of hostages, mass reprisals against innocent civilians, tortures and other similar barbaric acts committed by German Troops in Northern Italy are increasing daily.
"Therefore I call the attention of all German men and officers in Northern Italy who somehow might issue or execute orders for the carrying out of such atrocities, to the following:
"The fact that in a certain Italian village, for instance, patriots wearing uniforms, brassards or other insignia might have attacked German Soldiers is, according to International Law or any other legal or moral code, no justification for unrestricted retaliation against the population of this village nor for killing persons without lawful procedure or sentence.
"Officers and soldiers who execute such orders are war criminals.
"In the agreement concluded between the Governments of England, of the Soviet Union, and of the U.S.A., in Moscow in November, 1943, it was established that all German Officers and soldiers charged with war crimes will be taken immediately after the end of the war to those countries where they have committed the atrocities with which they are charged, so that they may be judged according to the laws of this country.
"I have ordered all Italian patriots and civilians in the areas occupied by the Germans to take down carefully in writing the names, units and other details of German Officers and soldiers who have issued or carried out orders for the execution of War Crimes.
"Pursuant to this order my headquarters has received the names of German Officers and details concerning German Officers who among many other War Crimes are charged with the following:"
I think the details are of no interest here. It is signed "Proclamation by General Alexander to the German Troops in Italy."
DR. LATERNSER: Your Honor, Mr. Fenstermacher just said that this appeal was signed by Field Marshal Alexander. That is not correct. It is merely a typewritten sheet which has not been signed. The copy is not certified nor authenticated.
MR. FENSTERMACHER: I think Dr. Laternser's remark is correct and I will withdraw my statement about the signature.
THE PRESIDENT: Pardon me, just a moment, there was also a statement made as to the date of this document and that it is inferred that Dr. Laternser would agree as to the date.