Perhaps Dr. Sauter is laboring under the misapprehension that he as a defense counsel is entitled to send out searching parties and fishing expeditions into our entire evidence. If Dr. Sauter's interpretation of the court's ruling were correct, I submit we might just as well have transported to Nurnberg the entire captured files from Washington.
DR. LATERNSER: Your Honor please, the ruling of the court has just been handed to me, and in this ruling it is stated --.
JUDGE BURKE: I may state, Dr. Laternser, that it is the present attitude of the Tribunal that Mr. Fenstermacher has correctly stated the rule. If you have anything that indicates a different point of view, the Tribunal will be interested in entertaining your views.
DR. LATERNSER: If the Tribunal please, at the beginning of this afternoon's session, I should like to refer back to this problem, after having studied the court's ruling very thoroughly.
JUDGE BURKE: Very well. The tribunal will accept your request to withdraw the exhibit submitted as 665, Document NOKW 2791.
MR. FENSTERMACHER: That is correct, Your Honor.
JUDGE BURKE: Is that the correct document number?
MR. FENSTERMACHER: That is correct, Your Honor.
JUDGE BURKE: Very well.
MR. FENSTERMACHER: We will offer in a very few minutes another document to take the place of Exhibit 665, so that we can keep the numbers in order.
JUDGE BURKE: Very well.
MR. FENSTERMACHER: Continuing now with the reading of the Schmauser affidavit with respect to the Ziehlbert case:
The Senate found ZIEHLBERG guilty of negligent disobedience and sentenced him to a prison term of somewhat under one year. (I do not remember anymore the exact term). After this sentence had been imposed on ZIEHLBERG, he was interrogated by the General assigned for Special Duties with the High Command of the Army, and his legal adviser, a judge-advocatc-general.
By completely changing the testimony he gave at the trial, ZIEHLBERG now admitted in detail that he was conscious of doubts, or at least misgivings, about KUHN's statements. For he had deliberately failed to put KUHN immediately under arrest in order to give him a chance to shoot himself. Subsequent to this very exhaustive interrogation of ZIEHLBERG by the General assigned for Special Duties and his legal adviser -- the transcript of which contained about three to four pages, according to my recollection -- the sentence was quashed and a new trial ordered with myself appointed as its presiding judge.
A short time later Generalfeldmarschall Keitel paid a visit to the Reich Supreme Military Court, which was the first and only time during the whole war. At this occasion he discussed the case ZIEHLBERG and expressed the opinion that KUHN's desertion meant for the German Wehrmacht the loss of 100,000 dead, because KUHN (who had been for 3½ years with the organizational department) represented an exceptionally valuable source of information for the enemy.
ZIEHLBERG repeated at the second trial the depositions he made to the General for Special Assignments. He severely emphasized them, and upon my question whether his deposition might not have been misunderstood by the General for Special Assignments, and how this second deposition was to be explained, he replied that he could not justify it with his conscience as a Christian to tell a falsehood before court. At the conclusion of the trial ZIEHLBERG sentenced to death for disobedience causing losses in consequence of negligence.. In the orally delivered reasons as well as in the written judgment it was emphasized by the senate that legal provisions prevented it from sentencing the defendant to detention in a fortress (an honorary punishment) as it would have liked to do. The senate would consider a jail term to arrest, and intentionally refrained from imposing a sentence to a dishonorable penitentiary term, in consideration of ZIEHLBERG's military accomplishments and unobjectionable human conduct and attitude.
The death penalty, which was also demanded by the prosecution, was considered by the senate not so much as a penalty in the criminal sense, but as a military atonement, which was justified by ZIEHLBERG having seriously endangered thousand of German soldiers.
Immediately after the trial I had ZIEHLBERT come into my office. I shook his hands, saying that in all my life I had never been touched so profoundly as by the fate befalling him. He should formally promise me that he would not lose his nerves and not lay hands on himself. I told him that I thought it entirely impossible that this sentence should ever be carried out, and that we would undertake everything in our power in order not only to obtain clemency but his reinstatement, after perhaps a few weeks had passed, to his divisional command. ZIEHLBERG on his part shook my hands, giving me the requested promise, and thanked me for the chivalrous form and manner with which I had treated him. He would not commit suicide, if for no other reasons, then because he was by far too good and convinced a Christian. He realized now what damage might be caused the German Wehrmacht by his failure to put KUHN under arrest, and he himself, ZIEHLBERG, if he had been a judge in this case, could have pronounced no other sentence that we had done.
As a consequence of this judgment all five members of the court signed a petition of clemency addressed to Hitler. In order to secure the most convincing wording for the clemency petition, and to set forth the situation from all its manifold angles, I agreed with the other four judges in a complete reversal of customary practices -- that they were to submit to me in advance their opinions with regard to the clemency plea, for the purpose that I might amend, and phrase it more effectively. This was done. The president of the Reich Supreme Military Court and chief of the legal division of the Wehrmacht, expressed himself strongly in favor of its indorsement.
When the decision concerning the confirmation of the sentence was delayed beyond the usual time, the president of the Reich Supreme Military Court went to Berlin to discuss the matter also with Goering and Himmler. Both promised him their support. Nevertheless, as far as I remember, Hitler confirmed the sentence and only after a number of months had passed. Thereupon the president of the Reich Supreme Military Court and I went personally to Berlin in order to plead with Feldmarschall Keitel to prevent, under all circumstances, the execution of this sentence. On my part I requested the president to point out that I could not envisage myself of ever acting as judge in any such a case again. I myself was not even received by Keitel. The discussion between Keitel and the president of the Reich Supreme Military Court lasted only a few minutes. As I was told subsequently by the president, Keitel rejected in the sharpest terms any renewed argumentation. He stated that Hitler, who for about three days carefully considered the case and acknowledged the humane considerations pleaded by us, nonetheless deemed it unavoidable, in the interest of the whole and the Wehrmacht, that the sentence be carried out, which in fact it was. Shortly before he died, ZIEHLBERG wrote me a letter in which he once more expressed his gratitude for the chivalrous manner in which I tried to help him during and after the trial.
"Except for the Ziehlberg case --". Here I might point out to Your Honors that this is after 20 July 1944. "-- I know neither from my own work nor that of any other judge or court -- as far as I can remember at this moment -- that at any other time a death sentence against a German general was carried out. I would like to remark, however, that I am not even informed by hearsay about the activities of the field court martials and especially not about the so-called "special summary court of the Fuehrer'." Follows the jurat and signature, "Dr. Karl Schmauser."
PRESIDENT: Is this offered in connection with the plea of superior orders?
MR. FENSTERMACHER: That is correct, your Honor.
PRESIDENT: As indicating custom?
MR. FENSTERMACHER: Yes, as indicating what the Prosecution contends were the consequences for German Generals disobeying orders.
PRESIDENT: And as indicating what International Law on that question is?
MR. FENSTERMACHER: We did not submit it for that reason because we feel that International Law is ....
DR. SAUTER: Dr. Sauter for the defendant Lang. Your Honors, I have reserved the right for me to cross examine this affiant, Dr. Schmauser. But I don't intend to make such a motion because the character of this witness becomes very evident from his affidavit anyhow. The affiant says here....
PRESIDING JUDGE BURKE: Dr. Sauter. Do you have an objection to make to the document?
DR. SAUTER: No, I haven't.
PRESIDING JUDGE BURKE: Very well, there is no matter before the Court then upon which an argument will be required at this time.
DR. SAUTER: Well, I only wanted to give my reasons, if the tribunal please, why I am not going to make a motion for cross examination of the affiant Schmauser.
PRESIDING JUDGE BURKE: That you do not wish to examine him is sufficient. Whatever reasons may impel you the Court has reserved for your argument, Dr. Sauter.
DR. SAUTER: I shall be prepared to do that in an appendix to my final plea in order to show how we defense counsel judge a man of the type of Dr. Schmauser.
PRESIDING JUDGE BURKE: Very well.
PROSECUTION: We offer next NOKW 2827 and if we give this Exhibit Number 665 I think it will keep our numbers in order.
Your Honors will note the original of this exhibit. You can ascertain that it is a long series of charts from which we have taken excerpts of the order of the battle of the German Army on particular dates. The dates we are interested in at this point are with respect to the time when the defendant Kuntze was in command of the 42nd Corps, or rather on what dates certain units were under the command of the defendant Kuntze as Commander of the 42nd Corps. The document is offered to rebut two affidavits introduced on behalf of the defendant Kuntze. The affidavit of Eberhard Einbeck which is in Kuntze Document Book 3 as Document Number 74 and Kuntze Exhibit 45 states that the 61st Division was subordinate to the 42nd Corps approximately from the middle of August until the last third of September 1941. The affidavit of Joachim von Woedtke, Kuntze Document Book 3 is Document Number 75, Exhibit 46 for Kuntze states that the 61st Division was subordinate to the 42nd Corps not after about 26 September 1941. Those affidavits in this rebuttal document which we offer in the year 1941 show whether or not the defendant Kuntze was responsible for the execution of commissars which are indicated from Prosecution Exhibits 592 and 593. Turning to the document itself now we find that on the 22nd of September 1941 the 61st Division and parts of the 217th Division were subordinate to the 42nd Corps, the 18th Army and Army Corps North. Another chart which is the order of battle of the German Army for the 27th September 1941 indicates that the 61st Division and one-third of 217th Division were similarily subordinate to the 42nd Corps and higher units; it states that on 2 October 1941 the 61st Division was still subordinate to the 42nd Corps.
8 October 1941 also shows that the 61st Division was in fact subordinate to the 42nd Corps which was commanded at that time by the defendant Kuntze.
DR. MENZEL (for the defendant Kuntze): May it please the tribunal, this document is a voluminous document. It comprises a list of several long pages which I should have to check. The copy given to us is only a small percentage of the whole document and not sub-divided very clearly. It is not possible to make any comment before looking through the photostat which was submitted to me now for the first time. May I be allowed to give my comments on this document after having had an opportunity to look through it. It does not become in any way evident from the document, whether it is a draft or a final copy.
PROSECUTION: I cannot quite understand Dr. Menzel's last remark. These are photostatic copies of captured documents which are in Washington, they are orders of battle charts which were prepared either by OKW or OKH.
DR. MENZEL: The photostat shows a document.
PRESIDING JUDGE BURKE: Is there any objection, Mr. Fenstermacher, to giving Dr. Menzel an opportunity to examine them before the afternoon session during the recess?
MR. FENSTERMACHER: None whatsoever. He may make any objection at any time.
PRESIDING JUDGE BURKE: Is that satisfactory, Dr. Menzel?
DR. MENZEL: Yes.
JUDGE CARTER: Mr. Fenstermacher, I just casually examined those exhibits. They are difficult to understand by anyone not familiar with those terms.
As I understand it from General Kuntze's evidence he commanded this division until approximately October 6th, according to his testimony at which time he claims the division was being moved into the Balkan area and arrived there on the 20th. That is just my recollection.
MR. FENSTERMACHER: I think he testified about commanding a corps rather than a division.
JUDGE CARTER: A corps, yes. My suggestion is, that you make a statement for the record to what this complicated piece of evidence means. I think it might be helpful for our examination.
MR. FENSTERMACHER: Prosecution Exhibits 692 and 693 indicate that commissars were executed by the 61st Division and 217th between -
PRESIDING JUDGE BURKE: I think you mean 592 and 593.
MR. FENSTERMACHER: Perfectly right, Your Honor, I am sorry. Prosecution Exhibits 592 and 593 indicate that commissars were executed by the 61st Division and the 217th Division between the dates of July 1941 and November or December 1941. The two affidavits in Kuntze Document Book 3 are to the effect that the 61st Division was not subordinated to the 42nd Corps after the last third of September 1941. This document indicates that as late as 8 October 1941 the 6lst Division was subordinated to the 42nd Corps which was commanded at that time by the defendant Kuntze.
JUDGE CARTER: Very well.
MR. FENSTERMACHER: I would like to offer next, NOKW-2826.
JUDGE CARTER: Before you go into that might I ask you one more question?
MR. FENSTERMACHER: Of course.
JUDGE CARTER: There is no question that the 61st Division did not accompany General Kuntze's Corps, the 42nd Corps, when it was transferred to the Balkans?
MR. FENSTERMACHER: I am not prepared to quite answer that question, your Honor. I believe about all I can say is that some time after the 8th of October 1941, the 61st Division was no longer subordinate to the 42nd Corps. I do not know where the Corps went or where the 61st Division went but in any event we do not charge General Kuntze with responsibility for the activities of the 61st Division after 8 October 1941.
JUDGE CARTER: Very well.
MR. FENSTERMACHER: This document is offered as Exhibit 667. Your Honors will recall that at the time Dr. Laternser applied to have interrogatories sent to General Eisenhower, General Devers, General Smith, and others, he also made an application to have an interrogatory sent to General Patton's Chief of Staff with respect to a reported order issued by General Patton at the time the American troops landed in Sicily. That application was read into the record and supported by a newspaper clipping. In order to clear General Patton's name and the name of the American Army with respect to their activities at the time they landed in Sicily, I should like to offer this document into evidence.
THE PRESIDENT: That application was denied.
MR. FENSTERMACHER: If your Honor please, the whole matter was spread upon the record. I think we should be given an opportunity to at least counteract, for the purpose of the record, Dr. Laternser's unfounded assertions.
THE PRESIDENT: I have no further comment to make.
MR. FENSTERMACHER: It is an order dated "Headquarters Seventh Army, United States Army, dated 6 August 1943.
"SUBJECT: Disposition of Enemy Military Personnel Apprehended Behind Front Lines.
TO: All Unit Commanders.
The following disposition of enemy military personnel apprehended behind front lines is announced:
"Germans in uniform apprehended behind front lines will be handled as Prisoners of War.
"Germans in civilian clothes apprehended behind front lines will be turned over to unit Provost Marshal who will impound them in the nearest local jail and accomplish in triplicate the attached form and deliver the original and first carbon copy to the Corps Provost Marshal and the third to the local jailer. Such a prisoner will be treated as being prima facie a spy, subject to rebuttal evidence that he was not obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy.
"Italians in uniform apprehended behind front lines will be handled as Prisoners of War. Those whose permanent homes are in Sicily will be segregated and evacuated separately to Army PW cages.
"Italians in civilian clothes whose permanent homes are not in Sicily apprehended behind front lines will be turned over to unit Provost Marshal who will impound them in the nearest local jail and accomplish in triplicate the attached form and deliver the original and first carbon copy to the Corps Provost Marshal and the third to the local jailer. Such a prisoner will be treated as being prima facie a spy, subject to rebuttal evidence that he was not obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy."
"By command of Lieutenant General PATTON:
"/s/ W. G. CALDWELL Lt Col, AGD, Adjutant General" I think the forms on page 2 of the document are self-explanatory and need no further explanation.
DR. LATERNSER: If your Honors please. From Mr. Fenstermacher's remarks it becomes evident that he is under the impression that I made a false assertion. The assertion which I made at the time I of course maintain only my application for evidence was not granted. I would like to clarify this situation because Mr. Fenstermacher is hereby trying to refute the incorrectness of my assertion. He cannot thereby refute my assertion and this assertion is being maintained by me.
MR. FENSTERMACHER: I think the record will show whether Dr. Laternser is correct as to the assertions he made at the time.
PRESIDING JUDGE BURKE: I'm sorry, Mr. Fenstermacher, I didn't hear you.
MR. FENSTERMACHER: I think the record will show whether I am correct or whether Dr. Laternser is correct as to what he said at the time.
PRESIDING JUDGE BURKE: The record will speak for itself.
MR. FENSTERMACHER: If your Honors please, we would like now to interrupt our rebuttal and cross examine the affiant Franz von Harling.
DR. LATERNSER: If it please the Tribunal. I regret having to make another statement concerning this point, in order to prevent a wrong impression arising. I have made a certain assertion and I wanted to prove it. Through the ruling of the Court I was in no position to prove my assertion.
MR. FENSTERMACHER: I have no further comment, your Honor.
PRESIDING JUDGE BURKE: I beg your pardon?
MR. FENSTERMACHER: I have no comment to Dr. Laternser's last remark.
PRESIDING JUDGE BURKE: You may proceed.
FRANZ VON HARLING, a witness, took the stand and testified as follows:
PRESIDING JUDGE BURKE: Mr. Witness, you will raise your right hand and repeat after me: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
PRESIDING JUDGE BURKE: You may be seated.
CROSS EXAMINATION BY MR. FENSTERMACHER.
Q You are Franz von Harling?
A I am Franz von Harling.
Q And your last rank in the German Army was Colonel, I believe?
A Colonel in the General Staff.
Q You were the Ia, or rather the Ic, Intelligence Officer, at Army Group F from, I believe, May 1943 until some time in 1945?
A I was 1c of Army Group E from 31 May 1943 until the middle of August 1943 and then I was Ic of Army Group F after that.
Q Do you recall giving affidavits on behalf of General Foertsch and General Geitner, Colonel?
A Yes, I do.
Q Are you still familiar with their contents?
A I hope I am.
Q Would you look at the affidavit you gave on behalf of General Geitner? It is found in Geitner Book 3; it is Document No. 57 and was introduced as Geitner Exhibit No. 43. First, a few preliminary questions, Colonel. As Ic of Army Group F you saw all the reports that came in from the subordinate units. You attended conferences, I presume, with the Chief of Staff of Army Group F, who at that time was General Foertsch, and made inspection trips, and were generally familiar with what was going on in Army Group F?
A Well, I was informed generally about those things of which the Chief of Staff was informed; mainly, of course, I was informed about my own field of activity. Concerning the individual incoming reports from subordinate units, of which there were many daily, I was not always and on principle informed.
Q But you did have a detailed knowledge of conditions in the Balkans during the time from May 1943 to March 1945?
A Well, concerning the events in large outlines and also about some individual events, I did have information.
Q Both in Athens...for both Greece and Serbia, and Croatia, and Montenegro, and Albania -- the entire area of Army Group F, I mean?
A The whole of the area which was under the jurisdiction of the Commander in Chief Southeast was well known to me in all its ups and downs and tos and fros. For instance, I participated in the chief conferences, as a matter of principle. Of course there are exceptions, which confirm the rule. On the basis of my specific sphere of work I was particularly informed about those matters which are probably under discussion here.
Q You are probably one of the most informed men we could have to testify here regarding what was going on within the area of Army Group F at the time you were Intelligence Officer of that Army Group - am I correct?
A Further examination will show that. I cannot very well anticipate that.
Q You have a pretty good memory of what went on while you were down there, Colonel?
A I lost some of my memory through my treatment in Prisoner of War camps.
Q I assume you still have some loyalty left for your old chief, General Foertsch. He was your superior, wasn't he?
A Yes.
Q And you still feel some loyalty towards him?
A Yes, I feel loyalty towards him, there can be no doubt of that. It would be mean of me if I would not say that. But I have every intention of answering your questions objectively.
Q How did you happen to come to give these affidavits for Geitner and Foertsch.
A The first affidavits I did on my own account, that is, at the time I was in the camp in Belgium; later, through written requests. Parts of the indictment were sent to me and I was informed that my affidavits were desirable. I wrote to defense counsel and offered to make my knowledge available.
Q Then did you actually compose the affidavits which later formed the exhibit?
A Yes, I wrote them. I did.
Q When was the last time you talked to counsel for General Foertsch and General Geitner?
A Yesterday.
Q Did you talk to both of them then?
A Yesterday, when I arrived -- I was called here by telegram from the Defense Information Center -- I went to see both gentlemen and asked them what was up. They told me they were not permitted to tell me anything about it; they had promised that they would not talk to me about things to come; they told me that probably quite soon I would appear before the Tribunal; that I was called here by the Prosecution.
Q I think we can probably make this examination somewhat short, Colonel. I wonder if you could tell us when you regarded as the most important military personality in the Southeast during the time you were there?
A The most important personality was General Field Marshal von Weichs. He was the Commander-in-Chief.
Q Do you recall being asked that question on another occasion and giving a different answer?
A Yes, I do. I don't think -- I beg your pardon -- I don't think I gave a different answer, but in the course of the very detailed interrogations which the Prosecution exposed me to, I was able to ascertain that the Prosecution was of the opinion that the motor of the whole business down there was General Foertsch, and in evaluating the individual personalities and the individual powers of the various persons, I could only repeat that General Foertsch was for all of us the moving power. He was for us the most important personality. I may restrict this by saying that we had comparatively little contact with Field Marshal von Weichs. All our business most of the time took place in the office of the Chief of staff.
Q You mean in that when you were asked the same question which I asked you just now on a different occasion, your answer was General Foertsch and not Field Marshal von Weichs?
A Yes.
Q Colonel, would you look at the affidavit which you gave for General Foertsch. It is in Foertsch Document Book No. 2 on page 6. It was Foertsch Document No. 18 and was introduced as Foertsch Exhibit No. 17. You gave that affidavit on 8 August 1947. Now would you look at the paragraph which reads, "It is, furthermore, of interest in this connection that the Higher SS and Police Leader and not the Commanderin-Chief Southeast had the executive power ever the civilian population in the Southeastern area."
If the Higher SS and Police Leader had executive power, what was the function of the military commanders in the various occupied areas within the sphere of Army Group F.
A There was a certain overlapping of jurisdiction. This existed between the Commander-in-Chief Southeast and the Military Commander Southeast.
Q Colonel, would you speak somewhat slower in giving your answers to my questions so that they can pick it up in the interpreter's booths.
You were explaining your answer.
A I started by saying there was a certain overlapping of jurisdiction and in the limitation of the spheres of work of the Commander-inChief Southeast was the actual leader of the troops. He dealt with preparations against a possible invasion. He was to defend against this invasion.
Q Let me interrupt you, Colonel. I don't think we need have this answer in too much detail, but I would like to ask you now whether you still believe that the paragraph which I read to you gives a complete answer? That is, are you satisfied that as that paragraph stands now it could not be misinterpreted or misunderstood and is not ambiguous?
A May I once again ask you to tell me what paragraph you are referring to?
Q The paragraph in which you say that the Higher SS and Police Leader had executive power over the civilian population in the Southeastern area.
A Yes. I see that statement. I maintain that assertion. The executive power in the occupied area in the Southeast was undoubtedly held by the Higher SS and Police Leader. That was Meyssner when I arrived down there. Later on he had a successor whose name I don't recall just now.
Q Now you are talking about Serbia, but let's take Greece. You were an expert on Greece, too. What was the function of the Military Commander of Greece? Did he have any executive power, or did the Higher SS and Police Leader for Greece have that power?
A To the best of my information, and that ought to be correct, the executive power there, too, was in the hands of the Higher SS and Police Leader, Schimana. I know that there were currently difficulties between the two personalities, that is, the Military Commander, who represented the soldier, and on the other hand the Higher SS and Police Leader, Schimana. I recall very well one incident where we had to make representations to the Reichsfuehrer-SS on our own account because the Higher SS and Police Leader in spite of express orders given by Himmler and the OKW did not put at our disposal the police units requested.
He refused to do that. That is, he went along his own ways.
Q Colonel, don't you know that the Military Commander of Greece, General Speidel, had executive power in Greece and not General Schimana? Don't you know that?
A No, I don't know that. I only know that it was always said that we were not an operational theater in the normal meaning of the word. We represented occupied territory and everything concerning the civilian population was done by the Police.
Q Who had the territorial jurisdiction in Greece?
A The territorial jurisdiction was in the hands of the Military Commander.
Q Now will you look at your next paragraph in which you say that the Commander-in-Chief Southeast had no influence whatsoever as far as the operational area and the operational task of the Security Service within the sphere of the area of the Commander-in-Chief Southeast?
A Yes. Of course, I maintain what I said in that paragraph. I know very well that the SD appeared here and there, participated in this or that operation. But I was never informed about the combat areas and about the organization of commitments. I never knew anything of that kind, and so the Commander-in-Chief and the Chief of Staff couldn't know it either.
Q Now when you use the words "Security Service" in that paragraph, you don't mean units of the Waffen-SS, do you?
A No. No, for Heaven's Sake, I don't.
Q The units of the SS the Commander-in-Chief of the Southeast could command in combat, couldn't he?
A Yes. They were subordinate to him as purely military units. They had nothing to do with the SD.
Q Now would you turn to the affidavit which you gave on behalf of General Foertsch which appears in Foertsch Document Book 2 on page 58. It is Foertsch Document No. 38 and Foertsch Exhibit 35. Now in the course of that somewhat lengthy affidavit you talk about certain violations of international law on the part of the Germans, Colonel?
A Yes.
Q Suppose you tell us about some of those.
A I recall the following incident. During the course of evacuation measures along the Dalmatian coast, such measures had become necessary because we anticipated a landing of the British and of the Americans along that coast. During that operation the SS Division committed in the area of Ottopac had the order to lead the population of that sector back to an area which had previously been fixed. For this purpose the corresponding discussions had taken place with the Croatian Government with which we had to consult concerning all our measures. One day we received a report -- I don't know through which channel -- to the effect that this SS Division had shot a considerable number of persons to be evacuated.
Q Let me interrupt you, Colonel. You are talking now about an atrocity which you say was committed by the SS. Do you recall any atrocities which were committed by strickly army units and not SS?
A Well, I may add that this SS Division was subordinate to the Commander-in-Chief Southeast. It was a troop formation. I recall here also that Field Marshal von Weichs ordered an immediate investigation of the case.
Q Now I mean in the case of a strictly army division or corps, not an SS division or an SS corps. Can you remember any atrocities or violations of international law coming to your attention which were committed by a strictly army unit?
A No.
Q Now you were down there from May 1943 until March 1945, that is to say almost two years. This is a rather remarkable record for an army not to commit any violations of international law over the great period of time in view of the unusual severity of the warfare down there, isn't it, Colonel?
A Well, Mr. Fenstermacher, you talked about a German formation. In actual fact I stated this Ottopac case or the case that happened in Northern Greece where a village was burned, but I will not say that there weren't individual cases in the area where those or that incident happened. They did such enormous things on their own that the individual soldier and the troop leader couldn't do anything else and shouldn't have done anything else.
Q You are in effect repeating your previous answer that you know of no reprehensible acts which could really be charged against an army unit.
A I repeat that at this moment I really don't know anything of that sort. I am prepared to give you an answer if you cite an actual incident that occurred.
Q Now why didn't you mention in your affidavit here about the atrocity which was committed by the SS that you are now talking about?
A I beg your pardon. I did mention that in an affidavit for Field Marshal von Weichs.
Q Why didn't you mention it in your affidavit for General Foertsch?
DR. RAUSCHENBACH: I object to the question and to the preceding one, if the Tribunal please, Nothing of this sort is contained in the affidavit which the affiant executed for General Foertsch. Therefore, it cannot be made a subject of cross examination. The witness should not be asked about incidents about which he does not say anything in his affidavit; that he did not mention any such incidents in that affidavit since he was not asked about them is only a matter of course. It seems to me that the Prosecutor is trying now to make this witness under cross examination his own witness, but that is not the idea of cross examination. He should ask him concerning facts stated in the affidavit.
He can attack him if he says certain things in the affidavit, for instance, that the partisans committed cruelties, but he should not try to get out of him what atrocities might have been committed by Germans and then approach him with the fact that he did not state that in the affidavit.
JUDGE BURKE: Your objection is that it is not proper cross examination?
DR. RAUSCHENBACH: Yes.
JUDGE BURKE: The objection will be overruled. At this time we will take our recess until one-thirty.
THE MARSHAL: The Tribunal will be in recess until 1330.
(The Tribunal recess until 1330 hours.)