The theory was that if the troops captured Kommandos, they were to execute them isn't that true?
A. No, as far as I know the order, they were to be surrendered to the SD. The order ought to be available.
Q. What would the SD do to the captured Englishmen or captured Kommandos?
A. I can only repeat what I have already said. Normally, we understood the term "special treatment by the SD" to mean the liquidation -- that means they were dispatched to the world beyond but I recall -and that is also stated in the order -- that toward the end the SD also did not carry out this order.
Q. Do you remember certain Kommandos being turned over to the SD by army troops?
A. No, not a single case, not a single case.
Q. You don't recall the case of these seven Englishmen being transferred to the SD?
A. No, I do not recall that. I do remember this affair with Churchill on the Island of Brac.
Q. Who was the Commander-in-Chief Southeast at this time?
A. Fieldmarshal von Weichs.
Q. Colonel, I would like you to take a look at this other document too. This is NOKW-227, which is offered as prosecution Exhibit 669. Suppose we look at this together, Colonel? You will note the first communication is from the Commander-in-Chief Southeast dated 16 April 1944, and it is to Stalag 7a, Luckenwalde through VIIth Service Commander Ic.
"C-in-C, SE requests the Capt Blyth sent here from Rhodes be turned over to the SD there, according to the Fuehrer Order of 18 Oct 42. The SD should be ordered to hold Capt. Blyth first of all at the disposal of the OKH. Interrogation takes place according to order of OKH It is signed Commander-in-Chief Southeast, and I believe over in the left-hand corner is your signature von Harling, Lieutenant Colonel.
Would you then turn to page 2 of the document which you have in your hand, page 3 of your Honors' copies? This is a communication from the Commander-in-Chief Southeast of 27 April 1944, a little after the first communication, and it is to Army Group E.
"1.) English Radio operator and Greek Sailor are to be held for eventual missions as witnesses there under the closest guard.
"2.) The remaining prisoners are to be turned over to the SD for interrogations concerning them and final special treatment according to the Fuehrer Order."
I believe again in the left-hand corner is your name von Harling, Lieutenant Colonel.
Now would you turn to page 3 of the document which you have in your hand, page 2 of your Honors' copies, communication from the Commander-in-Chief Southeast of 3 June 1944, again to Army Group E and the subject is English radio operator Carpenter, Greek sailor Lisgaris. They are apparently the two persons which were mentioned in the previous communication of 27 April, 1944.
"By command of OKW/WESt, the English radio operator Carpenter and Greek sailor Lisgaris captured at Alimnia are no longer needed and are to be released for special treatment according to Fuehrer order."
And again there is your name in the left-hand corner von Harling.
In order to complete the complex, will you turn to page 2 of the original document, page 4 of your Honors' copies? There is a communication to the Commander in Chief Southeast. Ic, I believe that was your office, Colonel. The subject English Kommandos at Alimnia.
This is under date of 4 June 1944. I believe I should have read this prior to the preceding document because it comes one day earlier than the communication from the Commander in Chief Southeast to Army Group E. It reads:
"Since details transmitted are sufficient for presentation to the Turkish government, according to information received from the Foreign Office, the English radio operator Carpenter and Greek sailor Lisgaris captured at Alimnia are no longer needed and may be released for special treatment according to Fuehrer order."
And it is signed by Warlimont. Who is Warlimont, Colonel?
A. He was the Deputy Chief of the Wehrmacht Operations Staff.
Q. Now we are apparently talking about two different cases here, aren't we? First a case involving Capt. Blyth who was turned over on or about the 16th of April, 1944. Then the second case involving the English radio operator Carpenter and the Greek sailor Lisgaris.
Do you recall now knowing about turning over these men to the SD for special treatment?
A. I do recall the first case. I know that at the time a British officer was to have been transferred to Luckenwalde. The affair with the English radio operator and the Greek sailor, I can only put in some kind of connection with the English officers I mentioned previously in which we transferred the officer to Belgrade. The other one was also brought to Belgrade. They both were captured through normal operations.
Q. If you told me, Colonel, 2 minutes ago that you didn't remember turning over any men to the SD for special treatment? You had forgotten about these two case, I assume?
A. No.
Q. You mean you had forgotten?
A. Yes, I had forgotten it, certainly.
Q. You knew at the time you turned these men over they were going to be liquidated, didn't you?
A. Yes, that is true.
MR. FENSTERMACHER: No further questions.
Court No. V, Case No. VII.
CROSS-EXAMINATION BY DR. RAUSCHENBACH (Counsel for the defendant Foertsch):
Q Witness, the prosecution has just confronted you with your statement that General Foertsch had been as it were the moving spirit in his staff, you also said in this connection that you did not deal directly with Field Marshal von Weichs, you and the other members of your staff, but that your chief had been General Foertsch. I now am asking you isn't that something special?
A It is nothing out of the way, it is the normal routine in an army command that all incoming matters are channelled to the chief.
Q General Foertsch, as chief of the general staff was your superior?
A Yes.
Q And he was also the superior of the other staff officers?
A Yes.
Q Of all officers, or were there exceptions?
A There were exceptions. As far as I recollect, exceptions were officers outranking the Chief of Staff but working under him.
Q Was the legal officer in section 3, was he also subordinate to the chief of Staff?
A I think not, he being an official.
Q Witness, were the subordinate commanders, were they subordinate to General Foertsch?
A No, they were not even subordinate to the commander in chief, but to the military commander, the O.K.H.
Q And you now refer to particular cases, I am referring to the troop commanders?
A The troop commanders were not subordinate to Foertsch but to the commander in chief.
Q I am now referring to your remarks about General Foertsch as the moving spirit, is that something extraordinary that the chief of staff is the moving spirit in his staff?
A No, in fact he ought to be that.
Court No. V, Case No. VII.
Q Was he also the moving spirit of the subordinate commanders or did they have their moving spirits?
A They had their own chiefs who were to act as their moving spirits.
Q Witness, I now refer to the documents which have been handed to you. First, regarding the treatment of the seven Prisoners of War, the seven Englishmen, do you still have the document?
A No, I have not.
Q Witness, please read the date.
A 16 July 1944.
Q I will give you the original documents.
A 16 July 1944.
Q Was General Foertsch the chief of staff at that time?
A No, I think not. I think that I cannot recollect myself, in August of 1944 General Winter was the chief of staff. That was in July 1944.
Q Witness, I then wish to tell you that in your affidavit which you made on behalf of General Foertsch, I want to quote the following sentence; under section 1: "I have known General Foertsch since 31 May 1943, the date of my transfer to the Southeast High Command. As chief of the General Staff he was my immediate superior, with him I came in contact almost daily both officially and unofficially in our joint activities till the day I was transferred, that is the beginning of March, 1945, is that correct as you stated in your affidavit?
A Yes, certainly. I just cannot remember the dates considering the changes of my chiefs. Nobody could expect me to, but in August of the summer of 1944 it must have been General Winter and later it must have been Herr von Goetenfeld, but what I put in writing I could ascertain beforehand so that it is correct.
Q Well, refer again to the document which is available to you in the photostat. On the top left hand corner, you can see the letters WFST/QU.2? What does that mean?
Court No. V, Case No. VII.
A Qu.2 that was an agency of the O.K.W.
Q That was the O.K.W. was it not and the notice "telephone call Southeast 1-c". Had there been a previous inquiry by the O.K.W.?
MR. FENSTERMACHER: Your Honor, I object to this, I believe Dr. Rauschenbach is leading this witness.
DR. RAUSCHENBACH: I will then restate my question, so that it won't be a leading question.
THE PRESIDENT: Very well.
BY DR. RAUSCHENBACH:
Q This leading subject, what do you gather from it as to from what agency it emanated?
A From the files of the O.K.W.
Q And what does the notice "telephone call southeast 1-c" mean?
A that must have been a call which the commander southeast had with the Wehrmacht Fuehrung Staff.
MR. FENSTERMACHER: I object to Dr. Rauschenbach qualifying the witness as to what files in the Wehrmachtfuehrungsstab. He was down in Belgrade at the time and the Wehrmachtfuehrungsstab was up in Berlin.
THE PRESIDENT: Unless the witness has first hand knowledge of the matter, I think he should not testify.
BY DR. RAUSCHENBACH:
Q I can rephrase my question, if the Tribunal please. What does the agency described in the top left hand corner of a document denote?
A It refers to the one who is making the document.
Q Thank you. Witness, please read the document once more and tell me whether it can be gathered from this document that members of a Commando troop had been liquidated?
MR. FENSTERMACHER: Your Honor, please, I object to that. The document speaks for itself.
MR. RAUSCHENBACH: If it please the Tribunal, the objection that a document is self evident is no objection. I am asking the witness to explain it. I am merely asking him.
Court No. V, Case No. VII.
THE PRESIDENT: Very well, he can explain it if he can.
THE WITNESS: May I now speak?
DR. RAUSCHENBACH: Certainly.
THE WITNESS: The whole document is one more proof of what I have already said in my affidavit. When I learnt about the Commando order regarding the treatment of troops. When I learned of that order, I, with the knowledge of my chief, had a long struggle with the O.K.W. pointing out the folly of this order. I have further written and testified that in the cases of which I had knowledge of the capture of commando members, I took the view that the commando order was not to be enforced. This document proves, as I have already said, how I pursued this struggle with the O.K.W. with the object of inducing the O.K.W. to issue an order to us that, we hoped, would countermand this lunatic Fuehrer order and which would take from us the burden which we felt in having to carry out such treatment as we were ordered to carry out with regard to Commando troops.
Q In the second sentence of the note you say "the Commander Southeast uses this occasion to call attention again to the numerous contradictory orders concerning the treatment of Anglo-Americans captured with the bands;" does this prove that you were not clear?
A No, the Fuehrer order became rather confusing, I do recall that now, but owing to the fact that the S.D. at the time felt no longer authorized or at least they said they were no longer authorized, nor did they have the instructions to inflict special treatment on commando troops, the S.D. must then have received some instructions or order, which we by the way never learned about, that this order was not to be enforced in the old way.
Q A second document has been submitted to you regarding the English Captain Blyth and of the other two English soldiers, it bears the date of the 16 April through May 1944; was General Foertsch at that time chief of staff?
A No, not in May, 1944.
Court No. V, Case No. VII.
Q In April?
A No, neither in April.
Q Thank you, I have no more questions.
REDIRECT EXAMINATION BY DR. FRITSCH:Q.- Dr. Fritsch, counsel for General Rendulic.
Witness, I should like once more to refer to document NOKW-1496. This is the first document submitted and discussed by my colleague. Now, I am concerned with the following question: In Paragraph 1 and in Paragraph 2, is it the same case that is being referred to, or are they different cases? Will you please read this note once more, thoroughly?
A.- You mean in the first passage and in the second passage, are they the same case?
Q.- In the first paragraph it refers to seven Englishmen captured with bandits. That is case 1.
MR. FENSTERMACHER: Now, if Your Honor please, the witness has already given an answer to that question.
DR. FRITSCH: The witness evidently did not understand my question and I am trying to make it clear.
MR. FENSTERMACHER: The witness has already said that the first paragraph and the second paragraph refer to one and the same thing. I submit defense counsel is bound by the answer of his witness.
JUDGE BURKE: That is my recollection of it. However, if there is any mistake about it, he may restate his original answer.
MR. FENSTERMACHER: Can we have the original question and the original answer, if the interpreters know it, or, if not, could the court reporter read it?
JUDGE BURKE: Would you have the German court reporter get the preceding question and the answer?
INTERPRETER WEBER: The original question was to the effect as to whether Paragraph 1 and Paragraph 2 concerned identical cases. Whether case 1 and case two were identical, and the answer was that the witness asked whether the paragraph 1 and 2 were, in fact, identical, whether they were being referred to as being identical cases.
MR. FENSTERMACHER: You haven't translated in German what the English interpreter just said.
DR. FRITSCH: I couldn't understand. It was not translated into German.
INTERPRETER WEBER: The witness asked whether counsel was referring to paragraph 1 or two.
JUDGE BURKE: Give your question in the identical way it was given to the witness and the answer in the same manner it was given.
DR. FRITSCH: Your Honor -
MR. FENSTERMACHER: I am afraid the court interpreters are not understanding Your Honor's instructions.
JUDGE BURKE: Perhaps I did not make them sufficiently clear. Please repeat in the identical language that was included in the question asked by counsel and give them in identical language the response that was given by the witness.
MR. FENSTERMACHER: Would your Honor consent to having the German court reporter read his transcript notes into the microphone?
JUDGE BURKE: Any fashion that might ultimately secure the desired result would be satisfactory to me. There seems to be a lot of unnecessary confusion. Read slowly.
INTERPRETER SCHARF: "Question: I am concerned with the following questions: Does Paragraph 1 and Paragraph 2 deal with the same case or are they different cases? Will you please read this note once more?".
"Answer: of the witness: You say the two cases 1 and 2 in the Paragraph 1, or in the first or second paragraph?
JUDGE BURKE: Do I understand that the witness in turn was asking for the interpretation placed upon the question by the interrogator rather than giving a direct answer?
DR. FRITSCH: Yes, Your Honor. The witness obviously did not understand my question and asked me to repeat my question. That was the purpose.
JUDGE BURKE: Mr. Fenstermacher, does that clarify the matter so far as your understanding is concerned?
MR. FENSTERMACHER: I am still a little confused, Your Honor, but I think I will have to concede that is the way it was.
JUDGE BURKE: We are both in the same class. I am confused to. Start all over again.
DR. FRITSCH: Witness, my question is to the effect, does this whole note deal with one case or with several cases?
A.- As far as I remember the two events, I cannot say -- if I read the note, then I would assume that Paragraph 1 refers to a case concerning parents. As I said previously, I don't recall it at the moment, whereas in Paragraph 2, another case appears to be referred to, which I only remember in a certain form because I know that at the time the SD represented to us that they had not or would not inflict special treatment upon members of the mission. That was the communication made; that is what I remember, but as far as the case of seven Englishmen captured together with bandits was concerned, I really don't know what it is all about and whether it interested the OKW.
Q.- Witness, I didn't want to have any details. I may assume that your somewhat long answer really goes to show that it is two cases, as far as you recollect?
A.- Two cases, and especially after perusal of this document, because otherwise I should have said in connection with the first what I said at the end, and not vice versa.
Q.- Witness, do you know when the second case, which I like to term the second case, on the Island of Brac, about what time it occurred?
A.- Well, that was in 1944, when Gnesebeck was Ic with the Panzer Army. And when Hinterscher was Counter Intelligence officer both these officers know about these events and Gneseback, as far as I recollect, fell in 1944.
Q.- You recall the month?
A.- No, Sir, I don't.
Q.- This note is dated the 15th of July, 1944, as is shown by the document. Who was at that time commander in chief of the Second Panzer Army, if you can recall it?
A.- I can't say when General Rendulic was transferred. Afterwards it was General Angelis, but I really don't know; that must be ascertainable from documents.
Q.- I have no more questions.
JUDGE BURKE: Any further questions by any of defense counsel?
If not, Mr. Fenstermacher, you may proceed.
RECROSS EXAMINATION BY MR. FENSTERMACHER:Q.- Thank you, Your Honor.
Colonel, how many commandoes were captured on the Island of Brac, do you recall?
A.- No, I don't know. I only recall the case of Churchill by the name, because at the time he was especially requested by the SS -- rather by Himmler himself.
Q.- When you say in your affidavit for Geitner that you have "indubitably a very detailed knowledge of conditions in the Balkans". Would you like to modify that statement somewhat in view of what has transpired here this afternoon?
A.- No. I have no reason to do that, because I don't recall, naturally, the innumerable detailed cases, - nobody could expect me to - but that I did know the conditions in the Balkans while I was there, very well from the level of the Commander-in-Chief South East, that I fully maintain.
Q.- When did you first learn about the commando order?
A.- The commando order? For the first time when we received an order regarding the treatment of members of Foreign Missions, and in the enforcement of this order at this time, I asked for the commando order to be submitted to me, and then I gained knowledge of it.
Q.- When was that? What date?
A.- It must have been in 1944 some time, I don't recall the exact date.
Q.- When did you have these discussions regarding the stupidity of the order that you talked about?
A.- Yes, that must have been subsequently to my gaining knowledge of the order regarding the treatment of members of Foreign Missions, I learnt of the written order regarding the commando members in 1944, by teletype, by writing, and other means of communication, which also accounted for a considerable delay so it must have been in 1944.
Q.- When in 1944? At the beginning, or middle or the end.
DR. FRITSCH: If it please the Tribunal, no objection to the question itself, but against the interpretation, because a most essential part of the sentence was not translated at all. The witness has stated that why there was so much delay with this commando order. Perhaps he may be allowed to repeat it.
JUDGE BURKE: It it unnecessary to state what the witness has stated. Just say the question was incomplete. The entire question should be submitted to the witness for his answer. There appears to be a very extreme amount of unnecessary confusion in this system this afternoon.
Q.- Colonel, can you recall when in 1944 you heard about the Commando order?
A.- No, Sir. I do not recall that.
Q.- Now, it must have been prior to April, 1944, mustn't it? Because that is when you turned Captain Blyth over to the -
A.- I should like to say it must have been at a later date.
Q Now, Colonel, but you recall that document, don't you? Look at it again, NOKW 227, Exhibit 669. You said on that Blyth is being turned over to the SD in accordance with the Hitler order on the 16th of April 1944, and your name is signed in the left hand corner. You knew about the Commando Order as early as that date, didn't you?
DR. FRITSCH: Your Honor, I object to the further examination of this witness on the following grounds: the Prosecution seems to want to divide his interrogation into stages. In the cross examination he was entitled to put such questions, but in recross examination he only has the possibility to deal with those questions which have been dealt with in redirect. I think if necessary we ought to enter into the re-redirect again.
MR. FENSTERMACHER: Dr. Fritsch, seems to be concerned because I am trying to develop a point which he discussed, namely: when the witness had knowledge of the commando order. I submit it is entirely proper redirect, Your Honor.
JUDGE BURKE: The objection will be overruled.
DR. FRITSCH: If the Tribunal please, I did not refer to the commando order at all. I had merely referred to a notice and tried to elucidate this matter, as to its facts but the Prosecutor begins at the very same point at which he began in the cross examination.
JUDGE BURKE: Dr. Fritsch, the objection is overruled.
BY MR. FENSTERMACHER:
Q Now, Colonel, you knew prior to 16 April 1944 all about the commando order, didn't you?
A When? Sir, I would say that in my view it must have been at a later date that this occurred, but I can't say it for certain, but I believe that I can gather from the document that the instruction in this affair emanated from the OKH and that the order of the OKH and the Fuehrer order -- citing the Fuehrer order in zero-zero-has been transmitted. There was never any question of a special treatment in our area, but what we received from the OKH was simply transmitted.
Q Perhaps you did not understand my question. I asked you whether or not you didn't know all about the commando order prior to 16 April 1944. Doesn't this document refresh your recollection?
A No, it doesn't. I still maintain that it must have been at a later date.
Q Colonel, your name is on this document and in the third line of it there is a reference to the commando order of 18 October 1942? How can you make a reference to an order you didn't know anything about?
A I don't know how it happened. I have said that before, but I think it is possible on the basis of the text that the order of the OKH - because we had nothing to do with a prisoner-of-war camp in the Z1. - that the text of the order was transmitted, and we knew the order; that was possible, but we didn't know what order it was, and this would also support my contention that it must have been at a later date.
Q I assume, Colonel, that this order was in the hands of all the subordinate units of Army Group F at the time?
A That was also not necessarily so.
Q Do you really doubt that this order was in the hands of the Second Panzer Army, as well as Army Group E, which were the two subordinate branches of the Commander-in Chief South East at this time? Do you really doubt that?
A No, I have never doubted this.
Q You are sure this order was in the hands of those subordinate units?
A Yes.
Q I have no further questions, Your Honor.
JUDGE BURKE: Any further questions on the part of the defense counsel? Any Questions on the part of members of the Tribunal? If not, the witness will be excused. You may stand aside. (Witness excused.)
DR. MENZEL: Dr. Menzel, counsel for General Kuntze. If the Tribunal please, I wish to return to Exhibit 665.
The court will recollect that this document had been submitted before the recess. Mr. Fenstermacher was kind enough to agree to my referring to it after the recess, because the photostat was rather lengthy. I object to submission of this document on the following grounds: This document purports to prove that at a certain point of time, that is, at the end of September, 1941, a certain unit allegedly shot the commissars, and that this unit was subordinate to the OKH. This document does not belong to the Washington documents. Mr. Fenstermacher must be mistaken in this. We have studied the Washington documents and they contained only material from the South East. The document must have been in the possession of the Prosecution for a long time. This point, that is the shooting of commissars by a certain unit was discussed during examination of General Kuntze in some detail and the Prosecution ought to have submitted this document to the witness at the latest in the cross examination so that I, at that time, would have had the opportunity during the redirect of General Kuntze to question him about this document, but now during rebuttal document it can't be submitted so that the defense is limited in its scope. I do not now have the possibility to question the defendant nor other witnesses about it. To be added to this is the fact that the document is immaterial and irrelevant. It could only prove whether the OKH on a certain day - a unit attached to the OKH was registered as being subordinate to the 42nd Army Corps. These formations were recorded every day in the OKH, and naturally they did not correspond to the actual state of the Front. If then this document is submitted in order to refute the testimony of the Corps Adjutant, the I-a, then it is immaterial as evidence because naturally at that time the deployment of the formations had previously been effected, because some of them were transferred to Rumania. The salient point of my objection now is that the document could, if at all, only be informative with respect to whether the 61st Division was subordinate to the 42nd Army Corps in a certain period of time, but this was only a question of Prosecution Exhibit 593, which is an excerpt from the war diary of the Field Police Troop 161-AMotorized, which is not identical with the 61st Division, and the document does not therefore, disclose whether the Field Police troops were in September, 1942, subordinate to the 42nd Army Corps in the decisive period.
I therefore ask that the objection be sustained.
MR. FENSTERMACHER: If I may start with Dr. Menzel's last point first. Your Honors will note that Exhibit 593 is an identification report of Field Squad Gendarme 161-A, Motorized, but the report itself appears to have been found in the war diary of the 61st Infantry Division. If the 61st Infantry Division was subordinate to the 42nd Corps commanded by General Kuntze at the time when the incidents mentioned in the Field Gendarme report took place, then the document is certainly relevant and material. It is rather strange for Dr. Menzel to object to it if it is irrelevant and immaterial and wouldn't particularly harm him. Now to his first point, with reference to whether or not this is of timely submission, I would simply like to say that the prosecution can't tell when it is going to get material bearing on this case. The files are voluminous and they have to be screened and we can't promise to have them screened at the end of a particular time, but more than that, during the cross examination of General Kuntze, as I remember it, he did not doubt that the 61st Division and the 217th Division were subordinate to the Corps at that time, so it was rather surprising for me to learn, in reading this document book that two of his affiants were contesting the date of the subordination, and with those two affidavits in mind we endeavored to ascertain decisively the relationship of the subordination on the dates involved. I submit it is entirely proper for us to rebut these affidavits with these charts.
I would simply like to add one more statement to the statement which I made in explanation of our Exhibit 665. I said at that time that according to the charts it was shown that the 61st Division was subordinated to the 42nd Corps on the 8th of October 1941, and our charts bear that out. The next chart which we captured indicates that on the 12th of October 1941 -- I have it here if Your Honors would care to look at it -- indicates that the 61st Division was not subordinated to the 42nd Corps. Some time between the 8th and the 12th the Division apparently left the subordination of the Corps. I believe there were certain executions of commissars mentioned in Exhibit 593 which occurred both on the 8th of October and on the 9th of October and if I said, this morning, that we did not hold General Kuntze responsible for the execution of commissars after the 8th of October, I am in error, and would like to amend by stating that it is also our belief that he is responsible for the executions which took place on the 9th of October 1941.
PRESIDING JUDGE BURKE: We will take our afternoon recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BURKE: The Tribunal is prepared to dispose of both matters which were pending at the end of the session. With regard to the motion made this afternoon, the motion will be overruled and the testimony will be permitted for such probative value, if any, as it may have. In respect to the motion made just at the conclusion of the afternoon session, while there is some technical doubt of the right of admission of this testimony, it will be received for such probative value as it may have. You may proceed.
MR. FENSTERMACHER: Does that ruling also refer to Dr. Menzel's present application, Your Honor?
PRESIDING JUDGE BURKE: Unfortunately did I have my sound system off?
DR. MENZEL: I would like to ask your Honor the ruling of the Tribunal refers to my objection also, which I wanted to supplement and concerning which I had not concluded my statement, or are other motions concerned by this ruling?
PRESIDING JUDGE BURKE: I am very sorry. I thought the matter had been concluded; but you may proceed, Dr. Menzel.
DR. MENZEL: May it please the Tribunal. Quite briefly I wanted to point out the following. Document 593, that is, Prosecution Exhibit 593, which has been submitted some time ago, is the War Diary of the 161st Field Gendarmerie Troop. In the copy which I have available, nothing is contained concerning the fact that this Field Gendarmerie Unit was subordinated to the 61st Division. Mr. Fenstermacher now submits the photostat which contains which contains notes which are not contained in the document book submitted by the prosecution. It is here and I shall submit this document to the Tribunal, that in very fine letters on the top, something is written which is almost illegible. It concerns an Infantry Division. Who made this handwritten note and when it was made is not at all clear.
One could well imagine that an expert, for instance in the War Ministry in Washington, under the assumption that this particular Field Gendarmerie Unit was subordinate to that Division concerned, therefore made that handwritten note. It can hardly be read and, in my opinion, has no weight therefore. I am prepared to show this photostat to the Court. Apart from this, I would like to be permitted to comment on the basis of this example, where it leads to if such documents are being submitted as rebuttal documents. In this particular incomplete new document, Exhibit 665, which contains only a period of a very few days, the 61st Division is still registered on the 8th of October having belonged to the 42nd Corps. If the document had been presented during the cross examination of the defendant Kuntze, I would have been in a position to bring certain proof -- at that time I had all the possibilities to produce evidence -- that on the 8th 10th the 42nd Corps was on its way to Roumania and that therefore practical subordination was technically not possible at that date and that only the former formal subordination existed and was registered in the O.K.H. possibly to that date when the Corps arrived in Roumania and was newly subordinated there. All these possibilities of evidence, which would not have been difficult, are eliminated for me because my case has rested in any respect. Now, by the prosecution of such a rebuttal document, I see myself in a position where my evidence and my defense is impaired in a way which in my opinion is intolerable. A rebuttal document must only be submitted concerning a topic which the defense, for instance, by producing a document submitted as quite a new topic