Q. Until 1933, you were training for your legal career?
A. Yes.
Q. according to German concepts you were still in legal training then, that is correct, isn't it?
A. Yes, that is correct.
Q. And you were in training until 1933 and when did you come to the legal administration of the army?
A. On 1 March 1934.
Q. Until the date then when you were called into the legal office of the army, you were not a judge?
A. No, I wasn't.
Q. I see, and what was your rank as legal adviser of the Supreme Commander of the Army?
A. I was Judge advocate General, and since 1 May 1940 I was Military Judge, with the rank of a Colonel.
Q. As military judge, you held the rank of a Colonel then?
A. Yes.
Q. Would you be kind enough to look at your affidavit again, please?
A. Yes.
Q. I mean the affidavit which you executed on 11 December 1947. I believe that is the date. The first sentence reads: "During the war, we in the OKH understood by the term 'shot after summary court martial' to liquidate a person without any sort of proceedings."
Witness, I will have to ask you the following question again. Who do you mean by "we"? "We in the OKH ..."
A. They are those people who, due to their position, were entitled to comment officially on that question.
Q. Can you tell me who these people were, who these personalities were with whom you discussed the concept of "shot after summary court martial"?
A. That was the quartermaster General and the Supreme Commander of the Army.
Q. Who was the Quartermaster General?
A. That was at the time General Mueller.
Q. Quarter Master General Mueller, I see, and who was the Supreme Commander of the Army?
A. There was only one during the war and that was Fieldmarshal von Brauchitsch.
Q. You tell us, witness, that you never received reports from the troops which contained the fact that a certain number of people were shot after summary court martial.
A. No.
Q. You never received any such reports?
A. No.
Q. You can state that under oath?
A. Yes. I can do that because, according to paragraph 1, Section 4 of the German Military Penal Code, all matters had to be dealt with by court martial procedure. At that time, the intention was -- and that was during the time about which I can give an opinion -- that even where the usage of war permitted it, a man was not to be shot according to summary court martial without legal proceedings preceding that shooting. I recollect the case of the franc tireurs. In the actual code, there was a provision that franc tireurs are to be punished with a death sentence. According to the usages of war, it was not necessary but on the basis of the actual instructions, a court had to convene in order to sentence a franc tireur. According to the usages of war, it would have been admissible to shoot the franc tireur according summary court martial. That is paragraph 1, section 4 of the German Military Penal Code.
Q. There is that provided? Where can you find it, that according to the usages of war people can be summarily shot without a legal procedure? You just told us that according to the usages of war it would have been possible to shoot these people summarily without a legal proceeding.
A. I mean the franc tireurs.
Q. Well, the franc tireur is an example. Was there an agreement on that fact with the OKW and OKH?
A. I can't say anything about the OKW but in the OKH -- yes, there was an agreement. Only that in this war the special instruction excluded that fact. I myself reported orally to the Commander-in-Chief about this fact.
Q. What was the cause for you to discuss this question with Quartermaster General Mueller, and with the Commander-in-Chief of the Army Fieldmarshal von Brauchitsch?
A. During the first days of the war during the Polish campaign the Supreme Commander of the Army as holder of executive powers, issued an order according to which under certain conditions -- or shall we say better in the case of severe offenses of indigenous inhabitants-- summary court martials were to be convened which were to sentence these offenses. In this instruction, at the end, the term "summarily shot" or "shot according summary court martial," appeared. This instruction was composed without any previous knowledge on my part. That can be explained by the fast way in which events took place at the beginning of the war and the fact that the individual agencies were not quite adapted to their tasks yet. The Chief of Staff of the Quartermaster General, drew up that instruction and contrary to later usages he himself reported it orally to the Commander in Chief. He showed it to me and he asked me to co-sign the document after the then General von Brauchitsch had already signed the document. I refused to sign that instruction because I said that it was out of the question, that it could be issued with this version "shot according to summary court martial." Mainly, I said the instruction talked about court martials and about the appointment of courts martial and about the sentencing of severe offenses by courts martial. It would make a difference if after that one would use the term "shot according to summary court martial."
Colonel Wagner was very upset about that and said, after all, the Commander-in-Chief of the Army had signed it. However, I refused to sign it and said, why should I do that. It will just cause confusion. The troops won't know then what they are to do, if they find two concepts mixed up. These two concepts have to be kept strictly separate and according to the usages of the First World War, and I was a company battalion leader in the First World War, and as such know what it is to be understood by "shot according to summary court martial", from the conditions at the beginning of the first world war in Belgium.
At that time -- and I recall a decree by General von Alem -there was complete clarity as to what the term "shoot according to summary court martial" meant. This decree of General von Alem is published in some international law book, I believe in the one by Bauder-- though I don't quite know which one. General Mueller who was present in this discussion with Col. Wagner maintained the same point of view that I did and Col. Wagner in the end had to amend the instruction and it was issued in that amended form and then re-submitted to the Commander-inChief of the Army who had already signed it. He also gave his approval to the effect that the instruction would merely refer to a court martial procedure.
Q. What was contained in that last chapter of the decree which was issued in 1939? I mean the last chapter, the one that deals with shooting "according to summary court martial"? What was contained there? After all, you made certain objections to it, so you have to know what it said there.
A. I do know that it said there "summarily shot" or "shot according to summary court martial." What the actual wording was, I don't know any longer today. I am interested here in the main aspect, and the main aspect was that there was a mixup here between the two terms of convening summary court, a sentence, a verdict of the summary court, and then in the end in contradiction to that, they talked about shooting "according summary court martial".
Q. Witness, you still haven't told me what was actually said in that last chapter? After all, it couldn't have only contained the two words "shot according summary court martial." Obviously there must have been some sort of a regulation as to what and under what preconditions a shooting according to a summary court martial was admissible and that is what I am interested in now.
A. I'm sorry. I don't know that. I can't state that. The main aspect I have already anticipated. By no means, it should be said that it is admissible to shoot people summarily. Instead, the idea to liquidate by summary court martial was a lapsus linguae and used wrongly in this particular place I cannot give you the contents in detail.
Court No. V, Case No. VII.
I believe that it would be asking too much after such a long time to ask anybody to give you the exact contents of that instruction.
Q Fieldmarshal von Brauchitsch then also maintained the point of view that it was only a lapsus linguae. If I understood you correctly up till now, your superiors at that time maintained a different point of view. They insisted that shootings according to summary courts martial were admissible and now you tell us that it is only a lapsus linguae? That isn't compatible, witness.
A I don't know what you mean. The instruction as such only talks about the convening of summary courts. And of dealing with offenses by such summary courts.
Q Well, again, if the instruction only uses that term, then it wouldn't contain anything about a summary shooting and now since half an hour you have been telling us that you objected to the fact that the last chapter talked about summary shootings.
A Yes, it did say that.
Q Then it did say so?
A Yes, but they meant in actual fact that a court procedure took place preceding the shooting?
Q Witness, you, as legal advisor of the Commander-in-Chief of the Army in 1943, received orders by the OKW. I believe it was in September 1943, when the shootings of Italians after the Italian capitulation was ordered?
A No, Counselor, at that time I was no longer in the OKH. I just told you that my position ended on 31 October 1942. Then it isn't very well possible that in 1943 I received reports from Italy in my position in the OKH.
Q Well, after you left that position in the OKH, what were you then in?
A Then I was with the Reich Military Court.
Q And in what position?
AAs a military judge in the Senate.
Court No. V, Case No. VII.
Q I see. Just before you discussed the usages of war, you said according to the usages of war it would have been admissible to shoot people summarily. Due to your position as legal adviser with the Supreme Commander of the Army, do you happen to know whether armies of other countries, that is foreign armies, also have that particular usage of war?
A First of all, I would like to clarify one circumstance. I have never said there is the usage of war or a usage of war to shoot summarily. If it is a usage of war, then I answer the question in the affirmative, that other armies also have the same usage of war.
Q You mean then that shootings without a court sentence preceding the shootings is also used in other armies?
A Where Franc-tireurs are concerned.
MR. RAPP: Your Honor, I object. He didn't say that at all. He is just putting words into the witness's mouth. It is a play with words. I object to that kind of interrogation by defense counsel.
THE PRESIDENT: I believe the witness can take care of himself.
DR. SAUTER: Furthermore, the witness himself has said what I just repeated. All I wanted to do in consideration of the importance of this fact, is to clarify the aspect so that the witness can't later say we misunderstood him here.
THE PRESIDENT: Dr. Sauter, my ruling in substance was favorable to you, and I think we can proceed with the examination without further comment. However, Mr. Rapp, the Court will entertain any comments from you.
MR. RAPP: It has no reference as to the Court's ruling; that is already passed. But I wonder if the Court finds it necessary that Dr. Sauter has to repeat the witnesses answer in each instance. I think the Court understands in rebuttal we would gain time if we just let the witness talk for himself, instead of getting it twice or three times in the record through the benefit of the defense counsel.
THE PRESIDENT: You may proceed with the examination, Dr. Sauter.
Court No, V, Case No. VII.
BY DR. SAUTER:
Q I have one last question to put to you, witness. During your activity as legal advisor, did you receive orders by the OKW which ordered shootings according to summary courts martial? Will you thoroughly consider your answer?
A I don't know of any.
Q I see. In that case, I have no further questions, witness. I thank you.
THE PRESIDENT: Are there further questions to be asked by other defense counsel?
Any questions by members of the Tribunal?
JUDGE BURKE: I have none.
MR. RAPP: We have no further questions, your Honor.
THE PRESIDENT: The witness will be excused.
MR. RAPP: Your Honor, in view of the fact that the affiant of NOKW-2679, Exhibit 653, has been produced by the prosecution for crossexamination, I would like now to have this affidavit be admitted into evidence without further strings attached to it.
THE PRESIDENT: The Exhibit will be admitted.
MR. RAPP: Your Honor, if you please, I would like to call the affiant Helmuth Reymann for cross-examination.
THE PRESIDENT: The witness may be called.
HELMUTH REYMANN, a witness, took the stand and testified as follows:
BY THE PRESIDENT:
The witness will rise and be sworn, please. Will you raise your right hand and be sworn?
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.)
THE PRESIDENT: You may be seated.
Court No. V, Case No. VII.
CROSS-EXAMINATION BY MR. RAPP:
Q Witness, you are Helmuth Reymann?
A Yes.
Q When were you born?
A 24 November 1892.
Q Where?
A In Neustadt in Upper Silesia.
Q Do you remember that before this Court you executed an affidavit on behalf of the defendant Rendulic?
A I made this statement via Counselor Dr. Fritsch.
Q And do you remember the contents of that affidavit?
A Yes, I do.
MR. RAPP: If your Honors please, I have referent to Rendulic Document Book I, Document 20, Exhibit 19, on page 27, of the document book.
BY MR. RAPP:
Q Witness, what was your last rank?
A I was last a General, a full General.
Q What was your last unit?
A I was in charge of Army Group Spree.
Q Will you quite briefly in a few words state your assignments after you left the 52nd Division?
AAfter I left the 52nd Division, because I fell sick, I was at home and I stayed there until September 1942. Then for about six weeks, I was in charge of the 254th Division as deputy.
Q Please a little slower so that the interpretation can follow.
A Yes, and on the 1st of October, 1942, I took over the 212th Division. I led this division for exactly one year and then the 13th Luftwaffe Field Division.
Court No. V, Case No. VII.
MR. RAPP: I forgot to tell you, Witness, that you can take your earphones off now.
A Then I took over the 213th Luftwaffe Field Division, of which I was in charge until April, 1943. In April, 1943, I took over the 11th Infantry Division; that lasted until November, 1944. After that, from November 1944 until March, 1945, I was at home and took part in a training course for commanding generals. Subsequently, I was in the Fuehrer Reserve, and from 7 March until 24 April 1945, I was District Commandant of Berlin. On 24 April I took over the so-called Army Group SPREE, and with the remnants of that Army Group, either on the 15th, 16th, or 17th of May, I am not quite sure of the date, I was taken prisoner. I was taken prisoner north of Angermuende, and these were, quite briefly, my assignments.
Q And whose prisoner of war were you?
A I was an American prisoner of war, and four weeks later I was handed over to the British.
Q You alone?
A No, together with a number of other officers in Schaumuell, or Esselweiler.
Q Witness, what I have shown you now is a copy in German of the affidavit which you executed. Read it through again, if you like. You can keep it. Witness, how did it come about that you executed that affidavit?
A I received a communication from defense counsel of General Rendulic, with the question whether I could give an answer and comment on his various questions.
Q What questions?
A The questions which I answered in that communication, in which manner the order was transmitted to me and all the other questions which I answered. These are questions put to me in writing by defense counsel.
Q You are now talking about the commissar order, are you?
Court No. V, Case No. VII.
A Yes, I am.
Q Were you in a position to answer all questions by defense counsel?
A With the exception of the first question, the answer to which I did not know quite clearly, I could do that to the extent to which my memory allowed me to do that. After all the events lie five years back.
Q This first question, did that refer to events which took place five years ago?
A It happened in Summer 1941. I mean the events the question refers to.
Q That is six years, isn't it?
A Well, maybe six years. I have to point out that I received these questions in August of last year and answered them then.
Q Well, still that is six years. This year it will be seven years.
A Yes.
Q Witness, you say, and I quote: "If after more than six years I can understandably not remember any more in which channel the order, 'Directive for the treatment of political commissars', hereafter called 'Commissar Order' was passed on to the Regiment from the Division, I can nevertheless state with certainty that the Division Commander personally, that is, Brigadier-General Rendulic, did not inform me of the contents of the Commissar Order, but that I briefly learned of its basic contents through one of the organs of Division Headquarters." Is that correct, witness?
A Yes.
Q That is your testimony today also?
A Quite.
Q You say now that after six years you can not recall any details, or that you can not recollect in which manner the order reached you?
A Yes.
Court No. V, Case No. VII.
Q But still after six years you can very clearly remember that it was not through General Rendulic?
A The personality of General Rendulic as Divisional Commander and superior was not the suitable person to transmit such orders; generally speaking our orders were not transmitted by the Commanding General personally. That happened very infrequently.
Q Was the Commissar Order in your opinion something unusual?
A Yes, it was, but -
Q Just a minute, please, and, therefore, don't you think that it was perhaps not, after all, General Rendulic, himself, after all, who transmitted that order, because it was such an unusual one?
A I don't believe that.
Q Who in your division dealt with the passing on of orders?
A I was in charge of a regiment, not of a division at this time. I was in charge of the 205th regiment.
Q I am quite aware of that, witness, but still you were a member of the 52nd Division, weren't you?
A I should imagine that it came through 1-C channels. That order was transmitted along those channels.
Q The 1-C is a staff officer of a division, isn't he?
A Yes, he is an officer of the division; he may be a captain. In my later division -
Q Isn't a captain an officer?
A Yes, but not a staff officer.
Q In your regiment to whom would the 1-C give that order, if he passed it on?
A To the Battalion Commander.
Q In other words, the liaison between the 1-C and the battalion Commander was a direct one?
A I believe I did not understand your question correctly. The 1-C would pass on the order to my adjutant, my regimental adjutant. He would submit it to me, and I, personally, or through the adjutant, Court No. V, Case No. VII.
would pass it on to the Battalion Commanders.
Q Very well. Witness, if you say here that you remember with certainty that General Rendulic did not give you the order, do you, by saying that, mean that he did not come to you personally in order to give that order either orally or in writing?
A Yes, that is what I mean.
Q Do you include the fact that one of his staff officers did not give it to one of your adjutants?
A No, I don't include that fact. I only refer to the person of the General.
Q So that the weight of your statement is on the word "personally". What you mean is he personally did not give it to you?
A Yes.
Q Now, witness, in your affidavit in the next paragraph you further say the following -- this is the last sentence of paragraph 3. "Moreover on the occasion of conferences or visits to my command post, Brigadier-General Rendulic, always directed us to treat all Prisoners of War humanely and in accordance with regulations."
A Yes.
Q Witness, did you make that statement in order to establish the fact that Prisoners of War were not shot or treated in an inhumane manner? Was that the reason?
A I wanted to signify generally the attitude which my superior, General Rendulic, held towards prisoners of war, and I believe that I can answer your question in the affirmative.
Q Witness, did you ever, in writing or orally, receive the Commissar Order?
A That must have been the case. Unfortunately, I can't tell you with any amount of certainty whether I received it orally or in writing, but one thing is certain, I did receive it. I knew it.
Q Did your regiment -- I mean the 205th regiment -
A Yes.
Court No. V, Case No. VII.
Q Did that regiment ever carry out the Commissar Order?
A To the best of my knowledge and recollection it did not. I may stress here that while I was in mobile warfare, and even when I was later on in a war of positions, I never consciously saw a commissar.
Q Witness, in this paragraph which we have read here, you said that General Rendulic repeatedly pointed out that all prisoners of war had to be treated in a humane manner and in accordance with regulations.
A Yes.
Q Can you still recall the commissar order, witness?
A I can not remember the contents of the Commissar Order at all. I had lost track of it completely and only through the communication by counsellor, Dr. Fritsch, I again remembered the commissar order, and today I can't tell you what contents that order actually had.
Q In other words, although on 25 September 1947 as well as today you can not recall the contents of the commissar order, you still executed an affidavit dealing with the commissar order?
A Yes, after, through the communication of Counsellor Dr, Fritsch, I was again reminded of this commissar order, I remembered what it was dealing with, but if I am supposed to relate its contents here, I would say that I am not in position to do that in detail. I do not know that a commissar order existed.
Q In other words, witness, since the 25th of September you forgot it again, is that what you mean?
A No, I wouldn't say that. I admit the fact in the statement and I admit the fact today that I knew the commissar order. After I am now being asked by you whether I know the contents of the commissar order in detail, I must stress that I can not in detail say what the commissar order provided. The contents or the text of the commissar order I can not recollect today, I can not say what it contained, but I do know quite well that it did exist.
Q I didn't ask you about any details. I didn't ask you a bout the text. All I am asking you is, according to the meaning, in your own Court No. V, Case No. VII.
words, and in substance, can you remember the commissar order?
A Yes, I can do that.
Q. Well, then will you please tell me.
A. The Commissar Order, to the best of my recollection, provided that Commissars were not to be taken prisoners, but were to be shot. That is the main substance of the Commissar Order, to the best of my recollection. I don't know more than that about the contents of the Commissar Order.
Q. Do you know the date of the Commissar Order?
A. No.
Q. Do you know the year?
A. It must have been in 1941; In the beginning of 1941.
Q. What do you mean at the beginning of 1941?
A. Well, during the months up to April.
Q. And when did Germany invade Russia?
A. In July.
Q. So that the Commissar Order was issued before the Russian Campaign, is that correct?
A. That is what I would assume.
Q. Well, Witness, were Commissars treated at all as prisoners of war?
A. To the best of my knowledge they were not provided to be treated as prisoners of war in accordance with the commissar order.
Q. Well, have a look again at the sentence in the third paragraph, which you wrote.
A. You mean the sentence where I said that General Rendulic always pointed out that prisoners of war should be treated in accordance with regulations?
Q. What were you trying to prove with that sentence?
A. I wanted to show the attitude of General Rendulic towards all questions concerning prisoners of war, including the treatment of commissars.
Q. What is the connection with the commissars, as you told us before, that the order provided that commissars were not to be regarded as prisoners of war?
A. In spite of such an order, one can maintain an attitude which says "treat commissars also as prisoners of war". That is quite possible. I received orders from above frequently which I did not pass on in the same form in which I received them. I amended them and formulated them in a way that my subordinates could act and work in an orderly and proper manner.
Q. But that is not quite obviously apparent from the way in which you expressed yourself, isn't that true?
A. That may well be, sir.
Q. So that now you mean to say that General Rendulic treated commissars also as prisoners of war?
A. To the best of my recollection that is what he wanted to express.
Q. Did you, General, at any time learn from the 1-C or other officers of the staff of General Rendulic, or did you receive from them any instructions in writing concerning the treatment of commissars? Did you receive any instructions as to how the enemy was to be treated? The civilian population, etc?
A. I can't say that. I can't remember that in detail. I only know that during conferences General Rendulic stressed those facts. I can confirm that. Whether I ever received any such communications in writing, I can't tell today.
Q. Did you at any time receive orders from the division which provided that people who were about in your regimental area without any passes or identification paper s were to be caught and shot immediately?
DR. FRITSCH: If the Tribunal please, I object to this manner of questioning. In this affidavit I very deliberately just dealt with the commissar problem. The prosecutor now deals with all sorts of points which have nothing to do with this.
MR. RAPP: I think it is perfectly obvious to the court that I am just trying to impeach the credibility of this witness. It is the first question I have ever asked which is outside the affidavit.
THE PRESIDENT: The objection will be overruled.
Q. I can not remember any such order. I admit the possibility that such an order was given, but I can not remember it. May I add something?
Q. Go ahead.
A. I believe that such orders would rather be given in a war of positions and not during a mobile warfare, and I only was in mobile warfare with General Rendulic. When I came to the East there was mobile warfare; when I left on 6 January there was still mobile warfare, so at that time that question was not of such great importance.
Q. Witness, you can not recollect any such orders any longer, is that correct?
A. Yes, it is.
Q. Did you, yourself, issue such orders, or did you have them carried out?
A. No, I believe I can answer that question in the negative very firmly. I myself did not give any such orders.
Q. You further said in your affidavit, Witness, in the last paragraph: "In my regiment, no commissar was ever shot pursuant to the above-mentioned order. I also know of no such case in the 52nd Infantry Division."
A. Yes, I said that.
Q. Due to your official position, would you have had to know every case?
A. No, only within my regiment, and not even there, possibly, because parts of the regiment fought with other units. Quite frequently I had to give up a battalion or a company to other units, and what happened there, of course, I did not learn.
Q. Witness, in the division of which you were a member, there were certain customs with reference to the issuance of orders?
Is that correct?
A. Yes.
Q. What do you understand, in order to start right from scratch, by the word "Distribution List" on an order of your Division?
DR. FRITSCH: If if please the Tribunal, I object. I do believe that at this point we are getting rather far afield. That has no longer anything to do with the credibility of the witness or with the affidavit. I object to this question.
MR. RAPP: I have no comment, your Honor. I am repeating what I said previously.
THE PRESIDENT: The witness may answer this question, but I think we have gone a little afield, and I think it should be restricted from this point on, and will be.
Q. Witness, I will withdraw that question, so that I don't have to put any other questions along those lines. What did "Distribution C" mean?
A. I have to say quite frankly that I don't know. Apparently it means a communication which was addressed to the "C" agency, but it may also mean something else. I don't know.
Q. Was there a "C" service with the regiment?
A. It was either dealt with by the regimental adjutant or by the ADC, generally. He was a first Lieutenant in my regiment and he dealt with the 1-C work.
Q. Your Honor, I am putting NOKW 1858, Exhibit 606, to the witness, and I would like to ask him a few questions about that. NOKW 1858, Exhibit 606, it was introduced during the Rendulic cross examination. For your Honor's convenience I have shown the witness page 66 and 67 of that document.
BY MR. RAPP:
Q Witness, do you know this document? Have you ever seen it before?
AAs I read that order today it is almost as though I see it for the first time in my life. I believe that this order was not directed to the front troops who did not deal with such matters. At least I certainly did not have the time to check up on villages frequently. During mobile warfare I had to deal with tactical tasks, which had nothing to do with the tasks mentioned in the order. It is possible, therefore, that the rear units, perhaps the bakery company were more tied to one locality, received such an order and carried it out. I will admit that it is not impossible that I saw this order once before in my life and read it. It was issued by the Division, as I see; the date is the 16th of September 1941. That was right in the middle of the mobile warfare which took place at the Russian Front. What kind of orders I received at that time and whether I read them all I cannot today state with any amount of certainty. The fact that this order reached my staff does not mean to say that I saw it and read it.
Q You tell us then that the bakery company or other rear units received that order?
A That is possible.
Q Witness, just go back one page. Does that page concern the bakery company?
AAccording to the signature I cannot say anything. Captain Damm was not known to me.
Q Just read that report, will you?....Now finally, witness.....
A May I have a look at it please?
Q You can keep it. Well finally, witness, please look at this particular passage (indicating.) That page has no number. Have a look at this page. Can you quite briefly comment on the contents?
A I know nothing about these cases. At least they did not occur in the area of my regiment.