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.
Q Would you say that somebody would have had to take the time to shoot these people?
DR. FRITSCH: May I make a request? I have, of course, not got this exhibit handy at this moment and the whole thing is a little mysterious. I do not know what the witness is being questioned about and of course I cannot drag all the documents down which might possibly be resubmitted now. Perhaps it would be possible for the prosecutor to let me have this photostatic copy for a moment.
MR. RAPP: I don't know, your Honor, why it should be mysterious to Dr. Fritsch. It has been in evidence and I have given him the reference number; but I will be glad to give it to him.
BY MR. RAPP:
Q Can you comment on that, witness?
A No, I really can not.
Q You never heard about these things as regimental commander within the division?
A No. I would like to point out that the regiments were quite far apart from each other, due to the vast space in the East. Of the commanders of the other two regiments -- there was Colonel Hanner--I saw him twice; and the other one Col. Peschel who is no longer alive. I cannot remember having seen at all while I participated in mobile warfare with the division.
MR. RAPP: I have no further questions of the witness.
DR. FRITSCH: If it please the Tribunal. I believe I shall have only a very few questions to put, so that we can finish this examination before the recess.
REDIRECT EXAMINATION BY DR. FRITSCH:
Q General, you still have the document that was last under discussion?
A Yes. It is.....
Q I beg your pardon - you dealt with page 83?
A Yes, I did - 83.
Q The date is 6 September 1941?
A That is correct.
Q Will you please very carefully read the first paragraph?
A Yes.
Q What is the main substance? Can you tell us, quite briefly, what battles are involved? Is it an open frontal warfare, or what is it?
A That is difficult to glean from this report. It appears that it is not an open frontal warfare.
Q What is it instead?
A Instead it seems to be a clash with a band of 39 men - 1 functionary, 2 commissars and 36 partisans. How this clash actually took place is not apparent from the report.
Q General, I beg your pardon. All that is correct. I would like you to show us the difference. You say it is not frontal warfare?
A Yes.
Q Now you read us what persons are involved. You were speaking of a band.
A Yes.
Q I see. So what kind of a battle was it then?
A It must have been a battle in a wood or somewhere in a lerality. It was a surprise attack.
Q General, was it a battle against regular soldiers?
A No.
Q What was it, instead?
A It was a battle against people who were unlawfully in possession of arms and who had congregated.
Q How were they called?
A Partisans or bandits.
Q And the people who are mentioned here were such partisans?
A Yes.
Q Is such a partisan battle something which took place within the area of your regiment?
A No. Not then, nor later. I an my regiment never had anything to do with partisans.
Q General, another question concerning the commissar order. You talked about dates before?
A Yes.
Q When do you believe you heard of the commissar order for the first time?
A To the best of my recollection it was briefly before the movements in Russia started. I would like to point out the following. I and my regiment, before the Russian warfare, were stationed in Paris, as guard regiment; that is, apart from the division I was put on a train in Paris and it was only in Russia that I came back to the Division. Therefore, before the Russian campaign, for about three weeks I had nothing to do with the Division proper.
Q General, what you mean is that if you mentioned the date of April before....
A Yes.
Q That is the alleged publishing date?
A Yes.
Q We do not have to discuss the fact that it does not actually apply. Thank you. I have no further questions.
MR. RAPP: I have no re-cross, your Honor.
THE PRESIDENT: Are there other defense counsel who wish to interrogate this witness? Do any members of the Tribunal wish to interrogate the witness?
JUDGE BURKE: I have no questions.
THE PRESIDENT: The witness will be excused.
*********
MR. FULKERSON: There is a mixup about the exhibit numbers, if your Honors please.
That is an unusual circumstance but we will straighten it out in a moment.
THE PRESIDENT: If it will be of any assistance to you, my record shows the last one was Prosecution Rebuttal Exhibit 672.
MR. FULKERSON: Yes sir.
THE PRESIDENT: I am not saying it is correct but I am giving you what I have.
JUDGE BURKE: I have 673.
MR. FULKERSON: Last Friday, I believe it was, I attempted to introduce Document NOKW-069. I think it has already been distributed to defense counsel. It is this cloak and dagger story about the attempted assassination of Tito. Dr. Fritsch objected to it at that time and said that it was not responsive to General Rendulic's testimony and the Court asked me to quote chapter and verse. I was not able to recite so I would like to make a second effort to put it in. The...
THE PRESIDENT: Will you repeat the exhibit number and the NOKW number again?
MR. FULKERSON: The document number is NOKW-069 and it will be Prosecution Exhibit No. 673; and the citation in the record is page 5429 of the English transcript, during the cross examination of General Rohdulic. Mr. Rapp was cross examining. He said: "Witness, was it ever suggested to you, and subsequently approved by you, to disguise dead hostages in British uniforms, fully identified with British papers, and drop them around Marshal Tito's Headquarters, to give the impression that these men had been genuine British parachutists who suffered a misfortune when they landed, and they were full of explosives. They carried a letter to Tito and if that letter had been opened it would have blasted the headquarters apart and for this reason two killed hostages were used and they were disguised in British uniforms. Now I would like to ask you two questions. First, have you ever heard of this plan? And, second, if so, would you consider it a permissible use of land warfare? Please answer these two questions."
DR. FRITSCH: If it please the Tribunal, perhaps I may interpolate here. I assume that the Court will recall that at that very point I requested that the record be corrected; at least I pointed out that the interpretation of the question was not a correct one. At this moment I cannot decide whether this correction has actually been applied, nor can I decide whether Mr. Fulkerson gave the correct translation now, or the erroneous one. I would therefore like to ask to be permitted to clarify this question.
THE PRESIDENT: Tie will take our afternoon recess at this time and you can check into that matter during that period.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. RAPP: Your Honors, if you please, before Mr. Fulkerson continues with his document presentation, I would like to make a very short announcement. Firstly, we would like to inform the Court that there are a number of witnesses which we have asked for as rebuttal witnesses who will not be produced for various reasons and I would like to give these names now so defense counsel won't have to work burning midnight oil as they won't appear here in Court. This, first, General Gullmann and General Keiper. They will not appear, despite the fact that they have been announced.
Finally, I was informed this morning in error that General Felkenhorst had arrived. It was a man by the name of Falkenhausen. The British made a mistake but, in view of the fact we want to get through the rebuttal, I also withdraws the name of General Falkenhausen.
I would, however, in lieu of these, try to announce one more witness whom we would like to have tomorrow -- 24 hours -- and we won't fall behind in time because we are taking three out and putting one in, a net gain of two.
I am having reference to defense document book, Geitner No. VI. There was a document introduced which was called Geitner Document No. 200 in Geitner Document Book No. VI. Unfortunately, I don't have my exhibit today. Maybe Dr. Sauter can tell us what is the exhibit numbers for the information of the Court.
T here is an affidavit of the affiant Hans Joachim Hamling. In this affidavit the affiant accuses the American authorities of having put up a poster threatening the execution of 200 to 1 in the event certain rules were not being complied with and the very name of Major David B. Bernatein was mentioned in this affidavit. We feel that we like to clear the name of Major Bernstein and, since he came here from the States, we would like to afford him to tell the Court just what this is all about, so we would like to put Major Bernstein on sometime tomorrow afternoon in rebuttal to this particular affidavit.
It is Exhibit 172, your Honor, Geitner Exhibit 172.
Finally, a very minor change on the transcript of the 27th of October: it appears in the English transcript, the date of the 22nd of October.
THE PRESIDENT: What is the page?
MR. RAPP: I do not have the page here, your Honor, but I will find it out in a very short while. It is the 22nd of October which is dated the 27th of October but it appears correctly in the upper left hand corner as being the 27th of October. I thought your Honors would like to know this to avoid possible confusion. I will supply you the page number very shortly.
MR. FULKERSON: Well, I got this correction Dr. Fritsch made in the transcript here if he would like to comment on that. Anyway, the answer to that was that "I certainly can't remember any case of this kind", and then on the next page when the discussion continued the witness said: "I know of no provision in the rules of warfare in which such an action is prohibited" the plain inference of that being that -- the plain implication, rather, being -- that the plan contained nothing in it that was inherently offensive to the rules and customs of war, and this document is offered to contradict both assertions.
DR. FRITSCH (Counsel for defendant Rendulic): Your Honors, in the meantime, I have looked for my correction motion and I have found out that the Prosecution has this correction motion among their documents. It is the motion dated the 20th of November 1947 and in which I set down again the German question and found out that the answer given by the defendant, of course, was directed to the question as it was put in German. Therefore, in my opinion, it is not proper that conclusions are being drawn from the answer to the English question which Mr. Fulkerson read because the answer wasn't given in answer to this question.
On the basis of this mistake, the Prosecution is submitting new documents in rebuttal.
I cannot decide, your Honors, whether this motion, dated the 20th of November 1947, was sustained. I only know that the Prosecution received it in their documents. In any case, the question as it was read here by Mr. Fulkerson in English before the recess is not exactly the same as the German question and that seems to be the most decisive point because the answer was given in reply to the German translation.
MR. FULKERSON: If he can do one of two things, your Honors -- here is the German text; I am certainly not going to attempt to read it in German but if Dr. Fritsch wants to read it in German and let the translators tell you what it is, it is perfectly all right. I think you will find there is not a twopence difference between Dr. Fritsch's version and the version I read -- or we can put the defendant back on the stand and have the question put to him.
THE PRESIDENT: I believe it would perhaps be better for the record and save time if Dr. Fritsch would read the statement into the record from the German and have the interpreters then translate it. Then it will be into the record and the Court will then give consideration to the question as answered in the German by the defendant.
DR. FRITSCH: Yes. "Witness was it ever suggested to you and did you not also approve this, that German hostages should be put into British uniform" -
MR. FULKERSON: Wait! Not "German hostages."
DR. FRITSCH: "Shot hostages, killed hostages, should be put into British uniforms and be equipped with British papers and then to be placed in the neighborhood of Tito's headquarters in order to create the impression as if the people were killed British parachutists who had had an accident when they landed and that they had explosives on them and that they had a letter, that they should bring a letter to Tito, according to which the headquarters was supposed to be blown up, and that for this purpose two killed hostages were used who were dressed in British uniform; and now I would like to put two questions to you."
And now, Your Honors, I gave the two questions In my motion:
"Firstly, did you hear about this plan? Secondly, if 'yes' would you regard that as an action which was in accordance with the Hague Land Warfare Convention?"
Your Honors, then during the further course of this motion I gave again the most important part of the English text. I think it would be expedient if this part would be read; only I couldn't do that myself. Perhaps, I might do one thing -- first of all, continue with my German text again, then ask Mr. Fulkerson to give the English version. In the English original, which only became known to the defendant after he had received the report of the session -- it is contained on page 5429 -- it says:
MR. FULKERSON: And it reads: "And they were full of explosives. They carried a letter to Tito and if that letter would have been opened it would have blasted the headquarters apart."
DR. FRITSCH: This incorrect translation, your Honor, in our opinion, had a decisive influence, on the answer so that I must suggest that either this questioning should be corrected -- if necessary, the defendant could be called back again into the witness stand -- or on the basis of this incorrect passage a rebuttal document which is directed against this answer should not be admitted.
THE PRESIDENT: The defendant has answered the question as he understood it from the German and that answer is now in the record and the record has been made as to the circumstances. There is no apparent dispute, then, between the Prosecution and the Defense as to this particular matter.
In order that the Tribunal may have the actual situation, the exhibit win be admitted and the Tribunal will evaluate the whole situation in the light of the record that is made.
DR. FRITSCH: Your Honor, but I have other objections to this document which concern the document itself. Might I just get the document? I object to the submission of this exhibit 673 because there is no connection at all and there is no subordination between this Division Brandenburg, which is set down as the sender of this document here, and the 2nd Panzer Army.
If the defendant was asked about behavior contrary to International Law, then of course he was only thinking of his own troops. The Brandenburg Division, however, did not belong to his troups, and, at least, for this the Prosecution has produced no evidence at all.
THE PRESIDENT: This Brandenburg Regiment has been subject of discussion and some evidentiary matter before and the Tribunal is fully advised as to the fact that there is some controversy as to whether or not it was part of some military unit. The document will be received for such probative value as the Tribunal deems it merits under the light of all the record that is made.
MR. FULKERSON: And then also I would like to put it in evidence -and I think it is only fair for us to call attention to which particular defendant, we are using this document to rebut, if one of them is to rebut the testimony of more than one defendant -- we are also putting in rebuttal the testimony of General von Leyser. General von Leyser was asked if he knew what the Brandenburg Regiment was.
"You knew it was under your command, wasn't it?
And the answer was:
"The Brandenburg Regiment was for a time subordinate to me for tactical purposes but I do not know anything about any special assignments of the Brandenburg Regiment. The Brandenburg Regiment was directly subordinate to the OKW and received, if and when they had special orders, the orders from there and I was never informed about these things nor did anyone inform me about them."