MR. FENSTERMACHER: I am very grateful for, Dr. Rauschenbach's patience, it will not be taxed any further. The reason for going into the background, of course, is for the Tribunal to understand precisely the composition of the unit to which the witness was regimented. One of the units which was subordinate to General Felmy on the Peloponnes, was the 999th Infantry Division, which was composed of criminal elements and political prisoners. It was important to have the witness give the background.
PRESIDING JUDGE CARTER: Objection will be overruled. The Tribunal will take its recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 21 January 1948 at 0930 hours.)
Court No. V, Case No. VII.
Official Transcript of the American Military Tribunal V in the matter of the United States against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 21 January 1948, 0930, the Honorable Judge Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain if all the defendants are present in the courtroom.
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: You may proceed with the examination, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, your Honor.
WILLY FINGER, Witness, DIRECT EXAMINATION - Continued BY MR. FENSTERMACHER:
Q Mr. Finger, yesterday just before the Court adjourned, we had come to the point I believe where you had been conscripted for a special military unit and I believe the date was sometime in January, 1943; will you tell us again what the composition of that military unit was?
A Certainly, it was probably the most peculiar divisions which was ever assigned in the 2nd World War. Since 1933, hundreds of thousands of German men had gone through German jails and concentration camps. These people.......
DR. MUELLER TORGOW: I object. I request that the witness be asked to answer the question. He was not asked that.
MR. FENSTERMACHER: Would you come to the answer, Mr. Finger, without giving unnecessary background material, just give the composition of the military unit to which you were assigned in January, 1943?
THE WITNESS: This unit was approximately 50% composed of former Court No. V, Case No. VII.
political prisoners of the Third Reich and the other part, approximately 50%, were criminal elements, with a very bad criminal record. The purpose was, as we understood it, to avoid to have a unit of antifascist character.
DR. MUELLER TORGOW: I object again, if it please the Tribunal. The witness is not entitled to give a judgment.
MR. FENSTERMACHER: If your Honor please, the witness knows what the composition of the military unit to which he was assigned was.
THE PRESIDENT: The objection will be over-ruled.
BY MR. FENSTERMACHER:
Q Will you continue, Mr. Finger?
A Certainly, the composition or rather the events of the troop training center Heuberg made it quite clear that it was intended to commit these units for a certain purpose. The measures that were taken there were not such measures as were generally taken and to which an ordinary unit of the regular army was subjected. They were very stringent penalty measures. For the slightest political utterances, executions and such measures were carried out. I, myself, during my three months presence at the Heuberg witnessed and had to witness how at least 20 to 30 of my comrades were court martialed and shot because of such utterances.
DR. MUELLER TORGOW: I object again. The witness has not been asked to give such an account of the events on the Heuberg, but rather as to his assignment on the Peleponnes.
MR. FENSTERMACHER: I will continue with another question, if your Honor please.
THE PRESIDENT: May I suggest that we endeavor to get it down to some definite details as it pertains to some matters which have heretofore been at issue and as it may pertain to some of the defendants. I don't want to limit you, but I think we should necessarily restrict it to such matters which are in rebuttal.
Court No. V, Case No. VII.
BY MR. FENSTERMACHER:
Q Yes, your Honor. Mr. Finger, how long were you in training in Germany with this military unit before you were sent outside of Germany?
A From the beginning of 1943, that is from January until March/April of 1943.
Q Then you left Germany?
A Yes, I did. These units were transferred by train, allegedly to Africa, that is battalion by battalion. For this purpose, we had received tropic uniforms and complete equipment.
Q When did you finally arrive in the Balkans?
A We did not go to Africa, but to the Balkans, because in Africa the retreat had come to an end. We arrived in the Balkans, or rather went directly to Athens. That was at the beginning of June, I cannot state the exact week.
Q Where did you go from Athens?
A In Athens we were gathered together and I myself was sent to the Peloponnes, to the southwestern part of the Peloponnes, first to the locality of Ano Manolas.
Q Was that near Patras?
A Yes, it is situated about 40 kilometers south of Patras.
Q How long did you stay on the Peloponnes with this military unit?
A I remained on the Peloponnes until 1944, until August.
Q What was the number of this military unit, Mr. Finger?
A The military unit was called at last on the Peloponnes Fortress Battalion 999.
Q While you were on the Peloponnes from about July, 1943 until August, 1944, did you see any orders or placards with respect to reprisal measures?
A Yes, I did. I recall having seen such posters.
Q How many different posters with respect to reprisal measures Court No. V, Case No. VII.
can you remember having seen?
A I believe there were about four posters, which I did see and the contents of which I could reproduce with certainty.
Q Now will you tell us with respect to these posters at what time and the place you saw them, the date approximately on which you saw them, their contents and who signed them. Take the first one.
A Yes, at the beginning of January, 1944 I saw the first poster having the following contents, this poster bore the head-line: "Notice to the Greek Civilian Population: A few days ago... " I should like to preface my remarks by saying, I can only reproduce the contents as to their meaning, but the exact wording of the contents I do not recall. "Some days ago during an inspection trip on the Peloponnes, a high German officer was assassinated."
Q Let me interrupt you just a moment, Mr. Finger. Will you give the approximate date again when you saw that particular poster?
A It was at the beginning of January, 1944.
Q Please continue.
Court No. V, Case No. VII
A It went on to say that the perpetrator or the perpetrators would have to report within a time limit of 24 hours to a military German agency or at the local H.Q., else the most stringent reprisal measures would be taken against the civilian population.
Q How was the poster signed?
AAs far as I know, and I don't think I am mistaken, this poster was signed "Commander in chief, General of the Air Force Felmy."
Q Where were these posters when you saw them?
A These posters I saw once in Ano-Manolas and then again in Kato-Achaia and once again in Latta.
Q Now will you take the next poster that you saw and describe the same matters?
AAnother poster I saw shortly thereafter. It must have been eight days at the most afterwards. The poster bore the same heading: "Notice" and its contents were to the effect that as the perpetrators had not reported, a reprisal measure had been carried out. In Patras, 100 Greek hostages were hanged.
Q Who signed that poster?
A This poster also bore the same signature, Commander in Chief, General of the Air Force Felmy.
Q Where did you see those posters?
A I have seen this poster in Ano-Manolas, and also in KatoAchaia. I can't recall having seen it in Latta as I didn't get to that place at that time.
Q Now will you take the next poster that you saw?
A Certainly. It must have been a few weeks later when I saw another poster which was also captioned "Notice to the Greek Civilian Population." It said that in future for every German soldier killed, 100 hostages would be shot. For every wounded soldier, 50. That, in addition to that, if any sabotage acts occurred or any raids upon important military objectives, the most stringent reprisals would be carried out. Here, in this case also, the poster bore the signature Court No. V, Case No. VII.
of General Felmy.
Q What language were these three posters printed in, that you mentioned?
A These posters were in German and in the Greek language.
Q This last poster you mention which talked about a ratio of 100 to one and 50 to one--where did you see that poster?
A I saw this poster as at that time I had been assigned to Patras, I saw it in Patras as well as in Kato-Achaia.
Q What was the date when you saw the poster, if you remember?
A That may have been about the end of January or at the beginning of February.
Q Well, with respect to these hostages, these 100 hostages that you mentioned having seen on a poster to have been shot in reprisal for the German general, did you yourself have anything to do with the rounding up of those hostages?
A Yes, I did. That is not that I had been called upon to do that but rather I had the possibility to witness those arrests of hostages which were carried out in Achaia to see it for myself.
Q How were the arrests carried out?
AAt that time in the battalion, the company leaders were ordered to make arrests within their command and arrests of citizens who enjoyed respect and esteem such as merchants, clergymen, mayors and the like. I myself was present when some of these arrests were carried out. NCO's--we called them our Stammannschaften--were ordered to arrest this or that person from his house and to deliver him to the HQ. Later, these people were loaded onto a truck and as at that time in my battalion there was a lack of trucks,--I had also been trained as a driver and had, myself, to drive such a truck,--the hostages were transferred to Patras. In Patras there was, as was generally known, a very large collecting camp for hostages. They were sent there and delivered there with, the accompanying officer saw to it that everything was done. We then returned of course without the hostages.
Court No. V, Case No. VII.
Q How many hostages were in the truck that you drove, Mr. Finger?
A There were approximately 40 hostages.
Q Were there other trucks that accompanied your truck to Patras with hostages?
A Yes, apparently there had been some agreement among the battalions that these shipments were to be carried out at the same time, because on the road to Patras, these trucks met--there were four of them--and every truck carried perhaps the same number of hostages. I am not quite sure of that but I think it is approximately correct.
Q Were the hostages arrested by German soldiers?
A Yes, they were. As I have already emphasized, an NCO, together with two or three enlisted men, had to carry out these arrests and perhaps every NCO had the order to arrest one, two or three persons. I am not quite sure of that.
Q And were there only German soldiers in the trucks that took the hostages to Patras?
AAs guards, if I understand you rightly?
Q Yes.
A Yes. Just a minute, I beg your pardon. There were also a few Greeks among them, Greeks who were working with the German Armed Forces as interpreters or as collaborators with the German Secret State Police, the Gestapo.
DR. MUELLER-TORGOW: If it please the Tribunal, I object to this examination as a matter of principle. We are now at the rebuttal stage. The questions put to the witness have nothing to do with rebuttal, that with the rebuttal of evidence submitted on behalf of General Felmy. During the defense's case-in-chief for General Felmy, these matters were not mentioned. I don't know what Mr. Fenstermacher is refuting. It is a pure attack which he might have submitted when presenting the Prosecution's case-in-chief but not at this Court No. V, Case No. VII.
stage.
MR. FENSTERMACHER: You Honors will recall that during the direct and cross-examination of General Felmy--I have the exact transcript pages, if your Honors require them--General Felmy testified that he gave no orders for the execution of hostages at particular ratios. He also testified that the execution of hostages in reprisal for the death of the German General on the Peloponnes had been rounded up and shot by a Colonel Papadongonas, a Greek Colonel. The testimony of this witness rebuts both phases of that testimony.
DR. MUELLER-TORGOW: If it please the Tribunal, first I should like to ask Mr. Fenstermacher to show me the record. In the second place, Mr. Fenstermacher refers to a German General, the witness only referred to a high-ranking officer but not to a general. I don't know whether Mr. Fenstermacher is alluding to the case of Krech but I don't know, but that case Krech occurred much later.
MR. FENSTERMACHER: I understood the witness to say a German General, but I can certainly put the question again if I misunderstood him.
THE PRESIDENT: The objection will be overruled.
BY MR. FENSTERMACHER:
Q Were there German officers on the trucks that took the hostages to Patras, Mr. Finger?
A Yes, as far as I know, a lieutenant. At any rate, there were some, perhaps one on every truck.
Q What was your rank in the 999th Division?
A There were no ranks or promotions for us. We were merely given a training as Military--that is soldiers and training as telegraphists, radio operators, etc. I myself was trained as a telegraphist.
MR. FENSTERMACHER: No further questions, your Honor.
Court No V, Case No. VII.
DR. RAUSCHENBACH: Rauschenbach, Counsel for the defendant General Foertsch. If it please the Tribunal, I move that the whole examination of this witness be stricken off the record. The Prosecutor yesterday, upon presenting the witness, said that he was to be used as a rebuttal witness against the defense advanced by General Foertsch or rather his testimony. I had already objected to it in the beginning. I then waited to hear the end of the examination and have not been able to gather anything from the examination which could possibly refute any special contention by General Foertsch. The examination therefore, is immaterial and does not belong into the record.
MR. FENSTERMACHER: I think Mr. Rauschenbach is probably referring to my reply to Dr. Laternser's inquiry yesterday as to whom this witness was to be heard in rebuttal against. The witness is to rebut the testimony of General Felmy both on direct and on crossexamination. He is not to rebut any testimony of General Foertsch. But I understood Dr. Laternser's inquiry to mean that any of the material testified to by the witness would be held against any of the other defendants. To that extent, I replied--and I maintain still-that the events which the witness has testified to are also the responsibility of the defendant Foertsch.
THE PRESIDENT: The motion will be sustained as to the defendant Foertsch. No testimony of this character is admitted in rebuttal as to this defendant.
CROSS-EXAMINATION BY DR. MUELLER-TORGOW:
Q Witness, you are a resident of Hanover, is that correct?
A Yes.
Q What is your profession?
A I am working as a free-lance painter.
Q Painting? What are you painting?
A Water colors, oil paintings, etc.
Q Since when have you been again living at Hanover?
Court No. V, Case No. VII.6
A Since 1945.
Q When in 1945?
A In September 1945.
Q Where did you come from in September, 1945?
A I came from - I had been an American prisoner-of-war.
Q Where had you been as a POW?
A In France.
Q And how did you get to France?
A Shortly before the end of the war, I voluntarily went over to the Americans as a POW and was sent with a transport to France.
Q Where was that when you went over?
A That was in a small locality near Hameln on the Weser.
Q Witness, you may now take off the earphones. Would you now repeat, please?
A I became a POW on the 6th of April 1945 near Vespede--that is near Hameln on the River Weser.
Q What unit were you attached to at last?
A I was with the Pioneer Battalion 999.
Q That was a different unit from the other one that you referred to before?
A Not the same unit but the formation had the same number--999.
Q You stated, witness, that you voluntarily became a POW of the Americans?
A Yes.
Q Would you now please tell me how that happened?
A Then I must give you a somewhat lengthy account.
Q As briefly as possible, please.
AAs I had been threatened with penal proceedings in my last unit on account of resistance, I escaped from that unit-
Q What unit was that?
A That was, as I emphasized, the Pioneer Battalion 999.
And in order to save myself, I went into the Westerwald. I Court No. V, Case No. VII.
must emphasize in this connection that this unit at that time was committed in the sector Remagen, Coblenz/Weisser Turm and Mainz for construction work or rather for digging trenches in the front area. I then was living in the Westerwald for a few weeks and tried to get to my home town of Hanover, but I soon realized that this was not possible. But as the Allied Forces were advancing and I came to the town of Bad Ems, the hospital there was being dissolved I was forced to go to that hospital as I once again suffered from an attack of malaria and because of the situation there the doctor gave me a certificate of transfer to the Hanover Hospital; by virtue of this certificate I was able to travel by train and get to Hanover because I had no other papers, merely papers which showed my membership to the 999th Division, and that would have meant the end for me. When I arrived in Hanover I went to my parents, stayed there for a few days for the Allies were advancing. They were coming closer. The SS was roaming through all the villages and localities, killing and murdering soldiers that were not with their units and I thought it more expedient to go there as soon as possible in order not to fall a victim to the inhumane methods of the SS.
Thus, I went from the small locality where my parents were living, that is Eldersen near Hannover to Hameln.
Q To Hameln?
A To Hameln.
Q What was that?
A On the 6th of April, 1945.
Q Witness, you stated that you were afraid of being punished and that was the reason for your flight. What did you think-what charges would be leveled against you if you had remained with your unit?
A With this last unit I also did what I have always been doing--being an anti-Fascist and a fighter against Fascism. In this unit also, I worked with people in order to hasten the end of the war, Court No. V, Case No. VII.
to contribute to that end, and that had come to the knowledge of my superiors. I was hospitalized on account of malaria and there one day I was told by a friend of mine, a civilian, that I ought not to return to my unit because a summary court martial proceedings would be taken against me.
Q I would like to know, witness, what you did. I mean in a detailed way. What were the charges against you? What could have been the charges against you?
AAs I said-
Q And what form did your activity take?
A I talked to comrades who belonged to that unit and who were politically reliable and I gathered them together and we held conferences and discussions as to the extent to which we could contribute to the hastening of the war and how to be able to cope with the situation. I think that according to the regulations prevailing at the time, there would already have been much more than sufficient a reason for summary court martial proceedings at that time. An order had been issued that summary court martial might consist of an Ortsgruppenleiter, district leader. I think that is sufficient.
Q Witness, when did you leave the Peloponessus?
A I did not leave but I was arrested.
Q When was that?
A I believe it was on the 20th of August 1944, when under a certain pretext arrests were carried out on the Peloponessus among members of the 999th Unit.
Q What do you mean by certain pretext?
A The pretext was that in any company, people who had been ordered so had to report to the company commander. They were not allowed to bring along any equipment, only a spade. It was said that they had been ordered to extinguish a wood fire, a forest fire. These people were loaded onto trucks allegedly for the purpose of putting out the forest fire. I was also among them. When we came to Latta Court No. V, Case No. VII.
where the forest fire was allegedly raging, we were at once surrounded by officers, NCO's and enlisted men and privates who at the point of machine guns and hand grenades surrounded us. We were led to a cave and stripped of our clothing and received very old and worn out clothing. For three days we were there without any food, always guarded. We didn't know what would happen to us. We were in water up to our calves, our knees. There were cases of malaria, very acute cases, due to the most inhumane and brutal treatment. One day we were loaded onto a goods train or rather cattle train. These cattle trains were guarded by barbed wire.
Q. Witness, will you please stick to my question and be as concise as possible. I have asked you why you were detached and at what time you left the unit on the Peloponnes?
A. May I give an account again as to why I was taken away?
Q. I should like to know very briefly why you had to leave the unit and where you went?
A. I was detached from that unit because a few months previously I had been tried by a Court Martial, a Summary Court Martial, it was the Oberfeldgericht, the presiding judge of which was Oberfeldrichter Buschenhagen.
Q. Will you tell me when that was, witness?
A. In July and August of 1943.
Q. 1943?
A. Yes, 1943. I was standing trial because we political people had gathered together already on the Heuberg and because even in Greece we continued with out solidarity. We formed a committee which issued information and directives to those people who were in our confidence. This committee, which met frequently for conferences end of which I was also a member, was one day discovered because of a denounciation of one of our people who enjoyed the special confidence of his superiors and the committee was arrested. The judgment, the verdict of the court on the eight prisoners then on trial, was one death sentence, three jail terms of fifteen years. I also received a jail term of fifteen years, but the penalty was suspended because it was only to become effective after the end of the war, after the glorious end of the war which they were anticipating.
Q. Of those fifteen years, then you did not have to spend one day?
A. No, I did not.
Q. But, you left the Peloponnes and came to Germany?
A. Yes, that was the reason why I was arrested.
Q. And there you came to a Building Pioneer Battalion?
A. This transport consisted of about 300 prisoners. Before the departure of the transport, I should like to interpolate, the battalion commander came up to us and stated....
Q. No details, witness, I only want to know briefly why you were punished, why you came to Germany and where you came to Germany?
A. In Germany, we came first to the Troop Training Center in Baumholder....
Q. Briefly, witness.
A. Approximately half of these people were transferred to the Concentration Camp of Buchenwald, I was among them and we remained there for four days and we were then assigned again to the Building Pioneer Battalion which was set up again.
Q. One more question regarding this. Whet members did the Court Martial consist of?
A. The Court Martial or the peleponnes, consisted, as I said, of Buschenhagen, the Oberfelrichter, and if I recall correctly there were three more officers on the bench, who held the rank of Major at the very least, but I cannot say that with certainty. Then there were an associate judge of the Battalion who, however, was only a private first class.
Q. I would like to refer very briefly to your statement of yesterday; is it correct when I assert that you were moved from the Polytechniss before you completed your education, because you were considered politically unreliable?
A. Yes.
Q. When was that?
A. That was in May of 1933.
Q. In 1933 and what were the reasons for your removal from it?
A. At that time, after Hitler's seizure of power, purges were carried out at Universities, schools and so on and that was why a purge was also carried out in the Polytechnics, especially since our group was very active. We held discussions and meetings among the students, we organized such meetings, upon a basis which we thought was the ideal. We discussed matters and that was the reason probably why I was expelled from the school as well as several others.
Q. At any rate, after the advent of Hitler to power you did keep on studying, didn't you?
A. Yes, that was until May of 1933.
Q. Hitler came to power on the 30th of January?
A. Yes, as a result of the change in Government these measures were then taken in May.
Q. Witness, subsequently, you were sentenced to three years in jail, when was that?
A. In December of 1935.
Q. December, 1935?
A. Yes.
Q. And what were the reasons for the sentence?
A. The sentence was imposed on a charge of preparation for high treason by the Oberlandesgericht Hamm.
Q. And why high treason or preparation thereof?
A. After being forced to leave the Polytechnis in Freiburg, I as a resistance fight or as it is called today, as a convinced fighter for freedom and justice, I joined those people who carried on the struggle illegally and at that time I also had to live illegally. I worked in Hamburg, Hanover and Duesseldorf until 1934, in February 1935 I was arrested by the Gestapo, the Secret State Police.
Q. Witness, how did you get to Nurnberg, did you report here on your own initiative or were you requested by the Prosecution to come here?
A. The trial against these Generals I followed in the newspapers as far as our German papers very regrettably do refer to these proceedings. They don't do so enough, unfortunately, and I read the name of Felmy, etc. I wrote to the Tribunal in Nurnberg, or rather the Palace of Justice, and after a long time I received a reply, asking what I could state, what I had to testify in connection with the indictment. In this way I tried on my own to do what I thought was proper and right and I made my way here.
Q. No further questions, thank you.
THE PRESIDENT: Are there any further questions? Any members of the Tribunal?
Just for the record, Mr. Finger, did I understand you to say you wrote to the Tribunal?
THE WITNESS: Yes, I did.
THE PRESIDENT: Did you receive a letter from any member of the Tribunal?
THE WITNESS: Yes, I did, but I don't know whether it was a member of the Bench of the Tribunal.
MR. FENSTERMACHER: Your Honor, I am afraid the witness does not understand the distinction between the Office of the Chief of Counsel for War Crimes and the Tribunal.
THE PRESIDENT: I think possibly for the record some clarification should be made.
MR. FENSTERMACHER: I am willing to state for the record, if your Honor please, the letter was addressed..........withdrawn. Mr. Finger, do you recall who answered your letter?
WITNESS: Yes.
MR. FENSTERMACHER: Who was it?
WITNESS: Mr. Kaufmann, Mr. Fred Kaufmann.
MR. FENSTERMACHER: If your Honor please, this is an interrogator for the Office of the Chief of Counsel for War Crimes.
DR. LATERNSER: Witness, do you recall the address which you used in writing this letter; to whom did you address your letter?
WITNESS: I wrote to the Nurnberg Tribunal, to the Allied Military Tribunal, Nurnberg, Palace of Justice, nothing else.
DR. LATERNSER: And you do recall with certainty that you wrote to the Tribunal. There you have not made an error?
WITNESS: No.
DR. LATERNSER: Well, weren't you surprised then that the letter did reach the Prosecution? Answer yes or no, witness?
WITNESS: It is not my task to say that.
DR. LATERNSER: Are you surprised that this letter arrived at the hands of the Prosecution?
WITNESS: No, not at all.
DR. LATERNSER: No further questions.
THE PRESIDENT: If there is no further questioning, the witness may be excused.
(The witness is excused)
THE PRESIDENT: You may call your next witness.
MR. RAPP: May the Marshal of the Court be directed to call the witness, MAHLMANN?
DR. LATERNSER: If it please the Tribunal. I have an inquiry to make to the Prosecution. I want to ask whether this will be the last rebuttal witness.
MR. RAPP: Your Honor, as far as rebuttal witnesses are concerned, Finger was the last rebuttal witness. The other witnesses have been brought here for cross examination.
DR. LATERNSER: Your Honor, I want to ask further whether the rebuttal has already been concluded - that is, if no more documents will be submitted?
MR. RAPP: We have a number of documents which we would still like to present during the morning or early afternoon.
DR. LATERNSER: May I say something else regarding this point? The rebuttal, then, has not been concluded, and if we adhere very strictly to the ruling of the Court, then yesterday, for instance, I ought to have delivered my closing brief and filed it with the translation branch, so as to give them plenty of time - a fortnight. That was not possible because I cannot file my closing brief until the rebuttal has been finished.
THE PRESIDENT: You will not be required to file your closing brief until the rebuttal has been finished and the case concluded and I shall contact the translation department and the other necessary departments to see that they are given early attention when they are presented. I would like to ask, and request, and urge, that at the conclusion of all the evidence, these closing arguments be submitted to the translation department within the day--within a day, at least, following the close of the evidence. I think I can arrange so that the matters will then receive prompt attention.
DR. LATERNSER: Your Honor, we are very grateful to the Tribunal if the translation branch will be contacted so that the translations will be done in time.