A No, I don't remember that.
Q Well, will you look at the next document; it is dated the 14th of October. It is a memorandum. Now you notice the heading, the original heading was "Revenge actions - prisoners of war." Somebody struck that out and put instead: "Combatting of enemy sabotage detachments," "Memorandum. (telephone discussion with the head of the Wehrmacht Legal Department). The head of the Wehrmacht Legal Department has in the meanwhile spoken with the chief of the Operational Staff of the Armed Forces by telephone." That is you, isn't it?
Q "The latter said that the Fuehrer's aim in this action was to prevent this manner of waging war (dropping small detachments who do great damage by demolitions etc. and then surrender). That was the object of the order, wasn't it? But if I might be allowed to ask you this question, do you draw any distinction between a British airman who bombs a power installation from the air and a British parachutist in uniform who is landed and blows it up with an explosive? Do you draw any distinction in International Law?
A No. The fact of destruction of an object by an explosive I consider completely permissible under International Law, but I do not consider it permissible for youths wearing civilian clothes under their uniform and having a pistol in a holster which starts firing as soon as one raises one's arms to surrender. not going to argue at all with you; but when you consider the case you will find many, many cases where these persons were executed and there is no suggestion that they had anything but a uniform at all. people were mixed with those who had on civilian clothes. and they will have to be, perhaps, summarized sometime. But would you agree that a parachutist in uniform, with no civilian clothes, acting like that, if he is killed, shot by the SD, would you agree that that would be murder?
Or would you rather not answer that? full uniform, I do not consider that an action contrary to International Law; and for this reason I apposed the Commando order in this form.
Q I hear your answer and I won't pursue that matter. Then the document goes on -- I don't want to read it all: "The head of the Wehrmacht Legal Department spoke to the effect that, under these circumstances, one should consider issuing an order suitable for publication. Article 23c of the Hague Regulations for Land Warfare, which forbids the killing or wounding of an enemy who lays down his arms or is unarmed if he surrenders unconditionally, had to be explained; when the Regulations for Land Warfare were concluded, this manner of waging war was not yet known and the regulation could therefore not apply to this," Well now, that was the first bundle. Now I want to put you -not seen any of these papers previously. I am now seeing them for the first time; but they prove, word for word, what I said day before yesterday under oath, that my staff had heard of the order and carried on preparatory work with the Legal Department and with the Foreign Department to draft such an order, but I did not accept any order and did not submit any to the Fuehrer.
MR. ROBERTS: My Lord, I offer it as GB 487.
Q. Now the first document in the bundle is a teletype dated 13th of October and it is signed by Canaris.
Is that right, Witness?
A. It is a teletype message from Canaris, yes.
Q. It is a teletype to the CPS. Staff. The subject is "T reatment of Prisoners of War". "Regarding the notice dated 7.10.42, issued by the OKW - The following attitude in abbreviated form is taken regarding the discussions and measures which have been commenced". No.1 doesn't matter; it is about Chaining. No.2 is the important one: "Treatment of Sabotage Units. Sabotage units in uniform are soldiers and have the right to be treated as prisoners of war. Sabotage units in civilian clothes or German uniform have no claim to treatment as prisoners of war (francs tirours)". You agree of course, with the correctness of that, do you not? The rest of that document doesn't matter. You agree, do you now, with that opinion in Paragraph 2, as a man who knows International Law?
A. Paragraph 2, I admit it, yes. That is entirely my opinion. It agrees completely with my point of view.
Q. And now the next document.
MR. ROBERTS: If the Tribunal would kidly go to the last documents of the three, which is headed "Telephone Call. Reference: Letter Ausl/Abw, letter of 13.10.42. My Lord, that is the one I have just read.
Q. "Opinion of the Wehrmacht Legal Department". Paragraph 2, that is referring to Canaris' opinion, "Fundamentally in agreement. It may, however, be possible to support the following train of thought with regard to special cases: Fighting potentialities, such as exist new and such as it is intended to prevent, came about long after the creation of the Hague Convention,for Land Warfare, in particular as a result of the war in the air. In this connection special attention is drawn to the mass use of parachutists for purposes of sabotage. Anyone who commits acts of sabotage as a soldier with the intention of surrendering after the act of sabotage without fighting, does not act like an honest fighter.
He misuses the right of Article 23c of the Hague Convention for Land Warfare, during the formulation of which no such methods of warfare were contemplated. The misuse lies in the speculation on surrender without fighting, after successful completion of the act of sabotage. This view regarding the inadmissibility of sabotage commandos can be backed up without reservation, provided we also apply It to ourselves". That document has your intial on the top, Witness? Is that right?
A. I have read this document. It contains the opinion of the Wehrmacht Legal Department on International Law, which on this point agrees with the fuehrer's opinion. It controls the possibility, under International Law, that a misuse of International Law could be committed by intending from the beginning to surrender after an action and thus prearrange for Immunity for oneself. I don't quite share this opinion, but it was the opinion of the highest Legal Department at this time.
Q. Many, many brave soldiers, when they are outnumbered, surrender, do they not? Many Germans surrendered at Bizerte and Tunis, thousands of them. How did that put them outside the pale of International Law or the protection of it?
A. But they were soldiers who were captured in the normal course of war, and the Fuehrer always recognized that at all times. This is a doubtful case but it has nothing to do with me. I only acknowledge that document.
MR. ROBERTS: My Lord, the intermiediate document is a letter signed by Lehmann, who was head of the Legal Department It merely confirms the telephone conversation which I have read and I don't think it Is necessary to read it again. It is before the Defendant.
Q. Well now, the last of these documents before the order was finally drawn up and issued. The Court has already seen it because it was put in. It is 1263 PS, RF 365. My Lord, it was in the Jodl Document Book, No.2, Page 104.
T here is an unfortunate omission from page 110 in Dr. Exner's book, which I am perfectly certain is quite inadvertant.
Will you look at the document dated 15 October 1942?
My Lord, I think that is the first in your bundle. It is page 110. It is first in the signle documents. It is page 110 of Dr. Exner's book, and I apologize to him because I have just seen the marginal writing. It was covered ever before, and I had not seen it. I apologize. BY MR. ROBERTS:
Q. It is a note, is it not, witness, signed Warliment, your deputy, 15 October. I think you will find it the second document in your file. I do not want to read it all again, because it has been read, but you see, "The Proposal of the Foreign Office Abw. will be submitted as Appendix 1". which it is suggested under letter "A" that sabotage troops who do not wear uniforms should be court-martialed, and you have said "No". You have given your reasons. And "B": Members of sabotage units who are in uniform but are guilty of dishonorable activity are to be put into military confinement. Do you say that that doesn't go either? ond paragraph down:
"The Chief of WR--" That is the legal department -- "has made a statement to the effect that the order was to be drawn up in such a way that it will take into account our own interests." Is it "our own interests", witness? "Take into account our own interests"?
A. Yes, that is our own interest.
Q. "...our own interests while considering the future conduct of the war. In this way he wanted to avoind repercussions which would counteract our further intentions. Sabotage is an essential part of conducting wa r at a time of total warfare; we ourselves have strongly developed this method of fighting".
And you write again, don't you, "But the English are much more in need of it".
A. Yes, it is an undeniable fact in the war at that time that the English used it much more than we did.
Q. Is that a reason for making an order of this kind to try and discourage the English from using sabotage detachments?
A. No, that is certainly no reason. It is only a contradiction of the statement that we developed this method of fighting. That occasioned me to write, "Yes, but the English to a much greater extent that we", but that has nothing to do with the reason for the order.
Q. Then I am not going to take more time on that particular document, except -- Have you got a document dated 14 October with 1, 2, 3, 4 at the end? I think it is on a separate page, the 1, 2, 3, 4.
A. Yes.
Q. It says:
"With this view in mind to prevent the enemy's fighting the war by using sabotage troops, following questions have to be clarified before formula ting an order:
"1) Do we ourselves have the intention to commit sabotage units in the zone of rear echelons of the enemy only, or also far back in the zone of the interior?
"2) Whe will commit more sabotage troops, the enemy or we?
"3) Can we establish the principle: Sabotage units do not conduct legal war; they are to be exterminated in the fighting without money?
"4) Do we attach importance to arrest first the single members of this group for interrogation bu counter intelligence and not kill them immediately? office before the orders were drawn up.
A. Those were questions -- not a point of view -- but questions which on the basis of the communique were raised in the Wehrmachts Fuehrungs Stab. The basis for all these documents proves the correctness of everything I said here two days ago.
The staff and the legal department and the foreign department worried about how they could draw up the execution order to the supplement of the communique of the Fuehrer. Nothing was done. That is what I testified day before yesterday. That is what you yourself have proved through submitting these documents.
Q. You have said, I think, part of the Fuehrer's order disgusted you?
A. Yes.
Q. And you have said in your interrogation that circulating this order was one of the things which went against your inner conscience -- one of the few things. "Your inner convictions"-- to use your actual words.
A. In the previous interrogation I said that it was one of the few--or the only--order that I received from the Fuehrer which I in my own mind completely rejected.
Q. You rejected it, but those young men went on being shot did they not?
A. I described that here exactly, but in practice the commanders in chief at the front supported by me, interpreted this order as mildly as possible and, in fact, only a very few cases occurred. I believe that most--almost all that I learned of at any rate--were strongly justified because the fighting methods of those people were not the methods of honest soldiers.
Q. You see, you talk about your inner conviction. I think Keitel spoke about his inner conscience. But should we have heard anything about these convictions and this conscience if Germany had not lost the war?
A. No, but then we might have heard of the atrocities at Dieppe in a similar trial.
Q. Now, I just want to deal with a few examples very quickly of the order being carried out, as you said it was only carried out a few times.
I just, first of all, went to refer to UK 57, which is on copy 344.
I can read this out. It is a report which is initialed by Keitel.
"On 16 September 1942--" Mark the date. It is more than a month before the commando order came into being. "--ten Englishmen and ten Norwegians laded on the Norwegian coast. Dressedein the uniform of the British mountain Rifle Regiment. Heavily armed and equipped with explosives of every description. After negotiating difficult mountain country, they blow up important installations in the power station at Dromfjord on 21 September. The German sentry was shot. Norwegian workmen were threatened that they would be chloroformed. For this purpose the Englishmen were equipped with Morpheus Syringes. Several of the participants have been arrested. The others escaped into Sweden." Court, I think, in January. They were shot on 3- October 1942. That would be, shot as a result of the order which you circulated, although it was not in existence when those men blow up that power station. You told me some time ago, that that power station was a proper military target. Those men were in uniform. Can you begin to justify that?
A. No, I can not justify that, and I do not want to justify that. I consider it completely illegal. Even this order could never be retroactive, but I did not learn of it at that time. Of UK 57 I read the first part, and the second part I read only here. The third part I read in April 1944.
Q. Well, now, there ar e other exhibits dealing with this matter which I am not going to put to you. They have been refferred to before, and I do not want to be cumulative. I would like-- Perhaps I will ask you one question first. taken under this Fuehrer order was to be reported in the Wehrmacht report?
A. That was ordered, yes.
Q. I just want to give you an example of the Wehrmacht report.
MR. ROBERTS: 526-PS, US 5-2. My Lord, it is 7A, pagee15. It Is dated 10 May 1943, G erman page 21 of the small book. BY MR. ROBERTS:
Q. It is a notice from the "Q" branch of your staff.
"On 30 March 1943 in Toftefjord an enemy cutter was sighted. Cutter was blown up by enemy. Crow: T we dead men, le prisoners.
"Cutter was sent from Scalloway by the Norwegian Navy.
"2 Colt machine guns, 2 mounted machine guns, a small transmitter. 1,000 kg of explosives.
"Purpose: In connection with the organization for sabotageing strong-points, battery positions, staff and troop billets and bridges.
"Fuehrer ordered executed by the S.D.
"Wehrmacht report of 6 April announces the following:
"'In Northern Norway an enemy sabotage unit was engaged and destroyed on approaching the coast".
That was false, was it not?
A. I confirm this communique of 6 April which was set up, as on 6 April I received the contribution to the communique from the commander in-Norway. This brief formulation came from the commander at the front, but what actually happened is set down in this notice of 10 May, but, unfortunately, I never saw it. On 10 may 1943, I was going by train to Bad Gastein to cure a severe illness, and that is haw it happened that I did not see the document until here in Nurnberg. I am sorry. It would have been one of the few cases when I might have been able to interfore.
Q. Witness, keep-it in from of you, because, you see, the action was not taken on 10 May; it was taken before, or on 6 April. Look at the last paragraph:
"Wehrmacht Report of 6 April announces the following:
"Enemy sabotage unit was engaged and destroyed on approaching the coast."
like dogs by the S.D.
A Yes, I have just said that. Before the 6th of April, I heard nothing about the whole matter. Only on the 10th of May did it come to our knowledge, for the Wehrmachts Fuehrungs Stub set up this notice. The whole investigation was made by Counter-Intelligence, Canaris' office, together with the security Police. That says the "SD"; that is wrong; it was the Security Police.
Unfortunately, I did not learn these details; the Counter-Intelligence learned then. I was concerned with the whole question only because I had to edit the communique. Otherwise, the whole commando order would not have come about.
Q I just want to show you one more instance. It is 2610-PS.
MR. ROBERTS: It is, my Lord, in small document book 7-A?, page 23, the German small book page 41. BY MR. ROBERTS: I rely on which isn't one of your own captured contemporaneous German documents. This is a report from the Judge Advocate General's Department, United States Army. It concerns 15 United States personnel who were shot under this order. If you look at the second page:
"On the night of 22 March 1944, two officers and thirteen enlisted non of the 2677th Special Reconnaissance Battalion of the Army of the United States disembarked from some United States Navy boats and landed on the Italian coast near Stazione di Framura. All fifteen men were members of the Army of the United States and were in the military service of the United States. When they landed on the Italian coast they were all properly dressed in the field uniform of the United States Army and they carried no civilian clothes. Their mission was to demolish a railroad tunnel on the main line between La Spezia and Genoa. That rail line was being used by the German Forces to supply their fighting forces on the Cassino and Anzio Beachhead fronts."
That was a good military target, that tunnel, wasn't it?
A I did not understand. The order which -
Q -- which you circulated on the 19th of October. You circulated a supplementary order to the Fuehrer Order, the last paragraph of which, I think, disgusted you. That is 503-PS.
A It is not correct to say,"Which you had to circulate".
Q I'll take that question up in a moment. I don't agree. I mustn't argue with you, but I must put some questions. himself also shot by sentence of this court martial.
A (Interposing): May I say something also about this document?
A This incident never came to my knowledge; at least, I have no recollection of it. To my knowledge it never appeared in the communique because General Dostler did not report the whole incident to his commanding officer Kesselring, who in this case might have been able to take another way.
Q. Why do you say that you had to circulate this order?
No man can compel another to circulate an order unless he does it.
A. I made long, statements to the effect that this order could not just be interpreted as an order to murder, but that there could be very serious and justified doubts as regards international law concerning the right or wrong of this order. In any casom you would have to be able to have the best understanding for such a situation, because even now, in my situation, I cannot say or do what I like, and this is exactly what happened to me during those last five and a half years.
Q. You could have refused. You could have said, and the other generals could have said, could you not, "We are all honorable soldiers. We will not publish and establish those orders".
A. Certainly under other circumstances it might have been possible, if, firstly, I had not had this conflict with the Fuehrer, and secondly, if the British Ministry of war had made my task a little easier. However, these events and the explanation on the 2d of September put the Fuehrer into a rage against which I could do nothing. The document itself is the best proof of how much I tried to refuse, because the threat of p*unishment and the thorough justification required were directed against myself.
THE PRESIDENT: Mr. Roberts, do you think that would be a convenient time to break off?
(A recess was taken). BY MR. ROBERTS:
Q. I want to ask you a few questions about the deportation of the Jews from Denmark. Will you look, please, at a new exhibit, D-547, which I offcer as GB-488. Denmark, dated the 20th of September 1943. That is before the teletype which has been put in, two days before:
"The Fuehrer has agreed in principle with Dr. Best's telegram that the Jewish question in Denmark be solved very soon by deportation.
"The execution of this measure should take place while the state of martial law still exists. It is not certain yet if sufficient police forces can be provided for the arrest of the Jews and their families, about 6,000 persons, of whom most live in Copenhagen. The army would be heavily burdened.
"I believe that the results of the deportation will be serious.
"The armament industry deliveriesswill be prejudiced Considerable disturbances will have to be reckoned with".
You made a note on the back of it, "I know nothing of this. If a political measure is to be carried out by the Commander, Denmark, the OKW must be notified by the Foreign Office".
Is that right?
A. Yes. I would not have read this document, but this note did originate from me, and that proves that I did not know up until this time that obviously some few days prior this question had been discussed in Denmark, and that the Commander of Denmark was objecting to it. Consequently I wrote, "I know nothing of this. This is a political measure, and if a political measure, is to be carried out in Denmark, then please have the Foreign Office notify us".
Q Then to go on, I omitted one or two important documents.
Will you go to document dated 1 October 1943, the fifth or sixth document of your Lordship's file, No. D/547, dated the 1 October 1943. It is to the O.K.W., from Denmark, and quote as follows : " The Reich plenipotentiary in Denmark has given the following report to the Reich minister for Foreign affairs : 1. The arrest of the Jews to be evacuated will take place in the night of 1st/2nd of October, transportation from Seeland will be carried out by ship 2. Should I receive no contrary instuctions, I do not intend allowing the Jewish action to be mentioned, either on the radio or in the press, " and then, " I intend leaving the possessions of the evacuated Jews undisturbed in order that the seizure of these possessions can not be imputet to be the reason or one of the reasons for the action." Then is told the disadvantageous effects.. There is a question with this Reichsfuehrer SS note, and answer, the Reichsfuehrer's note is in angreement, and then thereis a note in Jodl's handwriting. " The Fuehrer agrees." Is that in your writing ? publishing of the liberation of the Danish soldiers which were to be liberated. Then it is also important to note in this document that the commander in chief of Denmark said that he did not intend to have the property of the evacuated Jews disturbed. He said, " I intend leaving the possession of the evacuated Jews undisturbed. At this time he ha d the executive power. October 1943, OKW / Wehrmacht Operational staff, and from Denmark. I quote : " Jewish action carried out in the night of the 1st/2nd October by the German police without incidents," and then in the last document, dadet 3 October, 1943, to the OKW / Wehrmacht Ops. Staff, and quoting : " According the statement of the Reich plenipotentiary the Reichsfuehrer SS has sordered that the Reichsfuehrer SS alone as the person ordering the Jewish Action is to receive the exact figures of arrest. " n/The pleipotentiary has, there fore, given no figures to the Commander of the German troops in Denmark.
232 Jews have been handed in by the police troops via the gathe ring points set up by the Watch battalion, Copenhagen."
What was the " Match Battalion " ? It might have been an arrangement by the police; it might have been part of the Army, but I can not tell you that with certainty if it is a unit which advises or supervised, but as a matter of t/ being interesed I could agree it is a complete incident to us, and my interest in this matter gives the right to prove the basis of my opinion.
--
Q First of all have you said that the " watch Battalion " is quite different from , or part of the Wehrmacht ?
A That is not for certain. I do not wish to dispute it absolutely, from the wording " watch Battalion " whether the Army had it; it might have been in a supervisory capacity, or might have been a watch unit of the police, I could not say with any surety, but then General von Hannecken should be able to tell you about it.
Q This " decent soldier " portion you covered yesterday, were they called upon to get these Jews which managed to get through the SS net ? do not believe that there was one unit of the Wehrmacht which concerned itself with the deportation of Jews. I do not believe that. I do not believe that it took place.
I do not believe it.
too. It was a matter of complete indifference to you how many Jews were deported, you did not care? matter, and with political matters I was not concerned, but my position and attitude was towards the Jewish, question, and I believe that point I did prove.
Q Where did the Jews go to, Auschwitz? that those Jews we are concerned with were taken to Theresienstadt at some particular given time, and that they were treated well, that they received clothing, and food. That I can say with my experience and from the document presented by the British.
Q You believe that? felt it in this court. I believed it when I herad this confirmed through the prosecurion. Thus I heard, it confirmed. which you show in your speech. Will you look at your notes of your speech, page 298 of document Book 7. It is the big one. That part which begins on page 38 in the witness' copy, where I think is a piece of paper, that is 38. I wonder if you can find it for him. I quote;
"This dilemma of manpower shortage has led to the idea of making more thorough use of the manpower reserves in the territories occupied by us. Here right thinking and wrong thinking are mixed up together. I believe that "in so far as concerns labor, everything has been done that could be done. But where this has not yet been achieved, it appeared to be more favorable politically not to have recouse to measures of compulsion, Exchanging for these order and economic aid. In my opinion, however, the time has now come to take steps with remorseless vigor and resolution in Denmark, Holland France and Belgien also to compel thousands of ideless to carry out the fortification work which is more important than any other work.
The necessary orders for this have already been given."
Do you remember that?
Q Yes? territories to become victims of German deportation?
A In most countries labor compulsion laws did exist. However I do not know but I would like to state under my oath that in Denmark and Holland, and in Belgium, as well as local firms, who recruited their own workers they participated in the fortification work; that the population of thesesareas were glad in having to do this work for the strengthening of the coast fortifications, with more certain by that invasion would not take place in their own country. For that reason they were strongly interested to prevent an invasion, to try everything, and that is the way it erne about. Though it sounds incredible, the local inhabitants participated in the work of fortifying these coasts, that is a fact, and the population was glad to do this.
Q I don't believe you, but had the necessary orders been given. In the last sentence it tells these people they are compelled to work even though they don't want to work on the fortifications. It refers to, not people who wanted to, but the people were compelled to work. did not concern myself with this problem. but I dad know that labor conscription laws had been instituted in the occupied countries. to say. Will you look at a new document, No. 1383 PS, which we offer as GB-489. This is a report of a discussion of the Current Military Situation, dated 12 December 1942, pages 63 and 66. I quote; with Jodl speaking:
"Jodl: The Military Commander of France reports: The number of French workers deported into the Reich since 1 June has now passed 220,000. There are in round figures 110,000 specialists in Berlin."
How many of those 220,000 were volunteers, did you find out?
A That I cannot tell. I only read -- in a report which was appended to the situation report coning from France -- that there had been an exchange between workers. That was already testified to by Sauckel. Luft 3. thought Hitler was no longer "humane" did you say? deviating from all humane concepts.
Q Had you thought he was humane up to March of 1944?
A Before this act I did not know very much about him personally. So far as things that could not be justified under international law were concerns or which were doubtful according to international law -- everything which he has decreed before that time, so far as I know, could still be justified in some way; they were reprisals. However, this act was not a matter of reprisals.
Q Would you agree with me -- the word isn't too strong -- that this was sheer murder of those 50 airmen?
A I completely agree with you; I consider that as murder. unabated loyalty? did everything within my power to avoid further injustice. Norway. The document is 754-PS. It has not yet been exhibited, and I offer it as 32-490. This document is signed by you, is it not?
Q I will just read parts of it to the Tribunal. It is dated the 28th of October, 1944. It is from your staff, and the direction is to the Army Supreme Command; Commander in Chief, Norway; the Reich Commissioner, Norway; and the Navy.
"Because of the unwillingness of the North Norwegian population to voluntarily evacuate, the Fuehrer has agreed to the proposals of the Commission.