A Yes. Yesterday I understood the question differently. I took it to mean whether we were informed especially in regard to the execution in detail of the liquidation by the SS and Police Leader, whether we had a detailed picture of this.
Q Thank you, witness. The next complex of questions refers to the burning down of houses or communities. I asked you yesterday, did you at any time order the burning down of houses as a retaliation measure, and you told us that as soon as you arrived in Belgrade a request for retaliation measures had been submitted to you by the Higher SS and police leader, 800 hostages were to be executed and a village was to be burned down, and you were successful, according to your statement in preventing this. You thought it possible, however, that within the area of the Bulgarian units occasionally houses could have been burned down; but you did not know whether in connection with other units houses were burned down or whether houses were burned down after the threatened burning down, but prevented by you. Witness, is that correct, what I am repeating here?
A Yes, only I don't quite understand the last sentence.
Q You said yesterday, didn't you, that you were in a position to prevent a mass execution and the burning down of villages, is that correct, Witness? You then said -- would you like to speak a bit louder, witness. What did you say? I asked you in my question, which the interpreter probably missed, whether it is correct you prevented these mass executions which comprised the burning down of a village?
A Yes.
Q And you then said whether later on, that is after this date, burning down of houses took place here and there I cannot say; is that correct, witness?
A Yes.
Q But especially within the sector of the Bulgarian units I believe it is possible, is that correct, witness?
A Yes.
MR. RAPP: If Your Honors will turn please to Document Book 17, NOKW 170, Exhibit 414, Your Honors will find on page 63, and German Defense Counsel on page 48, -
JUDGE BURKE: Are you referring to NOKW Document 17 or 174?
MR. RAPP: 170, Your Honor, one seven zero.
I shall read the part I have reference to. Do the interpreters have the German pagination?
"Propaganda Section Southeast." I beg your pardon, that is on the other page, Your Honor.
This one is the 3rd Kommandantur 610, 24481.
"The murder of two customs border police near Selac has been compensated for by the operation of the 6th Auxiliary Police Battalion on the 19th and 20th, October 1943, in which 7 Serbian villages were burned down and a considerable number of persons shot to death. The result of the operation is to be published in a direct reprisal measure for the murder of two German customs border police.
Military Commander Southeast."
signed "Felber."
Q Witness, were you at that time Military Commander Southeast?
A Yes.
Q What do you have to say in connection with this document?
A I read from this document that this is a case of spontaneous action by the auxiliary battalion of the police, that is, units of Meissner's. It is not quite clear, perhaps in battle persons were shot during this action and even sever Serbian villages were burned down or were supposed to be burned down. I believe from this term "abgegolten", that I looked upon this case as concluded, and did not continence any other reprisal demands within the framework of the collective order, since the last paragraph especially points to a retaliation measure which had already taken place. May I add in explanation that at that time -- that is, the 27th of October, 1943 -- a considerable battle took place between the Police Leader and Himmler on the one hand and my person on the other hand.
Q Thank you, witness.
MR. RAPP: If your Honors please, I would like to refer you now again to Exhibit 410 in Document Book XVII which we had used previously for a different purpose. It is to be found on Page 54 of Book XVII, Exhibit 410, and Page 440 in the German Document Book XVII.
At this time, your Honors, I am reading again this document into the record for the purpose of establishing the burning down of the village mentioned in this particular connection. Previously, we concerned ourselves in connection with this order with the shooting of 450 Communist suspects. I shall only read that part which has direct bearing on the particular question:
"To 909th Administrative Sub-Area Headquarters, For information of the 1st Royal Bulgarian Occupational Corps, 2nd Panzer Army," also "For Information of 2nd Panzer Army:"
"A total of 450 Communist suspects are to be shot and one bandit village is to be burned down after safeguarding of the economic goods for the surprise attack on the German Harvesting Detachment, etc." Signed: "Military Commander Felber."
BY MR. RAPP:
Q Witness, I believe we submitted this document to you previously in connection with the shooting of 450 Communists. Now, I shall refer to the burning down of this village. Do you understand me, witness?
A Yes.
Q Have you anything to say to this document as far as it concerns itself with the burning down of a village?
A Yes, I cannot recall this burning down of the village. It is apparently a measure which took place on the 2nd of September. That is three days after I took over the command.
Q Witness, the next complex question concerns itself with the so-called "executive authority", I asked you yesterday "In which territories did you have executive authority," and you answered: "Regarding the concept of executive authority, I had no clear view; from Army Group H at the end of September I got the executive authority for Serbia."
You stated that the concept of executive authority was not very suitable for the Southeastern area. My sphere of work coincided with that of Army Group F, speaking purely geographically. There was no organization as is usual in other cases into the battle area and the rear area -- everything was an operational area.
I then asked you whether I understood you correctly in this respect, that neither you nor the Supreme Commander of the Army Group F, the defendant Weichs, had executive authority until September 1944. You said this did apply insofar as you knew, that this was not expressly ordered by the OKW.
Thereupon I asked you, summarizing, whether the situation did at any time change concerning the executive authority before September 1944 and your answer was "No."
Was what I have said just now correct, witness, as far as it refers to our examination yesterday?
A Yes.
MR. RAPP: If Your Honors permit, I would like now to refer to a series of documents and the first one, your Honors, Document Book 17, is NOKW-1471, Exhibit 423, page 124. I would like to pause for one second, your Honors, and try to help defense counsel find this particular document. This is the document I gave Dr. Laternser one day and asked him to be so kind and distribute it to you gentlemen so I don't have any pagination of that particular document in German, but it should follow the very last page of the German document book No. XVII; that is, it should commence with page 89 in the German.
Is that correct, Dr. Laternser?
Thank you.
The next documents, your Honors, I have reference to is Exhibit 423 of Document Book XVII. You will find this, your Honors, on page 123 -in defense counsel's on page 89; and then, finally Exhibit 297, NOKW-1523in Document Book XII. I do not believe your Honors probably have Book XII present but we will use the exhibit from the assistant secretary general. That was Exhibit 297, NOKW-1523, Page 75 in the English and Page 66 in the German.
The first document I have reference to, your Honors, is Document 1471, Exhibit 423, page 124. I do not know the German pagination. I am quoting from page 84 of the original. I believe you will find that in the German Document Book it says, "Page 84" of the original. Now I shall only quote one paragraph from this particular Fuehrer order. It is from the OKW, that is, the High Command of the Armed Forces, dated 21 December 1943, Top Secret, Standard Order of Procedure for Military Commander Greece, and it says, under paragraph 2, your Honors:
"Military Commander Greece exercises, by order of Military Commander Southeast, executive power in Greece, including the part occupied by Bulgarian troops so far as he has been authorized to do so."
Q.- Witness, were you at that date, when this executive order was issued Military Commander Southeast?
A.- Yes, I was.
Q.- Can you give us some explanation to this letter?
A.- I remember that these official directives which on our suggestion at the beginning of September, -- our suggestion was at the beginning of September, -- were issued by the High Command of the Armed Forces at the end of December. The contents regarding the figure 2 mentioned here, are not within my recollection. It is so rarely that executive power is ordered so clearly, that I cannot really understand, in my recollection, why only in September, 1944, were we expressly given the executive power by the Army Group for Serbia.
Q.- Witness, did you at any time during you tenure of office as Military Commander Southeast,-did you see this or a similar order at that time?
A.- I can only remember that these official directives were issued to all subordinate commanders, but I cannot recall the contents in detail today.
Q.- Thank you very much, witness.
The next document, your Honors, I have reference to is Exhibit 297. It is in Document Book 12, it is NOKW-1523, and it is called, "Fuehrer Order No. 48". It is dated 26 July 1943. It starts out on page 75 of the English and on page 66 in the German, in Document Book 12. I shall cite however, only that part appearing on page 80 in the English and page 71 in the German.
I would like to give the witness one moment to read this, if Your Honors permit.
I shall now read the part I am having particular reference to. It is a so-called, "Fuehrer Order," marked "Top Secret", OKW Wehrmachtsfuehrungsstab, Operation No. 66, 1637/43, Top Secret, by officer only:
"Fuehrer Headquarters 26 July '43. Directive No. 48". I cite from paragraph B-1, on page 80:
"In the zone of operation in Serbia and Croatia, Commander in Chief Southeast delegates the authority rested in him to exercise executive power to military commander southeast, the latter employing for this purpose in Croatia the Commander of German Troops in Croatia."
A.- For this particular question, only this part will be necessary to quote at this time.
BY MR. RAPP:
Q.- Witness, has this letter been known to you?
A.- I found it when I took over my duties.
Q.- It was only a few days prior to your assuming your duties?
A.- No, according to the date it must have been about a month prior to that.
Q.- What can you tell us in connection with this Fuehrer order, so far as it concerns executive power which, in your view, or according to your statement, after September, 1944, did not at all exist?
A.- In this Fuehrer order, executive power has clearly been ordered but to the Commander in Chief Southeast. If in July already mention is made of the Military Commander Southeast, who was to us in Croatia, the Commander of the German troops, that is an order which in practice, at least, was not carried out.
I recall also that the last sentence of this Fuehrer directive, that the regulations were cancelled which were in contrast to this Fuehrer directive. As we found out later, it did not apply to the area of the Higher Police and SS leader, who as heretofore - the directives concerning his area of command, in agreement with Himmler, which we expressly ascertained - he carried out these orders. How clearly this executive power was ordered, I cannot recall today.
Q.- Thank you, witness.
If I may suggest to your Honors to call the recess now, then we won't get the question and answers split between now and adjournment.
PRESIDENT WENNERSTRUM: Very well, we will have our morning recess at this time.
(A recess was taken until 1115 hours.)
Q. Just a minute, witness. This is the "Commander-in-Chief Southeast.
(High Command Group F) War Diary Headquarters 30.10.43." (Signed by the defendant Foertsch).
"To distribution:
"Enclosed find draft of the basic order regarding the command authority in the South east area."
And, then a distribution, and I believe the witness may possibly be in a position to make some comments to the entire document having direct bearing on the question I have put to him. Witness, will you now please give us your comment.
A. I did not know of the existence of this. I may have known of the existence of this document from looking at extracts but the distribution does not show my office. The order itself contains clear definitions about the relationship, the subordination which I cannot recollect having so clear an order in existence.
Q. Is that all, witness?
A. Will, the individual items be discussed?
Q. No, witness, now. If you have to make any comments to this make them now.
A. In that case I would like to point out that in this order under Figure 2, under paragraph "e", the Military Commander Southeast regarding all questions of security of the country is subordinate to the Military Supreme Commander Southeast.
THE MARSHAL: The Tribunal is again in session.
MR. RAPP: The next document we concern ourselves with Exhibit 351, NOKW 1010, Document Book XIV, page 89; that is page 65 in the German Document Book.
Q. Witness, I asked you yesterday, what, in your opinion as a military commander Southeast, was the difference of your official instructions and the official instructions of the then Field Marshal Weichs, Supreme Commander of Army Group F, as much as you know of it, in your capacity as Military Commander Southeast, in your official capacity. You said the Supreme Commander Southeast was responsible for the the whole military area of the Southeastern theatre, and "my responsibility was limited primarily to especially the security and the maintenance of law and order; secondly to the administrative work in the Southeastern area." Is that correct, witness?
A. Yes.
Q. Please, read that for about a minute or so.
Q. Did you have enough time now to look through this document?
A. Please, your Honor, May I have another moment.
Q. Yes, go ahead.
THE PRESIDENT: I believe the witness is ready.
Q. Witness, in connection with your statement yesterday and what you now read, is there anything you have to say and I'd like to point out to you specifically the following paragraph which I am about to read to you so that if it is possible, and if you can do it, you can give us explanations on this.
Q. May I---
MR. RAPP: If your Honors will refer now please to Document Book 18 there was a document offered for identification only on page 91. It was marked as Exhibit 440-A. It is NOKW-611. This is an affidavit from the witness Felber, and in connection with the previous question I have asked the witness, I am now handing him this affidavit to ask him some further questions in regard to the statement he made at that time in this affidavit.
DR. LATERNSER: Your Honor, I object to the intention of the Prosecution to give this affidavit to that witness. I remember that the Tribunal ruled yesterday, subsequent to my objection that it should not be shown to the witness.
THE PRESIDENT: I think, Dr. Laternser, you must be in error as to the Court holding it should not be handed to the witness. The Tribunal has not objected to it being handed to the witness or the witness examining it, and under the ruling of yesterday did restrict it to such questions as would come within the rulings as made yesterday, otherwise the witness would not know what was in the document.
DR. LATERNSER: Your Honor, that is just what matters, what the witness knows and what he doesn't know, and I repeatedly pointed out yesterday that what matters about a witness is the knowledge which he possesses the moment he enters the Court, and that in the direct examination it is a legal basis not to invalidate the probative value of the testimony of the witness, and it should not be possible for him to refresh his memory. Up to now I have taken the rulings of the Anglo-Saxon law as to this, and I don't think I am in error.
THE PRESIDENT: I think the witness perhaps should be asked as to whether or not he did make such a statement and then he may be questioned. The Tribunal is following the thought that this is being presented to the witness for the purpose of refreshing his memory, and is being permitted to be interrogated solely upon that theory.
DR. LATERNSER: Your Honor, may I point out something else. I have no objections as defense counsel that evidence which has already been introduced into these proceedings as exhibits, that those exhibits may be shown to the witness. However, these statements are not yet evidence, and they will never be evidence, because they are statements on a witness who is personally present here. An affidavit of a witness is merely in the shadow of the witness himself, and the value of such an affidavit is dependent on the value of the witness. If the witness does not possess the knowledge any longer at the moment when he is present in Court, and this is evident from questioning, then I cannot strengthen this knowledge in the direct examination, -- I mean if I submit to him explanations and statements which he made a lengthy period ago that does not apply to exhibits which are already received in evidence, but it does apply to evidence which has not yet been received as evidence, and in an observation of the rules of law can never be evidence.
THE PRESIDENT: The Tribunal has indicated its attitude in this matter, and we will proceed along the lines as heretofore stated by myself and as in keeping with the rulings made by Judge Carter yesterday.
You may proceed Mr. Rapp.
MR. RAPP: Very well, Your Honor.
Q.- Witness, this document, is that an affidavit which you made?
A.- Yes, indeed.
Q.- Does it bear your own signature?
A.- Yes, indeed.
Q.- What is the date of the affidavit, witness?
A.- The 8th of January 1947.
Q.- Witness, I would like to ask you merely one question in connection with this affidavit, a question which again concerns your statement of yesterday, that the Commander in Chief Southeast is responsible for the total area of the Southeastern Theatre, and that your task within this as Southeastern area was limited to the security and maintenance of law and order, and furthermore on the administrative work in the Southeastern area.
In your affidavit in January you said "In order to end this unhappy situation a new order was issued in August 1941. The entire control in this area was transferred to the Commander in Chief Southeast, who at the same time is commander in Chief of Army Group F. His main task was of a tactical and strategical nature, that is he had to pacify the Southeast and guarantee for the security of the whole Southeastern area. At the same time a military Commander Southeast was appointed, whose task it was to look after all administration affairs in this area." Witness, your statement now and your testimony of yesterday does not coincide to my opinion; can you make any comments as to this fact?
A.- I am just reading from this affidavit, that it was expressed there whose task it was to deal with all administration affairs. One might assume from this that could be expressed that the Military Commander Southeast had only administrative tasks. However, that would not correspond with the facts. I have repeatedly emphasized that my main task was on the tactical and military sphere, and the security and maintenance of law, and in the Balkan area. My department was mainly concerned with the area of Serbia.
Q.- Witness, who was responsible for the territorial security of the Southeastern area?
A.- I cannot give a clear answer to this because down there in Belgrade we were unfortunately not aware of a clear definition of those authorities. Purely on the basis of orders the territorial measures are a part of the task of the military commander. However, as I previously emphasized the territorial area and operational area geographically coincided. It could be taken from that fact a mixture of the tasks and the responsibility was shared by the Commander in Chief Southeast and the Military Commander Southeast.
Q What is territorial security, witness?
A I understand territorial security is the task to secure the area which is under my jurisdiction and not only against the enemy from outside but also to be responsible for law and order within this particular area.
Q Witness, the last but one page of this affidavit which you have in front of you is an additional explanation to your affidavit. Is that correct, witness?
A If I understood you correctly, you mean the annex to the affidavit?
Q That is correct, the first page of that.
A Yes, indeed. That is an additional explanation.
Q Would you please take a minute and read this?
A I am through.
MR. RAPP: Your Honors, I am referring to page 99 of your document book, page 98 in the German. The witness Felber, under the date of 9 January 1947, has given the following addition to his affidavit of the same date. In my opinion -
THE PRESIDENT: Do you propose to read this supplement?
MR. RAPP: Your Honor, I am not proposing to read this. I am merely trying to cite the paragraph, for the Court's information, that I am having reference to in order to avoid to get into long questions which in itself would have no meaning unless we get the background first. I am reading, in other words, for the record only, not for the purpose of getting it as such admitted into evidence.
THE PRESIDENT: It seems to me if you have a desire or if it is your purpose to refresh this witness' memory on something that he failed to comment upon that you might do that; but to read it into the record would violate the previous instructions of this Court and, in our opinion, the rules in connection with matters of this character. Now, with that I feel you should limit your questions and your examination of this witness in this particular document.
MR. RAPP: Very well, Your Honor.
Q Witness, at that time you said in your affidavit that the official instruction of the Commander in Chief of Army Group F, as far as it concerned tactical questions, they coincided with your own instructions. What is your comment to this today?
DR. LATERNSER: I object to the question. This question is a leading question which is not admissible.
THE PRESIDENT: The objection is sustained.
Q Witness, did you on the 8th of January, 1947, make an additional explanation to your affidavit of the same date?
DR. LATERNSER: I object. That again is a leading question - not admissible.
THE PRESIDENT: I think the prosecutor should be permitted to complete his question and then the Court will be able to rule more fittingly.
Q Did you make this statement and sign it in your own signature?
A Yes.
Q Is that this same affidavit which you now have in front of you, witness?
A Yes.
Q On the 8th of January, 1947, in connection with this statement, you stated under oath that, in your opinion, the official instructions of the Commander in Chief of Army Group F coincided with your official instructions, as far as they concerned tactical matters.
DR. LATERNSER: I object to this question, Your Honors. That again quite obviously is a leading question. The prosecutor might possibly ask, "What did you testify to on the 8th of January?" but he cannot ask, "Did you state certain matters?" I, therefore, ask not to admit the question which has just been put.
THE PRESIDENT: The question undoubtedly is of a preliminary nature and the witness may answer it.
MR. RAPP: Very well, Your Honor.
Q Witness, will you answer?
A I have already answered the question as "Yes." I may clarify this by saying that the expression, "tactical matters", does not perhaps fully apply but I thought more of tactical military questions. That is not purely combat matters but tactical military matters.
Q Are matters, say for instance, levying of hostages or the ordering of retaliation measures, the security of supply columns on roads or railroads - are those tactical questions? Witness, did you understand my question?
A Yes. Maybe the levying of hostages cannot be counted into this sphere but merely the retaliation measure in the carrying out, if it concerns a large execution.
Q Witness, I don't quite understand that. Would you make it a little clearer?
A You asked -- it was asked whether most of the measures of levying of hostages were discussed. However, these were such details that they were merely outlined and were only in outline brought to the knowledge of the leadership of the Army.
Q Witness, I don't think you understood my question properly. I asked you merely whether matters which I have just named were matters of a tactical nature. There was no question of discussions with the Army Group. Other matters you were not asked about.
A I am sorry, I misunderstood that.
DR. LATERNSER: I object to the question. This does not concern a question of the witness which concerns facts. That is an expert question.
THE PRESIDENT: You may answer it.
A I should like to answer the question with "Yes."
NOKW 1304 is being marked for identification only as 440-A2.
DR. LATERNSER: Your Honor, apart from the fact that as I previously submitted, - I do not think it admissible to submit an affidavit of a witness who is personally present, I repeat that I do not think it is legal to submit affidavits of a witness who is present in person. In this particular case I have to point out the period of 24 hours which is supposed to expire before a document is introduced I would like to draw the attention of the court to the fact that the prosecution said before that they would make an exception with documents to be used for cross-examination.
This witness, however, is not under cross-examination. The 24-hour notice will have to be kept. I do not like to call your attention to this space of time, but in this case I have to do it because in any case I do not think the introduction of this affidavit is legal. I therefore ask that the document is at least not admissible concerning the notice period which has not lapsed.
MR. RAPP: Your Honors, as a matter of fact, this document to be marked as an exhibit is to be used for purposes of cross-examination inasmuch as we are trying to impeach the witness. There are statements of inconsistency which the witness has made before the court, and which he has made previously.
DR. LATERNSER: Your Honors, I did not understand that correctly. Maybe I did not hear it correctly. I have never in my life experienced that one wanted to discredit one's own evidence. If the prosecution intends to do that, I do not understand it. Above all, I do not understand in that case why they called this witness as a prosecution witness.
PRESIDENT WENNERSTRUM: In the first place, this witness is called as a prosecution witness, and this Tribunal does not feel that you can impeach your own witness. We have endeavored repeatedly to advise the prosecution as to the manner in which these statements may be used for the purpose of recollecting, advising the witness, and causing him to recollect as to certain statements. The procedure has not been followed and unless it is, why we will have to proceed along some other line, - to something along some other line.
MR. RAPP: Very well, your Honor.
PRESIDENT WENNERSTRUM: The discrepancies, if any, will have to be pointed out first before we can even recognize the matters to which you have referred.
MR. RAPP: Very well, your Honor.
I would just like to ask the Court whether or not Document NOKW 1304 can be submitted for identification only, with the designated number as suggested.
PRESIDENT WENNERSTRUM: There is no objection to that for the record, but there is a ruling that it is not to be considered as admitted in evidence in any degree.
MR. RAPP: That is correct, your Honor. We fully understand that.
PRESIDENT WENNERSTRUM: The German counsels are not hearing this proceeding.
Are you hearing it now.
(German counsel signified that they were.)
BY MR. RAPP: Witness, did you on the 15th of May;
DR. LATERNSER: Your Honor-
MR. RAPP: Your Honor, I believe Dr. Laternser can't read my mind about the question I would like to ask the witness.
PRESIDENT WENNERSTRUM: I think, Dr. Laternser, if you will kindly wait until he finishes his question. Remain right there and then we will save a little time perhaps.
BY MR. RAPP:
Q. Witness, did you on the 15th of May, 1947, in connection with an affidavit, - did you state that you took full responsibility of--recognition of the fullest responsibility for what you ordered?
A. Yes.
DR. LATERNSER: I object to the question. It is a leading question which is not admissible.
PRESIDENT WENNERSTRUM: The witness may answer.
A. My answer to the question was, "yes".
Q. Witness, did you on the same day further state, under oath, that the then Commander-in-Chief of Army Group F, the defendant von Weichs, with whom you worked closely together, was completely informed about all orders which you issued?
A. I cannot recollect that clearly, whether I made that statement in this exact formulation.
DR. LATERNSER: Your Honor, if ever there has been put a leading question that was it. I object.
JUSTICE CARTER: Mr. Rapp, evidently you are trying to show some statements in these affidavits that are in conflict with what he testified to orally
MR. RAPP: That is correct, your Honor.
JUSTICE CARTER: So far as I can see, none of those conflicts are important to the guilt or innocence of these defendants.
They do not bear upon anything the defendants have done, and those conflicts on immaterial matters are not important to us here. It seems to me that we are wasting a lot of time on something that is of no particular value. I may be mistaken about that, but that is my view of it up to the present.
MR. RAPP: Your Honor, may I point out that we are trying to establish the responsibility, or co-responsibility of the defendant von Weichs for such things as ordered and carried out by the witness, Felber. I believe that has, possibly, a very important bearing on the case of the defendant Weichs.
JUSTICE CARTER: It might have some bearing, but his opinions on the matter are not binding.
MR. RAPP: Your Honor, we are merely trying to ascertain whether or not, these orders, and the contents of these orders were called to the attention at that time of the defendant, Weichs, and only so far as this is concerned, do we want to have the witness testify.
JUSTICE CARTER: Why don't you just ask him that?
BY MR. RAPP:
Q. Witness, did you, in the most important cases, so far as they concerned retaliation and reprisal orders, did you discuss these matter personally with von Weichs?
A. I have informed him of the more important retaliation measures in my reports and apart from that the Army Group was informed through our daily reports concerning these matters.
Q. How did the commander-in-chief von Weichs react on the basis of your report?