I have two or three affidavits remaining which I could not include in Document Book 3. I would like to reserve the right to submit a supplementary book when the occasion arises.
THE PRESIDENT: You will be granted that privilege.
DR. TIPP: And at the moment I have no further questions to General von Leyser.
THE PRESIDENT: General von Leyser, may I inquire of you and may I give you the opportunity to state to this Tribunal your contention as to your status before this Tribunal?
THE WITNESS: I did not understand you, your Honor.
THE PRESIDENT: I was trying not to state a leading question. What do you claim as to your position before this Tribunal?
THE WITNESS: I am a defendant before the Tribunal.
THE PRESIDENT: That is true, but is it your contention that this Tribunal does not have any jurisdiction to hear your case?
THE WITNESS: According to the provisions of the Geneva Convention Generals and officers, are to be placed before a military Court, of the same state and the judges must have the same rank as the defendants, that is, they must be placed before a military court. That is what the provisions are.
THE PRESIDENT: In other words, it is your contention that this Tribunal had no jurisdiction to try you?
THE WITNESS: Your Honor, I didn't talk about capabilities but I only wanted to state-
THE PRESIDENT: You misunderstood me, General. The question is as to whether or not this Tribunal has a right. It is your thought that this Tribunal does not have a right, under the Geneva Convention to try you?
Is that your contention?
THE WITNESS: Yes, according to the Geneva Convention.
THE PRESIDENT: Very well. And just one other question.
It is your further contention and claim that you have never been released from a prisoner of war status, is that correct?
THE WITNESS: Yes, that is my opinion.
THE PRESIDENT: Very well. The Tribunal will recess at this time until nine-thirty tomorrow morning.
(The Tribunal adjourned until 14 November 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany on 14 November 1947, 0930-1630, Justice Wennerstrem presiding.
THE MARSHAL: Persons in the court room will please find their seats.
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 room.
THE PRESIDENT: Mr. Marshal you will ascertain as to whether or not all defendants are present in the court room.
THE MARSHAL: May it please you Honor, all defendants are present in the court room except the defendant von Weichs who is in the hospital.
THE PRESIDENT: Judge Burke will preside at this session.
JUDGE BURKE: Do any other defense counsel desire to cross-examine the witness?
Do you have something further, Dr. Tipp, which you wish to present?
DR. TIPP: No, Your Honor.
BY DR. GAWLIK: (Counsel for the defendant General Dehner.)
Q. General, from document book 15 of the prosecution I submit to you document NOKW 1430, exhibit No. 370, page 50 of the English and page 84 of the German text. This document contains reports about the operation "Brandfakel." (Torch) The document has been submitted also as evidence against General Debner and I now ask you by which corps was the operation "Brandfackel" carried out?
A. The operation "Brandfackel" (torch) was carried out by the XV Corps.
Q. Was the LXIX Corps involved in this at all?
A. The LXIX Corps did not participate in this.
Q. At that time to whom was the 1st Cossack division subordinate?
ate to the XV Corps.
Q. For which reasons were the teletypes dated 27 January, 28 January and 29 January sent to the LXIX Corp, I would like to draw your attention to page 84 and following of the German text and page 50 of the English.
A. The reason is possible the fact that the Cossack Division was stationed in the area of Zagreb and was therefore reporting to the LXIX Corps about this because this was stationed in the neighborhood. There was no subordination at this time to the LXIX Corps and the report was sent only for information.
Q. Did the LXIX Reserve Corps have any kind of command or jurisdiction over the SV Corps or the units which were subordinated to this Corps?
A. The XV Corps was never subordinated to the LXIX Corps. If at some time parts, for instance during the operation "Schach", units were subordinate to the LXIX Corps then it was only for this operation.
Q. Thank you, I have no further question.
JUDGE BURKE: Are there any further questions by defense counsel? If not, the prosecution may proceed.
MR. FULKERSEN: Your Honors, please, before I commence the crossexamination, I would like to call attention to the fact that the pagination has gone awry on the transcript of the English.
JUDGE BURKE: That is an unusual situation, what document do you refer to?
MR. FULKERSEN: I mean the actual court transcript, if you please, for the 6th of November. The right page given there is 5753 at the end of the session on November 6th and on the 7th of November the pagination begins 5154, it obviously should begin 5754 and that has been carried on all through the transcript for the 7th and presumably for the following days.
We have notified Major Granzin's office about this and presumably they will make the changes hereafter, but it may be that in refer ring to the transcript hereafter there may be some confusion and that is why I call your attention to it.
JUDGE BURKE: Thank you very much. You may proceed.
CROSS EXAMINATION BY MR. FULKERSEN:
Q. For convenience sake I will follow approximately the same order that Dr. Tipp did, first let us discuss the Commissar order, you will recall the order generally don't you?
A. Yes.
Q. I believe you said that you first heard about this order at a conference with the members of General Reinhardt's Corps sometime before the beginning of the Russian campaign; is that right?
A. No, I said something rather different. I heard about it for the first time with the 18th Army and I said that shortly before the beginning of the Russian campaign I came to the Panzer Corps Reinhardt and there General Reinhardt told this to me.
Q In other words, you -- but where did you hear about it for the first time, General, I mean was that at a conference of the various officers of the 18th Army?
A. I said that there was a conference with the 18th Army, at which the commanding generals and the division commanders were present. They were ordered to this tactical conference during which we were told that war with Russia would come and that it was also mentioned that an order of the Fuehrer would be issued, according to which political commissars were to be shot. That was the first time I heard about this so called Commissar order.
Q. Well, did you see a copy of the order at that time?
A. No, we were told it orally.
Q. And later you say, when you transferred to General Reinhardt' s Corps that he again mentioned this order?
A. Yes.
Q. Did he show you a copy of it then?
A. No.
Q. But he gave you the general contents of the order?
A. Yes, this Commissar order was generally known and everyone was talking about it. As a result this matter cropped up and as I have recently said, it was during a discussion with General Hoeppner of the Panzer Army, that objections were made against it. These objections were turned down. General Reinhardt as commanding general mentioned this order to his commanding generals, of whom I was one, and said that this order was in existence, but he also said approximately that this order did not come into the question at all for us, but that everyone should be treated as a Prisoner of War.
Q. And I believe you said that you yourself personally had several objections to the order, one of which was that you anticipated that the advance through Russia would be about as fast as the advance through France and that you did not think there would be time to screen those prisoners and separate the political commissars from the others; is that correct?
A. No, I did not say that. In my opinion that is contained in the affidavit of General Reinhardt. I did not say it.
Q. You had no objections along that line yourself?
A. Well, I don't know how to take that, how do you mean objections in that connection? At that time with the 18th Army? I saidthat we divisional commanders raised objections at that time and it was not in accordance with our soldierly feelings. General Reinhardt mentioned it, in his affidavit. It did not say this during my examination.
Q. In other words you never did,--your only objection to it was that it was not in accordance with your ideas of soldierly conduct?
A. Yes.
Q. You didn't object to it because you thought it was impracticable?
A. Yes, because it was impracticable.
Q. For the reason that General Reinhardt gave?
A. We are talking about two things here. I said that the first time with the 18th Army, we Generals,--it was a conference for the commanding generals and the divisional commanders,--expressed the opinion that this order was against the soldierly feeling and conduct. Then there came the second time when we heard about it through General Reinhardt, my commanding general. At that time he said that he, at the conference with his army commanders brought the question up that this order must be rescinded, because he was also of the opinion that this order was a violation of soldierly conduct and this view was turned down because the order was not rescinded.
Thereupon General Reinhardt told us division commanders his opinion, that he had raised this question, that this order was not correct according to soldierly feeling, but he had to pass on the order but he also ordered that all prisoners, all captured soldiers, should be treated as prisoners of war and he added that, as a panzer unit, we would certainly not have any time or opportunity to sort out among the prisoners the commissars or something like that.
Q Well, was the task of separating the commissars so difficult?
A Yes, why difficult; I don't understand the question.
Q Well you say that General Reinhardt said there wouldn't be time to do it, that there would not be time to separate the commissars; was that a difficult job?
A One must realize how a Panzer formation works. For the most time the men are sitting inside the tanks, then when the battle starts there are hundreds of thousands of prisoners. One cannot get the men out of the tanks and then from these thousands of prisoners one cannot sort out the commissars. But he meant that in this tank attack, which of course is what a tank formation does, there would be no time to screen and sort out all the many prisoners. That is what he meant.
Q Well, when you captured a group of prisoners, I am speaking now of a particular German division, when it captured a group of prisoners how long was it before it separated the officers from the men among the prisoners?
A Well, I really cannot say this. I have never ordered that myself. During the battle as divisional commander I had quite different tasks than to sort out the prisoners. The prisoners were transported away and they were given escorts, then there was a collection center, this was ordered and then they were collected together, from there they were sent to the Corps to the Army itself back to the rear. As divisional commander myself, as officer of the troops in action I had nothing at all to do with the sorting of the prisoners and collecting them together.
Q I understand that General, but was it not the task of your 1-C among other things to interrogate prisoners and try to get information from them about the strength, position, arms, etc.
, of the enemy?
A Yes, that was of course the task of the 1-C to get this information from the prisoners, but this 1-C was not stationed with me, but you must imagine it like this, the battle position was something different from where the 1-C was from sitting behind his desk and working on the prisoners. I didn't have anything to do with that, but if I was on the battle field.
Q I understand that, General, I don't imagine that you were sitting back and interrogating the prisoners yourself, but now when the 1-C interrogated the prisoners as a general rule wouldn't you expect to get more information from an officer than you did from an enlisted man?
A Yes, of course we expected to get more from an officer, but whether he did get more or would get more that is rather questionable because it is quite clear that Prisoners of War are not supposed to say anything and from an officer one should expect that he says less than an ordinary soldier.
Q I am not talking about individual cases, General, but as a general rule that is true is it not that you expect to get more information out of the officers because they have more information?
A Well, I don't think that one expects that because one expects that an officer does not say anything he knows.
Q And your 1-C then was not interested for the purpose of interrogating the prisoners and having them separated into the enlisted men and officers?
A He may have done it, but how he did it actually in detail I really don't know.
Q Well now in the Russian army at the beginning of the war, what was the general position taken by the Russians to the political commissars; were they enlisted men or were they officers?
A I don't know exactly, in my opinion they were sort of middle things or intermediate, neither officers nor enlisted men. They were just political commissars and their task was to transmit ideological ideas to the soldiers and to influence them ideologically.
Q And as a matter of fact they had a distinctive insignia, a red star on the sleeve with the hammer and sickle interwoven in it?
A Yes, that was announced that the commissars had an extra insignia, a red star.
Q And yet after these prisoners were moved back into the compound where they were kept until your 1-C interrogated them, you say that there was not time to separate the commissars from the rest of the prisoners?
A During this advance, there cannot be any mention at all about prisoner camps, because we did not have prisoners camps. They were just transported off, in fact they were collected together and the 1-C checked out one or the other for interrogation purposes. If there were four or five thousand people, of course the 1-C did not interrogate all the four or five thousand, but the divisional 1-C had to do the best he could and as quickly as possible in our interests, but no detailed interrogations, etc., would be done until later on.
Q As I remember, General, the Russian campaign opened on June 21st, 1941; is that correct to the best of your recollection?
A On the 20th, I think.
Q Now, how long was it before your division reached the outer peripheria of the defenses of Leningrad?
A That would have been about the beginning of October.
Q And you stayed with the division until the following January, I believe?
A No, I stayed much longer with the division.
Q Well, how long did you stay, General, I am sorry I made that mistake?
A With the division?
Q Yes.
A Until August of 1942.
Q Well, where was the division when you left it?
AAt that time we were in the Welchew sector.
Q Exactly where is that located, General?
A That is east of Petersburg.
Q Well, had the division been in the vicinity of Petersburg or Leningrad all the time from October until August when you left it?
A No, in about December my division was taken from the Petersburg sector and I had the sector south of the Ladega Lake and there I went through the winter battle and after this winter battle, that was in the area of Rukascha, after that my division was then in the Welchew sector.
Q Well, all these sectors which you mention actually were in the vicinity of Leningrad; weren't they?
A Yes, all in the area of Leningrad.
Q So that the activities of the division during the whole time from October until August was concerned with the siege of Leningrad?
A No, until December I was active in the encirclement of Leningrad and afterwards I came away south of the Ludega Lake and I had nothing to do with the Leningrad front, but the eastern front and Leningrad was behind and had nothing immediately to do with the outer peripheria of Leningrad.
Q Well during this period, general at least we can say this, can we not, that your division did not make any sweeping advances such as it had done during the period from June to October?
A No, of course it was more or less a war of position.
Q It was static more or less?
A Yes.
Q And then the reasons that you have advanced here as to why prisoners of war could not be screened don't apply to that period; do they?
A No, then of course we were remaining still and we were not marching continuously.
Q But, General, I believe you testified that during the time that you were with the division that no effort was ever made to carry out the Commissar order?
A No.
Q Well, I am going to hand you document NOKW 2207, which consists of excerpts from the war diary of the 269th Infantry Division from 16 September to October 31, 1941, I want to offer this as prosecution exhibit 611. Will you please turn to the first page after the title page and read aloud slowly the part marked in red pencil?
Court No. V, Case No. VII.
DR. TIPP: I don't want to object, Mr. President. I just want to ask that in the future discussions, the discussions about these documents should wait until I as counsel for the defense have had time to see the document. I must have the opportunity to see first whether I might hat have to object because of technical reasons and I can't do that if I haven't seen the document first. It is just a request, not an objection.
Q. Would you read it please, General?
A. This is an evening report of the 28th September 1941, 2000 hours. The Signal Battalion of the 269th Division reports: "Special occurrences: 1 female Commissar shot. One woman who was in contact with Partisans, likewise shot." In the Russian troops the Commissars were men. This was a woman, who in some way behind the front had been active, and there must have been some kind of a reason for the fact why the Signal Battalion shot her, but I can't say what it was from this, and therefore I must assume that a Court Martial had taken place, and she was shot, but one cannot say from this that this was a prisoner.
Q. But one can see from this that it was a Commissar, and further a female Commissar?
A. Yes, who had probably taken part in some kind of enemy activity. Otherwise the incident wouldn't have happened.
Q. If there hadn't been some special significance attached to the fact that she was a Commissar, why did they mention the fact that she was. Here, for example, immediately following that entry is a remark that a woman who was in contact with the Partisans was also shot. They make a distinction between the female Commissar and the person who was simply helping the Persians. What is your explanation for that?
A. That is exactly proving that she had done some illegal thing.
If she had been in connection with Commissars, of course that is a sign again that she had been fighting against us, and the Partisans were illegal and it showed she had been found guilty of doing something against the German Army.
Q. The Commissars were illegal?
A. I said the Partisans were illegal. They had been fighting behind our front against the German Wehrmacht, and since this woman here was probably in connection with them she was probably found guilty of acting against the German Wehrmacht. Her guilt had been proved.
Q. You, of course, are surmising that there was a Court Martial and are surmising she was in contact with the Partisans; there is nothing here that shows that, is there?
A. In my opinion this does prove that, because it states here the women who was in contact with the Partisans. It says that here.
Q. General, the first sentence said: "One female Commissar shot." That is one person. The next sentence says, "One woman in contact with Partisans, also shot." Now, I don't see here any connection between the two. As I see it they are making a distinction between female Commissars and people who are helping the Partisans. You don't see that distinction?
A. Yes, I realize what you mean. I didn't understand it properly. That is the same, and there must have been some reason for the fact, that this female Commissar done something or another against the German Wehrmacht, but I can't see that from this document here. I must know first of all what happened.
Q. I understand that you don't think there is any significance to the fact she is simply described as a Commissar, and it is reported that she is shot?
A. No. In this I see the importance that this female Commissar was shot, and this was particularly reported in order to report to the Division what had happened in the area of the Division, and by reason of the fact that this is reported I think something must have been done in order for this to have happened.
Q. And now would this be a reasonable explanation, if a person had read the Commissar order and didn't have the benefit of your explanation that it never was in force, and then looking at this Daily Report where it says one female Commissar shot, without any more details, could he possibly see a connection between the two?
A. I can't see from this report at all that this was a prisoner, but this was a female Commissar, and a female Commissar isn't a prisoner of war. This female Commissar was behind our lines and has done something behind the front, and belongs to a village behind the front. It does not say anything about the Commissar order; but the Commissar order referred only to prisoners of war, and it doesn't say this is a prisoner. I must assume that this is a female Commissar from some village behind our lines, and that she committed some action against the German Wehrmacht and was shot -- But there is not a word which says that she was a prisoner of war.
Q. It is not your interpretation of that Commissar Order that only prisoners of war who are Commissars are to be shot?
A. According to the Order it says that political Commissars who had been captured are to be shot, and therefore, in my opinion, that means political Commissars who are with the troops.
Q. Well, lets leave this for a moment, General; now, the other day you mentioned that the Commissars that were captured by the 269th Division were treated in the same way as the other prisoners of war?
A. Yes, that was what was said.
Q. And now how were the other prisoners of war treated? I mean by that, there has been some talk here of Russian prisoners being used to clear mine fields, and that sort of things was that done in your division?
A. I didn't give any order about that. I can't remember.
Q. Well, you would recall it, wouldn't you, if you had ever given an order or passed on an order that Russian prisoners of war were to be used to clear mine fields, including German mine fields, would you not?
A. First of all there there weren't any German mine fields in our area at all.
Q. All right, then Russian mine Fields?
A. I can't remember of an order of that sort.
Q. Well, I want to refresh your memory, General. This is Document NOKW 2254, which I would like to introduce as Prosecution Exhibit No. 612. Will you please identify it, and read the first sentence aloud, please?
A. This is a teletype of November 3, 1941.
"Reference: General of Engineers and Fortifications with the Commander-in-Chief of the Army, No. 5441 of 29 October 1941.
"Commander-in-Chief of the Army has decided that mines, other than in combat or in case there is danger in delay are to be detected and cleared only by Russian prisoners in order to spare German blood. This is also valid for German mines. This order is not valid for special field battalions. Signed: Army Corps-Engineers 23/41 Secret."
Q. Well, go ahead if you want to read the rest of it.
A. "For this purpose, captured electrical mine detecting apparatus is to be given to the prisoner of war special squads which are to be formed; in case of shortages, German equipment is also to be furnished.
"This order is not valid for special field battalions.
Signature L Corps, Ia, Engineers, 23/41 Secret."
Q. Well, go ahead.
A. "269th Infantry Division Branch Ia, No. 312/41 Secret Division Command Post 5 November 1941.
The above copy is transmitted for your informmation.
For the Division Headquarters The 1st General Staff Officer (Signed) Frh.
von Ledebur."
Distribution:
Engineer Battalions.
Infantry Engineer, Platoons."
Q. Will you give us the benefit of your comments on this, General, now that your memory has been refreshed?
A. This is a letter from the Commander in Chief of the Army. I have just read it, and underneath it states "this order is not valid for special field battalions." What that means, I don't know. It was passed on by us to the Pioneer Battalions, and Engineer Battalions, and Infantry Engineer, Platoons. Of course, I don't remember that any longer. It is probably an order which the Division Ia sent on to the Engineer Battalion. Whether it was carried out, I don't know.
Q. And how is it that you remembered that Commissar Order so well because you say it shocked your conscience, and yet you don't recall this?
A. At that time everyone was speaking about the Commissar Order, and there were so many kinds of orders which were sent around during the fighting and one simply can't remember every single one of them.
At that time, as Divisional Commander, in these very dense times when it was a fight for existence or non-existence, or whether we could break through or not, I can't remember every one of these orders. Whether this order was carried out by us too, I really can't remember, because we were in a position only just being built up, and it was in the middle of the winter, and first of all we didn't have any mines at all. This was a matter which perhaps on some other Front had already become necessary, but I really can't remember anything about it.
Q. Where was the Division around the 1 November 1941.
A. In the same area before Leningrad.
Q. It was at that time then---
A. Yes, it must have been about this time.
Q. It was one of the Divisions that was taking part in the encirclement and siege of Leningrad at that time?
A. At the beginning, yes, but as I said later on we were sent East.
Q. I mean at this time, around the beginning of November.
A. At the beginning of November we were in front of Leningrad, yes.
Q. And you say that the Russians didn't use any land mines as part of their defense network in the defense of Leningrad in your sector?
A. We had broken through the usual positions of the Russians, and especially we had advanced so quickly that these positions weren't properly built up. Later on the Russians used many mines, and of course the Front was static, and that was in the absolute front line.
Q. Do you recall that this order was ever rescinded?
A. No, I can't remember. I don't even remember that I remembered this order at that time.
Q. Now, when the officers of the Engineer Battalions and the Infantry Engineer Platoons received this Order I assume that they thought it meant what it said; there is no reason to think otherwise, is there?
A. If they received this order from the Commander in Chief of the Army then they probably assumed that, yes.
Q. And if it was never rescinded they had the right to continue to think that they should use Russian prisoners of war to clear mine fields during the rest of the time, they who were with the Division, so far as you know?
A. Yes, according to this order one must assume that more or less.
Q. And you have described the various movements of the Division between October and August, October 1941 and August 1942; is it your recollection that there never were any mine fields in the vicinity of the during that whole time?
A. Of course we ourselves laid a lot of mines, for instance in the sector -- what time are you talking about?
Q. During the whole period?
A. Then until August we hadn't laid any mines, or at least only very few because the supply in that direction had stopped, and we were fighting a defensive battle all the time, a defense battle which was extremely dense. During such a defensive battle there can be no talk of any clearing of mines.
Q. What time are you talking about now, please, General?
A. In November.
About this time in the winter, until August 1942, and during this defensive battle it is completely impossible on the Front line where we were fighting, to use prisoners to find the mines, and during this difficult defensive battle in the winter, the idea of looking for the clearing of the mines didn't enter our minds at all. In the front lines where we were fighting the most we could do was just to crowd on our way. I do not know how one could have used prisoners to clear mines in such a situation.
Q. That is your conclusion. During this whole time from the 3 November 1941 until August 1942, you never were in a position where you had to clear any mine fields?
A. No, I wouldn't say that, not during the whole period. No, I wouldn't say that.
Q. That is what I asked you, General.
A. During the defensive battle I can't imagine that there was a large clearing of mine fields. I can't remember any.
Q. Did the defensive battles last for 9 months?
A. Well, this defensive battle lasted until the middle or the end of May, and then as I say we were withdrawn from these positions, and came to the Woldhow Sector, and that was a relatively calm sector.
Q. Well, General, lets move on now to the Southeast for a moment.