A Communist organization has been discovered in Belgrade. Party archives, cipher key and medical articles secured." Report for the 21st of March: "Area 717 Infantry Division: Serbian Volunteer Corps captured 42 insurgents South of Valjevo; 30 were immediately shot, the rest taken for an interrogation." Report for the 28th of March; "714th Infantry Division: In Valjevo, Ub and Obrenovac 6 insurgent leaders have been hanged." And then on page 85 of the German and page 103 of the English the last document in this book is offered as Prosecution's Exhibit No. 193 in evidence, and these are 10-day reports of the Commanding General in Serbia to the Armed Forces Commander Southeast. These are signed by Bader. The first report is 10 March 1942.
"Operation Area East Croatia.
"The insurgents in East Croatia receive reinforcements from Serbia and Montenegro. The Greek Orthodox population is being mobilized by compulsion and forced to fight against the Croatians.
"The civilian administration has to list the male inhabitants from 16 to 60 years of age in all communities of Serbia by March 5th of the latest.
"In Belgrade from 26 February to 7 March 1942: 214 arrests. 225 shootings to death ordered as reprisal measures.
"In the camps of the Administrative Sub-area and District Headquarters there were 2600 retaliation prisoners and 272 hostages on 26 Feb.
"In the Jewish camp of Semlin, there were 5780 person (mostly women and children).
MR. DENNEY: Signed by Bader, and distribution to the Wehrmacht Commander Southeast and various others which appear there.
And the Ten Day Report for the period 6 to 15 March rendered on the 20th of March by Bader to Kuntze.
"In Belgrade from 6 March to 15 March 208 arrests, 3 hangings ordered for reprisal measures.
In the camps of the Administrative Sub-aria and District Headquarters there were 2,532 reprisal prisoners and 213 hostages on 15 March. In the Jewish Camp of Semlin, there were 5,150 persons.
The population continues to show a strong interest in the meetings initiated by the Propaganda Branch of the Serbian Prime Minister for the pacification of the country.
(signed) Rader" And the report for the 31st of March:
"In the East Bosnia Area the fight between Croatians and Serbs has again increased in severity. Ustascha native partisans, moslems and finally the bands which have advanced from Montenegro here fight side by side against the Serbian forces fighting under Dangle.
At the suggestion of his "Government" Mihailovic seems to continue in a waiting attitude. As before, he still must be regarded as the bearer of the Nationalist Serbian liberation movement. It is conceivable that all other leaders of the different Nationalist Groups might be willing to subordinate themselves to him.
In the camps of the Administrative Sub-area and District Headquarters there were 2586 retaliation prisoners and 198 hostages, and in the Jewish Camp of Semlin there were 5293 persons."
That figure is not clear on my copy but that is- I am reading in this instance on these last figures from the original German if your Honors please.
It is almost time to adjourn and that concludes this Document Book. I wonder if perhaps we might suspend a little early this evening with your Honors' permission?
THE PRESIDENT: We will adjourn at this time until 9:30 tomorrow morning.
(The Tribunal adjourned until 24 July 1947, 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 24 July 47 0930, Justice Wennerstrum, presiding.
THE MARSHAL: Persons in the courtroom 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.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are all present in court?
THE MARSHAL: May it please Your Honor, all defendants are present in the courtroom.
THE PRESIDENT: I have asked that my associate, Judge George Burke, preside at this day's session.
JUDGE BURKE: We have had under consideration the matter of the offer of introduction of exhibit known as Exhibit 4a offered on behalf of the prosecution.
The Tribunal has prepared a report upon it's findings in that matter. The provisions of Control Law No. 10 and Ordnance No. 7 Military Government Germany, enacted pursuant thereto, provide that certain specified kinds of documentary evidence shall be deemed admissable.
Document 071-PS, found on page 8 of Document Book IV appears to come within the scope of these provisions and for that reason it will be received in evidence.
It is the considered opinion of this Tribunal, however, that matters of competency, relevancy and of materiality have not been removed from the scrutiny of the triers of fact and continue to be pertinent factors in evaluating the weight and credibility of the evidence in determining the guilt or innocence of the accused.
Thus, it becomes important that the party offering an exhibit even though it is admissable by charter pronouncement, supports it with evidence of foundation, authenticity and correctness.
The credence to be given the document will be determined from a consideration of all these factors. Such must be the rule to be followed here in order that no inference may arise that a technical expediency has been substituted for long established rules of evidence.
For that reason the exhibit marked Exhibit "4a" will be received in evidence. The same ruling, and for the same reasons, will apply to Exhibit 100a which was offered by the prosecution at the conclusion of the introduction of Exhibit 99 found on page 76 of Volume III.
You may proceed.
MR. FENSTERMACHER: If Your Honors please, before passing on to the presentation of the documents in document Book VIII, the prosecution has prepared another list for Document Book VI, listing the document numbers, the exhibit numbers and the counts, and the defendants for which these various documents are concerned.
I hand three copies of the list to the Tribunal and fifteen copies to defense counsel, two copies to the Secretary General, and two copies each to the interpreters and reporters.
This, if Your Honors please, should be marked Exhibit 163a for identification. We have also prepared a similar list for Document Book No. VII which should be marked 193a for identification, I hand three copies to the Tribunal.
JUDGE BURKE: Just a moment, Mr. Fenstermacher; how is it to be paged at the bottom?
MR. FENSTERMACHER: Your Honors, I have forgotten to bring my document Book VI this morning but it would be inserted at the end of Document Book VI and be given the next two pages.
JUDGE BURKE: The Secretary has informed me that we will start with 112, page 112.
MR. FENSTERMACHER: All right, Your Honor.
--And twenty-two copies to defense counsel and two copies each to the court interpreters and reporters. This should be marked Exhibit 193a for identification and be inserted at the end of Document Book VII and given the pages in the English, pages 104, 105-- just a minute, Your Honors -- should be given in the English pages 109, 110 and 111 and in the German pages 89, 90, and 91.
We now turn to a consideration of the----
JUDGE BURKE: The Court hearing no objection, the exhibit will be received in evidence.
MR. FENSTERMACHER: And two copies of the exhibit for identification for the Secretary General.
Your Honors will recall that yesterday with the introduction of the documents in Document Book VII we were considering the period of January, February and March 1942 during which period the defendant General Kuntze was Commander-in-Chief of the 12th Army and Wehrmacht Commander Southeast and his Chief of Staff was the defendant General Foertsch.
With Document Book VIII we continue our narrative of events in the Southeast for the period of time, April, May, June and July 1942, during which time the defendants Kuntz and Foertsch were at Supreme Headquarters of the Southeast Command and General Bader was in Serbia as Plenipotentiary Commanding General in Serbia.
The first document in Document Book 8 is on page 1 of the English and page 1 of the German. Document NOKW-1075, which is offered as prosecution Exhibit 194.
This is a situation report dated 7 April 1942 of the 714th Infantry Division which was subordinate to General Bader in Serbia.
The subject of the report is: "Report of Enemy Situation of 16 March to 31 March 1942."
"Enemy Situation, Eastern Area 20 March.
Serbian volunteer Battalion Uzice captured 42 insurgents at Drenovacki -- Kik (17 kilometers South Valjevo) 30 were shot on the spot, 12 taken along to Uzice for interrogation."
I think we need not pay any particular attention to the distribution list to the report.
Turning next to page 2 of the English and page 2 of the German.
DR. HINDEMITH, (For Dr. Rauschenbach, representing General Foertsch): In the document which has been presented, I object to the correctness of the translation. The photostatic copy which I have here, has the letters, KTB, at the top, that means war diary or "Kriegstagebuch".
According to what the prosecutor has said, with his reference to the distribution list, it must be seen that from the document itself, that it went to the people concerned. I would like to ask that the transmission should be made right in the document, so the letters "KTB" are put at the top.
PRESIDING JUDGE BURKE: Is there a question of an improper interpretation?
DR. HINDEMITH: Yes, Your Honor, incorrect, in so far as the transmission did not come through completely. I did not hear it, the letters "KTB" are missing. That meant, "War Diary". I am sorry, it has just been pointed out to me by the prosecutor, that it is there in the document.
PRESIDING JUDGE BURKE: Very well.
MR. FENSTERMACHER: Turning next to page 2 of the English document Book, page 2 of the German, Document NOKW 881, which is offered in evidence as Prosecution Exhibit 195, this is a situation report from the Armed Forces Commander Southeast -- at this time the defendant Kunze -to Higher Headquarters in Berlin, the OKH and OKW.
The report is a review of the situation in the area of the Wehrmacht Commander Southeast, including 7 April 1942. Your Honors will note the distribution list at the top of the page, "OKW, Whermachtfuehrungsstab, National Defense", the OKH General Staff of the Army Operation Branch; OKH General Staff of the Army Organization Branch, OKH General Staff of the Army, Group Asia Minor and Balkans, and the Commander-in-Chief of the Luftwaffe, Luftwaffe Operational Staff.
Turning to paragraph 3 of the report, which is on page 3 of the English, and page 3 of the German:
Losses during the period from 21.3. to 5.4.1942 inclusive:
A) Own: Dead Wounded Missing Germans 3 1 5 Croatians 53 161 110 Serbian Auxiliary Police 13 13
B) Insurgents: 1262 shot in combat 66 shot or hanged in retaliation Including the above since 1 September 1941:
11.522 shot in combat 21.
802 reprisal measures.
and the report is signed in draft by the defendant Kuntze, General of the Engineers, as Wehrmacht Commander Southeast."
Turning next to page 4 of the English, and page 4 of the German, Document NOK" 1123, which is offered as Prosecution Exhibit 196, this is a directive -
PRESIDING JUDGE BURKE: Pardon me, will you present the Tribunal with the original document of Exhibit 195, please?
MR. FENSTERMACHER: Will Major Hatfield hand it to the Tribunal, please? .....Document handed to Court .....
MR. FENSTERMACHER: Exhibit 196, page 4 of the English, and page 4 of the German is a directive of Combat Group Bader, dated 10 April 1942, to the 178th Infantry Division. It relates to certain operational matters in Bosnia, as well as to the insignia work by the enemy. I direct the Tribunal's attention to paragraph 3, which is on page 4 of the English and page 4 of the German:
"Treatment of Insurgents: Insurgents captured bearing arms, as well as everyone in their following or who supports them are to be shot dead."
"Cetniks who do not resist the Allied troops, are not to be treated as Insurgents. Above all they are to be treated as prisoners according to the Hague Regulations for land warfare.
Other signs of distinction between Cetniks and Partisans:
Cetniks:
Uniform: Most of them in dark brown national costumes, officers in Serbian uniform, black fur cap with Serb coat of arms, Badges:
Badges of rank of the old Serbian army.
Partisans:
Uniform: German, Italian, Serbian uniforms or peasant dress.
Badges: Soviet star on the cap, indicating rank by means of Soviet Star and shoulder stripes. The political commissar has a sickle and hammer on the Soviet Star.
4.) Treatment of the civilian population The civilian population is to be treated with understanding and justice.
Villages in which arms and ammunition are found, or which befriend the bandits are to be burned down.
Civilians, who appear suspect of having befriended the insurgents are to be interned. An order will be issued with regard to their transfer to an Internment Camp.
The evacuation of whole areas, as well as of single villages by the civilian population is only to be carried out by order of the operational staff combat Group General Bader.
Civilians in the operational area of the Italian Division, who violate the issued decrees, are to be surrendered to the operational Staff Combat Group General Bader by the Italian Military authorities. Exceptions are civilians, who are guilty of violations, which are to be decided finally, according to Italian law, by Italian Military Special Courts.
The Commander of the Combat Troop General Bader (Signature) Bader General of Artillery It is signed, "The Commander of the Combat Troop, General Bader" and "Bader, General of Artillery."
Turning next to page 7 of the English, and page 6 of the German document book, Document NOKW 1028, which is offered as Prosecution Exhibit 197, this is an operation order dated four days later than the previous order, from General Bader to the 71st Infantry Division. This is the passing on by the 718th Infantry Division, on 14 April 1942 of the previous operational order. It is, however, a more detailed order which the Division received from General Bader.
Operational Order No. 4 I think we need not read the first two paragraphs on "Enemy" and "Missions". They are primarily of an operational nature.
Beginning with paragraph 3:
"Own forces:
Participating in the operation:
German, Italian and Croatian units.
Pursuant to the directive of the Commanding General and Commander in Serbia, Lt. General Artillery, Bader, all troops of the 718th Infantry Division, troops of the Commanding General and Commander in Serbia arriving in the area described above, units of the Croatian Wehrmacht and the Ustasha units are under my Command. These troops will be organized in groups according to enclosure 1."
"The subordinate troops of the Commanding General and Commander in Serbia, of the Ustasha and of the Croatian Wehrmacht will be subordinate to the 718th Infantry Division tactically and for rations and quarters.
All measures concerning equipment and ammunition supply for these troop units are regulated by 718th Infantry Division via their respective offices.
The groups will be issued orders directly by me.
Tactical Reports of one groups are also transferred to me directly."
It is signed, "Fortner". I believe in the German, the signature is "Tatner" which is in error. It should be changed to "Fortner" in the German document books.
The enclosures are listed and the distribution is listed.
Turning next to enclosure No. 3, page 9 of the English, and page 8 of the German, this is an enclosure to the order handed down by the 718th Infantry Division on the 14th of April 1942:
C o m b a t D i r e c t i v e (For the instructions of the troops)
1) Enemy To be treated and to be considered as enemy are:
a) Partisans - Communist insurgents External marks of identification:
Uniforms: German, Italian, Serbian or peasant clothing with rank insignia: Soviet Star on the cap, rank insignia on sleeve.
Political Commissars: Sickle and hammer superimposed on star.
b) Chetnik - Nationalists - Serbian insurgents (in as far as they offer resistance) Marks of identification:
Mostly brown National dress. Officers in Serbian uniform, black fur cap with Serbian Coat of Arms and National colors.
Dangic - Chetniks (in as far as they offer resistance) All non-residents and residents who, according to statements, have returned just recently.
Refugees are to be pursued immediately, particularly since they will mostly be leaders.
1) Not to be treated as the enemy are Soldiers of the Italian Wehrmacht in uniform, soldiers of the Croatian Wehrmacht in uniform (cap insignia large badge) Soldiers of the Croatian Ustasha in uniform (cap insignia "U"), civilians, partly with military overcoats with a permit for carrying arms issued by the Croatian Wehrmacht or with blue white brassards on their civilian clothing (voluntary militia).
3) Treatment of the insurgents:
a) Insurgents captured while carrying arms as well as all their followers and supporters or whoever owns ammunition are to be shot to death.
b) Chetniks who do not offer resistance are not to be treated as insurgents. They are at first to be sent in a group under guard as prisoners to the prisoner collecting point.
x) In searching the villages which were in the hands of the insurgents, the inhabitants, in particular the village elder are to be asked to state the names of those families whose men have taken "to the woods" and who have co-operated with the insurgents.
4) Negotiations with the insurgents:
Troops are to be prohibited from all negotiations on principle. Should the insurgents offer to negotiate, the Regimental Commander is to be informed immediately and action is to be taken according to his orders.
5) Procedure during capture:
During the preceding operations, it has been found that all persons present during the search of houses or villages were driven together by the troops and taken away as prisoners. During interrogations difficulties arose in the effort to find out under just what circumstances the capture was made.
That is why each sergeant has to give a slip to a prisoner describing briefly how the capture was made. For instance; "Taken in house while working in stable" Signature and Unit. The use of prisoners for carrying wounded is prohibited as a matter of principle.
6) Interrogation of prisoners:
In order to make possible exploitation of prisoner statements, the following facts to be exploited by the troops are of value:
a) What are the names of the leaders and where are the leaders including those of smaller insurgent units?
b) Where are the depots for arms, ammunition and food?
c) Where are family members of the insurgents leaders?
d) An investigation is to be carried out to determine whether the prisoners include such as might be used as guides to hide outs and depots."
"7) Treatment of the Civilian Population:
"a) The evacuation of the civilian population from entire areas in the villages is to be carried out only by special order of the Combat Group General Bader.
"b) Villages and houses in which arms and ammunition have been found, from which shots have been fired, or the residents of which have aided and abetted insurgents are to be burned down. Other than that the burning down of villages is to cease in consideration of the necessity for troop billets.
"c) Village residents whose relatives are with the insurgents or who have supported the activities are to be taken away as prisoners.
"d) The approach to villages which are to be searched is as a matter of principle to be made under the protection of heavy weapons.
"e) A just and understanding treatment of the population by the troops must show that they are only fighting the insurgents and that the peaceful population has nothing to fear.
"8) Executive Power:
"The executive power in the operation area is in the hands of the Commander of Combat Group General Bader and is carried out according to his directive by the divisional commanders. Until the employment of the civilian Croatian authorities, they will be available along with the troop units, the Croatian gendarmerie units, the Croatian police units, and the Croatian administrative officials who remained in the area.
"9) Croatia is a Friendly Country:
"Troops must be conscious of this fact and are to avoid transgressing the prescribed limits of their duties. Regarding food taken from the country attention is called to the directive issued via Branch IB of the division.
"For the Division Command Ic (signed) "Lieutenant" Turning next to page 14 of the English document book and page 11 of the German, Document No. NOKW-1218, which becomes Prosecution's Exhibit No. 198.
These are various reports sent during the month of April 1942 by the Commanding General and Commander in Serbia, General Bader, to General Kuntze as Wehrmacht Commander Southeast. First is a Daily Report of the 8th of April 1942:
"Area 714th Infantry Division: In Kloka (five kilometers northnortheast Natalinci) ammunition confiscated, owner shot to death... Thirty-four arrested in Belgrade."
Next is the Daily Report of the 18th of April 1942; the extract which we are using begins on page 15 of the English and page 12 of the German under Serbia:
"704th Infantry Division: 1st Company, 447th Ls. Battalion, skirmish with insurgents near Vlaska. One enemy dead, three prisoners shot after interrogation."
Next, the Daily Report of the 20th of April 1942, found at the bottom of page 15 of the English and page 13 of the German, the report for the 714th Infantry Division:
"As reprisal measure for one wounded German guard in Topola, 85 residents were turned in." This report, as were the other two, is signed by the Commanding General and Commander in Serbia, by his Ia Operations Officer.
Turning next to page 17 of the English, page 14 of the German document book, is Document No. NOKW-914, which is offered in evidence as Prosecution's Exhibit No. 199. This is a situation report of General Kuntze as the Armed Forces Commander Southeast to Berlin - OKW and OKH headquarters in Berlin. This particular report is a review of the situation in the area of the Wehrmacht Commander Southeast up to and including the 22nd of April 1942. Your Honors will note that the distribution list on this report is the same as it was on the report we looked at a few minutes ago. Again paragraph 3 is all that is important to the prosecution:
"Losses during the period from 6 to 20 April 1942 inclusive:
Dead Wounded Missing "A) Own:
German 2 9 Croatian 23 23 61 Serbian Auxiliary 69 18 Police "B) Insurgents:
1612 shot to death in combat. Three reprisal measures."
Again, I direct Your Honors' attention to a comparison of the losses suffered by the insurgents and those suffered by the Germans and their allies. On page 18 of the English and 18 of the German the report is signed "For the Wehrmacht Commander Southeast, The Chief of General Staff", the defendant Foertsch. And I think, if Your Honors will look at the original document, you will see Foertsch's signature spelled out in his own handwriting.
Turning next to page 19 of the English and page 19 of the German document book is Document No. NOKW-1444, which is offered as Prosecution's Exhibit No. 200. This is a series of reports - of 10-day reports - of the Commanding General in Serbia, General Bader, to the defendants Kuntze and Foertsch, the headquarters of the Armed Forces Commander Southeast in Greece. The first report is dated 20 April 1942:
"Enemy Situation.
"Serbian Area.
"In Belgrade quiet. The seizure according to plan of communists and persons closely associated with insurgents led to further arrests.
"VI. Losses and Booty for the Period from 6 to 15 April 42.
"In Serbia: 343 enemy dead "In Belgrade:
201 arrests "Booty:
Three pistols, 10 light machine guns, 67 rifles and ammunition.
"One own dead and three wounded of the 714 Infantry Division at the bridgehead Zvornik.
"VII. Administration Sector.
"In the concentration camps there are 182 hostages, 3266 reprisal prisoners and 4005 Jews.
"For the Commanding General and Commander in Serbia "The Chief of the General Staff."
The report is signed for the Commanding General and Commander in Serbia, the Chief of General Staff, a Colonel Kewisch.
Turning next to page 20 of the English and page 20 of the German is a 10-day report to the Wehrmacht Commander Southeast. Under "Enemy Situation":
"Serbian Area.
"In Belgrade the seizure according to plan of communists and insurgents is being continued. On 22 April, 128 Yugoslav former professional officers were arrested and deported to Germany to a prisoner of war camp.
"VI. Administration Sector.
"In the concentration camps there are 189 hostages, 3503 reprisal prisoners, 2974 Jews."
I ask Your Honors to note the distribution list on this, as on the preceding report:
"Wehrmacht Commander Southeast (with two enclosures) "Combat Group General Bader "Plenipotentiary of the German Foreign Office "Plenipotentiary General of Economy "Higher SS and Police Leader "German Liaison Staff at the Italian Second Army "Intelligence Office, Belgrade "German Liaison Officer with the Royal Bulgarian Corps of Occupation "Administration Staff" On page 22 of the English and page 21 of the German, the prosecution's next document is No. NOKW-1126, which becomes Prosecution's Exhibit No. 201.
This document consists of two reports which are extracts from enemy news bulletins, issued by the combat team Bader and the 718th Infantry Division, with respect to the organization and insignia of the enemy against whom the Germans were fighting. The first report is dated 2 May 1942, from the Division Battle Headquarters of the 718th Infantry Division, Section Ic, which is the Intelligence Section of the division:
"Report about the Enemy No. 1 "Area:
Mesici, Gorazde, Ustiprace, Mesici.
"I. In General: With the departure of the partisans and Montenegro nationals from eastern Bosnia and from around Rogatica the battalions and units of partisans plundering in this area increased in strength. It was a kind of winding-up position, for partisans as well as for Chetniks. However, there is a report that the Montenegro nationals have withdrawn further to Foca via Gorazde and that only local partisans are holding the positions. Some Chetniks who had changed to this side were either driven away by the partisans or won over to their party and added to their battalions. Careful with Dangic passes!
"Moreover there exists here also the great contrast between Chetniks and Mohammedans. For protection against the Chetniks many of these Moslems (who almost exclusively inhabit the villages here) have gone over to the partisans. Prisoners' statements agree that the partisans are determined to make a stand here. Above all they want to ward off all attacks from ambushes with tricks and cunning, as well as from freed position of a primitive type."
In paragraph II the leaders of the partisan units are named. I think we can skip that paragraph by just noting what it contains. And turning to paragraph VII, "Clothing", which appears on page 23 of the English and page 21 of the German:
"Clothing: Serbian uniforms or the well-known black uniforms and civilian clothing of the partisans. Almost everybody wears the badge of the partisans on his black cap, the Soviet star."
Signed "For Division Headquarters "The Ia" (Operations Officer) The next report on the enemy, No. 2, which is on the bottom of page 23 of the English and page 22 of the German--
DR. HINDEMITH: Dr. Hindemith, deputy for Dr. Rauschenbach, defense counsel for defendant Foertsch.
I object to the document which has just been presented, No. NOKW-1126. I don't think the translation was right. The German document which the defense has begins with page 1 and page 2. I would like to point out that from the photostat copy of the original it can be seen that this is only a part of the document. The first page of this document is marked 6; the next page is 6a.