MR. DENNEY: There has been some delay in the motion because of the fact that I haven't been able to see the transcript for that day as yet and the motion papers should be prepared sometime later this week.
Turning now to another matter. We were served on Friday- I did not see the papers until after the afternoon session on Friday,- with a motion by the defense counsel with reference to a proposed trip to Washington. The Prosecution intends to file a memorandum in opposition to this request and it is requested that we be given until tomorrow noon to file our answer and papers, in view of the fact that Friday was a partial holiday here and on Saturday and Sunday there was no secretarial help available to those of us who were preparing the memorandum. Is that agreeable with your, Dr. Laternser?
DR. LATERNSER: Mr. President, I don't know how long the Prosecution will take in order to present its case. The Defense believes, however, it is definitely necessary that a trip of one or two deputies be made possible to Washington, and it has been concluded that we, the defense, in order to continue the case, are convinced of this because important material can be gotten from our representatives in Washington.
MR. DENNEY: Your Honor, I am not arguing the merits or lack of them, of his application, but am only asking that I be given until tomorrow noon to file the papers.
DR. LATERNSER: The defense counsel cannot make any objection to that.
PRESIDING JUDGE CARTER: It will be granted.
MR. DENNEY: And I might say for the record with reference to Dr. Laternser's application that the prior application with reference to the examination of one of his clients, that we have no objection, and we have filed this morning with the Secretary-General's office, that office having been closed on Saturday and Sunday when I attempted to file it at an earlier time, a statement to that effect.
Turning now to the remaining material in Document Book 15, the exhibit which we were considering as Prosecution Exhibit No. 371, which has been received in evidence and it is Document NOKW 1419. We had treated those portions of the exhibit which dealt with a communication of 30 January 1944 from the Corps Headquarters, 15th Mountain Corps, which was under the command of the defendant Leyser, to the Second Panzer Army, which was under the command of the defendant Rendulic, and the information copies going to the Military Commander Southeast, who was at that time General Loehr, and his Chief of Staff, at that time was the defendant Geitner. We also discussed the communication from SS Standartenfuehrer to General Leyser, as commander of the 15th Mountain Corps, and a communication from the German General Plenipotentiary in Croatia -Glaise-Horstrenau to the 15th Mountain Corps of the Defendant Leyser.
We now come to a report, page 91 of the German book and page 64 of the English book, starting with the section, for the interpreters, which has to do with our relationship to the German Wehrmacht.
At first, the German were met with mistrust due to enemy propaganda. There were cases where some Commanders and soldiers (surely by their own authority) have taken upon themselves certain rights which were not theirs, that is to say which are theirs in occupied enemy territory. In particular with regard to the spoils of war, there were frequently differences of pinion since the Germans, in addition to all war material, also consider as spoils of war all monies, Jewish and Italian fortunes, cigarettes, salt, matches, etc. After the Germans realized that they had extended their rights too far in regard to the spoils of war, the situation is now much clearer.
However, there is another fact which gives cause for concern.
The German Wehrmacht undertakes mopping up operations of the area without special co-operation of our troops. In a certain sense, this makes the Germans akin to liberators, but causes resistance within the population which expresses itself in particular in mistrust toward our State. In addition, German troops out of ignorance of our situation, sometimes carry out too severe measures or reprisals against the population which bears small guilt or no guilt at all. In most cases, the partisans on the arrival of German troops, fire from just those villages from which they wish to flee and/or to which they wish to cause damage.
The peaceful population remains while the Germans, convinced that they are dealing with accomplices, burn down these villages and thus destroy all the property of the population. In order to avoid such misunderstandings, a closer co-operation with our military and civil authorities by the German troops committed seems an urgent requirement, and prior to any mopping up operation by German detachments, the necessary data should be requested from our authorities."
And it is signed Vladimir Jonic, Commissar of Ustasha Headquarters, former representative to the Directorate Civilian Administration in liberated Dalmatia.
And then under date 11 August 1944, a communication from the Chief of Civil Administration of the Independent State of Croatia and to the Commander of German Troops in Croatia, Subject: Vicici Konji -- Its burning down by German troops."
I have received a report that the village of Donji Vecici was burned down and estroyed with weapons by German troops on Aug 7th this year and that the population was driven to Kotor Varos. The reason for this procedure was allegedly that a woman of this village had fired on a German Soldier from a house. It should be considered that this village was occupied by the partisans for several months, and a partisan woman had hidden there for certain and fired on the German Soldiers, something for which the population of this village cannot be held responsible.
As proof that the population did not feel friendly toward the partisans, the fact is cited that not a single person of this village had joined the partisans, notwithstanding an occupation of several months, their atrocities and promises.
The population was more than happy when the German troops arrived and liberated them from the atrocities and the looting. Now they experienced their greatest disappointment and their annihilation by just these German troops. Great excitement and open revolt ensued as a result of these happenings. Thus, a commission sent by the Headquarters of the German Troops in Banja Luka to establish the exact facts at the locality of the incident, in co-operation with the civilian authorities, in order to carry out the necessary measures which would prevent repetition of such, and similar cases would be in the interest not only of our authorities but also in the interest of the German troops.
To safeguard the harvest, it would be best to grant permission to the population of this village to return to their homes, where the population would erect some temporary housing.
I would appreciate your informing me whether permission will be granted the population to return to the village.
On this occasion, I again request the general to undertake such heavy punishment of the population only in cases where there is no doubut concerning the co-operation of the population with the partisans.
Because, if such cases happen repeatedly, consequences will ensue which are not in the interest of the pacification and of the suppression of the insurgents. It only would strengthen the revolt against the troops and against Governmental authorities and provide the enemy with material for propaganda against the German and Croatian Troops.
Ready for the Homeland!
Chief of the Civilian Administration.
Benak."
Then on 16 September 1943 from Corps Headquartes XV Mountain Corps, communication by this unit to the Chief of Civil Administration with Corps headquarters XV Mountain Corps, Minister Benak, and it refers here to the earlier letter, and at this time the unit in question, the XV Mountain Corps was commanded by one Lueters, it is believed. Yes, if your Honors, please, Lt. General Rudolf Lueters, was commander until November 1943:
The inquiry which was instituted concerning measures taken against the village of Vecici and which is now completed has established the following:
The rear guard of a German Company received fire from almost every house in the Northern part of Vecici. As has been established, almost the entire population participated in this treacherous fire attack which took place after the majority of the company had passed through. The company commander reports, for instance, that a woman offered him milk. After he had gone on for about 30 meters, the woman fired after him with a machine pistol. The woman was shot to death by a German soldier. Four soldiers who were captured during the attack were found, some shot in the head, some with broken skulls.
German woolen blankets, canteens and similar equipment of German origin were found in the houses of the village. Newly dug graves were found in the barns themselves.
It has been established beyond doubt that the German troops were fired on from the village by civilians and in particular also by women.
Thus, a reprisal operation was ordered against civilians. During the burning down of the houses, a large amount of ammunication exploded which is further proof of the participation of the population in the attack. Several inhabitants and Domobrans admitted that the detonations were audible during the burning down of the houses. During the carrying out of reprisal measures German soldiers were fired on even from the immediate neighborhood of the Mosque.
For some time, the village of Vecici has been know to be a hide-out for bands. That during the reprisal measures houses of innocent residents were also destroyed is possible and is based on the nature of such punitive operations.
If similar cases should occur the German Wehrmacht sees itself forced to order reprisal measures. According to reports of the Grossgespanschaft the inhabitants of Vecici have returned to their village.
(signed) Lueters And on the 22d August there is a communication from the Commander in Chief, Southeast, simultaneously charged with the command of Army Group-E, he was Loehr, which is directed to Commanding General and Commander in Serbia, he was Felber, whose Chief of Staff at that time was Geitner.
It is dated ss August 1943. The subject is "Levying of collective fines," and theres a reference to an inquiry from Felber to Loehr.
"I am unable to agree to your interpretation of the law. The Hague rules of land wargare clearly differentiate between collection government taxes (Article 48) levying of other taxes (Article 49) imposition of fines on the entire population (Article 50) and compulsory contributions which are not fines (Article 51). The limitation of Article 51 which states that contributions shall be collected only under a written order and on the responsibility of an independent Commanding General refers only to compulsory contributions in the sense of Articles 48 and 49 nor to the imposition of a fine in the sense of Article 50.
This legal interpretation also corresponds to the practical requirements. The revolts and unrest which are constantly flaring up in the Southeast area make it necessary for the local territorial office (Administrative Sub-area Headquarters or Town Headquarters) to be in a position, if necessary, to apply severest reprisal measures immediately. This also includes the imposition of fines on communities and associated communities.
Even if Article 51 should refer also to Articles 48 and 50 the requirement has been fulfilled by the Commanding General having transferred under a written order, the establishment of the penal contributions to the Commandant of Administrative Sub-area Headquarters. This does not affect the responsibility of the Commanding General toward his superior authority. Consequently, the prerequisites of Article 51 are fulfilled.
Anyway, if, in the course of combat actions, war contributions are imposed, Article 42 will be mostly a plied, i.e., Article 51 will not be applied because the combat zone is not occupied territory in the sense of Article 42.
I have no objections whatsoever against the decrees of 17 July 1941 and of 1 March 1943 issued by the Commanding General and Commander Serbia nor against the proposal of the Administrative Sub-area Headquarters.
(signed) in draft Loehr.
I propose at the close of the exhibit to read in some sections that have been referred to. However, I think it would be best, before commenting on it, that we pass on with one exception: I would like to direct the Court's attention to the use of the term "combat zone" here in the second last paragraph and it is submitted that evidence will be offered or ellicited at a later time as to the meaning of the term, "Combat zone" as opposed to the "Communication zone" or the "zone of interior." This is a standard military term which is employed both in the German army and in ours.
Then, the balance of the exhibit is just the last page which has the various entries on it which follow -- there is typed: "The Commander in Chief Southeast, Simultaneously charged etc.," and there is handwritten the diary entry number and the date appears to the right and it is stamped "Secret": and then there is the distribution list, and this is in August of 1943 and it's to be noted that there is a copy sent to the Commanding General and Commander South Greece who, it is submitted, at that time was the defendant Speidel.
Then there is the certification and an additional stamp with reference to the Commander of German Troops in Croatia, which appears on page 71, and then the notation is handwriting at the bottom of 71:
"Pursuant to the report to Chief of Staff, no written order to the Divisions will be issued. Agreement of the administrative Sub-area Headquarters Zagreb and Brod is the affair of the German Plenipotentiary General."
With the Court's permission, I should like to read into the record now the sections of the Hague Convention, which is the convention relative to the laws and customs of war on land, together with it's annex; and I have here a German for the interpreters. These are all short sections. There are some 14 of them and there are numerous references in the communication to sections under this heading; specifically 42, 48, 49,50 and 51.
Article 42 of Section III, which is part of the annex to the convention respecting the laws and customs of war on land, that annex as to the laws and customs of war on land, Hague Convention No. 4 of 18 October 1907; and, for the convenience of the Court, it is: 36 statutes 2277; Treaty Series No. 539; Malloy Treaties, Volume II, page 2269; and the German copy which the interpreters are reading from is taken from the German Library and this copy which I have here is War Department Technical Manual No. 27-251, 7 January 1947 and it is published by order of the Secretary of War, by G.C. Marshall, Chief of Staff, and bears the official designation by J.A. Ulio, Major General; and then "The Adjutant General" of the United States Army.
Article 42: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."
Article 43: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
Article 44: "A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defence."
Article 45; "It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power."
Article 46: "Family honour and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."
Article 47: "Pillage is formally forbidden."
Article 48: "If, in the territory occupied, the occupant collects the taxes, dues and tells imposed for the benefit of the State, he shall do so, as far as is possible in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration or the occupied territory to the same extent as the legitimate Government was so bound."
Article 49: "If, in addition to the taxes mentioned in the above Article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or for the administration of the territory in question."
Article 50: "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."
Article 51: "No contribution shall be collected except under a written order, and on the responsibility of a Commander in Chief. The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force. For every contribution a receipt shall be given to the contributors."
Article 52: "Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the ressources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied. Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible."
Article 53: "An army of occupation can only take possession of cash, funds and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.
All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of ammunitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made."
"54" has to do with submarine cables and I don't think we have to worry about that.
"55: The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estates, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."
And the last article, 56, which is also the last article of the annex: "The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings."
Turning now to page 100 in the German and 73 in the English, we offer Prosecution's document No. NOKW-931 as Exhibit 372 in evidence. These are reports of the 100th Jaeger Division to the 21st Mountain Corps, dated 14 and 16 December 1943; and this corps at that time was under the 2nd Panzer Army which was commanded by the defendant Rendulic.
First is a supplemental report to the report of 12 December which had been made at an earlier time.
During area operations ..........
(About one sentence missing - film unintelligible.)
The next page, 74 in the English and 101 in the German, again from the 100 Jaeger Division to its parent unit the XXI Corps, the daily report 1c:
"Reprisal measures for attack on the road patrol in Elbasan; Execution shooting of 4 Communists and advancing the curfew for civilians to 1600 hours."
While there are some initials on this original, these are actual typings on telegraphic communication blanks other than the units. We have been unable to identify any of them as of this time.
Then turning to page 102 in the German, and 75 in the English, we have document NOKW-073, which is offered as Prosecution Exhibit 373.
These are daily reports of the various subordinate units to the 2nd Panzer Army with reference to the retaliation measures which were made in December, although one of them refers back to a November date. The 2nd Panzer Army was at this time commanded by the defendant Rendulic.
The first report is from the 69th Corps and at this time that corps was subordinate to the 2nd Panzer Army and was commanded by the defendant Dehner.
The report for 3 December 1943, which is a supplement to an earlier daily report of 29 November, states that:
"According to the report of the Croatian State Commissar for Security of Railroad Traffic, 10 persons from the bordering communities will be hanged at the locality of the incident in reprisal for this attack against a troop transport. The State Commission also intend from now on to levy fines on the Communities concerned since, according to his interpretation this will be felt considerably more."
Then the daily report of the 16 December, the 187th Reserve Division, which at that time was subordinate to the 69th Corps, which in turn was subordinate to the 2nd Panzer Army, speaking for the area, "Tuzla":
"According to statements of inhabitants a band group of 1500 men has retreated from the area of Crna Bijaka into the area of Krivaca and Dzinrize". In reprisal for a mine attack near Bajic, 6 hostages were hanged at the place of the attack;
Then there is a daily report of the 69yh Corps for the 23rd, again citing the activity of the 187th Reserve Division, one of its subordinate units:
"Area Brcko: Attack of band group (400 men) on Stresinci near Jamena repelled partly in hand to hand combat."
"Area Virovities-Bjelovar-Keprivnica: (December 21, 1943) Majuro occupied by band, approximately 1000 men. Armament in area southwest Bjelovar. In Bjelovar on 22 December, 25 hostages and people suspected of being bandits shot to death as reprisal measure for attacks by bands."
Then on page 103 of the German, 77 of the English, again from the same units, the 69th Corps and 187th Reserve division:
"During mopping up operations by the II Ustasha Brigade and by police units near Djakovo several villages were burned down as a reprisal measure, 2 bandits captured."
Then we have a report of 15 December, with reference to the action "Panther", concerning the 373rd Infantry Division, part of the 15th Mountain Corps, which at that time was commanded by the defendant Leyser:
"During the night propaganda vehicles were employed; 4 deserters."
Then over on page 103, for the 373rd Division again, still of the 15th Corps:
"Base of Kola taken by bandits during the night of 13 to 14.12.
9 Croatians dead, 33 Domobrane and 2 officers missing. German relief forces occupied Kola without contact with the enemy but Croatians again evacuated Kola. Enemy attack allegedly was carried out by 1500 bandits."
Then for the 69th Corps:
"Since 8 December 1943 stronger sabotage activity against main railroad line. 173rd Reserve Division seized 220 hostages for attack on railroad near Putinci."
This 173rd Division, we have not referred to it lately, however, that is one of the three divisions along with the 187th Reserve and originally the 1st Cossack, which was subordinate to the 69th Corps which was a corps of the 2nd Panzer Army, and your Honors will recall at the commencement of this book, the reports from the First Cossack Division were being made to the 15th Corps, and although we have never found the order transferring that Division from the 69th to the 15th Corps, the earlier reports which were contained in Book 14 for actions in the early part of 1943, were made from the 1st Cossack Division to the 69th Corps.
That, if Your Honors please concludes this book, and we are endeavoring to get the documents for the next book. It is just a matter of bringing them up here. I do not know where they are.
Dr. Laternser is here to speak.
DR. LATERNSER: Your Honors, after looking through the translations, on page 101 of the English document book -- I am sorry, on page 74 of the English document book, the German word, "uebergall" has been translated, "attack". That is the first case. A second case, on page 76 of the English Document Book, at the top of the page, the word "Ueberfall" has again been translated by the word "attack".
The third case is on page 76 of the English document book, and is the word "Bandenueberfall" translated in the text by "attacks by bands," On page 78 of the English document book, in the center of the page, the word "Fuer vahnanschlag bei Putinci" is translated by "attack on railroad".These four translations, I would be grateful if these translations could be submitted to the interpreters.
MR. DENNEY: We have no objection to submitting them, your Honors. There is one point I would like to make. I have spoken to Dr. Laternser about if before. I think it is only fair that when he comes up with a translation disagreement, if he will just call our attention to the German text with which he disagrees. Now here it is obvious that he finds four translations of the word, "attack" as improper. The interpreters hear it and their first reaction when they get the German is, "Well, what different can we find than 'attack' to use", whereas if he will come up, -- I have no objection at all to any trouble or fault ho wants to find with our translations. We are certainly trying to make them as proper as we can, but if he will just come up and says, "I want the word "Bandenueberfall" on page 102 of the German translated; or I want the word "Eisenbahnueberfall" on page 76 of the German translated, so that the translators at least can go into it with an open mind, I do not think that request is unreasonable.
PRESIDING JUDGE CARTER: You may send up the original. We will have it interpreted.
DR. LATERNSER: From what the Prosecutor has just said I want to say this; I want to add something. I believe I did hot proceed in any other way, I pointed out the pages and the places to which I objected, and I did not choose any other way. I also have an interest that the translation is done in the proper way.
THE PRESIDENT: (JUDGE WENNERSTRUM): I think we will take our morning recess while you get the pages and lines.
MR. DENNEY: If Your Honor pleases.
(A RECESS WAS TAKEN FROM 1105 to 1115)
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
THE PRESIDENT: (JUDGE WENNERSTRUM): Judge Burke and I regret to announce that Judge Edward F. Carter has received a cablegram that his brother in America was recently killed in automobile accident. Naturally Judge Garter is deeply affected; and out of respect to him, and because of his and our wish in the matter, the Tribunal will stand adjourned at this time until 9:30 tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until 9:30 o'clock tomorrow morning (THE TRIBUNAL ADJOURNED AT 1117, TO RESUME
SESSION TUESDAY, 5 August 1947, at 0930) Official Transcript of Military Tribunal V, Case VII, in the matter of the United States of America against Wilhelm List et al, defendants, sitting at Nurnberg, Germany, on 5 August 1947, 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, you will ascertain if all the defendants are in the Courtroom.
THE MARSHAL: May it please your Honors, all the defendants are present in the Courtroom.
THE PRESIDENT: You may proceed, Mr. Denney, with such matters as you may desire.
MR. DENNEY: May it please your Honors; Dr. Laternser I wonder if you step up and we can look at these translation notes and make sure that I have them all properly marked. Dr. Laternser?
If your Honors please, at this time I would like to hand to the interpreters Exhibits 372 and 373. The word which appears in Exhibit is on the third line from the last of the last page of the Exhibit in the German and is the word "Ueberfall."
And in 373 the first word appears on the third page, counting this title page as one, and is on the last line of that page, the word "Bahnanschlag."
The next word is on the sixth page and appears in the last line of Paragraph D, and it is "Ueberfallstelle."
And the last word appears in the last line of Paragraph B on the last page of Exhibit 373 and is the word "Bandenueberfalle." And I would ask the interpreters to translate those words.
THE PRESIDENT: If the interpreters will please state the line and page of the English documents, that will be helpful to the Tribunal.
MR. DENNEY: The first word, Your Honors, is on page 74 of the English, Document NOKW-931, Exhibit 372. It is the fourth word in the paragraph which appears at the bottom of that page .... "reprisal measure for attack." And the second is on page 76 of the English, Document NOKW-073, Exhibit 373 in evidence. And it is the third last word on that line which is underlined. "Attacks." The third word is the third and fourth words on page 78 of the last page of Document Book 15. The same document, the same exhibit. The first on the second last line under the entry of 273 Infantry Division. The second word in the last sentence, "attack", and the fourth word is the fifth word from the end of the entry under the 69th Reserve Corps, "attack."
INTERPRETER SCHAEFFER: Page 74 of the English, 104 of the German, the German word "Ueberfall" would be translated as "surprise attack." The sentence should then read: "Reprisal measure for surprise attack on the road patrol in Elbasan..." That is the first place. In the second case in question, on page 76 of the English Document Book, page 102 of the German Document Book, the word "Banddenueberfaelle" should be translated as "surprise attacks by bands." The sentence should then read: "21 December. In Bjelovar 25 hostages and people suspected of being bandits shot to death as reprisal measure for surprise attacks by bands."
The third case is on page 78 of the English --
MR. DENNEY: Page 58, it can't be on 58.
INTERPRETER SCHAEFFER: Page 78.
MR. DENNEY: I am sorry, I misunderstood you.
INTERPRETER SCHAEFFER: And page 103 of the German, the word in question reads "Bahnanschlag," "surprise attack on railroad." The sentence should then read: "173 Reserve Division seized 220 Hostages for surprise attack on railroad near Putnic." And the last case in question is on page 102 of the German, and the word in question is "Ueberfallstelle". That is "the spot of the surprise attack."