"Operation 'Ferkel': Subsidiary operation. The night of 10.11. Band attack of 1500 men supported by anti-tank guns, trench mortars and artillery against the entire front south of Brcko. Simultaneous band attack of 3 to 4 hundred men against bridge head east of Brcko. Enemy had good leadership.
"173rd Reserve Division: 20 hostages hanged and 20 shot to death in reprisal for railroad sabotage near Stara Pazova" -- and then it refers to the daily report of the 4th under paragraph II with reference to the same division, the 173rd -- "and for attack on patrol 40 kilometers southeast of Vukevar," which refers to the daily report of the 9th, paragraph III, also the 173rd Reserve Division.
And then we have an entry for the 1st Cossack Division which was the 3rd division operating with the 69th Corps at that time:
"9 bandits shot during reconnaissance operation on Punitovci."
(Mr. Denney) Then on page 68 of the German, 28 of the English, there is a report for the 14th of November, and then if defense counsel will turn to page 69, your Honors, there, the 187th Reserve Division:
"13 hostages hunged in reprisal for attack on passenger train 2 west Okucani, see daily report of the 13th".
Then on page 70 of the German, 28 of the English, report for the 16th of November, and then turning over to page 71 of the German:
"187th Reserve Division: During reconnaissance on Soljani 14 Northeast Broke, skirmish with bandit group three to four hundred men. Escaped Volksdeutsches girl reports: about 500 bandits attacked Soljani in the afternoon hours. Volksdeutsche murdered, families of members of the Ustasha kidnapped."
"1st Cossack Division: During reconnaissance operation in area northwest Djakove 2 bandit leaders, 1 courier with records of the communist detachment Esseg and 12 bandits were captured. 24 bandits and 1 Cossack deserter shot to death."
I would like to call the court's attention to the fact that the First Cossack Division is appearing, operating again under the command of the 69th Corps.
If your Honors will recall, this latest division was under the 69th Corps, and later we had some reports where it was reporting to the 15th Corps, and the 15th Corps was sending their reports on, and now, starting with the entry of the two days before this, the 11th of November, again we see the first Cossack Division returning apparently to the 69th Corps.
It is submitted that if they are reporting to them, if they are not an organic part of the Corps, they are at least attached to the Corps, or assigned to the Corps for this period.
On page 72 of the German, page 30 of the English, report for the 26th of November-
DR. LATERNSER: Your Honor, May I look for a short time at the English document book? Your Honor, after just a fleeting glance at this, may I say, the German document book is much more extensive.
In our German Document Book we are on page 71, and in the English Document Book, at the moment, 29 is being heard from; normally this should be the other way around. Since the translating notes take about one page, so that if the document books have always the same contents, the English Document Book, because of these certificates, must be more extensive. This was the usual situation which I found in the former document books.
Now it seems that things are quite different. The German document book is much more extensive. It seems to me that in the English document book something is only entered in order to be more exact; it seems to have been entered if there is something which the prosecution wishes to present as an incrimination, but if the reports are so picked out, and only, the last part is submitted, why, the Tribunal does not see the basis for this evidence, and then the court cannot judge what it is all about.
I think that I will ask the Tribunal, -- must ask the Tribunal, to have a break here so that I and my colleagues can examine the two document books a little more closely than I was able to do now.
It is really so that the German document book is two or three times larger than the English document book, and then I would have to protest against this. I would therefore ask your Honor that the Court have a recess for a short time so that we can compare the two document books.
PRESIDING JUDGE BURKE: Is your difficulty, Dr. Laternser, concerned particularly with the fact that you have so much more volume that it become difficult to follow the observations made by the prosecution?
DR. LATERNSER: No, that is not the real reason. The real reason is that something which I have not been able to check yet, -- the way in which the English document book seems to have been compiled, can give a false impression. Thus, for instance, when the reports contained in the German document book say that the bandits have had great activity, then, of course, measures have to be taken by the occupation forces, but the Tribunal gets a quite wrong impression if the prosecution leaves out the activities of these bandits, which, for instance, are contained in the German document book, and only enters those measures which are taken against the bandits.
So, your Honor, it is not that we cannot follow, but in my opinion, from my first impressions, this English document book is not so compiled as it should be from the point of view of the defense, in order not to give an entirely wrong impression.
PRESIDING JUDGE BURKE: It seems to me on that subject, Dr. Laternser, we are not assuming to take for granted any observations or conclusions stated by counsel for either side, but will require some formal and more definite type of proof, so I think that you need not be concerned with its effect upon the Tribunal.
And as has been pointed out to me by my colleague, Judge Carter, you can cause any other matter to be translated and offered on your behalf or on behalf of the defendant.
DR. LATERNSER: I see that, but I also think that if the defense then at some other stage of the proceedings wants to get parts translated which seem to us important, then the translation department will have an awful lot to do, and then it will not be possible to that extent which in our opinion we think necessary.
PRESIDING JUDGE BURKE: The translation department will have to bear the additional burden that may be placed upon them.
DR. FRITSCH for the defendant Rendulic: Your Honor, I would like to support this application of my colleague, Dr. Laternser. In my opinion the difficulty in this question is as follows: If it is as Dr. Laternser states, then the Tribunal will have completely different documents, that is, more or less than the defense, so that the defense is not in a position to assume that these documents which the defense has, also go to the Tribunal. From this, difficulties may arise.
JUSTICE CARTER: Mr. Denney, the fact is, that this whole exhibit if offered in evidence isn't it?
MR. DENNEY: Yes, your Honor.
JUSTICE CARTER: You are reading a part of what has been offered in evidence?
MR. DENNEY: Yes, your Honor, we submitted the whole thing, everything that is in their book. The only point is we do not translate every part, and I disagree with Dr. Laternser's statement that we just present our side of the case. There are certainly plenty of things being read in here to show activities by the people opposed to the German forces down there.
We just finished stating about attacks on railroad trains, and things like that. He has had the document book, -- this particular one, -- for three or four days. I have no objection to his reading anything in, in addition, that he wants to.
JUSTICE CARTER: It seems to me that the prosecution can read what they care to read from an exhibit and then anything that the defense wants to read in addition thereto, it is up to them to get it, and have it read into the record.
MR. DENNEY: That is the way it also seems to us, your Honor.
DR. LATERNSER: Your Honor, I understand this regulation, but how should the defense be in a position - that is, how is the defense to show to the Tribunal in a proper way - the connections that exist between what the Prosecution reads and what the defense has to say to this. In my opinion, regarding the extent of the material submitted, this is an impossibility because if, as the Prosecution has just said, it submits the whole of the documents, of course they can do that, but the Tribunal can't really take in the whole of the documents, because I must assume that the Tribunal has not complete command of the German language, and it is simply impossible, and it doesn't help the Tribunal if the documents are submitted in German. And, therefore, if we are to point out the connection to the few lines which the Prosecution has read, we must be able to give the reason for this. May I please quote another small example from which the Tribunal can certainly see what I mean? For example, the Prosecution states that Village X was burned to the ground; and then in this they say, or they think they say that this is a war crime. But there is certainly no war crime when the troops were shot at from this village. Under these circumstances it constitutes no violation of International Law. The Prosecution ...
MR. DENNEY: It isn't proper to start arguing the law now. Your Honors have directed before that the document be submitted, and the law will be argued later. Dr. Laternser's view of the law and ours are substantially different.
JUDGE CARTER: Well, Dr. Laternser, it seems to me that if you have something in one of these documents that you want offered in evidence as part of your defense you can say that you want to offer additional parts of exhibit number so and so, found on page so and so, and put it in the record. But why can't you handle it that way and connect it up that way?
DR. LATERNSER: I really don't see that this is possible, Your Honor because then the Tribunal would have about twenty document books which the Prosecution has submitted to them, and then come the German additions for about twenty or twenty-five document books.
How then should the Tribunal find out what belongs to what, and for this reason, I think that it is extremely dangerous if the Prosecution only reads the few lines from which something is to be assumed, while the reason for this, the basis for this, the basis for this, is in the German and remains completely ignored. I don't think this procedure is right.
PRESIDING JUDGE BURKE: It is the feeling of the Tribunal, Dr. Laternser, that we have no desire to prevent you from offering such portion or portions of the various documents or exhibits as you may feel may be material or competent on behalf of the defendants. But at this time to attempt to segregate the views of the Prosecution and the defense in such a fashion that the cause for that might be given, I think will be difficult if not impossible, and we will not be unmindful of the fact, when you come to present your case, that you have the right to supplement such observations or proof or alleged evidence as may be offered to this by the Prosecution.
DR. LATERNSER: Yes, Your Honor, but may I please point out something else which I have just been told by my colleague? Since the document books -- the German and the English Document Books - are not the same, then the defense must be given the English Document Books first of all in order to find out which passages the Prosecution has included in the document books, and then there's a further difficulty - not all of the defense counsels, or only a few of them, have a good command of the English language so that they could find out to which passages they would like to make additions. And there's a difficulty which arises from the discrepancies in the two document books. We wouldn't have to point out only small additions, but such important differences, as in this case, the defense thinks they ought to point out.
PRESIDING JUDGE BURKE: Let me inquire of Dr. Laternser, do you not also receive a daily record of the proceedings of the Tribunal?
And are there not available for your use competent interpreters from German to English, and English to German - or have members of your staff?
DR. LATERNSER: Your Honor, it is true that we receive the protocol of the session, and we also receive them in German, it's true.
PRESIDING JUDGE BURKE: I think it is the view of the Tribunal, Dr. Laternser, that we will proceed as we have in the past, with the suggestion that was made by the presiding judge on the second day of the hearing of the Tribunal, and you will be given full opportunity to present such testimony or proof or such competent or material evidence as may bear upon the proper defense of any of the defendants in this case.
DR. GAWLIK: Your Honor, then I would ask that, first of all, a regulation should be made that if the English Document Book contains only part of the events, it should be made sure that this particular parts are contained in the German document book. Then, we can assume that what we have in the German document book is also contained in the English document book. For otherwise in our closing speech we could refer to the German Document Book - a certain sentence in the German Document Book - and then perhaps that sentence might not be in your Document Book, Your Honor. The two document books must be the same.
PRESIDING JUDGE BURKE: I thought the Tribunal had made it clear that you are privileged to use any part of the document book that you desire to make available for the information of the Tribunal?
DR. GAWLIK: Yes, Your Honor. Yes, we don't know which parts; we would have to compare the English and the German Document books to see that the same exhibits are there.
PRESIDING JUDGE BURKE: Have you not been presented by the Prosecution with all of the papers or documents making up the document books in German?
MR. DENNEY: Your Honor, in their document books sometimes when we have translated them ourselves and not sent them to the Translation Department, the complete German text does not appear. However, in cases like this, when they have been sent down to the Translation Department, it is merely a matter of mechanics. They translate everything. When they translate one it goes in completely. They have available in them, it is true, the complete text.
PRESIDING JUDGE BURKE: That is the inquiry that I directed on behalf of the Tribunal as to whether all of this materials is available for counsel of the defense.
MR. DENNEY: Yes, Your Honor, it is all available. Part of it is in their book, and sometimes a complete exhibit will appear in our book and sometimes it won't be in the document room. They're certainly entitled to see any of these, and then, of course, any exhibits which Major Hatfield may have on the complete paper.
PRESIDING JUDGE BURKE: Has any difficulty been experienced by you in securing the material or the information to which Mr. Denney has just referred?
DR. GAWLIK: No, Your Honor. It's not a question of whether we have difficulties in obtaining any kind of material, but that a false impression arises with us. We assume by reason of the German Document Book, that the whole document book is submitted to the Tribunal, and, therefore, by reason of this mistake we will not submit the additions to the Tribunal, and then, in the final plea, differences will arise. I am working on the assumption that what is submitted to the Tribunal in the English Document books is only that which is contained in the German document books. Both document books must be exactly the same. If not, we get the Prosecution's reading only parts. But the German document book must be a literal translation of the English document book, or the other way around.
PRESIDING JUDGE BURKE: In that event, aren't you dictating the method in which the Prosecution should present its case?
DR. GAWLIK: No, Your Honor, we only want to know. We wouldn't dream of telling the Prosecution how to present its case, but we only want to know what is submitted to the Tribunal. And this should be seen from the German Document Book because the one document book should be the translation of the other. One document book shouldn't contain more than the other. That's where the difficulty arises.
A proper translation must coincide. If the English document book is a translation into the English or the English is a translation into the German, then both must be alike.
What the prosecution submits -- that is, of course, their affair but I would ask your Honor to put yourself in our position. We assume from the German Document Book that the whole document book is the same as the one submitted to the Tribunal.
PRESIDING JUDGE BURKE: I trust that you will give the Tribunal sufficient credit for having intelligence enough to determine between what is and what is not contained and what omissions have been made in the English Document Book and supplied by you - that it is not an insurmountable obstacle to our understanding of it. I think the ruling that has been made by the Tribunal will stand unless and until some further reason is assigned why a change should be made at this time.
You may proceed.
MR. DENNEY: Then turning to page 72, 73 and 74 in the German, and page 30 in the English, the report for the 26th of November from the 173rd Division, this is on page 172. I am sure if defense counsel will mark as I go along what pages I give them, they can certainly see what is in and what isn't in the exhibit. I see some seven of them here in court, and I will be very glad to indicate exactly where they are on the pages.
PRESIDING JUDGE BURKE: I think it might be a matter of accommodation to the convenience of counsel for the defense if you would do that and since there appears to be a difference in the number of pages in the German Document Book and the American Document Book, I think as a matter of right they are entitled to that courtesy.
MR. DENNEY: Well, I was just suggesting, your Honor, to help them, This appears under paragraph II of the daily report for the 26th. It is the 173rd Division. This refers to paragraph 9-i under section II of the indictment.
"Village burned down in reprisal for attack on police in Grgurevci. Non-volksdeutsche residents also had participated."
The next entry is the area of Tuzla, which appears under the 187th Division. It is after the paragraph numbered "b". "Reconnaissance results: Zivinice occupied by 200 to 300 bandits."
Over on page 73 of the German, opposite the small letter "c" -Area Derventa -- "Bandit attack (200 to 300 men) between Lupljanica and Pocivalka repelled by units of the II Cossack brigade."
Turning to page 75 of the German and 31 in the English, this is a daily report for the 27th. It is II, out to the left, and the 173rd Reserve Division. Perhaps 76 was turned and I don't know why the page shifts. It is the daily report for the 27th of November on page 75 or 76 under II 173rd Reserve Division.
..... Despite 2 hours loss of time due to road blocks and to destroyed bridges near Susea, Battalion of the II/901 early in the morning made a surprise thrust from the north into the bandit village of Grabovo. The village was sealed off on the north and south and the mopping up operation accomplished. 35 fleeing bandits shot to death. Svilos cleared of the enemy. In accordance with the desire of Croatian authorities both villages burned down as pronounced bandit rests. Lezimir cleared of the enemy. Bandits fled. During reconnaissance against St. Divos a platoon of the 901 Regiment shot 5 bandits and captured 5 of fleeing bandits, Lezimir was burned down by the Police.
. . . . . . . .
Then on page 78 of the German and on page 32 of the English, report for the 29th, 187th Reserve Division -- this is under IIc, "Area of Virovitica - Bjelovar - Koprivnica. Between Narta...."
It is on the bottom of page 78 in the German and the top of page 79.
"Between Narta (6 km south southwest Bjelovar) and Cazma enemy forces consist of 4 communist brigades at least .... Results of plane reconnaissance at 1015 o'clock:
about 500 - 1000 bandits in Cazma."
And then following right along after that under "Virovitica: Recruit transport going from Bjelovar-Nova-Gradiska attacked during the night 26.27.11. near station Vrbovec. Attack repelled and destruction of the station of Vrvovec prevented. Own casualties: 3 dead, 5 wounded. Enemy losses: 6 dead counted. 15 people suspected of belonging to bands were shot to death in reprisal."
Page 81 of the German, page 33 of the English, report for the second of December, 1943, opposite II, 173rd Reserve Division -- this is right at the top of the page on page 81 of the German under II, the paragraph that starts out "Als Vergeltung."
..... As reprisal measure for railroad attack between Nova Pazova and Batajnica -- see morning report of 13.11. which is an earlier part of this document -- 4 inhabitants from Jarinovci to which the tracks led - hanged on 2.12.43. 5 of 9 fleeing bandits were shot to death. 2 shelters constructed into the well there were destroyed. This operation was executed by Panzer Platoon 64 and units of the Reserve Grenadier Battalion.
And then we turn over to the next page in German which is 82, the second paragraph on the page which refers to the II Cossack Brigade, follows II. It is the 7th line on page 82 in the German, still on page 33 in the English.
.....Enemy contact occurred during reconnaissance thrust of some squadrons in the area west of Doboj near Godakovac. Village taken and destroyed after hard fighting, Losses of our own: 5 wounded, 1 squadron leader wounded. While this report is being made the operation is still in progress.
. . . . . . . . . .
The turning to page 84 in the German, page 34 in the English, it starts right at the top of the report.
It is under II, the area of Tuzla, and then drops down there to the last paragraph under IIa which is eight lines up from the bottom of the page on the German 84.
"During fighting around Kladanj bandits in German uniform used combat methods as reported previously in the daily report 5.12. (they approach calling out: 'Do not shoot. Deserters' Then they open fire at short range.)" Then under D which is on the next page, it is the sixth line down in the German book on page 85, "The II Ustasha Brigade -- The villages of Pistana, Kokocak, Drenovac, and Rijenci from which resistance emanated during mopping up operation by Panzer Gren.
Training Regiment 901 were burned down by police as reprisal measure."
Thirty-five in the English, 86 in the German, paragraph I for the daily report of the 15th of December. It is the first paragraph in the German text too, under I. "The situation on the main railroad...."
15 December, page 86 of the German, first paragraph on the page.
.....The situation on the main railroad - in particular near Ivanicgrad and in Syrmien remains serious. Railroad sabotage (blasting) was executed in accordance with captured order (see daily report 15th) issued by bandit leadership. The weak security forces available wore unable to prevent it.
Then under paragraph 187th Res. Div.: Area of Tuxla: - and it is in 'a' and it is the fourth line in that paragraph which starts out "Nacht Einwohneraussagen' .....According to statements of residents a band group of 1500 men retreated from the area of Rijoka to the areas of Krivace and Dzimrlje.
. . . . . .
And under D which is over on page 87 of the German at the top of the page, and it is the last two lines of that paragraph, the 12th and 13th lines on page 6.
.....6 hostages hanged on the scene of the incident in reprisal for mine sabotage near Rajic (see morning report the 15th.)
. . . . . . .
Then going down to the II Cossack Mounted Brigade it says, three lines before the typed part 'Corps headquarters"-
..... 50 looting bandits in Socanica . . . . . . .Then turning to page 88 in the German, 36 in the English, and this is the last page of the document, if we might finish it before we recess, your Honor, this is the report for the 22nd of December, 1943.
This is a report of the 23 December 1943 and there it goes to the 2nd Panzer Army and the German General Plenipotentiary in Croatia, and to indicate that copies were sent to the other headquarters which have been mentioned before and I believe one or two earlier reports; the last 3 reports have gone only to the 2nd Panzer Army and the Commanding General in Croatia. Otherwise they went as originally stated. This, under Roman numeral III; which is on 88 in the German, paragraph A under the 187 Reserve Division:
"Area of Brcko, 20 December. Attack by hand group (400 men) on Strosinci and Jamena partially repelled in hand to hand combat."
Then under "b" which is the next paragraph, 21 December:
"Sjelovar: 25 people suspected of being bandits and hostages shot as reprisal measures for band attacks."
And here is the exhibit I hand to the Secretary-General.
PRESIDING JUDGE BURKE: We will take a recess here until 1120.
(a recess was taken)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed, Mr. Denney.
MR. DENNEY: May it please Your Honors, I return now to page 90 in the German book and page 37 in the English. This is Document NOKW 657, which is offered as Prosecution Exhibit No. 376. This is an order from the 69th Corps, which was commanded by the defendant Dehner, which in turn was subordinate to the 2nd Panzer Army commanded by the defendant Rendulic, which in turn was subordinate to the Army Corps-F commanded by defendant, former Field Marshal von Weichs.
Actually, there are two orders, both from the 69th Corps, and it bears at the end typed, "fuer das Generalkommando," which means for the Corps Headquarters, the Chief of General Staff, signed "Steinbeck," who was Chief of Staff of the 69th Corps.
Your honor will recall in Exhibit 375, where at page 4 of that exhibit there appeared a signature of Steinbeck as Chief of Staff, 69th Corps, and while all of this is typed it appears that these are true copies which is signed by an unknown lieutenant in the Headquarters.
This is dated 19 December 1943, and it refers to a 1-c communication of the Corps of an earlier date, 27 November, and the subject is "Treatment of prisoners and deserters," and it recites:
Supplementing the order cited above:
1.) The fight in the Croatian area is a fight against bandits. They are an enemy who has taken up arms for the most varied motives. In addition to purely political-communist bandits there is a great number which has been driven into the forests by the concern for a bare existence, by the destruc tion or the endangering of their bourgeois life, or by a sudden upsurge of national or religious differences, etc.
The bands in the Croatian area thus differ thoroughly from the bands appearing on the Russian front."
I call Your Honors' attention to the mention of the Russian Front here.
2.) Measures of the unit have repeatedly frustrated propaganda for the enemy as planned by the unit leadership. It must not happen that bandits who arrive at the unit with leaflets asking them to desert and which should be valid as passes, are shot out of hand. This mikes any propaganda effort in this direction nonsensical. Even our own confidential agents bringing important news from band territory and notwithstanding their repeated assurances that they are in the service of the German Wehrmacht have been shot down "to simplify matters" i.e. without any investigation. Under such circumstances it is not surprising that
a) notwithstanding the discomforts which living in the forest no doubt entails, particularly during the winter months, the band nuisance increases steadily.
b) the fight itself increases in severity and stubbornness.
c) it becomes increasingly difficult to obtain information from the band territory.
d) in contrast to this enemy propaganda has no difficulty and enjoys groat success.
3.) The momentary confusion of the situation makes it necessary for the unit to realize that the unit itself is not in a position to judge individual cases.
The competent authorities must be unable to investigate deserters and prisoners objectively. This must be left to their discretion.
4.) Arbitrary procedure of the unit where the treatment of deserters and prisoners is concerned, leads to failure and will destroy the advantages which can be achieved by objective treatment.
For the Corps Headquarters The Chief of the General Staff signed Steinbeck.
And this is all typed, and then over to the left "Certified to be a true copy," and then an illegible signature, "2nd Lieutenant."
And then there is an order of 24 December, 1943, which is a 1-C order, and the subject, "Directives pertaining to the Treatment or prisoners suspected of belonging to Bands."
And this starts on page 91 of the German text and it is page 39 of the English.
Second subject: "Treatment of Persons who may be possible hostages"; and the third subject: "Use of Hostages as Reprisal Measures for German Soldiers killed in the Fight against the Bands"; and the directive states:
"An inquiry causes the Corps Headquarters" -- this is the 69th Corps -"to set forth as follows in order to unify methods in the Corps area:
"1 to 1) and 2): The Divisional Commander, or independent regimental commanders or the security sector in which the arrest has been made, is the sole and only authority competent to make decisions regarding civilians arrested during operations of the unit as suspected of belonging to bands and regarding the further treatment of them, In connection with the above, the following directives are laid down:
"to 1) a) Civilians whose activity as bandits or members of a band can be proved without doubt are to be considered as spies and as extremely dangerous. They are to be considered as hostages of the first category at the next occasion of reprisal measure, without it being necessary to take the security sector into consideration.
"to 2) b) Civilians who are proven bandit sympathizers are to be made available for reprisal measures as hostages of the second category.
c) Civilians who cannot be proved to have had any connection with bands, but who nevertheless give cause for suspicion, are to be transferred to Germany for labor employment. The Corps Headquarters has made inquiries with the 2nd Panzer Army" -- that is Rendulic's army to which Dehner's 69th Corps was subordinate -- "regarding the office which acts as the agent for labor employment in Germany. The divisions will be informed of the answer after it has been received."
And I call your Honor's attention to the term "divisions" here specifically because we have been able to get no distribution list for this order but it is submitted that the divisions to which he is referring are the 173rd, the 187th and the 1st Cossack Division, all in the 69th Corps.
"Prisoners innocent beyond doubt are to be dismissed from the hostage camp in the speediest way possible.