Q Well then, I had asked you or rather I would like to ask you whether in the trials which were pending, the facts, the evidence, was investigated?
A Yes. How can you arrive at a judgment without investigating the facts?
QQuite. I just wanted you to tell me that.
A They were investigated as far as was possible in this restricted period.
Q I have no further questions, Mr. President.
BY DR. WEISGERGER:
Q Dr. Weisgerber for Speidel. May I call you colleague and Mr. Witness? I just want to continue from the last question put by my colleague, Dr. Laternser. You told us that during 25 to 30 sabotage cases you acted as the defense counsel. Now were these -- or shall we say was that the total figure of cases where death sentences were imposed?
A Yes, those are the death sentence cases. And above those, there were other cases of life and 15 years' penal servitude and the least matter, say two loaves of bread -- there, even there a prison sentence was imposed.
Q Now before that when you described in detail the activities of the German courts and when you also described the attitude you had adopted with regard to the type of justice used, particularly in the sphere of sabotage, you said that you quite frequently missed it, that the Tribunal took into consideration the intention to damage Germany's armed force and didn't ascertain it for certain.
A I wasn't talking about damage done to Germany's armed strength. I was talking about sabotage, and sabotage is a general conception, as you know. These are cases of sabotage which appear in the nationalist period too. Let me mention Professor Muggler's name who, as you know, has written about the law of warfare. There he says sabotage never has a political character, never lost its political character.
Q Well, let's not go into this chapter too much. I am just going to ask you with regard to a case during which you, as far as I know, acted as defense attorney very successfully. Do you remember this following case? Immediately before the Action Crete, carried out by the German armed forces, had started, that is in May 1941, there was a Greek aged about sixty who was indicted because he had stolen a field cable from the airport at Athens which he had cut out. Do you remember that you defended him at that trial?
A Yes, I was the defense counsel.
Q Now can you recollect that on the part of the prosecution a motion for the death sentence was submitted?
A Yes, I remember that.
Q And may I ask whether you remember what punishment was actually given -- thanks to your defense?
A Four years I think.
Q Well, was it four or was it even less?
AAs far as I remember, it was penal servitude but that was before the Field Court Martial of the air force district Southeast. May 1941 - it was at the end of June that the trial started, Mr. Attorney, and it wasn't the Field Court Martial of the Commander South of Greece; it was the Field Court Martial of the General Voeln? I think after that time, and I will tell you exactly when the new jurisdiction began which was in November, 1942.
Up to that time, the Field Court Martial always demanded the existence of a subject momentum. The argument for the damage from the jeopardy of Germany's armed strength. In those days, jurisdiction was correct.
Q Well, you will probably be able to admit, won't you, that the judgment, the sentence of the Court was just considering the entire circumstances? I don't think we will have to go into this case in detail. I just thought I would refresh your memory.
A Let me answer your question with one word. In this case, it turned out during the trial that uneducated people were affected, an uneducated man who did not have the intent, could not have had the intent, who was not able to have such an intention.
Q I see. Now, Mr. Colleague, surely in the course of more than three years which you spent working with German Field Court Martials in Athens, you had contact with individual judges?
A Yes.
Q Could you -- or shall we say was the contact such that if you had any special request you could go to see the judges, that you could go and tell them "I have this and that suggestion to make"? Was that usually complied with?
A Before I answer that question, Mr. Attorney, I would like to ask you what you mean by contact. Do you mean personal -- do you mean that we have the possibility to visit the judge and discuss the case with him? Is that what you mean?
Q Yes, yes.
Q Well, we could but as far as requests were concerned, you have talked about -- that is something which I couldn't state. A German when he had orders to give and when he had orders he strictly adhered to them and I did not know that perhaps because I had beautiful eyes Dr. Rattke might in this case help me along. That certainly wasn't so.
Q Well, when I said request, I didn't mean that.
A Well, that is what I understood.
Q What I wanted to say, if you intended to call numbers of witnesses with regard to the case, could you previously go and talk it over with him?
A Do you mean the witnesses?
Q No, I mean the judge. So could you tell the judge "I have the intention of calling this and that witness" or so and so?
A A In practice, this is how it was, Mr. Defense Counsel. Before the trial, we put a piece of paper before the judges as was the custom before Greek courts containing the names of defense witnesses and usually I must admit the Field Court Martial would say "All right, I will let this witness testify and that has been the same everywhere.
During peacetime, if I have ten defense witnesses for a case or fifteen, then of course the Tribunal won't admit them all, but we could discuss these matters, yes, with the Field Court Martial judges but of course there were hard ones, severe ones, and milder ones; that depends upon the personality of the judge.
Q Were you in touch with Froheim, the Supreme Court Martial Counsellor?
A No. I once met him, personally. Incidentally, he was the supervising judge. He was not the president of the court. That was Dr. Kirchberg.
Q Now, esteemed Colleague, you know that for instance edicts appeared ordering the discontinuation of proceedings and that they were put before the Supreme Judge for signature?
A Yes.
Q And that his signature influenced the position whether the proceedings would continue or were quashed or whether proceedings would actually take place. Now who was -
A Excuse me, please, Mr. Defense Counsel. As far as I remember, though I can't tell you with exact certainty, I think the Field Court Martial Judges who would deal with the case -- they signed the indictment or would sign on behalf of the president to discontinue proceedings but I can't say that for certain. It is my impression.
Q You are quite right, witness. They signed on behalf of their superior judge, but at that stage, both in order to serve an indictment as well as to discontinue proceedings, the signature of the Supreme Judge was necessary.
A No, not of his. To discontinue proceedings, he did not have to sign, no.
Q Confirmation?
Q All right.
AAll right, we agree on that; that is something different. If, for instance, in the case Boros, the Tribunal had passed judgment up to that time, the Tribunal had an idea of what was going on but that judgment requires the confirmation by the Supreme Judge and that is the General. For that reason, we asked in our opinion to have it confirmed. That was the point not to have the judgment which had been passed confirmed.
Q And you knew that your opinion, your plea, your final plea would be put before the supreme authority?
A Yes, we did.
Q Well then, can you remember whether, on the strength of your plea, you had successes in mitigating the sentence?
A. Yes, yes I remember that General Speidel in some cases either changed the sentence or did not confirm it and at an unfortunate moment meant the case to be reheard or the punishment not carried out. But, I am not certain to whom we owed it. For instance, in certain cases which General Speidel will undoubtedly remember which concerned two Naval officers, Sazosch and Mithakis, there was for one of them, as far as I remember, clemency and I am sure General Speidel will remember , not thanks to me, but thanks to the Archbishop.
Q. You are speaking about the intervention oi the Archbishop. May I put this question to you?
A. May I interrupt , Mr. Defense Counsel. I admit to you it was due to argument on the part of defense counsel. That is something I can't deny.
Q. It was therefore, due to the argument of the defense counsel which the Supreme Judicial Officer acted upon?
A. May I ask you to repeat.
Q. The confirmation of a judgment was, therefore, partly due to your argument?
A. Yes.
Q. It was put before the Supreme Judicial Office and it was agreed upon?
A. Yes, and there were other interventions from higher sources.
Q. That intervention included those put forth by the Arch Bishop of Athens?
A. Yes, those are just the ones I mean.
Q. Do you know by any chance whether Archbishop Damatinos at the time turned to General Speidel repeatedly in order to ask him for clemency on some favor?
A. Yes.
Q. And did the Archbishop have success?
A. Such cases which I know where he was successful were due to the Archbishop's intervention.
Q. You also mentioned that certain defects had developed particularly late in 1943, as late as October 1943, shall we say. When the SS came to Athens?
A. Yes.
Q. Did you ever discuss with the Judge from Field Court Martial this development I am talking about?
A. Well, with regard to the steps we took in connection with Dr. Kirchberger we did discuss the matter because a responsible high ranking Judge like Dr. Kirchberger , you can't tell exactly what he thinks about the SS, and can't state an opinion about the SS. He announced we would be the subject of a report to the General.
Q. Did you think he meant he himself would report to the General?
A. He couldn't , he wasn't responsible.
Q. The way I understood your previous testimony was that you were saying Kirchberger promosed you that yourself would be able to report to the General about this.
A. No, you misunderstood me or probably it was due to the translation. We were going to be the subject of him to the General.
Q. Kirchberger promised you that on the strength of the information you furnished him and your fellow defense counsel.
A. There were two others. Probably three who took the stand. May be there w re more but I think it was three.
Q. You also mentioned it that quite often you attempted to deal with matters in the hands of the SS or SD by bringing them before the Field Court Martial.
A. Well, I wasn't saying I went to the SS.
Q. I understood you to say that you tried to persuade the Field Court Martial to use its influence to have these matters handled by them, is that what you meant?
A. You don't understand. You misunderstood me. It was our wish as defense counsel to put the matter before the Field Court Martial if we had q chance , whether small or big. I would rather be shot on the strength of a Field Court Martial than without any judgment at all. And it was because of this we went to Kirchberger at the time about this ugly boy I was telling you about.
Q. Then your point was that the supreme judicial officer up to a certain date in 1944 was General Speidel. Now you have told us in a number cases you obtained from him a reduction and changes of judgment and sentences. Now, upon a question put by the Prosecution to the effect whether General Speidel couldn't have given orders to the Police you announced, "I don't know what the jurisdiction in question was." You said your impression was he as the highest military officer in Greece, was also superior who could give orders to the Police.
A. If you will permit me I will give that more in detail. What I wanted to say was this. Greece was occupied territory, who is responsible for the observance of the Hague convention and the maintenance of order and justice no other than the superior.
Q. That was your personal opinion?
A. That is my personal opinion. I am now speaking about myself because I am questioned as a jurist and I am giving you legal argument. He was responsible for maintenance of order in the occupied territory as the highest authority.
Q. When taking this case wouldn't you say that this was a surprise on one side; General Speidel, as supreme judicial official give you a number of successes?
A. First of all ask me how many death sentences there were.
Q. Well let me ask you, can you tell us?
A. I admitted it. I had successes - 10 to 15. I am not going to argue with you about that.
Q. Now, witness colleague, let me call upon you to ask you this.
Earlier you said that in 25 to 30 sabotage cases in which you officiated there were death sentences. Can you tell us how many of those death sentences were confirmed and how many were not.
A. In sabotage cases confirmation nearly always came.
Q. But in a number of sabotage cases the sentences was changed?
A. Once, or twice -- hardly more. "Kaüm" , if I can use the German word.
Q. You can't actually remember.
A. The details, no, but I am telling you I can tell you the cases where I succeeded in getting clemency plea. In 8 cases of officers sentence was not confirmed or was there clemency.
Q I don't think we need to waste the time of the High Tribunal with details. You did score successes with the supreme judicial authority in a number of cases and this same man who held the highest judicial authority permitted the Police to become active in the form you described to us?
A In the Boros affair, and other affairs, certainly.
Q Do you believe that one and same man would act once like this, and once like that?
A No, Mr. Defense Counsel, the soldier as you know has to only according to his purpose, maybe in one case ho thinks it useful for his purpose have people shot as a warning to others this may not seem suitable to him under other conditions. He does not act on the basis of a legal principle, he acts from the practical point of view.
Q Witness after October 43, among your colleagues as is customary in lawyer circle, discuss the fact that these shootings were being carried out by the Pollice, SS and SD or did you just say General Speidel docs that?
A The rumors circulating among the population differed. We said of course, at that time already that the shootings were carried out by the SS, shootings without preceding judgment, we have to make this difference. Shootings without proceeding verdict were executed by the SS. But as lawyers we said to each other, who is after all responsible for this state of lawlessness in the occupied Greek territory.
Q Of course, you wore in Germany for a lengthy period. Just want to put that on the record. But in spite of that I do believe that the Police conditions in Germany as they were up to 1945 were unknown to you.
A I loft Germany in 1936.
Q You had told us earlier that persons who had been acquitted by a Tribunal or whose proceedings had been quashed had been handed over to the SS.
A No. The SS was not there at that time. I was talking about the period of January 1943. At that time no SS was there.
Q To whom were they handed over?
A To the Secret Field Police - a military authority - no SS authority.
Q Did you ever talk to a Judge of a Field Court Martial about the question how it happened that a Tribunal considered a man innocent and didn't begin proceedings against him whereas on the other hand the same supreme judicial authority did not object that these people remained in prison.
A That was a Police matter, not a matter of the Field Court Martial and in such the judges used to discontinue the conversation, and they were right.
Q Did you ever find any clues indicating that the instructions given to the Secret Field Police or rather from which source these instructions were given to the Secret Field police?
A Yes, Department I-C.
Q I-C, have you any indication showing that this department I-C did not receive its instructions in turn from another source?
A I know nothing about that.
Q Mr. Colleague, earlier you dealt with the case of several Greek officers who wore sentenced because of helping the enemy. Are you aware under which terms the capitulation of the Greek Army was accepted by tho German Armed Forces, particularly what provisions were made with regard to the release of Greek officers by tho German Army.
A. Yes, I can answer that question but let mo toll you this first. Naturally you have more experience than I have in such matters because you have worked before the big IMT, but I am afraid I will have to give you a lawyer's answer to your question regarding the application of paragraph 91b.
Q. I think we can be quite brief. I merely wanted you to tell mo what you know about the negotiations.
A. The Greek officers were not released on parole.
Q. What do you mean by that?
A. Parole -- that he will not try to join the forces of his country which are still in the fight. That is parole -- the promise to remain in the occupied territory -- and they would not give it when the capitulation occurred.
Q. Then when individual discharges of Greek officers took place they did not give their word of honor they would not go against Germany?
A. That is what I just answered. Released subject to parole, i.e. subject to word of honour; this is the proper German expression (word of honour -- Ehrenwort).
Q. Your Honor, I have no further questions.
THE PRESIDENT: Any further cross examination?
Any re-direct?
MR. RAPP: There is no re-direct examination, Your Honor.
THE PRESIDENT: The witness may be excused then.
(The witness was excused.)
May I now inquire of Prosecution as to whether or not there are any further Greek witnesses to be called.
MR. DENNEY: No, if Your Honor pleases, that's the last one which we plan to call and I must say we anticipated that defense counsel would be considerably more lengthy in their cross examination in view of some cross examination that had been conducted before and I certainly appreciate their effort to expedite the proceedings. Perhaps we could -
THE PRESIDENT: Let me interrupt further, Is there any desire on the part of any German counsel or defendant to further question these Greek witnesses?
DR. LATERNSER: Mr. President, we agree to the release of all of the Greek witnesses.
THE PRESIDENT: Upon the statement of Dr. Laternser that it is agreeable to all German counsel and to all defendants, the Greek witnesses who have been called will be discharged from the case and released as witnesses.
That is the order of the Tribunal then.
MR. DENNEY: Perhaps the Secretary General could tell me the number of the last exhibit. I believe it is 498.
THE ASSISTANT SECRETARY GENERAL: Yes, sir.
MR. DENNEY: I have just handed your Honors three copies in English of the portion of the document which I gave to the defense counsel. I have already distributed copies to the interpreters and the reporters, Defense counsel have a German copy. How many do you require, Mr. Stone, in English?
THE ASSISTANT SECRETARY GENERAL: Three English, two German.
MR. DENNEY: We are distributing to Your Honors, three additional copies in English. These are the three English and the two German copies for Mr. Stone.
I would request that the loose pages, the ones that are not contained in the folder -- there are 39 pages -- headed "Official of the Greek National War Crimes Office and Atrocities Committed in Greece" be marked 499-A for identification.
And the certificates can be placed at the end momentarily and that the document which says "Greek Document No. 1" be marked 499-A 1 for identification. That is a letter dated Athens, September 14, 1945, together with 9 pages annexed thereto. And, then the next document in the folder which is Greek Document No. 2 -- it is requested that that be marked 499-A 2 for identification. This is an interrogation of 3 pages. And then the last document, which is 26 pages, which is the translation of Greek Document No. 3. It is a decision dated 3 December 1946. It is requested that this be marked 499-A 3 for identification.
And the last part of the document in the folder, which is 5 pages, Greek Document No. 4 -- this is a translation of the sub-titles that accompany the Greek film. It is not what we are familiar with as a talking film but a list of sub-titles and we are submitting them in advance. It is requested that this be marked 499-A 4 for identification.
And there is an additional document which we do not have at this time.
However, in order that things may be kept in order, I would ask that the certification by Dimitrius Kissopoulos be marked 499-A 5 for identification. Your Honors will note in the certification that there is one document which is not present at this time.
That, if your Honors pleases, concludes the evidence with reference to Greece except for the offer of these documents which have just been finally prepared and submitted and the film. We perhaps might ask defense counsel tomorrow to waive the 24-hour rule but we certainly don't want to do it now. We have just handed them the documents.
In connection with the matter under discussion concerning the inquiry by the Tribunal this naming, with reference to what progress has been made in connection with the order of the Tribunal concerning the notion by the defense counsel for the purpose of investigation of documents, the matter -
THE PRESIDENT: Mr. Denny, let's have it understood that it was a ruling in which we made certain statements in the alternative.
MR. DENNEY: Your honor please, I was just about to recite the ruling. I submit that I nay state how the ruling was arrived at. I believe this was made as the result of a motion made by defense counsel and the Court's rule was that:
(a) They be allowed to go to Washington or (b) That the documents be brought here or (c) In the event those things didn't happen that certain conclusions would be drawn by the Tribunal.
In that connection I have examined the rules and discussed the matter with General Taylor and would like to say this at this time.
Defense counsel have made a motion for the production in Nurnberg of a large number of documents presumably located in the Pentagon building in Washington D.C. or, in the alternative, for permission to send two of their number as representatives to Washington to examine the documents.
The tribunal has granted this motion in the alternative.
Rule 12 of tho Uniform Rules of Procedure, Military Tribunals, Nurnberg, describes the method by which the defense counsel may apply to the Tribunals for the production of witnesses or documents.
Paragraph "C" and "D" of Rule 12 describes the methods by which documents and witnesses can be obtained if such application is ranted by a Tribunal. These provisions arc clearly applicable to the present situation and provide as follows:
"(C) If the application is granted by the Tribunal, the Secretary General shall promptly issue a summons for the attendance of such witness or the production of such documents and inform the Tribunal of tho action taken. Such summons shall be served in such manner as may be provided by tho appropriate occupation authority to insure it's enforcement and the Secretary General shall inform the Tribunal of the stops taken.
"(D) If the witness or the document is not within tho area controlled by tho United States Office of military Government for Germany, the Tribunal will request through proper channels that the Allied Control Council arrange for the production of any ouch witness or document as the Tribunal may deem necessary to tho proper presentation of tho defense.
The prosecution is advised by the Secretary General that immediately after the Tribunal granted the motion in question ho took steps to secure the execution thereof as provided in Rule 12.
The Secretary General has informed the prosecution that he has been in communication with the director of the Legal Division, Office of Military Government for Germany, United States, Berlin, and has transmitted to his a copy of the court's ruling on the application, together with full information as to the location and quantity of the documents in question.
The prosecution is further informed that the director of the Legal Division, OMGUS, is taking steps in connection with this matter and will communicate with the authorities of the United States War Department in Washington to determine whether the documents can be transmitted to Nurnberg or whether representatives of the defense counsel can be transported to the United States and admitted to the Pentagon Building to examine the documents.
It appears, therefore, that the matter is being handled strictly in accordance with the Uniform Rules of Procedure of the Military Tribunals, Nurnberg, and that the authorities are moving with all possible expedition.
The prosecution constituting the office of Chief of Counsel is subordinate to the Office of Military Government for Germany, U.S., Berlin, and through that office to the United States War Department in Washington. The prosecution does not control and can give no directions with respect to the transportation of the documents from Washington to Nurnberg nor with respect to making arrangements for the transportation of representatives of the defense counsel to the United States or with respect to the admission of the representatives of the defense counsel to the Pentagon Building. The prosecution has been endeavoring to assist the Secretary-General in every possible way in connection with the Tribunal's order and will continue to do so. However, the prosecution cannot assume responsibility for the action of both authorities to which the prosecution is itself subordinate and to which it is powerless to give directives or orders.
Rule 12 of the Uniform Rules of Procedure of the Military Tribunals, Nurnberg, imposes no such responsibility on the prosecution and clearly sets forth the channels for the production of witnesses or documents on behalf of the defense.
In view of the limited time remaining, Your Honor, I wonder if perhaps we could adjourn now.
THE PRESIDENT: Judge Carter wishes to speak on behalf of the Tribunal.
PRESIDING JUDGE CARTER: I thought I made it clear this morning when we were discussing this matter the nature of the ruling of this Tribunal in regard to this matter. This matter does not come under Rule XII, and the Tribunal so held and, as a member of the Tribunal, I resent the attempt of the Prosecution to come here and overrule the holding that we have made.
When the Prosecution brings in excerpts from exhibits they are producing the records, and by the very use of them they are bound to present the whole record here, It isn't a matter of getting evidence in support of the Defense. It is a rule of law that when one produces a part of the exhibit, he is bound to produce it all for the other side to examine.
I thought I made that clear, and when you come here and say that it applies to matters of evidence pertaining to making the Defense, it is clear outside the scope of the Tribunal's ruling. It has nothing to do with it, and I think, from talking to the other members of the Tribunal, that they are in agreement that insofar as the exhibits offered by the Prosecution are concerned and the parts of them that have been offered hero, that the responsibility is on the part of the Prosecution and no one else to produce the whole instrument.
Now it is true that the Prosecution is probably in administrative matters subordinate to military government here in Germany; but this Tribunal is not, and when the Prosecution appears here, they appear as officers of this Tribunal, and in that capacity, and I say, as the order previously hold, that the responsibility rests upon the Prosecution to produce or make available the balance of those exhibits or the alterna tive therein set forth will be invoked.
Now, I hope I have made myself clear on that. Now, I am speaking for myself, and I think for the rest; if they have anything to add I am perfectly willing that they should do so.
THE PRESIDENT: Judge Carter has expressed the sentiments of this Tribunal, and there is no necessity of any further comments by the other members of the Tribunal.
The Tribunal will be in recess until nine-thirty tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until nine-thirty o'clock tomorrow morning.
(The Tribunal adjourned until 22 August 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 22 August 1947, 1000-1730, Honorable George J. Burke, 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.
JUDGE WANNENSTRUM: Marshal, will you ascertain whether or not all defendants are present in the Courtroom?
THE MARSHAL: May it please Your Honors, ail defendants are present in the Courtroom.
JUDGE WANNENSTRUM: Judge George J. Burke will preside at this day's session.
PRESIDING JUDGE BURKE: You may proceed, Mr. Denney.
MR. DENNEY: I should like to inquire from defense counsel whether or not they received last night, through the information center, the German copies of the section numbered 6 of the Greek report. If they did not, we took it up there.
This is the part of the Greek report to which I referred yesterday, which was not stencilled at the time. He are handing up three copies in English for Your Honors.
We will mark this, if Your Honors please - this Document No. 6, which is an interrogation - as 499-A-6.
The case has gotten along somewhat faster than we had thought, and I would appreciate it if defense counsel would waive the 24 hour rule With reference to the documents which I presented them last night. I realize that it is perfectly within their rights to stand upon it, and if they do choose to stand upon it, I will make no issue of it, but I would ap predate it, if I could proceed with the offer of 499-A for identification.