"De facto, there was no doubt within the Staff of Army Group E from the first day on of my activity in the Southeast that the People's Liberation Army, as a whole, now fulfilled all the requirements of international law. Hence, all orders of the Commander-in-Chief Southeast provided for the same methods of warfare as in any other theater of operation against regular enemy forces. I know that the problem of reprisal measures against the civilian population was discussed during the conferences participated in by Field Marshal von Weichs, Hermann Neubacher, and Commander Serbia Felber. Accordingly, as also on the basis of the orders issued by the troop commanders, as, for instance, by General Fritz Neidhold, General Josef Brauner, and others, I believe that these reprisal measures in the field were carried out by the troops. The issuance of such orders by the individual commanders and the carrying out of such orders in fact, as far as they surpassed collective punishment as permissible and customary in international law, is contrary to the principles of humanity. However, it is a fact that this corresponded to the generally know ruthlessness of Hitler who recognized in that sort of commander, people of his own way of thinking, people who were always willing to transform his intentions into fact. The above mentioned orders were not passed on via me because, according to my office, I carried on work of an operational character exclusively. As far as they were handled at all in the staff of High Command of Army Group F, they pertained by their nature to the duties of the Quartiermeister. I personally, even if I had received such an order, would never have carried it out or transmitted it.
"Further, I am aware that there was talk of cessation of reprisal measures against the civilian population during the above mentioned conferences. However, its result was only a certain mitigation of these reprisal measures as, for instance, that 50 civilians were permitted to be shot for one German soldier instead of 100 as before.
"I was Chief of the Operation Branch of the Staff of Army Group F until March 1944.
"The above has been read to me and I state that all of it corresponds to my statement which I made voluntarily and without compulsion.
"Certified:
"Interrogator:
"Signed: Sambaher Vladislav "Stenographer:
Mihailovic Leposava "Signed:
Josef Selmayr
PRESIDING JUDGE BURKE: Mr. Fenstermacher, at this time the Court will stand in recess until 11:05.
(A recess was taken.)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
PRESIDING JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Your Honor, prior to the recess, we were looking at Exhibit 553 and we had completed the first part of that 553/1. If your Honors will now turn to page 6, Document NOKW-1639, and mark this 553/2, this and the next part of the Exhibit reflect the relationship between the German troops and the Croatian Wehrmacht in the Southeast area. This first document is an order from the Headquarters of the 6th Infantry Regiment, dated Brcko, 5 February 1943;
"To Headquarters, I, II, III, IV, V. Battalion of the 6th Infantry Regiment and of the 13, 14, 15, 25 and 27 Company of the 6th Infantry Regiment."
These are Croatian units.
The Subject is:
"Proclamation of General Fortner to the Croatian Officers in the Operations Area of the 718th German Infantry Division.
The Headquarters of the 3rd Infantry Division under No. 693/Secret of 31 January 1943 has transmitted the following:
The Headquarters of the IInd Home Guard Corps under No. 1075/ Secret of 28 January 1943 has transmitted the following:
Enclosed, please find the Proclamation of General Fortner to the Croatian Officers in the Operations Area of the 718th German Infantry Division.
Please transmit this proclamation to all subordinate units so that there is no Croatian Officer who has not read this proclamation. The above is transmitted in order that the previously mentioned order will be carried out exactly in all details.
Signed; Executive Officer, 1st Lieutenant Radej" Then turning to the next page is the enclosure, which was forwarded to the Croatian subordinate units.
This is the order, the proclamation of General Fortner, dated 718 Infantry Division, Headquarters, 21 January 1943.
"Commanding Officer Headquarters, 21 January 1943 To all Croatian Officers of my Area of Command Gentlemen:
With this letter, I am addressing you directly because I feel that many of you are not conscious of the great significance of our common struggle and of the great danger in which your homeland finds itself.
What is at stake?
Briefly, the existence or non-existence of Croatia, the happiness or misery of your Nation, of your families, you cities and villages. Will Croatia remain an independent, free and proud state or will it decline to a Communist Bolshevic province, administered by Jews and dominated by a still greater poverty than the one which already has been caused by the senseless murders, the looting and the pillaging by Bolshevist criminal hands of Tito, the Stalin Mercenary?
I believe the choice is not hard between a "Free Independent Proud Croatia in a New Europe" and "devastated Bolshevic Province in the service of Stalin". You gentlemen carry the main weight of responsibility You are the exponents in this struggle and it will be your heroism, your attitude and your appreciation of the situation which will serve as to yardstick by which history will measure the value of the Croatian nation.
What is to be done?
Comrades of the Croatian Officer Corps.
During the first World War, the Croatian and Bosnian Regiments were among the very best. Why should it be different today. Your homeguard and Ustasha is composed of hard, courageous, tenacious and modest and to a great part single people, which means that they want to be led by someone.
They look to their leaders with unlimited confidence. No wonder they fail in battle when their leader is the first one to withdraw. Wherever the officers were resilient and tenacious, the soldiers fought in an examplary manner. I will mention only TESLIC where units of the 8th Infantry Regiments together with the Jaeger Battalion of the German Volksgruppe under the Command of MIFEKA, the Commander of the 8th Infantry Regiment who was killed in battle from 8 to 19 January 1943 successfully repelled with insignificant losses to themselves and great to the enemy the exceedingly strong attacks of Communist Bands which outnumbered them.
3) In my area of Command, battle will be avoided or withdrawal executed by my personal order. Not otherwise! During the movements which up to now have been executed with the purpose of avoiding battle and during withdrawals dictated by ordinary panic and cowardice, the troops have suffered great losses of men, arms and supplies.
In the future, any commanding officer who without my written order avoids battle, or orders or tolerates withdrawal will be held fully responsible by me and will face a court martial. According to German Law, cowardice in the face of the enemy is punishable by death.
4) Great losses can only be avoided by heroism and activity. The defense too must be active. Steady, well-distributed action, which has momentum and which comes from the defense position, must cause the enemy to incur losses and destroy his preparations for attack.
5) The heroic deeds of Croatian Officers and men performed to date, have, up until now, not been sufficiently recognized and rewarded. In this respect, too, I want help. The opinion that a subordinate cannot receive a decoration which his superior has not earned as yet, is entirely mistaken.
All of you are asked to co-operate and to make suggestions so that the deeds of courageous soldiers may be properly rewarded possibly also with German decorations.
Comrades -- Croatian Officers.
Take these lines to heart and with our old tried Comradeship-inarms we shall repel and annihilate the Communist enemy wherever we meet him.
Ready for the Poglavnik and the Homeland.
H e i l H i t l e r.
Sgd. F O R T N E R Major General and Division Commander" Then at the bottom of the document appears the staff:
INDEPENDENT STATE OF CROATIA STAFF Turning next to page 11 for the final part of this exhibit, it should be marked 553/3. This is another order from the headquarters of the 6th Infantry Regiment to various subordinate Croatian units.
"Subject: Transmission in translation of the order of the 718th German Division."
The last paragraph states: "Enclosed, please find the above mentioned translation. Commanders concerned will disseminate this order among all offices and the entire Home Guard personnel concerned."
Turning to the next page is a copy of the translation which was forwarded. This is at the bottom of page 12 of the English Document Look:
C O P Y T R A N S L A T I O N S E C R E T 718 Infantry Division Branch Ia The Commander of German Troops in Croatia issued the following directives are applicable:
1) Any measure is justified which is necessary for the security of the troops and which simultaneously serves to pacify the country."
"2) Extensive and responsible cooperation by Croatian Military and Civilian Offices is desired.
"3) No one is to be called to account for over-severe measures, of course this does not cover any action showing a dishonorable attitude (for instance personal profit, mistreatment of women and children); against such cases severe measures will have to be taken.
"4) Treatment of the Population:
Anybody who participates or has participated in the fight against the defense groups or against the Croatian State is to be hanged or to be shot to death. This also includes all non-residents or anyone else encountered on the field of battle. People suspected of participation are to be arrested. Leaders are to be kept with the Division as exchange prisoners, the other suspects for shooting to death in case of reprisal measures. All other men capable of bearing arms (from 15 years of age) are to be deported under guard from territories where there is danger that they will desert to the partisans into special collection camps. The Division is responsible for guard, rations, etc. until they are transferred to the collection camp.
"5) Villages which are inaccessible as well as other points established as partisan support points or otherwise suitable (caves, barrack camps, etc.) are to be destroyed. The same applies to villages from which shots were fired. Beyond that, villages are to be destroyed only if the Division Commander has ordered this especially as a reprisal measure."
I think we may skip over the next part of the order and continue with the last paragraph which is on page 14 of the English:
"Implementation by Division:
"I am again pointing out that everybody who has acted energetically and decisively will be covered by me but that officers and men who have harmed or caused disadvantage to the Croatian State, to the German or Croatian Army by cowardice, inability of decision or inactivity will be called to account by me ruthlessly, will come before a court martial and without regard to rank, social standing or origin will be sentenced without mercy."
This order was signed by:
Fortner If your Honors will now turn to Book 24, there is one more document from that book which we would like to introduce.
This is Document NOKW 1664.
I beg your pardon, your Honors, If you will just hold that one minute, I have one other one first. The next document your Honors, we offer for judicial notice only and not as evidence. This consists of excerpts from an official publication of the U. S. Government entitled:
"UNITED STATES AND ITALY 1936-1946 Documentary Record Published by UNITED STATES GOVERNMENT PRINTING OFFICE Washington, 1946."
I think, for purposes of identification, however, we might mark it Exhibit 554.
PRESIDING JUDGE BURKE: You are not anticipating reading it, I take.
MR. FENSTERMACHER: No, I just want to go through it very briefly, your Honors, and point out just a very few things. I shan't spend very much time on it at all.
On the second page, page 1-A, your Honors will note there a communication:
"Churches and Religious Institutions Spared Devastations of War:
"President Roosevelt to Pope Pius XII, July 10, 1943.
"Released to the press by the White House July 16.
"By the time this message reaches your Holiness a landing in force by American and British troops will have taken place on Italian soil."
And then the footnote: Next on page 2:
"Developments in Italy: Statement by Secretary of State Hull, July 26, 1943.
"At his press conference on July 26, 1943 the Secretary of State was asked whether he anticipated any change in our policy of unconditional surrender in respect to Italy as a result of the conditions that had taken place. Mr. Hull said that he had no information to that effect from either the president or the War Department, who are dealing immediately with that matter. He added that he was not anticipating anything from them to the contrary."
I call your Honors' attention only to footnote 55:
"King Victor Emmanuel announced on July 25 the resignation of Prime Minister Mussolini and his cabinet. Field Marshal Pietro Badoglio was appointed Prime Minister, Head of the Government."
Next on the bottom of page 2, Document entitled No. 38:
"Allied Occupation of Italy: Statement by Secretary of State Hull, September 3, 1943.
"We are all observing the occupation of a portion of continental Europe."
Then the footnote 62: "General Eisenhower reported.....Nine months after the first landings in North Africa, the Allied Force had not merely cleared its shore of enemy forces, but had wrested from him the Sicilian bridge to use as our own in an advance onto the Italian mainland."
Then we come to No. 39: "Italian Military Armistice: Radio Announcement by General Eisenhower September 8, 1943.
"COUNTRIES IN A STATE OF ARMISTICE RELATIONS "Italy "An announcement which was issued by the Allied headquarters in North Africa at noon on September 8, 1943, and which was read over the radio by General Eisenhower beginning at noon on September 8, 1943, reads in part as follows:"
I think we need not read that but I call your Honors' attention to footnote 63a: "ALLIED HEADQUARTERS IN NORTH AFRICA. Sept. 8." I ask your Honors to make note of that date because I am sure it will come up in the future, September 8, 1943.
"A special communique: The unconditional surrender of the Italian armed forces was announced today by Gen. Dwight D. Eisenhower. The following statement from the Allied Commander in Chief was broadcast at 16:30 G.M.T. on the United Nations Radio:
"The Italian Government has surrendered its armed forces unconditionally. As Allied Commander in Chief I have granted a military arnustice, the terms of which have been approved by the Government of the United Kingdom, the United States and the Union of Soviet Socialist Republics.
"Thus I am acting in the interest of the United Nations. The Italian Government has bound itself to abide by these terms without reservation. The armistice was signed by my representative and representative of Marshal Badoglio, and it becomes effective this instant.
"Hostilities between the armed forces of the United Nations and those of Italy terminate at once.
"All Italians who now act to help eject the German aggressor from Italian soil will have the assistance and the support of the United Nations."
Document 40 consists of a series of documents relating to the Italian Armistice. We call your Honors' attention only to a few of the conditions of the Armistice which was presented on September 3, 1943.
"The following conditions of an Armistice arc presented by GENERAL DWIGHT D. EISENHOWER Commander-in-Chief of the Allied Forces, acting by authority of the Government of the United States and Great Britain and in the interest of the United Nations, and are accepted by MARSHAL PIETRO BADOGLIO Head of the Italian Government "1. Immediate cessation of all hostile activity by the Italian armed forces.
"2. Italy will use its best endeavors to deny, to the Germans, facilities that might be used against the United Nations.
"3. All prisoners or internees of the United Nations to be immediately turned over to the Allied Commander in Chief, and none of these may now or at any time be evacuated to Germany."
And I call your Honors' attention especially to paragraph 8, which is on page 5 of the English, termed No. 8 of the Armistice.
"8. Immediate withdrawal to Italy of Italian armed forces from all participation in the current war from whatever areas in which they may be now engaged.
"9. Guarantee by the Italian Government that if necessary it will employ all its available armed forces to insure prompt and exact compliance with all the provisions of this armistice."
On page 6, the signatures of Marshal Pietro Badoglio, Head of the Italian Government, and General Eisenhower, appear and then in Document, Subject 3: "ADDITIONAL CONDITIONS OF THE ARMISTICE WITH ITALY, September 29, 1943."
I call your Honors' attention only to sub-paragraph 1, which is on page 7:
"1. (A) Italian participation in the war in all Theaters will cease immediately. There will be no opposition to landings, movements or other operations of the Land, Sea and Air Forces of the United Nations. Accordingly, the Italian Supreme Command will order the immediate cessation of hostilities of any kind against the Forces of the United Nations and will direct the Italian Navy, Military and Air Force authorities in all Theaters to issue forthwith the appropriate instructions to those under their Command."
And, on page 13 of the English, sub-paragraph 25, the Armistice terms:
"Relations with countries at war with any of the United Nations, or occupied by any such country, will be broken off. Italian diplomatic consular and other officials and members of the Italian Land, Sea and Air Forces accredited to or serving on missions with any such country or in any other territory specified by the United Nations will be recalled. Diplomatic and consular officials of such countries will be dealt with as the United Nations may prescribe."
Then turning to page 20 of the Declaration of War by Italy against Germany, and the message of Marshall Badoglio to General Eisenhower, October 13, 1943:
EXCERPTS FROM BOOK: UNITED STATES AND ITALY 1936-1946. CONTINUED (page 69 of original) 43.
DECLARATION OF WAR BY ITALY AGAINST GERMANY (1) MESSAGE OF MARSHAL BADOGLIO TO GENERAL EISENHOWER, OCTOBER 13, 1943 I take great pleasure in informing you that His Majesty the King of Italy has declared war on Germany.
The declaration will be handed by our Ambassador in Madrid to the German Ambassador, at 3 o'clock p.m. (Greenwich time) on October thirteenth. By this act all ties with the dreadful past are broken and my Government will be proud to be able to march with you on to the inevitable victory. Will you be good enough, my dear General, to communicate the foregoing to the Anglo-American, Russian and the other United Nations Governments. I should also be grateful to you if you would be kind enough to inform the Italian Embassies in Ankara, in Buenos Aires and the Legations in Bern, Stockholm, Dublin and Lisbon.
(2) PROCLAMATION BY MARSHAL BADOGLIO TO THE ITALIAN TROOPS TO THE ITALIAN PEOPLE:
Italians, with the declaration made September 8th, 1943, the Government headed by me, in announcing that the Commander in Chief of the Anglo-American Forces in the Mediterranean had accepted the Armistice requested by us, ordered the Italian troops to remain with their arms at rest but prepared to repel any act of violence directed at them from whatever other source it might come. With a synchronized action, which clearly reversed an order previously given by some high authority, German troops compelled some of our units to disarm, while, in most cases, they proceeded to a decisive attack against our troops. But German arrogance and ferocity did not stop here. We had already seen some examples of their behavior in the abuses of power, robbery, and violence of all kinds perpetrated in Catania while they were still our allies. Even more savage incidents against our unarmed populations took place in Calabria, in the Puglie and in the area of Salerne. But where the ferocity of the enemy surpassed every limit of the human imagination was at Naples. The heroic population of that city, which for weeks suffered every form of torment, strongly cooperated with the Anglo-American troops in putting the hated Germans to flight. Italians! There will not be peace in Italy as long as a single German remains upon our soil. Shoulder to shoulder, we must march forward with our friends of the United States, of Great Gritain, of Russia, and of all the other United Nations. Wherever Italian troops may be, in the Balkans, Yugoslavia, Albania, and in Greece, they have witnessed similar acts of aggression and cruelty and they must fight against the Germans to the last man.
I think we need not read the remainder of the document, your Honors.
Now, if your Honors will turn to Document Book XXIV, for one final document from that book, NOKW 1664 which is on page 82 of the English, and page 53 of the German Document Book.
Your Honors will recall that ten documents were passed from Document Book XXIV because they had previously been introduced into evidence. The Prosecution is prepared now to offer seven of those because they checked and discovered the error of itself, and of the other three, one was pointed out by Dr. Laternser and was admitted in part and withheld in part, the other two, upon recheck were found to have been errors made by the defense counsel in protesting so we offered one yesterday and we offer the final one today. I make this statement only that our hard working research staff may be protected from any allegations of carelessness in the compilation.
PRESIDING JUDGE BURKE: The best proof of their evidence is to present that document in proper form and shape and let the Tribunal attempt to judge for itself.
MR. FENSTERMACHER: Page 82 of the English, page 53 of the German, a series of reports from the 65th Special Corps Command to the Armed Forces Commander Southeast. The first is War Diary of the Commanding General, Commander in Serbia, to Wehrmacht Commander Southeast, Daily Report, under Wehrmacht activity.
I think we can skip most of paragraph 1 and pick it up again on page 83 of the English, page 33 of the German:
"As reprisal for the soldier shot to death on 3 September in Belgrade on the open road 50 Communists executed."
The report is signed Commander in Serbia, Command Staff, Department Ia, 4 September 1941.
And on page 84 of the English, and page 54 of the German, daily report of the 8 September 1941 from the 65th Corps Command to the Wehrmacht Commander Southeast, who at that time was the defendant List and his Chief of Staff the defendant Foertsch; that section of the report dealing with activities of the 714th Infantry Division.
PRESIDING JUDGE BURKE: Will you kindly orient the Tribunal as to the page.
MR. FENSTERMACHER: I am reading now from page 84 of the English, your Honor, page 54 of the German.
PRESIDING JUDGE BURKE: Document Book XXIV?
MR. FENSTERMACHER: Document Book XXIV.
PRESIDING JUDGE BURKE: Designated Exhibit number?
MR. FENSTERMACHER:NOKW 1664.
PRESIDING JUDGE BURKE: 1664?
MR. FENSTERMACHER: Yes, your Honor.
JUDGE WENNERSTRUM: The page 84 I have is NOKW 1660.
MR. FENSTERMACHER: Perhaps we can get you another copy of your Honor, of NOKW 1664. Is it in your other copy?
PRESIDING JUDGE BURKE: It will be a matter of some convenience to the Tribunal to be able to refer to the appropriate page designated by Council and not some other page, upon personal investigation.
JUDGE WENNERSTRUM: Go ahead.
MR. FENSTERMACHER: This is daily report of 8 September 1941 for the 65th Corps Command of the Wehrmacht Corps Commander Southeast, 714th Infantry Division:
"One-half armored train 23 guards the repairing of the place of the explosive attempt on railway near Mala Krana.
"By order of the Commander in Serbia in the Benat in Mokrin, Melenci, Kumane 10 Communists hanged in each place by 721st Infantry Regiment as reprisal measure."
Next, the daily report from the Commander in Serbia, to the Wehrmacht Commander Southeast, bottom of page 84, of the English 54 of the German:
"Daily Report:
"Appeal of Prime Minister Nedic repeated on the radio since it evidently had good effect. Distribution by leaflets.
"Decree concerning civilian court martial available.
"Encircled works at Baric (East of Obrenovac) was liberated by Stuka attacks. 50 guilty communists executed as reprisal for attack on soldier at the station Belgrade-Topicer."
I think we need not read the rest of the report, signed on page 86 of the English, 55 of the German, Commander in Serbia, Command Staff Ia, 16 September 1941.
Next the report of the Commander Serbia dated Belgrade 29 September 1941, to Plenipotentiary Commanding General in Belgrade, at bottom of page 86 of the English, page 56 of the German, Daily Report:
which is offered as Prosecution Exhibit 556. These are a series of extracts from the war diary of the 22nd Infantry Division. The entry in the war diary for 8 October 1943. Your Honors will recall that the 22nd Infantry Division was active on Crete at this time and was directly subordinate to the Commander in Chief Southeast simultaneously Commander of Army Group F, defendant Weichs.
The Schubert Detachment was able to arrest 50 suspicious men who were not resident in the locality in the upper Rethimnon sector during the pursuit bands in the locality of Kalikrates. The following was secured in weapons: 7 rifles, 1 hunting rifle, 7 pistols, among them 1 Italian army pistol. The 50 men, bandit suspects, were shot by the Schubert Special Detachment.
Next on page 2 of the English, page 2 of the German, Document NOKW 812, which is offered as Prosecution Exhibit 557. This is an extract from the War Diary XXI Army Corps. Your Honors will note the XXI Mountain Corps was from 5 September, and those words crossed out and 25 August inserted instead in the blame under the command of the 2nd Panzer Army. The 2nd Panzer Army at this time was commanded by the defendant Rendulic. Headquarters, 12 March 1944. Down at the bottom of the English page 2 and German page 2, handwritten in pencil, Enclosures 57;
"225 Serbian Concentration camp prisoners are being brought by truck via Skutari - Urvsevac to Mitrovica to work in the Trapca mines."
Next on page 4 of the English, page 3 of the German, Document NOKW 1790, which is offered as Prosecution Exhibit 558. These are various reports from and to the XV Mountain Corps. The first one, Ic Activity Report for October 1943:
Court5 , Case 7 Enclosure to 114th Jaeger Division Section, Ic No.1339/43 secret, dated 15 October 1943.
The mission is:
To advance from the Slavica plant into the area South of the road Mandio-Drnis, to discover the bandits living here and to ascertain their intentions.
On 10 October 1943, 2100, the squad left the plant by truck and was brought to a point on the road to Dranis, about 500 m East of Mandic. The squad set up camp in the area Knesic (see map). The inhabitants of Knesic were very careful in their statements. No information could be obtained from them. However, it was clearly established that inhabitants of this village went in and out with weapons. Furthermore, it was established without a count that inhabitants participated in the attack on the Slavica plant during the morning of 11 October 1943, for several of them returned individually with arms. Unfortunately, it was not possible to apprehend these bandits since because of the deficiency of cover in the terrain and many stone walls if was impossible to effect a speedy approach.
During the morning of the 11 October 1943 the camp site was moved East of Pekas (see map.). During this 3 civilians whom the squad met on the way wer eliminated. When my scouts appeared the male inhabitants of the small village of Pekas stated that they were ready at any time to fight with us (bandits) so that Jugoslavia would be free again, that one should kill the "German pigs" whenever they were met, what do the Germans really want in our country. These men were eliminated.
Through personal observation and through scouts it was ascertained that patrol activity exists between Knesic across height 274 (1½ km South of Konjevrate) and that there are local bandits in this sector.