Q. Would you say that you adopted Foettsoh's advice to a greater extent than you rejected it?
A. I believe these are all theoretical considerations. One can hardly say anything regarding it. I said expressly Foertsch was a very good chief of staff, and I accepted many of his counsels that were used when they were good, and in other cases I did not accept them. In many cases he certainly gave me good advice.
Q. Would you say that Foertsch was the most influential man in your headquarters next to you?
A. In every staff of an army, an army corps command, there must be, if it is at all properly staffed, the chief of staff must be after the commander in chief, the one who has the most influential position. This is inherent in the position of the chief because at the same time he leads the whole staff, and is also the adviser to the commander in chief.
Q. Field Marshal, you said that on the 15th of October 1941 you went to the hospital, and that on the 27th of October 1941 General Kuntze was appointed, or at least took over command of the 12th Army and assumed the position of Armed Forces Commander Southeast, is that correct?
A. Yes.
Q. Who was in command as Armed Forces Commander Southeast, Commander in Chief of the 12th Army, between the 15th and 27th of October 1941?
A. I have already stated that I do not know what other arrangement was arrived at, according to order -- that is according to the order of OKW, Kuntze was to deputize for me from the 18th onwards. Kuntze only arrived on the 27th and he came to see me for the first time on the 28th or 29th for a very brief time. I did not ask him at the time what the arrangement was because my state of health was such that I could only talk to Kuntze for a very brief time when he took over the command.
Q. I think you testified earlier that when you went on leave General Felmy took over command as your deputy.
JUSTICE BURKE: Hasn't this matter been covered by Mr. Denney in his portion of the cross examination of the witness?
MR. FENSTERMACHER: Your Honor, Mr. Denney says he did not cover the period of time from the 15th of October to the 27th of October, 1941, but only covered the period of time when the defendant List went on leave in July 1941.
PRESIDING JUSTICE CARTER: You may proceed.
BY MR. FENSTERMACHER:
A. Mr. Denney asked me who was deputizing for me at that time, but I can repeat it now. On the 18th, according to orders, Kuntze was to deputize for me, but he only arrived in Athens on the 26th, and because of my state of health he could only come and see me on or about the 28th or 29th, but he assumed the command de facto as from the 27th.
During the intervening time I do not know who was commander. I do not know the detailed arrangements. During my leave I had determined that General Felmy was to deputize for me. Because of the suddenness of my illness I could not give an order and consequently no such order was issued by me.
Q. Was General Felmy your Senior Corps Commander at that time?
A. I don't know whether General Felmy was the Senior Commander at that time or not. At that time he was, at any rate, present in Athens, and one could not ask a commanding general who was in Belgrade and who had to stay in Belgrade because of the tension there -- one could not ask him to deputize for me in Athens. One would have to transfer him from Belgrade to Athens for that period of time.
Q. Were you ever relieved--
A. I believe that my former chief of staff, who was present at that time, could give more detailed information about this time than I can give.
Q. Were you ever formally relieved of command of the 12th Army?
A. That is a rather undefined state. Officially, I was relieved by being appointed Commander in Chief of Army Group A. Kuntze was again and again reaffirmed as my deputy, and on paper I still had the title "Commander in Chief of the 12th Army", although I no longer had anything to do with it.
It was a custom of Hitler that he often left things like that in a state of indecision because he did not want to, or could not decide, or he had a grouch against somebody, and did not want to come out in the open with it, and similar things.
Q. Did your deputy, General Kuntze, have power to repeal orders of yours with which he disagreed?
A. The successor, and/or all of the deputies, could of course act as he wanted to act, as he pleased. If a deputy is only present for a couple of weeks, he restrains himself in certain circumstances, but he certainly is entitled to order whatever he thinks fit, if he has been appointed deputy.
Q. You mean he does have the power to repeal orders which the previous commander had already distributed to subordinate units?
A. If he thought it was necessary, yes.
Q. Field Marshal, I think you testified that you resigned your command as Commander in Chief of Army Group A because of a tactical difference with Hitler?
A. That is correct, yes.
Q. You did not leave because you disagreed with the way Hitler was running the war?
A. The ideas and considerations, of course, played their part when I protested against the carrying out of the order I received at that time. They made my resistance easier for me.
Q. Is it true that you left your Southeast command because of ill health and not because of any disagreement with Hitler, or with the methods of waging war which he had ordered?
A. Which commend, may I ask, are you alluding to now?
Q. Your command in the Balkans as Commander in Chief of the 12th Army and Armed Forces Commander Southeast.
A. For reasons of health.
Q. Did yon ever tender your resignation at any time prior to September 1942?
PRESIDING JUDGE CARTER: I think, Mr. Fenstermacher, that we have been all through this a time or two. If I remember correctly, he said that he could not resign if he wanted to, and on this one occasion he did because it was requested.
MR. FENSTERMACHER: I think he testified that direct, Your Honor, but I do not believe it was gone into on cross examination.
JUDGE BURKE: My recollection differs from that.
MR. FENSTERMACHER: Very well, Your Honors, we will pass it.
BY MR. FENSTERMACHER:
Q. Field Marshal, I believe you testified that the measures you ordered for the pacification of Serbia were ordered by you only out of considerations of military necessity, is that correct?
A. Yes.
Q. But isn't it true that the measures which you ordered had a boomerang effect - that is to say, because of the severity of the measures which you ordered, the insurgent movement in fact increased rather than decreased in numbers and effect?
A. I do not have that impression. From all of these documents it becomes clear again and again that we acted on the defensive, that we only became more severe when the insurgent movement had grown to a certain proportion, and we had to expect that if one once dealt energetically with this seat of infection, we could reach a final pacification, and in my view we would have reached this state if these insurgents had not been constantly supported from abroad.
Q. Will you look at Exhibit 30 in Document Book 1, beginning on page 99 of the English and page 77 of the German?
Court No. V, Case No. VII.
Q. This is a report sent to you by the Wehrmacht Liaison Office in Belgrade on the 31st of July 1941, and the receipt stamp of the Wehrmacht Commander Southeast for the 5th of August 1941 is on the first page of the document. Will you turn to the second page which is Page 100 in the English, and I believe Page 78 in the German, Paragraph 2: "Though nothing is said publicly about the shooting of Jews and Communists as reprisal for acts of sabotage, these shootings have, however, made a deep impression in Belgrade. It is doubtful whether the shootings will prevent a repetition of acts of sabotage."
Do you remember generally receiving reports to the effect that the measures which you had ordered would probably not have any gainful effect from the Germans' point of view?
A. It is possible that I received such reports, but I cannot recall these reports in detail. But if the one or the other--some minor officials from the Wehrmacht Liaison Office--gives vent to his opinion here that is not at all decisive. We must hold on to the principle idea, and the principle idea, was that our measures were to get hold of the insurgent movement and smash this insurgent movement, and so that we would then come to a final state of pacification. There was no other thought present then but that one definite cauterizing of the wound we would cure the malady. We were only interested in the ruling of a pacified country and nothing else.
Q. Will you turn to the last page of that exhibit which is on Page 110 of the English, and I believe Page 85 of the German, to the sentence beginning: "Reprisal measures, as for instance the severity of the shooting of 81 persons collected haphazardly did not bring about pacification nor did it serve as an intimidation.
On the contrary the feeling of being plundered, chased away or slaughtered with wife and child either by criminal Ustaschi people in Bosnia or Herzagowina or by robber elements, or to lose life and property as the casual object of reprisal at the hands of the Germans has embittered and made desperate the otherwise quiet and politically indifferent and loyal parts of the Seroian population, who are automatically driven into the ranks of some kind of insurgent groups."
A. With reference to this report, I may only say that it is a report from Croatia which was, at that time, not subordinate to me. The report, however, proves the extent of the ethnical fight in Croatia and of the whole of the Balkans. And that not only the German advance was responsible, as this fellow says here for one fact that the Serbian population was driven to take part in the bands, but rather that the Ustashi bands were also co-responsible for this fact. This report proves the sharp confusion and differences on the Balkans.
Q. You didn't believe that this psychological point of view, namely, that harsh measures would drive the loyal parts of the population into the hands of the insurgents, was a valid point of view?
A. I say that these measures had to be taken for reasons of military necessity.
Q. Will you turn to Exhibit 34 in the same document book, Field Marshal? It begins on Page 118 of the English and Page 93 of the German. This is a report of the Ministry of the Interior to the Military Commander in Serbia, Administrative Staff, dated Belgrade, 29 August 1941. Will you turn to the next to the last page of the report which is on Page 120 of the English, and I believe on Page 95 of the German, the paragraph beginning, "The Consequence of the procedure of the German assault troops."
Do you have it?
A. Yes.
Q. "The consequence of the procedure of the German assualt troops will be that a large number of innocent people will be slaughtered and that the Communists in the weeks not only will not be exterminated but will increase in numbers. Because many farmers, even entire villages -- even though up to now, they had no connection with the Communist will flee into the woods only out of fear and will be received there by the Communists. They will be provided with arms and used for combat and for open revolt against the German Wehrmacht. This insurrection will develop on a large scale and will have incalculable and terrible consequences for the entire population."
Did the Military Commander in Serbia ever relay that point of view on to you?
A. No, I cannot remember that he put this point of view to me. In addition, this report from the Ministry of the Interior is dated the 29th of August 1941. Therefore, it had its origin before the strict measures were ordered by me. And I would have read the report in detail in order to find out what is its origin was and what specially caused it. And this report also proves the Communists did, in fact, terrorize the country and that they were fought against in the woods, and it proves that numerous peasants, that whole villages, did join the Communists. It is a complete proof that the whole population in large areas took part in this Communist advance, and our measures were necessary to combat the Communists' advance.
Q. Will you look at Exhibit 103 in Document Book III, at Page 87 of the English, and Page 64 of the German? This is an order from the Commanding General Plenipotentiary in Serbia, dated 25 October 1941. Will you look at the third paragraph on the first page of the order?
"In order to regulate the procurement and execution of hostages according to plan we draw attention to the following points: Indiscriminate arrests and executions of Serbs drive toward the insurgents those circles of the population which have, up until now, stock aloof from the revolt, strengthen the powers of resistance of Communists, weaken the chances of a quick suppression and damage the political aim of the operation."
General Boehme was Commanding General Plenipotentiary in Serbia at that time. Did General Boehme ever mention to you that those severe measures boomeranged in fact?
A. No, this order is dated the 25th of October, and, at that time, on the 25th of October, General Boehme apparently had received reports regarding incidents which had exceeded their aim. In order to get measures under control again he issued this order. That was at a time at which I could not have received this order.
Q. Field Marshal, I believe earlier you testified that during a period of time after the 5th of September 1941, that is to say, after your order of that day was issued and distributed to subordinate units, the insurgent movement increased in numbers. I believe you said that on directexamination. I have a reference to Page 3228 in the English transcript to that effect. Do you recall your testimony in that regard?
A. I said that around about August or September insurgent movements had increased considerably.
Q. Do you believe that it had increased because of the insuance of your order?
A. No, around about August and September and because of the increasing insurgent movement I issued the order of the 5th of September. It was immediately proceeded by the capturing of field guard posts, whole companies, etc. That had preceded the order of the 5th of September.
As far as I remember, I also memtioned during the first days of September the total losses which can be seen from a letter I wrote during my leave to the Chief of Staff as a report to the OKW. During the first couple of days over 400 losses occured and that may explain the opinion that I had given after the 5th of September. Then, because of this order there were incidents taking place at the end of August and the beginning of September. The whole movement increased so that what came afterwards was merely an addition to what had gone before.
PRESIDING JUDGE CARTER: The Tribunal will recess until 9:30 tomorrow morning.
(The court recessed at 1630 hours to resume session on Tuesday 23 September 1947, at 0930.)
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 23 September, 1947, 0930-0945, Justice Wennerstrump presiding.
THE MARSHAL: The 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.
May it please your Honors all defendants are present in the Courtroom.
THE COURT: You may proceed, Mr. Fenstermacher.
CROSS EXAMINATION (continued) MR. FENSTERMACHER: If your Honors please, I pass to your Honors now three copies, NOKW 1902, offered in evidence yesterday as Exhibit 585.
German copies of that exhibit were sent to the Translation Information Center last evening. I believe your Honors have from yesterday, copies of Exhibit 586 which were distributed yesterday afternoon.
THE PRESIDENT: By way of inquiry, Mr. Fenstermacher, and for my own information, do you have any suggestions as to the paging of these cross-examinations documents, as to where they can be filed advantageously?
MR. FENSTERMACHER: The way I am doing that for myself, Your Honor, is to prepare individual folders for each of the defendants, and to mark them, "List, Cross-Examination documents", and I keep them together with the 25 document books, but separate from the document books.
THE PRESIDENT: Thank you.
BY MR. FENSTERMACHER:
Q. Field Marshal, yesterday afternoon we were talking about the the military necessity for the measures which you ordered, and which your troops took during your term of office in the southeast.
Will you turn now to Exhibit 99, in Document Book 3, that is on page 71 of the English, and page 53 of the German? You will note from the second page of the document, which is on page 72 of the English, I believe 54 of the German, this is a report dated "Kragujevac, 20 October, 1941, to the 610 Administrative Sub Area Hq Headquarters Pancevo. Simultaneous for information to the Commander Serbia, Branch 1-a Belgrade."
Will you turn to the last page of the report, the page which contains the signature of von Bischoffshawsen, Captain and Commandant? On page 76 of the English, and I believe on about page 58 or 59 of the German, will you turn to the paragraph beginning:
"According to my standpoint, a shooting partly of completely innocent persons from this city can have directly harmful effects. It is to be expected that embittered relatives of those shot will now practice acts of revenge on members of the German Wehrmacht".
Did he ever pass on to you information to this effect?
A. I state here this report was sent from Kragujevac on the 20th of October. That is at a time when I had been operated on for a couple of days.
THE PRESIDENT: It is not coming through clearly.
A. I must state here that this report was sent out from Kragujevac on the 20th of October. That is at a time when I had already been operated on.
Q. Field Marshal, I believe you stated that when you received the Keitel order of 16 September, 1941, you sent a protest to OKW about that order: is tint correct?
A. The order of the 16th of September?
Q. Yes.
A. On the 16th, yes I said for reasons of humanity I protested against this order, and I put this very clearly to my 1-A at that time and to my chief at that time, and I ordered them to inform the OKW of this.
Q. Did you believe that the Keitel order was an illegal, or a criminal order in contravention of the rules of war as you understood them?
A. I have already said that I rejected this order from purely humanitarian reasons. I had to assume that an order from the OKW was correct and legally admissible. In 1941, the OKW had complete authority at that time, there had been no reverses at that time, and there was no reason to doubt the legality of an order of the OKW.
Q. That order came down on the 16th of September, 1941. Do you recall that the Commissar order that came down on the 8th of June, 1941, and you have already stated that in your opinion, the Commissar order was not a legal order. Did you always assume that orders which came to you from OKW were legal orders?
A. At that time, yes. I didn't know the Commissar order.
Q. When did you first know the Commissar order?
A. I cannot tell you new exactly. In the course of the war comparatively late, and only by way of conversation.
Q. Field Marshal, why did you protest the Keitel order of 16 September, 1941 at all, if measures of that kind were a military necessity?
A. I believe that I am telling this for the 4th or 5th time, Mr. Fenstermacher. My attitude against this order was prompted by humanitarian reasons.
Q. Did you believe, Field Marshal, that the peoples in the Balkans were somehow peculiar, more cruel than the other peoples in Europe, and that is why you had to take such severe measures against them?
A. I had to take severe measures against them because they were insurgents, as I have emphasized repeatedly, because they were definitely guerillas and because they struck at the rest of the occupation power, and it was necessary to do that because their methods were undoubtedly cruel.
I hope a witness will appear here who will state that the, people were killed by being nailed against doors while still alive, and also dismembered while still alive. That was a favorite way of killing people.
Q. Do you believe that the Balkan peoples are somehow different from the other people in Europe; more cruel than the western peoples, for example?
A. They are far more passionate, hot blooded and more cruel, so far as the effect of their emotions are concerned, because they lived in continual battles against each other for hundreds of years, caused by the Turkish domination. The individual in Serbia is obviously like every other peasant, under normal conditions, but as soon as differences arise, then, caused by the hot blood in their veins, the cruelty caused by the hundreds of years of Turkish domination, erupts.
Q. Field Marshl, you know that Hitler and the Mazi racial theoristics have claimed ever since 1923 that the Balkan people and the Slavic races generally, were inferior. Are you an advocate of those theories?
A. I am not clear about that.
Q. You do not understand my question?
A. I understood the question, but I was not quite clear about that.
Q. I don't quite understand? Now that you know what the Naxi theories regarding the Balkan peoples and the Slavic race, are, do you endorse those theories?
A. I cannot subscribe to the theories because I do not know them. I have never been told of the theories regarding the treatment of the Balkan peoples. I have never seen an order in this regard, and I do not knew of any plan in this connection. The plan which is existent is the plan of the 16th of September.
Q. You never heard of Hitler's theories regarding the Slavic race?
A. Of his theories, no.
Q. You heard of his theories regarding the Jews, however, did you not?
A. During the course of the war, yes, in addition of course, I know the Nurnberg laws.
Q. And you know of the activities against the Jews in Vienna in 1938, as well?
A. Yes.
Q. Field Marshal, did you always obey orders which you received from OKW?
A. The basic orders I executed if possible; I have deviated from these orders once or twice in order to effect a mitigation.
Q. On what occasions were these, when you deviated from strict enforcement of the OKW orders?
A. For instance, regarding the "hanging" order. The OKW demanded that the execution of partisans was only to be carried out by hanging. This order was not carried out. As far as possible, I tried to deviate from this order.
Q. Were there any other orders you tried to deviate from?
A. At the moment I cannot recall any orders. Perhaps the order of Goering to the Commandant of Crete which demanded the carrying out of very severe measures. Instead of this order, an amnesty of Crete was issued.
Q. Was it possible for a German Field Marshal to disobey OKW orders?
A. Actually, no; basic orders had to be followed.
Q. Did any other German soldier of lesser rank disobey orders he received from his superior officer?
A. He had to obey all orders except those which asked him to commit a definite crime.
Q. Field Marshal, will you look at this document, NOKW 1011, there are three copies for your Honors, copies for defense counsel, the interpreters and court reporters, and the Secretary General. We offer this as Exhibit 587, your Honors.
Field Marshal, will you turn to the second page of this document? You will note from the top that its subject is, "Hand Grenade Attack Park Hotel, Nish on 3 August, 1941:
To Commander Serbia Belgrade As the senior garrison officer Nish has informed me, unrest and confusion prevail amid the troops garrisoned there because for every German victim 10 Serbs have not as yet been killed in accordance with previous announcements (Hence 30 if only the dead are counted, 70 if all those hit are included). As for my repeated question - who then was to be shot to death - the senior garrison officer did not have an answer.
My comment while referring to other incidents in Serbia, that the culprits who are undoubtedly communists are indifferent to the execution of non-communist elements and perhaps might even welcome it, was apparently appreciated. At the time there is only a small number of Communists under here. I do not believe that I am justified in simply having them shot. In my opinion an Administrative Sub-Area Commander who is simultaneously a judge can have executions performed only on the basis of confirmed sentences. An exception can be made only if hostages are seized for a definite case with the announcement they will be shot to death if this definite case occurs. After conscientious examination, I must reject anything lose by virtue of my sense of justice and my inherent attitude. If other measures are required or considered requisite by a higher authority - then I believe that there are special organizations available for that purpose whose measures I am not in a position to judge nor to permit; nor can I stop these measures. If my attitude is not approved, I must admit that I am not in the right place, that is, I must be given another assignment. I never will be able to deviate from the stand-point that in my capacity as judge or as a soldier I can proceed only according to law and with complete ruthlessness - if it is a matter proceeding immediately after the deed is done, or against people who are met under suspicious circumstances with weapons.
Any requests to have people shot to death who were not involved I cannot fulfill, particularly since one may assume in most cases that it does not touch the culprits at all.
(signed) Freiher von Bothmer (signed) Colonel and Commander You will note from the distribution list that a copy was sent to the Military Commander, Command Staff, Military Commander Administrative Staff, and three other units.
Now if you will turn to the first page of the document there is a communication dated Belgrade, 8 August 1941, from the Commander Serbia to the Administrative Sub-area Commander, Colonel Freiher von Bothmer:
N i s h Subject:
Hand grenade attack Park-Hotel Nish.
Reference: Your communication of 6.8.41, No. 249/41 secret Your letter dated 6.8.4. with reference to the above has been submitted to me; my order dated 8.8.4. pertaining to the seizure of hostages has taken care of it.
(signed) It. Gen. Air Corps.
Q Do you know who Colonel von Bothmer was?
A No, I did not know him.
Q Do you know if any measures were taken against him for protesting and refusing to carryout an order?
A No, I don't know of this incident.
Q Colonel von Bothmer states here: "If my attitude is not approved I must admit I am not in the right place; that is, I must be given another assignment."
Did you ever ask for another assignment, Field Marshal?
A Not as regards my person. I believe the case is different here. He had apparently received an order which I don't know, which asked him to do something illegal and which he thought was illegal. When an order is received from the OKW I must assume that this order is legal and acceptable and has been examined.
Q During the period of time when you were Commander in Chief of the 12th Army and Armed Forces Commander Southeast, and also during the time when you were Commander in Chief of Army Group A, did you ever, to your knowledge, receive a criminal order?
A No.
Q And if you had received a criminal order would you have distributed it to your subordinate units or would you have refused to carry it out?
A That is very difficult to say theoretically. I would have to know regarding which order I should have taken action.
Q Field Marshal, are you familiar with paragraph 47 of the Military Penal Code -- the German Military Penal Code?
A I believe I know to what you are referring. Whether I know this paragraph definitely I cannot tell.
Q Will you look at this document which is the Military Penal Code, and turn to paragraph 47? We have three copies of this Paragraph 47 for your Honors; some for defense counsel; Court Interpreters; Court Reporters; and the Secretary General.
We offer this excerpt, your Honors, as Prosecution Exhibit 588.
Q Field Marshal, according to paragraph 47 of the Military Penal Code: "If execution of an order given in line of duty violates a statute of the penal code, the superior giving that order alone is held responsible for it. The subordinate obeying that order, however, is liable to punishment as an accessory in the event:
1) That he exceeded the order, or
2) that he was aware that the order involved an act, the commission of which constituted a common or a military crime or offense."
Is this the paragraph you had in mind when you said that you would not carry out an order if you believed it to be a criminal order?
A Yes.
Q Field Marshal, do you consider yourself an officer of the old school?
A Yes, of course.
Q And what is the written or unwritten code of the old school officer of the German Army?
A That is, I believe is so universally known that I need hardly say anything about it. It is of absolute necessity to do one's duty and show absolute decency in one's actions and, of course, justice with humanity.
Q Does it also include personal honesty and integrity, and personal morality, as well as profession honesty, integrity, and morality?
A That is, of course, the pre-requisite.
Q Do you believe that throughout your career in the German Army you have lived up to that code?
A Yes, I am of that view.
Q Do you recall being interrogated in connection with this case prior to the time the indictment was handed down against you?
A Yes, I do.
Q Do you remember how many times you were interrogated?
A I believe five or six times.
Q Who was present at those interrogations?
A The Interrogator; secretaries; and at another time two American officers were present; and at another time two civilians were present who were unknown to me.
Q Was there a guard from the prison always present with you as well?
A Yes, he was also present.
Q Field Marshal, you said yesterday that you made some notes of the time when you took leave until the time you returned from leave. When did you make those notes?
A In my diary.
Q You made them at that time--1941?
A Yes, 1941.
Q Where are those notes now?
A My lawyer has them.
Q Did you have them throughout the time you were hero in Nurnberg, in the Nurnberg jail?
A No.
Q When did you first get them?
A In the course of the trial Dr. Laternser once showed them to me.
Q Where did Dr. Laternser get them, if you know.
DR. LATERNSER: I object. Your Honor, I have no objections against these questions, but here I must protest these questions because they relate to my relationship, that is my relationship of defense counsel to my client, and that cannot be used in examination, and I only protest for these reasons.
THE PRESIDENT: The objection to this question will be over-ruled.
BY MR. FENSTERMACHER:
Q Do you know where Dr. Laternser got them?
A Yes, he got them from my wife:
Q Had you seen those notes between the time you made them in 1941 and the time when Dr. Laternser showed them to you?