' I no longer recall the expression; perhaps it was 'hangman'. I only recall that I absolutely refused to carry out this command. I do not recall the circumstances but I definitely remember the facts as such."
Were you asked that question and was that your answer at that time?
A. Yes.
Q. Field Marshal, do you recall now what order you had in mind when you refused to carry out an order of OKW?
A. I cannot say with certainty even today which order that was.
Q. Field Marshal, I now show you Document NOKW-860, which is Prosecution Exhibit No. 2 in evidence. This is in Document Book 1, Your Honors, on page 1 of the English and page 1 of the German.
Is that your signature at the end of that document, Field Marshal?
A. Yes, it is.
Q. Would you pass the document to the Tribunal, please?
(The document was passed to the Tribunal.)
THE PRESIDENT: Are you through with the questioning of the witness on the documents of which there is only one German copy?
MR. FENSTERMACHER: Yes, I am, Your Honor.
THE PRESIDENT: Is there any objection or reason why Dr. Laternser may not have it now?
MR. FENSTERMACHER: No, the court interpreter may pass it to him now.
THE PRESIDENT: Have you been furnished with the two documents, Dr. Laternser?
DR. LATERNSER: Yes.
THE PRESIDENT: Very well, you may proceed then along your proposed line of cross examination at this time.
BY MR. FENSTERMACHER:
Q. Field Marshal, I now show you Prosecution Exhibit 107. This is in Document Book 3 at page 103 of the English and page 76 of the German. Will you look at page 2 of that document, Field Marshal? Is that your signature?
A. Yes.
Q. Would you pass the document to the Tribunal, please?
(Document passed up to Tribunal)
MR. FENSTERMACHER: I have no further questions, Your Honor.
MR. DENNEY: Your Honor, I have just one document I forgot to put to the witness the other day. I wonder if I might ask him. I have the original here.
THE PRESIDENT: Very well.
BY MR. DENNEY:
Q. It is Document -- Exhibit 19, which is at page 68 in the English book and page 49 in the German Book 1. It is the teletype from the Commanding General of the 65th Corps addressed to the Armed Forces Commander Southeast. Did you see that document?
DR. LATERNSER: Your Honor, I don't know how Mr. Denney will examine the witness. When the cross examination was interrupted, I gave my agreement that for an exception there should be an exchange of prosecution counsel. During the International Military Tribunal it was the custom that one member of every prosecution team was allowed to examine a witness, and for the future I want to refer to this ruling and I now want to object that Mr. Denney again examines the witness.
THE PRESIDENT: Is it for the purpose of introduction of some document?
MR. DENNEY: I just want to ask him whether or not he has seen this. I didn't have the document on Friday - the original.
THE PRESIDENT: You may proceed briefly.
BY MR. DENNEY:
Q. Have you ever seen that document before?
A. If I had seen that document, I would have initialed it. My initial cannot be found on this document.
Q. Whose writing is it that appears below the typed part of the message?
A. That is Foertsch's handwriting.
MR. DENNEY: That is all, Your Honor.
THE PRESIDENT: Is there any re-direct examination?
RE-DIRECT EXAMINATION BY DR. LATERNSER:
Q. I want to revert to various questions which have resulted from cross examination. First of all, I want to revert to the main question, that is, the character of the partisans. What concluded the war between Germany and Yugoslavia?
A. The end of the war between Germany and Yugoslavia was brought about by a capitulation of the Yugoslavian army and a conclusion of an armistice with representatives of the Yugoslavian government.
Q. Do you know which government these representatives represented, so to speak?
A. I personally cannot say that from my experience. I can only say that from hearsay, that these were representatives of the old Serbian government.
Q. The war ended as you said by a capitulation of the government and the army?
A. Yes.
Q. If a state has capitulated, can legal bands be formed in its territory?
A. No.
Q. Now what can these bands represent in every case then?
A. These can only be insurgents, illegal bands and guerillas, who have turned against the occupation power.
Q. You just said that these were illegal bands. Who supported this fight of the bands which was contrary to international law?
A. At the beginning it was doubtlessly supported by Moscow.
Q. And in the subsequent time?
A. Via Sofia and subsequently especially by the British and later I believe also by the American army.
Q. In which form was this fight which was contrary to international law supported?
A. At the beginning by proclamations, especially on the part of Moscow, by the distribution of pamphlets, posters, and later on by dropping weapons from airplanes.
Q. Do you know the extent which this dropping of arms and munitions reached later?
A. I cannot remember this in detail.
Q. You spoke yesterday in this connection of the uprising in France in the years 1870-1871. In that case, I only ask whether you know - did in that case the French government or the army capitulate or had none of these two capitulated?
A. I cannot recall this at the moment. The southern army had certainly not capitulated; as far as I remember, capitulation or an armistice had not been concluded by the French government. Paris was surrendered certainly, but a truce had not been concluded between the governments.
Q. Now what is the difference between that time and the conditions which you then saw in Yugoslavia?
A. At that time there was still a French government in the country. There were still strong remnants of the French army which had not been beaten, and these remnants of the French army attracted the franc tireurs in smaller groups and which later appeared in larger units. These franc tireurs were used in the fight by the army.
Q. Was that at that time a levee en masse?
A. Well, in parts one can call it that.
Q. I now mean France.
A. Yes, France.
Q. Do you know whether this levee en masse is represented in international law?
A. I don't know this at the moment.
Q. Now we have dealt with Yugoslavia. Now how did the war against Greece end?
A. The war against Greece ended with two capitulations, the capitulation of the Thracian army and the capitulation of the Epirus army.
MR. DENNEY: If Your Honor please, I think we have been over all this before. Dr. Laternser covered it on his direct.
THE PRESIDENT: I have just been checking. It has been, somewhat. It will be the attitude of the Tribunal to extend some liberality but in doing that we trust that the counsel will not take advantage and extend the examination. If it is, we will have to restrict it.
We will take our morning recess at this time.
(A recess was taken.)
THE MARSHAL: You may proceed, Dr. Laternser.
DR. LATERNSER: Your Honor, may I now announce to the Tribunal that after the conclusion of the examination of Field Marshal List I shall produce a witness, Oberregierungsrat Dr. Gerd Fein. I notified the prosecution of this fact as early as Saturday. The examination will last only half an hour.
REDIRECT EXAMINATION (continued) BY DR. LATERNSER:
Q. You were asked whether you had ordered wagons with hostages to be used in front of trains and you denied that question?
A. Yes.
Q. Do you know whether this measure is permissible by international law?
A. Yes, it is permissible by international law.
Q. Where would one find such a regulation?
A. I can't say at the moment. What kind of regulation?
Q. I am submitting to you an excerpt from American Land Warfare from the year 1940 and I ask you to look at paragraph 359--
MR. DENNEY: Your Honor, I don't know what this has to do with American Rules of Land Warfare. I don't see where this is relevant.
DR. LATERNSER: I withdraw the question, but in this connection I would like to draw the Tribunal's attention to paragraph 359, American Rules of Land Warfare, that this example has been put.
MR. DENNEY: Your Honor, please, I think if Dr. Laternser wanted to bring that up in argument it would be all right. I don't think this is the place to go into the rules of land warfare.
THE COURT: Sustained.
Q. The Prosecution has further alleged military successes of the bands. Who withdrew, when fights took place?
A. Who withdrew? Well, generally speaking the bands.
Q. Now we will shortly turn to Serbia again. Who in Serbia lead the Guerilla warfare?
A. It was lead by several parties. There were bands of a Communist nature; there were the Mihajlovic bands; and the Kostja Petjanic bands; and the Comitadchis.
Q. I meant to say who amongst the Germans?
MR. DENNEY: Your Honor he has been over all this.
DR. LATERNSER: That is only a preparation. I am just laying the foundation. In this connection I will come to another point. Who, on the part of the Germans, was in charge of the band warfare?
THE PRESIDENT: You may continue briefly. I again must caution you Dr. Laternser not to cover ground that you have previously covered in your direct examination.
BY DR. LATERNSER:
Q. I had asked you who, on the part of the Germans, lead the band warfare in Serbia?
A. After the appointment of General Boehme, the Plenipotentiary General.
Q. Did you reserve decisions in respect to General Boehme?
A. No.
Q. Why not?
A. The appointment of General Boehme had as its purpose that there should be a uniform leadership in Serbia and from Athens the Guerilla warfare in Serbia or rather the fighting of that warfare was to be handled. That was in view of the communication lines. Only a personality can do that who is close to the actual scene.
Q. In this connection you were shown the Boehme order of the 10th of October; that is, Exhibit 88?
A. Yes.
Q. On which order is this order of the 10th of October based?
A. The Boehme order is based on the Keitel order of the 16gh of September and he designates it as an addition to this order.
Q. Do you recollect that this order of the 10th of October mentions your order of the 5th of September, that is, Exhibit 42?
A. No, it does not refer to it.
Q. You have frequently been asked about your order of the 5th of September, Exhibit 42, during the cross-examination. Now I wanted to ask you what was the main reason or main reasons for issuing this order?
A. I have already testified that it was the crisis in which I found myself; that I was under pressure; from above, that is from the OKW; that demands and directives came in again and again, the last one of those on the 5th of September itself, and that was an important reason; the whole manner of the band fighting which was shown in the band regulations for the Communist Party, and it was the intention as it was laid down in the last paragraph of the regulations that the only and most important task of the occupation forces was to put down this insurredtion.
Q. In connection with the OKW order of the 16th bf September, Exhibit 63, you have said that after your objectives had at first been successful, which you had followed in regard to this order, you didn't do anything further additionally. What subsequently did you do?
A. Subsequently I issued the order or rather the teletype of the 4th of October on the basis of the impressions that I had gained in the meantime, especially on the basis of impressions which the chief of staff after his return from Belgrade had given to me and in this teletype of the 4th of October I had endeavored to mitigate matters inasmuch as I did not name any ratios for hostage measures.
Q. And I am drawing the attention of the Tribunal to the fact that the teletype which the witness mentions at the moment is Exhibit 70. To whom did you address this teletype on the 4th of October, Exhibit 70?
A. I can't remember now the distribution list but it could have only gone to the Plenipotentiary Commanding General in Serbia as did all orders which were issued at that time.
Q. And why only to the Plenipotentiary Commanding General in Serbia?
A. Because he was the only Commander in Serbia who had executive powers.
Q. One more question in regard to exhibit 80, that is, the case of the Regiment 521 Signal Corps, according to which 2,000 persons were shot as reprisals. One question only: Do you know whether actually this number of people were shot?
A. No.
Q. What did you establish from the files?
A. I established from the files that according to the troop reports which arc present here 440 or 442 persons were actually shot.
Q. You mean reports of execution only to the amount of this figure?
A. Yes, only to the amount of this figure.
Q. At this time may I announce to the Tribunal that regarding this incident I shall produce a witness who will be in a position to clarify matters for the Tribunal. Now, a number of questions about a number of exhibits, short questions. You were shown the Rosenberg letter, Exhibit 4, do you know whether this letter actually went out?
A. No, I can't know that:
Q. Well now turn to Exhibit 14, that is in Document Book I, which concerns the Commissar order. What date docs this order bear?
A. I don't know that by heart.
Q. Then I will show you the exhibit. In the English Document Book I, on page 49 you will find the exhibit and in the German on page 34. Now, what date does this exhibit bear?
A. 8th of June.
Q. Where were you at that time?
A. In the Southeast, in Athens.
Q. Did you get there?
A. No.
Q. How you were told that it was also sent to Norway. Can you give an explanation to the Tribunal for this?
A. I said yesterday that I assume that those troops were concerned which were right up in the North.
Q. Do you mean the troops on the Finnish front?
A. Yes, the troops that were employed in the Finnish Front and actually the AOK Norway was employed at the Finnish Front.
Q. When did you come to the East?
A. At the end of June 1942.
Q. How much earlier had the order been distributed?
A. One year earlier.
Q. I am now turning to Exhibit 585 which was shown to you yesterday during cross-examination. In this order there was some talk about the shooting of a Commissar. Did you ascertain from this exhibit that the Commissar order was mentioned?
A. No, the order refers to a regulation of Korlick.
Q. Is it said in this exhibit why the Commissar was shot?
A. No.
Q. How were Commissars usually taken prisoners, by what troops?
A. Generally speaking by the Front troops, but I must emphasize that I, for my part, have no experiences in this direction. That is only natural because the Commissar would be with his troops.
Q. I will look again at Exhibit 14. Who was supposed to kill the Commissars according to the Commissar order?
A. It says under paragraph 2: "Political Commissars attached to the troops should be segregated and dealt with by order of an officer inconspicuously and outside the proper battle zone." Figure 2. It says: "When in action or resisting they are to be killed at once fighting."
Q. Exhibit 585 which was submitted to you yesterday. Did that originate with a rear area?
A. Yes.
Q. The combat troop in that case had taken the Commissar prisoner and I want to ask you does it say in this exhibit whether a court proceedings took place concerning this criminal action?
MR. DENNEY: Your Honor, again I think we have been over this. In addition Dr. Laternser needn't ask him about his own testimony.
DR. LATERNSER: Your Honor I can't be through with it yet because the Prosecution knows quite well that this document was only submitted yesterday during cross examination and I can't possibly have put a question in regard to it. I am just about to ask an important question with regard to this exhibit and that is similar to what the Prosecution did.
THE PRESIDENT: You may proceed.
BY DR. LATERNSER:
Q. Just one concluding question. Does it say in this Exhibit 585 anything about whether a court proceedings took place and why the Commissar was shot?
A. No.
Q. You further were shown Exhibit 22, which will be shown to the witness-- It is in Document Book 1, page 55 of the German, and I regret very much I can't say at the moment what English page.
THE PRESIDENT: 76.
THE PRESIDENT: 76. Dr. Laternser, my notes show that you referred to Document 22 in your examination of Thursday September 18. Now unless this is on some matter which has been brought up on crossexamination I think you should not go into this matter further.
DR. LATERNSER: Yes, Your Honor.
BY DR. LATERNSER:
Q. I shall then turn to Exhibit 30. That is on page 99 of the Document Book I, English, and page 75 of the German Document Book I. This document was submitted to you during cross-examination. What date does this exhibit bear?
A. 31 July 1941.
Q. Where were you at that time?
A. On leave. I suppose in Vienna.
Q. I shall now turn to Exhibit 48, that is also found on page 51 of the English Document Book II and on page 42 of the German Document Book II. In this document there is some talk about the four year plan. To clarify this matter I would like to ask you what was the meaning of the four year plan.
A. The four year plan was a program as to what achievements were demanded from industry during the course of the coming four years, from the industry of the Reich and the occupied territory.
Q. Just in order that everything should be clear about this question, had this four-year plan anything to do with the plan to weaken the Balkan population as the Prosecution asserts?
A. No, on the contrary. The industry in Serbia was built up and expanded in order to carry out this four year plan in the Balkan territory; the copper mine Bor which had been destroyed by the Serbs was rebuilt and machinery was brought there in order to bring up production to a certain level.
Q. Now, the last exhibit which I want to deal with here, that is exhibit 68 which has been submitted to you here. We find this on page 137 of the English Document Book II and on page 105 of the German Document Book II.
THE PRESIDENT: Dr. Laternser do you propose to examine this witness on some matters that have been developed on cross-examination?
DR. LATERNSER: Yes, Your Honor. Only on such points an the basis of notes which I made during cross examination.
THE PRESIDENT: My notes show that you went into this matter on your direct examination but I don't wish to restrict you concerning matters which pertain to the cross examination.
DR. LATERNSER: Thank you, Your Honor.
BY DR. LATERNSER:
Q. This order was submitted to you during cross examination in order to establish connection with the SD. All I want to ask you is what was the purpose altogether of this order which is Exhibit 68?
A. Exhibit 60 dated the 10th of October, that is employment of the Rosenberg Staff?
Q. Yes, it is exhibit 60.
A. The purpose of it was to establish what was the economic and disciplinary assignment of Detachment Rosenberg for the time while this Detachment Rosenberg was in the area of Southern Greece.
Q. That is Exhibit 68, I am sorry.
And what is the consequence of this orders what does it concern?
A. That this detachment is entitled to draw rations and quarter and that violations of discipline are under the authority of the Wehrmacht Commander, Southern Greece. In this case the members of the Detachment Rosenberg were enlisted men.
Q. On the basis of this exhibit 68 do we see a justification to give orders in a factual connection?
A. No.
Q. Field Marshal, to conclude, I would like to deal with the interrogations, the records of which have been submitted to you. Those are interrogations by Mr. Walter Rapp on the 15th of January and another interrogation by Mr. Walter Rapp on the 16th of January and one by Mr. Kreilsheim on the 7th of March 1947. So far I have not had a chance to look at these interrogations. I only want to ask you which way did these interrogations come about? Were they put down in shorthand?
A. Yes.
Q. Do you know whether it was written down in longhand afterwards?
A. I don't know that.
Q. Were you ever shown a copy of such an interrogation?
A. No.
Q. Did you have the possibility to make corrections?
A. No.
Q. Did you have the possibility to correct mistakes in the shorthand notes or to examine the interrogations?
A. No.
Q. Did you have an opportunity to check or to have cheeked the translation into English?
A. No.
Q. Did you ever sign anything in this connection?
A. I only signed my questionnaire.
Q. I am now talking about the three interrogations of the 15th and 16th of January and 7th of March, 1947?
A. No.
Q. Were you told for what purpose you were being interrogated?
A. No.
Q. Were you told that your statements might possibly be employed against you or might incriminate you?
A. No.
Q. Was it made clear to you that you were permitted to have counsel?
A. No.
DR. LATERNSER: Your Honor, at this stage of the proceedings I have at the moment no further questions to put to the witness - to the defendant Field Marshal List, but I reserve the right, after having looked through the material which has newly come in, to put questions to him which might result from this material, and to call him again to the witness stand.
I further reserve the right, in case that it becomes necessary, in connection with the submission of my document books, again to call him to the witness stand, because it may well be possible that in that connection I may have to put a few questions to him which I could not put before, because the document books were not ready at the beginning and not even now at the end of this examination.
THE PRESIDENT: The Tribunal has previously made an order which in substance covers the matters of your request, and you may be assured that the Tribunal will give you consideration in connection with further examination.
DR. LATERNSER: Thank you, Your Honor.
THE PRESIDENT: Are there any further matters in re-cross examination?
MR. DENNEY: If Your Honors please, we submit for the record that at this time two footlockers full of documents have come from Washington and have been sent to the Secretary General, in compliance with the Tribunal's order of 14 August 1947, and I believe Dr. Laternser is arranging with his colleagues to see a commissioner who has been appointed by the Secretary General in order that the documents will be available to all defense counsel.
THE PRESIDENT: In connection with that matter I would like to have Dr. Laternser come to my office briefly at the conclusion of this session, Dr. Laternser being the representative of the defense.
Are there any questions by members of the Tribunal? Judge Carter?
JUDGE CARTER: No.
THE PRESIDENT: Judge Burke?
JUDGE BURKE: Not at this time.
EXAMINATION BY THE PRESIDENT:
Q. Perhaps this has no particular bearing in connection with this witness's testimony, but for my own information, and perhaps as indicative of the witness's position, can you tell us briefly, Mr. Defendant, as to the set-up of the Army in its relation with the SS and some of these subsidiary organizations - the relation of the Army to some of these other organizations that had developed?
A. You mean relations to the SS, the General SS?
Q. Yes.
A. There was no relation to the SS, that is, to the General SS - no official relations. The Waffen-SS, so-called Waffen-SS, was naturally, wherever it was employed, tactically subordinate to the Military Commander concerned.
With regard to the SA, the case was that at the beginning it was employed to go with the so-called frontier protective organization for the purpose of securing the borders, but that was stopped, as far as I recollect, after the Roehm Putsch on the 30th of June 1934. As of that date there was no official connection between the Wehrmacht and SA.
Q. Was there any difference of opinion in connection with the administration of the Army and these various other organizations that developed?
A. Yes, there was. Up to the year 1934 considerable differences of opinion with the SA. Since after 1934 the SA lost esteem to quite a considerable extent and receded into the background, these differences of opinion did not appear to the same extent as before. There were certain differences of opinion all of the time, but they might well have been different locally. It depended quite a lot on the personality of the leader concerned, just as much as it was the case with the SS, also with the General SS; and after the creation of troop units of the WaffenSS, it was naturally regarded with suspicion by parts of the Army and was not popular, and I know also that the Commander in Chief of the Army continuously objected to the creation of the SS units.
Q. Was the authority of the Army in any way affected by these organizations?
A. One could not say that very well, that the authority of the Army was affected. Himmler might well have endeavored to gain more influence for his own person, but the authority of the Army in itself remained officially sustained. I say "officially" because I do not know whether in an indirect manner there was not a certain struggle against the Wehrmacht, especially in order to weaken the authority of the Army in Hitler's esteem.
THE PRESIDENT: That is all. Are there any further questions?
DR. LATERNSER: Your Honor, only one question to this question which was just mentioned by Your Honor regarding the SS.
BY DR. LATERNSER:
Q. Field Marshal, during the course of the war, as you know, SS divisions were formed, and you said that - if I understand you correctly they were subordinate with regard to tactical matters to the Army.
A. Yes.
Q. Please explain to the Tribunal what it means that they were tactically subordinate during combat.
A. The tactical subordination means that this SS unit has to account for its actions on the basis of such orders as were given to it by the military and in that case by the Army superiors.
Q. What actions do you mean?
A. Actions during combat, or in the actions preceding combat.
Q. Who punished a member of the SS if he committed a criminal action, a punishable action?
A. The punishment lay in the hands of the members of the SS, and if it became necessary to institute a court proceeding, that was done by special SS courts.
The SS member was not subordinate to the jurisdiction of the Army.
Q. Was it at all possible that a member of the SS was sentenced by a Wehrmacht court?
A. No.
Q. Who promoted an SS man during the period of his tactical subordination?
A. Himmler.
MR. DENNEY: If Your Honor please, I do not think there is any need of Dr. Laternser going further. It has not been show that the witness had any SS troops under him and it has not been show that he has been in the SS, and in response to some general questions by the Court Dr. Laternser now seems to be going pretty far afield. The wit ness's knowledge of these things, certainly with reference to the SS units, is questionable at best.
DR. LATERNSER: Your Honor, I only wanted to make it quite clear to the Tribunal what relations there were between the Waffen-SS and Army officers in actual fact, and I ask to be allowed to put two or three more questions. I shall soon be finished.
THE PRESIDENT: Perhaps I started you off on something that is hard to get away from, but we will have to conclude at 12:15.
DR. LATERNSER: By that time I shall be finished, Your Honor.
BY DR. LATERNSER:
Q. Let us assume a Spanish or Italian division, for instance, would be employed in the East. What would, in that case, have been the subordination? Let's make it clear to the Tribunal.
MR. DENNEY: I think we are going too far afield.
THE PRESIDENT: Sustained.
BY DR. LATERNSER:
Q. Who gave decorations to an SS man during combat?
A. He received it from his SS superior.
Q. What was the only relation between Waffen-SS and the Wehrmacht
A. A tactical subordination, a tactical order.
Q. That means during combat?
A. Yes, during combat.
Q. Do you know that there were stronger subordinations than tactical subordinations from Waffen-SS units to the Wehrmacht?
A. I do not know of an example.
DR. LATERNSER: Thank you very much. I have no further questions.
THE PRESIDENT: The Tribunal will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)