It can also be seen from this that after the Corps Staff had left and since the headquarters of the Corps Staff was certainly known to the OKW they certainly talked about this point; a new situation had arisen because of the Italians falling out and it was quite clear that the Corps Staff had to be transferred.
Q. Let met ask you this, General. You went into this conference and General Rendulic, according to this, made what is at least a rather startling proposal to shoot 1,000 people and to arrest 1,000 more. You don't recall anything about that. Then immediately following that is a reference to a conversation which General Rendulic had with Hitler about, - well a short time before-- on the 16th of September, presumably in regard, as you say, to Banja-Luka but we could also speculate that it was about shooting hostages could we not, if we didn't know any more than what we see here?
A. I must assume that as General Rendulic had only recently arrived in the area; when he reported to the Fuehrer he of course talked about this area.
Q. But you don't recall what the conversation was; you don't recall what General Rendulic told you that he and Hitler had talked about?
A. No.
Q. All right, now let's turn to the meeting which you had with the German Ambassador Kasche, a little while before this meeting. This is reported in Document NOKW 1796. It is Exhibit 561, Document Book XXV, page 15 of the English and 13 of the German. Now, you tallied about this in connection with the so-called executive authority which you had. General, I wish you would tell me exactly what you mean by executive authority. You say you didn't have it. What was it?
A. Executive power means, as far as I know, that Legislative and executive powers are combined in one hand. For instance, in an emergency case then the commander was Lord over life and death, it I might express it like that.
I am no lawyer and I don't know how you would express it.
Q. It is not important what some lawyers' legal concept is in this connection. What is important is your own. In other words your idea of what is meant by the expression executive authority is a telescoping of all authority, judicial, legislative, executive, military, everything into one person's hands.
A. Yes.
Q. General Lueters I think you said had that authority, but you didn't.
A. No, I didn't. He was Territorial Commander and as that he had it. I was a tactical officer and as such I did not have it.
Q. Let's look at this entry for the 23rd of October 1943 which is on page 13 of the English and it says here in case of increase in tension of the situation Lieutenant-General von Leyser demands unilateral, concise, executive authority which was confirmed to him on the part of the ministers. General, who was to determine whether there was an increase in tension of the situation.
A. I could only decide that on the spot.
Q. In other words---excuse me
A. Might I say how this discussion arose? I was quite new there and I hadn't yet taken over the Corps. The Ambassador Kasche came there with these ministers in order to discuss with General Lueters, my predecessor there, about who was to have the executive power and other tilings. General Lueters wasn't there, as I have already said, but as I was already there in order to find out what was going on, I, of course, took part in the conversation. The Chief of Staff told me on this occasion that it was always rumored that Banja-Luka was to be attacked and according to the duties of a soldier one had to make preparations and to decide what was going to happen. One had to take all necessary military measures for the defense of the respective place and as a soldier I, of course, had to have everything at my disposal for this purpose.
As the situation was here in this Croatian state I had to be able to give directives to the Croatian authorities and for this reason, as this point was spoken about at any rate, I said "what will I do? Will I get permission from you, if fighting goes on here," and then these people answered me, "yes, if you on the spot determine that it is absolutely necessary then you will have this possibility in agreement with the competent local Croatian authorities there, because in such a position one certainly doesn't have any possibility of getting into contact with Zagreb, with the Croatian Government." First of all I have quite different things to do and secondly, it isn't guaranteed whether I get a connection or not. Therefore, this is a precautionary measure, a precautionary request which the men agreed to.
Q. What I was getting at was that someone obviously had to make the decision as to whether there was an increase in the tension of the situation and that person was you?
A. Yes, I was that person.
Q. Now, this is not confined to any particular area in your Corps, is it, you could make that decision anywhere in the Corps area.
A. Yes, if it had been necessary I could certainly have referred back to this affair.
Q. Was this ever rescinded the whole time you were there?
A. This wasn't a fixed agreement which was to be held to. This was all agreed upon by way of conversation, and if was appropriately said "If this is absolutely necessary then you can do this because then you will not be able to take up contact. That was the sort of thing that was said, and this conversation after all was specifically concerned with Banja-Luka, which case actually became acute later on.
Q. What this seems to boil down to, General, is after this con ference with the ministers you had this executive power whenever you wanted it, that is to say, all you had to do to have executive authority was to announce that an increase in the tension in the situation existed.
A. That was the pre-condition. I couldn't do it just like that, but only in really urgent cases. In addition if I could not make contact with the Croatian Government or its representative.
Q. Well, now that last condition isn't in here?
A. No, but it is a matter of course. If there is unrest, such as occurred after the first World War in our own country, then a state of emergency was proclaimed for a certain district, and then, of course, one had to get into contact with the competent authorities.
Q. But any time you judged there was an increase in tension of the situation you could delegate unto yourself all the governmental powers that existed in any particular area that you chose, is that correct?
A. If I could not get into contact with the Croatian Government.
Q. Now, the next subject you mentioned was band warfare, and you repeatedly emphasized that the bands weren't entitled to be recognized as belligerents under International law, because they didn't have any kind of standard organization, no means of identifying them in the way of uniforms, etc. I want to ask you a few questions about some documents which you passed over lightly during your direct examination. The first one is found in book XIV, Document NOKW 808, Exhibit 354, page 105 of the English and page 77 of the German. This is a situation report to the 14th Corps, from, I believe, the 373rd Croatian Division?
A. The 22nd November is the date.
Q. I take it you read this document and are familiar with it?
A. Well, on the document itself there really isn't a sign I have read it.
Q. If you haven't read it look it over now. I want you to know what you are talking about?
A. I have already read this before, but whether I saw it at the time I really can't say.
Q. Well, do you notice the exactness and precision all through that document with which the names, the numbers and locations of the various partisan groups are given?
A. Since it is a Ic report this Ic probably received this information by radio. Therefore the sometimes detailed information about the various enemy units.
Q. And how are those units described, isn't it given with particularity what the numbers of the various brigades were and to what divisions they belonged, where they were located, etc.?
A. It was of very great importance for us, first of all to know where the bands were and I think I already stated this in my direct examination that we found this out through the enemy radio to which we listened, and which we maintained the designations used by these bands in our reports, so that there was equality, because if every corps and every division would have had its own designations for the various band units. The Corps and later the Army wouldn't have known which was which. As a result the designations which these bands gave themselves were simply taken over by us into our reports, and then we know which bands we were talking about.
Q. Well, now you will notice down there where it refers to the 8th Division, I believe it is on page 8 of the original?
A. It has only got six pages.
Q. Do you see it now?
A. Yes, I have got it now.
Q. Well, now here it describes how the first and second brigades of that division moved off to the East, while the First Brigade moved to the South, and at the same time the Proski Battalion withdrew to Rudnik. What was the Pro ski Battalion attached to, the 8th Division?
A. I don't know.
Q. And then it goes on down and describes the 7th Division and the 13th Division, and describes where the various brigades of these divisions were. Well, now when this report came in you must have been in the process of planning the operation Panther, were you not?
A. Yes, at this time, the 22nd of November, and I think according to the documents or the first order, our first report about operation Panther arrived on 28 November. That must have been shortly before this time.
Q. So naturally this intelligence report here would have been of interest to you in planning the operation, would it not, since these were some of the troops you wore going to have to contend with?
A. Yes, the ones he probably told me about at that time for that reason.
Q. And then later, this time in Document NOKW 1375, which is in Book XV, at page 27 of the English and page 25 of the German, there was prepared an even more extensive intelligence report, which is called an Enemy News Sheet. Are you familiar with this document?
A. This is a report, which according to the signature is from the Ic of 2 December 1943.
Q. That is Ic of the 15th Corps?
A. Yes, at that time the Ic certainly gave me this report.
Q. And this was also drawn up, I take it, as one of the preparations that was made for the operation Panther?
A. Not for the operation Panther itself, but this kind of report was continuously made by the Ic on the basis of the reports which we received. He summarized them and then this was used for any operations we might undertake.
Q. In other words, the Ic of the Corps would make the intelligence reports or situation reports of the various divisions, such as the document I just locked at, and would periodically collect all this material and make a compilation of all the information you had about the enemy in this area?
A. Yes, according to this.
Q. And this was, I take it, for the information of the Corps Staff and for your information?
A. These reports were actually more for submission to superior quarters, because I was told currently about the condition every day during the situation conferences, about what was going on in my area.
Q. And what is contained in such a report as this, since it is going to be passed on, say to Army Headquarters, is certainly as ac curate as you can get it, is it not?
A. On the basis of the reports he received he compiled this, yes.
Q. Now, here again we notice the three divisions which were mentioned in the Divisional report, that is the 7th, 8th and 13th. I will call them Partisan divisions to distinguish them from the Legion divisions. At the bottom of the first page the 7th, 8th and 13th Partisan Divisions are mentioned?
A. Yes.
Q. And it says there that these three divisions formed the 4th Partisan Corps, and then there is something illegible here. I suppose that that refers to the Partisan Army Group to which the 4th Partisan Corps was attached? Isn't that a reasonable assumption to make?
A. I don't understand. You said to the Army Group?
Q. No, I said there is something illegible here.
A. Not on my copy. Everything is quite clear on mine.
Q. Now, you say you are familiar with the situation yourself from these day-to-day reports you received from your Ic at the afternoon conferences; I suppose you know of your own knowledge whether the 4th Corps was subordinate to the Croatian main staff. It is mentioned here, but it is not too clear that the 4th Corps was subordinate?
A. Of course, I can't say this any more at the moment. All these bands, all had given themselves highly bragging designations, and to whom the 4th Corps belonged and to whom it was connected I really can't say.
Q. But the 4th Corps, generally speaking, comprised most of the partisan troops that were in the area of the 15th Corps?
A. That was changed. For instance, if we chased the bands then they went into another corps sector, and then they suddenly cropped up somewhere else. They weren't troops which were regularly moving here or there, but just went away from where ever we chased them.
Q. And at the time this intelligence report was made the 4th Partisan Corps comprised the main strength of the enemy you had to. contend with?
A. As far as the Ic writes this probably was monitored from enemy radion, and whether this was up to facts one must decide by the individual case; but I think what you are driving at is to find out whether this is absolutely 100 per cent correct or not. But in war one never can be sure whether a report is 100 per cent correct.
Q. Not whether it is 100 per cent correct. I realize there were bound to be inaccuracies, and that the Partisans were not accommodating enough to furnish you with information, but it is true the 4th Corps, according to this report at least, seems to include most of the socalled bandits groups in the area of the 15th Mountain Army Corps, is that true?
A. That is what it looks like, but as I said, they kept on moving around all over the place.
Q. But this was the latest information on it at that time?
A. Whether it was correct two days later I don't know.
Q. Well, now then let's look at this description they give of the composition of one of these divisions. Let's take the -- 7th, the 8th or the 13th; let's take the 7th. It comes first numerically. Do you find the 7th Division?
A. Yes.
Q. Well, now first let me ask you this, what was the usual strength of a German Infantry Division?
A. A German Infantry Division had 12 to 15 thousand men.
Q. That varied, of course, according to conditions, I take it?
A. We nearly always had 12,000 men in one division.
Q. Now, according to this report what was the total strength of the 7th Division, the 7th Partisan Division?
A. Usually a division was about equal to one of our regiments, but that also varied often.
Q. I believe that at the end of the report here it gives the strength as around 5,000 , so that would be, if that is correct --
A. Then the division must have been very strong. Usually they weren't any stronger than about 2,000 to 3,000. That was a very high strength already.
Q. Where was this, do you happen to recall where this division was located at the time the Panther operation took place?
A. No, I don't remember that any more.
Q. Well, now, let's lock at this report of the 7th Division in some detail. You have already glanced over it, I assume?.
A. Yes, I have got it.
Q. Now, this division, according to your intelligence officer, was divided into four brigades, I believe, wasn't it?
A. Yes, as it states here.
Q. And then the brigades were in turn divided into separate battalions?
A. Here I can see that the various divisions are divided up into brigades of which the strength is different, one has 8,000, one has 9,000, and one has 1,000 men. And here is another group, yes, it has three battalions of in all 500 men. Those were the designations they certainly had.
Q. Well, in many cases doesn't this report also furnish the names and professions, not only of the officers in the brigade staff, but also the names of the officers and political commissars of the battalion. In one instance it even gives the Battalion vetinarian's name?
A. Well, it probably was mentioned somewhere in the report, or in the radio broadcast,but it can also be seen here from the reports how the divisional staff did not remain in one place. Once it was here and other times it was there. It didn't always remain at the same place. It kept moving around.
Q. And the heavy weapons of these brigades are also described in some detail, are they not?
A. Yes, but not very much. They were probably the ones which they took over from the Italians. It wasn't the proper equipment of the Division.
Q. Well, now will you turn to page 12 of the original?
A. Yes.
Q. It is on page 42 in the English, page 43 of the German. Would you be good enough to read the first sentence which follows the heading: "Rank, Insignia."
A. "With the 7th Division the yellow officers badges (which is 3 Stars, with one to 3 stripes for generals, staff officers two, and other officers one stripe.) This has already been carried out."
Q. Well, General, as far as this troup of 5,000 men here is concerned in this 7th Partisan Division, is it your contention that at the time this report was made that they were just an unorganized armed group who had no particular leadership, or table of organization?
A. They were certainly organized, but they gave themselves here designations which could not be understood from a military point of view, because what they understood by a division was different with us. From the various strength alone this can be seen, because an artillery regiment, if it is a proper artillery regiment will request a number of guns. One can't call this regular army, they were just bands.
Q. Well, now the Hague Convention doesn't require that a regiment have 5,000 men in it , does it?
A. No.
Q Well, the Intelligence Officer who wrote this report seemed to understand what was meant by a regiment. He wrote down the number of men it had in it, the names of the officers, the insignia they wore, the arms they had. He seemed to understand what was meant by a regiment.
A Just because the people gave themselves designations, this doesn't make them a regular army.
Q Well, excuse me, General, I am talking now about your contention that those people were not entitled to be recognized as belligerents, first, because they didn't have any organization and, second, because they didn't have any insignia, they weren't recognizable as soldiers. Now you arc falling back on something entirely different, it seems to me. Let's just stick to those two points first. You can certainly gather from this that there is not only an organization but a rather elaborate organization among these people, even though it didn't live up to your standards of what an army organization should be, so far as numerical strength was concerned; isn't that right?
A Well, but that certainly doesn't give these people the right to act like this after the Yugoslavian Army had capitulated, they could not just go and sot up an army.
Q But you are talking about a slightly different concept. You are now falling back on your other argument, which is that these people couldn't be called belligerent because there was the Croatian Domobrans in existence which was an Ally of Germany and it was the only regular Army in the country, that therefore no other army could exist. That is what you are talking about now, isn't it?
A Yes.
Q Well, I don't want to discuss that concept just now.
I just want to take up the first two things that you talked about -- the organization and the fact that these people could not be recognized as soldiers -- and I think it is clear from this document that in the case of this particular division those two objections don't apply, do they?
A I don't understand. I can only say that what is reported here was reported at that time by tho Ic and that we maintained their designations in order to have some kind of idea about what bands there were.
Q Well, now, General, the other day when you were discussing the Panther operation the Presiding Judge interrupted you and after you had -- and asked you how many men were taking part in the resistance, or, at least, how many partisans -- how many "bandits", as you called them -were involved in the group which occupied the area that you were supposed to mop up and you said "about 5000". Do you remember that?
A Yes.
Q And then the Presiding Judge asked you, "Well, what kind of organization did they have? Did they have any leaders?" and you said you didn't have any idea about that at all.
A I was asked whether I knew the officers. Of course, every band had officers, but they weren't only for these 5000 or 6000 men, these two brigades, but they were for the whole area, and then there were these individual small bands. If 10 or 20 or 100 or however many people there were in these bands grouped together they had to have some kind of leader or officer. That cannot be denied.
Q Well, you just said a minute ago that the 4th partisan Corps contained most of tho men who were fighting with these men in the -- who were fighting in the 15th German Army Mountain Corps?
A Yes, according to this report, it seems as if this was the case in my area.
Q Now, the 4th Partisan Corps area, according to this report, was divided into three divisions, and the report not only describes the divisions but also the brigades and battalions and detachments and gives the names of the officers even in the small units, as those of a battalion. That is true, isn't it?
A Yes.
Q. Well, you were interested in this for you own information, weren't you?
A Yes, that was the basis on which I formed my judgment about the bands.
Q Well in the face of your knowledge at that time of this elaborate organization that the Partisans had in the area of the 15th Corps, how could you sit there and tell the court the other day that you didn't know anything about the leaders, the leadership of the organization?
A I was asked and I understood it to mean whether I knew who the officers were -- who the officers were. I think that is what it was. I can't remember it exactly any more.
Q Well, now, here is the English text of what you said on the 7th of November. The Court asked you, "Where a force of 6000 men is concerned, it naturally would be divided into military units, would it not?" and your answer was, "That might quite easily be the case in the instance of these bands, and they did give their units names." As a matter of fact, when you made that answer you knew perfectly well that all of these people that were in groups whose designation was perfectly well known to you at the time or to your Intelligence Officer; isn't that true?
A The fact that the bands had officers, of course, I knew that, but I didn't know the names; I didn't know who they were.
Q Nobody asked you the names. The Court didn't ask you what the names of the leaders of these bands were.
A No, but they asked me "who".
Q. What they asked you was, "Well, was anyone in command of these 6000 individuals or soldiers or whatever you may call them?" and your answer was, "I am afraid I can't state that. I don't know."
A I said: I am very sorry, I can't tell whether these 6000, as it states here were led by one man as a brigade or something like that, or whether they spread over the country in small units and each of them had a leader. I really don't know. I didn't know that. From this report as you say it can be seen that if it was the 7th Brigade, then the 7th Division had an officer, but whether during the Operation Panther, whether all the units concerned there had one leader, I couldn't say because I didn't know.
Q Well, now, another thing that you testified to on direct examination was that these bands had the habit, when they were approached by the German troops, of suddenly dissolving into nothing, that they threw their caps with the red stars on them away, hid their rifles under rocks, and became little harmless civilians; is that correct?
A Yes.
Q. Well, General, how do you go about hiding a heavy motor under a rock? There are said -- Several of these battalions are described as having a good many heavy weapons. I realize they were not up to your standard, but still they did have some.
How were they able to melt away in this manner?
A They actually disappeared into nothing and that was their characteristic. Of course, they couldn't hide their guns in their pockets. They didn't have their guns with them all the time. But the guns were hidden in some house or something like that, but they weren't like our proper troops who had their guns, their weapons in a courtyard or in a street, somewhere. These people didn't have their weapons in the usual place as proper troops had them, but they hid them in houses and covered them up with straw or something else, but only when the fighting started and they wanted to fire with these guns, then they had to bring them out. Otherwise, they couldn't shoot. But when the fighting was going on, one couldn't say that they didn't show the weapons, but as soon as they were out of the fighting and realized that they would likely get into difficulties, then they used to throw their guns away and then they would walk around like harmless civilians. As soon as we were successful with the Operation Panther then the people suddenly would disappear, but just previously they had been shooting. Why did they disappear so quickly? They probably hid their weapons quickly in a house. That was easy to do. of course, the heavy weapons, they couldn't hide as quickly. They were captured probably. And they were then going about as civilians, and a moment ago they were fighting in the same manner as ordinary soldiers are shooting. This was a very amazing fact. But I never heard about French, or English or Belgian soldiers who suddenly disappeared from a battle. They were -
JUDGE BURKE: The Court will take the usual recess at this time.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
PRESIDING JUDGE BURKE: You may continue, Mr. Fulkerson.
BY MR. FULKERSON:
Q This enemy news sheet that we discussed was dated the 2nd of December 1943. I want to turn to another document now of a slightly later date. This is NOKW-1331. It is in Book XV, Exhibit 367. It is page 24 of the English, 23 of the German. It is a rather longish affair but I am only interested in one sentence, the one contained in the daily report for December 2, 1943, concerning the 264th Division. It says: "The medium sized band in English uniform transferred from Brac and Vis to area south of Primosten confirmed." Did you find it?
A Yes.
Q Now, isn't it reasonable to assume from that report that all the members of this band were clothed in English uniforms?
A It says: "Medium sized bands are being transferred in British uniforms from Brac to Vis." Vis is not within any sector at all. One can conclude from that that this medium sized band wore British uniforms.
Q And if any of them had been garbed differently, that would have been mentioned in the report, wouldn't it?
A That the whole of the band wore uniforms is not necessarily so from this report. One might assume it. After all, it is only a small or medium sized band. There are not too many people there. The possibility exists because here we are concerned with the islands and I believe Vis was a strong point from where British arms were landed which is the reason why some of the people wore partly uniforms.
Q Well, that is to say when we look at these daily reports generally and we find that it says so many people, some of whom wore black uniforms or so many people some of whom were in grey uniforms, it was important, was it not, for the Ic to know whether the whole hand was in uniform or whether only some of them were?
A On direct examination I stated if the report is, say, that this or that band wore black uniforms or as, in this case, British uniforms , this was an exception. That did not mean that all of them wore them. Perhaps only some of them did.
Q But the other reports state that only some of them did. A distinction in other words, seems to be made in these reports between bands only some of whose members were in uniforms and members all of whose bands were in uniform.
A But here we happen to have a report that by chance they were wearing uniforms and we are concerned only with a medium sized band, 40 or 50 men perhaps, who came from Vis and in Vis they were probably given these uniforms.
Q That is something else I want to ask you. What is your definition of the size of these bands. Now, as I recall it, you have mentioned small bands, medium sized bands and large bands. What is meant by those different terms?
A That varied very much. By a small band I may mean anything between 1 man and 50 men. A medium sized band may be anything between 35, 50 or 100. A large band would be, perhaps, a battalion even; that you would call a big hand.
Q Now, you testified earlier that one of your objections to this use of nomenclature such as battalion, regiment, brigade, division, and so forth as used in connection with these bands was that they didn't convey an accurate idea of the number of men who were actually in them. Is that correct?
A The strength of a band varied and, therefore, these terms were not precise.
Q Well, are the terms that you propose - that is small bands, medium size bands and large bands - are they any more precise than these other terms?
A They designate merely the strength of the band as compared to the strength of our own troops, for instance, any numerical precision there by is not given if you say a "medium size" band.
Q I know but if we use the word, the term "large band", you mean a sort of indeterminate number of people. It might be 5,000 and it might be 500.
A Yes.
Q That you think is more accurate than saying "1 brigade" or "2 brigades."
A The reason there is that this troop here does not know what sort of brigade is opposite them. They simply report "a large band" because the troops themselves did not know the Ic report so well so that they could say: "This is the xth brigade which we have to face"; but what was most important was whether they said: "This is a large band" or perhaps "it is only ten men."
Q So that - did I misunderstand you the other day? I thought you said that you personally objected to the use of these military terms, this military nomenclature to describe the size of these bands. Am I wrong about that?
A I didn't say that hut perhaps you have in your documents an order of mine which I issued at the time when I encountered the battalion toward Zara, as I told you the other day, and the Italian commander, on the basis of the reports he had received -- namely, that he was facing an entire division - thereupon believed he could not attack with one battalion. That is how I described it the other day - what was to be understood by a battalion or a band. I can remember that and I thereupon issued an order on one occasion that, as these troops were now down there, it should not always be reported about divisions and brigades because that to them , as they were troops in a new area, would be confusing and they were to make distinctions between small bands, medium sized bands and big bands.