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?
A No.
Q Do you recall...
A I must correct myself. I probably have seen them since 1941, but not since I was in prison.
Q When did Dr. Laternser first show them to you?
DR. LATERNSER: I object. Your Honor, I am not actually concerned with the answer and what the Prosecution wants to fine out in regard to this, but I must protest that my relationship as defense counsel with my client is made the subject of an examination here, and that is not admissible.
THE PRESIDENT: The objection to this particular question will be over-ruled.
BY MR. FENSTERMACHER:
Q Do you recall the question, Field Marshal?
A I don't know when Dr. Laternser showed me these notes for the first time.
Q Field Marshal, do you recall being interrogated in connection with this case on the 15th of January 1947?
A Which case?
Q The case we are now hearing in this Court.
A That I was interrogated?
Q On the 15th of January 1947.
A. Yes.
Q At that time were you asked this question, and did you give this answer: "Q. How long did you stay in Greece?" "A. I was in Command until the 6th or 8th of October 1941."
Do you recall being asked that question and giving that answer?
A Whether I gave this date I cannot recall. If I said from the 6th to the 8th of October -- if I said that on the record, that must be correct. And here, when I talked to Dr. Laternser, I repeatedly said, and Dr. Laternser will remember it: "In my opinion I was sent to the Military hospital on the 8th of October."
If I have made this statement it is in complete conformity with my recollection that I commanded in Greece until the 6th or 8th of October and then fell ill. And I found out, by means of my diary, that actually I was not ill on the 6th or 8th of October, but that I fell ill on the 13th of October, and for a long time I told Dr. Laternser my operation had taken place on the 12th of October and that my illness had started on the 6th or 8th of October.
Q On the same day, January 15, 1947, were you asked this question, and did you give this answer: "Q. Has it been reported to you or did it come to your knowledge that Boehme carried out extremely sharp hostage measures against the civilian population?" "A. No, it has not."
"Q. And that the arrests of hostages sometimes were carried out in a ration of 1 to 50?"
"A. I cannot conceive this at that time. That this is said I do know from the documents which I have read here in Nurnberg, because I was here as a witness in the first trial. The hostage decree was issued by the OKW. I have repeatedly attempted to got this ordinance but I have not succeeded. According to the documents the order must date back about to the 2nd half of October, to a time when I could no longer get the edict. It is true that I once received an instruction, the exact contents of which have slipped my memory, however, much I try to recall them which demanded more severe measures on my part and against this I strongly resisted. I wrote a personal letter to Keitel informing him that he was unable to get the hang of the conditions in the Balkans from up there and that they should leave the responsibility to me."
"Q. Apart from that did you know, at that time, that General Boehme was carrying out extremely sharp and terrible measures against the civilian population in Serbia?"
"A. No, it did not come to my knowledge in the sense that I had to suppose that they had been particularly severe, but we had to proceed against the rebels with full strength as a matter of military necessity."
"Q. I am speaking of the hypothesis that some German soldiers within a small marching column..."
I'm sorry; I neglected to give you the German copy of the interrogation. I'm reading now at Question 62.
"Q. I am speaking of the hypothesis that some German soldiers within a small marching column might have been attacked and killed on the road by bands and that the malefactor was not found, but then the Military Commander give orders... "
THE INTERPRETER: Question 62?
MR. FENSTERMACHER: Question 62.
"...and that the malefactor was not found, but then the Military Commander gave orders to arrest from the surrounding places a few hundred hostages and to have them executed according to martial law."
"A. I believe this to be impossible; if it had occurred and had been reported to me, I should have taken very energetic steps. I should not have taken the responsibility for it in view of my christian and ethical attitude."
"Q. If we suppose that such measures took place, are you of the opinion that these measures would only have had an entirely false psychological success?
"A. Of course. The struggle became only harder as a result. Each one of our prisoners on the other side was being treated only so much the harder; the terrible atrocities in the Balkans were well known indeed."
Q. Were those questions asked of you, Field Marshal, and are these the answers which you gave at that time?
A. Yes, only this record has been reproduced partly incompletely. I have never received this record, and I have never signed this record. It has never been shown to me.
Q Then your recollection today is such that you believe those questions were asked of you and that those are the answers which you gave at that time?
A These answers were not quite given in the manner they are reproduced here. The first part, especially, does not correspond with what I said. At that time I could only answer what I had in my memory. I must emphasize today that during the whole time until I came to Nurnberg here, I was of the opinion that the Hostage Order had only been issued after the middle of October. In Nurnberg, in 1945, I learned from the interrogations and the examinations of Keitel that a Hostage Order was issued. At that time I made a note of it and asked that I be given access to this Hostage Order. Dr. Laternser was not in a position at that time to give me this order, and this note is still in my files of that time. And on this note it is written "16-10, Hostage Order from the OKW." And that is what I asked for. On the strength of this information I constantly believed that I had not given a hostage order, and I can only assure you and state that I repeatedly told my comrades that during my time a hostage order had not been received by me and had not been passed on by me. That as what I said in this record which you have just quoted.
Q. Field Marshal, will you turn now to Exhibit 42 in Document Book II, which is on Page 23 of the English and Page 21 of the German.
THE PRESIDENT: Will you kindly repeat the Exhibit No?
MR. FENSTERMACHER: Exhibit 42, Your Honor, on Page 23 of the English and on Page 21 of the German.
DR. LATERNSER: Your honor, I should like to draw the attention of the Court that regarding this exhibit, Mr. Denney has already asked questions, and Mr. Fenstermacher has also asked questions, and now we are turning to this point for the third time in cross-examination. For this reason I object.
MR. FENSTERMACHER: Your Honor, I am not going to interrogate in connection with this document at all. I simply intend to ask one or two questions to aly a foundation.
THE PRESIDENT: Very well; you may ask the questions briefly.
BY MR. FENSTERMACHER:
Q. Field Marshal, this is your order of 5 September 1941, is it not?
A. Yes.
Q. Do you recall being interrogated on 16 January 1947 and being shown this order at that time?
A. I was not shown the whole of this order. I was only shown a small paragraph.
Q. Were you shown Paragraph "f"?
A. Yes, that is right.
Q. Were you asked this question at that time, and did you give this answer: Question: "In Paragraph "f" you brought in accordance with your Christian and ethical feelings with which reference was made not to a situation brought about by Boehme's order..." Question 29; I'm sorry.
DR. LATERNSER: Records are being used here of which I have no copy. If they are used in cross-examination I must be given a copy alone for those reasons that I am enabled to examination the translation for its correctness and therefore I ask, Your Honor, that the Prosecution refrain from asking questions regarding these records until he has given to me a copy in English and German.
THE PRESIDENT: Is this to be offered in evidence?
MR. FENSTERMACHER: No, it is not, Your Honor.
THE PRESIDENT: Then, what's the purpose of it?
MR. FENSTERMACHER: To have the witness explain and clarify exactly the inconsistences between what he said in an interrogation and what he testified to on direct and cross-examination.
THE PRESIDENT: The objection will be over-ruled, but I think before the witness is excused, the counsel for the Defendant should be furnished a copy, and it should be furnished now.
MR. FENSTERMACHER: I will be glad to do that, Your Honor.
DR. LATERNSER: Your Honor, I ask you pardon for coming again in this matter. Actually I need this copy now in order to follow the actual proceedings. I always place a certain value on following the proceedings, and I can't do that at this moment.
THE PRESIDENT: The request will be denied. The nature of the question is apparently directed towards the credibility or the extent of the witness's remembrance, and that matter may be gone into briefly. As stated before, the counsel for the defense should have this copy before the witness is discharged.
Q. Field Marshal, were you asked this question on the 16th of January 1947 in connection with sub-paragraph F of your order of 5 September 1941?
"Q. Can paragraph F be brought into accordance with your Christian and ethical feelings in which reference was made to a situation brought about by Boehme's own hand" -- I beg your pardon -- "in which reference was made not to a situation brought about by Boehme's own hand but to an order given by you to Boehme?
"A. With the best intention, I could not recall it, especially because I had actually been opposed to these things.
"Q. Did you order them, nevertheless, somewhat illogical arrest of hostages, sending of relatives to a concentration camp, etc?
"A. --
THE PRESIDENT: Mr. Fenstermacher, can't you break up your questions and make them so you won't be having a long series of questions and then a long series of answers? Then we will know what the record is.
MR. FENSTERMACHER: Very well, Your Honor.
BY MR. FENSTERMACHER:
Q. Let's take the first question, Field Marshal.
"Can paragraph F be brought into accordance with your Christian and ethical feelings in which reference was made not to a situation brought about by Boehme's own hand but to an order given to you by Boehme?
"A. With the best intention, I could not recall it, especially because I had actually been opposed to these things."
Were you asked that question and did you give that answer?
A. Yes.
Q. Were you asked this question and did you give this answer in the same interrogation:
"Q. Did you order them nevertheless -- somewhat illogical arrest of hostages, sending of the relatives to a concentration camp, etc.?
"A. An arrest of hostages is permissible, however."
Were you asked that question and is that your answer?
A. This question was put to me but I don't believe that I answered it in this way. But I cannot tell you now literally. I remember that this is a matter of the taking of hostages but not of the shooting of hostages.
Q. Were you asked this question and did you give this answer:
"Q. Read this paragraph once again. Is it all in accordance with international law according to your conception?
"A. No, it is not?"
Were you asked that question and was that your answer at that time?
A. I cannot tell that, exactly. It can't have been like that but I may add, regarding this order II-f and regarding these questions. This figure II-f was submitted to me and at the same time I was show my own signature under this order and as far as I remember I answered quite clearly at that time that it is on the 15th of January; I could not recall that I had given this order and I was greatly surprised to find this order here because I had certainly not remembered it. I told the interrogator I would have had no reason at all to make any evading statements or to say something which would not seem correct to me, because from the interrogation on the preceding day I had gained the clear impression that the prosecution or the interrogator was in possession of the documents around that time and from my point of view it would have been quite useless to try and evade these questions.
Rather the situation is this: like many other things I could not remember this order and I have expressed this quite clearly.
Q. Field Marshal, do you recall being interrogated on the 7th of March 1947?
A. Whether it was the 7th of March I don't know, but I was interrogated sometime later and also in March.
Q. Do you recall whether you were asked to swear an oath to what you were going to testify on that day?
A. No. You mean an oath regarding my questionnaire?
Q. No, I mean an oath to the effect that you would answer all the questions that would be put to you on that day under oath?
JUDGE BURKE: Just for my own information, at that time did this witness have counsel?
MR. FENSTERMACHER: No, he did not, Your Honor.
JUDGE BURKE: When did he have counsel?
MR. FENSTERMACHER: I believe he did not have counsel until the indictment was issued against him on the 10th of May.
JUDGE BURKE: Was he informed of anything that we term in America as his constitutional rights?
MR. FENSTERMACHER: I am not in a position to say, Your Honor.
FIELD MARSHAL LIST: I was told by the interrogator when this order had been submitted to me and the interrogator told me that I had not spoken the truth. I said on the next day that was the most weighty reproach that had been made to me in my life, and it was very difficult for me to talk to him, and he had accused me of telling a lie and thereupon he told me, "Field Marshal, you are not accused." And he added that I should tell him now what I knew about this period and should come again for interrogation to him the next day orone of the following days, and I told him that was very difficult for me.
I was certainly prepared to say everything I knew, but I could not say more than I knew. Whereupon he told me, "I cannot, of course, show you the documents, but on the other hand as a good lawyer I don't want to mislead you," and he also told me, "The quicker you make your statements, the sooner you will return to Allendorf."
BY MR. FENSTERMACHER:
Q. Do you recall being asked this question on the 7th of March 1947 and giving this answer?
DR. LATERNSER: Your Honor, I am of the opinion that if a copy of the interrogation is there for the interpreters a copy should be provided for the defense counsel as well.
MR. FENSTERMACHER: Your Honor, that is the only German copy we have at this time.
THE PRESIDENT: The ruling previously made will be adhered to in this case, but as stated the counsel should be furnished a copy before the witness is discharged.
BY MR. FENSTERMACHER:
Q. "Question No. 3. Do you recall the exact time at which you received the hostage order?
"A. No. I have stated once already that I learned of the hostage order for the first time in Nuernberg, as far as I can remember. And that I repeatedly asked if I could not receive it. I have no knowledge of it as such."
Were you asked that question and did you give that answer on the 7th of March 1947?
A. Yes.
Q. Were you asked this question and did you give this answer on that day:
"Question No. 4" -- a second question of a more general nature. "Did you ever circumvent orders which you received?
"A. Hereto I mentioned before that I distinctly remember receiving an order from army headquarters that had emanated from Hitler, which was objectionable to me and my viewpoint and which I refused to pass on."
Were you asked that question and was that your answer at that time?
A. Yes.
Q. Were you asked this question and did you give this answer on the same day:
"Question 5. How much independence did you have to decide whether orders could be circumvented or whether they had to be carried out?
"A. Actually no liberty at all. On the contrary, they all ought to have carried out. I received this order the contents of which I am unfortunately unable to state. I have also stated that I saw my Ia standing before me. I believe he had a telegram in his hand and that I said to him, 'I shall not carry out this command. I am placed here in the capacity of commander in chief and not just as an executing organ.