A I cannot remember retaliation measures on the part of Speidel apart from one case. That is as far as I know of any extensive strike, and that was in Athens in the Spring of 1944. Otherwise as far as I believe Speidel had nothing to do with retaliation measures because he had practically no troops in contrast to myself.
Q As an evaluation, witness, what of the fighting potential of the troops under your command in Serbia?
A I can only say that until the summer of 1944 this fighting potential was a very small one because as I emphasized before, which is clear from what the state and the training of these troops show, only in the summer when active troops appear in the Balkan Theatre, and in September active divisions were put under my command this picture changed.
Q Which field headquarters were subordinate to you in Serbia?
A Of the field headquarters in Sabac, then in Cacak, in Nish, and in Belgrade. Then a special sub-headquarters which was immediately subordinate to me in Great-Bekerek-Banat and then there was another administrative sub-headquarters in Belgrade. At the same time there were counter headquarters.
Q Did you ever visit these sub-headquarters?
A Yes, I often visited the sub-headquarters.
Q Did the defendant Geitner often visit the sub-headquarters?
A Geitner was often visiting these sub administrative headquarters.
Q Witness, at the beginning of your statement you said that you were against retaliation measures and reprisal measures on principle. Is that correct?
A Yes, it is.
Q For what reasons, witness?
A Because it is against my personal views as a human being; every retaliatory measure I could only understand and comprehend if the cause for it constituted such a danger for the troops and the lives of the troops, that I could not pass this aspect and must not pass it.
When I started in my position, when I asked the Serbian Government the second or third day about my headquarters, I made it quite clear that I was interested in maintaining peace and order, and that I was interested in not carrying out any reprisals. The Serbian Government promised that it would do its part in this task and it has done that as far as it had any connection with Mihalovic; it has undoubtedly done so.
Q Witness, apart from humane reasons did other reasons prompt you to be against retaliation measures?
A Well, I thought for tactical reasons too; an exaggeration might bring about the opposite of what I intended, that is, it might bring about unrest.
Q Did any unrest break out, witness?
A In my time in general it did not break out but I remember at the beginning of the year 1944 two very conspicuous occurrences called for my attention. There was, for instance, near Sabac a train crammed with people and soldiers, had been attacked by partisans; the people were dragged away; 40 or 50 were murdered; the rest were plundered, and sent home. Two days later 7 field police in Ivanica were attacked by the population, at least in collaboration of the population, and were killed. I myself helped to bury them in Belgrade. Apart from that I do not remember any major occurrences during that time.
Q Witness, did you have a legal advisor on your staff?
A On my staff I had several legal personalities since I supervised the jurisdiction over my soldiers and then I also had to intervene if the civilian population did not carry out our orders, - those were under the Judge Advocates, about five or six.
Q: Did you ever talk with the Judge advocates about the retaliation matters?
A: I have done that very often, because I was of the view that these retaliation measures were a very important factor for my task.
Q: What did the officials of the Judge Advocate Department tell you about the retaliation measures?
A: Their view was that retaliation measures as a reprisal was an admissible measure. From my training I learned that in other armies the question of hostages had played a part. I knew also that even innocent persons, if there was need, would be made responsible. For me the question of hostages was a question which had been founded on legal arguments.
Q: Witness, do I understand you correctly when I say that your legal advisors did say that the so-called ratio was legally admissible?
A: I never talked to anybody about the ratio, either my legal advisors, because I rejected it from the very beginning.
Q: Did you, witness, ever visit the War Academy?
A: In World War I, I took part in a short training course that was a substitute for War Academy during the war.
Q: Witness, in your capacity as an officer were you instructed about the land warfare regulations?
A: That happened occasionally that something was said about these matters in a larger circle. Essentially every single individual was responsible for reading up on these matters.
Q: Witness, do you know what a war diary is?
A: The war diary which each unit start from the company upwards was forced to keep in very brief outlines the happenings of the day and the most important decisions of the higher commands, if the War Diary is kept by the Chief of the General Staff of that unit.
Q: Is there someone who is responsible for the correctness of the war diary?
A: That is the Chief of the General Staff. In case of a higher command and in the case of troops the Regimental Commander, whoever it may be in that case.
Q: Did you ever order so-called sham executions?
A: Yes, indeed, I may say in this connection that they were carried out on my orders, which was caused by the information which I had received by mistake that the troops of the Higher SS and police leader had very few hostages.
Q: From what date onwards, witness, did you order sham executions, approximately?
A: This took place approximately on 12 October 1943, perhaps a week after that the first sham measures were ordered.
Q: Witness, from this date onwards were all executions or so-called executions sham executions?
A: No, these sham executions were interdispersed with the so-called reprisal measures so far as necessary at that time. I cannot say anything about the number of the sham executions ordered by me.
Q: Can you perhaps tell us the percentage with which they were, compared to the real executions?
A: No, I had no percentage in that case. I was only influenced from case to case as they happen. Retaliation measures were not carried out by me at all and were not decided on by me.
Q: Who apart from you knew about these so-called sham executions?
A: I believe that the circle was a very small one for very definite reasons. I can believe that it was merely my chief and perhaps the expert for retaliation measures, and the Adjutant of the Department 1-A.
Q: Did the Area headquarters know of this?
A: Yes, insofar as I told the administrative area commanders when visiting them that I thought this was a very good measure, and the collective order which was still in force then could thus be circumvented, which seemed suitable to us.
Q: Were you at all afraid that the circle of the people who know about these so-called sham executions would have to be kept small?
A: Yes, indeed. As I have just hinted here I had to consider the great distrust which was especially prevalent in the SS Sector. The higher SS and police leader had his through the channel of command to the highest SS authority, Himmler, after he had been told by Meissner that we did not succeed in carrying out severe measures and did not keep to the Fuehrer Collective Order. Then we had to reckon that Himmler would at once create a frightful row with Keitel, and we would have been held responsible through that channel, and for this reason we had, as far as the so-called sham executions were concerned, to be very careful.
Q: Did Army Group F know of these sham executions?
A: I myself cannot answer that. I must assume that the Chiefs, among each other, in their personal talks talked about this point.
Q: But, witness, you personally, in spite of your good connections to Weichs, did not talk to Weichs about these measures?
A: I cannot answer that with any certainty today, but it is quite possible.
Q: Now, how were these sham execution entered into the War Diary?
A: Whether they have been entered I do not know. I don't really see any reason for that, apart from the fact that for a long period of time a retaliation measure was not ordered by us, and that one considered it an expedient to enter some figure again.
Q: Apart from Serbia, that is from this, were sham executions carried out in other areas, which were under the command of the Military commanders?
A: I don't know anything about that.
Q: Witness, for what reasons was the life of a German soldier estimated at a higher value than that of the enemy?
A: For that I cannot give an explanation.
Q: Was it estimated at a higher value, witness?
A: No, not by me. The proof of that may be a charge of a higher police leader from October 1943, where he charged me that the Serbian civilians were judged by me at a higher value than his auxiliary police, that he wanted to find out himself.
MR. RAPP: If Your Honors permit, we would like now to refer to Document Book 18 again and, if Your Honors turn to it, to the last document in this particular book -- Your Honors, if Your Honors turn please to page 91 and page 102, German defense counsel page 88 and page 100, these two documents, Your Honors, were marked for identification 440 a and 440 a/1; these two documents, Your Honors, are two affidavits executed by the witness Felber and, with Your Honors' permission, I would like now to put these documents to the witness to refresh his memory, to have him identify these documents and then, in connection with the contents of these documents, ask him some further questions.
DR. LATERNSER: Your Honors, I object to these intentions of the Prosecution because it does not conform with the regulations of Anglo- American Law. The witness is at this time a prosecution witness. He is stating here what he must know; that is to say, he must answer when questioned. It is not admissible that in the direct examination the memory of the witness is refreshed. If you do this, what the witness says is not what he knows and only this, his own knowledge, is at issue. For this reason, it is inadmissible and, if the prosecution now submits or leaves them to the witness and then subsequently puts questions to him, I emphasize and for this reason, because the witness has only got to state his knowledge in the direct examination, refreshing of his memory may not and must not take place.
DR. SAUTER (Counsel for defendants von Geitner and Lanz): I join this protest of my colleague and for another reason -- rather, for two other reasons.
First of all, our procedure is taking place under acceleration. We have always been told at all times, in every trial, the trial should be expedited as much as possible as far as can be reconciled with justice and fairness; but in my view a lot of time will be lost if, first of all, a witness is examined orally at great detail and then an affidavit of many pages being read, there is no purpose to hear this twice on the part of the prosecution.
There is another point of view which, in my view, is of a very serious nature. We have heard that the witness is in danger of being tried before this or another court because of his connections. For this reason, the prosecution was, too, careful not to examine this witness as a prosecution witness and propose to have him here as a court witness.
For the same reason, the Court told the witness that he cannot be asked to state, to testify, against himself under oath. I don't know whether the witness, during his several interrogations on the part of the prosecution, has been told about his right not to make any statements since he might incriminate himself by this. According to my experiences, this did not take place in general.
We now have the situation, the witness may only testify here about things about what he wants to testify. He can refuse to give any information regarding questions by which he might incriminate himself. This right, this privilege, is given to the American Law, and to the witness and the situation of General Felber, but this right would be taken from the witness if here as a witness he may refuse to testify regarding questions about which he does not want to give any evidence; but if, on the other hand, evidence would be submitted or read to him which, in the preceding procedure he had to give and, because he had not been told about his right to refuse to testify I don't know, Your Honors, whether the witness Felber is interested that his former testimony is not being read. I never talked to him about it. I am seeing him here for the first time but, however the situation may be, or whatever point of view the witness Felber himself takes, for fundamental reasons it should be prohibited that in such a case the previous evidence possibly given under oath should be read to his disadvantage and utilized. For these reasons I join the objection of my colleague.
DR. LATERNSER: Your Honors, I want to submit a further legal reason which should equally make it impossible for the prosecution to read these affidavits. The reason is the following one:
Every person who wants to prove something must, in every individual case, submit the best evidence for every point of evidence. We have here the witness himself and, in the presence of the best evidence, secondary evidence like an affidavit can not be used on no account in order to refresh the memory of better evidence by means of worse evidence. For these reasons, the reading of these affidavits has become impossible.
PRESIDING JUDGE CARTER: Just what is the purpose of the offering of these affidavits, Mr. Denney?
MR. DENNEY: Well, if Your Honors pleases, first, this man is not what one would consider a normal witness. He has spent a lifetime in the German Army. He has been closely associated with some, if not all, of the defendants and we have not talked to him, as we indicated to Your Honors last week. We have several affidavits which he wrote in long hand and which he signed himself which were the basis for our calling him to testify here. In some respects he has made statements on the stand which are inconsistent with those affidavits.
First, with reference to Dr. Laternser's lecture on the right to refresh the witness' recollection, it is submitted that at any time a witness may be given anything for the purpose of recalling to him presently his impression at a prior time, if these affidavits do recall to him what he said at that time and he is willing to admit that he said them at that time, then we at least have shown that he has made a statement now which is inconsistent with what he said before.
If, on the other hand, he says he never made the statement and we point out to him in his affidavit what he has said, why, of course, we submit that the affidavits are admissible for the purpose of showing these prior inconsistent statements.
We have not talked to the witness since -- I believe Mr. Rapp said last June and we are only calling him an effort to cast further light on this situation down in the Southeast.
DR. LATERNSER: Your Honors, may I add something? In answer to what the prosecution has just said, it is my view that the prosecution wants to make, conduct a cross examination with it's own witness. I have to assume and must assume that a witness provided by the prosecution will testify something which is in accordance with what the witness has done.
It does not seem to be admissible that the prosecution now wants to influence the witness by submission of former evidence to change his statements here in court. In any case, it is not possible for the prosecution to cross examine its own witness and if it could now submit his own affidavit, that would amount to a cross examination.
PRESIDING JUSTICE CARTER: It is the opinion of the Tribunal that the affidavits themselves are not admissible in evidence. However, the prosecution may inquire of the witness regarding conflicting statements or anything, or even refreshing his memory, but the evidence given by the witness himself will be the controlling evidence. To that extent the prosecution may use the affidavits.
MR. RAPP: If your Honors will permit, at this time I would like to refer to the identification No. 440-a, NOKW 611. I would like now to pass to the witness this particular document so that he can familiarize himself, and then after we have given the witness some time to look this document over, I would like to ask him a few questions in connection with that document.
DR. LATERNSER: Your Honor, I do not know whether it has been rightly translated, or whether I understood the ruling of the court differently. I understand that the things which have been stated in this affidavit may be touched upon by questions to the witness, but that the affidavit may not be submitted to him.
PRESIDING JUSTICE CARTER: I think the proper method would be to ask him about the conflicting statements that are in the affidavit. Read the part to him that is in apparent conflict, and have him harmonize it, if he can. I doubt if it is proper to hand him the entire affidavit at this time.
MR. RAPP: Your Honor, I was trying to avoid getting any part of the affidavit read into the record, - citing parts of the affidavit to him. I thought that it would be better to have the witness take a look at the affidavit, take the affidavit back, and then ask him some questions in relation to the answer he has given at that time. However, if your Honors feel that this is not satisfactory, I would be only too glad to follow your suggestion.
PRESIDING JUSTICE CARTER: I think if the defendants object, that we should sustain that objection.
DR. LATERNSER: I object, your Honor.
PRESIDING JUSTICE CARTER: Objection sustained.
DR. LATERNSER: Because it is my point of view, the witness at this moment -
DR. SAUTER: In addition to this objection, I want to point to something else. We have in this document, the two affidavits of the witness. The witness, as we have heard today, has been examined seven times by the Prosecution, and I take it that he gave seven affidavits, - not less than seven affidavits.
In my view it would be all right if we want to follow the procedure which has been suggested by the prosecution, that these seven or ten affidavits should be read, then we would not only see what is in two, but we shall see what is contained in all 7 affidavits, and then the Court can form a picture much easier regarding the value or absence of value of these affidavits. As long as only two records of interrogations are submitted, there only remains a fraction.
PRESIDING JUSTICE CARTER: The prosecution may interrogate the witness about any conflicting statements he made in these affidavits. When the defense cross-examine they can put in as many other parts of these affidavits as they see fit, but I think the prosecution can pursue its own methods. You may proceed.
DIRECT EXAMINATION BY MR. RAPP:
Q. Witness, you have at one time, written in your own handwriting, a report about your activities in the Southeast theatre. I believe I shall go back to the German language.
You once wrote a document in your own handwriting. So far as I know, this document was not written here in Nurnberg. Is that correct?
A. Yes, that is correct. I once made a statement about the southeastern area, and that was the summer of 1946 in the camp of Zuffenhausen.
Q. And later, during your internment in Nurnberg, you wrote two affidavits, that is two, to be exact, here in Nurnberg?
A. So far as I remember, I believe three.
Q. I am talking about Nurnberg. Two or three, in Nurnberg, witness?
A. I believe three. There was an addendum. One affidavit to which I wrote a short addendum, and then a second affidavit.
Q. Witness, you told us some time ag**, in direct examination, that you were only competent for retaliation measures in Serbia. Is that correct?
A. Yes.
Q. Witness, did the military commanders subordinate to you, -did they not in each and every single case, have to get permission to carry out the retaliation measures --- did they not?
DR. LATERNSER: I object. This is a leading question. The question is, did the military not have to have permission. It is impossible to cross examine their own witness. I must energetically protest against this procedure by the prosecution.
MR. RAPP: That is what the witness had already testified to previously this afternoon.
PRESIDING JUSTICE CARTER: Proceed with the question.
BY MR. RAPP:
Q. Will you kindly answer this question.
A. The military commanders were independent as regards to provisions on retaliation measures. They were generals of the Infantry, the artillery and Airforce, underoath, and they were for that reason, in the same manner as I myself; it was not the case that a military commander in Greece would have to get permission from me in order to carry out a retaliation measure which he found suitable.
Q. Witness, you are telling us now that on the strength of the fact that the military commanders subordinate to you were also generals, it is proved that for this reason they did not have to have your consent for the implementation of these measures; is that correct?
A. Yes. There is a regulation that the ordering of retaliation measures may be ordered independently from the regional commanders upwards.
Q. Witness, did you ever during your preliminary interrogation, tell us in writing, and under oath, that before every execution, your personal consent would have to be obtained?
DR. LATERNSER: I object to this question. It is not -- it is inadmissible because it is a leading question in direct examination.
PRESIDING JUSTICE CARTER: I think you should quote what he said and ask if he did not make that statement; quote from his affidavit; give him an opportunity to affirm or deny or explain, as he sees fit.
It seems to me, that is the way you should proceed.
MR. RAPP: Very well, your Honors.
I am going to read to you, witness, the paragraph to which I refer. I would like to put another question to you.
Did you at any time order that whole villages, whole communities were to be burned down?
A. In my recollection I have emphasized that frequently, that I did not burn down a single community which I had ordered to be burned down, but I believe it is possible that in a battle perhaps, by the police, by the Bulgarians, communities were, against my will, burned down, or at least houses were burned down, which I was told only later.
Q. Witness, did you in your capacity as military commander southeast, at any time, -- did you reserve to yourself the right or rather the vote right regarding the executions carried out in areas of other military commanders?
A. It never got to that.
Q. Why not?
A. Because I cannot remember that the military commanders in Greece or Albania, --- that is these two military commanders, -- reported any greater major retaliation measures to me.
Q. You said that you received daily reports from the military commanders; is that right?
A. Those were very brief reports which we received daily, comprising about three to four lines regarding the Albanian or the Croatian area, that is, not very detailed reports. The detailed daily reports went, as far as I remember, to the local tactical departments. That was in the case of the Military Commander Greece, the Army Group E, and in Albania. During my time I probably never got as far as retaliation measures by the Plenipotentiary General.
Q. Did Army Group F ever order any retaliation measures?
A. The Army Group F, in the summer of 1944 on the first of July--that was the date of the receipt of this order--gave a collective retaliation order for the entire Southeast area which was harmonized in relation to my staff and with our experiences regarding retaliation measures. These experiences were used by the Army Group.
Q. Witness, now I would like to quote from your document to which I directed your attention previously.
DR. LATERNSER: This is an admissible. I object to this quotation. I object to this document's being quoted. The Witness may, at the most, be asked, in order to show the way to the Prosecution, "What did you say on the so and so of May, etc.?"
PRESIDING JUDGE CARTER: I think the Prosecution is entitled to ask the Witness if on such and such a date and if on such an occasion he didn't make the following statement in writing and then quote the statement, as long as the affidavit is not to be in conflict with his testimony. I think, to this extent, the Prosecution may use the affidavit.
MR. RAPP: Your Honors, that's all we had in mind.
PRESIDING JUDGE CARTER: All right; you may proceed on this basis.
MR. RAPP: We have a document before us which was written by you on the 15th of July 1946 in the Internment Camp No. 78. This document to which I refer bears on the top the words, "Felber, Hans, General of Infantry No. 365-D-/35, Statement About my Activity" I quote: "Military Commander Southeast." I quote and ask you whether on Page 22 and Page 24 respectively, you wrote the following lines: "Retaliation Measures: From the OKW: Whereas in other occupied countries special directives were decided on regarding retaliations measures, the collective retaliation order of Hitler is known. That in case of ambushes we should take the most severe measures. The burning down of villages, the shooting of hostages, that is, for every killed German soldier, 50; for every wounded native of Germany, graduated figures according to the importance of the person." These had been laid down as directive. Now, another question, Witness: Are these, so far, your own statements?
DR. LATERNSER: Your Honor, it is my duty to object to such a procedure in direct examination. And I shall object therefore on every question which is put in this way, and I shall repeat it. We are now in direct examination. The witness, can, at the most, be asked, Your Honor, "Were you interrogated on such and such a date, and what did you say on such and such a date?" And only in this manner can we ascertain what the witness knows today. In this proceeding it is only necessary to know what the witness knows today. And for this reason it is forbidden that a witness use any notes. The reason for this is that the Court may only want to find out what the witness knows now and not what he had written sometime.
I repeat, it is my duty to object to such a procedure.
PRESIDING JUDGE CARTER: We'll let the witness answer the question.
MR. RAPP: Witness, would you answer my question?
A. Yes, this sentence was written by me at the time.
Q. "In the Fuehrer Headquarters when introduced to his duties before he took up his new duties, the Military Commander Southeast was expressly asked to keep to this order as emphasized already. The new Military Commander Southeast took up his duties with an attitude which contravened such retaliation measures, and a special case, during the first weeks, gave an opportunity to put these views to a test." Are these then your statements?
A. Yes.
DR. LATERNSER: Dr. Laternser, Your Honor, it is again my duty to object to this question.
PRESIDING JUDGE CARTER: Overruled.
MR. RAPP: I quote from Page 23 and want to ask you at the end of my quotation whether this is what you deposed. "The Supreme Directive of the Military Commander Southeast, who was aware of his enormous responsibility just in this field, it has always been to lead the struggle in a soldierly and humane manner and that was taking over responsibility in the Serbian area. Through the newly organized Military Commander Southeast a thorough change in the execution of retaliation measures would take place. The implementation of the Hitler quota, retaliation measures was, in spite of knowing that we would thus deviate from the Fuehrer order from the collectives. This was now taken over by a purely soldierly and German procedure. Many lives may thus have been saved." Witness, are these your depositions?
A. Yes.
Q. And you remember that you talked your position as Military Commander Southeast. Why, in your capacity as Military Commander Southeast, did you have influence on the way and manner of the retaliation measures when, is as you said this afternoon, the Military Commanders were not subordinate to you in this respect?
DR. LATERNSER: Dr. Laternser, Your Honor, I also object to this question. That is a suggestive question which is not admissible in his direct examination.
PRESIDING JUDGE CARTER: You may answer the question.
MR. RAPP: You may answer the question.
A. I did write this formula at the time, clearly recognizing that it merely concerned the activity of the commanders in the Serbian area. And this formula, I did not want to have the conditions in Greece and Albania included. In order to put it quite clearly it only concerned what happened to Serbia in this formula.
PRESIDING JUDGE CARTER: We will recess until 9:30 tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until 9:30 tomorrow morning.
(THE COURT RECESSED AT 1630, to RESUME SESSION TUESDAY, 12 August 1947, at 0930)
Official Transcript of the American Military Tribunal in the matter of the United States of America vs. Wilhelm List, et al, defendants, sitting at Nurnberg, Germany, on 12 August 1947, 0930-1630, Justice Wennerstrum presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal V. Military Tribunal V is not 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 persons in the courtroom will be seated.
PRESIDENT WENNERSTRUM: You may proceed, Mr. Rapp.
MR. RAPP: Thank you, Your Honor.
HANS GUSTAV FELBER - Resumed DIRECT EXAMINATION (Continued) BY MR. RAPP:
Q. Witness, yesterday during the examination you were asked whether you had at any time ordered that the able-bodied population or a number of the able-bodied population in Serbia, had been transported to Germany on your orders, for forced labor. Witness, thereupon, if I remember rightly, you answered that it did not conform with the facts since you yourself wanted this kind of population as a cultural worker for harvest and for any other kind of agricultural or industrial work, -- that you wanted this part of the population. Is that right, witness?
A. Yes. indeed.
MR. RAPP: Your Honors, if you permit, I would like to call your attention to Document Book No. 18, at this time, please. I am referring to NOKW 717, Exhibit 435, I believe it is on page 22 of the English, page 26 of the German document book. If your Honors permit, I would like now to ask the assistant secretary general to hand me the original of this exhibit.