Of course, only our troops are permitted to wear uniforms and everybody else who wears German uniforms becomes liable to punishment in some way or other.
Q Well, that is the way it is in our American Army. In other words, it is forbidden for persons who are not members of the American Army to be to be wandering around in uniforms, and I wondered if there was some such provision as far as the German Army is concerned. As far as you know, there was such a regulation and this regulation was competent in Croatia while you were down there?
A I believe so.
Q So that if a Croatian civilian wandered around in a German uniform, he was exposing himself to arrest and punishment by the German authorities? Or, if not by the German authorities, by the Croatian authorities?
DR. GAWLIK: If it please the Tribunal, I object to that question. That question does not go as to what the witness has actually seen or heard, the prosecutor instead, argues with the witness. We asks for a conclusion of the witness. The witness is to state facts; he should not be asked for his opinion.
MR. FULKERSON: If a Major General in the Wehrmacht isn't able to answer that question, I don't know who would be able to answer it.
THE PRESIDENT: The objection is overruled. The question may be answered, but limit it as much as possible.
MR. FULKERSON: Yes, sir.
QUESTIONS BY MR. FULKERSON: (Continued):
Q Will you answer the question, please sir?
A Could I please ask the question again?
Q I simply asked you that if a Croatian civilian wandered around in a Wehrmacht uniform if it wasn't true that he was exposing himself to arrest and punishment just for doing that alone?
A Yes, I am firmly convinced that he became liable to punishment
Q Now, you say here in this affidavit of yours, in describing the partisans, that they were partly wearing German uniformed clothing. That is in the 4th paragraph, General.
A Yes.
Q When troops saw a band of Croatians wearing various articles don't you think that that was enough to put them on notice that those people were an unfriendly group?
A It can rightly assumed that if they did that they could be suspected of being partisans. If they wandered around wearing pieces of German uniform and in that way camouflaged themselves, they might even have become suspects of espionage.
Q Well, now, you say here in the next sentence that even though they did this, they couldn't be distinguished from the civilian population at all. How do you explain that? It just seems to me that there is a slight inconsistency between what you just said and this next sentence.
A In paragraph 4 I said that some of them also wore pieces of German uniform. That is not a matter of principle. It happened that people were caught or seen wandering around who were pieces of uniform, but that was not a general or uniform rule. It was also possible that groups of partisans were sighted which did not wear uniforms bub could not be distinguished at all from the indigenous population. That is what I wanted to explain in paragraph 4.
Q All right, now, let's move over to paragraph 5. You say in the area of the 173rd Division--I am reading from the second sentence-"In the area of the 173rd Reserve Division during the time I was in command of this division, troops of the 173rd Reserve Division had never arrested hostages, killed hostages, or destroyed Croat villages as a reprisal measure for actions in violation of International Law." Did you write that sentence, General?
A Yes, I did.
Q Well, I am going to hand you Document NOKW-053, which is found in Book XIII for the Prosecution, page 117 of the English and 84 of the German.
THE PRESIDENT: Does it have an exhibit number?
MR. FULKERSON: It is Exhibit 333.
Q Have you found the passage that I have reference to down there? The 173rd Reserve Division. It is the next to the last paragraph, General.
A Which starts with "Reprisal measures for attacks on railroad lines, 40 hostages were executed." Is that the one?
Q Yes.
A In that connection, I should like to state that the executions, that is, reprisal measures, which took place within the area of the 173rd Reserve Division -- were carried out by Croatia authorities or by indigenous authorities, but they had to be reported to the Corps. As I expressed in my affidavit, no such reprisal measures were carried out by the troops of the Division-- that is, things like the execution of the hostages, etc.
Q. What was the main tactical task of your division at this time, General?
A. The division had the task of training and also of protecting the military objects in the country. Furthermore, the division was committed for the protection of the civilian population which became necessary in view of the surprise attacks by the partisans.
Q. Well, now, among these military installations, were the railroads included?
A. Railroads were amongst them also.
Q. Well, when you say amongst them, do you mean by that that they were just an incidental - the protection of the railroads was just incidental to the other tasks that you carried out, or did the protection of the railroad form a rather important part of your tasks?
A. It was part of the tasks which the division had to carry out.
Q. Well, now, what part -- was your division assigned a certain length of the railroad, a certain of the railroad and charged with the protection of that?
A. Mainly the Railroad Security Service which was not subordinate to me was competent for the protection of those lines. Apart from that, those troops which were stationed near the railroad line were committed for this purpose the whole area of protection being subordinated into individual sectors. Patrols were established and sent along these railroad lines, particularly during nighttime and allowed us to carry out a certain protection of the railroad lines.
Q. In other words, troops of your division actually patrolled a certain sector of this railroad line?
A. Yes. That is right.
Q. Now, what was the connection between the activities of your troops in carrying out these railroad patrols and the activities of this Railroad Security Service or Railroad Security Staff or whatever it was? Did their activities overlap? Were you coordinated so that they were working on one section and you on another, or how was it done?
A. Well, the activities actually overlapped. To the best of my knowledge, in the individual bunkers there were within my sector Railroad Security Units committed and apart from that, those troops of my division stationed along the railroad line, as I said, carried out their patrols and worked together with the men of the Railroad Security Service the members of the Railroad Security Service, however, were not subordinate to me.
Q. Well, how did they work together? You say there was no subordination?
A. Well, by exchanging information concerning the enemy and their observations and by helping each other when they were attacked by any groups of partisans. That in the way in which they worked together.
Q. Now about this Railroad Security Service -- were the men in it Germans or Croatians or Russians or what?
A. To the best of my recollection, they were Germans. I believe that some of them were also Croatians if my memory doesn't deceive me. I am afraid I can't say it for certain.
Q. How many members of the Railway Security Service do you reckon there were in the sector of your division?
A. Well, I don't remember the actual number. I can't make any statement. At least, the railroad was comparatively strongly manned. In site of that fact now and again the enemy succeeded of course in getting explosives put down along the line and in that way carrying out acts of sabotage. These things were done mainly at night time when it was more difficult to carry out a guarding of the railroad line.
Q. All right, now, when a bower was to be built or a bunker or some kind of fortification to guard a bridge or an over-pass on the railroad, who decided whether it was to be built? You or the Railroad Security Service?
A. I believe that would be a matter of the Railroad Security Service. That was not within the sphere of my competency.
Q. All right, then, after it was built, who would man it?
A. I do not remember that troops of the division manned those installations. I believe for that purpose also the members of the Railroad Security Service were used.
Q. Well, what actually did your troops do? Did they just walk up and down the railroad?
A. They defended against attacks on the railroad lines if that became necessary. There were some skimishes with the partisans at times.
Q. When an attack occurred on a railroad line in your division area, a successful attack that is, did you hold yourself accountable for it? Or did General Dehner hold you accountable for it?
A. First of all, each divisional commander in his area would be responsible. That would be my person in my area.
Q. So if one of these attacks occurred in your division area, you were the person who was held primarily responsible by the higher authorities of the Wehrmacht?
A. Yes, that is correct.
Q. And this entry that we just looked at says "As reprisal measure for railroad plots, 40 hostages were executed."
A. Yes.
Q. But notwithstanding what you have just said, excuse me -I can give you the page again. It is page 84.
A. Yes, I see, page 84.
These occurrences were reported to the police and to the Croatian authorities. These agencies for their parts carried out these reprisal measures. At least, within my division, I never ordered such reprisal measures nor were any carried out by the troops of my division as I have already stated.
Q. All right, let's look at another document. Perhaps it will be a little clearer. This is in Book XVI. It is NOKW-658, page 25 of the English and 69 of the German
A. Is that contained in the book I have?
Q. Have you got Book XVI, General? Has it got a Roman numeral XVI on the outside?
A. No, it is XIII which I have got.
THE PRESIDENT: You probably forgot to give him the German pagination.
MR. FULKERSON: Yes, I gave him the German pagination alright. But he has the wrong book.
BY MR. FULKERSON:
Q. Here again we have a report to the Second Panzer Army in which the remark is made about the 173rd Reserve Division that 19 communists were hanged at the scene of the detonation in reprisal for railroad explosion. I believe you took this up in your affidavit.
A. It is a report here which apparently was passed on by the corps. It is expressed here that in the area of the 173rd Division this hanging took place, but it is not said that it was carried by the troops. I can as a matter of fact remember one incident which I believe is the same incident -- I refer to that also in the affidavit. It is a case where I myself saw the victims hanging at the spot where the explosion took place. It is the only time where I saw such a sight in Croatia; that is why I remember it particularly well.
THE PRESIDENT: We will take our noon recess at this time.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours.)
THE MARSHAL: Persons in the Courtroom please take their seats.
The Tribunal is again in session.
THE PRESIDENT: You may proceed.
MR. FULKERSON: Before I continue with the cross-examination, I would like to make a request of defense counsel to let us know whether they have any matters that are still hanging fire from their case, with the exception of those Greek documents of Dr. Mueller-Torgow?
In other words, it has been intimated that they are going to offer some material in sur-rebuttal, and I would like to know now what kind of sur-rebuttal and what is being offered as just sort of left-over which they may have asked the Court's permission to put in later on so that we can separate the chaff from the wheat ourselves?
I am not asking them to tell me what material they intend to offer in sur-rebuttal, of course, but I am simply asking them to tell me what other material which is left over from their own case.
DR. LATERNSER: First, I would like to reply to the prosecutor to the effect that they, just as much as we had no claim to know what they were going to present during re-buttal, they have no claim to know what we will be presenting. I beg to inform the Court that we wish to present various matters; as to the extent, I cannot state it at the moment, but only at such time as I have consulted with my colleagues on the matter. But I assume that it will not be very comprehensive material or very voluminous.
MR. FULKERSON: Well, actually, I would like to point out that we are entitled to know it 24 hours in advance. I am just asking for a few hours notice because we expect to be finished this afternoon.
THE PRESIDENT: My records show that all defendants have rested except the defendants Felmy and Speidel, and that they have been given the right through a reservation to present certain documents to which reference has been made previously in the records.
It is my memory that Dr. Tipp and Dr. Fritsch have one or two minor matters which they have indicated they would like to present to the Tribunal in surrebuttal, and Dr. Laternser. The Tribunal is not ruling on those matters at this time or indicating what its ruling would be, but it is our understanding that those are the only matters which will probably be presented in surrebuttal. I might also state that the 24-hour rule, in the judgment of the Tribunal, does not apply to surrebuttal.
MR. FULKERSON: We are --
THE PRESIDENT: Whatever that means.
DR. GAWLIK: Gawlik, counsel for General Dehner. In order to avoid misunderstanding, I would like to state that I also have offered this document for surrebuttal. I have already signed an exhibit number for identification purposes, and I would like to reserve the right to present one or two documents in the course of surrebuttal.
THE PRESIDENT: Without ruling upon the matter at this time, of course the Tribunal will give you the right to present it. As to what its ruling may be upon presentation, the Tribunal will have to decide at that time. Necessarily, surrebuttal will have to be and should be and necessarily is a matter which should be very brief.
CROSS-EXAMINATION (Continued) WITNESS - General von Behr BY MR. FULKERSON:
Q. General von Behr, did you discuss any of these documents that I asked you about this morning during the noon hour with anyone?
A. No, I have not done that.
Q. I assume that you have studied all the ones that I have asked you about so far before you made this affidavit?
A. Yes, I did.
Q. Now, let's look at this same Document Book XVI on page 26 of the English and 61 of the German. It is a teletype dated November 8.
There is another reference there under paragraph -- that is -- can you find it?
A. Yes.
Q. There is another reference there to paragraph 3 to the 173rd Reserve Division. It says 21 hostages shot to death as reprisal for an attack on a freight train between two different towns.
A. I cannot recall this incident. At any rate, if this routine took place -- it was effected either by the Croatian or the German police authorities but as I previously stated, was not carried out by any troops of the division.
Q. Could it have been carried out by the SD?
A. Yes, it may certainly.
Q. The SD were operating in your division area, were they?
A. Yes, it was.
Q. Do you remember what Einsatzkommandos were there?
A. I do know that certain Einsatzkommandos were active there. For instance, in the little town of Ruma in which I had my divisional staff.
Q. All right now, let's look at still another entry. This is on page 67 of the book you have before you and is page 27 of the English. 20 hostages hanged and 20 shot to death in reprisal for railroad sabotage near some unpronounceable place, and the it refers to a previous daily report of the 173rd Reserve Division. You find the entry there, General, that I am talking about?
A. Yes. In this case also it can only be a report on incidents within the area of the division which happened within the area of the division. I cannot recall details of this incident. I don't know who actually carried out the shooting, nor how and when it was affected.
Q. Did you interest yourself in these things? You say that in the case of these other incidents you said that they must have been carried out by the police or the SD or the Croatians or somebody else.
When you received these reports, did you interest yourself in them at all?
A. Well, I confined myself to passing on these reports to my superior agency-that was the Corps. That finished my share in this matter.
Q. General, was it possible that when one of these units that was not subordinate to you indulged in an indiscriminate execution of hostages, that was likely to stir up more strife and cause more unrest and trouble in the division area? Is that possible?
A It is possible certainly, but I have not been able to ascertain such major unrest or disorder at the time when I was there. On the contrary, I think a certain amount of law and order was restored by these measures. I do not know and I cannot recall as to whether the sabotage acts decreased substantially. I can not state that numerically, but I believe as I have said that these rather harsh measures did contribute on the whole to restore some law and order, especially with regard to the activities of the partisans.
Q In this particular entry, which you have before you here, there are references to two previous daily reports of the 173rd Reserve Division; one of them was the daily report apparently which dealt with the act of railroad sabotage and the other one was a report, which dealt with an attack on a patrol; you see what I mean?
A Yes, I do.
Q What kind of a patrol was that?
A I cannot say that, I cannot learn from this report whether it was a patrol of the Railroad Security Service or a patrol of the Division troops. I cannot say that now at this stage.
Q It is bound to have been one or the other in any case, there were no other patrols there?
A Very likely.
Q Very well, we can pass on to the next. Look at page 81 in your book, it is page 33 of the English. This is again a report concerning activities in the area of the 173rd Reserve Division, it says; "as reprisal measure for a railroad attack, four inhabitants from this particular village were hanged and it goes on to say that this operation was executed by Panzer Platoon 64 and units of the Grenadier Reserve Battalion 46; to whom was Panzer Platoon 64 subordinate?
A I cannot say that, I don't know. I cannot recall this operation.
Q Well, you remember the outfit, the Panzer Platoon 64?
A There was a Panzer platoon there, but it was not subordinate to me. To my knowledge, it was under the command of the Corps or of the Railroad Security Division.
I cannot say that.
Q Alright, what about Grenadier Reserve Battalion 46?
A The Grenadier Battalion belonged to the division, it is apparently parts of this Battalion 46 which are concerned in this report. According to this report, this operation was executed jointly with Panzer Platoon 64.
Q Well, have you read it? You say you looked over all these documents, which I showed you before General. This was one of the ones you looked over, wasn't it? I believe it is mentioned in your affidavit.
A I cannot recall it just now.
Q Well, you say here in your affidavit under paragraph 6 that you have been shown the following letters from document NOKW 658; that is what you are looking at here and the tenth one listed is the daily report dated December 3rd?
A Yes, that is true.
Q Now, doesn't it appear to you that these inhabitants were hanged by an outfit which was subordinate to your division, or at least that this outfit, which was subordinate to your division, in conjuction with this Panzer Platoon, hanged these four people; can you put any other interpretation on this?
AAt any rate the Reserve Pioneer Battalion 46 were not to be made responsible for this measure if in fact it was carried out.
Q I did not understand you, General, maybe what you said was not correctly translated?
A I am of the opinion that parts of the Reserve Battalion 46, as stated in the report, are not to be made responsible or to be held responsible for the shooting or hanging of bandits which appears in this report. I don't know whether such a report was ever made by the 173rd Division to the Corps.
Q Well, how would the Corps receive its information about activities of elements of the 173rd Division?
A The reports were transmitted to the Corps, reports on these incidents, but as I said, I cannot recall the details of them, and I can only repoat that I do not know that any reprisal measures of this kind, hanging or shooting of hostages, were ever carried out by troops of any units of the 173rd Reserve Division.
Q Well, General, you don't deny that this report says fairly clearly that one of the elements of the 173rd Reserve Division acted in conjunction with another unit to hang these four people, do you? There is no ambiguity about this; is there?
A Of course the report reads that way, certainly.
Q Now, you said in the body of your affidavit itself that you had been shown these reports and that not a single incident of this kind had happened in the Corps area; now what I am trying to do is to reconcile what you now say with what you said in your affidavit?
DR. GAWLIK: I object to this question on the grounds that this question does not reflect what is said in the affidavit. The affiant in his affidavit did not state that no incidents did happen in the area of the 173rd Division, he merely said he thought it was impossible that any of the reprisal measures referred to in these reports was carried out by troops of the 173rd Reserve Division. If the question is phrased in such a way as to refer to this sentence, then I withdraw the objection.
MR. FULKERSEN: That is the sentence to which I have reference.
THE PRESIDENT: The objection will be over-ruled.
MR. FULDERSEN: Would you please.....
THE PRESIDENT: You can rephrase it and direct it to the matter which you particularly have in mind.
BY MR. FULKERSEN:
Q What is your explanation, General, as you say and as you said here this morning on the witness stand that your division never carried out these reprisal measures; what is your explanation for this report?
A The Panzer Platoon was not subordinate to me. If elements of the Pioneer Battalion 46 at one time were placed at the disposal of Panzer Platoon 64 and they carried out this operation, which is quite possible, then the commander of the Panzer Platoon 64 probably will have to be held responsible for it.
Q Why, why he more than the commander of the Grenadier Reserve Battalion 46?
A The commander probably was not assigned in this operation, because it only says elements of the Granadier Battalion, which were locally available in order to help the Panzer Platoon 64, that at least is my assumption.
Q Well, as a matter of fact you don't know who was in command at the time of this joint operation of these two battalions do you?
A No, I don't know that.
Q So that you statement that probably the commander of Panzer Platoon 64 is to blame for this is just wishful thinking on your part.
A It is not wishful thinking on my part, that is my view in this matter.
Q Do you remember an order that came to you from General Rendulic's headquarters that had to do with the execution of hostages; I believe it was dated 15th September 1943? Do you recall such an order, I can give it to you if you don't?
A Yes, I do recall it, such an order was also referred to in my affidavit, it was received by the division.
Q I think it would be clearer, General, if you had the text of the order before you?
A certainly.
Q Would you like to look it over for a moment before I ask you about it?
A Yes, I should.
THE PRESIDENT: Perhaps you can direct your inquiry to the particular matter, so it won't be necessary for the witness to read the entire document.
MR. FULKERSON: Yes sir.
BY MR. FULKERSON:
Q When did this order first come to your attention, General?
A I cannot say that, I don't know when it arrived at our division at any rate after 15th September, but what date it reached the division I cannot recall at the moment.
Q You remember the order, don't you?
A Yes, I do.
Q Now, how was it you say that this order was not carried out by your division?
A The order was not carried out and moreover the not carrying out of the order was never criticized by the superior command. As I started also in my affidavit; I never saw the necessity to exclude the Croatian authorities in the matter, so that they should not order or enforce executions of the kind described.
Q Who ought not to carry out the order?
A The troops, our own troops; in all instances I wished to exempt the troops from this bloody business.
Q Now, whom did you talk to about this?
A I discussed it with the commanders, also with my 1a and 2a. My 1a was Colonel Kaudewitz, who also executed an affidavit which was confirmed to me verbally that I was supposed to have said at the time...
Q Well, never mind about that. Now did you ever talk to General Dehner about it?
A I believe at that time I also discussed with General Dehner, but I cannot recall the official discussion in detail, but I always had the impression that General Dehner, as far as the attitude of the division and my orders were concerned, that he agreed with them.
Q Well, did you decide and on your own assume responsibility to ply into the teeth of an order of the Second Panzer Army, or did you do it after having discussed the matter with your immediate superior?
A I cannot say that now whether I previously discussed this with General Dehner, or whether I did it on my own initiative originally, I cannot recall that anyone any discretion in how it was to be carried out, that is to say how this fixed ratio of 50 hostages to be killed for each German soldier killed and 25 hostages to be killed for each German soldier wounded; did you interpret that as mandatory on you or directory only?
A I believe that whoever thought themselves authorized to carry out such reprisal measures, in accordance with the order, was also impowered to reduce the number, the ratio, as stated. It says here; as a rule.... It doesn't say it is the lowest figure for reprisal measure, which applies, it does not say it is a minimum, or a maximum.
Q Do you didn't think that some discretion was to be allowed in the matter?
A I believe I did.
Q Now, you say that General Dehner was in agreement with you as to your attitude that this order ought not to be carried out?
A I had that impression, yes I did.
Q Suppose General Dehner had been of the opposite opinion and had been in favor of carrying this out, was he in a position to order you to carry it out?
DR. GAWLIK: Objection to the question. May it please the Tribunal, in the first place it is a hypothetical question and is inadmissable for that very reason and in the second place this is purely argumentative. The witness is not asked to testify what General Dehner did, but what he would have done.
THE PRESIDENT: Over-ruled.
THE WITNESS: I have no judgment on this. I can well imagine that if General Dehner did not agree with my measures, that then he would have let me know, but I do not know whether General Dehner was authorized to issue an order to me regarding these reprisal measures.
BY MR. FULKERSEN:
Q Well, suppose it had been the other way around, suppose you had received the order and had felt you should carry it out and General Dehner had not agreed with it. Was he in a position to restrain you from carrying it out?
DR. GAWLIK: Objection to this question for the reason that the witness has stated he cannot voice an opinion on the topic, thus the affiant has answered the question.
THE PRESIDENT: He may answer if he knows and state his judgment on the matter.
THE WITNESS: Well, I can only repeat that I have no opinion, no judgment on this matter and today of course I do not know what I would have done at that time if a special case had arisen.
BY MR. FULKERSEN:
Q Now, General, here we have an order issued by the Second Panzer Army and under the Second Panzer Army was the 69th Corps and under that is your division, now you received the order and you say that in your opinion someone was allowed some discretion as to how that order was to be carried out; is that right?
A Yes, inasmuch as it is also written here that reprisal measures in Croatia are as far as possible to be carried out by the Croatian police, proveded they are supervised by organs of the field police, fieldgandarmers or SD that was as far as possible.
Q Now, you have not answered my question, General, I am sorry I hate to interrupt you. Now, you said you thought that this order allowed some latitude or discretion in carrying it out?
A Yes, for him who felt called upon and bound in duty to carry out the measures.
Q Now do you think that you yourself, as a divisional commander, had some discretion in carry in it out?
A On my part, I never interpreted this order as meaning that I was bound in every instance to carry out such measures in every case.
Q. In other words, it was up to you to a certain extent, the way you interpreted it, as to whether it would be carried out or not?
A. That was my view.
Q. But your testimony is that Lieutenant General Dehner, your superior, could not exercise any discretion in this matter at all.
A. I believe that I didn't say that.
Q. All right, please give us your views on that. What discretion did General Dehner have?
A. I, on my part, cannot give any information on this. I think General Dehner himself is best qualified to enlarge on this.
Q. Well, here's what General Dehner said about it; it might have occurred in individual cases that the divisional commanders did it -- that is, carried out reprisal measures -- we know that they used their right given them in the Army order. But he also said that if the order was carried out, that the blame or responsibility for exercising the discretion which you described lay on the divisional commanders, and not on him. Do you agree with him? I am referring to Pages 8055 and 8056 of the transcript.
DR. GAWLIK: May it please the Tribunal, I request that the witness be given the record. The last part, I think, has not been read from the record. Will you please submit it to the witness so he, himself, is able to read it for himself? The last part is merely a summary from the record, but it is not actually the wording of the record. I think it is imperative that the witness be furnished with the full text of General Dehner's testimony if this is admitted at all, as it is a pure matter of argument.
MR. FULKERSON: I am perfectly willing for the translators to read it to him, unless he reads English.
THE PRESIDENT: The part to which you have made reference, you will read that part in English. It will, in turn, be translated. You will refer to the page and line, so it will be in the record. I think that will meet the situation.
MR. FULKERSEN: This is General Dehner's testimony.