A.- Such a field headquarters in the framework of a divisional commander did not exist in Serbia.
Q.- How about your units then?
A.- I had only parts of the Bulgarian occupation corps as division like units; only in the summer of 1944 when the Russian danger showed up on the horizon I received active divisions under my command.
Q.- All right, witness. We are now talking about the time or period before this time.
A.- At that time, with exception of the Bulgarian divisions, I had no divisions under my command.
Q.- Did you ever bear in your capacity as military commander southeast or in your capacity as military commander Serbia that a division commander or a commander with the rank of a division commander had the right to order reprisal measures?
A.- Not in the Serbian area, no.
Q.- In other words, my question is something completely new for you, witness? You have never heard anything about that?
A.- No.
Q.- Your Honors, I am now referring the witness to NOKW-172, Exhibit 379, Document Book 16.
(Handed to the witness)
Witness, I believe this order was already shown to you yesterday by the representative of the defense, is that correct?
A.- Yes.
Q.- And I believe you then testified that you had never seen that order previously.
A.- At least, I cannot remember that it passed through my hands.
Q.- All right, witness. Would you like to look at page 2 under (c) and read through these paragraphs?
It says in there: "The revengeful attacks which are directed against the units and its installations may be ordered only by a German commander, at least with the disciplinary authority of a division commander in agreement with the competent administrator subarea headquarters."
Does it read like this in the document, witness?
A.- Yes.
Q.- And then in the next paragraph, witness, it goes on. "If an agreement is not reached, the competent territorial commander is to decide when reprisal measures for losses in the air corps, navy, police, and the OT are to be ordered principally by the territorial commander. All other reprisal measures, for example, for German civilians, persons in the service of the occupying powers and in defense are to be ordered by the competent field commander. The units is to support the administration of area headquarters in carrying them out."
These two paragraphs -- were they contained in the document?
A.- Yes, they are in here.
Q.- What are your comments on this?
A.- I believe that the army group, through events some place in the gigantic southeastern area, had seen fit to issue this first summary of a reprisal order, but that the right to order reprisals was limited to someone of at least the rank of a division commander, that is, not to somebody of a lower rank or a lower echelon, that was an order which was valid for the whole German Wehrmacht.
Q.- But, witness, just now you have told us that this is the first time that you heard about this at all, that only a man of the rank of a division commander was authorized to carry out reprisal measures.
A.- No, I am sorry. That must be a misconception of my answer.
Q.- Would you like to answer it again for us then?
A.- In my area there was no department which had the rank of a division commander with the exception of the Bulgarians whom I have to except here because as a foreign unit they did not have the authority to order reprisals.
In my area, Serbia, therefore, a division commander could not order any reprisal measures because during the whole time of my presence in Belgrade there were no troops in the Serbian area up until summer 1944, which were not subordinate to me.
Q. All right, witness. Will you now explain that the reason is for this, because if it had been the way you describe it, what is the reason then for such an order?
A. I have already said previously that probably events had taken place somewhere in the Balkan area, that is not in Serbia, and these events had given the army group reason to want to see the reprisal measures increased, and the explanation for this can also be seen from the second paragraph of this instruction according to which the untilthen-customary procedure has given cause for a new order to the intermediary of envoy Neubacher.
Q. Witness, apart from the fact that you cannot remember having seen this order previously, were you during the preparation of this order-- were you called?
A. I cannot say that at that time the arm group called us in the preparation of any order by the army group.
Q. The contents of this communication -- is that a matter which concerned your sphere of work?
A. Yes, quite. Very much so.
Q. Witness, is this order which we are concerned with here a true order?
A. Without doubt. I assume that.
MR. RAPP: That is all, your Honor.
GENERAL FELBER: Now, now I see here - no, that is only a certification and that is an officer of my staff, Dr. Bode.
MR. RAPP: An officer of your staff, witness?
GENERAL FELBER: If I read the signature correctly then it was Bode.
MR. RAPP: Then in this case the staff did give the order.
GENERAL FELBER: Yes, in that case I cannot doubt it, that the staff did get the order, only I cannot recollect that I have received the order at that particular time, which did not exclude that it really did arrive and was submitted to me. I only remember a different reprisal order-- that one from June.
DR. RAPP: I then repeat, witness, because you personally cannot recollect that you had seen this order previously, not on the basis of the fact that it was signed by one of your officers who certified for the correctness of the copy, we can therefore conclude that your order was received in your headquarters.
GENERAL FELBER: That is doubtlessly so.
PRESIDENT JUDGE BURKE: Is there further cross examination?
DR. LATERNSER: Your Honor, I don't know at the moment and I don't think I am authorized to put any further questions, but I would like to ask you to allow me to do it because now in the re-direct examination, new facts were disclosed. The prosecution did not limit himself to the contents of the cross-examination so that I should have the right to refer and examine the witness as to these newly discovered facts.
PRESIDENT JUDGE BURKE: You may proceed.
RE-CROSS EXAMINATION BY DR. LATERNSER:
Q. Witness, you said just not that it is possible that you might have received this order NOKW-172, that is Exhibit 379. We will assume now that you or your staff did receive it. Would that for you as Military Commander Southeast -- would that have been an order for you?
A. Yes.
Q. Do you mean to say that through this, the Commander-in Chief Southeast gives you an order in this sphere of reprisal measures?
A. Yes. The lost sentence of the order at which I looked just now reads to the effect, if I recollect it properly now, that all contrary orders are to be altered or rescinded, and furthermore there is a reference to another order by the army group in August.
That is an order.
Q. Witness, now I would like to draw your attention to the following in the preamble to this order. It reads: "In agreement with the Military Commander Southeast, the following instructions are issued."
A. As to this formulation I would like to specify that it is quite possible that these discussions which finally led to the agreement were not carried out with me personally but maybe with my chief or in the frame of a discussion with the envoy Neubacher and other military commanders. Anyhow, it strikes me that this rather important order was signed for Field Marshal von Weichs by his deputy. However, the reason for that may be purely formal. It maybe purely a delay in military channels.
Q. Witness, you said just now that this was a binding order for you. Was it ever possible that an authority could give orders to another commander and put the following in this order? "In agreement with the military commander Southeast."
A. In matters of chain of command, that was not usual, but in this rather difficult object, especially where the envoy Neubacher had to be included according to a new order, I think that is a kind of explanation and communication that this committee of the three people mentioned did agree to issue such an order, and that explains the words "in agreement." But they should not be understood to the effect that this order, in the details of its various paragraphs, was established within the framework of a discussion.
Q. You mean to say then, witness, that the army group could give you an order in these specific matters and although the army group could do so, in your opinion they put into the order and emphasized in the order that the order was arrived at and issued with your consent and agreement?
A. Yes.
Q. Witness, what do you understand by the military concept of "securing?"
A. Securing of a country to me means militarily the maintenance of law and order so that there won't be any resistance to any measures of the troops, so that there is no opposition in the country, so that, to put it in more details the Supreme Commander who was responsible for the whole of the area has a quiet and peaceful near area so that he is in a position to carry out his measures.
Q You mean by military securing of a country that includes the preparing of a platform for strategic actions?
A I'd like to say that in a difficult area as the Balkan area I would not like to limit myself to this definition because here the securing was also connected with political aspects.
Q Witness, wouldn't you like to agree with that according to military concepts, under military securing, one understands the establishment needed on order to counter larger enemy units?
MR. FENSTERMACHER: Your Honor, that question is objected to. We are not interested in the opinion of Dr. Laternser in this matter nor are we interested in any opinion of the witness in agreement with Dr. Laternser's opinion.
PRESIDING JUDGE BURKE: We have allowed considerable latitude on both sides and I'm sure Dr. Laternser will content to confine himself to questions without advancing his own opinions or conclusions. You may proceed.
BY DR. LATERNSER:
Q Witness, do you not understand by military securing of an area the establishment of the state of preparedness of the troops against an enemy undertaking?
A On the whole in the main aspect that would define the concept of securing.
Q Yesterday, you said that the sphere of the Commander in Chief Southeast and of the Military Commander Southeast coincided geographically.
A Yes.
Q If, in this same area, one establishes two different authorities that makes only sense if there are different tasks and different spheres of work. Therefore, wasn't it thus not the Commander in Chief Southeast who was responsible for the military securing and the military Commander Southeast, and only that would make sense, was responsible for peace, law, security and order; for those two spheres of work which I named just now, are thus clearly separated, aren't they?
A Quite, purely formally I have to acknowledge that, but the conditions and the tasks were of a different nature. The Commander in Chief had the right of issuing directives which allowed him to interfere with matters in my sphere. That is what I called the right of issuing instructions.
Q Witness, you have just mentioned the right to issue instructions. In what respect did the Commander in Chief Southeast have the right to give instructions to you? Please formulate this very clearly so we can at last clarify this matter.
A He had the right to issue directives in all questions of securing law and order in the country, whether these directives or instructions, - they have another name yet, - the service regulations, not directives, - whether these service regulations contained expressions for those departments which probably deviated from the formulation which we talked about just now, without having to mean the opposite. In my opinion, the service regulations should be formulated, whether there under the word security and securing they mean the same or the contrast. I don't think so.
Q In this respect the documents will speak for themselves but what struck me just now was the following: You said just now that the Commander in Chief Southeast did have the right of directing you concerning the security and law and order in the country. Did you intend to put it that way, that you mentioned the word securing together with law and order, or didn't you rather mean to separate it, just like the instructions talk of securing of a military nature on the one hand and securing law and order on the other hand.
MR. RAPP: We object; we believe defense counsel is arguing with the witness.
PRESIDING JUDGE BURKE: Objection is sustained.
BY DR. LATERNSER:
Q Witness, I will formulate this differently now. You said just now that the Commander in Chief Southeast had the right to direct you as Court V Case VII Military Commander Southeast which concerned the securing and the law and order in the country.
Is that correct?
A Yes, that is my opinion.
Q Witness, in the service regulations for the Military Commander, it was written explicitly that those are responsible for the security, law and order?
A I believe this is merely hair splitting which is possibly necessary but security and law and order to me, as a soldier, are the same thing.
Q For you, witness, is the security and securing the same?
A In this connection, as it is used here, yes. As a soldier at least I would not read a difference into these concepts and I have never done it.
Q Maybe that was an error. To me this difference is very important. I have no further questions.
PRESIDING JUDGE BURKE: Is there further cross examination? If not the Prosecution may proceed.
BY MR. RAPP:
Q Witness, as a last question, I would merely like to ask you whether the so-called reprisal or retaliation measures were a securing or if you like, a security measure?
A This question I answer in the affirmative.
Q We have no further questions.
PRESIDING JUDGE BURKE: Judge Carter, do you care to interrogate the witness?
BY JUDGE CARTER:
Q I'd like to ask the witness a few questions. As I understand it you became Military Commander in Serbia in August 1943?
A Yes.
Q At that time you were in command of the whole of Serbia?
A Yes.
Court V Case VII
Q Did you all that time consider the whole of Serbia as occupied territory?
A Yes, your Honor.
Q And it is your thought that as Commander you were Military Commander in the occupied territory of Serbia. Is that correct?
A Yes.
Q Was the whole of Serbia under your direct command at the time you went there in 1943?
A Yes, the whole of Serbia; that's right.
Q You mean by that the whole of Serbia had been conquered by the German Army at that time?
A Yes.
Q And you at that time required the inhabitants to act as inhabitants of occupied territory under the rules of international law. Is that correct?
A Yes.
Q Now, did you at that time have control of all of the Governmental offices of Serbia?
A Yes.
Q Now how many troops did you have under your control at that time?
A In the Serbian area approximately 70,000 but this figure is just a rough estimate.
Q Now, generally speaking, how were they deployed?
A They were employed generally speaking for the protection of important railroad lines, and highways, and their artificial constructions; the troops of the police were as a rule employed for the protection of the harvest, for the protection of the mines, and for special installations like for instance electric plants. The German troops which only existed in small units were kept by me generally for my own disposal. That is rough outline is the division of the various units.
Q. Now, were you familiar at that time with the concentrations of bandits, whether you referred to them as partisans, communists or Chetniks, or whatever they may be, - are you familiar with the location of those large groups, generally speaking?
A. We knew pretty well the general localities of the bands when formed. Generally speaking it was like this: Numerous hordes, without any connection, were split up in the main areas in Serbia, especially in the inaccessible mountain terrain. Besides, there was the question of going to and from the Croatian area and also from the Sautchak area, from the West into the Serbian area, and as I've said before, there was a constant coming and going.
Q. Did you deploy any considerable number of your troops to counter the activities of these band groups?
A. I have really always had my troops on the march and I have also put this down in the memorandum which was already mentioned. According to this memorandum there were about 20 enterprises, or operations, on a large or small scale, which became necessary in the course of one year.
Q. When you went to Serbia in 1943, did you consider the captured members of these bands as prisoners of war?
A. I have repeatedly, again and again, ordered, and in the presence of my troops on occasions when the troops were in bandit area, I again and again had to express my wish that with captured bandits we had to deal exactly in the same manner was with prisoners of war whom we took in other theaters of war and in other fronts.
Q Were they in fact at that time treated as prisoners of war?
A. In any case during the whole time I received no report and no complaints, not even from the Serbian Government which observed these matters very carefully, saying that the troops did not comply with this order.
Q. Do I understand then that you treated captured bandits as prisoners of war because you considered the bands themselves as regular organized armed forces?
A. No, I did not have this conception; but in spite of the fact that I was of a different opinion, an opinion that these are not organized military soldierly troops, but in spite of this I insisted that the prisoners were to be treated as prisoners of war because I wanted to avoid that a mutual butchering would take place.
Q. Was there any time after you went to Serbia in August of 1943 that you arrived at the conclusion that the bands as you refer to them, were, in fact, an organized Army and entitled to be treated as such?
A. I have not gained that impression. Only as of July 1944 were the bands really more and more found to appear as organized units. We then also received reports saying that Tito's units now had grouped themselves, into divisions, and were dispersing over the whole country according to plan; this was only established in the summer of 1944. As of this date also the method of combat of the enemy changed. The resistance became much tougher, and the coming and going stopped. From that time on we found that quite a considerable opponent opposed us.
Q. It is your thought then that in July 1944 the bandits or partisans or Chetniks, or whatever you may call them, were entitled to be classified as an Army in the field against the German Army. Is that correct?
A. I would like to specify the period as beginning with August 1944.
Q. Was there any decision made to that effect?
A. As I understand the question, whether we changed our behavior as of that date? Is that correct?
Q. Substantially.
A. No, an alteration of our combat methods was not necessary be cause even prior to that we endeavored to wage the battle, according to purely military, soldierly points of view.
Q. Would you mind briefly stating the changes in conditions that came about at the beginning of August 1944, that caused to change your views about the nature of the opposition?
A. After the opponent was now spreading over the whole of the Serbian area according to plans, also turning up in territories and recruited people in territories, where up to then almost never bands had appeared, I myself was forced to keep my troops tightly together and not as it had been before that, split up all over the country in smaller units. I had consciously to take into account the fact that large parts of Serbia for a period were without any military security.
Q. It is your thought then that after August 1, 1944 that the territory of Serbia was not at that time fully occupied, militarily speaking, by the German Wehrmacht. Is that correct?
A. Yes, that is correct.
Q. No further questions.
PRESIDING JUDGE BURKE: Judge Wennerstrum, do you care to ask any questions of the witness?
JUDGE WENNERSTRUM: No.
PRESIDING JUDGE BURKE: Dr. Laternser?
DR. LATERNSER: Yes, I would like to.
BY DR. LATERNSER:
Q. General, I believe that there were a few misunderstandings which crept up here. Were you ever during your activities in Serbia of the opinion that at any given period the Partisans, the Partisan activity, was a legal activity, that is, a legal force?
A. No.
Q. Never?
A. Not up to the 1st of August.
PRESIDING JUDGE BURKE: Dr. Laternser, do I take it from your question that you are seeking to cross-examine the witness on the examination given by Judge Carter?
DR. LATERNSER: Yes, your Honor, only by this one point.
PRESIDING JUDGE BURKE: Very well.
BY DR. LATERNSER:
Q. You said that until the 1st of August 1944 you regarded the Partisan movement as an illegal movement. Is that correct?
A. Yes.
Q. Why did you change this opinion?
A. I had to change my opinion because in July, according to what we could establish in July 1944 from the equipment of the Partisans, because they were being equipped suddenly with uniforms, guns, ammunition, machine guns, foreign equipment, foreign instructors to a large extent.
Q. General, you then mean to say that an illegal movement becomes legal when it is well organized?
A I did not say that, that I now regarded Tito's legions as legal. All I said, at least as far as I recollect, all I said was, all I wanted to say was, that as of the 1st of July the pure band character, the band characters of the combat methods of this unit stopped.
Q. But your opinion as Military Commander Southeast that this was an illegal force against the occupation power, this opinion you never did change at any time?
A No.
Q. But this impression did at first appear here?
A I regret that.
Q. You further answered a question of the Honorable Judge to the effect that through the fact that the bands occasionally kept vast parts of Serbia occupied the occupation by the German Armed Forces could not be regarded as a complete one.
A Yes.
Q. When is an occupation complete?
A When the territories of the occupied territory--when I can rule this territory with my force, with my unit, so that I am master of the situation.
Q. In a certain spot where you wanted to be stronger than the bands, couldn't you manage to make yourself so strong there that you were stronger than the bands?
A. We adhered to this procedure which was customary to us. We attempted to adhere to it in the Balkans, too, but because of the insufficient number of the units at my disposal and again because of the formation of the country it was not possible. I had to use my few units inasmuch as they were not employed with protec tion of railroad lines, protection of bridge, etc.
, and were not tied up I had to employ them very carefully and economically.
Q. The territories which you are talking about now, they changed currently, didn't they?
A. Generally speaking, that does apply. There were, of course the same territories again and again where the bandits' battle was mostly waged.
Q. It was so, wasn't it, that during a long period, almost the whole time you were down there, one part of Serbia was almost completely occupied by the partisans?
A. No.
Q. And if you had attached importance to one particular locality which was occupied by bandits for a lengthy period you were in a position to take it, weren't you?
A. I wouldn't answer that with an unqualified "yes" because that depended how far I was otherwise engaged with my units.
Q. General, I would like to put the question--I would like to see the question answered less in a tactical manner--I would like to know, if you wanted to could you take a certain locality.
PRESIDING JUDGE BURKE: I didn't hear the conclusion of the question.
THE INTERPRETER: "What I wanted to know was, if you endeavored to, could you take one specific locality, if you wanted to"--end of question.
MR. RAPP: We might say that defense counsel is arguing with the witness. The witness has already given previously an answer to his question.
PRESIDING JUDGE BURKE: I think that is probably true but we will proceed.
Q. I therefore ask you now to answer the question put to you.
A. May I ask to have the question put to me again?
Q. If you had the intention--if you wanted to carry out the intention to take one specific locality because it seemed important to you--maybe it was on a main highway--could you achieve that?
A. Not always.
DR. LATERNSER: No further questions.
PRESIDING JUDGE BURKE: Any further questions of this witness?
MR. RAPP: We have no questions, Your Honor.
PRESIDING JUDGE BURKE: At this time I have no questions. I will reserve the right, however, to interrogate this witness at the conclusion of the defendants' testimony.
MR. RAPP: Your Honor, I would only like to recall the Tribunal's attention the remarks I believe Mr. Denney and also myself, have made to the Tribunal regarding the further disposition of this witness. He is a prosecution witness and we were prior committed to the extradition of this witness, Your Honor. I am merely stating this in reference to your statement, Your Honor, just made.
PRESIDING JUDGE BURKE: I should view with grave concern any inability to produce him at the time I have indicated.
The witness may at this time be excused.
MR. RAPP: Your Honors, Mr. Fenstermacher is now putting in Document Book No. XIX.
MR. FENSTERMACHER: Your Honors, please-
PRESIDING JUDGE BURKE: Pardon me, Mr. Fenstermacher, just a moment.
You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: If your Honors please, with the presentation of Document Books XVII and XVIII and the testimony of General Felber, we complete, with the exception of the document which I should like to introduce at this time, the prosecution evidence with respect to the situation in Croatia and Serbia during this final phase of the prosecution's case.
That is the period from August 1943 until the evacuation of the Balkans in October 1944.
As an additional document with Document Book XVIII, I should like to offer into evidence the document which Mr. Denney passed out to the Tribunal and to defense counsel yesterday. That is a series of photographs which were marked "Exhibit 441a" for identification, a series of photographs which form a part of the report.
PRESIDING JUDGE BURKE: Pardon me, Mr. Fenstermacher. Will you defer your remarks for just a moment?
MR. FENSTERMACHER: The next document was marked yesterday "Exhibit 441a" for identification, it being a series of photographs which form a part of the report of the National Commission for the Investigation of War Crimes of Jugoslavia.
Now, Your Honors, I wonder if Your Honors and defense counsel have this exhibit present in Court. This was offered yesterday in order that we come within the 24-hour limit. Do Your Honors have it?
PRESIDING JUDGE BURKE: Offered at approximately three o'clock?
MR. FENSTERMACHER: I think it was, Your Honor.
PRESIDING JUDGE BURKE: We will take a recess at this time until three-fifteen.
( A recess was taken. )
PRESIDING JUSTICE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: May it please the Tribunal, we should now like to have Exhibit 441a for Identification introduced as Prosecution's Exhibit 441. This is a series of 28 photographs which from a part of a report of the National Jugoslav Commission for the investigation of War crimes. In assembling this set of photographs, several of the originals of these photographs were inserted by error. The original photograph looks like this, it is somewhat yellow in color, and has writing on the back of the photograph in the Yugoslavia language -
PRESIDING JUSTICE BURKE: How many are there in the portfolio? How many separate photographs?
MR. FENSTERMACHER: There are 28, your Honor.
I wonder if your Honors and defense counsel would look through your sets of these photographs and see whether you have the originals from which we made the photostatic copies. The original is somewhat yellow in color and has Yugoslavian language written on the back, and one page of English translation.
We should like to call in all of the originals so that they might be returned to the Jugoslavian Government. If no originals are outstanding we may proceed with the submission of the photostatic copies.
PRESIDING JUSTICE BURKE: We find none in our sets.
MR. FENSTERMACHER: Thank you, your Honor.
If your Honors please, the English pagination for each of these photographs should be numbered, page 107, and the following numbers to the end, which I believe is page 134 in the English, and in the German, the pagination begins with page 102 and continuous with the 27 other numbers.
The first photograph is numbered 2004, and represents a scene from the village of Prisoje, Stupnido and Potkozara, district of Cajniki.