Furthermore, at some point, it is mentioned that the 68th Corps--this is mentioned in a report of the Military Commander--ordered that band suspects or band prisoners were to be deported. The third incident which I remember is a teletype or a telephone call from the Army Group where it is said that a train with 1,000 band suspects leaves for the Reich, and this message came to the Corps because the Railroad Security Regiment was subordinated to the Corps and this regiment was to be committed in connection with this band transport.
Q. Did you issue the orders to subordinate units within your Corpus to send persons to Germany for forced labor?
A. I never had that idea; those were orders from the OKW which I passed on when they arrived at my office.
Q. One further question on the Klissura incident. Will you turn to Document Book 21, at page 9 of the English and page 6 of the German? You stated that in April, on the 5th of April, when the Klissura incident occurred you were deputizing for General Loehr as Commander-in-Chief of Army Group E.
A. Yes, that is correct.
Q. You said further that you didn't know anything about the Klissura incident. You will note here that in this communication from Neubacher to Weichs he points out that according to reports submitted to him on the 5th of April, 215 inhabitants of Klissura were killed and 27 people wounded. How does it happen that Neubacher got information about this event and you did not, although you were the acting Commander-in-Chief of Army Group E and the unit involved here was subordinate to you at that time?
A. Envoy Neubacher received from the German Consul in Saloniki who was under him a report because he, in turn, had learned from Greeks about the incident, whereas the Army Group or, first of all, the Commander Saloniki Agean received a military report from the SS Regiment and that was all. That this report was just as wrong as the later Distomon report was only found out long afterwards. I don't know, I would have to check up whether the report as it was actually received by the SS Regiment and sent to the Military Commander Salonika Agean - whether this is actually contained in the files here.
This is how the report, as a pure combat report, was sent through channels. The objections which Neubacher made through his own channels. The objections which Neubacher made through his own channels and received through his own channels, as can be seen from the communication, only became known in May. They were then examined and the report about the investigation is also contained here.
Q. The reports came from Neubacher on the 5th of April that nothing came to you regarding the atrocity--is that your statement?
A. Yes. Mr. Fenstermacher, that should be clear from the documents, and if before that a communication similar to the one that Neubacher received had gone to the Army Group, that should be in the documents.
Q. You stated on direct examination, General Felmy, that you did not execute any Kommandos within your Corps area.
A. What do you mean Kommandos?
Q. I mean by that members of British Kommando or sabotage units. You are familiar with the Kommando Order?
A. Yes, I know the Kommando Order. Members of British sabotage troop which would come under the Kommando Orders were, to the best of my knowledge, not executed within the area of the 68th Corps.
Q. You received orders to execute them after captured for interrogation, though, had you not?
A. The order contained the directive to deliver them to the SD, the Kommando order which I doubt that I received personally because when it was issued in October 1942, I was in Southern Russia, and in the East there was no such things as British Kommando troops. However, I knew of the order. One always learns of such things. For instance, the 1st Panzer Division which was subordinate to me had been in the West and on some occasion probably I was told about it. It is also possible that I received it at a later time. At least, the contents of the Kommando Order were that members of sabotage troops were to be killed in combat or to be handed over to the SD.
Q. You think that it was possible that you might have received Kommando directives after the original Kommando Order of 18 October 1942?
That is to say, you might have received Kommando regulations or directives sometime between May 1943 and October 1944?
A. I don't feel inclined to think so but I cannot state this under oath because I knew of the contents of the Kommando Order but I did not know whether I had received it through some channel or whether I knew it from hearsay.
Q. Do you know if you had received it, whether you would have passed it on to your subordinate units?
A. I can't tell you that. That again is a hypothetical question.
Q. Well, suppose you take a look at this document then, NOKW-923? This is offered as Prosecution Exhibit 629, Your Honors. Would you turn, General, to page 7 of the original document which you have in your hand, page 3 of your Honors' document, to the entry apparently under the 15th of March, 1944, 1830 hours?
Activity of Commando will be sent by teletype ordered to General Commando LXVIII Army Corps, Corps Group Joannina, Commander SalonikaAgean, Commander of the Fortress Crete, Shock Division Rhodos, for information to the Admiral Agean.
The Commander in Chief Southeast, has pointed out that due to the revived activity of the Commandos in the Dodecanes, it is important to capture members of Commando Troops, in order to obtain information about points of departure and further intentions of the enemy. As an expansion to all the islands of the Aegean and also to the Ionian islands and Corfu is to be expected all occupation groups of the islands are to be notified to take the necessary "measures. For the treatment of the prisoners after interrogation the Fuehrer order of 18 Oct. 42 is valid."
It is quite likely that you received such an order as is mentioned here in the entry, isn't that so, General?
A. Where is a reference here which refers to the Kommando Order? Where is this reference? What was it? Was it a teletype order or was it an order transmitted by telephone?
I would like to see it. I would like to see a document where it says "68th Corps addressed to 117th Division, 11th Air Force Division etc..." where all these things are stated.
Q. I would like to be able to show you one, General. The only reference we have been able to find is this reference in the War Diary to a teletype having been ordered to your Corps, and I am wondering whether or not you ever received it.
A. It doesn't say that I received it in writing. Yes, it says here "by teletype." I see. It mentions a teletype addressed to us. That is what is referred to and it means the Kommando Order.
Q. You don't remember having received this particular teletype to which reference is made?
A. No, as I said before I knew of the order. I cannot state under oath whether I received it in the original, so to speak, and quite some time has passed since. It is three years after it was issued because we are now discussing March 1944 and it was issued in October 1943. It is really impossible that one remembers all those similar sounding orders, that one remembers every individual one. In addition, the documents submitted here constitute only a small part of the actual correspondence which we had at the time. I did not deny that I knew of the order and that I knew its contents. I only said I couldn't state under oath whether I actually received it, and I said that I knew about the order as is stated here in the teletype.
Q. The Kommando Order was a very unique order, was it not, General? It provided for the execution of prisoners of war after their capture. You would have remembers it if you had received it, wouldn't you?
A. Could you say this sentence again please?
(The interpreter repeated the question).
A. It was one of the orders which was discussed by this - I mean it did cause a certain excitement. It was interpreted in different ways. Those people who had ever experienced a Kommando operation thought it was quite right because it represented a reprisal measure against the cunning and mean methods which were used by the Kommando members. For instance, they put the German soldiers in shackles so that they suffocated as soon as they raised their heads a little, and they had other pleasant methods.
Often, the members of such Kommando groups were criminals of the first water who knew all about such measures. Therefore, as I said, those members of the troops who had ever come into contact with a Kommando operation thought that the measure was quite correct.
Q Would you please repeat that, General. Did you consider the Kommando Order an unlawful order?
A No, I consider it a reprisal order directed against the unlawfulness of the opponent who also used civilian clothes on the occasion of such operations, whereas usually in wartime uniform is worn. At least, that is what my training has taught me. If I wear civilian clothes in wartime, I have something special up my sleeves, or if I wear a uniform which I am not entitled to wear, or if I do anything that deviates from the regular usages of war.
Q And if you did not consider the Kommando Order unlawful, you would have had no hesitation in passing it on to your subordinate units?
A No, I would not have hesitated.
Q Now the military mission order. The right to the execution of the Allied military missions operating with the band on captures. Would you consider that an unlawful order?
A Members of military missions were to be treated according to this order. That is what it stated, I believe.
Q Did you pass that order on to your subordinate units?
A To the best of my recollection, the order was not to be passed on. It was to remain with the Corps headquarters. The reason for this probably was that the Corps headquarters had the necessary interpreters to interrogate members of military missions etc. There might have been other reasons. I don't know. At least, this order was not to be passed on to the troops.
Q Did you consider it an unlawful order?
A Mr. Fenstermacher, we really didn't think too much about that at the time, nor did we discuss it very much. That is just one of the many orders which we received. We had no cause offhand to think that orders which came from our highest agencies might be unlawful.
Q I am afraid you haven't answered my question, General. Did you consider or do you consider it now an unlawful order?
A I would have to see it again to answer this. I don't know whether you intend anything special with this question.
Q Will you turn to Document Book 21 at page 57 of the German and page 70 of the English.
THE PRESIDENT: Let me inquire, Mr. Fenstermacher, do you feel that this defendant's statement as to what he now thinks about an order is an indication of any guilt as to what may have happened three, four or five years ago?
MR. FENSTERMACHER: No. If Your Honor please, I think my amendment to my original question was a little ill-advised. I do mean now to confine it only to the time when he admits that he received the order. I want to know at that time whether he considered it an unlawful order.
THE PRESIDENT: It seems to me that as of that time it might be material, but as to what he now thinks he shouldn't be held bound by his present opinion for something that happened three or four years ago. I am only speaking for myself, please understand that.
MR. FENSTERMACHER: I agree. Your Honor, and I want now to limit the question only to whether or not he considered it unlawful at the time he received it. That is somewhere on or about the 27th of July, 1944.
BY MR. FENSTERMACHER:
Q If you will look, General Felmy, at page 60 of the German and page 72 of the English where it states that the Fuehrer has decided that members of Anglo- American and Soviet Russian so-called military missions are to be treated in the same way as those taking part in a Kommando operation and not as prisoners of war, would you give me your opinion as to the legality of that order limiting yourself to your opinion at the time you received it?
A What it says here on page 60 is no order. It is a file note issued probably by General Warlimont and directed to various agencies.
There are comments by the OKW departments for PW's by the C.i.C. Southeast....
Q Let me interrupt you, General. Will you turn to page 63 of the German then, 74 of the English. Do you consider that an order?
A That is a draft. It says "Draft of an order." The order itself is not contained there but we are concerned with the contents, aren't we?
Q On the next page, page 65 of the German and page 75 of the English, is another draft. Is there any doubt that the draft on your page 65, English page 75, is the correct text of the order as it was finally sent out?
A I can't compare it as quickly as all that. I would have to read every word and compare it.
Q The first sentence is to the effect that members of the military missions are to be treated in accordance with the Fuehrer's Order of 18 October 1942 which relates to captured sabotage or Kommando troops.
A Well, it is a draft. Whether it was issued in this same form I cannot say for certain. If it had been issued in this form, whether I would have considered it lawful or unlawful - to that question I can only say I would not have considered it unlawful because an order coming from the OKW and signed by Keitel by order of the Fuehrer I could not assume to be unlawful, since I was a soldier at the front or that it should be even criminal as you said at some other time.
Q You had a court at your Corps headquarters, did you not?
A Yes, I was in the exceptional position to have a legal councillor. The other Corps did not have any. I had a special reason to have them because we had a special assignment.
Q Did you ever ask him about the legality of the orders which you received from OKW?
A Mr. Fenstermacher, such an idea didn't even enter my mind, to put it quite frankly. The idea to doubt any such order simply didn't enter my mind.
Q Did you ever consider paragraph 47 of the German Military Penal Code in that regard?
A No, not either. Of course, I know Article 47 but to connect it up with such orders - in my opinion, I didn't see any cause to do this. An order received from my supreme agency or even from the Head of State and signed by him could not possibly mean a crime. That was an idea which was quite impossible for us at that time.
Q General, who was responsible for the security of Athens during the time you were Commander of the 68th Corps? That is, from May 1943 until October 1944?
A When I was on the Peloponnesus, I did not interest myself in these questions at all. Later, I tried to have these problems cleared up but I didn't quite succeed in doing this. There was a Higher SS and Police Leader who had police troops under him and who, according to German pattern, served in Athens. That is, he represented something like the police president of Athens and last was responsible for law and order in the town. Then there was a Military Commander for the whole of Greece. How far his spheres of duty overlapped with Athens I don't happen to know because I don't know the service regulations in detail. I breathed a sigh of relief when all these intermediary agencies left Athens towards the end of September and I became the only ruler in Athens but this was only as of the 20th of September.
Q When were your Corps headquarters permanently stationed in Athens? During what period?
A. Approximately the first week of October, 1943. Somewhere between the sixth and tenth of October, the Army Group Southern Greece was dissolved and I again took over the 64th Corps which was transferred to Athens or to put it more correctly to Psychikon, a suburb of Athens.
That was in the first week of October, 1943.
Q Now suppose there were sabotage acts committed in the City of Athens during the period, the middle of October 1943 until October 1944, when your headquarters were in Athens? Who would order the reprisal measures?
A Not the 68th Corps, because, Athens, as such, was not under it.
Q Who did order them?
AAccording to what I read in the newspapers, that was always signed "The Higher SS and Police leader", so they could be traced back to him.
Q As I understand it, General, in Athens there were three units: Yourself, as Commander of the 68th Corps; General Speidel as Military Commander of Greece; and the 18th Police and SS Regiment under the Command of General Schimana.
A No, excuse me. The 18th Police Regiment, or rather the majority of this regiment was stationed in Boeotia. Only one battalion was in Athens, but the Schimana staff was stationed in Athens. That is correct.
A Schimana was both Higher SS and Police Leader and Commander of the 18th SS and Police Mountain Regiment?
A He was not commander of the regiment. The regiment was subordinate to him, it had its own regimental commander.
Q Now, you mean to say, that when you were in Athens as the Corps Commander you did not know who ordered reprisal measures in the City of Athens for acts of sabotage or attacks upon German troops?
A I said that for the town of Athens reprisal measures were carried out by General Schimana because I saw in the newspapers announcements indicating that. For instance, quoting from memory: "For the murder of 10 Greed gendarmes, 20 or 30 Greeks were hanged or shot this morning. Signed: Schimana, Higher SS and Police Leader." Approximately like this such announcements in the newspapers would read.
Q All you know about the reprisal measures in the City of Athens during the period you were Corps Commander there is what you read in the newspapers?
A Such announcements could be found in the newspapers quite frequently. 7280 Q But you didn't know anything other than what you read there?
Did you know anything officially in the course of your duties as to who ordered reprisal measures in Athens?
A Officially I didn't know anything about it. I was only too glad not to have anything to do with Athens personally because that was quite a hot spot, as was found out during the last weeks, and I was always very worried about Athens and what the situation there might lead to, particularly so if the Allies had landed anywhere.
Q Who had executive power in Greece and in the City of Athens?
A The executive power was held by the Military Commander.
Q Who was that?
A General Speidel, and after him, General Scheurlen. I have to assume this because I couldn't possibly imagine that executive power which had been transferred to the Military Commander South-east was executed by him personally. I would assume that he invested it in the Military Commander Greece, in turn. I am not quite sure that he did that because, after all, I was not Military Commander and I didn't know his service directives. The period of time when I was Military Commander Southern Greece and the time we discuss now are completely different because now the Italians weren't there any longer.
Q During the period October, 1943 to October, 1944, when you were in Athens, to whom was Schimana subordinate?
A I do not know Schimana's service regulations and directives. He received orders from Himmler and he received orders from the Army Group. To what extent he received orders from General Speidel and to what extent he was subordinate to General Speidel, I'm afraid I can not make any statements in detail. These are matters which did not concern me very much so I took no interest in them.
Q Now, you talked about the evacuation of Athens in October, 1944, General Felmy. You said that you had received an order for the destruction of the Marathon Dam, I believe.
A The Marathon Dam, that is correct, yes.
Q From whom did you receive that order?
A There were a lot of objectives to be destroyed. Who drew up that list, I don't know. I assume they were experts who worked in conjunction with some of the high agencies.
Q You received that order from Field Marshal von Weichs, didn't you? Look at your document.....
A No, I don't think so.
Q Look at your Document Book III, at page 60. Your affiant there, Robert Berghofer, stated in paragraph 5, second sentence:
"The OKW and the commander-in-chief in the South-East had ordered the destruction of all military property which could not be removed and which could, directly or indirectly, be of help to the enemy in his waging of war."
DR. MUELLER-TORGOW (Defense Counsel for Defendant Felmy): Your Honor, I object against the discussion of this document because it has not been submitted by me.
JUDGE CARTER: It is the opinion of the Tribunal that there is no objection about inquiring about the fact, but the exhibit, not having been offered in evidence, the reference should not be made to that.
BY MR. FENSTERMACHER:
Very well, Your Honor.
Q. You do not know from whom you received the order for the destruction of the Marathon Dam, General?
A No, I don't know.
Q Why was the destruction of the Marathon Dam ever even considered? Was its destruction a military necessity?
A You have asked me too much. I can't answer that. I don't know. As a reservoir, it had certain military importance for the troops stationed in Athens, but it was just as important for the civilian population in Athens because water, after all, does not take into consideration uniform or civilian clotnes.
It serves man. For the conduct of war within Athens, or course, it was very important indeed.
MR. FENSTERMACHER: I have no further questions, Your Honor.
JUDGE CARTER: If you prefer, we might adjourn until after lunch at which time you might continue the redirect examination.
DR. MUELLER-TORGOW: Very well.
JUDGE CARTER: The Tribunal stands in recess.
(A recess was taken.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
JUDGE CARTER: You may proceed.
REDIRECT EXAMINATION BY DR. MUELLER TORGOW:
Q. General, you said on Friday, as far as the things were concerned which were carried out by units of the 68th Army Corps, you were responsible for all those things which you ordered yourself. Is that correct?
A. Yes, that is roughly what I said.
Q. In this connection, Mr. Fenstermacher used the term "Fuehrer principle". What is the "Fuehrer principle"? Particularly in the military field. Speaking quite generally, not only in the Wehrmacht but in any armed force?
A. One orders and the other obeys.
Q. It does not mean, in other words, that the leader, the Fuehrer, bears the responsibility for acts committed by his subordinates, which he has not caused in any sense of the word. Did you want to say that?
A. If I have no knowledge of the events or if I am not informed through some channel or other, of incidents which occur in my area, I mean, then I can scarcely be held responsible for them.
Q. General, you said further, concerning the period of time when you were deputizing for Field Marshal List - that is to say, between 23 July and 23 August, 1941 - when you were asked about the units then under your command, you being the commanding general, whether you felt yourself to be responsible for the things which occurred in that period of time in the Army area and you said "formally speaking" you were responsible for the events which had occurred in that period of time. What did you mean by "formally responsible?"
A. Well, perhaps it's a slightly clumsy term. By "formally", I meant from outward appearances as far as others were concerned. I deputized for him, but I was not really the commander in chief.
Responsible I was for the things which occurred in the Army area if and when I ordered them myself or if and when I was informed about them.
Q. You mean, when you tolerated these things, or when you took steps against them? I am only supplementing you.
A. If these things came to my knowledge, and if I tolerated them I did so because they were I considered them a military necessity.
If they had been done according to the directives and orders concerned.
Q. In other words, you think the same applies for the time when you deputized for List as what you said concerning the 68th Army Corps?
A. Yes.
Q. General, I would briefly come back to the order concerning the hostage ratio, where the OKW, on whose behalf Keitel signed, fixed the ratio of 1 to 50 and 1 to 100. You testified that at that time you did not regard this order as illegal and you were not quite sure it reached you at that time. What did you want to express by that expression?
A. I regarded it as necessary, under the prevailing circumstances. Prevailing at the time it was issued, I mean.
Q. It came from the OKW, didn't it?
A. Yes, it did. It did indeed dome from the OKW. The date was the 16th of September, as I found out here. I said that in September I had been on leave and I held conversations in Berlin because of these Arabic problems and I was informed about them, probably in an oral report by my chief of staff. The document which the prosecution has submitted here does not mention my agency but somehow or other it may well have reached my agency. As I say, I was not present when it came in, but I know about its contents.
Q. As far as this order is concerned, when you used the term "unlawful" does the same apply which you said in a different context this morning - namely, that the OKW checked the order as to its status under international law? In other words, formally speaking, it was lawful?
A. I must admit that we did not worry about problems like that at the time. The order came from our higher superior agency and we were committed by it, unless there was a certain amount of latitude allowed in its wording. My personal view about this order I have explained on direct examination, but that is scarcely the essential aspect. Nobody had asked me for my opinion beforehand. I received the order and, as a soldier, I had to carry it out. I believe that would be so in any army.
Q. Now, about the question of passing this order on. You said that you did not pass it on to the local defense units because they were only in charge of guard duties. They were guarding important enterprises such as food supply, depots, etc.
A. Yes.
Q. Concerning the island of Crete you were not quite sure. Should it have been passed on - lest I should use the technical term of directing it - to Crete .... Should it have been passed on to Crete, what would have been the significance of that?
A. That would be purely a matter of postal communications as far as we were concerned. Any mail for Crete had been sorted out. Any private mail was passed on to the main post office which was located in Vienna. It was put together in bundles for Crete. Official mail which came from the Army Group had also been sorted beforehand for Crete. We did not sort out the mail. Anything destined for Crete went through the ordinary normal postal channels. The post was usually carried by aircraft, and anything else - packages, etc., God knows what - was sent by sea with all the other supply goods.
Mail was mainly sent by air because that would be quicker and more reliable. The air was completely clear at the time whereas you could not say that of the water. A number of Greek and British submarines roamed about in these waters and frequently torpedoed our ships to and from Crete.
Q You want to say, therefore, if that order reached the staff of the Corps at all, it merely reached the registry office from where it would be passed on to Crete, but it was not put on the desk of some expert or your own so they could formulate their own point of view; is that correct?
A Mail would be passed on quite automatically without our going into the details of the contents and then it was in toto sent on to Crete.
Q. Then there is one question concerning the affair of Distomon. It seems to me, General, that on Friday you did not quite understand what Mr. Fenstermacher wanted to ask you, you said that the SS was the only authority competent for the disciplinary actions of that Regiment, that not only you but above that the Army Group and O.K.W. could not give any measures in that respect?
A Yes, I think I used the term O.K.W. and Himmler had to get together to settle this.
Q And the decisive agency was?
A It was Himmler.
Q I see. Is there any difference in the treatment of this business, in the fact that this Regiment came from your area, or was it always the same? I mean let us suppose that the Regiment had remained in your area, would it then have been the same state of affairs concerning competence, would again the Reichsfuehrer SS have been the only competent authority for disciplinary and judicial problems?
A But of course, it was an SS formation, it was not subordinate to the army, but to the Reichsfuehrer SS.
Q Now, a brief word about the Rosenberg detachment, how many soldiers were there in that detachment roughly?
A Roughly speaking, five or six, nothing like a hundred or more, it was a small unit, there might have been ten.
Q Now, on direct examination you told us that detachment had been attached to you for economic matters and subordinate to you in disciplinary problems?
A That I did say.
Q And I think there was another misunderstanding here. Mr. Fenstermacher asked you whether you, as the disciplinary authority, whether you had been competent if soldiers plundered archives or libraries. Let me ask you generally, quite apart from the Rosenberg detachment, if any other unit a disciplinary subordinate to you suddenly went off and looted libraries; would that have been a case for which you would have to take disciplinary action?
A By looting or plundering is meant a theft in order to enrich oneself, whether these are books or jewels or pictures, as soon as you enrich yourself you become chargeable and subject either to my disciplinary authority or, if that was not adequate enough, you would be subject to the legal department of the army or of the navy if you were a member of the navy, of the Luftwaffe if you were a member of the Luftwaffe.
Q Well, now, to come back to the Rosenberg detachment, was the case there that these five or six members of this detachment went off and plundered archives in order to enrich themselves, or was the situation a different one?
A Well, it depends first of all what the prosecution means by plundering. In this particular case, as I see it and from what has been established in this trial, members of the Detachment Rosenberg confiscated the political literature in these archives and libraries, to which they were fully entitled. Any occupying power does that in the occupied country, they confiscate political literature because from there all sorts of conspiracies and other plans might be brought to light. Therefore, I regard it as entirely justifiable that the occupying power in Germany confiscated the party index, or the documents of the foreign ministry, because politically speaking they were interested in them and they were highly enlightening on many questions which were possibly not cleared up.