Archive/File: imt/tgmwc/tgmwc-15/tgmwc-15-148.08
Last-Modified: 2000/03/30

Q. Yes, well, will you look at Paragraphs 6 and 7? Paragraph 6:

  "In view of the vast size of the occupied areas in the
  East, forces available for establishing security will be
  sufficient only if all resistance is punished, not by
  legal prosecution of the guilty, but by spreading such
  terror as is alone appropriate to eradicate every
  inclination to resist.
  
  The respective Commanders are to be held responsible for
  maintaining peace. The Commanders must find the means of
  keeping order within the regions where security is their
  responsibility, not by demanding more forces, but by
  applying suitable draconian measures."

That is a terrible order, is it not?

A. No, it is not at all terrible. It is established by
International Law that the inhabitants of an occupied
territory must follow the orders and instructions of the
occupying power, and any uprising, any resistance against
the army occupying the country is forbidden; it is, in fact,
partisan warfare, and International Law does not lay down
means of combating partisans. The principle of such warfare
is "an eye for an eye and a tooth for a tooth," and this is
not even a German principle.

                                                  [Page 403]

Q. Is it not the "tooth" and the "eye" of the innocent?

A. It is not a question of the innocent. It expressly
states, "to eradicate every inclination to resist." It is a
question of those who resist, the partisans.

Q. I will not argue about it, witness. I gather you approve
of the order.

A. I approve of it as a justified measure which was upheld
by International Law and directed against a resistance
movement of very great extent and of unscrupulous methods.
Of that we had evidence.

Q. Very good. Now I want to come to something quite
different. I want to come to the "Commando Order," and I
desire to put in two documents which have not yet been put
in, to trace the history of the making of this order,
because I suggest it was drawn up in your office under your
jurisdiction.

MR. ROBERTS: Will you give the witness, please, Document
1266-PS, which I offer, my Lord, as Exhibit GB 486.

BY MR. ROBERTS:

Q. Now, this is the first document, dated the 8th of
October. That is a memorandum from the "Q" Branch of the
Wehrmachtfuehrungsstab; that is right, is it not?

A. Yes.

Q. And it was ... that is the wireless order that you
mentioned?

A. Yes.

MR. ROBERTS: First it deals with the "tying up," my Lord,
which is not important. Secondly, the wireless announcement
of the 7th of October, 1942, which reads as follows:

   "All terror and sabotage detachments of the British and
   their accomplices who do not behave like soldiers but
   like bandits will in future be treated as such by German
   troops and will be ruthlessly slain in battle wherever
   they make their appearance."

BY MR. ROBERTS:

Q. Well, of course, that order does not mean very much, does
it? It assumes that the enemy are not behaving like
soldiers, but like bandits, and says they may be slain in
battle.

But then the second paragraph: "The Deputy Chief of the
Operational Staff ... " that was Warlimont, was it not,
witness?

A. Yes, that was Warlimont.

Q. Yes. " ... has given the following task to 'Q': (1)
Drafting order form."

Look at Number 2:

  "Like the Barbarossa order issued at the time, this order
  must also be drawn up-in conjunction with the Wehrmacht
  Legal Department and Counter-Intelligence - with great
  thought and care. Distribution down to armies only, from
  there forward only orally. To be destroyed after having
  been taken cognizance of."

What was the nature of that order that was drawn up with so
much care by your staff and the legal department and
Counter-Intelligence?

A. I believe that was Document 50, which you mentioned
earlier. The "Barbarossa Order" is not a clear term.

  Q. "The following must be borne in mind regarding the
  contents of the order.
  
  In cases where captives are temporarily taken into
  custody for our own purposes, the persons concerned are
  to be handed over to the SD by Counter-Intelligence,
  after a thorough examination in which the SD is also to
  take part.
  
  Not to be lodged in POW camps under any circumstances.
  
  This order is to take effect retrospectively with regard
  to the people from Norway."

The people from Norway were some English commandos who had
blown up a power station in Norway, is not that so?

                                                  [Page 404]

A. That is possible, but I do not know. I have never seen
this.

Q. I think I will be able to remind you later about it.

The next document I do not read. It is from somebody called
"Dr. Huelle," whom I do not know, and I do not think it adds
anything to it.

Then the next document - the third in your Lordship's bundle
- is dated 9th of October, and is signed "Warlimont." Is it
dated 9th of October, witness?

A. Yes.

Q. Signed Warlimont?

A. Signed by Warlimont.

Q. It sets out the first facts in the first two paragraphs
that we know:

  "The Fuehrer wishes that an order be issued laying down
  the corresponding behaviour of the Wehrmacht.
  
  At the instance of the Operational Staff, the Wehrmacht
  Legal Department has drawn up the draft.
  
  You are requested to co-operate in a thorough
  examination-if necessary, calling in Reichsfuehrer SS.
  
  We refer to the discussion between Counter-Intelligence
  and the Deputy Chief of the Operational Staff."

Then the next document is the draft order prepared by the
legal department:

  "Members of terror and sabotage detachments of the
  British Armed Forces, who break the rules of honourable
  methods of warfare, will be treated as bandits and be
  exterminated mercilessly in battle or in flight. Should
  military conditions demand that they be temporarily
  arrested, or if they fall into German hands outside the
  military operations, they are to be brought before an
  officer immediately for interrogation and are then to be
  handed over to the SD.
  
  Keeping them in custody in a POW camp is forbidden.
  
  This order may be distributed only down to armies. From
  there downwards it must be made known only verbally."

Do you remember having a conversation on the telephone with
the head of the legal department about this order?

A. No, I do not remember.

Q. Well, will you look at the next document; it is dated
14th of October. It is in the same bundle, the next page of
it. I beg your pardon, it is a memorandum. Now you notice
the heading; the original heading was: "Revenge actions -
prisoners of war." Somebody struck that out and put instead:
"Combating of enemy sabotage detachments." "Memorandum
(telephone discussion with the head of the Wehrmacht Legal
Department). The head of the Wehrmacht Legal Department has
spoken with the chief of the Operational Staff of the Armed
Forces by telephone." That is you, is it not?

A. Yes.

Q. "The latter (that is you) said that the Fuehrer's aim in
this action was to prevent this manner of waging war
(dropping small detachments who do great damage by
demolitions and then surrender)." That was the object of the
order, was it not?

A. Yes, but these detachments used methods contrary to
International Law.

Q. Well, that is a matter perhaps neither for you nor me to
discuss. But if I might be allowed to ask you this question,
do you draw any distinction between a British airman who
bombs a power station from the air and a British parachutist
in uniform who is landed and blows it up with an explosive?
Do you draw any distinction in International Law?

A. No. As such, the destruction of an objective by a
demolition detachment I consider completely admissible under
International Law; but I do not consider it admissible when,
during such an operation, civilian clothes are worn under
the uniform and armpit pistols are carried which start
firing as soon as the arms are raised in the act of
surrender.

                                                  [Page 405]

Q. Well, there are two things there, you see, and one
answer, and I am not going to argue at all with you; but
when you consider the case, you will find many, many cases
where these persons were executed - and there was no
suggestion they had anything but a uniform.

A. I believe that these cases were quite rare, that at least
these people were mixed with those who wore civilian
clothes.

Q. Well, I am not going to argue with you because there are
other documents available and they will have to be, perhaps,
summarised sometime. But would you agree that a parachutist
in uniform, with no civilian clothes, acting like that, if
he is shot by the SD, would you agree that that would be
murder? Or would you rather not answer that?

A. I have already said that if a soldier in full uniform
only blows up or destroys an objective, I do not consider it
an action contrary to International Law; and for that reason
I opposed the Commando Order in this form almost to the last
moment -

Q. I hear your answer and I will not pursue that matter.
Then the document goes on - I do not want to read it all:
"The head of the Wehrmacht Legal Department spoke to the
effect that one should consider issuing an order for
publication. Article 23c of The Hague Regulations, which
forbids the killing or wounding of an enemy who lays down
his arms, or is unarmed, if he surrenders unconditionally,
had to be explained. When the regulations were drawn up,
this manner of waging war was not yet known and the
Regulations, therefore, could not apply to this." Well, now,
that was the first bundle. Now I want to put to you a -

A. I should like to make a brief comment on this document. I
have not seen any of these papers before; I am now seeing
them for the first time; but they prove, word for word, what
I said here the day before yesterday under oath, that, on
their own initiative, the members of my staff, when they
heard that the Fuehrer had demanded an executive order,
began preparatory work for the draft of such an order with
the Legal Department and with the Foreign Department, but
that I did not accept and did not submit any order to the
Fuehrer.

Q. Well now, I want to put to you another document, 1265-PS.

MR. ROBERTS: My Lord, I offer it as Exhibit GB 487.

Q. Now the first document in the bundle is a teletype dated
13th of October, and it is signed by Canaris. Is that right,
witness?

A. Yes, a teletype message from Canaris.

Q. Yes, and it is a teletype to the OPS Staff. The subject
is "Treatment of Prisoners of War." "Regarding discussions
and measures in pursuance of OKW's notification of 17th
October, 1942, the following conclusive standpoint is taken:

No. 1 does not matter; it is about chaining. No. 2 is the
important one: "Treatment of Sabotage Units. Sabotage units
in uniform are soldiers and have the right to be treated as
POW's. Sabotage units in civilian clothes or German uniform
have no claim to treatment as POW's."

You agree, of course, with the correctness of that, do you
not? The rest of that document does not matter. You agree,
do you not, with that opinion in Paragraph 2, as a man who
knows International Law?

A. Yes, I agree with paragraph 2; it corresponds entirely to
my opinion; it agrees completely with my point of view.

Q. And now the next document.

MR. ROBERTS: If you go to the - If the Tribunal would kindly
go to the last document of the three; and would you go to
the document which is headed "Telephone Call. Reference:
Letter Ausl/Abw., letter of 13th November, 1942." My Lord,
that is the one I have just read.

Q. "Opinion of the Wehrmacht Legal Department." Paragraph 2,
that is referring to Canaris's opinion, "Fundamentally in
agreement. It may, however, be possible to support the
following train of thought with regard to special cases:
These fighting methods, such as exist now and which it is
desired to prevent,

                                                  [Page 406]

developed long after the creation of the Hague Convention
for Land Warfare, in particular as regards the war in the
air. Special attention is drawn to the mass use of
parachutists for sabotage. Anyone who commits acts of
sabotage as a soldier with the intention of surrendering
after the act of sabotage without fighting, does not act
like an honest fighter. He misuses Article 23c during the
formulation of which no such methods were contemplated. The
misuse lies in the speculation on surrender without
fighting, after successful completion of the act of
sabotage. This view regarding the inadmissibility of
sabotage commandos can be backed up without reservation,
provided we also apply it to ourselves." That document has
your initial on the top, witness? Is that right?

A. I have read this document. It contains a statement on
International Law by the Wehrmacht Legal Department, which
on this point agrees with the Fuehrer's opinion. It confirms
the possibility that a misuse of International Law may be
committed by surrendering immediately after an action and
thus securing for oneself complete absence of danger in the
conduct of a war operation. That interpretation is
disputable, I do not fully approve of it, but it was the
view of the highest Legal Department at that time.

Q. Many, many brave soldiers, when they are outnumbered,
surrender, do they not? Many Germans surrendered at Bizerta
and Tunis, thousands of them. How did that put them outside
the pale of International Law or the protection of it?

A. But they were soldiers captured in the normal manner of
war, which the Fuehrer always recognized. This is a
disputable case and very doubtful under International Law,
but, as I said, it is not an idea of mine and has nothing to
do with me; I only took note of it.

MR. ROBERTS: Very good. My Lord, the intermediate document
is a letter signed by Lehmann, who was head of the Legal
Department. It merely confirms the telephone conversation
which I have read, and I do not think it is necessary to
read it again. It is before the defendant.

Q. Well now, the last of these documents before the order
was finally drawn up and issued. The Tribunal has already
seen it, because it has been put in. It is Document 1263-PS,
Exhibit RF 365. My Lord, it is in Jodl Document Book No. 2,
Page 104.

Will you look at the original, please ....

There is an unfortunate omission from Page 110 in Dr.
Exner's book, which I am perfectly certain is quite
inadvertent. Will you look at the document dated 15th
October, 1942?

My Lord, I think that is the first in your bundle. It is
Page 110 It is first in the single documents. It is Page 110
of Dr. Exner's book, and I apologise to him because I have
just seen the marginal writing. It was covered over before
and I did not see it. I apologise.

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