[Page 402]

"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."

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]

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."

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."

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."

[Page 404]

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."

"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."

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]

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]

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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