chiefs given the right by OKW to make use of the decree, inteded to be used as a police executive measure by the Wehrmacht alone. The decree was valid only for the offices of the Wehrmacht in whom judicial authority had been vested, and its wording was explicit and restricted along that line. 1944 (document 843 PS) proves that OKW had indeed no knowledge of this improper application of the decree of 7 December 1941. It says therein:
"...that the basis for arrests seems to have undergone a chance in that, in the beginning, individual incidents and violations of law or attacks on the Occupation Power were involved; in other words it meant the apprehension of elements who had been definitely active in certain cases (and who were liable to punishment according to the Hague Convention (Hague LKO) while, at present, there are also numerous persons being deported to Germany who, because of their anti-German sentiments, are being removed from France as a precautionary measure".
Under Figure 4, that letter reads as follows:
"A prerequisite for application of the above-mentioned decree is that the persons arrested will be made the subject of judicial proceedings. There seems to be reason for assuming that because of the number of cases, especially within the compass of precautionary measures - such proceedings are now frequently being dispensed with, and the prisoners are no longer held confined in investigation or penal institutions of the German legal authorities, but in concentration camps. Also in that respect, an essential change has taken place as compared with the original provisions of the decree". Lehmann, (chief of the OKW Judicial Department), explicit ref erence is made to the directives for the Fuehrer decree of 7 December 1941, the so-called BE decree.
In it nothing is said that the original presuppositions for deportation to Germany were changed. knowledge of the defendant Keitel; the letter also of the Armistice Commission was evidently sent to Berlin. The legal department of the armed forces was in Berlin. Keitel himself was at the Fuehrer Headquarters, and learnt nothing of the exchange of correspondence. ssion not to have immediately replied to the letter of the German Armistice Commission of 10 August 1944, and to explain that this was a case of improper application of the decree of 7 December 1941, and the directives issued relative thereto. An investigation should have been initiated at once, so as to take to task those reponsible for this abuse.
In so far as the Tribunal regards Hitler's military staff as guilty, the defendant Keitel takes the responsibility withing the extent of his responsibility as chief of the OKW.
THE PRESIDENT: Perhaps this will be a convenient time to take a recess.
(A recess was taken).
Mr. President, The defendant KEITEL is accused by the prosecution of having participated in the deportations for the purpose of labor commitment. In this connection, KEITEL declares, that in conformity with his jurisdiction he did not have anything to do with the procurement, recruitin and conscription of people in the occupied territories, nor with the assignment of the labor forces thus procured, for the armament industry. Co-defendant SAUCKEL gave the following testimony as a witness on 29 May 1946 (Page 10484 of Ger man Transcript):
Mr. President, thefollowing statements I should like to have official notice taken of without reading them. My colleague, Dr. Servatius, according to our agreement, will explain the connection between the Wehrmacht replacement and economy of manpower. However, I have to refer to some documents which the French Prosecution has submitted against the OKW and Keitel concerning active participation in deportation. has submitted four documents tending to prove the active participation of the OKW and of the defendant KEITEL in the deportations. These are documents 1292 PS, 3819 PS, 814 PS and 821 PS. Dr. LAMMERS regarding a conference with HITLER, during which the question of procurement of labor for 1944 was discussed. The defendant KEITEL took part in this discussion. Annexed to this report a letter from the defendant SAUCKEL of 5 January 1944.is reproduced in which the latter summed up the results of the conference of January 4th and proposed a decree of the Fuehrer. I quote the following parts therefrom. 5. The Fuehrer pointed out that it was necessary to persuade all the 2. The penaltimate paragraph: 3. The Chief of the OKW, General Field Marshal KEITEL for instructions to The document therefore proves:
a) that Field Marshal KEITEL took part in a conference, without however stating his point of view on the problem of labor procurement, b) that the Fuehrer decree was to be brought to the knowledge of Field Marshal KEITEL for the purpose of instructing the military commanders. And that part confirms what is concerned in that part I have not read. What defendant KEITEL admitted as to his points of contact with this question is thereby confirmed. The 2nd and 3rd documents refer to a conference in the Reich Chancellery on July 11th, 1944, in which Field Marshal KEITEL took no part. Now the French Prosecutor has made the statement that the teletype is an order of Field Marshal KEITEL to the military commanders to carry out the decisions of the conference of July 11th. Mr. HERZOG has said in this connection that KEITEL's order was dated July 15th, 1944. A brief examination of the document - a photostat - shows that the document concerned is a teletype of July 9th containing an invitation from the chief of the Reich C hancellery Dr. LAMMERS to a conference on July 11th, which KEITEL transmits to the military commanders. Therefore that is an error. The conclusions of the Prosecution, based on this document, are therefore also invalid, but the document is also interesting from another point of view. It states therein verbatim: "The following directives are for the instruction of the military commanders or their representatives: procurement of labor from France- signed teletype "Keitel" The defendant KEITEL requested me to call the attention of the Court to this method of expression for the following reasons. Numerous documents bearing the signature "Keitel" have been submitted here. According to KEITEL's attitude, already explained, which excluded any show of authority, he never used the "I" form in his communications or transmission of orders. The Prosecution only submitted one other teletype of the defendant, apart from this document, in which the "I" form occurs. Considering the many documents which confirm this admission of KEITEL, this statement that here the transmission of an order of the Fuehrer was in question must be believed, also that the style of wording which I quoted corresponds to on order from the Fuehrer.
General WARLIMONT (Doc.3819 PS) refers, during the conference of 11 July, expressly to a "recently issued Fuehrer order", the contents of which he reproduces exactly as contained in the teleype directive with the signature "KEITEL".
Important as confirming this evidence of the defendant KEITEL is likewise the newly submitted document 824-PS - RF 1515.
This is a letter of the menatime had become the Chief of the military commanders in France and Belgium. It is said therein that:
"by order of the Fuehrer the demands of the G.B.A. and of SPEER are to be fulfilled". further that in theevent of evacuation of the battle area, measures must be taken toward securing fugitives, etc. for labor; finally that reports must be sent to the OKW regarding themeasures taken. The reference to the Fuehrer's order shortly after July 11, 1911, shows as well as WARLIMONT's statement, that there existed no directives from Keitel or the OKW. nor the OKW had any part in measures to levy or recruit labor. The OKW was the office in charge of transmitting the orders which HITLER, as the superior of SAUCKEL wished to forward to the military commanders; it had no competence and no legal responsibility. the administrative competence of the OKW, as there existed in this sphere at least a specialized function which included the possibility of voicing doubts. of contact with SAUCKEL's activities are the following:
a KEITEL was co-signatory of the Fuehrer's decree of March 21, 1912, concerning the appointment of the G.B.A.
b. He transmitted HITLER's orders to support theactivities of the G.B.A. on the basisof special instructions to the local military authorities of the occupied territories. Now, at the session of 2 February 1916 the French Prosecution has, in the matter of the deportation of the Jews within the scope of defendant KEITEL's responsibility, stated the following;
"I shall subsequently speak about the order for the deportation and the security police in the case of France.
It results
1) The Commander-in-Chief and
2) the Reich Foreign Minister and
3) the Chief of the Security Police and Reich Security Head Office (RSHA).These three persons are therefore responsibile and guilty ...." If you examine the very thorough individual handling of this item indictment you will establish that the OKW is not mentioned and that no document is produced which originates either from the OKW or from the defendant KEITEL.
It fell as from the KEITEL affidavit, Document Book 2, that the military commander for France, who is mentioned several times, was not placed under theOKW.
Now, the prosecution has, in the handling of this question, attempt ed to prove the cooperation of the "Army", as Mr. JAURE says, with the Foreign Office and the Police. They believe they can put this cooperation to the account of the highest authorities, that is, the OKW, in the case of the Amy, and therefore KEITEL. This production of evidence is erroneous. In order to make that clear, I must point out that there was a military commander in France. This military commander was invested with civil and military power; he represented a non-existant state power and therefore had police and political functions besides military tasks. The military commanders were appointed by the OKW and received their orders from the latter. As it follows from this, there existed no direct relations with the OKW on this question. Since defendant KEITEL, as chief of the OKW was not placed above the OKW, there exist likewise no indirect relations of either subordination or authority. What Mr. FAURE has said at this point is unfortunately true:
"In France, a plurality of jurisdictions manifested themselves authority."
Actually, the OKW and defendant KEITEL had nothing to do with the Jewish question in France, with the deportation to Auschwitz and other camps; they had neither commanding nor controlling authority and therefore no responsibility. The fact that the letter K in the telegram, dated 13 May 1942 was completed to mean KEITEL is indicative of the contention adopted by all prosecuting parties, concerning the presumptive implication of the defendant KEITEL. That was Document 1215 F. Fortunately, the French prosecutor has corrected this and cleared up the error. of men.
the soldiers who fell in the hands of the enemy those reliefs which could be made compatible with the interests of warfare. It has been considered as one of the most important advances of civilization to have achieved an agreement in that case in which the nations were opposed in a mortal clash. The distressing incertitude over the fate of these soldiers seemed to be bridged over, their humane treatment guaranteed, the dignity of the disarmed opponent assured. society has begun to waver. although this belief is still formally upheld - as it has been once and for all by the solid resistance of the general officers - , we must nevertheless admit that a brutal policy, oblivious to the Nation's own sons and of anything but its own striving for power has in many cases disregarded the sanctity of the Red Cross and the unwritten laws of humanity. The treatment of the responsibility of the defendant Keitel in the general complex of the prisoners of war system comprises the following individual problems:
1) The general adjustment of the treatment of prisoners of war, the German legislation on the prisoners of war system;
2) The authority over the prisoner of war camps, divided into Oflag, Stalag and Dulag;
3) The supervision and control of the legislation and its administration.
4) The individual cases which have been brought before the court in the course of the indictment. forth in the course of presentation of argument, I can restrict myself to setting forth that the OKW (Keitel), within the scope of his tasks as War Minister, in accordance with the decree of 4 February 1938 by order of Hitler, was competent and to that extent responsible:
a) for the ministerial right to issue ordinances within the entire local and professional range, partially restricted by cowork and co-responsibility in the matter of using the prisoners of war as laborers;
b) not authorized to have command over prisoner of war camps and the prisoners of war themselves, competent to allocate on a large scale to the Corps Area Commanders the prisoners of war arriving within Germany proper;
c) for the general supervision of the camps within the range of the OKW (except for those within the range of the zone of operations the rear-army area, the area of the military commanders, the Navy and Luftwaffe prisoner of war camps). the "Chief of the prisoner of war system", who was several times made personally responsible by the prosecution. The defendant Keitel attaches importance to the fact that the Chief of the prisoner of war system was his subordinate over the general Wehrmacht office. This proves the self-evident responsibility of the defendant Keitel in this domain oven in those cases in which he supposedly did not sign orders and decrees personally.
1) The service regulations issued by the Chief of the Wehrmacht High Command within the scope of the normal mobilization preparation and set down in a number of Army, Navy and Luftwaffe publications.
2) The stipulations of the Geneva Convention special mention of which was made in the service regulations.
3) The general decrees and orders which became currently necessary. who were subject to regulations which were different on principle and to which I shall return in particular, the provisions of the service regulations which corresponded to international law, that is the Geneva Convention, were authoritative. The OKW exercised supervision over the strict observance of those Army service regulations through an inspector for the prisoner of war system and after 1943 through a further inspectory board, the inspector-general for the prisoner of war system."
of the protecting powers and the International Red Cross, which no doubt submitted to the various governments reports on the results of their inspections of and visits to the camps - in accordance with the provisions of the Geneva Convention. No such reports have been submitted here by the prosecution; I shall come back to the charges brought in by the French prosecutor. The fact, however, that the British and the American Prosecutions, for example, have not submitted such reports may well permit the conclusion that the protecting powers did not determine serious violations with regard to the treatment of the prisoners of war in camps. years of the war did not lead to complaints of a serious nature with the western powers--I except individual cases like the Dieppe case--became increasingly difficult for the OKW from year to year, because political and economic considerations gained the strongest influence in this sector. The Reichsfuehrer-SS tried to get the prisoner of war system into his hands. The struggles for power which were caused by this from October 1944 on had the result that Hitler turned over the prisoner of war system to him ostensibly because the Wehrmacht had shown itself too weak, and that it had let itself be influenced by considerations based on international law. ence caused by a rising labor shortage, which was exercised by the Movilization of Labor and the armament sector on Hitler and which was exercised over him on the OKW. of Propaganda Likewise, were included in this actually purely military question. The OKW was engaged in a constant struggle with all those agencies, which for the most part had more influence on Hitler than the OKW. one wishes to understand and value the involvement of the defendant Keitel correctly.
Since he personally had to carry out the functions "by order of" since Hitler always kept the problem of the prisoner of war system under his personal control because of the previously described reasons, the defendant Keitel was almost never in a position to voice his own, that is military misgivings against instructions and orders. the French prisoners of war was "collaboration". Their treatment moved in the direction outlined by it, which through discussions with Ambassador Scapini led to considerable improvements for them. In this connection I refer to the answers to the questionnaire given by Ambassador Scapini, who states amongst other things:
"It is correct, that General Reinecke examined the questions at hand objectively and without hostility, and that he attempted to regulate them understandingly, when they depended on his authority alone. He maintained a different attitude when the pressure exercised on the OKW by the Labor Service and sometimes by the Party made itself felt." French prisoners of war used in the country had almost complete freedom of movement. By virtue of the direct understanding with the Vichy--government, considerable mitigations existed to the rule of the Geneva Convention, after their repatriation by virtue of the armistice-provisions had very considerably lowered the number of the original prisoners of war.
THE PRESIDENT: Dr. Nelte, is there anything very important in these next few pages, until you get to Page 183?
DR. NELTE: It is the treatment of the French -
THE PRESIDENT: If you would only deal with it in a very general way. I should have thought there was nothing very important until you get to page 183 where you begin to deal with the accusation in reference to the Sagan case. You see, it is 12:00 o'clock now.
DR. NELTE: I believe that by 1:00 o'clock I shall be through. May I understand your remark to mean that you would like me to limit my speaking time to one hour?
THE PRESIDENT : That is what the Tribunal's order was.
DR. NELTE : I submitted my request to the Tribunal, and since it was not directly rejected, I believed I could assume that in this particular case my request was granted, but if that is not the case -
THE PRESIDENT : Well, the Tribunal will give you until 12:30 on account of any interruptions which I may have made. I again suggest to you that there is really nothing between 178 and 183 which is of any truthful importance.
DR. NELTE : I hope, Mr. President, that that does not mean that these statements are irrelevant.
THE PRESIDENT : I said "of truthful importance."
DR. NELTE : Yes. I should not like to omit the case which was mentioned repeatedly in the course of the evidence, the case of the 50 air force officers, the Sagan case. and boundless ruthlessness of the orders and of the character of Hitler, who did not for a single instant let himself be influenced in his explosive decisions by the thought of the German Wehrmacht's honor, is shown here. the British prosecution has clarified in how far his name has become implicated in this shocking state of affairs. Although it has been clearly established by evidence that Keitel has neither heard nor transmitted Hitler's murderous order, or that he and the Wehrmacht are not associated with the execution of this order, finally that he opposed by all means in his power the transfer of the escaped officers to Himmler, and at least obtained that the officers who had been taken back to the camp were saved, he has, however, the distressing feeling of consciousness of guilt, not to have recognized at that time what a terrible blow German military prestige was bound to suffer throughout the world by such a measure. laid before the defendant Keitel document 1650-PS which deals with the treatment of escaped prisoners of war.
This, Mr. President, deals with the so-called "Bullet Order". Considering the lack of time, I should like to shorten this case, but I have to deal with it because it is one of the most significant accusations against my client, and I shall only summarize.
During his examination, Keitel made the following statement :
"This document 1650-PS, opens like a document which has been seized at a police station, with the words "The OKW has decreed the following."
Keitel says :
"I have certainly neither signed this order of the OKW nor seen it; there can be no doubt about that. I cannot explain it; I can only state a presumption as to how this order came about." such an order could have come to the office which issued the order. Then he refers to another document, 1544-PS, a document which contains all the orders and directives concerning escaped prisoners of war, but not that one order referring to the escaped officers and non-commissioned officers in question.
The witness Westhoff confirmed that the concept "Stufe Roman III" and its meaning were unknown to him and to the office of the Supreme Command of the Armed Forces Prisoner of War Affairs. He also stated that on entering office on 1 April 1944 he did not find an order of this nature, and thus no file notice.
It was absolutely unclear what was meant by that Bullet Decree. I believe evidence presented here has cleared that up, evidence by co-defendant Kaltenbrunner, who on his part had never spoken to the defendant Keitel about that matter.
On page 187 we find that Kaltenbrunner said, "I had not heard of the Bullet Decree. It was an entirely new concept for me." Therefore, I asked what it meant. He answered that it was a Fuehrer Order; he did not know any more. I was not satisfied with this information, and on the same day I sent a teletype message to Himmler asking him to please permit my rearing an order of the Fuehrer which was called "Bullet Decree". A few days later, Mueller came to see me by order of Himmler and submitted to me a decree which, however did not originate from Hitler but from Himmler, and in which Himmler stated that he was passing on to me a verbal Fuehrer Order." out the letter's knowledge, Hitler must really have given such an order to Himmler as it is stated in Document 1650-PS which was submitted here.
For the subjective judgment of the facts of the implied crimes the elementary importance lies in the knowledge of them, not only for the conception of guilt, but also for the Prosecution's ultimate resolution, the concurrence, the toleration as well as the omitted counter action.
The knowledge of facts comprises :
1) the knowledge of the facts;
2) the perception of the establishment of a goal;
3) the perception of the methods;
4) the conception and faculty for conception of the consequences. have possibly drawn any conclusions from the textual knowledge of the NationalSocialist Party Program and from Hitler's book "Mein Kampf" I have already stated the reasons for which Keitel had no perception of a realization by force. intended war of aggression until the war against Poland broke out. This opinion is certainly a subjective truth, because of Keitel's honest disbelief in a war with Poland, not to talk of any intervention by France and England . This perception, shared by Keitel and other high-ranking officers, was based on the fact that the military potential was too insufficient to risk a war and possibly expect a victory; the more so as it would evidently develop into a war on two fronts. This belief was also supported by the Non-Aggression Pact with the USSR of 23 August 1939.
However, that is not the core of the problem. The speeches by Hitler before the generals, beginning with the conference of 5 November 1937, in which Keitel did not take part, permit from time to time the clearer recognition the Hitler did not wish to attain his aims so or so, that is, if not through friendly negotiation, then through war, or in any case, through employment of the Wehrmacht as an agent of pressure. There can be no doubt about that. One may argue over whether the context of the speeches of Hitler, concerning which there are no official notes or records of minutes reproduce more or less the text of the conference correctly. But on what there can be no doubt is that they permit Hitler's point of view to be clearly recognized.
Accordingly, one must differentiate whether one could believe that a definite plan would come to its execution or whether one had to win the recognition that the general intention for aggression existed.
If this recognition did not exist, then this can only be explained by the fact that the generals did not take the question war or peace into their consideration from the basic attitude assumed. According to their point of view, this was a political question, for which they did not hold themselves competent, since, as has been said here, the bases for such a resolution were not known to them and, as the defendant Keitel has testified, the generals had to have confident in the leadership of the State, that the latter would only undertake war for pressing reasons. This is the result of the traditional principle that the Wehrmacht is probably an instrument of politics, but may not participate in politics by itself, a principle, which was taken over by Hitler in all its severity. The court may decide whether this is to be valued as an excuse.
Keitel explained on the witness stand that he recognized the orders, directives and instructions which had such terrible consequences, and that he drew them up and signed them, without allowing himself to be disconcerted by the possible consequences.
This testimony leaves three questions open: the question of the methods in the execution of the orders; the question of conception of the consequences which actually occurred; and the question of the dolus eventualis.
The defendant Keitel in his affidavit (Doc Book II, No.12) presented the influence of the SS Police Organizations on the conduct of the war and the involving of the Wehrmacht in the occurrences. The record of evidence has shown that numerous Wehrmacht commanders applied such terrible orders partly not at all, partly in a milder form on their own responsibility. The methods of the SS, which gave these orders their terrible effect, were strange and therefore unimaginable to the soldier Keitel, grown old in fixed concepts. According to his testimony, these effects also did not become known in their terrible extent.
The same holds true for the Fuehrer Decree "Nacht und Nebel." If he did not allow himself to be disconcerted by the "possible" results, as he forwarded these orders, the dolus eventualis in regard to the results taking place can still not be affirmed. It is much more to be assumed that if he had not been able to recognize the horrible effects, he could have accepted the consequence, in spite of the prohibition of requests for resignation, which would have freed him from the hard necessity of knowing and would not have pulled him into the whirlpool of events ever more from month to month.
There may be an hypothesis to this: the testimony, however, has furnished certain pertinent facts for the correctness of this. The five-fold attempt to leave his position and the resolve to end his life, which was witnessed by Colonel General Jodl, give you the opportunity to attribute the sincere desires of Keitel. have already presented: the unequivocal and, as Keitel says, unconditional duty of the soldier true to his military oath, to do his duty obediently to the bitter end.
it leads to crime. It must also be considered, however, that with a soldier, he is accustomed to measure by other standards in war. If all high officers, Field Marshal Paulus as well, represented the same point of view, one may thus not understand that perhaps, but no one will deny them the honesty of their convictions. during this trial why he did not refuse to obey or revolt against Hitler, that these questions were not taken by him into consideration, even for an instant. According to his words and behaviour, he is an absolute soldier. Did he place the guilt on himself with this conduct? high treason if he realizes that the execution of an order or of a measure violates the international law and/or the laws of humanity. question, which is the "authority" which "allows or orders" criminal high treason. This question appears to me of significance for the reason, because the legitimation is to be established who can allow or order the general to commit high treason, who can "bind and absolve." the Chief of State, identical with the Supreme Commander of the Wehrmacht, does not come into the question; the question is merely whether there is an authority which is above or outside of the individual State Authority, which could "bind or absolve." the Middle Ages, has no longer an actual importance in the sense of constitutional law, this power can be impersonal and moral only; the highest command of the unwritten, eternal right is put by the German poet Schiller into the words: "The power of tyranny has a limit......." It is only one of the so manifold poetical revelations of world literature, which expresses the deepest yearning for freedom by all peoples.
the state, there is a limit for the restriction of freedom. Should this be overstepped the state of war of national order against the international power of world conscience will result.
It is important to establish that up till now there did not exist a statute of international law of this kind. It is understandable for the relativity of the conception of freedom in various states and the anxiety of all states about their sovereignty stand in incompatible opposition against the recognition of an international authority.
The authority which "binds and absolves" which absolves us off guilt before God and the people, is the universal conscience which becomes alive in every individual. He must act accordingly. The defendant Keitel did not hear the warning voice of the universal conscience. The principles of his soldierly life were so deeply rooted, governed his thinking and actions so exclusively that he was deaf against all considerations which would lead him away from the path of obedience and faithfulness, as he understood them. this most terrible drama of all times.
THE PRESIDENT: Dr. Kauffmann -- yes, go on, Dr. Kauffmann.
DR. KAUFFMANN (Counsel for defendant Kaltenbrunner): Mr. President, may I first say that I have a few changes which I will announce when I come to them. I will take about two hours altogether, Mr. President.
May it please the Tribunal. The present trial is world history, but world history full of revolutionary tensions. The ghosts which were called are stronger than the cry of the suffering peoples for justice and peace. Ever since deification of man and humiliation of God chaos as an inevitable consequence and punishment is afflicting mankind with wars, revolutions, famine and despair. If my country was culpable of the greatest guilt, then permanently, it does the greatest penance a people has ever done. erroneous, because they are second-rate. And no one of my listeners is in a position to call me a liar, when I assert that the present trial does not begin at the end of a period of wrong, to make an end to it, but is being surrounded by the surge of the waves of a furious torrent, on the surface of which the wreckage of a civilization, guarded through the centuries, is floating hopelessly, and on whose deep demoniacal bottom the foes of the true God, of Christian religion and, therefore, of any Justice, are lurking.