The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 314]

TWO HUNDRED AND FIFTEENTH DAY

FRIDAY, 30th AUGUST, 1946

THE PRESIDENT: The Tribunal has had an application from Dr.
Steinbauer for permission to put in an affidavit on behalf
of the defendant Seyss-Inquart. Has the prosecution had an
opportunity of seeing that affidavit yet, and has is any
objection to it?

SIR DAVID MAXWELL FYFE: My Lord, I do not think that all my
colleagues have had an opportunity of looking through the
affidavit yet. They got it late last night. So if your
Lordship could allow us an hour or two, we would be glad to
report later in the day.

THE PRESIDENT: If you would do that, yes.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

DR. LATERNSER (defence counsel for the General Staff and the
OKW): Mr. President, may I just take up a few moments of the
Tribunal's time? On the basis of a letter which I received
last night, I am now in a position to prove that a written
order existed forbidding all preparations for active
bacteriological warfare.

I have already discussed this matter with Sir David Maxwell
Fyfe; the letter will be translated, and then the question
of whether it should be admitted as evidence can be taken
up.

I just wanted to mention this, Mr. President, so that the
letter should not then be refused as coming too late.

THE PRESIDENT: Dr. Laternser, you mean that the letter will
be translated and submitted to the prosecution, and then it
will let us know whether it is prepared to agree to the
letter going in for what it is worth? But it must be done
today?

DR. LATERNSER: Yes.

THE PRESIDENT: Very well.

COLONEL TELFORD TAYLOR: Mr. President and Members of the
Tribunal:

Under the Indictment, the prosecution seeks a declaration of
criminality against six groups or organizations. For
purposes of clarity in marshalling the evidence and
specifying the charges, this division into six parts is
appropriate, since it accurately reflects the formal
structure of the Third Reich.

In a deeper sense, however, the Third Reich was not
sexpartite. It was simpler than that. The Third Reich was a
political machine and a military machine. It was embodied in
and sought its ends through the Nazi Party and the armed
forces. Its successes at home and abroad were achieved by
these two instruments. The Wehrmacht owed its resurgence
largely to the Nazi Party; the Party, in turn, would have
been helpless and impotent without the Wehrmacht. As General
Reinecke put it, the two pillars of the Third Reich were the
Party and the armed forces, and each was affected by the
success or downfall of the other.

Appendix B of the Indictment specifies the leaders and
principal instrumentalities of the Party and the armed
forces. From the Party, the Indictment specifies,

                                                  [Page 315]

for instance, the Corps of Political Leaders, and also the
members of the SS, a principal executive arm of the Party.
>From the armed forces, the Indictment specifies the leading
generals, who to use the language of the Indictment, had the
principal authority for plans and operations.

The composition of this group of military leaders was
described by the prosecution during the presentation of
evidence, and little more need be said by way of exposition.
The defence has taken the view that these military leaders
do not constitute a group within the meaning of the
Indictment. The arguments in support of this technical
objection are, I believe, insubstantial, but I want to meet
them directly and clearly.

A number of the points made by the defence are based either
on misunderstanding, or on a deliberate misreading of the
Indictment. Thus, several witnesses have told us that the
General Staff consisted of young officers of relatively
junior rank who acted as assistants to the commanders-in-
chief. This involves a confusion with what is known to
military people as the "General Staff Corps" of War Academy
graduates. The Indictment does not include these officers
and the prosecution made this clear at the outset. In so far
as this, or similar testimony, is an attack on the name
which the Indictment applies to the military leadership
group, this is an utterly insignificant point. There is no
set term in German or English for all the military leaders
of the Wehrmacht; the Indictment uses the terms "General
Staff" and "High Command" as most descriptive of the chiefs
of the four staffs of OKW, OKN, OKH, and OKL, all of whom
were key figures in military planning, and the commanders-in-
chief who directed operations. Together, they adequately
comprehend the military leadership. Several other minor and
technical points merit only brief mention. It has been
objected that the chart which was attached to the affidavits
of Halder, Brauchitsch, and Blaskowitz does not accurately
depict the chain of command. That is true. The chart was not
intended to show the chain of command, the affidavits to
which the chart is attached say nothing about chains of
command and the prosecution has not suggested anything of
the kind. Equally irrelevant is the question of whether
Keitel might have been shown in the same box with Hitler,
instead of having a box to himself. None of these points
about the chart involves the addition or subtraction of a
single member of the group, or affects the Indictment's
definition of the military leadership. Equally irrelevant is
the contention that the list of members of the group
includes some generals who held only temporary appointments
as commanders-in-chief and were never formally designated as
such. This might later be relevant in the trial of these
individuals, if they can show that they never really had the
status and responsibility of a commander-in-chief, but is
not important in contemplating the group as a whole.

Several affidavits submitted by the defence point out that a
few generals were members of the group for less than six
months; that a number of them died or were removed or
retired from their positions before the end of the war, and
that the younger ones were not generals when the war
started. This is all quite natural. We are concerned here
with a seven-year period, during most of which there was a
war, which is a hazardous and wearing occupation. During
these years some generals died, others failed, still others
fell out of favour; new faces appeared as replacements; the
great increase in the number of German army groups and
armies brought still other officers into the status of
commander-in-chief. To the extent that in war the hazards
were sharper and the failures more costly in the Wehrmacht
than in politics, the turnover may have been correspondingly
greater in the Wehrmacht than in the Party. But again, these
questions are relevant only on the degree of responsibility
of individual members, and not on the responsibility of the
group itself.

A special point has been made of the fact that many members
of the group did not become such until after 1942. The
argument drawn from this circumstance is, I take it, that
the generals who joined the group only after 1942 could not
have

                                                  [Page 316]

taken part in the planning and launching of aggressive wars.
It is true that by the end of 1942 the Wehrmacht, led by the
accused group, had invaded or overrun all or a large part of
every neighbouring country except Switzerland and Sweden, so
that further wars of aggression had become impracticable. I
suppose that it might be urged with equal force that many
Germans joined or rose to high rank in the SS or the Party
leadership group after 1942. Certainly the argument ignores
the fact that the military leadership group, long after
1942, was a group whose official orders were to murder
commandos and commissars and to achieve pacification by
spreading terror. Many of the atrocities committed by the
German armed forces occurred late in the war. Once again,
this point has substance only to the extent that it might
show in other proceedings that individual latecomers to the
group never learned of, nor joined in, the criminal
activities. The group itself cannot escape responsibility by
pleading that it continued to grow after the Third Reich's
capacity to initiate aggressive wars had been exhausted.

The defence tells us that the military leaders were not a
"group" because they merely occupied official positions
without any "unifying element." This is a factual question.
Its solution is not advanced by nice linguistic points, such
as whether the German word "gruppe" means "group" or
"number." I suppose that "group" means a number of persons
chosen because of some common bond. Or as Mr. Justice
Jackson puts it, the members must have an "identifiable
relationship" and a "collective, general purpose." I suppose
also that the relationship and the purpose must be
meaningful under the London Agreement.

The generals who held the positions listed in the Indictment
constituted the military leadership of the Third Reich. That
is their "likeness," their "identifiable relationship," or
their "unifying element." Their "collective general purpose"
was to build up and train the Wehrmacht, and to make its
plans and direct its operations.

The evidence to this effect is, I admit, conclusive and
uncontradicted. Leading German generals - Brauchitsch and
Halder - have said in sworn statements that those who held
the positions listed in the Indictment had the "actual
direction of the armed forces" and "were in effect the
General Staff and High Command." The technical objections
made later by the defence with respect to the chart are
quite irrelevant to this essential point.

The testimony of numerous generals, assuming its
credibility, that the military leaders did not have any
formal organization or any secret advisory council, is quite
wide of the mark. The prosecution has not charged this; nor
has it charged that the military leaders were a political
party, or that they had a set or uniform view on internal
political matters.

Nor are we surprised to hear from some defence witnesses
that the Germans, like ourselves, found co-ordination within
a single service easier to achieve than co-ordination
between the Army, Navy, and Air Force. The mere existence of
OKW is sufficient proof of the importance which the Germans
attached to inter-service collaboration, and numerous
documents show constant and detailed planning and discussion
between the three services. In any event, it is quite
unnecessary to look behind the actual course of events.
Surely no one would have suggested in 1941, after witnessing
the coordinated use of tanks and Stukas in Africa, and the
team-play of all three services during the Norwegian
invasion, that the German war effort lacked co-ordination.

>From the standpoint of military planning, we are told by
Halder that the most important part of OKW was the
operations staff, of which Jodl and Warlimont were the chief
and deputy chief respectively. The field commanders, too,
participated in planning. We know from Brauchitsch and
Blaskowitz that the military plans for the attacks on Poland
and other countries were submitted in advance to the
commanders-in-chief of army groups and armies, so that OKH
would have the benefit of their recommendations. Brauchitsch
and Blaskowitz have also told us that, during operations,
the OKH and the commanders-in-chief

                                                  [Page 317]

of army groups and armies were in continual consultation,
and that the commanders-in-chief were repeatedly consulted
by Hitler himself. The testimony of General Reinhardt is to
the same effect. Contemporary documents clearly show the
participation of the field commanders-in-chief in planning
for the Polish campaign.

The commanders-in-chief of army groups and armies in
occupied territories had executive power (Vollziehende
Gewalt) within the areas under their command. Within those
areas, they were supreme, and had the power of life and
death over the inhabitants. They had the responsibility for
determining such questions as whether the commissar and
commando orders should be distributed, and if so, how widely
and with what instructions.

To summarize, these generals were an aggregation of persons
who directed the German armed forces, and whose collective
purpose was to prepare it for and lead it in military
operations. From time to time, when all the members met
together, it was a congregation. The purpose and spirit of
the London Agreement clearly bring such a body of men within
the scope of Article 9 thereof. The Agreement established
this Tribunal to try such offences in the planning and
waging of aggressive wars, and violations of the laws and
customs of war. The German military leaders are charged,
among other things, with developing the plans under which
aggressive and illegal wars were initiated, and with
directing the armed forces in the launching and waging of
these wars. They are charged with circulating throughout the
Wehrmacht orders directing the murder of certain types of
prisoners, and with aiding, abetting, and joining in the
murder and ill-treatment of the civilian population, all in
violation of the laws and customs of war.

The argument of the defence that the military leaders are
not a "group" and are therefore immune to a declaration
under Article 9 is, we submit, utterly unfounded, and flatly
contrary to the plain purposes of the London Agreement. That
Agreement cannot be reasonably construed to exclude from the
purview of Article 9 the leaders of one of the two chief
instrumentalities of the Third Reich.

The defence appears to contend that membership in this group
was not voluntary. I say "appears to," because in one breath
we are told that the generals could not withdraw from the
positions they occupied, and in the next that many of them
resigned because of disagreements with Hitler.

The question is, I think, a simple one. We are not concerned
here with the ordinary German conscript who made up the bulk
of the Wehrmacht. We are concerned entirely with
professional soldiers, and with the most zealous, ambitious
and able German officers in the Wehrmacht. Most of them
chose a military career because it was in their blood; as
Manstein put it, "they considered the glory of war as
something great." They slaved at it and were devoted to
their profession, and if they reached the status of
commander-in-chief they were, like Manstein, proud that an
army had been entrusted to them. No one became a German
commander-in-chief unless he wanted to.

It is true that, in time of war, a professional soldier
cannot resign his commission or his post at his own free
will. But this does not turn the professional officer into a
conscript or make his status an involuntary one. No one
becomes a professional officer without knowing in advance
the obligations that will bind him in time of war. The
fanatical Nazis who rushed to volunteer for the early
Waffen SS divisions, or who voluntarily joined other para-
military sections of the Party, could not thereafter resign
at will, but I have not heard it urged that they were
conscripts or involuntary members. The members of the
General Staff and High Command group were keen, professional
warriors, who competed with others like themselves for the
responsibilities and honours of being commanders-in-chief.
They rose within the Wehrmacht just as an ambitious Party
member might rise to be a Kreisleiter or Gauleiter.

In fact, retirement was easier for the commander-in-chief
than anyone else in the Wehrmacht. The junior officer, who
protested against what was going on

                                                  [Page 318]

around him, might lose advancement or be moved to a less
desirable assignment, or be court-martialled and disgraced.
He was not given the option of retiring, and he was usually
too young to plead illness plausibly. The commanders-in-
chief were in a far better position. No War Office or War
Department wants a field commander-in-chief who is in
constant and fundamental disagreement with his instructions.
Such a commander-in-chief must be removed. Yet often he has
sufficient seniority, prestige and acknowledged ability to
make his demotion or disgrace embarrassing, and retirement
or acceptance of resignation the best solution for all
concerned.

And this is just what happened with some of the commanders-
in-chief. The record is replete with testimony by or about
commanders-in-chief who openly disagreed with Hitler on
tactical matters, and who, as a result of such
disagreements, were retired or allowed to resign. I note in
passing that the record is notably barren of evidence that
any commander-in-chief openly disagreed with Hitler so
decisively on the issuance of orders which violated the laws
of war, or who forced his retirement on account of these
orders. At all events, it is quite clear that a commander-in-
chief who wanted to retire could contrive to do so, whether
by pleading illness or by honest, blunt behaviour. If he had
the will, there was a way out. And it is worth noting that
the three field-marshals who testified before this Tribunal
had all managed to retire or be retired, and the record
shows that many others were equally successful and that few
of them thereafter suffered serious harm on this account.

I pass now to the criminal activities. The prosecution
submits that the evidence before the Tribunal conclusively
established the participation of the General Staff and High
Command group in accomplishing the criminal ends of the
conspiracy, and in the commission of crimes under all parts
of Article 6 of the Charter and under all counts of the
Indictment. We also submit that the criminal aims, methods,
and activities of the group were of such a nature that the
members may properly be charged with knowledge of them, and
that, for the most part, they had actual knowledge.

I will speak first of the pre-war period, or, more
accurately, of the period ending in the spring of 1939, when
detailed planning was commenced for the attack on Poland. It
is worth noting that during this early period, the group
defined in the Indictment never exceeded eight in number,
and that four are defendants in this trial.


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