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                           of the
               International Military Tribunal
                           For The
             Trial of German Major War Criminals

               His Majesty's Stationery Office
                                                  [Page 144]

VI. Incorrect Judgment with Regard to the General Staff and
the OKW.

The verdict incorrectly rejects the accusation of criminal
activity directed against the General Staff and the OKW.

The rejection of the accusation of criminal activity of the
General Staff and of the OKW contradicts both the actual
situation and the evidence submitted in the course of the

                                                  [Page 145]
It has been established beyond doubt that the Leadership
Corps of the Armed Forces of Nazi Germany, together with the
SS Party machine, represented the most important agency in
preparing and realizing the Nazi aggressive and man-hating
program. This was constantly and forcefully reiterated by
the Hitlerites themselves in their official bulletins meant
for the officer personnel of the armed forces. In the Nazi
Party bulletin called "Politics and the Officer in the III
Reich" it is quite clearly stated that the Nazi regime is
founded on

"..two pillars: the Party and the Armed Forces. Both are
forms of expression of the same philosophy of life ..the
tasks before the Party and the Armed Forces are in an
organic relationship to each other and each bears the same
responsibility ..both these agencies depend on each other's
successor failure." (PS-4060, US-928)

This organic inter-relationship between the Nazi Party and
the SS on the one hand and the Nazi Armed Forces on the
other hand, was particularly evident among the upper circles
of military hierarchy which the Indictment groups together
under the concept of criminal organisationthat is, among the
members of the General Staff and the OKW.

The very selection of members of the Supreme Command of the
Army in Nazi Germany was based on the criteria of their
loyalty to the regime and their readiness not to pursue
aggressive militaristic policies but also to fulfill such
special directives as related to treatment meted out to
prisoners of war and to the civilian populations of occupied

The leaders of the German Armed Forces were not merely
officers who reached certain levels of the military
hierarchy. They represented, first of all, a closely-knit
group which was entrusted with the most secret plans of the
Nazi leadership. Evidence submitted to the Tribunal has
fully confirmed the contention that the military leaders of
Germany justified this trust completely and that they were
the convinced followers and ardent executors of Hitler's

It is not accidental that at the head of the Air Force stood
the "second man" of the Nazi Reich, namely Goering; that the
Commander-in-Chief of the Navy was Doenitz, subsequently
designated by Hitler to be the latter's successor; that the
command of the Ground Forces was concentrated in the hands
of Keitel who signed the major part of the decrees
concerning the execution of the prisoners of war and of the
civilians in occupied territories.

Thus the comparisons made with the organisation of the
supreme commands in Allied countries cannot be considered
valid. In a democratic country, not one self-respecting
military expert would agree to prepare plans for mass
reprisals and merciless killings of prisoners of war side by
side with plans of a purely military and strategic

Meanwhile it is precisely such matters that occupied the
supreme command of the General Staff and of the OKW in Nazi
Germany. The commission by them of the heaviest Crimes
against Peace, of the War Crimes, and of the Crimes against
humanity is not denied but is particularly emphasised in the
verdict of the Tribunal. And yet the commission of these
crimes has not brought the logical conclusion.

The verdict states:

     "They have been a disgrace to the honorable
     profession of arms. Without their military
     guidance the aggressive ambitions of Hitler and
     his fellow Nazis would have been academic and

And subsequently:

     "Many of these men have made a mockery of the
     soldier's oath of obedience to military orders.
     When it suits their defense they say they had to
     obey; when confronted with Hitler's brutal crimes,
     which are shown
                                             [Page 146]
     to have been within their general knowledge, they
     say they disobeyed. The truth is they actively
     participated in all these crimes, or sat silent
     and acquiescent, witnessing the commission of
     crimes on a scale larger and more shocking than
     the world ever had the misfortune to know. This
     must be said."

All these assertions in the verdict are correct and are
based on numerous and reliable depositions. It remains only
incomprehensible why "these hundred or so higher officers"
who have caused the world and their own country so much
suffering should not be acknowledged a criminal

The verdict advances the following reasons for the decision,
reasons quite contradictory to the facts:

(a) That the crimes were committed by representatives of the
General Staff and of the OKW as private individuals and not
as members of a criminal conspiracy.

(b) That the General Staff and the OKW were merely weapons
in the hands of the conspirators and interpreters or
executors of the conspirators' will.

Numerous evidence disputes such conclusions.

I. The leading representatives of the General Staff and of
the OKW, along with a small circle of the higher Hitlerite
officials, were called upon by the conspirators to
participate in the development and the realization of the
plans of aggression, not as passive functionaries, but as
active participants in the conspiracy against peace and

Without their advice and active cooperation, Hitler could
not have solved these problems.

In the majority of cases their opinion was decisive. It is
impossible to imagine how the aggressive plans of Hitler's
Germany could have been realised had it not been for the
full support given him by the leading staff members of the
armed forces.

Least of all did Hitler conceal his criminal plans and
motivations from the leaders of the High Command.

For instance, while preparing for the attack on Poland, as
early as 29th May, 1939, at a conference with the high
military commanders of the new Reich Chancellery, he stated:

     "For us the matter consists of the expansion of
     'Lebensraum' to the East. Thus the question of
     sparing Poland cannot be considered, and, instead,
     we have to consider the decision to attack Poland
     at the first opportunity." (L-79)

Long before the seizure of Czechoslovakia, in a directive of
30th May, 1938, Hitler, addressing the representatives of
the High Command, cynically stated:

     "From the military and political point of view,
     the most favorable time is a lightning attack on
     the basis of some incident, by which Germany will
     have been strongly provoked and which will morally
     justify the military measures to at least part of
     the world opinion" (PS-388).

Prior to the invasion of Yugoslavia, in a directive dated
27th March, 1941, addressing the representatives of the High
Command, Hitler wrote:

                                                  [Page 147]
     "Even if Yugoslavia declares its loyalty, it must
     be considered an enemy and must, therefore, be
     smashed as soon as possible" (PS-1746).

While preparing for the invasion of the U.S.S.R., Hitler
invited the representatives of the General Staff and the OKW
to help him work out the related plans and directives not at
all as simply the military experts.

In the instructions to apply propaganda in the region
"Barbarossa", issued by the OKW in June, 1941, it is pointed
out that:

     "For the time we should not have propaganda
     directed at the dismemberment of the Soviet Union"

As early as 13th May, 1941, OKW ordered the troops to use
any terrorist measures against the civilian populations of
the temporarily occupied regions of the Soviet Union.

Here a special stipulation read: "To confirm only such
sentences as are in accordance with the political intentions
of the Leadership." (G-50.)

2. OKW and the General Staff issued the most brutal decrees
an orders for relentless measures against the unarmed
peaceful population and the prisoners of war.

In the decree of special liability to punishment in the
region "Barbarossa" while preparing for the attack upon the
Soviet Union the OKW abolished beforehand the jurisdiction
of the military courts, granting the right of repressions
over the peaceful population to individual officers and

It is particularly stated there that:

"Crimes of hostile civilians are excluded from the
jurisdiction of the courts martial ....",  "Suspected
elements must be immediately delivered to the officer. The
latter will decide whether they should be shot....",  "it is
absolutely forbidden to hold suspects for the purpose of
bringing them to trial." There are also provisions for "the
most extreme measures, and, in particular, 'measures for
mass violence', if circumstances do not permit the rapid
detection of the guilty."

In the same decree of the OKW the guarantee of impunity was
assured in advance to the military criminals from the
service personnel of the German Army. It states there as
follows: "The bringing of suits of actions, committed by
officials of the Army and by the service personnel against
hostile civilians is not obligatory even in cases where such
actions at the same time constitute military crimes or
offenses .."

In the course of the war the High Command consistently
followed this policy, increasing its terroristic actions
with regard to prisoners of war and the peaceful populations
of occupied countries.

The OKW directive of 16th September, 1941, states;

     "It is important to realize that human life
     in the countries to which this refers, means
     nothing, and that intimidating action is possible
     only through the application of unusual brutality". (P-98.)

Addressing the commanders of the army groups on 23rd July,
1941, the OKW simply briefed them as follows: "It is not in
the demand for additional security detachments, but in the
application of appropriate draconic measures that the
commanding officers must use to keep order in the regions
under their jurisdiction" (PS-459).

The OKW directive of16th December, 1941, states:

     "The troops ..have the right and are obliged to
     apply ..any measures whatsoever also against women
     and children if this contributes to success. . ."

                                                  [Page 148]
Among the most brutal OKW directives concerning the
treatment of prisoners of war one must consider the order
entitled "Kugel (bullet)". The reasons for resorting to
capital punishment for prisoners of war were offenses, which
according to international conventions, generally should not
carry any punishment (for example, escape from the camp).

Another order, "Nacht und Nebel", states:

     "Penalty for such offenses, consisting of loss of
     freedom and even a life sentence is a sign of
     weakness. Only death sentence or measures which
     entail ignorance of the fate of the guilty by
     local population will achieve real effectiveness."
     (L-90, US-224 Transcript, Afternoon Session, 25th
     January, 1946)

In the course of the present Trial a great deal of evidence
of application of the "Kugel" order has been submitted. One
of the examples of this kind of crime is the murder of 50
officer-pilots. The fact that this crime was inspired by the
High Command cannot be doubted.

OKW also distributed an order for the destruction of the
"commando" units. The original order was submitted to the
Court (PS-498, US-501). According to this order officers and
soldiers of the "commando" units had to be shot, except in
cases when they were to be questioned, after which they were
shot in any case.

These orders were unswervingly carried out by the commanding
officers of Army units. In June, 1944, Rundstedt, the
Commander-in-Chief of the German troops in the West,
reported that Hitler's order in regard to "the treatment of
the 'commando' groups of the enemy is still being carried
out" (PS-531, US-550).

3. The High Command, along with the SS and the Police, is
guilty of the most brutal police actions in the occupied

The instructions relating to special regions, issued by OKW
on 13th March, 1941, contemplated the necessity of
synchronizing the activities in occupied territories between
the army command and the Reichsfuehrer of the SS. As is seen
from the testimony of the chief of the 3d Department of RSHA
and who was concurrently chief of the Einsatzgruppe "D",
Otto Ohlendorf, and of the chief of the VI Department of
RSHA, Walter Schellenberg, in accordance with OKW
instructions there was an agreement made between the General
Staff and the RSHA about the organisation of special
"operational groups" of the Security Police and SD -
"Einsatzgruppen", assigned to the appropriate army

Crimes committed by the Einsatzgruppen on the territory of
the temporarily occupied regions are countless. The
Einsatzgruppen were acting in close contact with the
commanding officers of the appropriate army groups.

The following excerpt from the report of Einsatzgruppe "A"
is extremely characteristic as evidence:

     "..among our functions as the establishment of
     personal liaison with the commanding officer both
     at the front and in the rear. It must be pointed
     out that the relations with the army were of the
     best, in some cases very close, almost hearty, as,
     for instance, the commander of the tank group,
     Colonel-General Hoppner" (L-180).

4. The representatives of the High Command acted in all the
echelons of the army as members of a criminal group.

The directives of the OKW and the General Staff, in spite of
the manifest violations of international law and customs of
warfare, not only did not provoke any protest on the part of
the higher staff officers of the command of the various
groups of the armies but were inflexibly applied and
supplemented by still more cruel orders in the development
of such directives.

                                                  [Page 149]
In this connection it is characteristic to note the
directive of Fieldmarshal von Reichenau, army group
commander, addressed to his soldiers: "The soldier in the
eastern territories is not only a warrior skilled in the art
of warfare but a bearer of a merciless national ideology."
And elsewhere, calling for the extermination of the Jews,
von Reichenau wrote: "Thus the soldier must be in full
cognizance of the necessity for harsh and just revenge on
those sub-humans, the Jews" (US-556).

As another example the order of Fieldmarshal von Mannstein
addressed to his soldiers can be referred to. On the basis
of the "political aims of the war" the Fieldmarshal
cynically appealed to his soldiers to wage the war in
violation of the "recognised laws of warfare in Europe" (US-

Thus, in the course of the hearing of evidence it has been
proven beyond all doubt that the General Staff and the High
Command of the Hitlerite Army comprised a highly dangerous
criminal organisation.

I consider it my duty as a Judge to draw up my dissenting
opinion concerning those important questions on which I
disagree with the decision adopted by the members of the

                     Soviet Member, IMT,
                 Major General Jurisprudence
                      I. T. Nikitchenko

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