Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-174.04 Last-Modified: 2000/09/15 DR. NELTE, Continued: [Page 219] 1. The service regulations issued by the Chief of the OKW within the scope of the normal preparations for mobilization and laid down in a series of Army, Navy and Luftwaffe publications. 2. The stipulation of the Geneva Convention, to which special reference was made in the service regulations. 3. The general decrees and orders which became necessary from time to time in the course of events. Apart from the treatment of Soviet Russian prisoners of war who were subject to regulations on an entirely different basis, to which I shall later make particular reference, the provisions of the service regulations in accordance with International Law - i.e., the Geneva Convention - held good. The OKW exercised supervision over the strict observance of these Army service regulations through an inspector of the prisoner-of-war department and, from 1943 on, through a further control agency: The Inspector-General for Prisoners of War. The representatives of the Protecting Powers and the International Red Cross may be considered as constituting an additional control agency, which no doubt submitted to the various governments reports on inspections 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 made here by the French Prosecutor. But the fact that the British and American Prosecutors, for instance, have not submitted such reports may well admit of the conclusion that the Protecting Powers did not discover any serious violations with regard to the treatment of prisoners of war. This problem, which led to no serious complaints during the first few years of the war with the western powers - I except isolated cases like that of Dieppe - became more and more difficult for the OKW from year to year, because political and economic considerations gained a very strong influence in this sector. The Reichsfuehrer SS tried to get the prisoner-of-war system into his own hands. The resulting struggles for power caused Hitler to turn over the prisoner- of-war system to Himmler from October, 1944, on, the alleged reason being that the Wehrmacht had shown itself to be too weak and allowed itself to be influenced by doubts based on International Law. Another important factor was the influence exerted on Hitler, and through him on the OKW, by the labour authorities and the armament sector. This influence grew stronger as the labour shortage increased. The Party Chancellery, the German Labour Front and the Ministry of Propaganda also played a part in this question, which was in itself purely a military one. The OKW was engaged in a constant struggle with all these agencies, most of which had more influence than the OKW. All these circumstances must be taken into consideration in order properly to understand and evaluate the responsibility of the defendant Keitel. As he himself had to carry out the functions "by order" and since Hitler always kept the prisoner-of-war problem under his personal control for reasons previously described, the defendant Keitel was scarcely ever in a position to voice his own - i.e., military - objections against instructions and orders. The treatment of French prisoners of war. As a result of the agreement of Montoire, the key word to express relations with French prisoners of war was "collaboration". Their treatment moved in the direction indicated by this; and discussions with Ambassador Scapini brought about a considerable improvement for them. In this connection I refer to his affidavit which states, among other things: "It is correct that General Reinecke examined the questions at hand objectively and without hostility, and that he attempted to regulate them reasonably when this depended on his authority alone. He took a different attitude when the pressure exercised on the OKW by the labour authorities, and sometimes by the Party, made itself felt." The prisoners of war used for labour were lightly guarded. The prisoners of war employed in the country had almost complete freedom of movement. By [Page 220] virtue of the direct understanding with the Vichy Government, there was considerable modification of the rules of the Geneva Convention, and repatriation in accordance with the armistice provisions very considerably lessened the number of the original prisoners of war. To mention just a few - 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 o'clock now. DR. NELTE: I believe that by 1 o'clock I shall have finished. Or am I to understand your remark to mean that you limited my speaking time to a certain time? I asked you to grant me seven hours for my speech and my request - THE PRESIDENT: That is what the Tribunal's order was. DR. NELTE: I submitted my request to the Tribunal, and 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. But, I again suggest to you that there is really nothing between Pages 178 and 183 which is of any real importance. DR. NELTE: I hope, Mr. President, that that does not mean that these statements are to be considered irrelevant. I think I should be - THE PRESIDENT: I said "of real importance". DR. NELTE: Yes. I should not like to omit the case which was repeatedly mentioned - and rightly so - in the course of the evidence, the case of the fifty Royal Air Force officers, the shameful case of Sagan. It particularly affects us Germans because it shows the utter lack of all restraint and proportion to be found in the orders and the character of Hitler, who did not allow himself to be influenced for an instant in his explosive decisions by the thought of the honour of the German Wehrmacht. The cross-examination of the defendant Keitel by the representative of the British prosecution has shown how far he also has been implicated in these abominable deeds. Although the evidence clearly establishes the fact that Keitel neither heard nor transmitted Hitler's murderous order, that he and the Wehrmacht had nothing to do with the execution of this order and, finally, that he did everything in his power to prevent the escaped officers from being handed over to Himmler and did at least succeed in saving those who had been taken back to the camp, he is painfully conscious of his guilt in not realising at the time the terrible blow which such a measure must inflict on German military prestige throughout the world. In connection with the treatment of the Sagan case the French prosecution confronted the defendant Keitel with Document 1650-PS, which deals with the treatment of escaped prisoners of war. This, Mr. President, is the so-called "Bullet (Kugel) Decree". As time is short, I should like to deal briefly with this case. I must deal with it, because it is one of the gravest and most significant accusations against my client, and I shall only summarize. During his cross-examination, Keitel made the following statement: "This document, 1650-PS, emanates from a police station and contains a reference to the OKW in the words: 'the OKW has decreed the following'." Keitel says: [Page 221] "I have certainly neither signed this order of the OKW nor seen it: there is no doubt about that. I cannot explain it; I can only conjecture how this order came to be issued by the Reich Security Main Office." In his examination he mentions the various possibilities whereby such an order could have been issued. Then he refers to Document 1544-PS, which contains all the orders and directives concerning prisoners of war, but not this order referring to the escaped officers and N.C.O.s. I continue on Page 1 86a: The witness Westhoff has confirmed that the concept "Stufe III" and its meaning were unknown to him and to the Prisoner- of-War Department of the High Command of the Armed Forces. He also stated that on entering office on 1st April, 1944, he found no order of this nature - no file note. The meaning of that Bullet Decree was completely obscure. I believe this obscurity has been cleared up by the evidence given by the co-defendant Kaltenbrunner, who on his part had never before spoken to the defendant Keitel on the matter. I pass on to Page 187, where 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; that was all he knew. I was not satisfied with this information, and on the same day I sent a teletype message to Himmler asking for permission to read a Fuehrer Order known as the 'Bullet Decree'. A few days later, Muller came to see me on Himmler's orders and submitted to me a decree which, however, did not originate with Hitler but with Himmler, and in which Himmler stated that he was transmitting to me a verbal Fuehrer Order." From this it is safe to assume that without consulting Keitel and without the latter's knowledge, Hitler must have given a verbal order to Himmler as stated in Document 1650- PS which was submitted here. Now I come to Page 190, to my concluding statement For the subjective facts of the alleged crimes one element is of special importance: the knowledge of them. Not only from the point of view of guilt, but also in view of the conclusions which the prosecution have drawn from it: acquiescence, toleration and omission to take any counter- action. The knowledge comprises: 1. knowledge of the facts; 2. realization of the aim; 3. realization of the methods; 4. conception and possibility of conceiving the consequences. During the discussion of the question of how far the defendant Keitel could possibly have drawn any conclusion as to the intention of realization by force from knowledge of the text of the National Socialist Party Programme and from Hitler's book Mein Kampf, I have already demonstrated why Keitel did not draw any such conclusion. Keitel denied any knowledge of the intended wars of aggression up to the time of the war against Poland and his statement is confirmed by Admiral Raeder. This comment is certainly a subjective truth inasmuch as Keitel sincerely disbelieved in a war with Poland, not to mention intervention by France and England. This belief, shared by Keitel and other high-ranking officers, was based on the fact that the military potential was insufficient according to past experiences to wage a war with any chance of victory, especially if it developed into a war on two fronts. This belief was strengthened by the Non-Aggression Pact signed on 23rd August, 1939, with the USSR. However, that is not the core of the problem. The speeches which Hitler delivered before the generals, beginning with the conference of 5th November, 1937, at which Keitel was not present, made it increasingly clear that Hitler was determined to attain his goal by any means - i.e., if friendly negotiation did not succeed, he was prepared to fight or at least to use the Wehrmacht as an agent of pressure. There is no doubt about that. It is a debatable point whether the text [Page 222] of Hitler's speeches, of which no official record is available, is altogether accurately reproduced. There is, however, no doubt at all that they allow Hitler's intentions to be clearly recognized. A decision must be made as to whether it was possible for his listeners to believe that a definite plan was to be carried out or whether they would be forced to recognize the existence of a general aim of aggression. If they did not recognize this, the only explanation lies in the fact that the generals on principle did not include the question of war or peace in their considerations. From their point of view, this was a political question, which they did not consider themselves competent to judge, since, as has been stated here, they were not acquainted with the reasons for such decisions and, as the defendant Keitel has testified, the generals had to have confidence in the leadership of the State to the extent of believing that the latter would only undertake war for reasons of pressing urgency. That is a consequence of the traditional principle that the Wehrmacht is an instrument of the politician, but may not itself take part in politics - a principle which Hitler adopted in its full stringency. The Tribunal must decide whether this may be accepted as an excuse. Keitel stated 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 disturbed by any thought of the consequences which they might entail. This testimony leaves three questions undecided: 1. The question of the methods used to carry out the orders. 2. The question of the conception of the consequences which actually followed. 3. And the question of the dolus eventualis. The defendant Keitel in his affidavit (Document Book 12) showed with reference to the so-called ideological orders how the SS Police Organizations influenced the conduct of the war and how the Wehrmacht was drawn into events. The evidence has shown that on their own responsibility numerous Wehrmacht commanders failed to apply such terrible orders or applied them in a milder form. Keitel, brought up in a certain military tradition, was unfamiliar with SS methods, which made the effects of these orders so terrible, and they were therefore inconceivable to him. According to his testimony he did not learn of these effects in their full and terrible extent. The same is true of the Fuehrer Decree "Nacht and Nebel," which I have just discussed. If he did not allow himself to be disturbed by the "possible" results when he transmitted the orders, the dolus eventualis cannot be affirmed in regard to the results which took place. It must be assumed rather that if he had been able to foresee the horrible effects, he would, in spite of the ban on resignations, have made a decision which would have freed him from the pangs of conscience and would not have drawn him from month to month farther and farther into the whirlpool of events. This may be an hypothesis; but there are certain indications in the evidence which confirm it. The five attempts made by Keitel to leave his position and the fact that he resolved to commit suicide, which General Jodl confirmed in his testimony, enable you to recognize the sincerity of Keitel's wish. The fact that he did not succeed must be attributed to the circumstances which I 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. This concept is false when it is exaggerated to the extent of leading to crime. It must be remembered, however, that a soldier is accustomed to measure with other standards in war. When all high-ranking officers, including Field-Marshal Paulus, represent the same point of view, the honesty of their convictions cannot be denied, although it may not be understood. In reply to the questions asked so often during this trial - why he did not revolt against Hitler or refuse to obey his orders, the defendant Keitel stated that he did [Page 223] not consider these questions even for a moment. His words and behaviour show him to be an absolute soldier. Did he incriminate himself by this conduct? In general terms: can a general - or is he obliged to - commit high treason if he realizes that by carrying out an order or measure he is violating International Law and the laws of humanity? The solution of this problem assumes that a reply is made to the previous question, as to what is the "authority" which "allows or orders" the criminal high treason. This question seems to me important because the source of the authority must be established - the authority which can allow or order the general to commit high treason; which can "bind and absolve".
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