The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Third Day: Monday, 8th July, 1946
(Part 6 of 12)

[Page 175]

DR. HORN, Continued:

Like all tendencies, all forms of expression of feeling, the feeling of patriotism and of a soldierly attitude bears in itself a tendency to become more radical and thereby to degenerate if external circumstances create an actual basis for it. We have experienced the exaggeration of sound national ideas into national Chauvinism and we can observe retrospectively how the sound soldierly idea was exaggerated by influences foreign to its nature into the militaristic form of expression. All these developments are not desultory, which would make them easily recognizable and regulated. The driving forces are mostly not apparent to those whom they concern. They are like a poison which acts slowly and unnoticed, and the effect of which finds some day a horrible eruption. It needs no special explanation that part of the soldierly and military person, who is being geared to a possible war, is

[Page 176]

ruggedness, and in its intensification turns into brutality. One often finds on the part of famous, and not only German, war leaders, the standpoint that the brutal war is frequently the kindest if it leads to a quick ending. This, of course, is desired by every war leader. Once peaceful restraint is removed by war, all that remains is brutality. It reveals the causes of total war and the source of the terrible disaster which resulted from it.

The defence has a difficult task in this trial. The German people look to Nuremberg, disunited in themselves. Some are sceptical and partly hostile toward the defence because they believe that it is favouring those whom they consider as war criminals arid believe that it wishes to prevent that just punishment be meted out to the defendants. Others say the trial is just a show, at, which the defence counsel act as dummies to give the trial the appearance of a judicial procedure. Accordingly, in the view of these Germans we would make ourselves guilty of favouring the enemy.

We have no reason to justify our actions because by our participation at this trial we are fulfilling a task in line with the precept of our calling, the importance of which needs no justification. It consists of co-ordinating our efforts in the interest of clarifying the truth - the importance and effects of which are today incalculable for our German people - of getting to the bottom of the causes, and of answering the question as to how all this could have happened.

Only the clear recognition of the cause, the forces and the people which brought on the disaster which has come over this world will create the possibility for the future of our people to find the way again to the rest of the world.

The task of this Tribunal is not to search for the political, economic, and metaphysical reasons for this Second World War and not even to examine the flow of events in its entirety, but rather only to determine whether and what part these defendants played in that which the victor nations made the object of these proceedings.

The task of the defence, within the framework of their co- operation in finding the truth, consists of examining which factual and legal points could be stated in favour of the defendants. It should be said here that with all the co- operation on the part of the Tribunal shown the defence in producing their evidence, the actual possibility of producing defence material for the defendant was limited. Justice Jackson said in his basic prosecuting speech -

THE PRESIDENT: You seem to be coming back to further attacks upon the way in which this case has been tried and that is not what you are here to do now. What you are here to do now is to present the case on behalf of the defendant Keitel.

I see that farther on here you go on to complain about alleged non-communication to you of various documents and you refer to a discussion on the subject which took place as long ago as February, 1946. On that occasion I expressed the view on behalf of the Tribunal that the French prosecution might properly show to you or give you the opportunity to look at their documents. From that day to this that is to say from February until July, you have made no application to the Tribunal or made any complaint to the Tribunal that that has not been done and now, in your final speech, you make this complaint that you have not been allowed to see the documents in spite of the fact that in February I expressed, on behalf of the Tribunal, the opinion that you might see such documents.

Well, it seems to me that it is a waste of time, a waste of our time now to make these complaints after all these months, apart from the fact that you have already spent time which has been involved in reading eleven pages of your speech without coming to anything which really affects the defendant Keitel.

DR. NELTE: Mr. President, I believe that in February you told the prosecution, according to the record, that they should place these documents at my disposal.

The prosecution, unfortunately, have not placed these documents at my disposal.

[Page 177]

THE PRESIDENT: Why did you not come back to the Tribunal? You knew perfectly well that I had expressed my opinion on behalf of the Tribunal, and if there was anything to complain about, you had full access to the Tribunal from February until today. It seems to me that it is frivolous to complain now.

DR. NELTE: I hope, Mr. President, that nevertheless the facts which I am putting to you in my manuscript will be considered by the Tribunal. You will notice that I shall refer to this matter at a later stage. On 1st February the session took place during which this affair came up, and on 11th February I went to the French delegation.

THE PRESIDENT: That is what I have stated, Dr. Nelte. I have already pointed that out to you.

DR. NELTE: And the French prosecution did not give it to me.

THE PRESIDENT: Why did you not come back to the Tribunal if you had any complaint to make? I have said - and I repeat - that I think to make a complaint now, after not having made it for all these months, is a frivolous complaint and an attempt to create prejudice, and I should be glad of your explanation.

DR. NELTE: Mr. President, it is merely an attempt to show you that I did not wish to raise a complaint about the prosecution, recognising as I did that the prosecution did not want to help me. I have never been inclined to raise complaints about higher authorities, and I did not want to do it in this case either.

THE PRESIDENT: Dr. Nelte, I think that is a most unfair and a most improper thing for a responsible counsel to say. I think the mention of such a complaint is, as I have said, simply an effort on your part to create prejudice against the French prosecution and against the fair conduct of this trial.

DR. NELTE: Mr. President, in my view it was merely meant to show how difficult it was for us to find material in favour of our clients.

THE PRESIDENT: Well, perhaps you will try to get on to something that is really material for the Tribunal to consider.

DR. NELTE: May I ask you to turn to Page 15 where, under figure 3, I am dealing with the documents.

The document governs the hearing of evidence before this Tribunal. Against that the witnesses remain in the background. The more important is the examination of these documents to ascertain the possibility of their utilization and their probative value.

The prosecution has submitted as evidence, to a large extent, official reports which are admitted according to Article 21 of the Charter. I intended to show with respect to a number of these documents the conditional value of such reports as evidence. But I shall limit myself to a few fundamental arguments in this connection trusting that you, your Honour, in examining this kind of evidence will take my statements into consideration.

These numerous official reports submitted contain factual statements which to a great extent are based on witnesses' testimony. These testimonies are not always related in the form of protocols but as summarising reports. I do not want to dispute that these testimonies of witnesses are made as deposed in the reports. However, I will not do injustice to any of the witnesses who are not known to the Tribunal and whose testimony is hard to verify for lack of a personal impression, when I say that it concerns mostly very subjective attestations. There are a number of documents in which this is clearly recognizable, and in fact stated, and even documents in which hatred finds its clear expression. I can understand the hatred of these hard-hit people. The suffering they had to endure was so great that one cannot expect objectivity of them. I may, however, say too that such personal feelings are not conducive to rendering the testimony of these

[Page 178]

sorely afflicted ones a suitable basis for finding the real truth. I am thinking of the form of oath so often heard here on the part of the witnesses:
"Swear that you will tell without hated or fear ..."
And these official reports often contain not only factual statements, but final conclusions and judgements. In so far, the probative value of these official reports cannot be recognized. In part these judgements go so far that outside the sphere of those directly involved they level reproaches against authorities, e.g., the OKW, and Keitel, without it being possible to recognize from the document itself on what the conclusion drawn rests. As long as it is a question of the indictment of an individual like the defendant Keitel, a document used in evidence must give a proof which yields concrete facts for responsibility or which at least reveals causal connection. Above all, it cannot suffice, in order to consider Keitel's responsibility, if in such reports crimes committed by soldiers and officers of the Army or of the armed forces are alleged, and we derive responsibility on the part of the defendant Keitel from this fact alone, because he was the chief of staff of the OKW.

It must be added that in these reports military agencies have often been erroneously named and confused, for example, when the defendant Keitel is spoken of as the "High Commander of the Wehrmacht", which is called "OKW" (High Command of the Armed Forces), instead of "OKH" (High Command of the Army). It is not always possible to decide to what extent it is a question of an erroneous conception on the part of the prosecution or whether it comes from a translation which is not in accordance with the meaning. In order to examine the responsibility of the defendant Keitel, I wish to make clear to the Tribunal, in a manner which excludes any doubt, what the channels of command and competence were, and to this end I have submitted two affidavits:

(a) "The channels of command in the east" (Document Book II K10).

(b) "The development of the situation in France, 1940- 1945, and the military authorities" (Document Book II K13)

The latter affidavit has also been signed by the co- defendant Jodl.

I refer to these affidavits and make them the contents of my argument without reading from them.

I shall omit the following paragraph and come to the indictment against FieldMarshal Keitel. I shall shorten the reading of Pages 19 to 21.

The reading of the general Indictment and the special Indictment in the trial briefs can be omitted here since, with the exception of the Jewish problem and the persecution of the Church, there is no part of the Indictment which the prosecution has not raised against the defendant Keitel.

I merely wish to point out that the original general Indictment holds Keitel responsible only for the period after 1938 and that secondly, as the first point of the Indictment, Keitel is described as Chief of the Supreme Command of the Wehrmacht. According to the evidence submitted by the prosecution, Keitel was also held responsible for the period after 1933 although the American, British and French prosecutions seem to have dropped the allegation that Keitel was Chief of the Supreme Command of the Wehrmacht. The Indictment of FieldMarshal Keitel is split, therefore, between the periods 1933 to 1938, i.e., 4th February, 1938, and from 4th, February, 1938 until the end.

I shall now continue on Page 21, the last paragraph.

The defendant is not only indicted as a member of the conspiracy but is also accused of personally participating in all the crimes mentioned in the Indictment. The name of no other defendant has been mentioned so often by the prosecution as that of the defendant Keitel. Again and again we hear the words "Keitel order", "Keitel decree" and just as often "order of the OKW", "directives of the OKW" along with Keitel's name as "chief, OKW" after 4th February, 1938.

From this is derived the very substance of the Indictment, namely, the position the defendant Keitel occupied after 4th February, 1938. But from it is also derived the scope of the justification. Here, it is not a question of examining to

[Page 179]

what extent the defendant participated in the individual facts of the case, which in the long run arose from the so- called "Keitel orders" or "OKW instructions", but what matters is the position he occupied; whether he took part and what part he took in the planning and execution of those orders and instructions, and finally and most important of all, whether his part in it was causal and culpable in the sense of the law which is to be applied here.

It seems of consequence to stress, from the outset, several points of view, which are important for the treatment of the case and for its judgement.

THE PRESIDENT: Would that be a convenient time to break off?

(A recess was taken until 1400 hours.)

DR. NELTE (for the defendant Keitel): The defendant has declared that he admits the objective, i.e., factual contents of the general Indictment to be proved (that is to say not every individual case), taking into consideration the law of procedure governing this trial. It would therefore be senseless, despite the possibility, to refute various documents or individual facts, to attempt to shake the Indictment as a whole. I shall confine myself mainly to the questions concerning the subjective facts and the conspiracy and I will deal only with those individual points which require discussion because of their special importance concerning the personal participation of the defendant Keitel.

The defendant Keitel fully realised that the attitude taken up by him throughout his trial would lay him open to the suspicion that he is fighting here for his life.

But the defendant has already made it quite clear in his argument that he is not fighting to save his head but fighting to save his face.

The defendant belongs to those men who came into the public eye through Adolf Hitler's death. From 1938 onwards he was in his closest circle and was his almost constant companion. It is clear to him what that means for this trial. It has often been alleged by the prosecution that by referring to the dead the defendants desired to shift their own responsibility upon them. If it is the purpose of this trial to obtain the most faithful picture possible of events and connections, it is not fair to start with discrediting any mention of those dead, who, as the prosecution knows also, are the major culprits. This is especially true of the defendant Keitel whose position, influence, and actions cannot possibly be correctly judged without throwing a light upon the person of Adolf Hitler and upon his relationship with Keitel.

As can already be seen from Mr. Justice Jackson's speech of indictment, we are dealing here with an indictment against the National-Socialist system. Actually, the Indictment is a global indictment against this system, split into twenty-one individual indictments. The individual defendants are, to a certain extent, mere symbolic figures of the spheres of authority of the State which was ruled by this system: namely, the Party, Government and Wehrmacht. If I understand Mr. Justice Jackson correctly, he goes even farther in saying:

"Above all personalities there are anonymous and impersonal forces whose conflict makes up much of human history .... What are the forces that are contending before you?"
This statement raises a problem which, gentlemen of the Tribunal, cannot be left unmentioned at this trial, a problem which M. de Menthon also pointed out: The importance and influence of those forces which shape fate. Fate and guilt are not two factors which exclude each other from their respective spheres; they are factors which overlap so that there are spheres of life and spheres of effect in which the two forces work which make the world move. One can only hint briefly here as to what forces are at work which shape fate, i.e., what forces cannot be considered as originating in the conscious will of the individual defendants: The sense of national unity, historic events, opinions which are rooted in tradition and environment. Therefore, I will have to go into this background in-so-far

[Page 180]

as it is relevant to the defendant Keitel as an individual and a typical representative of one of the groups under indictment, because by this means only will you be given the possibility of obtaining a correct picture of the part which the defendant Keitel had in what happened.

I also want to state that everything I am going to say is said with the full agreement of the defendant Keitel; and in so far as aspects and facts are stated which might exonerate the defendant Keitel, they should be taken as a contribution towards the clarification of what happened, and as an answer to the question of how things could reach that point. He does not wish to have his position or the part which he played in this drama minimised, but he would like to prevent, at the same time, a distortion of the picture of his character. The defendant has already stated on the witness stand that he was grateful for the opportunity this trial afforded him to give an account to the world public and the German people of what he did and why he did it. He wishes to help to ascertain the historical truth of what happened.

I consider it my duty to make known this opinion of the defendant Keitel, because such an attitude, based on such reasons, made it considerably easier for me to conduct his defence. It was, and is, clear to the defendant Keitel that:

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