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

The Trial of German Major War Criminals

Two Hundred and Twelfth Day: Tuesday, 27th August, 1946
(Part 7 of 11)

[DR. LATERNSER continues]

[Page 164]

But if one follows through the theory of the prosecution further - without personally accepting it - the "criminality" of all the 129 officers would have to be examined. In other words, it must be ascertained whether this group as a whole has committed crimes in the sense of Article 6 of the Charter. For my part I deny this.

The accusation leveled by the prosecution at the military leaders, of having at any time combined with the Nazi Party for purposes of executing a common plan, the object of which was wars of aggression, war crimes, and crimes against humanity, presupposes that such a general plan existed, that it was known as a common plan, and finally, that the military leaders, as a whole, had made this plan their own.

The prosecution has raised these charges against the indicted group of persons as a whole. But I think I have already proved that such an "organization" or "group" as an acting entity of these persons did not exist. The prosecution circumvents this unavoidable difficulty by asserting that:

1. The character and the actions of the five military chief defendants are typical of all the 129 officers, and

2. That, moreover, there is no doubt as to the criminal character of the entire group of these officers.

If the American Chief Prosecutor explained in his speech that the human actions which are the subject of this trial have been considered as crimes ever since the time of Cain, I reply that since the days of Cain it has been claimed that the just shall not be destroyed together with the unjust in the expiation of crimes. The

[Page 165]

requirement of individual expiation of crimes committed is among the oldest elements of European morals.

I think it should not be too difficult for the four great victorious nations, in practice, to reach a similar decision in 107 individual trials on the individual guilt or innocence of these 107 living men, as in the trial against the five military chief defendants. Where is the inner justification of and the legal necessity for a collective trial against these men? The innocent individual is only too easily condemned by a preconceived collective verdict.

The opinion expressed by the prosecution that the ideas and actions of the five main defendants are "with absolute certainty" typical also of the other members of the so- called "group," and thus at the same time of the criminal character of the "group" itself, is contradicted by the facts themselves. The membership in the "group" is conditioned exclusively by the holding of certain positions. Therefore, only the holder of a typical position is typical of the "group." As 95 per cent of the officers concerned were commanders-in-chief of armies or army groups, the holders of these posts might possibly be considered as typical of the "group" as such, but this can in no case be said of the five main defendants, not a single one of whom ever held such a post.

On the other hand, the five main defendants are definitely non-typical in so far as they held positions not held by any other members of the "group." There is no second chief of the High Command or Chief of the Operations Staff in this group, nor is there a second commander-in-chief of the Navy, and there is certainly not a second Reichsmarschall. As the main defendants occupy a higher level in the military hierarchy than the typical military leaders, their position is different in respect to the decisive points. If one or the other of the main defendants had perhaps had a theoretical opportunity to influence the military resolutions of the Supreme Leadership, the typical members of the group could not do so. If the main defendants, at least in their own sphere, knew the circumstances and backgrounds of the orders given, or could obtain such knowledge, this was impossible for the typical member of the group. If in the case of the main defendants a certain amount of political activity was unavoidable because they were at the highest levels, the same was completely absent in the case of the field commanders. This short observation strikingly shows the arbitrary character of the Indictment, pressing together heterogeneous elements, and extending without further ado, to the whole of the heterogeneous elements, charges which the prosecution, rightly or wrongly, believes it can bring against the main defendants.

I cannot follow the prosecution in this direction, and in my observations I shall, therefore, not deal with the typical main defendants, but only with those members who can be considered as typical of the overwhelming majority of the "group." Only from the attitude which these members adopted towards the alleged plans of the Nazis, only from their knowledge of these plans and the extent to which they cooperated in their execution, can the elements be obtained to build up a charge against the "group" in the sense of the Indictment.

As Hitler is dead, the prosecution leaves him in the background, and looks for other responsible parties. But no one can deny that Hitler alone held the power of the Reich in his hands and consequently also held the sole and total responsibility. The essence of every dictatorship ultimately lies in the fact that one man's will is predominant, that his will is decisive in all matters. In no other dictatorship was this principle developed so exclusively as in Hitler's dictatorship. If all military men and all politicians emphasize this repeatedly, it is impossible to suspect every one of them of lack of courage to stand by his convictions; it must have been a fact! The dictator exercised the power given to him with an almost demoniac strength of will. Other than his there was no will, no plan, no conspiracy! As regards the soldiers, it was particularly significant for them that Hitler had been called upon to assume power by Reich President von Hindenburg, and had then been made absolute head of State by Reich law and public plebiscite.

[Page 166]

The perfectly legal and formally correct transfer of legislative power, and of the power to give orders, resulted in the fact that the soldiers, too, submitted to Hitler's personality. Furthermore, he knew how to play off one party against the other, but in his decisive resolutions he neither had advisers nor did he allow independent planning.

Hitler's character is truly comparable with that of Lucifer. Just as Lucifer starts out on his radiant course of light with tremendous speed and immense momentum, gains the highest pinnacle and then falls down into the deepest darkness, so Hitler followed a similar course. Who has ever heard that a Lucifer needed assistance, advisers or helpers in his lightning ascent? Does he not rather, by the force of his personality, carry with him to the heights all the others, and then pull them down into the depths with the same force? Is it imaginable that a man of this kind should have engaged in a long-term preparation of a plan, surrounded himself with a circle of conspirators, and sought their advice and assistance for his ascent?

This picture should not be interpreted as an attempt to elude responsibility. Every German general is enough of a man to stand up for his actions; but if justice is to be done, the actual circumstances, as they really were, must be recognized, and serve as a basis for the final judgment. The best proof, however, against the participation of the generals in Hitler's plans is given by Hitler himself when says: "I do not expect my generals to understand my orders; I only expect they obey them."

Just as at the end of the First World War it was the General Staff, so it is now the military leaders as such - again grouped together under the misleading collective term "General Staff" - who are clearly fated to suffer under the prejudice that they are possessed not by a soldierly but by a "militaristic" mentality. Literature and the Press of the world declare with many voices that the German officer does not exercise his soldier's profession only as a duty, but that to him war - as the centre of all his planning and scheming - constitutes the highest value of all personal and national life. The American Chief Prosecutor defines this idea by sayings that:

"war is a noble and necessary occupation for all Germans."
Such glorification of war has directed the mentality of the German officer corps for generations, so it is asserted, exclusively to aggression, conquest, domination, and violation of other nations. It may sometimes be difficult to refute prejudices - but to prove this slogan to be unfounded nonsense is rather easy. The attitude and the mentality, which find their characteristic expression in the General Staff, are known to have been created by men like Frederick the Great, Scharnhorst, Moltke, Schlieffen and Seeckt. If we search the life and the writings of these men for evidence of a militaristic spirit, the result is distinctly negative. Hardly ever did a monarch meet with such enthusiastic praise as Frederick the Great found in the Englishman, Thomas Carlyle, and the American, George Bancroft, who says in his History of the United States that Frederick the Great did not contribute less to the freedom of the world than Washington and Pitt. Helmut von Moltke, who formed the personality of the German General Staff officer as no one else before or after him, expressly calls war, "the last means of safeguarding existence, the independence and the honour of a State." He furthermore declared: "It is to be hoped that this last means will be applied ever more infrequently with our progressing culture. Who would wish to deny that every war, even a victorious one, constitutes a misfortune for one's own nation, because no territorial aggrandizement, no war reparations amounting to billions, can replace the loss of life and offset the grief of mourning families?"

Von Moltke's most famous successor, Count Schlieffen, was the author of the often misinterpreted slogan: "To be more than to appear," which required every General Staff officer modesty, quiet work, and absolute renunciation of personal distinction in public.

[Page 167]

Is it possible to express more strikingly in a few words the fundamental difference existing between this mentality and that of the National Socialists?

When in 1914 the German General Staff started on its crucial test, the younger Moltke, who was at its head, was a man of resignation, who as an anthropologist was even farther removed from militaristic conceptions than all his predecessors. As regards, finally, General von Seeckt, the creator of the Reichswehr, his principles as laid down in his detailed essay on the subject "Statesman and General," published in 1929, are such that this essay could, without essential alterations, be immediately included in any handbook for British, American or French officers.

To conclude this survey, I may be allowed to quote from the memoirs of Field-Marshal von Mackensen, who was a man who must be considered, together with Hindenburg, as the chief representative of William II's officer corps. On the day when he gave the orders for the great break-through in the battle of Gorlice - was the 28th of April, 1915 - he wrote down the following lines:

"Today my expectations centre around a murderous battle ... It is expected of me that I should win a great success, but decisive and great successes in war are mostly achieved at the cost of many lives. How many death sentences does my order of attack involve? It is this thought that weighs heavily on me whenever I give an order; but I am myself acting under orders, driven by unavoidable necessity. How many of the strong and healthy boys who marched past me yesterday and are today on their way to the front lines will lie dead on the battlefield within a few days? ... Many of the radiant pairs of eyes into which I was able to look will soon be closed for ever -

That is the reverse side of a military leader's job."

These, therefore, are the facts: How little do the leading men among the German generals correspond to the picture drawn of them by an envious, biased or uninformed propaganda in the world. To correct this erroneous picture is, I think, a duty which I have to fulfil in this unique trial of historic importance. Has the German officer corps, and in particular, have the German generals changed since 1933? Have they, under Hitler, become disloyal to their teachers and drifted into a "militaristic" backwater? Has the spirit of a Moltke, of a Schlieffen, of a Seeckt become extinct in them? Have the generals turned to a criminal Nazi plan and taken an active part in it? I believe that the facts speak a language of sufficient clarity.

The "COMMON PLAN," the "CONSPIRACY," with the object of an extension of power which was finally to lead to aggressive war, was at first and primarily, as the prosecution emphasized again and again, aimed at the subjugation of Germany itself, at the extermination of all elements of opposition in its own people. In this process, so the prosecution alleges, the facts and experiences required for the planned subjugation and extermination of other nations were to be gained.

Such an all-comprehensive plan, however, would have been conditioned in all circumstances by an inner agreement of the military leaders with these alleged objectives and principles.

What were the facts? Relations between the officer corps and the Party were anything but good. When the Party was entrusted with the leadership in all spheres of public life, as well as in the creation of a totalitarian control of trade and industry, the officer corps had been deprived of all influence. The officer corps participated in no political decisions. Excesses of high Party officials, terrorist methods of the Party, action against the Jews, the political education of the young generation and the anti- Church attitude adopted by the Party under the leadership of Himmler and Bormann were sharply rejected. The attempt of the SA to take the place of the armed forces, and that of the SS to constitute a second armed force in addition to the Wehrmacht, met with the strongest opposition.

[Page 168]

This was the typical attitude of the military leaders! Where, then, was the ideological foundation which alone would have rendered common planning possible? Hitler's personality excluded every plan and every conspiracy below, beside, or with him. As regards the military leaders, there was no room, either under the Constitution or in fact, for the pursuit of political aims or political plans. Beyond that, warnings arose from among the indicted officers against the policy pursued since 1935, which later on proved to be a va banque policy. The Chief of the General Staff risked his position and his life to call a halt to the fateful actions of a head of State who was resolved to go to the last extreme. From among the same quarters, a coup d'etat was finally attempted right in the middle of the war. Is there anyone who can still seriously assert that the mentality of these men, their planning and their scheming, was directed only toward war and to nothing but war, and to the assistance of a policy having a war of aggression as its purpose? If the Chief of the American General Staff, General Marshal, whose sources of information were no doubt excellent, gives even in his reports to the American President expression to his conviction that there existed no common plan between the General Staff and the Party, but that on the contrary, sharp differences often arose between the two, this is certainly an important and conclusive testimony to which I need add nothing more.

I am now coming to the section of the Indictment according to which the military leaders, as a whole, are said to have deliberately, consciously and treacherously committed the crime of planning and executing a war of aggression.

The serious legal objections to characterizing a war of aggression as a crime under the Kellogg Pact have so often been dealt with by the defence that I can safely refer here to them:

I wish to point out particularly the arguments put forward by Professor Jahreiss, and in this connection I should like to direct the attention of the Tribunal only to the fact that the men represented by me are not politicians, not statesmen, not experts of International Law, but merely soldiers.

Shall we require of the soldiers of a country something that, in the preceding twenty years, the diplomats and legal advisers of the League of Nations were unable to achieve? A soldier bases his judgment predominantly on his surroundings. In at least three cases during the last decade, he noted that perpetrators of an alleged crime of a war of aggression were not persecuted. Neither after Italy's war against Greece, nor after the Abyssinian war, nor after the war of the Soviet Union against Finland, were the soldiers of these countries indicted before a Tribunal.

The fact always remains that soldiers only plan wars, not wars of aggression. That the classification of a war has nothing to do with war in itself cannot be judged on defensive or offensive strategy, as the prosecution itself admits.

Even the prosecution admits that it is permissible to prepare military plans (including plans for an offensive), to carry them out, and, finally, to participate in a war. The classification of a war as a war of aggression is a purely political opinion. The planning of wars of aggression by soldiers is thus only possible when soldiers enter the political arena. The decisive factor, therefore, is that an officer participating in such planning knows that he was concerned with a political plan for a definite war of aggression, that his war of aggression was an unlawful one and that by his own participation he himself was committing an unlawful act.

Now, how does the history of the last years before the Second World War present itself to the military leaders? Decisive for the conclusions to be drawn as to guilt or innocence is not how, after the war and defeat, these events are today clearly recognizable in their past development, but how they appeared at the time to the typical German military leader.

Whenever the world has passed through the upheavals of great wars, the longing for an eternal peace makes itself felt. This longing is strongest in the case of those who made the greatest sacrifices in the war. In the First World War, they

[Page 169]

were the German officers' families from whom the majority of the indicted military leaders originate.

Those who witnessed the death of their own young generation are not eager to sacrifice their own sons in a new war. And would these very men be inclined to start another war of aggression?

It was not the waging of wars, but the education of youth to a decent attitude, to a clean mind, to honesty and comradeship, which was considered by the officer as his real task.

The abolition of the Treaty of Versailles was not a special objective of the German generals, but it was the obvious aim pursued by German policy as such. Reich Chancellor Bruening, who is certainly beyond suspicion, declared on 15th February, 1932, that "the demand for equality of rights and equality of security is shared by the entire German nation. Any German government will have to put forward this demand."

I will omit the following pages up to Page 39. These pages deal with the relative strength and with the questions of armament. I shall continue on Page 39 at the top of the page.

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