had been conquered by the Armed Forces, were, as a matter of principle, withdrawn from the territorial control of the Commander-in-Chief immediately after occupation, and placed under the authority of the representatives of the political leadership. Therefore, any thing in the nature of possible crimes winch may have been committed in territories not under the territorial control of the indicted group of persons must be excluded in this trial when the responsibility of the so-called "group" is to be ascertained. and Northern France, the remainder of occupied France, Luxembourg and Alsace-Lorraine, Croatia, Yugoslavia and Greece, Slovakia, Hungary and Italy, were not placed under the territorial authority of the military leaders. soon limited by Hitler's order as narrowly as possible, and therefore comprised only the territory within immediate roach of military operations until, finally, territorial control was limited to the immediate combat zones, that is to say, to the area roughly 10 lea, behind the first front line. Outside this strip of land the territories were placed under their administrative authority of political agencies.
Reproaches directed against the "military commanders" or "Wehrmachtsbefehlshaber" appointed in the individual countries and territories are irrelevant in this connection because those officers are not included in the indictment. distrust for the military leaders on account of their attitude to the questions of warfare and humanity, had quite consistently on trusted the execution of the ideological and political struggle to the political agencies and their executive organs. only insofar and as long as any particular area in enemy territory was part of the area of operations, and consequently their responsibility is limited in the same way.
with operational events were with drawn from the influence of the Wehrmacht and had been transferred to the responsible execution by completely independent political agencies. This includes, for instance, all measures of apolitical and police character, the economic exploitation of the occupied territories, measures pertaining to the realm of culture, and man power problems. There remained therefore for decision by the Commanders-in-Chief, apart from the purely military operations at the front line, only military security and the establishment of local administration within the areas of operation. the tasks connected with the conduct of the operations, the supply of their troops and with military security, so that it was hardly possible for them to concern themselves with other tasks.
It was their duty to be with the units under their command in the area of operations. Their planning and their care had to be devoted, in the first place, to the unceasing struggle and to their troops. These facts supply the simple explanation why it was possible to keep so many things and measures connected with other non-Army agencies a secret, even in the area of operations and why they did not come to the knowledge of the military commanders. Wehrmacht as combat units, exclusively as regards their fighting service, and their supply. Both as regards organization and personnel, discipline and judiciary, the Reichsfuehrer SS Himmler alone had authority to give orders. (Einsatzgruppen), police SD, Organization Todt, etc., received their instruction and directives exclusively from their own superior authorities, and not from the Command-in-Chief of the Operational Sector. limited the Commander-in-Chief to the conduct of the troops under his command in the area of operations. military commanders, I now propose to turn to some special cases, and by way of introduction, I may say concerning the documents used by the Prosecution that extracts from German directives, torn from their context, often do not reveal the real meaning of the directives, and lead to wrong conclusions. Other documents, in particular some of those presented by the Russian Prosecution, represent findings of certain Commissions. Nobody can check up the figures contained in those documents, for instance, concerning murders, particularly, as all specifications concerning the exact time when these crimes were committed, and other substantial data, are missing. The exact figure of dead does not, in itself, prove that these dead were murdered by Germans. ing away upon close inspection, particularly when we consider that these data were collected by numerous commissions in all countries, and from hundreds of witnesses, over a period of several months, and include events which occurred not in one small area placed under the authority of a Commander-in-Chief, but in vast territories, and over long periods.
collection of their evidence, I was able to submit to the Tribunal very comprehensive Defense evidence, together with observations and comments which I made so far as I was given an opportunity. me fully to exploit even part of this counter-evidence. I, therefore, propose to select only a few individual cases to which I attribute special importance. provided for the immediate shooting of political Commissars. When Hitler began by orally announcing this order, which he alone had planned, in March, 1941, he at once met with the strongest inner opposition on the part of all the generals present, which was due to the latter's soldierly and human attitude. After all endeavors made by the generals, the Army High Command and the Armed Forces High Command, to prevent the issuing of this order of Hitler had failed, and the Kommissar Order was issued some time later in writing, the Commandersin-Chief of the army groups, and Armies, either did not pass this order on to their troops at all, or they ordered on their own authority, that it should be eluded. They did so in full consciousness of the danger that they might be heavily published for open disobedience in war to an order of the Supreme commander. The order on the preservation of discipline issued by the Commander in-Chief of the army, in pursuance of the Kommissar Order, had the desired effect. It gave the Supreme Commanders at the front a loophole to act in accordance with their own conception. Thus, the military leaders achieved the result that the Kommissar Order was not generally executed within the Army groups and the Armies. Ultimately, it was rescinded upon the energetic representations of the Chief of the General Staff.
THE PRESIDENT: Is there any evidence in writing to that effect?
DR. LATERNSER: Yes, Mr. President. That part of the evidence is contain ed in the affidavit which I have presented, and the last paragraph can be prove by document 301-B.
THE PRESIDENT: You mean that there was, in writing, an order by Chief of General Staff Zeitzler rescinding that order?
DR. LATERNSER: I think I have seen misunderstood. The last paragraph which I just read came from General Epistler; the order was rescinded and this is true by means of document 301-B which I have presented to the High Tribunal. That document is available in a translation.
What more can be expected of the military leaders? The order did not emanate from them, they did not pass it on. The did not execute it; they endeavored to have it rescinded, and finally reached their objective. Here lies their common link and their unanimity, and precisely, the handling of the Kommissar Order is evidence of the most conclusive kind of the fact that the generals' attitude was beyond reproach. istration of military justice in the East, met with the opposition of the Commanders-in-Chief who were present when it was orally announced. It is due to the generals' negative attitude that Hitler gave up his original plan, which provided for a complete elimination of the administration of military justice in the Past, and limited himself to certain restrictions. Commander-in-Chief of the Army concerning the maintenance of discipline, is of the greatest importance. The Commanders-in-Chief of the Army groups and of the Armies, acted as a group in accordance with the provisions of this additional order, and took vigorous measures in all cases where members of the Armed Forces had committed offenses against the civilian population. In serious cases, they had death sentences rendered and executed. Even simple road accidents, in which Russian civilians were injured, were brought before military tribunals, and the persons responsible were taken to account. This is proved, among other things, by the evidence given by Field Marshal von Lieb. Here again, therefore, precisely the officers included in the indictment took steps to prevent the full execution of one of Hitler's orders, which was in contradiction to their inner conceptions.
The attitude which the military leaders adopted with regard to Hitler's Commando order, was so unfavorable from the very outset, that Hitler was not only compelled to draw up this order personally, but he also found it necessary to threaten with exceptionally severe punishment, if his order was not executed. ed the order immediately on receipt on account of his inner opposition to it. see to it that the order was not carried out, but eluded. The Commander-inChief Southwest, Field Marshall Kesselring, issued additional regulations, which secured that the Commando troops would continue to be treated as prisoner of war, As regards the eastern theater of war, the order was without significance any way. ways and means to prevent the execution of the Commando order, which was in contradiction to their soldierly conceptions. account in this connection, as they are concerned with individual acts, which have already been the subject of special investigations or will be investigated later.. But they do not, in any way, reflect the typical attitude adopted by the military leaders, which alone is relevant in this trial.
It seems to me that there is still the following question of importance: Could the military leaders not rely on the facts contained in this order being true? were they not bound to assume that the order had been examined in its relations with international law, before it was issued? Is this order at all inadmissible under international law? Does it still come under admitted reprisals? order of Hitler some importance in the case of the persons whom I represent. whether the Commanders-in-Chief, in execution of a common plan, ordered or negligently tolerated any kind of mistreatment of prisoners of war in the areas of operations.
of war could not be accommodated and fed in accordance with the provisions of the Geneva convention, this is exclusively due to the fact that certain difficulties are, at first, unavoidable when hundreds of thousands are taken prisoner. When, after the end of the war, even the Allies were faced with similar difficulties, when all of a sudden great masses of Germans were taken prisoner, the allies will certainly not now be willing to allow themselves to be accused of crimes against humanity. invalidated or refuted by counter-evidence from all theaters or war. The military leaders in all theaters of war forestalled possible excesses against prisoners of war by issuing appropriate orders,and calling to account the persons responsible for offences connected with the treatment of prisoners of war. They neither ordered nor knowingly tolerated any mistreatments, or even killing of prisoners of war. and I continue at the end of page 70. secution that the Commanders-in-Chief had full knowledge of the tasks and the activities of the special purpose groups (Einsatzgruppen), which were allegedly under their command, and that they not only tolerated, but even actively supported the execution of these ranking groups. In this, the Prosecution rely on elements given by the High SS leaders Ohlendorf, Schellenberg and Rode as well as on Document L i 80. Is this not highly doubtful evidence? Can this evidence really convey to the Tribunal the conviction that the generals of the German armed forces offered their assistance in these most abominable mass exterminations? My answer is in the negative, and I give it with the fullest conviction. thousands of Jews were murdered, has been refuted by General Woehler's evidence in all its essential points. Schellenberg, who occupied one of the most influential positions in the most notorious agency of Germany -- the Reich Security Main Office (RSHA) -- one of Himmler's friends cannot supply any real facts, but gives us only assumptions.
informed in June, 1941, on the planned Mass Exterminations. When did this witness arrive at this incriminating assumption; towards the end of 1945, when he was taken into custody, and when he was on the lookout for his own advantages? Under cross examination, he is unable to indicate any facts from the year 1941, on which such an assumption might be based, but he nevertheless made the assumption, and for the first time in 1935. the course of the 20th of July, 1944, fighting against National Socialism, have reported nothing about this atrocious information to his direct superior, Field Marshal von Brauchitsch, with whom he had particularly close relations for a great number of years, and to whom he had access at any time in his capacity of Quarter Master General:
von Brauchitsch confirmed in the witness stand. Ic-officers were informed about the functions of the special purpose groups (Ensatzgruppen) in connection with mass exterminations at a meeting held in June, 1941. But he adds the further assumption that these Ic-officers had informed the Commanders-in-Chief. This means that two of Schellenberg's assumptions linked together, furnish the proof that the Commanders-in-Chief had knowledge of these planned mass exterminations. made by him? Ic-meeting, in which General Kleikamp expressly declares that there had been no question of planned mass extermination, which must cause Schellenberg's structure of lies fall to the ground. two oaths. He, thereby, places his assumption to the contrary, which is a pure assumption founded on no facts -- because he was unable to indicate facts in cross examination -- on the same level as the positive statement made by one of those present at the meeting, according to which no information had been given on the planned mass exterminations.
That much, as regards Schellenberg's evidence I ask the Tribunal to take full cognizance of the minutes under cross examination of this witness before the Commission Wishes to make a charge. He asserts that the special purpose groups (Einsatzgruppen) were fully placed under the authority of the Commanders-inChief, but he restricts this statement by adding "To the best of my Knowledge". This deprives the evidence of the witness of all its value for the Prosecution. Chief of the Armoured group four, Col. Gen. Hoeppner, was to have entertained a particularly close cooperation with the special purpose groups.
as it only contains the views of its author ? Nor does it contain any indication as to the nature of this cooperation, or to the object to which it referred. The special purpose groups and Commandos, however, also had it carry out supervisory and reviewing functions, as it has been proved, and only these were known to the Commander-in-Chief. If there was any cooperation at all, it could never have been in connection with mass executions of Jews.
Col. Gen. Hoeppner, who also lost his life as a victim on the 20th of July, 1944, would have been the very last to lend his assistance to mass murder. Is it really believable that a general, who wants to remove a system of Government, surely because of his special objection to its methods, should previously have taken part in the mass murders committed by this very system? Hoeppner as witnesses, both of them had not conspired with this system, but against it, and both sacrificed their lives for this conspiracy. who easily truns ironical whenever the defendants invoke dead witnesses in their defense, uses itself, invokes the dead, in an endeavor to prove that the military leaders had knowledge of planned mass exterminations and participated in them, and the dead, unfortunately, are unable to defend themselves against such attempts. I have shown by numerous affidavits that 1. the special purpose groups (Einsatzgruppen) were not placed under special clarity by Prosecution Document No. 447 PS, 2. General Wagner clearly expressed this to General Judge Mentel and 3. the military leaders has not been informed of planned mass execucredence to the SS leaders Schellenberg, Ohlendorf and Rode, who are trying for the last time, with all their hatred, to craw the military leaders into their own disaster, than to the officers of whom the Tribunal was able to obtain itself a personal impression.
Now as regards to the other counts of the indictment, such as mistreatment of the civilian population as well as destructions and lootings I propose to refer to my submission of evidence on these counts, which showed, with all desirable clarity, that the military leaders intervened most severely in all cases, of offenses brought to their knowledge. of workers, the Prosecution have been unable to submit really conclusive evidence, the question concerning the shooting of hostages must be left out of the count in this trial, because the territorial military commanders in the occupied territories, insofar as they ordered any shootings of hostages at all, are not included in the group of persons represented by me. war crimes and crimes against humanity at this juncture, But one thing stands out very clearly : object of committing war crimes and crimes against humanity. On the contrary, guided by the spirit of decent soldierdom, they conducted the war in a chivalrous way, and knew how to prevent the practical execution of all orders of Hitler which were not in keeping with their won conceptions. It may perhaps, strike the Tribunal that in all these observations, I have only concerned myself with the field commanders of the army, and with land warfare, but not with the generals of the air force and the admirals of the navy, who are also said to belong to the so-called group. I can only defend, however, what is being attacked. None of the submissions of the Prosecution concerning the Commission of war crimes and crimes against humanity concern the commanders-in-chief of the navy or of the air force at all. The only reproach against the Navy, namely that Connected with the directives for submarine warfare, is exclusively directed against the two grand admirals, who have assumed full responsibility for their orders, while the naval commanders-in-chief in the field had nothing to do with these orders at all.
No charges have been preferred against the commandersin-chief of the Air Force. If 17 admirals and 15 generals of the Air Force are included in the so-called "group", this constitutes the most striking proof against the theory of the existence of this "group" and readers any special defense of the admirals and of the Air Force generals superfluous. dered themselves guilty because they tolerated in practice Hitler's criminal plans and deeds, instead of revolting against them, returns us again to the central problem of these proceedings against the soldiers : a military order, but that it had, over and above this, a legislative effect.
Thus, were the military leaders not bound simply to obey the law ? If the duty to obey does not include an order, having the commission of a civil crime as its object, it is because the order demands an action directed against the authority of the State, but can there be any question of a crime, if the order requires action, which is not directed against the authority of the State, but on the contrary, is demanded by that authority ? And even if we reply to this question in the affirmative : What citizen of any country in the world, is in these circumstances, in a position to recognize the criminal nature of his action ? Prosecution explain what the defendants should not have done, but it must at the same time, have told us what they might, ought and should have done, on the grounds that any legal prohibition should also include a positive directive. If I suppose that, in spite of the sovereignity of the individual states, a legal obligation had existed for the generals to act in accordance with international law and moral requirements even against the law of their own state, such a legal obligation could only be affirmed if the corresponding action offered a chance of success after all : to allow oneself to be hanged, merely to evade one's duties -- to betray one's country without any prospect of being able to change matters, cannot be demanded by virtue of any moral.
Ultimately, there is no obligation for anybody to become a martyr. order and law on the part of the indicted generals ? What were the chances of success ? The simple rejection of unlawful plans or orders, be it by contradiction, warning, representations, or similar manifestations, would have been possible, but remained without any effect in practice. To a certain extent, this possibility was ineffective for the simple reason that the generals received no knowledge of many of the objectionable things. In the political and ideological struggle, these methods were so carefully kept a secret from the generals, that they did not even hear about mass executions, and would have been all the more unable to prevent them;
In the military sphere of warfare Hitler's closest assistants may, perhaps, have been heard on the question as to how a resolution was to be carried out militarily, but they were never heard when the resolution itself was made. this court, only learned of these resolutions at the moment when they were called upon them out as soldiers, as far as possible, they made objections. The Commander-in-Chief of the Army, Baron von Fritsch, gave a warning, before the Rhineland was occupied, against a policy which might produce a war on two fronts, as well as against rearmament, and, was dismissed. The Chief of the General Staff, Beck, raised political warnings, and -- was relieved of his functions. Col. Gen. Adam also opposed the policy, which was about to be pursued, and -- was dismissed. The Commander-in-Chief of the Army made representations in connection with outrages in Poland. The consequences was -- that the military agencies were excluded from the administration of the occupied territories. Warnings, objections, material representations were never successful, but in the majority of cases, they only produced the effect that Hitler maintained his own opinions more stubbornly than before, and insisted on their being carried out.
If even, the steps taken by the highest commanders thus remained without success, what could the ether indicted commanders of lower rank have achieved in this respect ? That is a practical possibility for a parliamentary minister in a democratic country,- a German officer could not resign, He was bound by his military oath, which was a supreme obligation to the old officer, even more than to anyone else. The German general could only ask for the approval of his resignation.
whether this request was successful, was outside his influence. Moreever, during the War, Hitler prohibited any such request, and placed a resignation on the same footing as desertion. zable in practice, Would have amounted to mutiny, and would merely have served to bring compliant elements into the leadership, but would never have impressed Hitler so much as to cause him to change his policy, his orders, or his methods. The attempts at resignation, which were actually made by some field marshals, and in particular, also by the commander-inchief of the Army in November, 1939, were flatly rejected. The resignation of the field commander would, nevertheless, have been an obvious duty, and would have had to be enforced with all possible means. If these leaders had once been faced with tasks, in which according to their conception the honor of the German nation had been at stake. But precisely, these tasks, among which I count the mass exterminations and the atrocities in the concentration camps, were carefully kept a secret from the generals, who were never called upon in such matters. would it have involved greater chances of success ? The American Chief Prosecutor in his report to the President of the United States, expresses himself, as follows on this point :
"If a soldier drafted into the Army under his service duty, is included in an execution squad, von Brauchitsch confirmed in the witness stand.
Ic-officers were informed about the functions of the special purpose groups (Einsatzgruppen) in connection with mass exterminations at a meeting held in June, 1941. But he adds the further assumption that these Ic-officers had informed the Commanders-in-Chief. This means that two of Schellenberg's assumption linked together, furnish the proof that the Commanders-in-Chief had knowledge of these planned mass exterminations. made by him ? Ic-meeting, in which General Kleikemp expressly declares that there had been no question of planned mass extermination, which must cause Schellenberg's structure of lies fall to the ground. the two oaths. He, thereby, places his assumption to the contrary, which is a pure assumption founded on no facts-- because he was unable to indicate facts in cross examination -- on the same level as the positive statement made by one of those present at the meeting, according to which no information had been given on the planned mass extermination.
That much as regards Schellenberg's evidence. I ask the Tribunal to take full congizance of the minutes under cross examination of this witness before the Commission.
he should be held responsible for the legal validity of the verdict which he is executing, but where a man as a consequence of his rank, or of the elasticity of the orders given to him can act on his own judgment, the situation will probably be quite different. This view was not shared by the generals. On the contrary, a simple soldier's disobedience is easily offset in its effect by punishment, but the disobedience of a high military leader is liable to shatter the structure of the Army, and even of the State itself. obedience.
Nobody has defined the meaning and the character of a soldier's duty of obedience more correctly than the British Field Marshal, Lord Montgomery. In a speech which he made at Port*--*th on the 26th of July 1946, he declared:
"As the servant of a nation, the Army is above politics, and that must remain as it is.
Its devotion is to the State, and it does not belong a fighting arm molded by discipline and controlled by the leaders.
The essence of Democracy is freedom:
the essence of the Army is discipline. be mastered in a democratic period by the inculcation of three principles.
1. The nation is something that is worthwhile;
2. The Army is the necessary arm of the nation;
3. It is the duty of the soldiers unquestioningly to obey all orders Prosecution, they ought not only have asked questions when they obeyed the supreme commander and the nation, but they ought to have rebelled openly! been once himself an Army commander in war, at the front line, and in particularly serious circumstances because there is a great difference between the Commander at a heavily contested front line, who carries the responsibility for the life and death of hundreds of thousands of soldiers, and an officer who has no responsibility at the front line, or who is engaged only in a quiet sector.
If the military leaders, nevertheless, fought unceasingly for their soldierly conceptions, and acted in accordance with then within existing possibilities, this attitude ultimately produced no other effect than their complete elimination towards the end of the war. This is proved by a short survey of the fate of some military leaders: relieved of their functions in the course of the war. July, 1944, general remained in service until the end of the war without being subjected to any disciplinary action.
Of 36 Col. Generals, 26 were eliminated from their posts, among these three were executed in connection with the 20th of July, 1944, and two were dishonorably discharged. of the war without being subjected to disciplinary action. officers who had given a good account of themselves in combat.
In view of what I have just said, I can sum up the position as follows:
1. Military disobedience is, and remains, a violation of duty, in war 2. There is no duty to disobey for any soldier in the world as longer 3. Under Hitler's dictatorship, open disobedience would, only have led 4. No class has made, through its highest representatives, such great sacrifices for its conceptions as opposed, to Hitler's methods as resistance, there would have remained only the method of violence, rebellion and coup d'etat.
Whoever contemplated this method, had to be aware of the fact that it could not but involve the removal of Hitler, and of the leading men of the Party, in such a way, that these men were put to death. There was, therefore, at the beginning of each coup d'etat the inexorable compulsion to eliminate Hitler and the leading men of the party.
To the soldier, this meant murder and disloyalty to his oath. Even if it is demanded that the generals, for reasons of a higher world morals, ought to have sacrificed their personal honor as soldiers, where could they have received the justification for such action being carried out against the will of the nation, and then could this action have been realizable with good chances of success and for the benefit of the people? After the incorporation of the Protectorate, Hitler was at the crest of his successes and was considered by the German people as the greatest of all Germans. When Churchill said of him, on the fourth of October, 1938, that "Our leadership must have at least a fraction of the spirit of that to march against formidable phalanx of victorious nations."
blown army the generals, who would have laid violent hands on Hitler. Were the generals to have removed Hitler at a time when a peaceful settlement with Poland was still a practical possibility, when it was impossible for the German people to foresee that the war would actually come, and what consequences it would have -- as they are today openly visible to all our eyes. restriction on the military leaders. Any rebellion in war would have amounted to a catastrophe for the Reich. As long as there were victories, there would, have been no chance anyway of a success of the rebellion. But when it became clear after Stalingrad that the fight was now for the naked existence of the German people, the military leaders had even less the moral right to bring about a breakdown of the front line and the whole country by a coup d'etat.
In these days, large sections of the German people still believed in Hitler. Would the military leaders not have been rendered responsible for everything that the German nation are feeling so heavily today as a consequence of the capitulation. Can one really consider coup d' tat, disloyalty to the given oath and murder as a legal obligation of the soldier in the midst of a war for the very life and death of the nation? What did Field Marshal von Rundstedt say in the witness stand:
"Nothing would have changed for the German people. But my name would have gone down in history as that of the greatest traitor."
unsuccessful attempt on Hitler's life on the 20th of July, 1944. Even the preparation of this attempt ever a number of years and the participation of me from all walks of life were not able to secure its success. a coup d'etat. Certainly, if they had been the closed association as which the Prosecution would so very much like to regard them, they might perhaps also have contemplated a commonly planned violent revolt, but since they were not a closed organization, since they were not politicians, but "only" soldiers, the could do nothing on their part to bring about a change of conditions. They could only obey to the last, in spite of the fact that they knew how desperate the military situation was. The German military leaders found themselves hemmed in between their rights as men and their duties as soldiers. right to refuse service to a Fuehrer and a system which, the longer the war lasted, proved the more harmful. They might thus have eluded their personal responsibility; they might have -- as the Prosecutor puts it -- "saved their skins". Perhaps they would not now be tried before this Tribunal, but by taking such a decision, they would, at the same time, have let down their soldiers, who trusted them and for whom they felt responsible. Therefore, there remained for them, as soldiers, only the duty to fight. This "duty" might in a superior sense of the word also have been to overthrow the system. In war, however, this would practically would have amounted to brining about defeat.
himself. One cannot, for years, demand of one's soldiers to give their lives and then threw doen oneself the arms and go down in history as the traitor of one's nation. fight the enemy to the last. Confronted with the tragic decision between personal rights and soldierly duties, they decided in favor of their duties, thus acted in the spirit of soldierly moral. away criminal things from themselves, and from their soldiers? There was only the one single possibility, to go around criminal orders, to elude them, or to transform them by additional orders in such a way that the result was in keeping with the soldier's sense of justice and decency. This they did to the limit of their possibilities in order to conduct the military war, which alone was their business, according to the rules of International Law and of humanity. If, besides this, the political and ideological war was carried on by methods which have today exposed the German people to the contempt of the world, the German generals, as a group, have had no part in this kind of war.