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.
CONCLUSION: I have now reached the end of my observations. I believe I have proved 1. That the 129 military leaders, which the Prosecution want to indict, were in no respect an "organization" or "group", and represented even less a united will for the execution of criminal acts--these men are not a gang of criminals.
2. That the collection of these officers by the Prosecution under the invented collective term "General Staff" and "High Command", represents in reality a purely arbitrary combination of holders of the most varied service posts from quite different periods, and from fundamentally different branches of the Armed forces. Chosen without any real justification, and without legal necessity, the collection of these officers under this collective term, can only be considered as a deliberate slander on the institution of the General Staff, which has been taken as a model by so many Nations. What a slogan, indeed, for the International press: "The German General Staff, a criminal organization;" I, furthermore believe I have proved:
That the military leaders in Hitler's State did not even have the possibility to participate in a political plan, or a political conspiracy, with the object of waging of war of aggression, and even less, actively to assist in it. They constantly uttered warnings, and warned again and again, and were finally themselves overun by the political leadership. I believe finally, I have proved: sistance against Hitler's methods, which disregarded the rules of warfare and of humanity. They, thereby, practically prevented the commission of crimes against the rules of war and of humanity as much as it was possible, and maintained as soldiers the spirit of Christianity. they will know how to account for themselves. The group as a whole is not guilty of the crimes which were committed. On the contrary, this circle of officers was one of the strongholds of decent, humane, and Christian thought. Only an observer who witnessed from nearby the enormously difficult situation in which everyone of these men found himself, can do justice to their attitude. They had to settle the conflict of their consciences quite alone, and could not seek assistance in their distress, and the torment of their consciences by resorting to the deputies of a Parliament, to the editors of a free Press, or to prominent influential men of public life, -- as it was possible for the military leaders of the other side.
These men were persecuted with derision and hatred. They were openly, and even more in secret they were branded as "reactionary generals", not as "dust-covered knights of a medieval code of honor."
"Not the great Hitler", but they were made responsible by Party propaganda for every military setback, they were the traitors and saboteurs to whose sinister influence all misfortunes were due. without them, Hitler would have won his war. is persecuting them even in this courtroom, and endeavors by lies and distortions, to drag them into the disaster awaiting these people, and the Prosecutor does not realize how much he contributes by his theory that Hitler had been driven by instigators and advisors further and further, and that everything was ultimately the generals' fault, to revive the hale around Hitler, so that Hitler may one day appear, not as the political criminal and the mass murderer of millions of people, but as the tragic here who was pushed into the abyss by the gray figures who surrounded him. such a way?
History has its own method of judgment. The summary kind of judgment demanded in this case is practically unique in the history of the world. There is practically only one parallel, and it is both a warning and a lesson. On the 16th of February, 1568, a verdict rendered by the Holy Office condemned all inhabitants of the Netherlands to die as heretics, with the exception of a few specially named cases. The Duke of Alba who was devoted to his Royal master in blind fanatical obedience, was appointed executor of this mass verdict. The judgment of history on this first great manifestation of the idea of collective guilt is well-known. are here concerned, and the German generals believe that they will be able to stand their ground before its verdict. Today, however, we are concerned with the verdict to be rendered by this International Military Tribunal. May it please the Tribunal not to neglect the fact that the knowledge which it possesses today of the whole development of events -- both as regards their external course and their background, was something these men did not have when they made the decisions, for which they are to be rendered responsible today.
all its forms -- but their anxiety is concerned with justice. May it please the tribunal of Nurnberg to render a verdict which, as I said in my opening remarks, is uninfluenced by the passions of every day life, far removed from blind hatred and vengeance and the petty instincts of retaliation, and which, standing out, pure and unfalsified in the face of eternity and of a better future of the nations is nothing but just.
THE PRESIDENT: The Tribunal will adjourn.
(The Tribunal adjourned until 1000, 28 August 1946.)
NURNBERG, GERMANY, ON * AUGUST 1946, 1000-1700,
SIR DAVID MAXWELL FYFE: My Lord might I mention the letter from General Warliment which we discussed yesterday in connection with Dr. Laternser's application to call Buerker. The prosecution had the opportunity of considering the letter and they are quite prepared to admit that the part of the letter which relates to Colonel Buerker; that is, division "A" of the letter contains what Colonel Buerker would say if he were called. We are quite prepared to make the admission or stipulation which your Lordship suggested yesterday. The other parts of the letter, "B" and "C" relate to a statement of General Warliment himself and a statement of a Major Meier. Dr. Laternser has not made any application with regard to these parts and he is quite prepared that they should not be read. Dr. Laternser is prepared to agree with out suggestion that the first part relating to Colonel Buerker be treated as the evidence that Colonel Buerker would have given if he were called.
THE PRESIDENT: Then perhaps you will read paragraph "A" of the letter
DR. LATERNSER: I shall read from a letter from General Warliment: "Nurnberg, 23 August, 1946. To Attorney Dr. H. Laternser." Then I shall leave out part of it and I shall start with paragraph "A". :"About ten to fourteen days ago, early in the morning, there appeared before me in the general office camp at Dachau, Colonel of the General Staff of the German Army, Buerker, who was also being detained there, and whom I had known for many years. He told me that he had learned through the radio news the evening before of the Russian accusation against the OKW of an alleged preparation for bacterial warfare. In this connection, he recollected an incident during his short activity as Chief of the Organization Department of the Wehrmacht.
Leading Staff, which he related to me more or less as follows : And now there is a direct quotation :
"During the autumn of 1943, probably in late September, there appeared before me in my office three gentlemen unknown to me, one of whom belonged to the Army Senitation Inspection, the second supposedly belonged to the Research Office of the Army Ordnance, but I can no longer recall the name of the third nor to which office he was attached. They explained to me that in their opinion the research work for counter-attacking any bacterial warfare was not or was no longer adequate. Their mission which was exclusively limited to research for defense purposes would have to be extended. They were convinced that it was essential to exhaust every possibility even to the extent of a counter attack which would take place in any case. The gentlemen thanked me to have an interview with the Chief of the OKW, in fact, with Keitel in this connection. I had first taken over the position of the Chief of the Organization Department in the beginning of September 1943, after a preparatory training period of two months with my predecessor Colonel Muenz (who fell in the war) and up to then had not heard the slighest mention of this matter. When at the next conference with the Chief of the OKW I brought up the matter, he was extremely upset, angry. He ordered me in a unusually sharp term in more or less these words 'That has long ago been prohibited and there can be no question of such a thing'."
THE PRESIDENT: Dr. Kubuschok.
DR. KUBUSCHOK: Mr. President, gentlemen of the Tribunal. organizations are in many respects a nevum. For the first time there are organizations with millions of members before the judge of a criminal court for the first time a judgment is expected covering all of the civilian and military leaders of a State. This brings to light the importance as well as the complexity of proceedings of that kind. From this also arises the duty for the defense counsel of the individual organization to concern himself with all actual and legal problems of these proceedings in general.
The Prosecution bases it *--*ve on the hypothesis that according to general principles of law there exists a collective criminal responsibility and that in consequence a criminal condemnation of a community as such is also possible. If it attempts to justify this criterion of law by examples from penal laws of various civilized countries, it must thus be cleared up concerning this that all of the examples mentioned do not prove the criminal condemnation of the organizations as such but only the condemnation of the single individual because of his membership in an organization termed criminal. Nor could it be otherwise. Criminal responsibility can only be given for the individual only. Every criminal law proceeds from the concept of guilt, from the recognition of a criminal act as such and from the unswering formation of will to accomplish this set of factured elements. The faculty to recognize and to form a will, and with it the concept of guilt, as such is possible for a natural person only. responsibility of the organization is established for the domain in which because of its very nature it is bound to violate the interests of the State. This is the domain of irregularity, not the domain of criminality rooted in ethics. Laws were created to prevent these irregularities, to punish the organizations as such because of their responsibility in the fields experiencing their pernicious influence by means which could effect the organizations as such. A punishment under administrative law and a fine because of violation of State interests by an organization is practica ble and for the sake of expediency the laws of various countries have ruled on it.
These proceedings based on a merely objective establishment, independent from an examination of the question of guilt which is not possible. ficance of the declaration which the Prosecution demanded. torical valuable contents. presents a retroactive boycott for the organization which in the meantime was legally and actually dissolved, beyond that it involves especially a prescription of all organization members. That declaration embraces them all and as its effect, using Mr. Justice Jackson's words, the "bad" element are segregate from the"good" elements. critical import of that declaration : By virtue of the Control Council Law No. 10 it creates a far-reaching establishment of guilt for the individual member. At this time the Control Council Law No. 10 is as yet a skeleton law, so to speak. The provision of Article II d makes membership in organizations declared criminal by the Tribunal liable to punishment. Once the Tribunal has given such a verdict, thus the former gap in the criminal provision is accordingly filled out. The name of the convicted organizations then is, so to speak, admitted into the wording of the provision of the penal code. The criminal nature of the organization now vanishes as a characteristic of the elements of the fact. Therefore, there is no need for the individual perpetrator to be possessed by this characteristic of the organization. The criminal action now to be adjudicated by the Court of the Control Council Law arises from mere membership. Therefore, only the objective and subjective elements of the membership as such, are subject to adjutication by the Court. The individual member who in this trial is called to account faces a decision incidentally, already mad which deprives him of all other subjective and objective pleas not concern with his membership as such.
He can no longer plead that he was not inform as to the criminal goals of the organization, that he did not foster them, nor can the motives for his entry or continued membership in the organization be validated any more in connection with the question of his guilt. tual elements of Article II, figure 2 e of the Control Council Law, according to which the member of the organization adjudged criminal shares also in the responsibility for all the crimes which the condemned organization is charged to have committed. constitutes a conviction of the individual member who belonged to the organization. The fiction of criminal responsibility of the organization thus brings about what no system for criminal procedure heretofore in existence has recognized : the guilt of the members is abstractly disassociated from them, to be transferred in tote to the organization, with the result that establishment of the guilt of the organization obviates the requirement for complete proof of the guilt of the individual member. will be the unavoidable effect of the declaration for all members, the definition of "criminal character" - used by the Court for the organization because of the absence of provisions of law - can have but one result: the individual member will by force be included in the Court's argumentation ; the concept of the organization can be understood merely as the sum total of individual members. This means that the proceedings against the individual members cannot be handled as what is abstractly termed an organization. From this recognition arises the difficulty of the present proceeding which, according to statements made by the Prosecution, are expected to facilitate the subsequent proceedings technically; but according to the generally adopted viewpoint for individual guilt of the perpetrator this merely means shifting of the deciding principles to a different Court. Nevertheless, that Court enjoys the advantage that because of its connecting with the proceedings against the 21 main defendants it will find it easier to get a complete picture of the actual basis questions.
To shift basic decisions to a Court which of necessity must take a global view of all the historical events is in itself a wholesome thought. One should not fail however, to recognize the limits set for what is practically possible. If the Court had merely been given the task of determining historical events and of judging whether a group of members of the indict organizations participated in them, this task could be solved with comparative ease. In this case, however, the Court is given the task of making a statement on the total aims and effect of an organization, a decleration which in the light of the foregoing must take into consideration the knowledge, will and action of each individual member of the organization. From this arises the difficulty for finding a basis for a judgment which answers the wording of the proposed motion. at the definition of the concept of "criminal organization". tion in this trial, and by reason of the decisions incidentally made which is to be valid for the subsequent proceedings - the member of the organization is embraced membership is the thing for which he is outlawed and for which he is to be punished. The law which establishes criminality retroactively, arising from membership in the organizations under discuss. is undoubtedly a new law. The legal aspect of the retroactive law has already been dealt with in the trial against the 21 individual defendants. The Prosecution then declared that in the application of a retroactive law there is justification for comprising actions of which the perpetrator at the time of committing them knew that they constitute an infraction of the general moral and ethical standards or the world order. However, the case is different when it comes to indictment of the organizations. The judgment is now concerned not with the fact that an individual perpetrator committed a criminal act regardless of his awareness of its general condemnation although at the time of commission a law again it did not exist, but the point now to be decided is whether a person incriminates himself by reason membership in an organization.