Archive/File: imt/tgmwc/tgmwc-15/tgmwc-15-146.02
Last-Modified: 2000/03/30

THE PRESIDENT: You mean that I was correct in saying that in
the main it emanated from you?

THE WITNESS: Yes, absolutely. The first part of this
Wehrmacht communique was formulated by me, and contains an
authentic refutation of a statement of the British Ministry
of War, broadcast by the British radio.

This statement of the British Ministry of War was false, and
I established the reasons why it was false on the basis of
records, photographs, and affidavits which we possessed.
Initially this affair had nothing to do with commandos and
reprisals, but that angle was introduced into the Wehrmacht
communique by the supplement of the Fuehrer, which begins
with the sentence:

  "The High Command of the Wehrmacht, therefore, is
  compelled to decree the following."

BY DR. EXNER:

Q. And it was considered necessary to make this announcement
known in the Wehrmacht communique. Did the Fuehrer demand
from you drafts of an executive order?

A. When the Fuehrer had written this last supplementary
sentence, he turned to Field-Marshal Keitel and to me and
demanded an executive order to follow this general
announcement in the Wehrmacht communique. And he added: "But
I do not want military courts."

Q. Did you make a draft?

A. I had very many doubts which a careful study of The Hague
rules of warfare could not dispel. Neither Field-Marshal
Keitel nor I prepared such a draft, but members of my staff,
on their own initiative, asked for drafts and for the views
of various departments, and thus, Document PS-1263 came into
being. I shall come back to it later.

THE PRESIDENT: That is Document 1263-PS?

DR. EXNER: 1263; Page 104, Volume II of my Document Book;
Exhibit RF 365; but we shall deal with that later.

THE PRESIDENT: Did you say Page 204?

DR. EXNER: No, Page 104, Volume II, 104.

BY DR. EXNER:

Q. Please continue.

A. My wish was an entirely different one. It was my
intention to avoid an order altogether, and I rather
expected that as a result of the announcement in the
Wehrmacht communique - an announcement which was certainly
not kept secret but which was broadcast over the air to the
entire world - the British Ministry of War would approach us
again, either directly or via Geneva, as it had done on
several previous occasions. And I hoped that in this way the
whole matter would be shifted to the sphere of the Foreign
Office. However, that did not happen. The British War
Ministry remained silent.

                                                  [Page 299]

In the meantime, ten days had passed and nothing had been
done. Then, on 17th October, General Schmundt, the Chief
Adjutant of the Fuehrer, came to me and said that the
Fuehrer was demanding an executive order. I gave him the
following answer, word for word:

  "Please give him my best regards, but I will not give out
  an order like that."

Schmundt laughed and said: "Well, of course, I cannot tell
him that," and my reply was: "Very well, then, tell the
Fuehrer that I do not know how a decree like that could be
justified under International Law."

And with that, he left. I hoped now that I would be asked to
come to the Fuehrer so that at long last, after many months,
I should again be able to speak to him personally.

Q. And this coincided with the Vinnitza crisis?

A. Yes. I wanted an opportunity of telling him my misgivings
or otherwise to be thrown out altogether. Either eventuality
would have helped me, but neither occurred. A few minutes
later Schmundt called me on the telephone and informed me
that the Fuehrer was going to draw up the orders himself. On
18th October Schmundt again came in person and brought with
him these two orders of the Fuehrer - the order to the
troops, and an explanation for the commanders.

BY THE PRESIDENT:

Q. Are you referring to two documents which are before us?

A. These are the two documents, 498-PS and 503-PS. The
papers submitted to the High Tribunal as documents are not
the originals of the Fuehrer; I personally handed over the
originals at Flensburg. The documents which are in the hands
of the Tribunal are copies of the originals, or mimeographed
copies by my staff.

BY DR. EXNER:

Q. Now, I should like to interpolate a question. You
mentioned that your staff worked out something in detail and
you referred to PS-1263, which has been submitted to the
Tribunal, Page 104 of Volume II. In this document, you made
two remarks on Page 106. The first remark on that page is:
"No". In the French translation this "non" is missing, and
has to be added. On the same page a little further down, it
says in your own handwriting: "That won't do either", and
your initial "J" for Jodl.

Can you explain to the Tribunal what this means?

A. As I have already said, the members of my staff - and
this may be seen under (1) of Page 104 - on their own
initiative asked for proposals from the Counter
Intelligence, Canaris, which included a group of experts on
International Law, and also from the Wehrmacht Legal
Department since, after all, we were concerned with a legal
problem.

On Page 106, under paragraph (a), there is the proposal
which the foreign division of the Counter Intelligence made:

  "Members of terroristic and sabotage troops who are found
  without uniform, or in German uniform, are to be treated
  as bandits, or if they fall into German hands outside
  battle operations, are to be immediately interrogated by
  an officer and then to be dealt with by summary court
  martial."

That was quite impossible, for if one came across a soldier
in civilian clothing, without uniform, no one could know
just who he was. He could be a spy, or an escaped prisoner
of war, or an enemy airman who had saved his life by jumping
from his plane and now hoped to escape in civilian clothing.
That had to be determined by an experienced interrogating
officer and not by a summary court martial consisting of
some lieutenant, two non-commissioned officers and two
soldiers. In paragraph (b) -

Q. And for that reason you wrote "No"?

A. For that reason I wrote "No".

                                                  [Page 300]

In paragraph (b) it was suggested that if such sabotage
groups were apprehended wearing uniforms, a report should be
made to the Wehrmacht Operational Staff and the Operational
Staff was then to make a decision. But in that case the
Wehrmacht Operational Staff would have assumed the function
of a military court, and that it could never be.

I really must claim for myself that, thanks to my wider
experience, I have viewed these problems a little more
clearly than some of my subordinates.

Q. And so you rejected this proposal. You said that you also
had grave misgivings about the Fuehrer's order. Will you
tell the Tribunal now what misgivings you had?

A. First of all, I had a number of legal doubts. Secondly,
this order was ambiguous, for practical purposes it was not
sufficiently clear. Particularly in this case, I considered
military courts absolutely necessary. I know well that even
judges may on occasion, consciously or not, be under
coercion and may judge not only according to the law; but at
least military courts provide some safeguard against a
miscarriage of justice.

Q. Therefore, if I understand you well, you wanted to
install some legal procedure. What did you mean by vague and
ambiguous?

A. The theory was that soldiers who by their actions put
themselves outside military law could not claim to be
treated according to military law. This is a basic principle
definitely recognized in International Law, in the case of a
spy or "franc-tireur".

This order was to intimidate British commando troops who
were using such methods of warfare. But the order of the
Fuehrer went further and said that all commando troops were
to be wiped out. This was the point on which I had grave
misgivings.

Q. What legal doubts did you have?

A. Just this doubt - that on the basis of this order,
soldiers also would be wiped out.

THE PRESIDENT: Defendant, it is not necessary to speak so
slowly; if you can, speak a little faster.

A. I was afraid that not only enemy soldiers who, to use the
Fuehrer's expression, actually behaved like bandits, but
also decent enemy soldiers would be wiped out. In addition -
and this was especially repugnant to me - in the very last
part in Document 503-PS, it was ordered that prisoners ...
soldiers were to he shot after they had been captured and
interrogated. The thing that was totally misleading to me
was the general position under the law, whether a soldier
who had acted like a bandit would upon capture enjoy the
legal status of a prisoner of war, or whether, on account of
his earlier behaviour, he had already placed himself outside
this legal status.

Q. By that you mean the Geneva Convention?

A. Yes, I mean the Geneva Convention.

Q. Did you agree with the principle that enemy soldiers who
had acted in an unsoldierly manner were not to be treated as
soldiers?

A. Yes, I could quite understand that, and so could others.
For the Fuehrer had received very bad reports. We had
captured all the orders of the Canadian brigade which had
landed at Dieppe, and these orders were at my disposal in
the original. These orders said that, wherever possible,
German prisoners were to have their hands shackled. After
some time, through the Commander-in-Chief West - I received
-

Q. You can speak faster.

A.  - I received court records and testimony of witnesses
with photographs, which definitely convinced me that
numerous men of the organization Todt - fathers of families,
unarmed, old people, who were wearing an armband with a
swastika - that was their insignia - that these people had
been shackled with a

                                                  [Page 301]

loop around their necks and the end of the rope fastened
around their bent lower legs in such a way that they had
strangled themselves.

I may add that I withheld these photographs from the
Fuehrer, I did not tell him of these aggravating incidents
which had definitely been proved; I concealed them from the
German people and from the Propaganda Ministry. Then came
the English radio report denying emphatically that any
German soldier had been shackled at Dieppe.

Some time later, a commando troop made an attack on the
island of Sark. Again we received official reports that
German prisoners had been shackled.

Finally we captured the so-called British order for close
combat. That was the turning-point with the Fuehrer; I also
studied it very carefully. These close combat instructions
showed in pictures how men could be shackled in such a way
that they would strangle themselves through the shackling;
and the order set down exactly within what time death would
occur.

Q. Therefore, the reasons which Hitler gave for his Order
498 were actually based on reliably reported facts. I recall
that Hitler referred to prisoners who had been shackled,
prisoners who had been killed, and he says, that criminals
... as commandos -

THE PRESIDENT: You are paraphrasing the evidence in a way
that is inaccurate, because the defendant has just said that
he kept these things from Hitler. You are now saying that
Hitler knew about them. That is not what the witness said.

BY DR. EXNER:

Q. Then, I shall have to ask you whether the facts upon
which this order is based were reported to you.

A. I believe the Tribunal has Document PS-498. In it the
Fuehrer first makes the general statement, that for some
time our opponents have in their conduct of the war used
methods which violate the International Geneva Conventions.
I must support this statement as true on the basis of
reports which, regrettably, the had been receiving since the
summer of 1941. I do not wish to go into individual cases.
There was an outrageous incident of a British submarine
using machine-guns. There was the order in North Africa that
German prisoners of war should not be given water before
they were interrogated. There were a large number of such
reports.

THE PRESIDENT: Defendant, the Tribunal thinks that it is
very difficult to go into individual incidents which
occurred long before this order was drafted, and you have
told us what you said the order was drafted in respect of,
namely, the shackling, and you are now referring to other
things which you allege happened long before that. It does
not seem that it is possible for the Tribunal to investigate
all those matters which happened long before.

THE WITNESS: No, I do not want to dwell on these matters any
longer. I only want to point out, as I think I must, that in
general the reasons given by the Fuehrer for this order did
not spring from a diseased imagination, but were based on
actual proof in his and in our possession. For there is
certainly a great difference whether I, in my own mind, had
to concede some justification for this order or whether I
considered it an open scandal. That is very important for my
own conduct. But I shall try to be very brief. The fact that
many previously convicted persons and criminals were
included in the commandos, who were, of course, reckless
people, was proved by the testimony of prisoners, and the
fact that prisoners were shackled was obvious from captured
orders and the testimony of witnesses.

THE PRESIDENT: You have told us that already. We have heard
that more than once - that you had evidence before you that
prisoners were shackled and that you had the Canadian orders
before you.

                                                  [Page 302]


BY DR. EXNER:

Perhaps you can just say a few words on the subject of
killing prisoners.

A. In conclusion, I want to say that I did not see any
order, any captured order, which decreed death for German
prisoners of war, though this was also given as a reason in
the Fuehrer's order. But I must explain that the British
Ministry of War advised us - I cannot recall exactly whether
via Geneva or via the radio - that situations might very
well arise in which prisoners of war would have to be killed
- no, rather, in which prisoners of war would have to be
shackled, because otherwise one would be forced to kill
them. And so, if at the end the Fuehrer says we have found
orders according to which the commandos were on principle to
kill prisoners, then I think he is referring to the British
close combat instructions which described shackling as a
means of causing death.

Q. And what was your own part in this Commando Order?

A. My part consisted only in distributing this order, or
having it distributed, in accordance with instructions.

Q. The prosecution asserted once that you signed this order,
one of the two orders, I do not know which one. That is not
correct?

A. No, I signed only a general decree to have one of the
orders kept secret.

Q. Yes, we will deal with that in a moment. Could you have
refused to transmit this order?

A. No, if I had refused to transmit an order of the Fuehrer,
I would have been arrested immediately, and I must say, with
justification. But as I said, I was not at all sure whether
this decree, either in its entirety or in part, actually
violated the law, and I still do not know that today; I am
convinced that if one were to convene here a conference of
experts on International Law, each one of them would
probably have a different opinion on the subject.

Q. General, you can speak a little faster.

Could you have made counter-proposals?

A. Yes, probably, at another time, but at that time of
conflict with the Fuehrer, it was not even possible for me
to speak with him personally. To broach the subject during
the general situation conference was quite impossible.
Therefore, in practice, I intended to carry out this order
very magnanimously, and I was certain that the
commanders-in-chief would do the same.

Q. And what do you mean by magnanimously? Could this order
have been interpreted in different ways?

A. Yes. The order offered two ways of avoiding that really
decent soldiers would be treated like criminals. If a
commando troop, mostly encountered at night, was not wiped
out but captured - as was the rule in almost all cases -
then that was already some proof that our troops did not
consider these men as bandits. It was then the task of the
commanders-in-chief to make an investigation. If it was
purely a reconnaissance operation, the entire action did not
fall into the sphere of the Commando Order and would not be
reported as a commando raid. However, if the operation was
really carried out by a sabotage and demolition troop, then
its equipment had to be checked; it had to be investigated
whether the men were wearing civilian clothing under their
uniforms; whether they were carrying the famous armpit guns,
which go off automatically when the arms are lifted in the
act of surrender; or whether they used other despicable
methods during the fighting. The commanders-in-chief could
act in accordance with the outcome of such an investigation.
I believe that if the enemy were handled in that way, if was
quite possible, and in fact happened many times, I might
almost say in the bulk of cases, that the shooting of brave,
decent soldiers was avoided.

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