Archive/File: imt/tgmwc/tgmwc-04/tgmwc-04-28.01
Last-Modified: 1999/09/19

                                                    [Page 1]

                   TWENTY-EIGHTH DAY
              MONDAY, 7TH JANUARY, 1946

COLONEL TELFORD TAYLOR: May it please the Court, Sir, when
the Court rose on Friday I had completed that part of the
presentation on Counts 1 and 2. I now turn to that part of
the Indictment which charges that the General Staff and High
Command Group had a major responsibility for the War Crimes
and Crimes against Humanity involved in the execution of the
Common Plan or Conspiracy set forth in Counts 3 and 4 of the
Indictment. For the purposes of brevity I shall refer to
these crimes simply as War Crimes.

The presentation of the documents under this part of the
case should take all or the better part of the morning
session. At the conclusion of that, I propose to call a
single witness, one witness, Erich von dem Bach-Zelewski,
whose testimony on direct examination should not exceed 25
or 30 minutes. After that, I shall take possibly 10 minutes
to conclude, and that will be the entire presentation.

On this part of the case I propose to show that members of
the General Staff and High Command Group, including the
defendants who are members of the Group, ordered and
directed the commission of War Crimes, and thereby
participated in the commission of War Crimes in their
official capacity as members of the Group. I also propose to
show, in certain instances, the actual commission of War
Crimes by members of the German armed forces as a result of
these orders, or as a result of other orders and
arrangements made by members of the General Staff and High
Command Group which controlled the German armed forces.
However, I do not propose to make a full showing of War
Crimes committed by the German armed forces. The full
presentation of the evidence under Counts 3 and 4 will be
made pursuant to agreement among the Chief Prosecutors, by
the French and Soviet delegations, and a substantial amount
of the evidence to be presented by them will be relevant to
the charges against the General Staff and High Command
Group.

We will at this time show the Tribunal that the General
Staff and High Command became wedded to a policy of terror.
In some cases, the evidence of this policy is in documentary
form, and we will present the papers which were signed by,
initialled by and circulated among the members of the Group.
In other instances, where the actual crimes were committed
by other than members of the German armed forces, where, for
example, prisoners of war were handed over to and mistreated
by the S.S. or S.D., we will show that in those cases
members of this group were well aware that they were
assisting in the commission of War Crimes. We will show that
many crimes committed by the S.S. and S.D. were committed
with the knowledge and necessary support of the General
Staff and High Command Group.

The first matter which I will take up relates to the
killing, in violation of International Law and the rules of
war, of Allied Commandos, Paratroopers, and members of
military missions, and the first document to which I wish to
refer is 498-PS, which will be Exhibit USA 501.

                                                    [Page 2]


This story starts with the order embodied in that document,
which is an order issued by Hitler on 18th October, 1942,
and which Mr. Storey has already mentioned in the
presentation of charges against the Sicherheitsdienst. The
order begins with a recital that Allied Commandos were using
methods of warfare alleged to be outside the scope of the
Geneva Convention, and thereafter proceeds to specify the
methods of warfare which German troops should use against
Allied Commandos, and the disposition which should be made
of captured Commandos.

This order is one of the two basic documents in the story. I
will read it in full:-

   "1. For some time our enemies have been using, in their
   warfare, methods which are outside the International
   Geneva Conventions. Especially brutal and treacherous is
   the behaviour of the so-called Commandos, who, as is
   established, are partially recruited even from freed
   criminals in enemy countries. From captured orders it is
   divulged that they are directed not only to shackle
   prisoners, but also to kill defenceless prisoners on the
   spot at the moment in which they believe that the
   latter, as prisoners, represent a burden in the further
   pursuit of their purposes, or could otherwise be a
   hindrance. Finally, orders have been found in which the
   killing of prisoners has been demanded in principle.
   
   2. For this reason it was already announced, in an
   addendum to the Armed Forces report of 7th October,
   1942, that in the future, Germany in the face of these
   sabotage troops of the British and their accomplices,
   will resort to the same procedure, that is, that they
   will be ruthlessly mowed down by the German troops in
   combat, wherever they may appear.
   
   3. I, therefore order:
   
   From now on all enemies on so-called Commando missions
   in Europe or Africa, challenged by German troops, even
   if they are to all appearances soldiers in uniform or
   demolition troops, whether armed or unarmed, in battle
   or in Right, are to be slaughtered to the last man. It
   does not make any difference whether they are landed
   from ships and airplanes for their actions, or whether
   they are dropped by parachute. Even if these
   individuals, when found, should apparently be prepared
   to give themselves up, no pardon is to be granted them
   on principle. In each individual case full information
   is to be sent to the O.K.W. for publication in the
   Report of the Military Forces.
   
   4. If individual members of such Commandos, such as
   agents, saboteurs, etc., fall into the hands of the
   military forces by some other means, through the police
   in occupied territories, for instance, they are to be
   handed over immediately to the S.D. Any imprisonment
   under military guard, in P.W. stockades, for instance,
   etc., is strictly prohibited, even if this is only
   intended for a short time.
   
   This order does not apply to the treatment of any
   soldiers who, in the course of normal hostilities, large-
   scale offensive actions, landing operations and airborne
   operations, are captured in open battle or give
   themselves up. Nor does this order apply to enemy
   soldiers falling into our hands after battles at sea, or
   to enemy soldiers trying to save their lives by
   parachute after air battles.
   
   6. I will hold responsible under Military Law, for
   failing to carry out this order, all commanders and
   officers who either have neglected their duty of
   instructing the troops about this order, or acted
   against this order when it was to be executed."

It is signed, by Adolf Hitler, and the Tribunal will note
that this order was issued by O.K.W. in 12 copies, and the
distribution shown on the second page included

                                                    [Page 3]

the three Supreme Commands, Army, Sea, and Air, and the
principal Field Commands.

Now, the same day Hitler issued a supplementary order, this
is, Document 503-PS, which will be Exhibit USA 542. This was
issued for the purpose of explaining the reasons why the
basic order was issued. In this explanation, Hitler gave a
rather different set of reasons for the issuance of the
order and pointed out that Allied Commando operations had
been extraordinarily successful in the destruction of rear
communications, intimidating labourers and destroying
important war plants in occupied areas. This is the other
basic document, and while I need not read it in full, I
would like to read substantial excerpts, starting with the
first paragraph at the top of the page:

"Added to the decree concerning the destruction of terror
and sabotage troops"  - then in parentheses was a cross
reference to the order which I have just read - a
supplementary order of the Fuehrer is enclosed.

   "This order is intended for commanders only and must
   not, under any circumstances, fall into enemy hands.
   
   The further distribution is to be limited accordingly by
   the receiving bureaux.
   
   The bureaux named in the distribution list are held
   responsible for the return and destruction of all
   distributed copies of this order and copies made
   thereof."

It is signed, "The Chief of the High Command of the Armed
Forces, by order of Jodl."

Thereafter follows a distribution list and then the
supplementary order itself, signed by Hitler. I will start
reading the first two paragraphs of the supplementary order
which appear at the bottom of Page 1 of the translation:

   "I have been compelled to issue strict orders for the
   destruction of enemy sabotage troops and to declare non-
   compliance with these orders severely punishable. I deem
   it necessary to announce to the competent commanding
   officers and commanders the reasons for this decree.
   
   As in no previous war, a method of destruction of
   communications behind the front; intimidation of the
   populace working for Germany; as well as the destruction
   of war-important industrial plants in territories
   occupied by us, has been developed in this war."

I propose to pass to the bottom of Page 2, the last two
paragraphs on Page 2 of the translation:

   "The consequences of these activities are of
   extraordinary weight. I do not know whether each
   commander and officer is cognisant of the fact that the
   destruction of one single electric power plant, for
   instance, can deprive the Luftwaffe of many thousand
   tons of aluminium, thereby eliminating the construction
   of countless aircraft that will be missed in the fight
   at the front, and so contributing to serious damage of
   the homeland as well as to bloody losses of the fighting
   soldiers.
   
   Yet this form of war is completely without danger to the
   adversary, for, since he lands his sabotage troops in
   uniform but at the same time supplies them with civilian
   clothes, they can, according to need, appear as soldiers
   or civilians. While they themselves have orders
   ruthlessly to remove any German soldiers or even natives
   who get in their way, they run no danger of suffering
   really serious losses in their operations, since at the
   worst, if they are caught, they can immediately
   surrender in the belief that they will theoretically
   fall under the provisions of the Geneva Convention.
   There is no doubt, however, that this is a misuse in the
   worst form of the Geneva agreements, especially since
   part of these elements are even criminals, freed from
   prisons, who can rehabilitate themselves through these
   activities.

                                                    [Page 4]
   
   England and America will therefore always be able to
   find volunteers for this kind of warfare, as long as
   they can truthfully assure them that there is no danger
   of loss of life for them. At worst, all they have to do
   is successfully to commit their attacks on people,
   traffic installations, or other installations, and upon
   being encountered by the enemy, to capitulate.
   
   If the German conduct of war is not to suffer grievous
   damage through such methods, it must be made clear to
   the adversary that all sabotage troops will be
   exterminated, without exception, to the last man.
   
   This means that their chance of saving their lives is
   nil. Under no circumstances can it be permitted,
   therefore, that a dynamite, sabotage, or terrorist unit
   simply allows itself to be captured, expecting to be
   treated according to the rules of the Geneva Convention.
   It must, under all circumstances, be ruthlessly
   exterminated.
   
   The report on this subject appearing in the Armed Forces
   communique will briefly and laconically state that a
   sabotage, terror or destruction unit has been
   encountered
   and exterminated to the last man.
   
   I therefore expect the officers commanding armies, as
   well as individual commanders, not only to realise the
   necessity of taking such measures, but to carry out this
   order with all energy. Officers and non-commissioned
   officers who fail through some weakness are to be
   reported without fail or, if the circumstances require,
   it, e.g., if danger is imminent, to be at once made
   strictly accountable. The homeland, as well as the
   fighting soldier at the front, has the right to expect
   that the essentials of nourishment as well as the supply
   of war-important weapons and ammunition remains secure.
   
   These are the reasons for the issuance of this decree.
   
   If it should become necessary, for reasons of
   interrogation, initially to spare one or two men, then
   they are to be shot immediately after such
   interrogation."

Your Lordship, the next is Document C-179 which will be
Exhibit USA 543. As this document shows, ten days later, on
28th October, 1942, and while the defendant Raeder was
Commander-in-Chief of the German Navy, the Naval War Staff
in Berlin transmitted its copy of the basic order of 18th
October to the lower naval commands. The copy distributed by
the Navy and the covering: memorandum from the Naval War
Staff show clearly the secrecy which surrounded the
dissemination of this order, and I read the first sheet of
this. document only, the cover sheet:

   "Enclosed please find a Fuehrer Order regarding
   annihilation of terror and sabotage units. This order
   must not be distributed in writing by flotilla leaders,
   section commanders or officers of this rank. After
   verbal notification to subordinate sections, the above
   officers must hand this order over to the next higher
   section, which is responsible for its withdrawal and
   destruction."

Passing over to Page 3 of this document, at the very end, we
find a similar admonition in the notice for distribution, at
the very end of the document. I read:

   "These instructions are not to be distributed over and
   above the battalions and the corresponding staffs of the
   other services. After notification those copies,
   distributed over and above the regimental and
   corresponding staffs of the other services, must be
   withdrawn and destroyed."

The next document, your Lordship, is C-178, which becomes
Exhibit USA 544. This document is dated 11th February, 1943,
which was twelve days after the defendant Donitz had become
Commander-in-Chief of the German Navy. On that day, this
memorandum was circulated within the Naval War Staff in
order to clear up certain misunderstandings as to the scope
of the basic

                                                    [Page 5]

order of 18th October, 1942. This document, of which I will
read the first four paragraphs, indicates why the earlier
order had been treated as such a secret matter, and also
directs that all naval commanders and officers who failed to
carry out the order, or to instruct their units concerning
the order, would run the risk of serious court martial
penalties. I will read the first four paragraphs only:

   "From the notice given by the Naval War Staff on 1st
   February, 1943, it has been discovered that the
   competent departments of the General Staff of the Army,
   as well as those of the Air Force Operations Staff, have
   a wrong conception regarding the treatment of saboteurs.
   A telephone inquiry at the Naval War Staff proved that
   this naval authority was not correctly informed either."
   
   In view of this situation, reference is made to
   paragraph 6 of the Fuehrer Order of 18th October, 1942 -
   and then a cross-reference - "according to which all
   commanders and officers who have neglected their duty in
   instructing their units about the order referring to
   treatment of saboteurs are threatened with punishment by
   court martial.
   
   The first Fuehrer Order concerning this matter of 18th
   October, 1942, was given the protection of Top Secret
   merely because it stated therein (1) that according to
   the Fuehrer's views, the spreading of military sabotage
   organisations in the East and West may have tremendous
   consequences for our whole conduct of the war and (2)
   that the shooting of uniformed prisoners acting on
   military orders must be carried out even after they have
   surrendered voluntarily and asked for pardon.
   
   On the other hand, the annihilation of sabotage units in
   battle is not at all to be kept secret, but, on the
   contrary, to be currently published in the O.K.W.
   reports. The purpose of these measures - to act as a
   deterrent - will not be achieved if those taking part in
   enemy Commando operations do not learn that certain
   death, and not safe imprisonment awaits them. As the
   saboteurs are to be annihilated immediately unless their
   statements are first needed for military reasons, it is
   necessary that not only all members of the armed forces
   must receive instructions that these types of saboteurs,
   even if they are in uniform, are to be annihilated, but
   also all departments of the Home Staff, dealing with
   this kind of questions, must be informed of the course
   of action which has been ordered."

I will call the Tribunal's attention to the two reasons
given in that quotation for keeping secret from the public,
knowledge of the fact that uniformed prisoners would be
shot, even after they had surrendered and asked for pardon.
This shows a clear awareness that that was in direct
contravention of The Hague and Geneva Conventions.

THE PRESIDENT: Colonel Taylor, did you read the paragraph
beginning, "Practical difficulties ..."?

COLONEL TAYLOR: No, your Honour. I will read that.

THE PRESIDENT: I think you should.

COLONEL TAYLOR:

   "Practical difficulties may develop because of the
   definition of the term 'Sabotage Units.' The
   annihilation and destruction, according to paragraph 5
   of the Fuehrer Order of 18th October, do not apply to
   troops participating in large-scale landing operations
   and large-scale air-borne operations. The criterion is
   to be found in that, in the latter case, an open battle
   takes place, whereas, for instance, ten or more people
   who land by sea or air, or drop by parachute not to
   fight an open battle but to destroy either a factory, a
   bridge or a railway installation, would fall into the
   category of those who must be annihilated."

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