Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-173.06
Last-Modified: 2000/09/15

DR. HORN, Continued:

Like all tendencies, all forms of expression of feeling, the
feeling of patriotism and of a soldierly attitude bears in
itself a tendency to become more radical and thereby to
degenerate if external circumstances create an actual basis
for it. We have experienced the exaggeration of sound
national ideas into national Chauvinism and we can observe
retrospectively how the sound soldierly idea was exaggerated
by influences foreign to its nature into the militaristic
form of expression. All these developments are not
desultory, which would make them easily recognizable and
regulated. The driving forces are mostly not apparent to
those whom they concern. They are like a poison which acts
slowly and unnoticed, and the effect of which finds some day
a horrible eruption. It needs no special explanation that
part of the soldierly and military person, who is being
geared to a possible war, is

                                                  [Page 176]
ruggedness, and in its intensification turns into brutality.
One often finds on the part of famous, and not only German,
war leaders, the standpoint that the brutal war is
frequently the kindest if it leads to a quick ending. This,
of course, is desired by every war leader. Once peaceful
restraint is removed by war, all that remains is brutality.
It reveals the causes of total war and the source of the
terrible disaster which resulted from it.

The defence has a difficult task in this trial. The German
people look to Nuremberg, disunited in themselves. Some are
sceptical and partly hostile toward the defence because they
believe that it is favouring those whom they consider as war
criminals arid believe that it wishes to prevent that just
punishment be meted out to the defendants. Others say the
trial is just a show, at, which the defence counsel act as
dummies to give the trial the appearance of a judicial
procedure. Accordingly, in the view of these Germans we
would make ourselves guilty of favouring the enemy.

We have no reason to justify our actions because by our
participation at this trial we are fulfilling a task in line
with the precept of our calling, the importance of which
needs no justification. It consists of co-ordinating our
efforts in the interest of clarifying the truth - the
importance and effects of which are today incalculable for
our German people - of getting to the bottom of the causes,
and of answering the question as to how all this could have
happened.

Only the clear recognition of the cause, the forces and the
people which brought on the disaster which has come over
this world will create the possibility for the future of our
people to find the way again to the rest of the world.

The task of this Tribunal is not to search for the
political, economic, and metaphysical reasons for this
Second World War and not even to examine the flow of events
in its entirety, but rather only to determine whether and
what part these defendants played in that which the victor
nations made the object of these proceedings.

The task of the defence, within the framework of their co-
operation in finding the truth, consists of examining which
factual and legal points could be stated in favour of the
defendants. It should be said here that with all the co-
operation on the part of the Tribunal shown the defence in
producing their evidence, the actual possibility of
producing defence material for the defendant was limited.
Justice Jackson said in his basic prosecuting speech -

THE PRESIDENT: You seem to be coming back to further attacks
upon the way in which this case has been tried and that is
not what you are here to do now. What you are here to do now
is to present the case on behalf of the defendant Keitel.

I see that farther on here you go on to complain about
alleged non-communication to you of various documents and
you refer to a discussion on the subject which took place as
long ago as February, 1946. On that occasion I expressed the
view on behalf of the Tribunal that the French prosecution
might properly show to you or give you the opportunity to
look at their documents. From that day to this that is to
say from February until July, you have made no application
to the Tribunal or made any complaint to the Tribunal that
that has not been done and now, in your final speech, you
make this complaint that you have not been allowed to see
the documents in spite of the fact that in February I
expressed, on behalf of the Tribunal, the opinion that you
might see such documents.

Well, it seems to me that it is a waste of time, a waste of
our time now to make these complaints after all these
months, apart from the fact that you have already spent time
which has been involved in reading eleven pages of your
speech without coming to anything which really affects the
defendant Keitel.

DR. NELTE: Mr. President, I believe that in February you
told the prosecution, according to the record, that they
should place these documents at my disposal.

The prosecution, unfortunately, have not placed these
documents at my disposal.

                                                  [Page 177]

THE PRESIDENT: Why did you not come back to the Tribunal?
You knew perfectly well that I had expressed my opinion on
behalf of the Tribunal, and if there was anything to
complain about, you had full access to the Tribunal from
February until today. It seems to me that it is frivolous to
complain now.

DR. NELTE: I hope, Mr. President, that nevertheless the
facts which I am putting to you in my manuscript will be
considered by the Tribunal. You will notice that I shall
refer to this matter at a later stage. On 1st February the
session took place during which this affair came up, and on
11th February I went to the French delegation.

THE PRESIDENT: That is what I have stated, Dr. Nelte. I have
already pointed that out to you.

DR. NELTE: And the French prosecution did not give it to me.

THE PRESIDENT: Why did you not come back to the Tribunal if
you had any complaint to make? I have said - and I repeat -
that I think to make a complaint now, after not having made
it for all these months, is a frivolous complaint and an
attempt to create prejudice, and I should be glad of your
explanation.

DR. NELTE: Mr. President, it is merely an attempt to show
you that I did not wish to raise a complaint about the
prosecution, recognising as I did that the prosecution did
not want to help me. I have never been inclined to raise
complaints about higher authorities, and I did not want to
do it in this case either.

THE PRESIDENT: Dr. Nelte, I think that is a most unfair and
a most improper thing for a responsible counsel to say. I
think the mention of such a complaint is, as I have said,
simply an effort on your part to create prejudice against
the French prosecution and against the fair conduct of this
trial.

DR. NELTE: Mr. President, in my view it was merely meant to
show how difficult it was for us to find material in favour
of our clients.

THE PRESIDENT: Well, perhaps you will try to get on to
something that is really material for the Tribunal to
consider.

DR. NELTE: May I ask you to turn to Page 15 where, under
figure 3, I am dealing with the documents.

The document governs the hearing of evidence before this
Tribunal. Against that the witnesses remain in the
background. The more important is the examination of these
documents to ascertain the possibility of their utilization
and their probative value.

The prosecution has submitted as evidence, to a large
extent, official reports which are admitted according to
Article 21 of the Charter. I intended to show with respect
to a number of these documents the conditional value of such
reports as evidence. But I shall limit myself to a few
fundamental arguments in this connection trusting that you,
your Honour, in examining this kind of evidence will take my
statements into consideration.

These numerous official reports submitted contain factual
statements which to a great extent are based on witnesses'
testimony. These testimonies are not always related in the
form of protocols but as summarising reports. I do not want
to dispute that these testimonies of witnesses are made as
deposed in the reports. However, I will not do injustice to
any of the witnesses who are not known to the Tribunal and
whose testimony is hard to verify for lack of a personal
impression, when I say that it concerns mostly very
subjective attestations. There are a number of documents in
which this is clearly recognizable, and in fact stated, and
even documents in which hatred finds its clear expression. I
can understand the hatred of these hard-hit people. The
suffering they had to endure was so great that one cannot
expect objectivity of them. I may, however, say too that
such personal feelings are not conducive to rendering the
testimony of these

                                                  [Page 178]

sorely afflicted ones a suitable basis for finding the real
truth. I am thinking of the form of oath so often heard here
on the part of the witnesses:

  "Swear that you will tell without hated or fear ..."

And these official reports often contain not only factual
statements, but final conclusions and judgements. In so far,
the probative value of these official reports cannot be
recognized. In part these judgements go so far that outside
the sphere of those directly involved they level reproaches
against authorities, e.g., the OKW, and Keitel, without it
being possible to recognize from the document itself on what
the conclusion drawn rests. As long as it is a question of
the indictment of an individual like the defendant Keitel, a
document used in evidence must give a proof which yields
concrete facts for responsibility or which at least reveals
causal connection. Above all, it cannot suffice, in order to
consider Keitel's responsibility, if in such reports crimes
committed by soldiers and officers of the Army or of the
armed forces are alleged, and we derive responsibility on
the part of the defendant Keitel from this fact alone,
because he was the chief of staff of the OKW.

It must be added that in these reports military agencies
have often been erroneously named and confused, for example,
when the defendant Keitel is spoken of as the "High
Commander of the Wehrmacht", which is called "OKW" (High
Command of the Armed Forces), instead of "OKH" (High Command
of the Army). It is not always possible to decide to what
extent it is a question of an erroneous conception on the
part of the prosecution or whether it comes from a
translation which is not in accordance with the meaning. In
order to examine the responsibility of the defendant Keitel,
I wish to make clear to the Tribunal, in a manner which
excludes any doubt, what the channels of command and
competence were, and to this end I have submitted two
affidavits:

  (a) "The channels of command in the east" (Document Book
  II K10).
  
  (b) "The development of the situation in France, 1940-
  1945, and the military authorities" (Document Book II
  K13)

The latter affidavit has also been signed by the co-
defendant Jodl.

I refer to these affidavits and make them the contents of my
argument without reading from them.

I shall omit the following paragraph and come to the
indictment against FieldMarshal Keitel. I shall shorten the
reading of Pages 19 to 21.

The reading of the general Indictment and the special
Indictment in the trial briefs can be omitted here since,
with the exception of the Jewish problem and the persecution
of the Church, there is no part of the Indictment which the
prosecution has not raised against the defendant Keitel.

I merely wish to point out that the original general
Indictment holds Keitel responsible only for the period
after 1938 and that secondly, as the first point of the
Indictment, Keitel is described as Chief of the Supreme
Command of the Wehrmacht. According to the evidence
submitted by the prosecution, Keitel was also held
responsible for the period after 1933 although the American,
British and French prosecutions seem to have dropped the
allegation that Keitel was Chief of the Supreme Command of
the Wehrmacht. The Indictment of FieldMarshal Keitel is
split, therefore, between the periods 1933 to 1938, i.e.,
4th February, 1938, and from 4th, February, 1938 until the
end.

I shall now continue on Page 21, the last paragraph.

The defendant is not only indicted as a member of the
conspiracy but is also accused of personally participating
in all the crimes mentioned in the Indictment. The name of
no other defendant has been mentioned so often by the
prosecution as that of the defendant Keitel. Again and again
we hear the words "Keitel order", "Keitel decree" and just
as often "order of the OKW", "directives of the OKW" along
with Keitel's name as "chief, OKW" after 4th February, 1938.

From this is derived the very substance of the Indictment,
namely, the position the defendant Keitel occupied after 4th
February, 1938. But from it is also derived the scope of the
justification. Here, it is not a question of examining to

                                                  [Page 179]

what extent the defendant participated in the individual
facts of the case, which in the long run arose from the so-
called "Keitel orders" or "OKW instructions", but what
matters is the position he occupied; whether he took part
and what part he took in the planning and execution of those
orders and instructions, and finally and most important of
all, whether his part in it was causal and culpable in the
sense of the law which is to be applied here.

It seems of consequence to stress, from the outset, several
points of view, which are important for the treatment of the
case and for its judgement.

THE PRESIDENT: Would that be a convenient time to break off?

(A recess was taken until 1400 hours.)

DR. NELTE (for the defendant Keitel): The defendant has
declared that he admits the objective, i.e., factual
contents of the general Indictment to be proved (that is to
say not every individual case), taking into consideration
the law of procedure governing this trial. It would
therefore be senseless, despite the possibility, to refute
various documents or individual facts, to attempt to shake
the Indictment as a whole. I shall confine myself mainly to
the questions concerning the subjective facts and the
conspiracy and I will deal only with those individual points
which require discussion because of their special importance
concerning the personal participation of the defendant
Keitel.

The defendant Keitel fully realised that the attitude taken
up by him throughout his trial would lay him open to the
suspicion that he is fighting here for his life.

But the defendant has already made it quite clear in his
argument that he is not fighting to save his head but
fighting to save his face.

The defendant belongs to those men who came into the public
eye through Adolf Hitler's death. From 1938 onwards he was
in his closest circle and was his almost constant companion.
It is clear to him what that means for this trial. It has
often been alleged by the prosecution that by referring to
the dead the defendants desired to shift their own
responsibility upon them. If it is the purpose of this trial
to obtain the most faithful picture possible of events and
connections, it is not fair to start with discrediting any
mention of those dead, who, as the prosecution knows also,
are the major culprits. This is especially true of the
defendant Keitel whose position, influence, and actions
cannot possibly be correctly judged without throwing a light
upon the person of Adolf Hitler and upon his relationship
with Keitel.

As can already be seen from Mr. Justice Jackson's speech of
indictment, we are dealing here with an indictment against
the National-Socialist system. Actually, the Indictment is a
global indictment against this system, split into twenty-one
individual indictments. The individual defendants are, to a
certain extent, mere symbolic figures of the spheres of
authority of the State which was ruled by this system:
namely, the Party, Government and Wehrmacht. If I understand
Mr. Justice Jackson correctly, he goes even farther in
saying:

  "Above all personalities there are anonymous and
  impersonal forces whose conflict makes up much of human
  history .... What are the forces that are contending
  before you?"

This statement raises a problem which, gentlemen of the
Tribunal, cannot be left unmentioned at this trial, a
problem which M. de Menthon also pointed out: The importance
and influence of those forces which shape fate. Fate and
guilt are not two factors which exclude each other from
their respective spheres; they are factors which overlap so
that there are spheres of life and spheres of effect in
which the two forces work which make the world move. One can
only hint briefly here as to what forces are at work which
shape fate, i.e., what forces cannot be considered as
originating in the conscious will of the individual
defendants: The sense of national unity, historic events,
opinions which are rooted in tradition and environment.
Therefore, I will have to go into this background in-so-far

                                                  [Page 180]

as it is relevant to the defendant Keitel as an individual
and a typical representative of one of the groups under
indictment, because by this means only will you be given the
possibility of obtaining a correct picture of the part which
the defendant Keitel had in what happened.

I also want to state that everything I am going to say is
said with the full agreement of the defendant Keitel; and in
so far as aspects and facts are stated which might exonerate
the defendant Keitel, they should be taken as a contribution
towards the clarification of what happened, and as an answer
to the question of how things could reach that point. He
does not wish to have his position or the part which he
played in this drama minimised, but he would like to
prevent, at the same time, a distortion of the picture of
his character. The defendant has already stated on the
witness stand that he was grateful for the opportunity this
trial afforded him to give an account to the world public
and the German people of what he did and why he did it. He
wishes to help to ascertain the historical truth of what
happened.

I consider it my duty to make known this opinion of the
defendant Keitel, because such an attitude, based on such
reasons, made it considerably easier for me to conduct his
defence. It was, and is, clear to the defendant Keitel that:

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