Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-174.01
Last-Modified: 2000/09/15

                                                  [Page 206]

HUNDRED AND SEVENTY-FOURTH DAY

TUESDAY, 9th JULY, 1946

THE MARSHAL: May it please the Tribunal, the defendants Hess
and Fritsche are absent.

THE PRESIDENT: I have an order to read. The Tribunal orders:

1. Applications for witnesses for organizations to be heard
by the Tribunal in open court in accordance with paragraph
five of the Tribunal's order of March 13th, 1946, should be
made to the General Secretary as soon as possible, and in
any case not later than the 20th of July.

2. The Tribunal believes that so much evidence has already
been taken and so wide a field has been covered that only a
very few witnesses need be called for each organization.

That is all.

DR. NELTE (counsel for the defendant Keitel): Mr. President,
gentlemen ,of the Tribunal, yesterday I dealt with the
problem of Keitel and the Russian campaign. Now I recall to
you what Keitel said in the witness-box concerning the so-
called ideological orders:

  "I knew their content. In spite of my personal misgivings
  I passed them on without letting myself be deterred by
  the possibility of serious consequences."

I wanted to point that out in order to make what I have to
say now more comprehensible. (Page 112, the fourth
paragraph). In the course of time there grew and spread
throughout the army the opinion that Field-Marshal Keitel
was a "yes-man," a tool of Hitler, and that he was betraying
the interests of the Wehrmacht. These generals did not see
nor were they interested in the fact that this man was
fighting a constant battle day after day, on every possible
kind of problem, with Hitler and the forces which were
influencing him on all sides.

This picture which has been drawn here in detail and which
definitely did not apply to Keitel, especially not in the
sphere of strategic operations, planning and execution,
became a distorted picture the effect of which was felt up
to and in this trial; perhaps not without the fault of the
defendant Keitel himself. As to the justification of his
conception of duty there can in principle be no argument. It
has been confirmed here by the witness Admiral Schulte-
Monting to be true also in the case of the defendant Admiral
Raeder There can be no doubt that the rest of the admirals
and generals were (in principle) of the same point of view,
that it was impossible in military spheres to criticise
before subordinates the decision of a superior as expressed
in an order, even if one had misgivings about that order.

One may object that every principle, every basic rule must
be interpreted and applied in a reasonable way, that every
exaggerated form of a good principle means its devaluation.
In the case of Keitel this objection affects the problem of
his responsibility and guilt.

Does the non-recognition of the point at which a principle,
correct in itself, is being carried to excess and so
endangering what it has been established to protect
constitute guilt?

In the case of Keitel we must consider this crucial question
from the point of view of a soldier. The thoughts and ideas
which the defendant Keitel had in this connection were the
following:

                                                  [Page 207]

It is incontestable that the principle of obedience is
necessary for every army; one may say that obedience - in
civilian life only a virtue, and therefore perhaps less
strictly applied - must be the essential element of a
soldier's character, because without this principle of
obedience the aim which is to be accomplished by the army
could not be achieved.

This aim, the security of the country, the protection of the
people, the maintenance of the most precious national
possessions - is so sacred that the importance of the
principle of obedience cannot be valued highly enough. Hence
the duty of those called upon to preserve that national
institution, the Wehrmacht, in the light of its higher task,
is to emphasize the importance of obedience. But what the
general demands of the soldier, because it is indispensable,
must hold good for himself too. The same applies to the
principle of obedience.

It would be dangerous to weaken an order or even an
essential principle by, from the beginning, mentioning
exaggerations and taking them into consideration. That would
leave the principle of decision to the judgement of the
individual. There might be cases where the decision depends
or must be made dependent on actual circumstances. In
theory, that would lead to a devaluation or even an
abrogation of the principle. In order to prevent this danger
and to eliminate any doubt as to its absolute importance,
the principle of obedience has been changed in military life
into one of "absolute obedience" and embodied in the oath of
allegiance. This, too, is valid for the general as well as
for the common soldier.

The defendant Keitel not only grew up in this school of
thought, but during the thirty-seven years of his military
service, up to 1938, including the First World War, he had
become convinced that this principle of obedience was the
strongest pillar upon which the Wehrmacht, and thereby the
security of the country, rests.

Deeply imbued with the importance of his profession, he had
served the Kaiser, Ebert, and von Hindenburg in accordance
with this principle.

They, as the representatives of the State, had to a certain
extent an impersonal and symbolic effect on Keitel, and
Hitler, from 1934, at first appeared in the same light to
him, i.e., merely as representing the State, without any
personal touch, in spite of the fact that his name was
mentioned in the oath of allegiance. Then in 1938 Keitel as
Chief of the OKW came into the immediate circle and the
personal sphere of Hitler. It seems to me important for
further explanation, and for judgement on Keitel, to bear in
mind that he, due to his soldierly conception of duty, which
was specially developed in him, and to the pronounced
feeling of soldierly obedience, was now exposed to the
direct effects of Hitler's personality.

I am inclined to assume that Hitler had clearly realised, in
the preliminary discussions with Keitel which led to the
Fuehrer order of 4th February, 1938, that Keitel was the
type of person he had included in his calculations

A man upon whom he could rely at any time as a devoted and
faithful soldier; whose bearing fitted him to be a worthy
representative for the Wehrmacht in his sphere; who by
virtue of his good judgement was an extraordinarily able
organiser (according to the report of Field-Marshal von
Blomberg).

Keitel himself has admitted that he sincerely admired Hitler
and that the latter subsequently attained a strong influence
over him and brought him completely under his spell.

This must be borne in mind if we wish to understand how
Keitel could have made out and transmitted orders from
Hitler which were irreconcilable with the traditional
conceptions of a German officer, such as, for instance, the
orders referred to in Documents C-50, PS-447, etc.,
submitted by the Soviet prosecution.

By exploiting the willingness to fight for Germany which
might be taken for granted on the part of every German
general, Hitler was able to camouflage his party-political
aims with the pretext of defending the national interests
and to present the impending struggle with the Soviet Union
as a dispute which must inevitably be settled - even as a
war of defence, the necessity for which was made

                                                  [Page 208]

clear by definite information which had been received and on
which depended the existence of Germany.

In this way Hitler approached the fateful decision. General
Jodl has testified here to the fact that, as an officer of
long standing, Keitel's conscience pricked him nevertheless;
and that he repeatedly but unsuccessfully raised objections,
and suggested alternatives to the orders drafted.

During his cross-examination by the representative of the
American prosecution, the defendant Keitel has openly
declared that he was aware of the illegal nature of these
orders but that he had believed that he could not refuse to
obey the orders of the Supreme Commander of the Army and
Head of the State, whose final pronouncement in the case of
all objections was:

  "I do not know why you are worrying; after all, it is not
  your responsibility. I myself am solely responsible to
  the German people."

This is a reasoned analysis of Keitel's attitude towards the
so-called ideologically based orders of Hitler.

Keitel's last hope, which in many cases proved to be
justified, was that the commanders-in-chief and subordinate
commanders of the Wehrmacht would, at their discretion and
within the scope of their responsibility, either fail
altogether to apply these harsh, inhuman orders, or would
apply them only to a limited degree. In view of his
position, Keitel had only the choice between refusal to
carry out the orders or a refusal to transmit them, in
either case an act of military disobedience. I shall
investigate in another connection the question of what
alternative action might have been open to him. The question
here is to show how Keitel came to transmit orders which
indisputably violated the laws of warfare and humanity and
why, by reason of his duty to obey, his sworn loyalty to the
Supreme Commander and the fact that he saw in the order of
the Head of the State the absolution of his own
responsibility, he failed to recognize the point at which
even the soldier's strict duty of obedience must end.

Every soldier who has appeared here as a defendant or as a
witness has mentioned the duty of allegiance. All of them,
when they sooner or later realised that Hitler had drawn
them and the Wehrmacht into his egotistic gamble for the
highest stakes, considered their oath of allegiance as
rendered to their country and believed that they must
continue to do their duty in circumstances which to us and
even to themselves, when they realised the extent of
resulting disaster, appeared inconceivable. Not only
soldiers such as Raeder, Donitz, and Jodl, but Paulus as
well kept their positions and remained at their posts, and
we have heard the same from other defendants. The statements
of the defendants Speer and Jodl in this connection were
deeply moving.

The question as to whether these facts relieve the defendant
Keitel of penal responsibility requires investigation.
Keitel does not deny that he bears a heavy moral
responsibility. He realizes that no one who played even the
smallest part in this terrible drama can feel himself free
from moral guilt in which he was entangled.

If I nevertheless emphasize the legal point of view, I am
doing so because justice Jackson in his speech on behalf of
the prosecution expressly referred to the law as being the
basis of your verdict, to International Law, the law of
individual States, and the law which the victorious powers
have embodied in the Statute.

I take it that the defendant Keitel has recognized that some
of Hitler's orders violated International Law. The Statute
says that a soldier cannot clear himself by referring to
orders given by his superiors or by his government. At the
beginning of my argument I asked you to consider whether,
independently of the terms of the Statute, the principle is
unimpeachable that the standard determining right or wrong
depends on the national concept only.

THE PRESIDENT: Dr. Nelte, I see that in the next few pages
you pass into the realm of metaphysics. Do not you think
that part you might leave for the Tribunal to read?

                                                  [Page 209]

You must remember that you began your speech yesterday
before the morning adjournment and you have got over seventy
pages left of your speech to read.

DR. NELTE: I have limited it and I shall be through by noon.

THE PRESIDENT: Very well. Do you think it is necessary to
read these passages about metaphysics?

DR. NELTE: I want to show in these pages that they are not
metaphysical forces, and that the individual is not in a
position to free himself through metaphysical forces. I
shall - well, I think I shall continue on Page 121,
immediately following my reference to Hitler's character.

Perhaps I may just read from Page 120 at the bottom.

THE PRESIDENT: Very well, if you tell the Tribunal that you
have limited your presentation. I think you began yesterday
at a quarter past twelve. Go on then. Take your own course,
but do your best to limit it, and go to Page 120 now.

DR. NELTE: I am coming to paragraph three on Page 120.

Hitler was the exponent of an idea. He was the
representative not only of a party political programme, but
also of a philosophy which divided him and the German people
from the ideology of the rest of the world. As a convinced
enemy of parliamentary democracy, and obsessed by the
conviction that this was the true ideology, he was devoid of
tolerance and the spirit of compromise. This produced an
egotistic ideology which recognized as right only his own
ideas and his own decisions. It led to the "Fuehrerprinzip",
in which he was enthroned on a lonely height as the
incarnation of this faith, blind and deaf to all misgivings
and objections, suspicious of all those who he thought might
constitute a threat to his power, and brutal to everything
that crossed his ideological path.

The outline of his character, which has been verified by the
evidence, is incompatible with the prosecution's assumption
that a partnership of interests might have existed between
Hitler and the defendant. There was no partnership of
interests and no common planning between Hitler and the men
who were supposed to be his advisers. The hierarchy of the
Fuehrerprinzip, in connection with the Fuehrer Order No. 1,
can only admit of the conclusion that the so-called co-
workers were merely mouthpieces or tools of an overwhelming
will, and not men who translated their own will into deeds.
The only question, therefore, which can be raised is whether
these men were guilty in putting themselves at the disposal
of such a system and in submitting to the will of a man like
Hitler.

This problem needs special examination in the case of
soldiers because this submission to the will of some person,
which has nothing in common with the existence of a free
man, is for the soldier the basic element of his profession
and of the duties of obedience and allegiance which exist
for him in all political systems.

The legal problem of conspiracy in the sense of the
Indictment has been dealt with by my colleagues Dr. Stahmer
and Dr. Horn. In the specific case of the defendant Keitel I
should merely like to refer to two sentences of the speech
as the starting-point of my statements:

  1. "It is not sufficient that the plan is common to them
  all; they must know that it is, and each one of them must
  voluntarily accept the plan as his own.
  
  2. That is why a conspiracy with a dictator at the head
  is a contradiction in itself. The dictator does not enter
  into a conspiracy with his followers; he concludes no
  agreement with them; he dictates."

Dr. Stahmer has pointed out that no one therefore, acting
under or because of pressure, can be a conspirator. I should
like to modify this as regards the circle to which the
defendant Keitel belonged. To say that the defendants
belonging to the military branch acted because of or under
pressure, does not accurately represent the real
circumstances. It is correct to say that soldiers do not act
voluntarily, i.e., of their own free will. They must do what
they are ordered,

                                                  [Page 210]

whether or not they approve of it. Accordingly, when
soldiers engage in action, their free will is eliminated,
or, at least, not taken into consideration; it will be
eliminated in every case because of the nature of the
military profession, and in case of the application of the
Fuehrerprinzip it cannot appear as a determining factor in
the origination and execution of orders in the Wehrmacht. In
this military sphere, therefore, we are not dealing with an
abstract and therefore theoretical deduction, but with a
conclusion which is bound to result from the nature and
practice of the military profession, when we say:

  "The function of the defendant Keitel was based on
  military orders. The activity of the defendant Keitel
  with regard to the origination of orders, decrees and
  other measures by Hitler, even in so far as they are
  criminal, cannot therefore be considered as that of a
  partnership, i.e., as the result of a common plan or
  conspiracy."

Keitel's activity in regard to the execution of orders
consisted in the due transmission of orders in the
Operations Sector and in the due execution of orders
concerning the administration of the war, i.e., the so-
called "Ministerial Sector".

No matter how this activity in itself could be qualified in
terms of the penal code, the prosecution has, I think,
submitted so far nothing which could refute this
consideration as to a conspiracy.

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