Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-174.04
Last-Modified: 2000/09/15

DR. NELTE, Continued:

                                                  [Page 219]

1. The service regulations issued by the Chief of the OKW
within the scope of the normal preparations for mobilization
and laid down in a series of Army, Navy and Luftwaffe
publications.

2. The stipulation of the Geneva Convention, to which
special reference was made in the service regulations.

3. The general decrees and orders which became necessary
from time to time in the course of events. Apart from the
treatment of Soviet Russian prisoners of war who were
subject to regulations on an entirely different basis, to
which I shall later make particular reference, the
provisions of the service regulations in accordance with
International Law - i.e., the Geneva Convention - held good.
The OKW exercised supervision over the strict observance of
these Army service regulations through an inspector of the
prisoner-of-war department and, from 1943 on, through a
further control agency: The Inspector-General for Prisoners
of War.

The representatives of the Protecting Powers and the
International Red Cross may be considered as constituting an
additional control agency, which no doubt submitted to the
various governments reports on inspections and visits to the
camps, in accordance with the provisions of the Geneva
Convention. No such reports have been submitted here by the
prosecution; I shall come back to the charges made here by
the French Prosecutor. But the fact that the British and
American Prosecutors, for instance, have not submitted such
reports may well admit of the conclusion that the Protecting
Powers did not discover any serious violations with regard
to the treatment of prisoners of war.

This problem, which led to no serious complaints during the
first few years of the war with the western powers - I
except isolated cases like that of Dieppe - became more and
more difficult for the OKW from year to year, because
political and economic considerations gained a very strong
influence in this sector. The Reichsfuehrer SS tried to get
the prisoner-of-war system into his own hands. The resulting
struggles for power caused Hitler to turn over the prisoner-
of-war system to Himmler from October, 1944, on, the alleged
reason being that the Wehrmacht had shown itself to be too
weak and allowed itself to be influenced by doubts based on
International Law.

Another important factor was the influence exerted on
Hitler, and through him on the OKW, by the labour
authorities and the armament sector. This influence grew
stronger as the labour shortage increased.

The Party Chancellery, the German Labour Front and the
Ministry of Propaganda also played a part in this question,
which was in itself purely a military one. The OKW was
engaged in a constant struggle with all these agencies, most
of which had more influence than the OKW.

All these circumstances must be taken into consideration in
order properly to understand and evaluate the responsibility
of the defendant Keitel. As he himself had to carry out the
functions "by order" and since Hitler always kept the
prisoner-of-war problem under his personal control for
reasons previously described, the defendant Keitel was
scarcely ever in a position to voice his own - i.e.,
military - objections against instructions and orders.

The treatment of French prisoners of war.

As a result of the agreement of Montoire, the key word to
express relations with French prisoners of war was
"collaboration". Their treatment moved in the direction
indicated by this; and discussions with Ambassador Scapini
brought about a considerable improvement for them. In this
connection I refer to his affidavit which states, among
other things:

  "It is correct that General Reinecke examined the
  questions at hand objectively and without hostility, and
  that he attempted to regulate them reasonably when this
  depended on his authority alone. He took a different
  attitude when the pressure exercised on the OKW by the
  labour authorities, and sometimes by the Party, made
  itself felt."

The prisoners of war used for labour were lightly guarded.
The prisoners of war employed in the country had almost
complete freedom of movement. By

                                                  [Page 220]

virtue of the direct understanding with the Vichy
Government, there was considerable modification of the rules
of the Geneva Convention, and repatriation in accordance
with the armistice provisions very considerably lessened the
number of the original prisoners of war.

To mention just a few -

THE PRESIDENT: Dr. Nelte, is there anything very important
in these next few pages, until you get to Page 183?

DR. NELTE: It is the treatment of the French -

THE PRESIDENT: If you would only deal with it in a very
general way. I should have thought there was nothing very
important until you get to Page 183 where you begin to deal
with the accusation in reference to the Sagan case. You see,
it is 12 o'clock now.

DR. NELTE: I believe that by 1 o'clock I shall have
finished. Or am I to understand your remark to mean that you
limited my speaking time to a certain time? I asked you to
grant me seven hours for my speech and my request -

THE PRESIDENT: That is what the Tribunal's order was.

DR. NELTE: I submitted my request to the Tribunal, and
believed I could assume that in this particular case my
request was granted, but if that is not the case -

THE PRESIDENT: Well, the Tribunal will give you until 12:30
on account of any interruptions which I may have made. But,
I again suggest to you that there is really nothing between
Pages 178 and 183 which is of any real importance.

DR. NELTE: I hope, Mr. President, that that does not mean
that these statements are to be considered irrelevant. I
think I should be -

THE PRESIDENT: I said "of real importance".

DR. NELTE: Yes. I should not like to omit the case which was
repeatedly mentioned - and rightly so - in the course of the
evidence, the case of the fifty Royal Air Force officers,
the shameful case of Sagan.

It particularly affects us Germans because it shows the
utter lack of all restraint and proportion to be found in
the orders and the character of Hitler, who did not allow
himself to be influenced for an instant in his explosive
decisions by the thought of the honour of the German
Wehrmacht.

The cross-examination of the defendant Keitel by the
representative of the British prosecution has shown how far
he also has been implicated in these abominable deeds.
Although the evidence clearly establishes the fact that
Keitel neither heard nor transmitted Hitler's murderous
order, that he and the Wehrmacht had nothing to do with the
execution of this order and, finally, that he did everything
in his power to prevent the escaped officers from being
handed over to Himmler and did at least succeed in saving
those who had been taken back to the camp, he is painfully
conscious of his guilt in not realising at the time the
terrible blow which such a measure must inflict on German
military prestige throughout the world. In connection with
the treatment of the Sagan case the French prosecution
confronted the defendant Keitel with Document 1650-PS, which
deals with the treatment of escaped prisoners of war.

This, Mr. President, is the so-called "Bullet (Kugel)
Decree". As time is short, I should like to deal briefly
with this case. I must deal with it, because it is one of
the gravest and most significant accusations against my
client, and I shall only summarize.

During his cross-examination, Keitel made the following
statement:

  "This document, 1650-PS, emanates from a police station
  and contains a reference to the OKW in the words: 'the
  OKW has decreed the following'."

Keitel says:

                                                  [Page 221]

  "I have certainly neither signed this order of the OKW
  nor seen it: there is no doubt about that. I cannot
  explain it; I can only conjecture how this order came to
  be issued by the Reich Security Main Office."

In his examination he mentions the various possibilities
whereby such an order could have been issued. Then he refers
to Document 1544-PS, which contains all the orders and
directives concerning prisoners of war, but not this order
referring to the escaped officers and N.C.O.s.

I continue on Page 1 86a:

The witness Westhoff has confirmed that the concept "Stufe
III" and its meaning were unknown to him and to the Prisoner-
of-War Department of the High Command of the Armed Forces.
He also stated that on entering office on 1st April, 1944,
he found no order of this nature - no file note.

The meaning of that Bullet Decree was completely obscure. I
believe this obscurity has been cleared up by the evidence
given by the co-defendant Kaltenbrunner, who on his part had
never before spoken to the defendant Keitel on the matter.

I pass on to Page 187, where Kaltenbrunner said:

  "I had not heard of the Bullet Decree. It was an entirely
  new concept for me. Therefore, I asked what it meant. He
  answered that it was a Fuehrer Order; that was all he
  knew. I was not satisfied with this information, and on
  the same day I sent a teletype message to Himmler asking
  for permission to read a Fuehrer Order known as the
  'Bullet Decree'. A few days later, Muller came to see me
  on Himmler's orders and submitted to me a decree which,
  however, did not originate with Hitler but with Himmler,
  and in which Himmler stated that he was transmitting to
  me a verbal Fuehrer Order."

From this it is safe to assume that without consulting
Keitel and without the latter's knowledge, Hitler must have
given a verbal order to Himmler as stated in Document 1650-
PS which was submitted here.

Now I come to Page 190, to my concluding statement

For the subjective facts of the alleged crimes one element
is of special importance: the knowledge of them. Not only
from the point of view of guilt, but also in view of the
conclusions which the prosecution have drawn from it:
acquiescence, toleration and omission to take any counter-
action. The knowledge comprises:

1. knowledge of the facts;

2. realization of the aim;

3. realization of the methods;

4. conception and possibility of conceiving the
consequences.

During the discussion of the question of how far the
defendant Keitel could possibly have drawn any conclusion as
to the intention of realization by force from knowledge of
the text of the National Socialist Party Programme and from
Hitler's book Mein Kampf, I have already demonstrated why
Keitel did not draw any such conclusion.

Keitel denied any knowledge of the intended wars of
aggression up to the time of the war against Poland and his
statement is confirmed by Admiral Raeder. This comment is
certainly a subjective truth inasmuch as Keitel sincerely
disbelieved in a war with Poland, not to mention
intervention by France and England. This belief, shared by
Keitel and other high-ranking officers, was based on the
fact that the military potential was insufficient according
to past experiences to wage a war with any chance of
victory, especially if it developed into a war on two
fronts. This belief was strengthened by the Non-Aggression
Pact signed on 23rd August, 1939, with the USSR.

However, that is not the core of the problem. The speeches
which Hitler delivered before the generals, beginning with
the conference of 5th November, 1937, at which Keitel was
not present, made it increasingly clear that Hitler was
determined to attain his goal by any means - i.e., if
friendly negotiation did not succeed, he was prepared to
fight or at least to use the Wehrmacht as an agent of
pressure. There is no doubt about that. It is a debatable
point whether the text

                                                  [Page 222]

of Hitler's speeches, of which no official record is
available, is altogether accurately reproduced. There is,
however, no doubt at all that they allow Hitler's intentions
to be clearly recognized.

A decision must be made as to whether it was possible for
his listeners to believe that a definite plan was to be
carried out or whether they would be forced to recognize the
existence of a general aim of aggression. If they did not
recognize this, the only explanation lies in the fact that
the generals on principle did not include the question of
war or peace in their considerations. From their point of
view, this was a political question, which they did not
consider themselves competent to judge, since, as has been
stated here, they were not acquainted with the reasons for
such decisions and, as the defendant Keitel has testified,
the generals had to have confidence in the leadership of the
State to the extent of believing that the latter would only
undertake war for reasons of pressing urgency. That is a
consequence of the traditional principle that the Wehrmacht
is an instrument of the politician, but may not itself take
part in politics - a principle which Hitler adopted in its
full stringency. The Tribunal must decide whether this may
be accepted as an excuse.

Keitel stated on the witness-stand that he recognized the
orders, directives and instructions which had such terrible
consequences, and that he drew them up and signed them,
without allowing himself to be disturbed by any thought of
the consequences which they might entail.

This testimony leaves three questions undecided:

1. The question of the methods used to carry out the orders.

2. The question of the conception of the consequences which
actually followed.

3. And the question of the dolus eventualis.

The defendant Keitel in his affidavit (Document Book 12)
showed with reference to the so-called ideological orders
how the SS Police Organizations influenced the conduct of
the war and how the Wehrmacht was drawn into events. The
evidence has shown that on their own responsibility numerous
Wehrmacht commanders failed to apply such terrible orders or
applied them in a milder form. Keitel, brought up in a
certain military tradition, was unfamiliar with SS methods,
which made the effects of these orders so terrible, and they
were therefore inconceivable to him. According to his
testimony he did not learn of these effects in their full
and terrible extent.

The same is true of the Fuehrer Decree "Nacht and Nebel,"
which I have just discussed. If he did not allow himself to
be disturbed by the "possible" results when he transmitted
the orders, the dolus eventualis cannot be affirmed in
regard to the results which took place. It must be assumed
rather that if he had been able to foresee the horrible
effects, he would, in spite of the ban on resignations, have
made a decision which would have freed him from the pangs of
conscience and would not have drawn him from month to month
farther and farther into the whirlpool of events.

This may be an hypothesis; but there are certain indications
in the evidence which confirm it. The five attempts made by
Keitel to leave his position and the fact that he resolved
to commit suicide, which General Jodl confirmed in his
testimony, enable you to recognize the sincerity of Keitel's
wish.

The fact that he did not succeed must be attributed to the
circumstances which I have already presented: the
unequivocal and, as Keitel says, unconditional duty of the
soldier, true to his military oath, to do his duty
obediently to the bitter end.

This concept is false when it is exaggerated to the extent
of leading to crime. It must be remembered, however, that a
soldier is accustomed to measure with other standards in
war. When all high-ranking officers, including Field-Marshal
Paulus, represent the same point of view, the honesty of
their convictions cannot be denied, although it may not be
understood.

In reply to the questions asked so often during this trial -
why he did not revolt against Hitler or refuse to obey his
orders, the defendant Keitel stated that he did

                                                  [Page 223]

not consider these questions even for a moment. His words
and behaviour show him to be an absolute soldier.

Did he incriminate himself by this conduct? In general
terms: can a general - or is he obliged to - commit high
treason if he realizes that by carrying out an order or
measure he is violating International Law and the laws of
humanity?

The solution of this problem assumes that a reply is made
to the previous question, as to what is the "authority"
which "allows or orders" the criminal high treason. This
question seems to me important because the source of the
authority must be established - the authority which can
allow or order the general to commit high treason; which
can "bind and absolve".

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