Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-212.10
Last-Modified: 2001/01/21

Thus, the military leaders achieved the result that the
Commissar Order was not generally executed within the army
groups and the armies. Ultimately, it was rescinded upon the
energetic representations of the Chief of the General Staff,
Zeitzler.

THE PRESIDENT: Is there any evidence in writing of that
rescinding?

DR. LATERNSER: Yes, Mr. President. That part of the evidence
is contained in the affidavits which I have presented, and
the last paragraph I read can be proved by Document 301-B.

THE PRESIDENT: You mean that there was, in writing, an order
by Chief of General Staff Zeitzler rescinding the order?

DR. LATERNSER: I think I have been misunderstood, Mr.
President. According to the last paragraph which I have just
read, the Chief of the General Staff, Zeitzler, as a result
of his counter-reports, was successful in persuading Hitler
to rescind the order. This is proved by Document 301-B which
I have presented to the High Tribunal and which is available
in a translation.

What more can be expected of the military leaders? The order
did not emanate from them, they did not pass it on, they did
not execute it, they endeavoured to have it rescinded, and
finally reached their objective. Herein lies their
solidarity

                                                  [Page 179]

and their unanimity, and the handling of the Commissar Order
is itself evidence of the most conclusive kind that the
generals' attitude was beyond reproach.

In the same way, the directive concerning the restrictions
of the administration of military justice in the East met
with the opposition of the Commanders-in-Chief who were
present when it was orally announced. It is due to the
generals' negative attitude that Hitler gave up his original
plan, which provided for a complete elimination of the
administration of military justice in the East, and limited
himself to certain restrictions.

In this connection, too, the additional directives issued by
the Commander-in-Chief of the Army concerning the
maintenance of discipline are of the greatest significance.
The Commanders-in-Chief of the army groups and of the armies
acted as a group in accordance with the provisions of this
additional order, and took vigorous measures in all cases
where members of the armed forces had committed offences
against the civilian population. In serious cases, they had
death sentences passed and executed. Even simple road
accidents, in which Russian civilians were injured, were
brought before military tribunals, and the persons
responsible were called to account. This is proved by, among
other things, the evidence given by Field-Marshal von Leeb.
Here again, therefore, the officers included in the
Indictment took steps to prevent the full execution of one
of Hitler's orders, which was in contradiction to their own
principles.

The attitude which the military leaders adopted with regard
to Hitler's Commando Order was so unfavourable from the very
outset, that Hitler was not only compelled to draw up this
order personally, but he also found it necessary to threaten
exceptionally severe punishment if his order were not
executed.

And yet the Commander-in-Chief in Africa, Field-Marshal
Rommel, destroyed the order immediately on receipt because
of his opposition to it.

The Commander-in-Chief West, Field Marshal von Runstedt,
took steps to see to it that the order was not carried out,
but evaded. The Commander-in-Chief South-West, Field Marshal
Kesselring, issued additional regulations, which safeguarded
the treatment of Commando troops as prisoners of war. As
regards the Eastern theatre of war, the order was without
significance anyway.

These examples clearly show that here again the military
leaders found ways and means to prevent the execution of the
Commando Order which was in contradiction to their soldierly
conceptions.

The individual cases mentioned by the prosecution must be
left out of account in this connection, as they are
concerned with individual acts, which have already been the
subject of special investigations or will be investigated
later. But they do not in any way reflect the typical
attitude adopted by the military leaders, which alone is
relevant in this trial.

It seems to me that here the following questions are also of
importance: Could the military leaders not rely on the facts
contained in this order being true? Were they not bound to
assume that the order had been examined in its relations
with International Law, before it was issued? Is this order
at all inadmissible under International Law? Does it still
come under admitted reprisals?

That will be a matter for the Tribunal to decide, if it
attributes some importance to this order of Hitler in the
case of the persons whom I represent.

As regards the treatment of prisoners of war, we have only
to examine whether the Commanders-in-Chief, in execution of
a common plan, ordered or criminally tolerated any kind of
maltreatment of prisoners of war in the areas of operations.

If, during the first period of the Russian campaign, the
Russian prisoners of war could not be accommodated and fed
in accordance with the provisions of the Geneva convention,
this is entirely due to the fact that certain difficulties
were, at first, unavoidable when hundreds of thousands were
taken prisoner. When, after the end of the war, even the
Allies were faced with similar difficulties, when all of a
sudden great masses of Germans were taken prisoners, the
Allies will certainly not now be willing to allow themselves
to be accused of Crimes Against Humanity.

                                                  [Page 180]

Moreover, the individual cases put forward by the
prosecution have been invalidated or refuted by counter-
evidence from all theatres of war. The military leaders in
all theatres of war forestalled possible excesses against
prisoners of war by issuing appropriate orders and calling
to account the persons responsible for offences connected
with the treatment of prisoners of war. They neither ordered
nor knowingly tolerated any maltreatment or killing of
prisoners of war.

I shall now omit the remaining part of that page and the
following page, and I continue at the end of Page 70.

The most serious accusation lies, no doubt, in the assertion
of the prosecution that the Commanders-in-Chief had full
knowledge of the tasks and the activities of the special
purpose groups (Einsatzgruppen), which were allegedly under
their command, and that they not only tolerated, but even
actively supported the execution of the tasks of these
groups. In this, the prosecution relies on statements given
by the Higher SS leaders Ohlendorf, Schellenberg and Rode as
well as on Document L-180.

Is this not highly doubtful evidence? Can this evidence
really convey to the Tribunal the conviction that the
generals of the German armed forces offered their assistance
in these most abominable mass exterminations? My answer is
in the negative, and I give it with the fullest conviction.
The evidence given by the witness Ohlendorf, under whose
command thousands of Jews were murdered, has been refuted by
General Woehler's evidence in all its essential points.
Schellenberg, who occupied one of the most influential
positions in the most notorious agency of Germany - the
Reich Security Main Office (RSHA) - and was one of Himmler's
friends, cannot supply any real facts, but gives us only
assumptions. He thinks he can assume that General Wagner was
fully informed by Heydrich in June, 1941, of the planned
mass exterminations. When did this witness arrive at this
incriminating assumption? Towards the end of 1945, when he
was taken into custody, and when he was looking to his own
advantage. Under my cross-examination, he is unable to
indicate any facts from the year 1941 on which such an
assumption might be based, but he nevertheless made it, and
for the first time, in 1945.

Could General Wagner, a highly qualified officer, who gave
his life in the course of the 20th July, 1944, fighting
against National Socialism, have omitted reporting this
atrocious information to his direct superior, Field Marshal
von Brauchitsch, with whom he had particularly close
relations for a great number of years, and to whom he had
access at any time in his capacity of Quartermaster General?

This assumption is impossible - and Field-Marshal von
Brauchitsch also confirmed this on the witness stand.

Schellenberg, furthermore, believes that he can assume that
the 1c officers were informed about the functions of the
special purpose groups (Einsatzgruppen) in connection with
mass exterminations, at a meeting held in June, 1941. He is
not satisfied with this assumption only, but he further
assumes that these 1c officers informed the Commanders-in-
Chief. This means that two of Schellenberg's assumptions,
linked together, are to furnish the proof that the
Commanders-in-Chief had knowledge of these planned mass
exterminations.

And how did Schellenberg react in cross-examination to the
assumptions made by him?

I submitted to him a sworn statement by a man who was
present at the Ic meeting, in which General Kleikamp
expressly declared that there had been no mention of planned
mass extermination, and which must cause Schellenberg'
structure of lies to crumble.

His reply was that it was not for him to decide upon the
value of the two oaths. He thereby places his assumption to
the contrary, which is not founded on facts, on the same
level as the positive statement made by one of those present
at the meeting, according to which no information had been
given on the planned mass exterminations.

                                                  [Page 181]

So much as regards Schellenberg's evidence. I ask the
Tribunal to take full cognizance of the minutes of the cross-
examination of this witness before the Commission.

The witness Rode, who is likewise a high-ranking SS leader,
also wished to make a charge. He asserted that the special
purpose groups (Einsatzgruppen) were placed fully under the
authority of the Commanders-in-Chief, but he restricts this
statement by adding "to the best of my knowledge." This
strips the evidence of the witness of all its value for the
prosecution.

I now turn to Document L-180, according to which the
Commander-in-Chief of the Armoured Group 4, General
Hoeppner, allegedly entertained a particularly close co-
operation with the special purpose groups.

Is not the use of such a report highly dangerous to the
finding of the truth, particularly since it only contains
the views of its author? Then too, it does not contain any
indication as to the nature of this co-operation, or in what
it consisted. The special purpose groups and commandos,
however, also had to carry out supervisory and investigating
functions, as has been proved, and only these were known to
the Commanders-in-Chief. If there were any co-operation at
all, it could never have been in connection with mass
executions of Jews.

General Hoeppner, who also lost his life as a victim of the
20th July, 1944, would have been the very last man to lend
his assistance to mass murder. Is it really believable that
a general who wants to remove a system of government, even
at the cost of his life, because of his special objection to
its methods, should previously have taken part in the mass
murders committed by this very system?

To my profound regret, I am unable to call Generals Wagner
and Hoeppner as witnesses; both of them had not conspired
with this system, but against it, and both sacrificed their
lives thereby. It is rather peculiar to note that the
prosecution, easily turns ironical whenever the defendants
invoke the dead, endeavours to prove that the military
leaders had knowledge of planned mass exterminations and
participated in them; and the dead, unfortunately, are
unable to protest or resist.

In contrast to these inconclusive proofs advanced by the
prosecution I have shown by numerous affidavits that:

  1. the special purpose groups (Einsatzgruppen) were not
  placed under the authority of the military leaders, which
  is also shown with special clarity by the prosecution's
  Document 447-PS.
  
  2. General Wagner clearly expressed this to General Judge
  Mantel and
  
  3. the military leaders had not been informed of planned
  mass executions.

The Tribunal will now have to decide whether it wants to
give greater credence to the SS Leaders Schellenberg,
Ohlendorf and Rode, who are trying for the last time, with
all their hatred, to draw the military leaders into their
own disaster, than to the officers of whom the Tribunal was
able to obtain a personal impression.

Now with regard to the other points of the Indictment, such
as "maltreatment of the civilian population" and
"destructions and lootings," I propose to refer to my
submission of evidence on these points, which showed clearly
that the military leaders intervened most severely in all
cases of offences brought to their knowledge.

As regards the participation of military leaders in the
deportations of workers, the prosecution has been unable to
submit really conclusive evidence. The question concerning
the shooting of hostages must be left out of the count in
this trial, because the territorial military commanders in
the occupied territories, in so far as they ordered any
shootings of hostages at all, are not included in the group
of persons represented by me.

Owing to lack of time, I propose herewith to terminate my
observations on the War Crimes and Crimes Against Humanity.
One thing, however, stands out very clearly:

The military leaders did not act in execution of any plans
having the object of committing War Crimes and Crimes
Against Humanity. On the contrary,

                                                  [Page 182]

guided by the spirit of decent soldierly behaviour, they
conducted the war in a chivalrous way, and knew how to
prevent the practical execution of all orders of Hitler
which were not in keeping with their own conceptions.

It may, perhaps, strike the Tribunal that in all these
observations I have only concerned myself with the field
commanders of the Army, and with land warfare, but not with
the generals of the Air Force and the admirals of the Navy,
who are also said to belong to the so-called group. I can
only defend, however, what is being attacked. None of the
submissions of the prosecution concerning the commission of
War Crimes and Crimes Against Humanity concern the
Commanders-in-Chief of the Navy or of the Air Force at all.
The only charge against the Navy, namely, that connected
with the directives for submarine warfare, is specifically
directed against the two Grand Admirals, who have assumed
full responsibility for their orders, while the naval
Commanders-in-Chief had nothing to do with these orders at
all. No charges have been preferred against the Commanders-
in-Chief of the Air Force. If seventeen admirals and fifteen
generals of the Air Force are included in the so-called
"group," this constitutes the most striking proof against
the theory of the existence of this "group" and renders any
special defence of the admirals and of the Air Force
generals superfluous.

The last count of the Indictment, that the military leaders
had rendered themselves guilty because they tolerated in
practice Hitler's criminal plans and deeds, instead of
revolting against them, returns us again to the central
problem of these proceedings against the soldiers: The
problem of the duty to obey. It has been repeatedly stated
that the Fuehrer order was not only a military order, but
that it had, over and above this, a legislative effect.

Thus, were the military leaders not bound simply to obey the
law? If the duty to obey does not exist concerning an order
having the committing of a civil crime; as its object, it is
because the order demands an action directed against the
authority of the State. But can there be any question of a
crime if the order requires action which is not directed
against the authority of the State, but on the contrary, is
demanded by that authority? And even if we reply to this
question in the affirmative, what citizen of any country in
the world is in a position to recognize the criminal nature
of his action?

It is not sufficient, in order to ascertain guilt, that the
prosecution explain what the defendants should not have
done; at the same time they should tell us what they might
and should have done, for any legal prohibition must also
include a positive directive. If I suppose that, in spite of
the sovereignty of the individual States, a legal obligation
existed for the generals to act in accordance with
International Law and moral requirements even against the
law of their own State, such a legal obligation could only
be affirmed if the corresponding action offered a chance of
success. After all, to allow oneself to be hanged, merely to
evade one's duties - to betray one's country without any
prospect of being able to change matters, cannot be demanded
by virtue of any moral. Ultimately, there is no obligation
for anybody to become a martyr.

And what were the possibilities of negative or positive
action against orders and law on the part of the indicted
generals? What were the chances of success? The simple
rejection of unlawful plans or orders, be it by
contradiction, warning, representations, objections, etc.,
would have been possible but utterly unsuccessful in
practice. To a certain extent, this remained ineffective for
the simple reason that the generals received no knowledge of
many of the objectionable things. In the political and
ideological struggle, these methods were so carefully kept a
secret from the generals that they did not even hear about
mass executions, to say nothing of being able to prevent
them.

In the military sphere, Hitler's closest assistants may,
perhaps, have been heard on the question as to how a
resolution was to be carried out militarily, but their
opinions were never asked for as to the resolution itself.

                                                  [Page 183]

In the majority of cases, the military leaders who are
indicted before this Tribunal only learned of these
decisions at the moment when they were called upon to carry
them out as soldiers. As far as possible, they made
objections. The Commander-in-Chief of the Army, Baron von
Fritsch, gave a warning, before the Rhineland was occupied,
against a policy which might produce a war on two fronts, as
well as against rearmament, and - was dismissed. The Chief
of the General Staff, Beck, raised political warnings, and -
was relieved of his functions. General Adam also opposed the
intended policies, and - was dismissed. The OKH opposed the
offensive in the West and the infringements of neutrality
and - it was excluded. The Commander-in-Chief of the Army
remonstrated in connection with outrages in Poland; the
result was - the military agencies were excluded from the
administration of the occupied territories. Warnings,
objections, factual representations were never successful,
but, in the majority of cases, only produced the effect that
Hitler maintained his own opinions more stubbornly than
ever, and insisted on his order being carried out. If the
steps taken by even the highest commanders thus remained
without success, what could the other indicted commanders of
lower rank have achieved in this respect?

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