[Page 81]

The Prosecution has also asked that the General Staff and High Command of the German Armed Forces be declared a criminal organisation. The Tribunal believes that no declaration of criminality should be made with respect to the General Staff and High Command. The number of persons charged, while larger than that of the Reich Cabinet, is still so small that individual trials of these officers would accomplish the purpose here sought better than a declaration such as requested. But a more compelling reason

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is that in the opinion of the Tribunal the General Staff and High Command is neither an "organisation" nor a "group" within the meaning of those terms as used in Article 9 of the Charter.

Some comment on the nature of this alleged group is requisite. According to the Indictment and evidence before the Tribunal, it consists of approximately 130 officers, living and dead, who at any time during the period from February, 1938, when Hitler reorganized the Armed Forces, and May, 1945, when Germany surrendered, held certain positions in the military hierarchy. These men were high- ranking officers in the three armed services: OKH -- Army, OKM -- Navy, and OKL -- Air Force. Above them was the overall Armed Forces authority, OKW -- High Command of the German Armed Forces with Hitler as the Supreme Commander. The officers in OKW, including Defendant Keitel as Chief of the High Command, were in a sense Hitler's personal staff. In the larger sense they coordinated and directed the three services, with particular emphasis on the functions of planning and operations.

The individual officers in this alleged group were, at one time or another, in one of four categories: 1) Commanders-in- Chief of one of the three services; 2) Chief of Staff of one of the three services, 3) "Oberbefehlshabers" the field Commanders-in-Chief of one of the three services, which of course comprised by far the largest number of these persons; or 4) an OKW officer, of which there were three Defendants Keitel and Jodl, and the latter's Deputy Chief, Warlimont. This is the meaning of the Indictment in its use of the term "General Staff and High Command"

The Prosecution has here drawn the line. The Prosecution does not indict the next level of the military hierarchy consisting of commanders of army corps, and equivalent ranks in the Navy and Air Force, nor the level below, the division commanders or their equivalent in the other branches. And the staff officers of the four staff commands of OKW, OKH, OKM, and OKL are not included, nor are the trained specialists who were customarily called General Staff officers.

In effect, then, those indicted as members are military leaders of the Reich of the highest rank. No serious effort was made to assert that they composed an "organisation" in the sense of Article 9. The assertion is rather that they were a "group" which is a wider and more embracing term than "organisation."

The Tribunal does not so find. According to the evidence, their planning at staff level, the constant conferences between staff officers and field commanders, their operational technique in the field and at headquarters was much the same as that of the armies, navies, and air forces of all other countries. The over-all effort of OKW at coordination and direction could be matched by a similar, though not identical form of organisation in other military forces, such as the Anglo-American Combined Chiefs of Staff.

To derive from this pattern of their activities the existence of an association or group does not, in the opinion of the Tribunal, logically follow. On such a theory the top commanders of every other nation are just such an association rather than what they actually are, an aggregation of military men, a number of individuals who happen at a given period of time to hold the highranking military positions.

Much of the evidence and the argument has centered around the question of whether membership in these organisations was or was not voluntary; in this case, it seems to the Tribunal to be quite beside the point. For this alleged criminal organisation has one characteristic, a controlling one, which sharply distinguishes it from the other five indicted. When an individual

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became a member of the SS for instance, he did so, voluntarily or otherwise, but certainly with the knowledge that he was joining something. In the case of the General Staff and High Command, however, he could not know he was joining a group or organisation for such organisation did not exist except in the charge of the Indictment. He knew only that he had achieved a certain high rank in one of the three services, and could not be conscious of the fact that he was becoming a member of anything so tangible as a "group" as that word is commonly used. His relations with his brother officers in his own branch of the service and his association with those of the other two branches were, in general, like those of other services all over the world.

The Tribunal therefore does not declare the General Staff and High Command to be a criminal organisation.

Although the Tribunal is of the opinion that the term "group" in Article 9 must mean something more than this collection of military officers, it has heard much evidence as to the participation of the officers in planning and waging aggressive war, and in committing war crimes and crimes against humanity. This evidence is, as to many of them, clear and convincing.

They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow Nazis would have been academic and sterile. Although they were not a group falling within the words of the Charter, they were certainly a ruthless military caste. The contemporary German militarism flourished briefly with its recent ally, National Socialism, as well as or better than it had in the generations of the past.

Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler's brutal crimes. which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said.

Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should not escape punishment.

The Tribunal will sit to-morrow at 9:30 a.m., and the Tribunal will now adjourn.

(The Tribunal adjourned until 9:30 a.m., 1st October, 1946.)

THE PRESIDENT: There is a correction which the Tribunal wishes to make in the judgment pronounced yesterday at page 159(10) with refernece to the SD.

The Tribunal's attention has been drawn to the fact that the Prosecution expressly excluded honorary informers who were not members of the SS, and members of the Abwehr who were transferred to the SD. In view of that exclusion by the Prosecution, the Tribunal also excludes those persons from the SD which was declared criminal.

Article 26 of the Charter provides that the Judgment of the Tribunal as to the guilt or innocence of any defendant shall give the reasons on which it is based.

The Tribunal will now state those reasons in declaring its Judgment on such guilt or innocence.

--- (10) See "Conclusion" page 75

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