[Page 27]

A. Yes. I believe that is all I want to say.

THE PRESIDENT: Dr. Nelte, the prosecution did not put in this document, did it? It has not offered it in evidence.

DR. NELTE: I believe so, yes.

THE PRESIDENT: I think they must have put it to the defendant Keitel in one of his interrogations, did they not? Isn't that right? That does not mean that it is put in evidence, because the interrogation itself, you see, need not be put in evidence. You must put it in now if you want it to go in.

DR. NELTE: Mr. President, there is some error here. This document was put in by the prosecution here as proof of the assertion that the defendant Keitel had given the order to kill these paratroopers. I received the document here.

THE PRESIDENT: The prosecution will tell me if that is so, but I cannot think of any document having been put in here that has not had an exhibit number.

MR. DODD: We have no recollection of having put it in. Many of these interrogations did not have document numbers, but of course, if they were put in, they would have USA or GB exhibit numbers.

THE PRESIDENT: Well, perhaps the best way would be for counsel for the prosecution to verify whether it was read in evidence.

MR. DODD: That will take me a few minutes, your Honour.

THE PRESIDENT: Yes, I mean at your leisure. Would that be a convenient time to break off for ten minutes?

DR. NELTE: Yes.

(A recess was taken.)

THE PRESIDENT: The Tribunal will adjourn this afternoon at a quarter to five. It will then sit again in this Court in closed session, and it desires that both counsel for the prosecution and counsel for the defence should be present then, as it wishes to discuss with counsel on both sides the best way of avoiding translating unnecessary documents.

There have, as you know, been a very great number of documents put in and a great burden has fallen upon the Translating Division. That is the problem which the Tribunal wishes to discuss in closed session with counsel for the prosecution and counsel for the defence. It will therefore, as I say, sit here in closed session where there is room for all the defence counsel. That is at five o'clock.

(Continuation of the direct examination of the defendant Keitel.)

BY DR. NELTE:

Q. Do you remember an inquiry of the Commander-in-Chief, West, in June, 1944 regarding the treatment of sabotage troops behind the invasion front? A new situation was created by the invasion, and therefore by the problem of the commandos.

A. Yes, I remember, since these documents too have been submitted to me here and there were several documents concerned. It is true that the Commander-in-Chief, West, after the landing of Anglo-American forces in North France, considered that a new situation had arisen with reference to the Fuehrer Order of 18th October, 1942, directed against the parachute troops.

An inquiry was held and General Jodl and I represented the view of the Commander-in-Chief, West, namely that this order was not applicable here. Hitler refused to accept that point of view, and gave certain directives in reply, which, according to the documents, had at least two editions; after one had been cancelled as useless, the Document 551-PS remained as the final version as approved by the Fuehrer.

[Page 28]

Q. In this connection was the question discussed as to how the active support of such acts of sabotage by the population could be judged from the point of view of International Law?

A. Yes, that question arose repeatedly in connection with the order of 18th October, 1942, and the well-known leaflet previously discussed. I am of the opinion that, according to the Hague Regulations relating to Land Warfare any participation in such sabotage acts by agents or other adherents of the enemy is a violation of these regulations. If the population takes part in, aids or supports such action, or covers the perpetrators - hides them or helps them in any way - in any form, that, in my opinion, is clearly expressed in the Hague Regulations relating to Land Warfare, namely, that the population must not commit such actions.

Q. The French Prosecution has submitted a letter Of 3oth July, 1944, which is Document 537-PS. This document is concerned with the treatment of members of foreign military missions caught together with partisans. Do you know this order?

A. Yes, I do. Yes, I was interrogated on this Document 537- PS during the preliminary investigation and I made a statement, which I will repeat here: It had been reported that attached to the staffs of these partisans, particularly the leaders of the Serbian and Yugoslav partisans, there had been military missions which we were convinced were to maintain liaison with the States with which we were at war. This was reported to me and I had been asked what should be done in the event of such a mission being captured. When the Fuehrer was informed, he decided to reject the suggestions of the military authority concerned, namely, to treat them as prisoners of war, since according to the directive of 18th October, 1942, they were to be considered as saboteurs and treated as such. This document is, therefore, the transmission of this order which bears my signature.

Q. The problem of terror flyers and lynch-law has been mentioned during the examination of Reich Marshal Goering. I shall confine myself to a few questions which concern you personally in connection with that problem. You know what we are concerned with-terror flyers and their treatment? What was your attitude to this question?

A. The fact that, starting from a certain date in the summer of 1944, machine-gun attacks from aircraft were made against the population has already been mentioned here. These increased considerably, with thirty to forty victims on certain days. As a result Hitler categorically demanded an adequate ruling on this question. We soldiers were of the opinion that existing regulations were sufficient, and that new regulations were unnecessary. The question of lynch-law was dragged into the problem and the question of what was meant by the term "terror flyer." These two questions resulted in the very large quantity of documents which you all know and which contain the text of the discussion on these subjects.

Q. I think it will not be necessary to repeat the details which have already been discussed. In connection with your responsibility, I am interested in the words which you have written across one of these documents. Please, will you explain those?

A. I merely wanted to state, first of all, that I had suggested, following the lines of the warning issued when prisoners of war taken by the Germans at Dieppe were shackled, that a warning should be issued by our own side, too, in the form of a similar official note saying that we should make reprisals unless the enemy commanders stopped the practice of their own accord. That was turned down as not being a suitable course of action.

[Page 29]

Q. PS-735

A. There are some notes in handwriting made by Jodl and myself. That is the record of a report written by me in the margin which runs as follows: "Courts-martial won't work"; at least, that was the content. I wrote that at the time because the question of sentence by courts-martial came up for discussion, for the reason that this very document laid down in detail for the first time what a terror flyer was, and because it stated that terror attacks were always attacks carried out from low-flying aircraft. I was led to think that crews attacking in low-level flights could not, generally speaking, be captured alive if they crashed, for there is no possibility of saving oneself with a parachute from a low-level attack. Therefore, I wrote that remark in the margin.

Furthermore, I considered, apart from the fact that one could not conduct proceedings against such a flyer, one would, secondly, not be able to conclude a satisfactory trial or a satisfactory investigation if an attack had been carried out from a considerable height, because no court, in my opinion, would be able to prove that such a man did have the intention of attacking those targets which possibly were hit.

Finally, there was one last thought, which was that in accordance with the rules regarding court-martial proceedings against prisoners of war, the enemy State had to be informed through the protecting power, and three months' grace had to be given during which the home State could object to the sentence. It was, therefore, out of the question that, through those channels and in so short a time, the deterrent results desired could be achieved.

That was really what I meant.

I also wrote another note, and this refers to lynch-law: It states: "If you allow lynching at all, then you can hardly lay down rules for it."

To that I cannot say very much, since my conviction is that there is no possibility of saying under what circumstances such a method could be regulated or justified, and I am still of the opinion that rules cannot be laid down for such proceedings.

Q. But what was your attitude regarding the question of lynch-law?

A. It was my point of view that it was a method completely impossible for us soldiers. One case had been reported by the Reich Marshal in which he had prohibited any proceedings against a soldier who had stopped such actions. I know of no case where soldiers, with reference to their duty as soldiers, behaved towards a prisoner of war in any other way than that laid down in the general regulations.

I should also like to state - and this has not been mentioned yet - that I had a discussion with Reich Marshal Goering at the Berghof about the whole question, and he, at that time, quite clearly agreed with me: we soldiers must reject lynch-law under any circumstances. I requested him, in this awkward position in which we found ourselves, to approach Hitler once more, personally, and to try to persuade him not to compel us to give or draft an order of that kind. That was the situation.

Q. We now come to questions relating to prisoners of war.

A. May I just say finally that an order from the O.K.W. was never drafted and never issued.

Q. There is hardly any problem in the law of warfare in which all nations and all people are so passionately interested as the prisoner-of-war question. That is why, here too, the prosecution has stressed particularly those cases which were violations of laws for prisoners of war, according to the Geneva Convention, or to International Law in general.

Since the O.K.W., and you as its Chief, were responsible for prisoner-of-war questions in Germany, I should like to put the following questions to you:

What had been done in Germany to make all departments and offices of the

[Page 30]

A. There was a special military manual on that subject, which I think is available, and which contained all the clauses in the existing international agreements and the provisions for carrying them out. That is, I think, Directive No. 38, which applied to the Army and the Navy, and also to the Air Force. That was the basis, the basic order.

Q. How was that put into practice? Was it the practice to inform those concerned with such questions or was it sufficient to draw their attention to the Army directives?

A. Every department, right down to the smallest unit, had these instructions and every, soldier, up to a point, was instructed on them. Apart from that, no further explanations and regulations were issued at the beginning of the war.

Q. I am thinking of the courses of instructions instituted in Vienna for that particular purpose. Do you know of them? Do you know that they took place in Vienna?

A. It is known to me that such matters were the subject of courses of instruction for those people who were actually in contact with prisoner-of-war matters ... they took the form of training courses.

Q. Is it, furthermore, correct that every soldier had a leaflet in his pay book?

A Yes. That was confirmed by General Milch the other day, who had one with him.

Q. When were the first instructions regarding prisoners of war given in your case?

A . As far as I know, the first instructions appeared after the beginning of the Polish Campaign in the East, since every preparatory measure for reception of prisoners of war had been rejected by Hitler. He had prohibited it. Afterwards things had to be improvised at very short notice.

Q. What was ordered?

A. It was ordered that the three services, the Navy, Army and the Air Force - the latter only to a limited extent but particularly the Army - should make appropriate preparations for camps, guard and whatever was necessary for the establishment and the organisation of such services.

Q. Please tell us what were the functions of the O.K.W. regarding the treatment of prisoners of war?

A. The principal instruction was treatment according to rule KGW-38 based on international agreements; in my opinion it contained absolutely everything which the people concerned had to know. Apart from that, no additional instructions were issued at that time, but the above rule was applied.

Q. I should like to know first of all how far the O.K.W. had jurisdiction regarding the treatment of prisoners of war.

A. The O.K.W. was, shall I say, the ministerial directing department which had to issue and prepare all basic regulations and directives concerning these questions. It was entitled to make sure, by means of inspections and surprise visits, that the instructions were carried out. In other words, it was the head office which issued directives and was entitled to make inspections, but was not in command of the camps themselves.

Q. Should one not add the contact with the Foreign Office?

A. Of course, I forgot that. One of the main tasks of the entire Armed Forces, and therefore of the Navy and Air Force too, was to communicate with the protecting powers, through the Foreign Office, and also to communicate with the International Red Cross and all agencies interested in the welfare of prisoners of war. I had forgotten that.

Q. Therefore the O.K.W. was, generally speaking, the legislator and the control organ.

A. That is correct.

[Page 31]

A. The Navy and the Air Force had camps under their command, which were restricted to prisoners of war belonging to their own services; and so did the Army. But owing to the large numbers belonging to the Army, their camps were under the deputy commanding generals of the home front, that is the commanders of the Wehrkreis.

Q. Now, let us take the prisoner-of-war camps. Who was at the head of such a camp?

A. In the Wehrkreis command there was a commander for prisoners-of-war affairs in the Wehrkreis concerned and the camp itself was under the charge of a camp commandant who had a small staff of officers, among them an intelligence officer and similar personnel who were necessary for such matters.

Q. Who was the superior officer of the commander for prisoner-of-war affairs in the Wehrkreis?

A. The commander of the Wehrkreis.

Q. Who was the superior of the Wehrkreis commander?

A. The Wehrkreis commanders were under the Commander-in- Chief of the Home Army and the Reserve, and he in turn under the Commander-in-Chief of the Army.

THE PRESIDENT: The Tribunal will adjourn.

(The Tribunal adjourned until 5th April, 1946, at 10.00 hours.)

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