The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Fourth Day: Tuesday, 9th July, 1946
(Part 2 of 11)

[Page 211]

DR. NELTE, Continued:

It was a soldier's principle which Keitel obeyed; one which is valid wherever the military command system exists. The significance of this statement is particularly important in the case of this defendant. The validity of such evidence might be questioned by saying that Keitel's functions were not those of a soldier or at least not only those of a soldier; and that he is therefore not entitled to claim consideration purely on the grounds of the existing system of command. The unfortunate nature of his position and the many and varied assignments which fell to him as chief of the OKW, not all of which can be fitted into the framework of a system, tend to obscure for us the primary factor, namely, that no matter what Keitel did or with what authority or organization he negotiated or was in contact, he was always impelled by his function as a soldier and by some general or particular order issued by Hitler.

The existence of a conspiracy seems to me incompatible with the theory of a soldier's functions and with Keitel's position as head of the OKW, and cannot logically be derived therefrom. In all cases in which the prosecution has prejudged a conspiracy, this conspiracy was an activity taken over by members of a gang and which differed from their normal personal activity. The contrary is, however, the case, for the activity which a man must practice because it belongs to his profession or office cannot be termed a conspiracy. It may be added that the soldier does not act on his own initiative but on orders received. A soldier may therefore take part in a conspiracy aimed against the duties he has undertaken as a soldier; but his activity within the scope of his military functions can on no account be termed a conspiracy.

The OKW, including the WFS, was relatively little affected by the conduct of the war in the East. By the OKW I mean the Staff of the OKW. It is well known that Hitler himself as OKW, i.e., as Supreme Commander of the Armed Forces, dealt with all matters concerning the conduct of this - his own - ideological war and took a hand in it. The army was in command; but Hitler was in close and constant collaboration with the Commander-in-Chief of the Army and his Chief of General Staff up to December, 1941, when after taking over the supreme command of the Army he also took over its direct leadership.

This union in one person of the Supreme Commander of the Armed Forces and Commander-in-Chief of the Army was evidently the cause of the numerous mistakes which led to the severe incrimination of the OKW, as Staff OKW, and of its Chief of Staff Keitel.

Keitel feels himself to be deeply incriminated by the frank statements he made in the witness-box on the whole question of the war against the Soviet Union. It is therefore not only understandable that the defence should clarify the extent to which

[Page 211]

Keitel bears the responsibility for all these conditions of frightful atrocity and unimaginable degeneration, but it is the duty of the defence to do so.

To make these matters of competency, which are frequently extremely complicated, more easy to understand, I refer to defendant Keitel's affidavit, No. K-10, which was submitted to the Tribunal. It seems to me essential to emphasize the fact that the war against the Soviet Union was from the first subject to three effective factors:

1. Operations and command: Commander-in-Chief of the Army, OKH.

2. Economics: The Four-Year Plan.

3. Ideological: The SS organizations.

These three factors were outside the competency of OKW (Keitel) which was not empowered to issue orders affecting them. It is true, nevertheless, that as a result of Hitler's practically anarchic methods, by which he himself retained the entire control of the government in his own hands, the OKW and Keitel were sometimes used to transmit Hitler's orders; but this fact cannot in itself shift the basic responsibility.

In view of the mass of material presented by the Soviet prosecution, I can refer within the scope of my statement to only a comparatively small number of the documents. I shall give a brief summary of the documents on Pages 126 to 136, which have been dealt with separately.

To begin with, I referred to Exhibits USSR 90, 386, 364, 366, 106 and 407, and tried to show in detail that the charges made against the OKW and Keitel as the guilty parties are not proven by these documents.

Then, on Page 130, I referred to a category of documents with which I have dealt earlier in Part two of my presentation on the subject of official documents. If I refer in this connection to the official reports of the Investigation Commission, I do so not because of their actual contents but because they were submitted in order to implicate Keitel. They are in themselves sufficient to prove that the charges made against Keitel and the OKW as Staff are not justified as far as these grave statements of the prosecution are concerned.

Out of the large number of documents in this connection I have dealt with USSR 40, 35 and 38. These official reports, which implicate the High Command of the Armed Forces, do not contain a single concrete fact referring to the Staff of the OKW - that is, Keitel - as the perpetrator or instigator of these atrocities.

I make no comment on the contents of the documents; I merely point out that Keitel, in his official position, had neither the authority nor the opportunity to give orders leading to the crimes alleged.

Then, on Page 134:

In the documents previously quoted, either Keitel or the OKW is named as the responsible party. However, during the prosecution's presentation many such official reports, quoted as evidence for Keitel's guilt, do not even mention either the name of the defendant or the OKW. In this connection, I draw your attention to Exhibits USSR 8, 39, 45, 46 and 63. I only ask the Tribunal to examine the remaining documents with equal care in order to ascertain whether or not, if submitted in connection with Keitel and the OKW, they allow Keitel's guilt to be concluded. In this connection I should like to add that I am not going to read - and am not referring to - the remarks at the bottom of Page 134.

I beg the Tribunal to take note of my statements on the economic exploitation of the occupied territories - Pages 137 to 142 - without my reading them. Since Reichsmarschall Goering's defence counsel has already dealt with this problem and has clarified the spheres of competency and responsibility, it would mainly be repetition for me to speak on it. However, I shall refer to the contents of this part of my presentation and beg the Tribunal to take judicial notice of it.

I now come to Page 143 and following pages, where I refer to the assertion made by the French prosecution regarding the participation of the OKW and Keitel in the cases of Oradour and Tulle.

[Page 212]

The French prosecution have charged the defendant Keitel in person with the commission of war crimes and crimes against humanity. The accusation concerns the execution of French civilians without a trial. In this connection the cases of Oradour and Tulle received special emphasis. They are recorded in a report made by the French Government - Document F 236. The French prosecution stated that: "Keitel's guilt in all these things is certain."

In this connection, it is not my task to discuss the frightful events of Oradour and Tulle. As defence counsel for the defendant Keitel, I have to examine whether the prosecution's assertion that the defendant Keitel bears any guilt or responsibility for these atrocious happenings has any foundation.

You will understand that the defendant Keitel attached particular importance to the production of evidence to the effect that he was not responsible for these terrible occurrences, and, further, that when such things came to his knowledge he took steps to have them cleared up in order that the actual offenders might be called to account.

It is an indisputable fact that Keitel had no direct part in these crimes. Any responsibility and guilt attaching to the defendant can therefore be derived only from his official position. No orders of any kind bearing Keitel's signature have been submitted by the prosecution, so that whoever is guilty, Keitel is not, at any rate, among those directly responsible.

The terrible sufferings inflicted on a large number of French villages are recorded in the notes of General Berard dated 6th July and 3rd August, 1944. I pointed out when this document was submitted that by the submission of these complaints alone - that is, unaccompanied by the replies, which are also in the hands of the prosecution - no objective picture of the actual facts can be presented on which to base a pronouncement on the guilt of the defendant Keitel. As the defendant Keitel, not being empowered to issue orders in the matter, cannot possibly be considered as the originator of the orders which led to the complaint, any responsibility and guilt on Keitel's part can be based only on the fact that he, did not cause the necessary steps to be taken on receiving information from the German Armistice Commission. What Keitel did or did not do can be gathered only from the replies and from the directives issued by the OKW to the German Armistice Commission.

I omit the following sentence:

The defendant Keitel would be unable to prove the contrary in this case also, had not the French prosecution themselves submitted a document which was intended to give proof of Keitel's individual guilt. This document was read by the French prosecution at the session of 31st January, 1946.

I pass on to Page 147: This document, signed by Keitel, indicates the following:

1. On receiving the French complaint of 26th September, 1944, the OKW issued orders to the German Armistice Commission to investigate and deal with the matter.

2. The German Armistice Commission thereupon instructed C.- in-C. West to investigate the incidents.

3. On receiving a letter from Army Group B, the OKW expressed itself as follows:

"It was in the German interest to answer these charges at the earliest possible moment. This case shows that there is still widespread ignorance as to the importance of contesting all imputations made against the German Wehrmacht, and all enemy propaganda, and of refuting immediately any alleged acts of atrocity on the part of the Germans.

The German Armistice Commission is hereby instructed to continue their investigations as energetically as possible. It is requested that every possible assistance be rendered to the Commission and that all possible steps be taken to expedite matters in your own sphere of action. The fact that PZ, AOK 6 is no longer under the jurisdiction of C.-in-C. West is no excuse for discontinuing the necessary investigation in order to clarify and refute the French charges."

[Page 213]

It may therefore be considered as proved that in this case the defendant Keitel, on receiving information, took energetic steps within his competency as chief of the OKW and as far as he was in a position to do so.

This eliminates the charge made by the prosecution so far as the defendant Keitel is concerned. At the same time, however, the way in which the defendant Keitel handled this case suggests that he acted in a similar manner in other cases.

Mr. President, before dealing with the problem of hostages, which I may discuss later, I should like to discuss the grave evidence on the "Nacht and Nebel" decree on Page 154.

During the whole course of this trial, no order made such a deep impression on the mind of the public as did the "Nacht and Nebel" decree. This was an order which originated during the struggle waged against acts of sabotage and against the resistance movement in France. As a result of the withdrawal of troops in connection with the campaign against the Soviet Union, the number of plots aimed against the security of German troops stationed in France and - in particular - the acts of sabotage aimed at the destruction of all means of communication increased daily. This necessitated increased activity on the part of the counter-intelligence offices, which in its turn caused proceedings to be taken and sentences passed by military courts against members of the resistance movement and their accomplices. These sentences were very severe. In addition to a large proportion of death sentences, sentences of imprisonment were also passed. The reports made almost daily in the course of discussions on the situation led to violent disputes in which Hitler, in accordance with his usual habit, tried to find someone on whom to put the blame, and in this instance fixed it upon the far too cumbersome administration of military justice. In his spontaneous and explosive way, he ordered directives to be worked out for the rapid, effective and lasting intimidation of the population: He declared that imprisonment could not be considered an effective means of intimidation. To Keitel's objection that it was impossible to sentence everyone to death and that military courts would, in any case, refuse to co-operate, he replied that that did not affect the position. Offences found sufficiently grave to necessitate the imposition of capital punishment without very lengthy court proceedings would continue to be dealt with as before - i.e., by the courts - but where this was not the case he would order the suspected persons to be brought secretly to Germany and all news of their fate to be withheld, since the publication of prison sentences in occupied territory failed to intimidate in view of the amnesty to be expected at the end of the war.

The defendant Keitel thereupon consulted the chief of the Judge Advocate's Office of the Wehrmacht and the chief of the Counter-Intelligence Office (Canaris), who is also the originator of the letter of 2nd February, 1942 (Document UK 35), on the procedure to be followed. When repeated applications made to Hitler to refrain from this procedure, or, at least, not to insist upon complete secrecy, had no effect, they finally submitted a draft which we have before us in the well-known decree of 7th December, 1941 (Document UK 35).

The staff of experts and the defendant Keitel had succeeded in establishing the competency of the Reich Administration of justice for persons removed to Germany (see last paragraph of directives of 7th December, 1941). Keitel had guaranteed this stipulation by means of the first Enactment- Decree governing the directives, in which he specified (last sentence in paragraph 1, IV) that unless orders to the contrary were issued by OKW, the case would be handed over to the civil authorities in accordance with section 3, paragraph 2, second sentence of the Articles of War (Kriegsstrafverfahrensordnung). The defendant believed that in this way he had at least made certain that the persons concerned would have the benefit of regular court proceedings and that in accordance with the German regulations for the accommodation and treatment of prisoners awaiting trial and prisoners serving a sentence, there could be no danger to life and limb. Keitel and his staff of experts reassured themselves by the fact that however cruel the suffering and

[Page 214]

suspense endured by those concerned might be, the lives of the deported persons had at least been saved.

In this connection, allusion is also made to the text of the covering letter of 12th December, 1941. As the co-defendant General Jodl stated during his examination, a certain wording was chosen to indicate that the signer did not agree with the order submitted. The covering letter begins with the words:

"It is the carefully considered desire of the Fuehrer."
The closing sentence runs:
"The attached directives ... comply with the Fuehrer's opinion."
Persons who received such letters knew from that wording that once again this was an order of the Fuehrer which could not be evaded but would be applied as leniently as possible.

The letter of 2nd February, 1942, originated with the Counter-Intelligence Office (Amt Ausland-Abwehr), and the original which is before you must have been signed by Canaris. At that time the defendant was not in Berlin where, after promulgation of the decree of 7th December, 1941, the matter was dealt with further. Keitel, at the Fuehrer's Headquarters, was not informed of the contents of the letter. In connection with the above remarks, the wording of the letter justified the assumption that some leniency might be expected because of Counter-Intelligence Offices having been directed "to ensure as far as possible before making the arrest" that they were in possession of sufficient evidence to justify handing over the offender. The competent military court had also to be approached before the arrest took place with a view to ascertaining whether the evidence was adequate.

In Germany they had to be handed over to the Reich Administration of Justice. The correctness of defendant Keitel's assumption is shown by the fact that Canaris - in view of the Admiral's attitude, which is familiar to the Tribunal - would never have ordered a prisoner to be handed over to the Gestapo. As already stated, the defendant Keitel did not know of the letter of 2nd February, 1942.

Although the defendant Keitel believed that he had succeeded as far as possible in safeguarding those in question, the "Nacht and Nebel" decree - as it was later called - weighed heavily on his mind. Keitel does not deny that this decree is not compatible with International Law, and that he knew that.

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