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SIR DAVID MAXWELL FYFE: My Lord, I do not think that all my colleagues have had an opportunity of looking through the affidavit yet. They got it late last night. So if your Lordship could allow us an hour or two, we would be glad to report later in the day.

THE PRESIDENT: If you would do that, yes.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

DR. LATERNSER (defence counsel for the General Staff and the OKW): Mr. President, may I just take up a few moments of the Tribunal's time? On the basis of a letter which I received last night, I am now in a position to prove that a written order existed forbidding all preparations for active bacteriological warfare.

I have already discussed this matter with Sir David Maxwell Fyfe; the letter will be translated, and then the question of whether it should be admitted as evidence can be taken up.

I just wanted to mention this, Mr. President, so that the letter should not then be refused as coming too late.

THE PRESIDENT: Dr. Laternser, you mean that the letter will be translated and submitted to the prosecution, and then it will let us know whether it is prepared to agree to the letter going in for what it is worth? But it must be done today?

DR. LATERNSER: Yes.

THE PRESIDENT: Very well.

COLONEL TELFORD TAYLOR: Mr. President and Members of the Tribunal:

Under the Indictment, the prosecution seeks a declaration of criminality against six groups or organizations. For purposes of clarity in marshalling the evidence and specifying the charges, this division into six parts is appropriate, since it accurately reflects the formal structure of the Third Reich.

In a deeper sense, however, the Third Reich was not sexpartite. It was simpler than that. The Third Reich was a political machine and a military machine. It was embodied in and sought its ends through the Nazi Party and the armed forces. Its successes at home and abroad were achieved by these two instruments. The Wehrmacht owed its resurgence largely to the Nazi Party; the Party, in turn, would have been helpless and impotent without the Wehrmacht. As General Reinecke put it, the two pillars of the Third Reich were the Party and the armed forces, and each was affected by the success or downfall of the other.

Appendix B of the Indictment specifies the leaders and principal instrumentalities of the Party and the armed forces. From the Party, the Indictment specifies,

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The composition of this group of military leaders was described by the prosecution during the presentation of evidence, and little more need be said by way of exposition. The defence has taken the view that these military leaders do not constitute a group within the meaning of the Indictment. The arguments in support of this technical objection are, I believe, insubstantial, but I want to meet them directly and clearly.

A number of the points made by the defence are based either on misunderstanding, or on a deliberate misreading of the Indictment. Thus, several witnesses have told us that the General Staff consisted of young officers of relatively junior rank who acted as assistants to the commanders-in- chief. This involves a confusion with what is known to military people as the "General Staff Corps" of War Academy graduates. The Indictment does not include these officers and the prosecution made this clear at the outset. In so far as this, or similar testimony, is an attack on the name which the Indictment applies to the military leadership group, this is an utterly insignificant point. There is no set term in German or English for all the military leaders of the Wehrmacht; the Indictment uses the terms "General Staff" and "High Command" as most descriptive of the chiefs of the four staffs of OKW, OKN, OKH, and OKL, all of whom were key figures in military planning, and the commanders-in- chief who directed operations. Together, they adequately comprehend the military leadership. Several other minor and technical points merit only brief mention. It has been objected that the chart which was attached to the affidavits of Halder, Brauchitsch, and Blaskowitz does not accurately depict the chain of command. That is true. The chart was not intended to show the chain of command, the affidavits to which the chart is attached say nothing about chains of command and the prosecution has not suggested anything of the kind. Equally irrelevant is the question of whether Keitel might have been shown in the same box with Hitler, instead of having a box to himself. None of these points about the chart involves the addition or subtraction of a single member of the group, or affects the Indictment's definition of the military leadership. Equally irrelevant is the contention that the list of members of the group includes some generals who held only temporary appointments as commanders-in-chief and were never formally designated as such. This might later be relevant in the trial of these individuals, if they can show that they never really had the status and responsibility of a commander-in-chief, but is not important in contemplating the group as a whole.

Several affidavits submitted by the defence point out that a few generals were members of the group for less than six months; that a number of them died or were removed or retired from their positions before the end of the war, and that the younger ones were not generals when the war started. This is all quite natural. We are concerned here with a seven-year period, during most of which there was a war, which is a hazardous and wearing occupation. During these years some generals died, others failed, still others fell out of favour; new faces appeared as replacements; the great increase in the number of German army groups and armies brought still other officers into the status of commander-in-chief. To the extent that in war the hazards were sharper and the failures more costly in the Wehrmacht than in politics, the turnover may have been correspondingly greater in the Wehrmacht than in the Party. But again, these questions are relevant only on the degree of responsibility of individual members, and not on the responsibility of the group itself.

A special point has been made of the fact that many members of the group did not become such until after 1942. The argument drawn from this circumstance is, I take it, that the generals who joined the group only after 1942 could not have

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The defence tells us that the military leaders were not a "group" because they merely occupied official positions without any "unifying element." This is a factual question. Its solution is not advanced by nice linguistic points, such as whether the German word "gruppe" means "group" or "number." I suppose that "group" means a number of persons chosen because of some common bond. Or as Mr. Justice Jackson puts it, the members must have an "identifiable relationship" and a "collective, general purpose." I suppose also that the relationship and the purpose must be meaningful under the London Agreement.

The generals who held the positions listed in the Indictment constituted the military leadership of the Third Reich. That is their "likeness," their "identifiable relationship," or their "unifying element." Their "collective general purpose" was to build up and train the Wehrmacht, and to make its plans and direct its operations.

The evidence to this effect is, I admit, conclusive and uncontradicted. Leading German generals - Brauchitsch and Halder - have said in sworn statements that those who held the positions listed in the Indictment had the "actual direction of the armed forces" and "were in effect the General Staff and High Command." The technical objections made later by the defence with respect to the chart are quite irrelevant to this essential point.

The testimony of numerous generals, assuming its credibility, that the military leaders did not have any formal organization or any secret advisory council, is quite wide of the mark. The prosecution has not charged this; nor has it charged that the military leaders were a political party, or that they had a set or uniform view on internal political matters.

Nor are we surprised to hear from some defence witnesses that the Germans, like ourselves, found co-ordination within a single service easier to achieve than co-ordination between the Army, Navy, and Air Force. The mere existence of OKW is sufficient proof of the importance which the Germans attached to inter-service collaboration, and numerous documents show constant and detailed planning and discussion between the three services. In any event, it is quite unnecessary to look behind the actual course of events. Surely no one would have suggested in 1941, after witnessing the coordinated use of tanks and Stukas in Africa, and the team-play of all three services during the Norwegian invasion, that the German war effort lacked co-ordination.

From the standpoint of military planning, we are told by Halder that the most important part of OKW was the operations staff, of which Jodl and Warlimont were the chief and deputy chief respectively. The field commanders, too, participated in planning. We know from Brauchitsch and Blaskowitz that the military plans for the attacks on Poland and other countries were submitted in advance to the commanders-in-chief of army groups and armies, so that OKH would have the benefit of their recommendations. Brauchitsch and Blaskowitz have also told us that, during operations, the OKH and the commanders-in-chief

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The commanders-in-chief of army groups and armies in occupied territories had executive power (Vollziehende Gewalt) within the areas under their command. Within those areas, they were supreme, and had the power of life and death over the inhabitants. They had the responsibility for determining such questions as whether the commissar and commando orders should be distributed, and if so, how widely and with what instructions.

To summarize, these generals were an aggregation of persons who directed the German armed forces, and whose collective purpose was to prepare it for and lead it in military operations. From time to time, when all the members met together, it was a congregation. The purpose and spirit of the London Agreement clearly bring such a body of men within the scope of Article 9 thereof. The Agreement established this Tribunal to try such offences in the planning and waging of aggressive wars, and violations of the laws and customs of war. The German military leaders are charged, among other things, with developing the plans under which aggressive and illegal wars were initiated, and with directing the armed forces in the launching and waging of these wars. They are charged with circulating throughout the Wehrmacht orders directing the murder of certain types of prisoners, and with aiding, abetting, and joining in the murder and ill-treatment of the civilian population, all in violation of the laws and customs of war.

The argument of the defence that the military leaders are not a "group" and are therefore immune to a declaration under Article 9 is, we submit, utterly unfounded, and flatly contrary to the plain purposes of the London Agreement. That Agreement cannot be reasonably construed to exclude from the purview of Article 9 the leaders of one of the two chief instrumentalities of the Third Reich.

The defence appears to contend that membership in this group was not voluntary. I say "appears to," because in one breath we are told that the generals could not withdraw from the positions they occupied, and in the next that many of them resigned because of disagreements with Hitler.

The question is, I think, a simple one. We are not concerned here with the ordinary German conscript who made up the bulk of the Wehrmacht. We are concerned entirely with professional soldiers, and with the most zealous, ambitious and able German officers in the Wehrmacht. Most of them chose a military career because it was in their blood; as Manstein put it, "they considered the glory of war as something great." They slaved at it and were devoted to their profession, and if they reached the status of commander-in-chief they were, like Manstein, proud that an army had been entrusted to them. No one became a German commander-in-chief unless he wanted to.

It is true that, in time of war, a professional soldier cannot resign his commission or his post at his own free will. But this does not turn the professional officer into a conscript or make his status an involuntary one. No one becomes a professional officer without knowing in advance the obligations that will bind him in time of war. The fanatical Nazis who rushed to volunteer for the early Waffen SS divisions, or who voluntarily joined other para- military sections of the Party, could not thereafter resign at will, but I have not heard it urged that they were conscripts or involuntary members. The members of the General Staff and High Command group were keen, professional warriors, who competed with others like themselves for the responsibilities and honours of being commanders-in-chief. They rose within the Wehrmacht just as an ambitious Party member might rise to be a Kreisleiter or Gauleiter.

In fact, retirement was easier for the commander-in-chief than anyone else in the Wehrmacht. The junior officer, who protested against what was going on

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And this is just what happened with some of the commanders- in-chief. The record is replete with testimony by or about commanders-in-chief who openly disagreed with Hitler on tactical matters, and who, as a result of such disagreements, were retired or allowed to resign. I note in passing that the record is notably barren of evidence that any commander-in-chief openly disagreed with Hitler so decisively on the issuance of orders which violated the laws of war, or who forced his retirement on account of these orders. At all events, it is quite clear that a commander-in- chief who wanted to retire could contrive to do so, whether by pleading illness or by honest, blunt behaviour. If he had the will, there was a way out. And it is worth noting that the three field-marshals who testified before this Tribunal had all managed to retire or be retired, and the record shows that many others were equally successful and that few of them thereafter suffered serious harm on this account.

I pass now to the criminal activities. The prosecution submits that the evidence before the Tribunal conclusively established the participation of the General Staff and High Command group in accomplishing the criminal ends of the conspiracy, and in the commission of crimes under all parts of Article 6 of the Charter and under all counts of the Indictment. We also submit that the criminal aims, methods, and activities of the group were of such a nature that the members may properly be charged with knowledge of them, and that, for the most part, they had actual knowledge.

I will speak first of the pre-war period, or, more accurately, of the period ending in the spring of 1939, when detailed planning was commenced for the attack on Poland. It is worth noting that during this early period, the group defined in the Indictment never exceeded eight in number, and that four are defendants in this trial.

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