One Hundred and Seventy-fourth Day, Tuesday, 9 July 1946,
Morning Session 1
Afternoon Session 48
One Hundred and Seventy-fifth Day, Wednesday, 10 July 1946,
Morning Session 89
One Hundred and Seventy-sixth Day, Thursday, 11 July 1946,
Morning Session 129
Afternoon Session 164
One Hundred and Seventy-seventh Day, Friday, 12 July 1946,
Morning Session 193
Afternoon Session 227
One Hundred and Seventy-eighth Day, Monday, 15 July 1946,
Morning Session 253
Afternoon Session 287
One Hundred and Seventy-ninth Day, Tuesday, 16 July 1946,
Morning Session 325
Afternoon Session 364
One Hundred and Eightieth Day, Wednesday, 17 July 1946,
Morning Session 403
One Hundred and Eighty-first Day, Thursday, 18 July 1946,
Morning Session 442
Afternoon Session 468
Editor’s Note: _In respect to the presentation of the final
pleas by Counsel for the Defense, the Tribunal in several
instances directed that written speeches of excessive length be
shortened for oral presentation in Court and that notice would
be taken by the Tribunal of the paragraphs omitted. In the
sessions to follow such passages have been reproduced in small
type._
ONE HUNDRED
AND SEVENTY-FOURTH DAY
Tuesday, 9 July 1946
_Morning Session_
MARSHAL (Lieutenant Colonel James R. Gifford): May it please the
Tribunal, the Defendants Hess and Fritzsche are absent.
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): I have an order to
read. The Tribunal orders:
1. Applications for witnesses for organizations to be heard by
the Tribunal in open court in accordance with Paragraph 5 of the
Tribunal’s order of 13 March 1946 should be made to the General
Secretary as soon as possible, and in any case not later than 20
July.
2. The Tribunal believes that so much evidence has already been
taken, and so wide a field has been covered, that only a very
few witnesses need be called for each organization. That is all.
DR. OTTO NELTE (Counsel for Defendant Keitel): Mr. President, Gentlemen
of the Tribunal, yesterday I dealt with the problem of Keitel and the
Russian campaign. Now I recall to you what Keitel said in the witness
box concerning the so-called ideological orders:
“I knew their content. In spite of my personal misgivings I
passed them on without letting myself be deterred by the
possibility of serious consequences.”
I wanted to point that out in order to make what I have to say now
comprehensible, above all, in its extent. In the course of time the
opinion arose and was disseminated throughout the Army, that Field
Marshal Keitel was a “yes man,” a tool of Hitler’s and that he was
betraying the interests of the Armed Forces. These generals did not see,
nor were they interested in the fact that this man was fighting a
constant battle, day after day, in every possible field, with Hitler and
the forces which were influencing him on all sides. The effects of this
distorted picture shown here in detail, which definitely did not apply
to Keitel, especially not in the sphere of strategic operations,
planning, and execution, made themselves still felt even in this Trial;
perhaps not without the fault of the Defendant Keitel himself. As to the
justification of his conception of duty there can in principle be no
argument. It has also been confirmed here by the witness Admiral
Schulte-Mönting for the Defendant Grossadmiral Raeder. There can be no
doubt that the rest of the admirals and generals were in principle of
the same point of view, that it is impossible in military spheres to
criticize before subordinates the decision of a superior as expressed in
an order, even if one has misgivings about the order.
One may say that every principle, every basic rule must be interpreted
and applied in a reasonable way, that every exaggeration of a good
principle detracts from it. In the case of Keitel this objection affects
the problem of his responsibility and guilt.
Does nonrecognition of the point where a principle, correct in itself,
is being carried to excess and thus endangers the object for the
protection of which it has been established, constitute guilt? In the
case of Keitel we must consider this crucial question from the point of
view of a soldier. The thoughts and ideas which the Defendant Keitel had
in this connection were the following:
It is incontestable that the principle of obedience is necessary for
every army; one might say that obedience—in civilian life a virtue and
therefore more or less unstable in its application—must be the
essential element of a soldier’s character, because without this
principle of obedience the aim which is to be accomplished by the army
could not be achieved. This aim—the security of the country, the
protection of the people, the maintenance of the most precious national
possessions—is so sacred that the importance of the principle of
obedience cannot be valued highly enough. Hence, the duty of those
called upon to preserve that national institution, the Armed Forces, in
the sense of its higher task, is to emphasize the importance of
obedience. But what the general demands of the soldier, because it is
indispensable, must hold good for himself too. This also applies to the
principle of obedience.
It would be dangerous to weaken an order, still less an essential
principle, by mentioning exaggerations and taking them into
consideration at the outset. That would leave the principle of decision
to the individual, that is, to his judgment. There may be cases where
the decision depends, or must be made dependent, on actual
circumstances. In theory, that would lead to a devaluation or even to an
abrogation of the principle. In order to forestall this danger and to
eliminate any doubt as to its absolute importance, the principle of
obedience has been changed in military life into one of “absolute
obedience,” and embodied in the oath of allegiance. This is equally
valid for the general as for the common soldier.
The Defendant Keitel not only grew up in this school of thought, but
during the 37 years of his military service, up to 1938, including the
first World War, he had become convinced that this principle of
obedience is the strongest pillar upon which the Armed Forces, and
thereby the security of the country, rests.
Deeply imbued with the importance of his profession, he had served the
Kaiser, Ebert, and Von Hindenburg in accordance with this principle. As
representatives of the State, they had to a certain extent an impersonal
and symbolic effect on Keitel; Hitler, from 1934, at first appeared in
the same light to him, that is, merely as representing the State,
without any personal connection, in spite of the fact that his name was
mentioned in the oath of allegiance. In 1938 Keitel as Chief of the OKW
came into the immediate circle and the personal sphere of Hitler. It
appears important for further explanation and in assessing the
personality of Keitel to bear in mind that Keitel, as the result of his
highly-developed soldierly conception of duty described above, and the
pronounced feeling of soldierly obedience, was now exposed to the direct
effects of Hitler’s personality.
I am inclined to assume that Hitler had clearly realized, in the
preliminary discussions with Keitel which led to the Führer Order of 4
February 1938, that Keitel was the type of person he was including in
his calculations: A man upon whom he could rely as a soldier at any
time; who was devoted to him with sincere soldierly loyalty; whose
bearing fitted him to be a worthy representative for the Armed Forces in
his sphere; and who in the opinion of his superiors was an
extraordinarily able organizer as shown by the report of Field Marshal
Von Blomberg. Keitel himself has admitted that he sincerely admired
Hitler, and that the latter subsequently attained a strong influence
over him and brought him completely under his spell.
This must be borne in mind if we wish to understand how Keitel could
have made out and transmitted orders from Hitler which were
irreconcilable with the traditional conceptions of a German officer,
such as, for instance, orders C-50, 447-PS, et cetera, submitted by the
Soviet Russian Prosecution.
By exploiting the willingness to fight for Germany, which might be taken
for granted in the case of every German general, Hitler was able to
camouflage his party political aims with the pretext of defending the
national interests and to present the impending struggle with the Soviet
Union as a dispute which must inevitably be settled—even as a war of
defense, the necessity for which was made clear by definite information
which had been received and on which depended the existence of Germany.
In this way Hitler broached the fateful question. General Jodl has
testified here to the fact that, as an officer of long standing,
Keitel’s conscience pricked him nevertheless; and that he repeatedly,
but unsuccessfully, raised objections and suggested alternatives to the
orders drafted.
During his cross-examination by the representative of the American
Prosecution, the Defendant Keitel has openly declared that he was aware
of the illegal nature of these orders, but that he believed that he
could not refuse to obey the orders of the Supreme Commander of the
Armed Forces and head of the State, whose final pronouncement in the
case of all objections was: “I do not know why you are worrying; after
all, it is not your responsibility. I myself am solely responsible to
the German people.”
This is a reasoned analysis of Keitel’s attitude toward the so-called
ideologically-based orders of Hitler.
Keitel’s last hope, which in many cases proved to be justified, was that
the commanders-in-chief and subordinate commanders of the Armed Forces
would at their discretion and within the scope of their responsibility
either fail altogether to apply these harsh, inhuman orders, or would
apply them only to a limited degree. In view of his position, Keitel had
only the choice between military disobedience by refusing to transmit
the orders, or complying with the instructions to forward them. I shall
investigate in another connection the question of what alternative cases
of action might have been open to him. The problem here is to show how
Keitel came to forward orders which indisputably violated the laws of
warfare and humanity and why, by reason of his duty to obey, his sworn
loyalty to the Supreme Commander, and the fact that he saw in the order
of the head of the State the absolution of his own responsibility, he
failed to recognize the point at which even the soldier’s strict duty of
obedience must end.
Every soldier who has appeared here as a defendant or as a witness has
mentioned the duty of allegiance. All of them, when they sooner or later
realized that Hitler had drawn them and the Armed Forces into his
egocentric gamble for the highest stakes, have considered their oath of
allegiance as rendered to their country and have believed that they must
continue to do their duty in circumstances which to us and even to
themselves, when they realized the extent of resulting disaster, appear
inconceivable. Not only soldiers such as Raeder, Dönitz, and Jodl, but
Paulus as well, kept their positions and remained at their posts, and we
have heard the same from other defendants. The statements of the
Defendants Speer and Jodl in this connection were deeply moving.
The question of whether these facts relieve the Defendant Keitel of
guilty responsibility requires investigation. Keitel does not deny that
he bears a heavy moral responsibility. He realizes that no one who
played even the smallest part in this terrible drama can feel himself
devoid of the moral guilt in which he was entangled.
If I nevertheless emphasize the legal point of view, I am doing so
because Justice Jackson, in his speech on behalf of the Prosecution,
expressly referred to the law as being the basis of your verdict—to
international law, the law of individual states, and the law which the
victorious powers have embodied in the Charter.
I assume that the Defendant Keitel has recognized that some of Hitler’s
orders violated international law. The Charter says that a soldier
cannot clear himself by referring to orders given by his superiors or by
his government. At the beginning of my argument I asked you to determine
whether, independently of the terms of the Charter, the principle is
unimpeachable that the standard determining right or wrong cannot but
depend on a national concept.
THE PRESIDENT: Dr. Nelte, I see that in the next few pages you pass into
the realm of metaphysics. Don’t you think that part you might leave for
the Tribunal to read?
You must remember that you began your speech yesterday before the
morning adjournment, and you have got over seventy pages left of your
speech to read.
DR. NELTE: I have limited it and shall be through by noon.
THE PRESIDENT: Very well. Do you think it is necessary to read these
passages about metaphysics?
DR. NELTE: I want to show in these pages that they are not metaphysical
forces, and that the individual is not in a position to free himself
through metaphysical forces. I shall—well, I think I shall continue on
Page 121, immediately following my reference to Hitler’s character.
Perhaps I may just read from Page 120 at the bottom.
THE PRESIDENT: Very well, if you tell the Tribunal that you have limited
your presentation. I think you began yesterday at a quarter past 12. Go
on then. Take your own course, but do your best to limit it, and go to
Page 120 now.
[sm type begins]DR. NELTE: The French prosecutor, M. De Menthon, has
pointed to the “demoniacal” undertaking of Hitler and therewith
pronounced a word which had necessarily to be brought up in a discussion
which is dedicated to the investigation of events forming the background
of these Trials. It is the natural endeavor of intelligent people to
analyze the reasons for events which have deeply touched the fate of
mankind in these days. If these events deviate from the regular
happenings and the natural course of things so much that they sharpen
our imagination, we take our refuge in metaphysical powers. I ask you
not to consider the pointing to such metaphysical forces as an attempt
to evade responsibility. We are all still under the impression of the
attempt by a single man to lead the world from its course. I should not
care to be misunderstood: The “demoniacal” is an incomprehensible yet
extremely real power. Many call it “fate.” If I speak of fateful,
metaphysical powers, I do not mean the fate of antiquity and of
pre-Christian Germanism to which even the gods are necessarily
subject.[sm type ends]
[sm type begins]I should like to make this quite clear: The demoniacal
about which I am talking in this connection does not exclude the
capacity of man to discern evil; of course, I believe that the
demoniacal, should it become effective, does limit the capacity for
perception. Principiis obsta. The old German maxim says: “Resist from
the very start, the remedy will be prepared too late.”[sm type ends]
[sm type begins]Fate and guilt are not phenomena excluding one another,
but rather circles which overlap, so that there are sections of life
when both power groups are operative. I can only indicate here in a few
words what things may be considered as being governed by fate:
nationality, historical and traditional conditions of existence,
individual origin, professional surroundings.[sm type ends]
[sm type begins]Mankind today cannot yet recognize the difference
between the fateful, that is, the metaphysical powers which have become
operative, and the persons who have appeared as tools of these powers;
therefore the people who made their appearance as actors on the stage of
this terrible drama are “guilty people” to them. The further removed
mankind is from the events, the less it sees or feels the consequences,
the more objective does judgment—divested of actuality and subjective
instincts—become within the framework of the history of human
development. In this way the active figures and their share in the
events will be better recognized. But as long as we are under the recent
impression of the events, we do, it is true, realize the border line
between guilt and fate, but we cannot yet recognize it clearly.[sm type
ends]
[sm type begins]No less a person than Marshal Stalin has pointed out in
February 1946 that the second World War was not so much the result of
mistakes of individual statesmen, but rather the consequence of a
development of economic and political tension on the basis of the
existing capitalist economic system.[sm type ends]