Herewith the defendant is not only indicted as a member of the
conspiracy but is also accused of personally participating in all the
crimes in the Indictment. The space which the Prosecution has devoted to
the defendant in its statements corresponds with the comprehensive
Indictments. The name of no other defendant has been mentioned so often
by the Prosecution as that of the Defendant Keitel. Again and again we
hear the words “Keitel’s order,” “Keitel’s decree,” and just as often
“order of the OKW,” “directives of the OKW,” along with Keitel’s name as
“Chief, OKW” after 4 February 1938.
From this is derived the very substance of the Indictment, namely, the
position the Defendant Keitel occupied after 4 February 1938. But from
it is also derived the scope of the justification. Here it is not a
question of examining to what extent the defendant participated in the
individual facts of the case, which in the long run arose from the
so-called “Keitel orders” or “OKW instructions”; but what matters is the
position he occupied—whether he took part and what part he took in the
planning and execution of those orders and instructions, and finally and
most important of all, whether his part in it was causal and culpable in
the sense of the law which is to be applied here.
It seems to be of importance to stress from the outset several points of
view which are important for the treatment of the case and for its
judgment.
THE PRESIDENT: Would that be a convenient time to break off?
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
DR. NELTE: The defendant has declared that he admits the objective, that
is, the factual contents of the general Indictment to have been proved
(that is to say, not every individual point), taking into consideration
the law of procedure governing this Trial. It would therefore be
senseless, despite the possibility of refuting various documents or
individual facts, to attempt to shake the Indictment as a whole.
Therefore, I shall confine myself mainly to the questions concerning the
subjective facts and the conspiracy, and I will treat only these
individual points which require treatment because of their special
importance concerning the personal participation of the Defendant
Keitel.
The disproportion between the import of past events and the defendant’s
fate as an individual is so great that the Defendant Keitel, even if not
impelled by conscience, must have known after reflection that such a
course on my part would lay him open to the suspicion that he was
fighting here for his life. But the defendant has already made it quite
clear in his argument that he is not fighting to save his head, but
fighting to save face.
The defendant belongs to those men who came into the public eye through
Adolf Hitler’s death. From 1938 onward he was in his closest circle and
was his almost constant companion. It is clear to him what that means
for this Trial. It has often been alleged by the Prosecution that by
referring to the dead the defendants desired to unload their own
responsibility upon them. If it is the purpose of this Trial to obtain
the most faithful picture possible of events and connections, it is not
fair to start out by discrediting any mention of those who are dead, and
who—as the Prosecution also know—are the major culprits. This is
especially true of the Defendant Keitel, whose position, influence, and
actions cannot possibly be judged correctly without throwing light upon
the person of Adolf Hitler and upon his relationship with Keitel.
As can already be seen from Mr. Justice Jackson’s opening statement, we
are dealing here with an indictment against the National Socialist
system. Actually, the Indictment is a global indictment against this
system, split up into 21 individual indictments. The individual
defendants are, to a certain extent, mere symbolic figures of the
spheres of authority of the State which was ruled by this system:
namely, Party, Government, and Armed Forces. If I understand Mr. Justice
Jackson correctly, he goes even further in saying:
“Above all personal forces are nameless and impersonal fores;
their conflict with each other makes up much of humanity’s
history.... What are the real forces which are battling here in
front of you?”
This statement raises a problem which, Gentlemen of the Tribunal, cannot
be left unmentioned at this Trial, a problem which M. de Menthon also
pointed out: The importance and influence of those forces which shape
fate. Fate and guilt are not two poles which exclude each other from
their respective spheres; they are areas which overlap so that there are
spheres of life and spheres of activity in which the interplay of these
two forces make the world move. One can only hint briefly here as to
what forces are at work which shape fate, that is to say, what forces
cannot be considered as originating in the conscious will of the
individual defendants: The sense of national unity, historic events,
opinions which are rooted in tradition and environment. Therefore, I
will have to go into this background insofar as it is relevant to the
Defendant Keitel as a person and as a type of one of the groups under
the Indictment, because thus only will you be given the possibility of
obtaining a correct picture of the share which the Defendant Keitel had
in what has happened.
I also want to state that everything I am about to say is said with the
full agreement of the Defendant Keitel; and insofar as aspects and facts
are stated which might exonerate the Defendant Keitel, they should be
taken as a contribution toward the clarification of what has happened,
and as an answer to the question of how things could have reached that
point. He does not wish to have his position or the part which he played
in this drama minimized, but he is anxious at the same time to avoid
giving a distorted picture of his character. The defendant has already
stated on the witness stand that he was grateful for the opportunity
this Trial afforded him to give an account to the world public and the
German people of what he did and why he did it. He wishes to help in
ascertaining the historical truth of what happened.
I consider it my obligation to express this opinion of the Defendant
Keitel because this attitude, based on such reasons, made it
considerably easier for me to conduct his defense. It was, and is, clear
to the Defendant Keitel that if one considers the horrible consequences
and monstrous deeds which—without here raising the question of
guilt—undoubtedly were committed by German people, and which can
indisputably be traced back to orders and directives with which Keitel
came into contact in some form, then one will experience a feeling of
guilt, without considering whether this is guilt in the legal sense or
the tragic feeling of being linked by fate with the causes and thereby
also the consequences.
The Prosecution has maintained that:
“At one time all the defendants had banded together with the
Nazi Party for a plan which they well knew could be realized
only by the outbreak of a war in Europe.”
With regard to the Defendant Keitel, it is said that from 1933 on he
took active part in this conspiracy.
To prove its thesis the Prosecution stated:
(a) that the National Socialist program in itself, according to its
wording and meaning, could be realized only by using force;
(b) that the Defendant Keitel recognized, or should have recognized
this;
(c) that recognizing this he, together with the others, especially the
co-defendants, planned and prepared aggressive wars.
As regards these statements, I would like to call the Tribunal’s
attention, first of all, to the principal part of Mr. Justice Jackson’s
bill of Indictment, in which he deals with the program of the Party. He
mentions there a number of points of the program, about which he says:
“Naturally, these were all aims which were legally
unimpeachable.”
At a different point he says:
“I do not criticize this policy; I wish it were generally
recognized. Naturally, this acknowledging criticism is subject
to the one limitation: As long as these aims would be achieved
without an aggressive war.”
According to that, the Prosecution itself do not assume that the wording
and meaning of the Party program were such that normal persons would
recognize that these Party political aims could be realized by use of
force only. I do not wish to repeat what in this connection was said by
the individual defendants at their hearings in court. Especially
convincing appeared to me what Dr. Schacht stated on this subject. He
concludes his critical examination of the important points of the Party
program with these words:
“These are essentially the contents of the National Socialist
Party Program, and I cannot find that anything criminal lies
therein.”
I quote this statement especially because it shows how this program and
its recognizable objectives affected a person who may be characterized
as intelligent, realistic, free from emotional impulses in politics, and
possessing economic penetration and judgment. If that person did not
recognize that the Party aims were to be realized by use of force, how
was the soldier Keitel to come to such a realization?
Keitel was a professional officer. As such he could not be a member of
the Party. Officers were prohibited from any political and Party
political activity. The Armed Forces command was intent on keeping the
influence of Party politics away from the Armed Forces. This was true
both for the time before 1933 and afterward. Hitler himself confirmed
this principle because he clearly recognized that the time was not yet
ripe for giving the corps of officers, let alone the senior officers, a
political character. According to the tradition and conception of their
profession, those senior officers had a “national attitude,” as one used
to say, and they welcomed the national points of the program which were
placed in the foreground by Hitler; they were glad about the
co-operation of the Armed Forces and without hesitation placed
themselves behind the Government led by Hitler when it proclaimed the
fight against the Treaty of Versailles, especially against its military
political clauses. An agreement going beyond these aims, or possibly a
union with a political object in view, did not exist. The generals,
among them also Keitel, thought no differently from millions of Germans
who were not Party members or who were opponents, but who regarded the
national aims as being a matter of course.
Now, one cannot fail to see that it is somewhat different if millions of
Germans, who had no influence, supported that part of the program
relating to the national aims, or if the senior officers, who led the
Armed Forces, support it. Furthermore, it cannot be overlooked that the
realization of these national aims carried with it the danger of a war.
But the state of things seems to me to be such that the generals saw the
danger of war not so much in the fact that Hitler wanted to realize
these national aims by an aggressive war, but rather in the fact that
the realization of these aims would entail sanctions by the former enemy
powers. The idea of a realization by aggressive, warlike means was far
from the generals’ minds for the absolutely compelling reason of
military impotency. I shall later deal more in detail with this problem,
which is closely connected with the rearmament. Here it is only
important that the circles to which Keitel belonged—and I should like
to add, between 1933 and 1938—
(1) had no contact with the Party program;
(2) had no relationship with Party circles;
(3) sympathized with a part of the Party program because it corresponded
to their national attitude;
(4) did not think of realizing these national points by an aggressive
war, because it would have been hopeless from the military point of
view.
Now one could argue that although the generals themselves did not think
of waging an aggressive war, they certainly recognized, or should have
recognized, that Hitler had the intention, if not now, then in the near
future, of waging an aggressive war.
The Prosecution believes it can be presumed that the Defendant Keitel
had this knowledge from 1933 on. The argument of the Prosecution that
this knowledge is equivalent to knowledge of the National Socialist
program has been refuted; the same holds true of the knowledge of the
book _Mein Kampf_—assuming he possessed the book. Therefore, the
question is only whether Keitel had knowledge of Hitler’s intentions
regarding an aggression for other reasons. For the period up to 1938
Keitel could not have obtained knowledge from Hitler himself because
Keitel spoke with him late in January 1938 for the first time. The
speeches which Hitler made before that time, just as those of the other
Party leaders, were unambiguously aimed at preserving peace. Looking
back, one might call it propagandistic camouflage of opposite
intentions. If that were the case, then this camouflage successfully
deceived not only many millions of Germans, but also the foreign
countries which were partly critical and partly hostile toward National
Socialism.
Keitel believed the protestations of peaceful intentions, and saw their
honesty confirmed also by official proposals of disarmament and treaties
with England and Poland. He believed them all the more because, as has
already been said, an aggressive war appeared to him an impossibility.
The Codefendant Von Neurath too, frequently declared here that all his
information and knowledge of Hitler’s policy up to 5 November 1937
justified his firm conviction that Hitler did not want to realize his
political aims by force or aggressive wars. It was only by the speech of
5 November 1937 that this conviction of Von Neurath’s was shaken.
In the arguments in Dr. Schacht’s defense to which I referred, those
facts were presented which show a contradiction between the former
conduct of the victorious powers and the thesis which the Prosecution
advances on this question.
Through their official relations and beyond these, the victorious powers
showed that, despite their knowledge of all the circumstances of which
the defendants are now being accused, they, that is, the victors, did
not believe in Hitler’s intentions, or did not recognize these
intentions of realizing his aims by aggressive war.
The Prosecution now makes the accusation against the defendant that he
knew, or ought to have known, such intentions of Hitler. This is not
convincing, and I can leave it to the Tribunal to judge who—if all
contingencies are taken into consideration—had better possibilities of
obtaining information on Hitler’s true intentions. I believe the
Defendant Keitel may claim for himself the same good faith and the same
ignorance, unless such knowledge or participation itself results from
other circumstances.
Such circumstances during the years 1933 through 1938 may have concerned
Keitel’s activity in connection with rearmament and in the Reich Defense
Committee. The charge of illegal rearmament includes two facts which
have been summed up by the Prosecution:
(1) Secret rearmament by circumventing the Treaty of Versailles;
(2) Rearmament with the purpose of planning wars of aggression.
For a judicial consideration, however, these facts must be kept strictly
apart; for they are different with respect to cause and effect, and they
must also be legally assessed from different points of view.
The time between 1933 and 1938 is the fateful period, a period of
development and conversion. The forces of the hitherto existing order
are struggling against the new which have not yet taken definite shape.
Everything is in fermentation. The aims remain obscure. They are
camouflaged by the adoption of existing nationalistic tendencies. By
clever propagandistic utilization of these tendencies, the psychological
basis for the aims pursued by the new rulers is being created without
being noticed by those whom it concerned. Here lies the problem of the
Armed Forces leadership and of the Defendant Keitel during this period
with which I am going to deal now.
This problem cannot be solved without taking into consideration
Germany’s military position. In judging the then Colonel Keitel another
consideration enters the picture: how the special sphere to which he
belonged was affected by this situation. Keitel considered the Treaty of
Versailles, and especially the military clauses, as a humiliation for
Germany. He considered it a duty toward his country to collaborate in
putting an end to this situation. He was convinced that the Treaty of
Versailles, because of its impossible military and territorial
stipulations, would have to be revised some day. Such a revision
appeared to him imperative, in the interest of justice as well as of
reason, if a lasting world peace was to be preserved. On the basis of
this conviction he believed that as a German and a soldier, he was
entitled, in the official capacities in which he acted during this
period, to interpret the military stipulations of the Versailles Treaty
literally, even if this was in contradiction to the spirit of the
stipulation. His justification for this was that the stipulations
limited the possibilities of development in an unbearable manner, that
is, in a manner altogether insufficient for an effective defense. Though
he did not participate personally, he did not consider it wrong for
Germany, under the given circumstances, to construct submarines in
Finland, not for herself, but for the purpose of gathering experience
and training specialists; or to maintain construction and designing
offices in Amsterdam in order to observe the progress achieved in the
field of aeronautics and to make use of it without actually building
planes. Symptomatic of the way democratic Germany of that time
thought—without consideration of position and party—was Dr. Brüning’s
statement which on 15 February 1932 was broadcast over all U.S.A. radio
stations on the occasion of the meeting of the disarmament conference. I
am going to quote some passages from that speech:
“The inner-political fights in Germany are very bitter in their
outward forms, to be sure; but this must not lead one to
overlook the fact that despite many differences there exist
indisputably many things in common also. On the two decisive
foreign-political questions of today, the questions of
disarmament and reparations, uniform opinions prevail among the
German people. The demand for equal rights and equal security is
shared by the entire German people. Every German Government will
have to uphold these demands. That the fight of the parties as
to the road which our politics must take is perhaps more bitter
in Germany today than in some other countries, is a result of
the deep misery which weighs heavily upon Germany and greatly
burdens the people’s soul.”
In connection with this point I also refer to the testimony which the
Codefendant Von Neurath gave on 22 June 1946. These words which Brüning
spoke prove that there was a demand which was upheld by the entire
people irrespective of the difference in parties: The demand for equal
rights and equal security. The objection to that is: A demand, even if
upheld by the entire people, does not in itself create the right to
violate or circumvent established regulations. In principle, one can
accept that. However, things were not as simple as that. I do not wish
to harp upon a fundamental law applying to all countries and giving
every nation the right to create for itself a certain state of defense.
But even if one is not prepared to recognize such a fundamental law, one
will still perhaps understand the state of emergency which actually
exists when a country is so limited in its military potential that it is
not only liable to military attack by any neighbor but also condemned to
political impotency.
In the course of the hearing of evidence the Tribunal has had occasion
to recognize that this was true with regard to the situation in which
Germany found herself in the year 1933. I want to call your attention to
the following passages of the Field Marshal’s report which was submitted
to the Tribunal. The following passages, written by this outstanding
soldier, summarize as follows the experience of a patriotic and military
life as regards the point discussed here under the title “Rearmament”:
“Nature is inclined to pass over weak people. The law that only
the strong survive is generally recognized...”