MARSHAL: May it please the Tribunal, Defendant Fritzsche is reported absent.

DR. HORN: With the permission of the High Tribunal I shall continue with my final presentation, beginning with Page 34. The English text page number corresponds with the German text page number.

Previous to the attempt to settle, in a general way, the concept of aggression and sanctions against aggressors, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory and anarchic situation, the United States, under Secretary of State Bryan, took the initiative in a series of separate treaties in order to reach an agreement for periods of respite, which were meant to delay the outbreak of hostilities and to allow the passions to cool down.

The Covenant of the League of Nations took up this point of view but went one decisive step further by determining a procedure by which the League organs should determine the permissibility or nonpermissibility of war. The decision indicated whether war was permitted or not according to the Covenant. The aim of this regulated procedure was to hit the disturber of international order, who was not necessarily identical with the aggressor. The state which went to war in accordance with the decision. of the League of Nations organs behaved in a lawful way, even when it undertook preliminary hostilities and thereby was the aggressor in the military sense.

It was therefore apparent that the distinction between aggressor and attacked was not adequate enough to guarantee a just settlement of international relations.

Although these Covenant regulations and the procedure based thereon showed that the relation of lawful to unlawful, permitted to prohibited, aggressor to attacked, was unsatisfactory, efforts were still made to brand as an aggressor anyone who offended against international order. As the essential decision miscarried owing to the difficulties just mentioned, there was an attempt to make out

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of this legal concept, which did not allow a concise definition, a political decision by those organs of the League of Nations which were qualified for maintaining international order. Such was the case in the draft of a mutual assistance agreement elaborated in 1923 by order of the League of Nations Assembly. The Geneva Protocol, which was meant to supplement the Covenant inadequacies concerning the question of the settlement of disputes, also transferred to the League of Nations Council the decision of determining who had violated the agreement and was therefore the aggressor.

All other attempts to outlaw war and settle conflicts, mentioned by the British Chief Prosecutor, have remained drafts, excepting the Kellogg Pact.

It can probably be put down to this fact that the idea of a legal definition of the aggressor was once more taken up at the Disarmament Conference. In this way the definition was established in the year 1933 by the committee for questions of security, presided over by the Greek, Politis, of the general Disarmament Conference committee. Owing to the failure of this conference, the definition was made the object of a series of separate treaties at the London conferences in the same year. The only great power participating was the Soviet Union, which had taken the initiative to obtain the definition at the disarmament conference. This definition has also been adopted by the United States Chief Prosecutor, who has based thereon the Indictment before this Tribunal for a Crime against Peace. This definition is no more than a proposal of the Prosecution within the limits of the Charter, which does not give further details about the concept of a war of aggression. It must be emphasized that Mr. Justice Jackson cannot invoke in this matter any universally acknowledged principle of international law.

The report of the 1933 commission did not become the object of a general treaty, as projected, but was merely agreed upon between a number of individual parties in agreements binding only those' concerned. As 'a matter of fact, the only agreements were those between the Soviet Union and a number of states around her. No other great power accepted the definition. In particular, Great Britain kept aloof, notwithstanding the fact that the individual agreements mentioned were actually signed in London. At least the participation of the great powers would have been required for the constitution of a principle of international law of such far-reaching importance for the reorganization of international relations.

Quite apart from this legal consideration, the utterances of the British and the American Chief Prosecutors show that, as far as facts are concerned, the proposal is equally unsatisfactory. In the important question of Point 4 of the definition, the British Prosecution differs from the American. The old conflict of interests

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between mare Liberian and mare clausum had led the Prosecution to the point that Sir Harley Shawcross did not mention the naval blockade of the coasts and ports of a state as aggressive action.

The definition of 1933 may offer valuable characteristics for establishing the aggressor, but one does not get around the fact that a formal legal definition shows the impossibility of doing justice to all actual political cases.

With the attempt to set down a new regulation for creating order in the world in the Charter of the United Nations, one returned, having obviously recognized this truth, to the idea of a decision by an international organ without wanting to force its judgment into the inconvenient form of a rigid definition. The Charter of Peace of San Francisco says, in Chapter VII, Article 39:

"The Security Council shall determine the existence of any threat to world peace and security or breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security."

In the year 1939 there was neither a recognized definition of the term aggressor nor an institution authorized to designate the aggressor.

The League of Nations as an instrument for the settlement of disputes had completely failed. This was expressed outwardly already by the fact that three great powers had left it. How little the mutilated League of Nations was taken notice of in international life, was shown by the attitude of the Soviet Union in the Finnish question. She did not take into consideration in any way the decision of the League of Nations with regard to this conflict but pursued her own interests in her dealings with Finland.

If now, after these statements, I make a proposal to the Court as to what should be understood by the concept of attack in Article 6(a) of the Charter, this qualification cannot be related to a definition recognized in international law. There is nothing left but adherence to the interpretation which the practice of states and the traditions of diplomacy are wont to give.

According to the conception prevailing in the year 1939, the outbreak of war, in whatever way it happened, was not legally appraised. The Kellogg Pact and the negotiations following it have not been able to abolish this fact, which was a result of centuries of development. This is deeply to be regretted, but one cannot ignore reality. The fact that this opinion, when war broke out, is in accordance with the conception of international law of the main participating powers that had signed the Charter, follows from the fact that men of international reputation in the field of international

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law were of the opinion that, should the Kellogg Pact and the system of collective security fail, the traditional legal conception as to war was still valid.*

Should Herr Von Ribbentrop really have had the opinion in 1939 that his acts, measured by traditional diplomatic technique, would be considered as a crime punishable by international law?

I have already pointed out that generally, and therefore also by Herr Von Ribbentrop, the then existing frontier line in the East was considered untenable in the long run and therefore in need of adjustment. The Peace Conference at Versailles, by satisfying the Polish demands when this state was newly created, created problems which could not be solved by international cooperation in the time between the two World Wars. These frontiers could never be guaranteed within the framework of European pacts. A guarantee for the Eastern frontier created by Versailles could not be reached within the framework of the Locarno Treaties because of the opposing interests of the participating powers, whereas it was arrived at for the Western frontiers. All that was achieved after endless efforts was arbitration treaties, in connection with the Locarno system, between Germany and Poland and Germany and Czechoslovakia. They did not contain any guarantees for frontiers, but only a procedure for settling litigations. I shall deal with them when I come to the various violations of treaties of which Herr Von Ribbentrop is accused.

After Hitler had also expressed his distrust towards collective security by leaving the Disarmament Conference and the League of Nations, he went over to the system of bilateral treaties. In this connection, at the negotiations preparatory to the agreements between Germany and Poland of 1934, it was clearly stated that a solution of the problems between the two states should be found in the spirit of the treaty. We will not suppress here that only peaceful means were considered for this arbitration and a 10-year non-aggression pact was concluded. Whether Hitler believed honestly in the possibility of solving this problem or hoped to change the untenable situation in the East by means of evolution is of no importance for the forming of an opinion on Herr Von Ribbentrop's behavior. He did not take any initiative in this step but found this agreement an existing political and legal fact.

The experience made in the adjustment of interests of states teaches that agreements are durable only when they correspond to political realities. If that is not the case, the force of facts oversteps, of itself, the original intention of the contracting parties. A great statesman of the nineteenth century has expressed this truth

* oppenheim-Lauterpacht, International Law. 5th Edition. Page 154.

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by saying, "The element of political interest is an indispensable foundation of written treaties."

Thus, the Eastern question was not removed by the agreement of 1934 but continued to burden international relations. As shown by the evidence, it became more and more clear in the course of political evolution that sooner or later solutions of some kind had to be sought. Both the statute of the Free City of Danzig, which was in contradiction with ethnological, cultural, and economic facts, and the isolation of East Prussia through the creation of a corridor, had brought about causes for conflict, which a number of statesmen feared as far back as Versailles.

Taking into consideration such a state of affairs, the British Declaration of Guarantee to Poland of 21 March 1939, enlarged on 25 August 1939 into the Mutual Aid Agreement, sufficed in case of the appearance of a possibility of conflict with this country, to make the Poles averse, from the very start, to a sensible revision even on a modest scale.

This Declaration of Guarantee shows once more to how great an extent Great Britain, taking a sensible political view, drew conclusions from the decline of the collective security system and what little confidence she had in the practical results of the moral condemnation of war through the Kellogg Pact.

Herr Von Ribbentrop had, therefore, to draw the conclusion from the behavior of Great Britain that the attitude of the Polish Government, from which Germany was entitled to expect some concession, was bound to become rigidly inflexible. The developments during the following months proved this conclusion to be right.

The entry of the Soviet Union into the conflict shows, in particular, that the coming danger would develop within the compass of the traditional principles of politics and the realization by each state of its own interests. The Soviet Union, too, had in her turn left the ground of the collective security system. She looked at the approaching conflict from the viewpoint of Russian interests exclusively. In considering this state of affairs Herr Von Ribbentrop took pains at least to localize the threatening conflict, if it could not be avoided. He had every reason to hope for success in this endeavor, as both the powers mainly interested in Eastern Europe, the Soviet Union and Germany, concluded not only the Non-Aggression and Friendship Agreement previous to the outbreak of armed hostilities but simultaneously came to terms, by way of a secret agreement, concerning the future fate of the territory of Poland and the Baltic countries.

Nevertheless, the machinery of the mutual aid agreements was set going, and thereby the local Eastern European conflict became

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a world conflagration. If the Prosecution want to apply a legal standard to these happenings, they cannot do so without taking into consideration the Soviet Union from the point of view of partnership.

Through the participation of Great Britain and France, the conflict in Eastern Europe grew into a European one, inevitably followed by the universal war. The entry in the war of the powers mentioned took place according to the form provided by the Third Hague Convention concerning the opening of hostilities, that is, an ultimatum with a conditional declaration of war.

At the session of 19 March 1946, Mr. Justice Jackson, interpreting the Indictment, stressed the point that the extension of the war brought about by the Western Powers did not constitute a punishable aggression on the side of Germany. This interpretation is in keeping with his general argument concerning the concept of aggression. If he wished to carry this through quite consistently, he would logically have to declare Great Britain and France aggressors against Germany for having brought about the state of war by means of the ultimatum.

I believe I am in agreement with the Prosecution when I express the supposition that such a result would not meet with its approval. The Prosecution have presented their evidence in such a way as to enter into the political-historical background of the war. They have accordingly not been satisfied with relying on the formal legal definition or any single criterion thereof. They herewith confirm my conclusion, presented by me to the Court, that the definition proposed by the Prosecution is no suitable basis for the qualification of the indeterminable concept of aggression.

May I confirm, according to events at the outbreak of the war, the following:

The Kellogg Pact and the concept of aggression, the Prosecution's pillars, do not sustain the Indictment. The Kellogg Pact had no legally conceived substance for states, much less for individuals. The attempt to put life into it afterwards by means of a formal concept of aggression was frustrated by political reality.

Herr Von Ribbentrop's share in the extension of the conflict to Scandinavia was so small that it hardly can be laid to his charge as an individual action.

The interrogations of the witnesses Grossadmiral Raeder and Field Marshal Keitel' have shown beyond doubt that as a matter of fact Herr Von Ribbentrop was informed of this operation for the first time only 36 hours in advance. His contribution was solely the elaboration of notes prescribed it to him in content and form.

Concerning the actual facts, namely the imminent violation of Scandinavian neutrality by the Western Powers, he was limited to

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the information communicated to him. The evidence has shown, and I shall set forth later in legal argument, that he as Minister for Foreign Affairs was not competent to check this information and that he did not possess any actual means to do so. Presuming that this information was true, he could justly assume that the German Reich behaved in the intended action quite in accordance with international law. I leave more detailed argument concerning

this point of law to my colleague, Dr. Siemers, well conversant with this point, whose client, Grossadmiral Raeder, had submitted to Hitler a large amount of enemy information and the proposal for a German occupation of Scandinavia.

In the case of Belgium and the Netherlands it has been proved by evidence that unlimited maintenance of the neutrality of the Belgian-Dutch territory by these countries themselves could not be guaranteed. Even previous to the war there existed between the General Staffs of the Western Powers and those of both neutral countries agreements and constant exchange of practical knowledge concerning tactics and occupation in case of a conflict with Germany. Detailed deployment plans and fortification systems built under supervision of officers detached for that purpose by the Western Powers were meant to prepare the reception of Allied forces. These projects included not only co-operation of the armies concerned, but also the assignment of certain civilian authorities to assist in the supply and the advance of the Allies.

Important about these preparations is the fact that they were made not only for the case of defense, but also for the offensive. For this reason Belgium and the Netherlands could not or would not defend themselves against British bomber formations continuously flying over them, with the immediate aim of destroying the Ruhr district, the Achilles heel of the German war industry. This area was also the main goal of the Allies for an offensive on land.

These intentions as well as most intensive preparations for offensive measures by the Western Powers had been ascertained beyond a doubt through sources of information. The grouping of the offensive forces showed that the Belgian-Dutch territory was included in the theater of operations. As has already been described in connection with preceding cases of conflict, such information was continuously passed on to Herr Von Ribbentrop by Hitler or his deputies. Here, too, Herr Von Ribbentrop had to rely upon the accuracy of this information without having the right or the duty of checking it. In that way he, too, became convinced that in order to avert a deadly danger, namely, an Allied thrust into the Ruhr district, preventive countermeasures were necessary. On the basis of these considerations, Luxembourg could not be spared because of the extensiveness of modern military operations.

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In connection with this procedure the Prosecution accuses, among other things, German foreign policy and thereby Herr Von Ribbentrop, of having committed an invasion in contradiction to the Fifth Hague Treaty concerning the rights and duties of neutral powers and persons in case of war on land.

The Prosecution overlook that this treaty does not refer to drawing a neutral into a war between other powers but deals only with the rights and duties of neutrals and belligerents as long as a state of neutrality exists. The Prosecution have made the mistake of applying their, as I have shown, erroneous interpretation of the Kellogg Pact, to the pact which had been made 20 years earlier. There remains no doubt that at the time of the Second Hague Peace Conference the outbreak of war was a fact of historical value and not subject to any law. All treaties concerning laws of war, especially the Rules of Land Warfare and the Neutrality Pact for Land and Sea Warfare, rest upon the basis of an existing state of war, hence do not regulate the jus ad bellum, but the jus in belle. This fact disposes of the Prosecution's references to the Fifth Hague Agreement in all cases of the expansion of war as concerns neutrals which have ratified this treaty.

It is, moreover, quite doubtful whether the Locarno Treaty can be referred to, as was done by the Prosecution, in connection with drawing Belgium into the war. With Germany's resignation in 1935 the Locarno system had collapsed, as will be shown by the defense counsel of Baron von Neurath. All attempts to effect a new agreement which was to take its place were based on the fact that the actual situation created by Germany must be taken as the starting point for a new agreement. This is shown especially by the British and French plans for the intended new agreement. The attempt to create a new agreement was not successful. However, the thorough and wearisome negotiations show very distinctly that none of the signatories considered the Treaties of Locarno valid any longer. On the contrary, the Western Powers proceeded to consider among themselves the effects which their obligations of guaranteeing the Western borders still had after Germany's withdrawal. Regardless of how one may judge Germany's attitude of 1935, it remains to be stated that the pact system had become untenable thereby. Hence in 1940 German commitments to the Western Pact of 1925 no longer existed.

I shall on a later occasion discuss the existing arbitration treaties and treaties by agreement with Belgium, Poland, and Czechoslovakia in connection with the Locarno Treaty when discussing in general Germany's obligation for a peaceful settlement of disputes.

As far as Luxembourg is concerned, not even the Prosecution referred to the neutralization of this country. Evidently they went

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on the assumption that Germany had been forced by the Treaty of Versailles to give up the rights given to her by the London Agreement of 1867.

When, on 24 March 1941, the Yugoslav Government joined the Tripartite Pact, Herr Von Ribbentrop could not, in the light of the available news, assume that a few days later a military intervention by Germany in the Balkans would be necessary for political reasons. This situation was caused by the forcible change of government in Belgrade. The reaction to the joining of the Tripartite Pact by the Stojadinovic Government resulted in a new political change in Yugoslavia under the leadership of Simovic, which aimed at close cooperation with the Western Powers, counter to the idea of the Tripartite Pact.

In view of this uncertain situation in the interior of Yugoslavia, which on account of the mobilization of the Yugoslav Army and their deployment on the German frontier became a danger for the Reich, Hitler suddenly decided on military operations in the Balkans. He made this decision without the knowledge of Herr Von Ribbentrop, with the idea of eliminating an imminent grave danger for his Italian ally.

The testimony of the witness Generaloberst Jodl has shown beyond a doubt that Herr Von Ribbentrop, after Hitler's decision and after the Simovic Putsch, earnestly endeavored to be allowed to exhaust all diplomatic possibilities prior to the beginning of military operations. Generaloberst Jodl has confirmed here that Herr Von Ribbentrop's endeavors were rejected in so rude a manner that, taking into consideration Hitler's nature and the prevailing methods, any influence on him was practically out of the question.

In view of the fact that ever since 4 March 1941 strong British forces were pushing to the north from Southern Greece, a further localization of the Italian-Greek conflict was no longer possible. Although this war had begun in the autumn of 1940 against German wishes, Hitler, with a view to the general situation, certainly could not tolerate the imminent defeat of his Italian ally.

When Herr Von Ribbentrop on 23-August 1939 signed at Moscow the treaties between Germany and the Soviet Union, including the secret agreement concerning the partition of Poland and the surrender to Russia of the Baltic States, the sometimes very vehement

ideological discussions between National Socialism and Bolshevism were for the time being eliminated from the international sphere as an element of danger. This system of treaties, which was supplemented in the course of the next month, had a favorable influence on the opinion concerning Hitler's foreign policy held by large circles of the German people who were alarmed by the ideological contrasts.

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Ever since Bismarck signed the treaty of benevolent neutrality with Russia there was a general conviction in Germany that the maintenance of friendly relations with Russia must always be the goal of our foreign policy. For the traditional reasons just mentioned, Herr Von Ribbentrop at that time considered these pacts a strong pillar of German foreign policy. Because of this opinion, in the winter of 1940 he invited the Foreign Commissar of the Soviet Union, Molotov, to visit Berlin to clear up problems which had arisen in the meantime. Unfortunately this second conference did not bring about the desired results.

Hitler became very much alarmed at the results of this conference and through secret information as to the future attitude of the Soviet Union toward Germany. Especially the attitude of Russia in the Baltic countries, as well as the Soviet march into Bessarabia and into Bukovina, were considered by Hitler as actions which were apt to endanger the German interests in the Baltic border states and in the Romanian oil district. He saw, furthermore, in the attitude of the Soviet Union the possibility of exercising influence on Bulgaria. He found his suspicions confirmed by the conclusion of the Friendship Pact with Yugoslavia on 5 April 1941, at a time when Yugoslavia, after a change of government, threatened to join the Western Powers.

In spite of these misgivings of Hitler's, of which he frequently informed Herr Von Ribbentrop, the defendant tried to avoid tensions. The Tribunal has permitted me to submit an affidavit which confirms that Herr Von Ribbentrop, in December 1940 in detailed discussion, still tried to induce Hitler once more to give him authority to include Russia in the Tripartite Pact. This documentary evidence confirms that Herr Von Ribbentrop, after his conference, was justified in the opinion that he would succeed in this step with the approval of Hitler. Subsequently, however, Hitler returned again and again to his misgivings, which were strengthened by the information of his own secret service about military operations on the other side of the Eastern border. In the spring of 1941 Herr Von Ribbentrop tried to bring to Hitler, at Berchtesgaden, the German Ambassador in Moscow and one of his subordinates. Neither of the diplomats was admitted. This ended the attempts possible for Herr Von Ribbentrop within the scope of his position under the regime. Afterwards he also believed that he could no longer shut his eyes to the information which was brought to his knowledge.

As Generaloberst Jodl has testified, he and all the commanders who took part in the beginning of the Russian campaign were convinced that they had pushed right into the midst of an offensive concentration of troops. This is proved, among other things, by

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maps which were found covering the territory beyond the German-Russian line of interests. Is it really to be assumed that such conduct by the Soviet Union is in agreement with the Non-Aggression Pact?

Around that time the danger of a spreading of the European war into a world war began to loom more and more threateningly. The United States entered the arena of war under a neutrality law, by which they subjected themselves in advance to clearly defined rules in case of a future war. The mechanism of the neutrality law was set in motion by a proclamation of the President. It designated at the same time the danger zone within which American ships could not count upon the protection of their government.

This attitude at the beginning of the war confirms that the United States, the author of the Kellogg Pact, was not of the opinion that the traditional law of neutrality had in any way been modified by it.

The United States, however, during the course of the spreading and the aggravation of the European war, deviated more and more from the original line, without the German Reich furnishing any cause for conflict with them.

After the experiences of the first World War, German general opinion, and consequently that of Herr Von Ribbentrop, was that an intervention on the part of the United States should be prevented by all means. Since the "quarantine" speech of President Roosevelt in 1937 strong contrasts could, however, be noticed more and more in the ideological-political train of thought of the world's public opinion. The situation was aggravated by the incidents of November 1938 in Germany, -which were the reason for the recall of the Berlin Ambassador to Washington to report, from whence he did not return to his post.

If, in spite of that, the neutrality policy was further prepared by legislative acts and became effective at the beginning of the war, the German Foreign Office, and thus Herr Von Ribbentrop, could conclude that the existing differences of opinion as to the internal political development of the State would not change the neutral attitude of the United States. Considering this expectation, not only everything that could produce an unfavorable effect in the United States was avoided from the outbreak of the war; but we also quietly put up with quite a number of actions by the United States which were weakening Germany and which were incompatible with strict neutrality.

The world public was informed of the agreement on the political aims of neutral America and belligerent Great Britain when the leading men of the two states proclaimed in August 1941 the Atlantic Charter as the program for the new order of relations between

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the nations. It had a character obviously hostile to the Axis Powers and left them in no doubt that the United States espoused the cause of the other side.

There followed the incidents on the high seas which, as the evidence has shown, can be credited to the account of the material support of Great Britain by the United States.

By occupying Iceland and Greenland in the summer and autumn of 1941 the U.S.A. took over the protection of the most important line of communications of the then sorely struggling British Empire. This amounted to military intervention even before the outbreak of the officially declared war. The so-called "shooting order" of the President brought about a dangerous situation which might have resulted any day in the outbreak of armed conflict. Even several months before 11 December 1941, the United States took measures which were usually taken only during a war. The outbreak of the war was only a link in the chain of successive incidents, perhaps not even the most important. It was started by the Japanese attack on Pearl Harbor, which, as the evidence has shown, was neither instigated nor foreseen by Germany.

According to the formal definition of aggression, the declaration of war is one of the criteria for the determination of the aggressor. As I have already pointed out in connection with the spreading of the war in Europe, this criterion alone without the factual background is no positive proof for an act of aggression. As a reaction to the numerous violations of neutrality by the United States, which really represented actions of war, the German Reich would have been justified long before in replying on her part with military actions. Whether this right was exercised after the preceding announcement-that is, a declaration of war-or not is immaterial.

So far, I have thrown some light upon aggressive acts as enumerated by the Prosecution from the beginning of the Polish campaign to the entry into the war of the United States. It remains for me to take up a juridical position regarding the treaties concluded by Germany, which provided for a pacific settlement of political conflicts.

Herr Von Ribbentrop is charged not only with having been a party to aggressive acts, but also with failing in his duty to put into play the mechanism of the aforesaid treaties previous to an armed conflict. From the fact that the means for pacific settlement as provided by the treaties had not been used, the Prosecution draws the conclusion that these omissions can be attributed in a criminal sense to Herr Von Ribbentrop. This interpretation however would be erroneous from a legal aspect.

If we begin by sharing the Prosecution's point of view, we shall see that even so the conclusions drawn by the Prosecution cannot

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be upheld. Assuming that an individual minister were criminally responsible for the nonfunctioning of a series of treaties, even the Prosecution would have to put the question whether the minister was actually in a position to obtain through his actions a result of any legal consequence. According to a principle embodied by nature into every system of criminal law on earth, a defendant is punishable for an omission only if he was actually in a position, and legally liable, to act. I shall demonstrate at length, within the compass of my arguments concerning the conspiracy, how small in fact Herr Von Ribbentrop's possibilities of influence were. The decisive point at issue is the fact that he was not legally in a position to make any declarations to foreign powers binding the German Reich other than those he was empowered to by the head of the State. As head of the State, Hitler was the representative of the German Reich from the point of view of international law. He alone was in a position to make binding declarations to foreign powers. Any other persons could legally bind the German State only if authorized by the head of the State, unless the treaty in question explicitly provided otherwise.

It is a characteristic not only of the German Fuehrer State that the Foreign Minister cannot independently enter into binding commitments toward foreign powers. Rather it is a general principle of international relations that only the organ empowered to represent the state is able to act for it. The difference between German conditions and those of democratic constitutions merely lies in the fact that in the former the Foreign Minister usually has a larger influence on the intentions of the head of the State. The defendant, therefore, could not have obtained any legitimate results if he had tried, against the Fuehrer's wish, to have recourse to the possibilities of a settlement of conflict as provided by the numerous treaties of arbitration and conciliation. No one but Hitler could have put in motion such a procedure. The defendant could have been in a position to do so by Hitler's order only. He had not even the right to have his advice listened to if Hitler chose to ignore it.

These points of view apply for example to the following treaties enumerated by the Prosecution: The Convention for Peaceful Settlement of International Disputes of 1899 and 1907 and the Treaty of Arbitration of 1929 between Germany and Luxembourg. It should be mentioned, moreover, that these agreements by no means provided an obligatory settlement of political disputes.

As to treaties of arbitration and conciliation with Poland, Czechoslovakia, and Belgium, concluded in connection with the Locarno Treaty, the further point applies, quite apart from the legal argument just mentioned, that they and the Western pact

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form a political unit. Even externally, this is expressed in the fact that these agreements and the Locarno Pact are all of them annexed to the general final protocol of the powers participating in the Locarno Conference. The question could, therefore, be asked whether the conciliation treaties share the fate of the principal treaty, that is, the Western Pact.

I should particularly like to point out that the procedure laid down in these treaties ended in case of nonsettlement with the League of Nations Council, in which, at the time of the Western pact, the four participating great powers had, or-this applies to Germany-were to have, permanent seats. The withdrawal of Italy and Germany from this political body deeply affected the political basis upon which the settlement treaties were based. Moreover, the grouping of the powers had shifted so much that a part of the Locarno great powers, namely Great Britain and France, had in the year 1939, through agreements with Poland, already taken sides in advance in case of a possible conflict.

Concerning the treaties of arbitration and conciliation with Denmark and the Netherlands of 1926, may I be allowed to point out that the proceedings provided therein could not be applied at all, as there were no conflicts between Germany and aforesaid countries; quite to the contrary, Germany took steps which were aimed at the enemy belligerents she wished to anticipate in the occupation of these countries.

The Prosecution mentions, moreover, a number of assurances given by Hitler to countries with which Germany subsequently waged war. Since Herr Von Ribbentrop did not give such assurances in person, but rather the Fuehrer, his participation could form a point of argument only if he had given advice to Hitler in this respect. No evidence has been produced to sustain such a suggestion. A large part of these so-called assurances is contained in speeches made by Hitler before the German public, either in mass meetings or at the Reichstag. It is doubtful indeed whether such declarations, addressed in the first place to the German public, could have any binding results in the field of international law.

Whereas up to now I have spoken about the actions that led to the outbreak of the war and its spread, I shall now proceed to the second large complex of the Indictment, which deals with crimes committed during the war.

The Charter, in Article 6(b), declares violations of the laws or customs of war to be punishable. This conception is illustrated by a number of examples such as deportation, shooting of hostages, et cetera. But these examples fail to complete this conception in full. We are therefore obliged, in the same way as with Article 6(a),

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to propose to the Court a qualification which it can use as a basis for its decisions.

My conception agrees with the procedure proposed by the French Prosecution. They have declared that they should be free to qualify definitions of punishable offenses not fully defined by the Charter. What is good for the Prosecution is good for the Defense.

The use of the expression "laws and usages of war," as well as the enumeration of examples, forces one to believe that the Charter aims at violations of the classical jus in hello. I therefore qualify war crimes as offenses against binding law established between belligerents by agreement, or against binding and generally recognized prescriptive law. The individual facts which range under the collective conception of War Crimes, therefore, must each be examined as to whether they are to be regarded as such according to the traditional rules applying to armed conflicts between states. Whereas, in general, classical international law holds responsible the state as a unit only, there always existed in the usage of war the exception that also acting individuals were liable to be held responsible. How far this responsibility of the individual can be followed by criminal proceedings after the war has been the subject of many discussions. It can be ascertained that the prevailing practice of states is that-the belligerent who has been injured by a war crime may also, after the war, call the offender to account. If several states, which have fought shoulder to shoulder in the war, form a common court against the war criminals of the conquered adversary, this court has the collective competency of all the states that form the court or have joined its charter.

When speaking of the liability of individuals to be punished for crimes committed during the war against the adversary, who thereafter sits in judgment upon him, one thinks in the first place of former members of the armed forces. Already at Versailles there were difficulties in answering the question as to what extent military chiefs were to be made responsible. The idea of having a minister of a department held responsible under criminal law has so far never emerged. In Versailles, too, the War Criminals Committee was occupied with the question of making nonmilitary personalities responsible from a purely political point of view. This committee discriminated clearly between war criminals, which were to be judged by the Allied court, and guilt with regard to the outbreak of war, for the examination and judging of which a special international political court was to be created.

The customary conception is therefore that a minister cannot be held responsible for violations of the jus In hello. The Prosecution can achieve this only by going the roundabout way via a conspiracy. If we follow the interpretation given to this conception,

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the Foreign Minister of the Reich would, for example, be responsible for the destruction of the village of Oradour. He would have to take responsibility for actions which have nothing in the least to do with the Reich's foreign policy and are merely isolated actions by some office or other.

As the hearing of evidence has shown, the Reich Foreign Minister was not only not competent for the conduct of war, but had in fact not the slightest possibility of influencing military measures as far as either curbing or furthering them was concerned.

If one wished to regard the various cabinet ministers as a clique of conspirators also with regard to War Crimes, it would have to be proved that the military offices competent to conduct the war acted in agreement with the ministers or at least after having given them the necessary information.

The concentration of military authorities and ministers into a unity of purpose, directed toward the perpetration of such criminal acts abominated by all decent people, is an artificial subsequent construction of the Prosecution. The unity, which did not exist at the time when it is supposed to have been effective, has only now been drawn up as a conception. The facts are now subsequently to fit the conception. It is obvious that criminal proceedings cannot be built up on such a method.

Herr Von Ribbentrop cannot therefore be punished without discrimination for all war crimes committed during the war by the German side. Such a responsibility for the results would be absolutely grotesque. He could only be held responsible for individual acts if he himself participated in certain concrete individual actions.

Herr Von Ribbentrop is accused by the Prosecution, according to the testimony of General Lahousen, of having issued "directives" to Admiral Canaris to have Ukrainian villages set afire and to massacre the Jews living there. First I wish to establish the fact that even a Foreign Minister cannot issue directives of any sort to a military agency. Furthermore, it would have been wholly nonsensical to issue such directives for the setting afire of Ukrainian villages. Ukrainians supported the German fight against the Poles. Thus hardly anyone will believe that Herr Von Ribbentrop at that time advised the destruction of his own allies. My client further insists categorically that not one word was mentioned about the massacre of Jews in that particular conference, the less so, since there was no reason for it at all.

I beg the Tribunal to base their decision regarding charges of War Crimes and Crimes against Humanity raised against Herr Von Ribbentrop, on the general attitude of the accused with respect

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to questions of humanity. As was proved beyond doubt by the evidence, Herr Von Ribbentrop saved the lives of 10,000 Allied prisoners of war through vigorous personal intervention. As I will further show, within the framework of the conspiracy he was instrumental in the unfettering of British prisoners of war and he used his influence for the observance of the rules of the Geneva Convention. He was opposed to the branding of Russian prisoners of war. These are instances upon which the Tribunal may base their decision with respect to questions of humanity.

This may also be an appropriate gauge for the general behavior of the accused as concerns questions of humanity in problems where he was not actively involved. ,

Furthermore, his attitude in the question of the treatment of terrorist airmen is charged as a war crime to Herr Von Ribbentrop.

My client, as well as the Defendant Goering, deny that the conference at Schloss Klessheim mentioned in Document 735-PS ever took place. I should like to emphasize that General Warlimont, who made these notes, did not personally participate in the conference. Furthermore, the opinion allegedly voiced by Herr Von Ribbentrop, according to the document, stands in contradiction to his usual demeanor in this question. State Secretary Steengracht deposed here that Herr Von Ribbentrop, after the publication of the notorious article about lynch law in Das Reich, at once vigorously protested against it.

Further evidence concerning the problem of terrorist airmen, through examination of the witnesses Generaloberst Jodl and Field Marshal Keitel, proves that not only the Foreign Office but Herr Von Ribbentrop personally made every effort in principle to uphold the Geneva Convention and that Herr Von Ribbentrop together with other leading personalities took pains to assure the retention of at least the basic human principles, even approaching Hitler at times when he lost all control of himself. In spite of all that happened, the fact that in consequence of these steps the Geneva Convention was not renounced must be called a success. Especially with regard to terrorist airmen it must not be overlooked that terror attacks in the form of air bombardments undeniably constitute a war crime if they are undertaken indiscriminately on cities and not on military and armament objectives only. It must be taken into account in the reaction throughout Germany toward the conduct of the air warfare of the Western Powers that, according to established and traditional conceptions in armed conflict between nations, attacks on the civilian population are prohibited. This thought is not only expressed in the Hague Convention concerning land warfare but constitutes a binding stipulation of general international law, binding for all and not applicable to the theater

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of operations on land only. Acknowledging this, the Hague Rules of Air Warfare of 1923, although permitting air attacks on military objectives in undefended cities, do not permit the bombing of the dwellings of the civilian population. Although the Hague rules were not ratified, they were in practice followed by all belligerents and acknowledged as prescriptive law.

These measures became especially acute after complete air superiority had been achieved by the Allies and when the resulting constant low-level attacks on the civilian population took place. These particular events led for the first time to the discussion whether, in the face of a warfare which was undeniably violating international law, it was still of any use to uphold the Geneva Convention in its substance. These considerations and corresponding reflections led to the drafting of documents which have become the object of evidence in the proceedings and which constituted, as shown by the evidence, drafts but not decisions on this question. They can therefore not form the basis of a judgment, since surely a state is entitled to ask for the opinion of the competent authorities on this question.

With the permission of the Tribunal I have presented the role of Herr Von Ribbentrop before the war, at its outbreak, and through its duration. ,

Beyond this the Prosecution holds all defendants responsible for every crime presented here. The idea of a conspiracy is being used as a basis for this common liability. If the logical inferences were to be drawn from this unlimited accusation, then each defense counsel would have to deal with all the details presented by the Prosecution. The obvious impossibility of taking up so much of the Tribunal's time shows how questionable the basis of the accusation is. Therefore I have to confine myself to examining the participation in the conspiracy only from the viewpoint of the actual and legal position of the Foreign Minister in the Third Reich.

Conspiracy in the sense of the Charter and of the Indictment means a sort or form of participation in a punishable act. This kind of offense was, until now, unknown to German and continental legal conception. It exists only in Anglo-Saxon law. In this realm of law by conspiracy is understood participation in a punishable act which requires, at the very least, a common intent tot commit a crime. A further prerequisite is that the mutual plan leads to the perpetration of a definite punishable offense.

The Charter proceeds from this form of participation in a crime in declaring punishable all offenses stated in Paragraph 6, assuming the existence of a conspiracy or a common plan, as a special form of participation in these crimes. The Charter then stipulates, in

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Paragraph 6 (a), another special form of conspiracy declaring punishable the participation in a Common Plan or Conspiracy to carry out offensive wars or wars violating international treaties.

By the conception "common plan" the Charter and the Indictment obviously understand something that reaches beyond the sphere of conspiracy. Mr. Justice Jackson himself admitted that it went beyond the punishable facts of a conspiracy according to Anglo-Saxon law and thereby created a conception which is not yet juridically formulated. Both forms of conspiracy constitute a liability for all acts committed by any one person carrying out both these forms of conspiracy.

The Indictment uses piracy as an example in order to make the participants in this alleged conspiracy appear as a single body. The conspirators are all on board of a pirate ship which, contrary to the laws and justice of all nations, engages in robbery and therefore is outlawed. Anyone who punishes the crew helps to restore justice.

At first glance this picture appears somewhat a propos. However, on closer inspection, it becomes obvious that it is only a matter of a catchword which tries to compare the community of the ship's crew, united with the ship for better or worse, to the dissimilar, complicated conditions of a modern state organization. The ships of all nations are, according to established, commonly recognized, and uncontested conception, authorized to combat piracy on the high seas upon encountering a pirate. The criminal law of almost all nations knows explicit regulations for combating piracy. The peculiarity of this offense in distinction from other acts punishable in every country, whether committed against native or foreign citizens-for example white slave traffic acts, counterfeiting of coins, and so forth-lies in the fact that jurisdiction is carried out on the high seas. Therefore, the mistaken idea may arise that a crime in the sphere of international law is concerned. This, however, is not the case. Piracy is a common offense, the prosecution of which is, by international law, permitted not only in coastal waters but also on the high seas belonging to all nations. The basis for this conception was laid in the United States in the beginning of the last century by decisions given by Chief Justice Marshall.

The acts with which Herr Von Ribbentrop is charged were committed at a time during which the German Reich and its opponents confronted one another first in peace and then in war on the stage of international relations. An example taken from the sphere of common criminal law as practiced inside a country is not suitable to convey a plastic representation of a conspiracy of an entire state apparatus. In the first place, the idea of the state, which according to the conception of traditional international law is the only bearer of rights and duties, is systematically destroyed so that the persons

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standing behind it and acting on its behalf may separately be made liable to criminal prosecution. Since as a rule only a few persons acted directly as participants in the acts charged, the multitude of these people is then again compressed into an artificial whole, in order to hold them responsible also for those acts which were not committed by them.

Here the criticism of the jurist must start. According to our perception of law and that of all civilized nations, criminal responsibility is bound to basic rules showing but few divergences. Thus, according to continental law, only such persons can be held responsible for a punishable act who deliberately or through negligence contribute to a definite act. According to unanimous agreement the perpetrator, therefore, must know the plan to which he allegedly contributed, foresee the acts committed in executing it, and approve of them.

Participation in the form of conspiracy was until now known as an offense only to a limited legal circle. Therefore it is familiar only to that part of the legal systems which are represented by the nations who are conducting or have joined in the present proceedings. It was completely unknown to the German conception of law and, therefore, to Herr Von Ribbentrop at the time of his political activity. This form of complicity marks a much wider range of actions as criminal than Herr Von Ribbentrop could have anticipated at the time of his activities in the field of foreign policy.

But even if this form of complicity is assumed as a basis for legal findings according to the Charter, neither the official position as Reich Foreign Minister held by Herr Von Ribbentrop nor the individual acts committed by him in this capacity can make him appear as a member of a conspiracy.

The case of Von Ribbentrop shows in particular how, through the introduction of the concept of a conspiracy, responsibilities become interlocked which, taking into account the official position and authority as well as the personal attitude of the individual conspirators, have nothing whatever to do with each other.

The Prosecution, however, in order to achieve its aim, compresses into a subsequently fabricated unity a number of actions and individuals, chosen at random, which have nothing at all to do with one another. If one followed the Charter and the Indictment, the result-wholly alien to any actual and legal thought-would be that Herr Von Ribbentrop, while personally and actually completely eliminated from any influence over the Occupied Eastern Territories, as thoroughly proved by the evidence, would have to bear the responsibility for all War Crimes and Crimes against Humanity committed there, whereas, for instance, the Defendant Streicher,

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although he headed his own special department, would be answerable for the foreign policy.

If one confirms the existence of a conspiracy to commit War Crimes and Crimes against Humanity it would practically result in making, for example, Herr Von Ribbentrop and the Foreign Office responsible for such crimes, whereas evidence has shown that this very office always tried to observe the rules of warfare according to international law and to adhere to the Geneva Convention even when this involved a severe struggle with Hitler.

The conspiracy to commit War Crimes and Crimes against Humanity can refer only to actual offenses against rules of war, either individual actions, as, for example, the execution of escaped British Air Force officers or certain measures incompatible with the accepted rules of war. In any case, the unity of conspirators must relate to a specific act or to specific groups of acts of the same nature. It is impossible to hold a defendant responsible for actions not approved by him or which he has tried to prevent.

I think the Prosecution will agree that there simply cannot exist any conspiracy to commit crimes against the usages and customs of war. This concept is so controversial and is so undetermined in the practice of the states and in the theory of international law that individual acts, which in the course of a war may be considered as war crimes, could not form a part of the plans of the conspirators. It must also be considered that the development of means and methods of war modified also the contents of the concept of war crimes. Therefore there can be only a conspiracy to commit specific or similar war crimes. Not every one of the so-called conspirators can be held responsible for each and every action which an objective judgment must define afterwards as a wear crime. Particularly, it would not meet the purpose of chastising the guilty it the defendants revere to be punished according to the general and artificial concept of conspiracy even for such war crimes which they tried to prevent with all their efforts.

PRESIDENT: The Tribunal will recess now.

[A recess was taken.]

DR. HORN: With permission of the Tribunal, I shall continue on Page 79 of my final plea.

The point of view just mentioned applies particularly to Herr Von Ribbentrop. Not only did the military conduct of war have nothing to do with his department; but he was, as was proved by evidence, expressly excluded from it by repeated orders of Hitler. His department was only affected by War Crimes insofar as they led to negotiations with foreign powers. Moreover the fact, for instance, that after the terrible air raid on Dresden the execution of over 10,000 Allied prisoners of war was prevented through Herr Von Ribbentrop's intervention with Hitler proves that, when informed of imminent War Crimes, he did what was in his power to do within his sphere of influence. These arguments and the result

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of evidence show how unjust it would be to share the point of view held by the Prosecution, that is, to hold a Foreign Minister with limited authority responsible for War Crimes and Crimes against Humanity, the more so as it has been conclusively proved that he was excluded from any influence on the conduct of war.

With the Court's permission I shall now deal with the alleged conspiracy for the planning and preparation of aggressive wars and the violation of treaties. Within the framework of such a conspiracy, the defendant is apparently to be held responsible in his capacity as Minister for Foreign Affairs and the of flees formerly held by him in the diplomatic service.

This kind of conspiracy apparently deals with any act or plan which has any connection with war, its preparation, outbreak, and course. As the individual acts within this enormous range are irrelevant themselves as regards criminality and until now have never been conceived from the point of view of criminality under "outbreak of war," this kind of conspiracy does not contain any facts so far known by any system of criminal law in the world. Therefore I can investigate this complex only from the point of view of Von Ribbentrop's ministerial position and his relation to the German Reich which waged the various wars.

Herr Von Ribbentrop, from 4 February 1938, held the position of a Minister of Foreign Affairs of the German Reich. As shown by the evidence, Herr Von Ribbentrop was called to his office on 4 February 1938 at a time when the actual leadership of foreign policy had already passed to Hitler in his double capacity of Reich Chancellor and head of the State. I have submitted as a document Hitler's speech of 19 July 1940 delivered at the Kroll Opera House in which he emphasized that Herr Von Ribbentrop had had to handle foreign policy for years according to Hitler's political directives. Herr Von Ribbentrop, therefore, did not hold the position of a minister as understood by modern political constitutions. As shown in the above-mentioned speech, he did not hold it either in fact or in law. This is shown by an examination of the public law of the Third Reich.

According to constitutional law, as it has developed in modern states in the course of the nineteenth and in the beginning of the twentieth century, the department of the Minister of Foreign Affairs belongs to the executive departments. The Minister for Foreign Affairs has to share with the Prime Minister the responsibility of conducting foreign policy. In a parliamentary democracy this involves responsibility towards the representatives of the people; in a monarchical or presidential constitution responsibility toward the head of the state. Such responsibility is actually of political importance only and results in the resignation of a minister from his

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office when he no longer enjoys the confidence of parliament or of the head of the state. Most constitutions make provisions for the indictment of a minister by the representatives of the people in case of violation of official duties. But even when convicted by a constitutional court, through some kind of criminal procedure, the minister is not punished; but his conduct is merely declared to have been wrong.

Both possibilities to call ministers to account were provided by the German constitution of the Weimar Republic. The indicting of a minister was however never put into practice.

The state law of the Third Reich brought a complete change in these matters. A short time after Hitler had come to power parliament was asked, with reference to existing internal difficulties, to give its consent to an Enabling Act. The German people and its representatives expected at the time that this authorization was to be used temporarily and merely for the removal of actual distress. This law became, however, the foundation of a complete readjustment of the constitution.

The possibility of parliamentary responsibility no longer existed. It changed into responsibility towards the Fuehrer and Reich Chancellor, in whose person the authority relinquished by parliament now rested. Now there remained but one responsibility: that toward the head of the State. Starting from this parliamentary authorization, all functions deriving from the authority of the State were concentrated more and more in Hitler personally. The traditional division of power, the result of a struggle for constitutional rights lasting more than a Century, became, by the fusion of all means of power, an empty shell and thereby obsolete. Full powers were concentrated in the hands of the Fuehrer, who made use of them separately through his plenipotentiaries. The constitutional jurisprudence of the Third Reich designated this as change from the actual to the functional division of power.

The individual minister, after this change had taken place, did not act any longer on his own responsibility but only on the order he had received from the head of the State. What applied to the individual also applied to the former Reich Cabinet. It had no longer any influence on state leadership but constituted merely a collective term for various branches of the administration which were technically separated. As the political tasks no longer existed with which normally the ministers as a group-that is, the Cabinet- had to deal, the tasks of the council of ministers were automatically settled by the very weight of the facts themselves. Therefore, as the hearing of witnesses has shown, it never met during Von Ribbentrop's period of office.

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Even the designation "minister" did not signify any longer the head of a government department but became a mere title expressing a rank.

The result of this reform was that the Minister for Foreign Affairs also no longer had the right to determine the outline of foreign policy. Evidence has shown this fact also in the form of speeches and utterances of Hitler, in which, for instance after the occupation of the Rhineland and the Anschluss of Austria, he said that he had brought about these-as he called them-'great decisions" against the will of his advisers on his own resolve, referring to his responsibility toward the German people and to history. Seen from the point of view of constitutional law, this means that no minister had any possibility of preventing the decisions. Neither had he constitutionally any authority to examine the legality of the Fuehrer's decisions. For the above-mentioned concentration of all functions of state power in Hitler's person, shows that he had both legislative and executive authority. Any pattern for the acts of legislation was no longer provided for in the Third Reich. Also there was no measure by which one could gauge from the tenor of the Fuehrer's decision whether he acted in his capacity as legislator or as head of the executive authority. The conception of material law, which in Germany as in all continental states was well established up to the assumption of power, completely lost its meaning. Even individual directives were given in the form of laws.

In all constitutions the authorities whose task it is to apply laws are not allowed to examine their purport. This applies even to jurisdiction, and all the more so to the administrative authorities. The application of a law that was made in the regular way provided for by the constitution may not be refused by any office of the state. Examination even by courts of law is limited to the question of determining whether the way laid down by the constitution has been followed. This is also the case in Great Britain and the United States, where decrees issued by the executive authorities, but not laws passed by Parliament, may be subject to examination with regard to their content.

In the constitution of the Third Reich there was only one authority for all expressions of the will of the State-the Fuehrer. Often it could not be perceived in what capacity he acted, owing to the destruction of the concept of constitutional law. The doctrine of constitutional law of the Third Reich therefore was debased to a theology of revelations of the Fuehrer. The former discriminations no longer existed for the ministers. The only question that could arise in the constitutional law of the Third Reich was whether the will of the Fuehrer was expressed in such a concrete way as to reflect the will of the State.

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This constitutional practice was unmistakably the result of having transferred the pseudo-military way of thinking to the sphere of politics. The conceptions of obedience and discipline were transferred to a sphere in which they were out of place.

In connection with the elimination of the traditional division of power, one fact must be pointed out which is just as characteristic for this despotic sui generis, as it speaks against the existence of a Conspiracy or a Common Plan. The evidence given shows no kind of advisory council or any organ of control over the head of the State. Neither the Cabinet nor the Reich Defense Council nor any other advisory committee had any influence on Hitler's decisions. The key documents and the statements of witnesses show only monologues by Hitler before an ever-increasing audience. Everything that has the appearance of a council is in reality a reunion for the receipt of orders. The evidence presented has definitely shown that efforts to influence Hitler at best led to unexpected reactions.

Herr Von Ribbentrop and several of the other defendants without doubt had considerable power in their own spheres, which did not interest Hitler. They were, however, completely denied participation in the great decisions on war or peace, armistice, peace offers, et cetera.

In the position of Foreign Minister, as held by Herr Von Ribbentrop, an independent personality was not tolerated. Herr Von Ribbentrop was aware of this, as State Secretary Steengracht has testified here. He stated that Hitler at the most had use for a secretary for foreign affairs but not for a Foreign Minister.

This development in the practice of constitution and government can hardly be reconciled with the thought of a Common Plan or Conspiracy. The conspiracy demands, as we have seen, a unanimity or correspondence in aims in which the participants form their will freely. The political practice of the Third Reich knew only acclamation.

So far, my examinations have been based on the norms of actual criminal law as laid down in Article 6. I should not like to close my statement without drawing the Court's attention to the relation between politics and law.

The essence of politics is and remains, in the life of sovereign states, the defense of the interests of one's own people. In order not to let this interpretation of politics degenerate into unscrupulousness, international life has established the principles of the settlement of interests and diplomacy as representative off this principle. It is diplomacy which has had an essential influence in establishing the principles of international relations and, therefore, of international law. The imperfection of international law is

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caused by the coexistence of many countries confronting one another on a level of equal rights. Its weak spot was the lack of any superior authority which would have been in a position to insure the existence of legal order in the same way as the authority of a state is able to within its own borders. Therefore at all times the unrestrained display of force has been allowed a wider range in the international sphere. Statesmen are in duty bound to take care of their own people's interests. If their politics are a failure, the countries they act for have to bear the consequences. They themselves are judged by the judgment of history. But in a legal sense they were responsible only to their own state for acts with which their state was charged by others as infringing international law. The foreign country injured by the action in question could not indict the acting individual. The barrier erected by international law, respectful of national sovereignty, between the acting individual and foreign powers was only removed in the case of war crimes whereof I have spoken. At any rate, at the beginning of the second World War this conception was, despite all attempts to the contrary, the unshaken concept of international law.

The French chief prosecutor gave, as a reason for the indictment of leading men of the late regime, the fact that a German Government, which might have been able to take legal proceedings in these cases, no longer existed. With the greatest esteem for this polished argument, it cannot remain hidden to a critical observer that such sharp logic is subject to false conclusions.

Any organized resistance headed by a national government came to an end when the German Armed Forces were utterly defeated and the whole of the German territory occupied by the Allies. The four principal victorious powers, which form this Tribunal, acquired by their might a legal right recognized by international law to decide the fate of the German national territory. They could have divided Germany up. But they chose another way. In the Berlin Declaration of 5 June 1945, they assumed "supreme authority within Germany, including all the powers possessed by the German Government, the High Command of the Armed Forces, and any state, municipal, or local government or authority." But this was all. The declaration expressly emphasized that the transfer of the authority did not mean the annexation of Germany. The exercise of the claimed rights was transferred to the Control Commission, composed of the commanders-in-chief of the four occupation zones.

Since the Berlin Declaration, Germany has been in a provisional state which is still prevailing. At the Potsdam Conference held in July 1945 the four powers among themselves made further agreements, of which we were informed by the communiqué of 2 August

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1945. The Potsdam Agreement for the establishing of a Council of Foreign Ministers transfers to the said Council the preparation of a peace settlement, which is to be accepted by a German government "when a government suitable for this purpose has been organized." A second agreement provides regulations concerning Germany while under Allied control.

This wording makes it clear that Germany is to remain a national state, that it is being placed under Allied control, and that the establishment of a German government is intended. This government is thereupon to accept peace conditions. This involves a government which is in a position to enter into commitments toward foreign powers as a partner qualified in international law.

The victors have accordingly chosen to exercise the right of decision given to them by conquest in such, a way that the German State will not be destroyed. During the transition period they themselves exercise the functions of the temporarily non-existing German Government. We are, therefore, entitled to take the Potsdam Declaration as a conjecture for the legal review of Germany's position.

The German State, accordingly, has not been annihilated. It would therefore be wrong, juridically speaking, and we would incur the reproach of lack of historical understanding, if we considered as new that state the direction of which is envisaged under its own government. Germany is burdened with obligations which arose from her past. This is possible only if the state, upon whose behavior the obligation was based and who one day must answer for it, is regarded as the same legal body. Though the German State, at the moment, is not in position to act according to international law through its own organs, it has not vanished from the sphere of the international legal order.

Thus, in view of the fact that M. de Menthon's premise is untenable, his final deductions cannot be accepted. Therefore the jurisdiction of the victorious powers over German subjects with regard to their acts connected with politics cannot be based on current international law. Thus the Charter abandons the international legal code. Furthermore, it contradicts fundamental principles of criminal law. If the French prosecutor is of the opinion that the Tribunal exercises the penal authority of the German State, a state which according to his opinion does not exist at this time, then he must logically apply the sentence nullum Crimea sine lege to the criminal law existing in Germany. An act could therefore be punishable only if at the time of its commission it was punishable according to the German law. This does not apply either to personal criminal responsibility for the violation of international

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treaties and assurances or to the participation in the Conspiracy or Common Plan.

In recognition of this, the Control Council for Germany in its Proclamation Number 3 has reinstituted in the system of German criminal law two constitutional principles from which the Hitler regime had deviated, namely, prohibition of retroaction and analogy.

The political criminal concepts of the Charter set a standard of new legal principles which must be considered as the embryo of a code of world law. Herr Von Ribbentrop, at the time when the incriminating events took place, lacked the apperception that there might be such a code of world law.

One can dispense with the necessity for ruling in advance that an act is criminal only in the very few cases where the cruelty of the act is so evident that there can be no doubt as to its deserving punishment. This could hold good for acts which were not punished in Germany during the last years solely in consequence of certain measures of the abnormal amorality of the Hitler regime.

I have heretofore presented the evidence from the point of view of valid international law and the Charter which you, Mr. President, in the session of 20 June 1946, again stressed as the basis for legal findings in these proceedings. Up to now, the code of international law has been unable to solve the problems which are to be decided here. On the basis of this inadequacy the second World War broke out.

The effects of this catastrophe, which this legal code could not prevent, cannot yet be perceived today. To prevent its recurrence in the future is the high aim of humanity, which forms the basis of the London Agreement of 8 August 1945. That this could not yet be achieved is shown with alarming certainty by the fact that, on the very day on which the Charter of this Court was proclaimed to the world as a new law, the war between the Soviet Union and Japan broke out. Its realization had been promised to the Allies by the Soviet Union 6 months prior to that. To justify it, it was pointed out, among other things, that Russia had to settle an old account with Japan. In other words, this typifies a case of an unprovoked attack.

I have illustrated that the attack and the attacker cannot be dealt with by a general definition covering every act of reality. The attacker can only be branded by a world authority. This supreme organ of mankind must possess not only an actual but also a moral authority. Universal trust must be put in its impartial judgment.

It must be a tribunal standing high above the conflicting parties, before which these parties appear only as seekers of justice but may have no place in it as judges.

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We live in a period of transition, from an old law under whose rule the ruins around us were created, to a new code of world law, which while taking shape, is not yet morally and effectively consolidated.

To judge and punish the acts which were committed by the former Foreign Minister, Herr Von Ribbentrop, his share in the happenings, the extent of his inadequacies, and his own personal guilt, is a difficult task almost beyond human strength in this period of decadence and revival.

THE PRESIDENT: We will call on Dr. Nelte, counsel for the Defendant Keitel.

DR. NELTE: "We must approach our task with so much inner deliberation and mental integrity that this Trial will later appear to posterity as the fulfillment of human longing for justice."

These words of Justice Jackson in his opening speech for the Prosecution must be the guiding principle for all those who have been entrusted with the noble task of contributing to the search for truth in this Trial. That this truth cannot be absolute has already been stated by the Prosecutors Justice Jackson and M. Dubost. The purpose of the Indictment is not to determine the historical aspect, let alone the historical development of this short but so tragically important period, but instead to find out whether, and to what extent, the defendants sitting on this bench participated in the events which have affected the entire world by their consequences and' which have brought such indescribable misery upon it' and not least upon the German people.

In this Trial the Prosecution once stated through one of their qualified spokesmen that it was their task to submit material that would incriminate the defendants and submit only such incriminating evidence. Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear their definitely one-sided standpoint in an Indictment which obliges the Defense to...

THE PRESIDENT: [Interposing.] I have already corrected this misstatement which you have made in your speech here, in dealing with one of the other speeches for the Defense. It is not the practice of the Prosecution to conceal any evidence which tends in favor of the accused.

DR. NELTE: I am afraid I cannot hear.

THE PRESIDENT: What I said was that I had already corrected the erroneous view, which is expressed in this paragraph in your speech, that it is the practice of the Prosecution to conceal anything they know which may tend in favor of the accused.

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DR. NELTE: Mr. President, on this very spot Mr. Justice Jackson stated, "We cannot serve two masters," when he replied to the statement that according to German criminal law the Prosecution would also have to produce material in favor of the defendants. What I am stating here is not said in order to raise any type of accusation against the Prosecution. On the contrary, from the point of view for which they stood they have done everything that was possible. I merely wanted to clarify my point of view as defendant's counsel and say why...

THE PRESIDENT: The only reason I interrupted you was because of the sentence in your speech, "They made clear their definitely one-sided standpoint." In the second paragraph, the second sentence of that paragraph, you say,

"Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear"-that is, the Prosecution made clear-"their definitely one-sided standpoint in an Indictment..."

DR. NELTE: I said "one-sided"-that contrary to the governing principle of German criminal procedure, which is objective indictment, it has made clear its definitely one-sided standpoint of indictment which obliges the Defense to submit all circumstances and considerations which are indispensable for an objective administration of justice.

THE PRESIDENT: Go on. It may be a different translation.

DR. NELTE: For this purpose, it is first necessary to clarify certain concepts which are needed for the perception of responsibility and guilt. As far as concepts of international and constitutional law are concerned, they have been examined and presented by Professor Dr. Jahrreiss.

With regard to the sphere of the soldier I should like to make some fundamental statements. There have been repeated references here to the concepts of soldierly conduct, obedience, loyalty, performance of duty, and patriotism. It is my belief that all men recognize these concepts to be good. But it is permissible to say that not all of these concepts are unequivocal. Thus are opposed: "best soldierly conduct" and "militarism," "natural obedience" and "contemptible blind subservience," "the categorical imperative of the performance of duty" and "the exaggerated sense of responsibility," "the deep love for one's country" and "chauvinism."

We see that all these concepts can run through the Scale of good and evil. The origin and the essence of these concepts are everywhere the same, but the forms they take on through tradition and education and by the effects thereof vary greatly. However, if this is the case, who then should differentiate and decide whether the

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feeling is still in the realm of good or has already reached the sphere of evil?

We are all of us living in a world whose century-old striving has aimed at the creation of order. Order is certainly a relative concept, too, but it is everywhere the establishment of the relationship of human beings to each other which guarantees the best possible means of living peacefully side by side in view of the intrinsic character of each country.

This holds true both for the state and for the relationship between nations. Who should determine in this order what is right and what is wrong? The criterion for this might be, according to the traditional conception, only a constitutional, that is, a national one. The drawing closer of the nations by world traffic and general civilization resulted in the various national concepts becoming adjusted to each other in spite of many differences. It must be admitted that this process of adjustment suffered a harmful set-back through certain National Socialist doctrines and their methods. Nevertheless, the principle remains inviolable that the criterion of right or wrong must be a national one, if order is not to be dissolved. The only thing worth striving for is the adjustment of nations and national fundamental concepts to each other as is now being attempted through world organization.

Although the national criterion, that is, the national judgment of good and bad, right and wrong, had been well established in any case up to now, the concepts never have been deprived of their relativity, especially when national differences existed for other reasons. A convincing example of this is the opinion expressed about the resistance movement.

All countries extol what is considered to be the highest form of patriotism: When someone risks his life for his country under the utmost danger. However, according to the Hague Rules of Land Warfare such resistance movement is forbidden. We have here a clear example of the contrast between ethical and legal evaluation. This proves that there are no absolute concepts of good and bad or right and wrong and that beyond all written laws there are unwritten laws which acquit the culprit when he obeys those higher laws. Those higher laws, however, also depend on subjective and national, that is, collectively subjective considerations. If anybody believes something to be good or right, such faith may come into existence out of an actually higher law, a truly higher idea; but it may also grow out of misled faith, out of a false idea. Who would or who could judge whether a faith or an idea was or was not right? History teaches that usually the successful idea is recognized as right, to a certain extent because it is a divine judgment. I do not

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wish to decide whether that is always true. The question here, however, is whether the people whose guilt is to be judged acted in good faith, in accordance with such an idea and such a faith. If the ordeal has demonstrated this faith to be wrong, the question remains open whether the people could believe the idea to be good for comprehensible or explainable reasons.

This question constitutes the problem which concerns not only Defendant Keitel but also the entire German nation. According to the speech of the French Prosecution not only the defendants in this Trial are the really guilty ones, but the entire German nation. The extent and importance of this thesis are tremendous. Should the Tribunal-if only on the grounds for its decision-come to the conclusion that the entire German nation is guilty, every German for incalculable time will bear the brand of Cain which finally must lead to the destruction of this people and its dissolution.

It has been stated most authoritatively that there is no intention here of accusing the entire German people. Through unconditional surrender we are left entirely to the mercy of the victorious powers for better or worse. It was said, however, that the verdict of this Tribunal is to be just. Here in this Court it is not clemency or inclemency which are to be the guiding principle but justice. Justice does not mean mildness. A verdict, however, will only be just if it takes into consideration all the circumstances which underlie the actions and conduct of the defendants. There is no excuse for what has happened and for what forms the subject of this Indictment. I can only try to give an analysis.

The misery, the misfortune that has fallen on the entire human race is so great that words do not suffice to express it. The German people, especially after having learned the catastrophe that has befallen the nations in the West and East and the Jews, is shaken by horror and pity for the victims. The German nation knows what this misfortune means; for it is stricken as hardly any other nation is, not only in the military field but through the sinister consequences of air attacks, through the loss of millions of its youth in the field, through evacuations and escapes in ice and snow. We know, therefore, what it means to be in misery and to have to suffer. But while other nations are able to look upon all this misery and all this misfortune as a chapter of the past, and in the protection of constitutional order have the comforting hope of returning to an orderly existence and a happy future, there still rests upon this nation the gloom of despair. By affirming the guilt of the entire nation the verdict of this Tribunal would perpetuate this despair. The German people does not expect to be acquitted. It does not expect the cloak of Christian charity and oblivion to be spread over all that has happened. The German nation is ready to the last to

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take the consequences upon itself. It is willing to accept it as its fate and do everything to participate in removing the consequences. It hopes, however, that the soul and hearts of the rest of mankind will not be so hardened that the existing tension, in fact the existing hatred, between this nation and the rest of mankind will remain.

Your task, Your Honors, is a terribly hard one. We not only speak different languages, each of us feels with the soul of his own country. Much of what has happened in this country will seem incomprehensible to you. The feelings of the German people in its different categories are not your feelings. One of the most essential points, especially in the case of the soldier, seems to me the way of judging what freedom is felt to be. In this country, too, the ideal of freedom was proclaimed. All of us know that the most extreme form of freedom is anarchy. No state desires anarchy, because it means surrender of its own existence. If therefore, all countries agree that the absolute concept of freedom is never worth striving for and can never be sanctioned, there results, perforce, relativity of the concept of freedom. No concept has been so misused as the concept of freedom, and yet every political system proclaims freedom as the greatest of all blessings.

By that, I by no means wish to say that the concept of freedom as proclaimed by National Socialism was the right solution. What I do wish to say, however, is that National Socialism also knew the concept of freedom and made it clear to the people through propaganda that its conception of freedom was the right one. National Socialism was aided in this by the fact that under the effects of the Treaty of Versailles Germany could indeed make no claim to be really free. The limitations of its sovereignty were so pronounced and so evident that it was easy for National Socialism to proclaim the fight for the freedom of the fatherland.

As long as the fatherland is recognized in the world as the highest worldly possession, endeavors to keep this possession must be understood and will not be disapproved of even when it is an adversary who makes them. One may be of a different opinion as to the method which should be used for the realization of these endeavors and as to how freedom is to be attained. This, however, is not decided by the individual but by that person or those persons who hold the power in a state.

Every human being wants something to hold on to in life; he must have it if he is not to sink into anarchy. Public order at the side of moral order is a firm support and the foundation of his existence, and this gives him a feeling of security in his life and professional activities. It is the deep longing of all civilized men for order which finds its highest fulfillment in the institutions of the state. On the other hand, the citizen must have confidence that the

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state, that is, its official agencies, will safeguard law and order. In this respect it should not matter which party provides the guardians of its inviolable principles. That is just where the confidence of a nation as a whole expresses itself, namely, by leaving leadership to the prevailing majority. National Socialism undoubtedly aimed at and succeeded in rousing the belief in wide circles of the German people that its endeavors were supported by the majority of the people. It thereby procured for itself the alibi of legality.

Far from all political considerations, as all the generals and admirals have testified here, the leaders of the Armed Forces believed in the legitimacy of Hitler's Government. It looked upon itself as the instrument of a legal government, as it did when the Kaiser, Ebert, and Von Hindenburg were Germany's representatives.

Like all tendencies, all forms of expression of feeling, the feeling of patriotism and of a soldierly attitude bears in itself a tendency to become more radical and thereby to degenerate, if external circumstances create an actual basis for it. We have experienced the exaggeration of sound national ideas into national chauvinism, and we can observe retrospectively how the sound soldierly idea was exaggerated by influences foreign to its nature into the militaristic form of expression. All these developments are not desultory, which would make them easily recognizable and regulated. The driving forces are mostly not apparent to those whom they concern. They are like a poison which acts slowly and unnoticed and the effect of which results one day in a horrible eruption. It needs no special explanation that a component part of the soldierly and military person who is being geared to a possible war is ruggedness, and in its intensification it turns into brutality. One often finds on the part of famous-and not only German- war leaders the view that the brutal war is frequently the kindest if it leads to a quick ending. This, of course, is desired by every war leader. Once peaceful restraint is removed by war, all that remains is brutality. It reveals the causes of total war and the source of the terrible disaster which resulted from it.

The Defense has a difficult task in this Trial. The German people look to Nuremberg, disunited in themselves. Some are skeptical and partly hostile toward the Defense because they believe the Defense is favoring those whom they consider as war criminals and believe that the Defense wishes to prevent that just punishment be meted out to the defendants. Others say the Trial is just a show, at which the Defense Counsel act as dummies to give the Trial the appearance of a judicial procedure. Accordingly, in the view of these Germans we would make ourselves guilty of favoring the enemy.

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We have no reason to justify our actions because by our participation at this Trial we are fulfilling a task in line with the precept of our calling, the importance of which needs no justification. It consists of co-ordinating our efforts in the interest of clarifying the truth-the importance and effects of which is today incalculable for our German people-of getting to the bottom of the causes and of answering the question as to how all this could have happened.

Only the clear recognition of the cause, the forces, and the people which brought about the disaster which has come over this world will create the possibility for the future of our people to find the way back again to the rest of the world.

The task of this Tribunal is not to search for the political, economic, and metaphysical reasons for this second World War and not even to examine the course of events in its entirety, but rather only to determine whether and what part these defendants played in that which the victor nations made the object of these proceedings.

The task of the Defense, within the framework of their cooperation in finding the truth, consists of examining which factual and legal points could be stated in favor of the defendants. It should be said here that with all the co-operation on the part of the Tribunal shown to the Defense in producing their evidence, the actual possibility of producing defense material for the defendants was limited. Justice Jackson said in his basic prosecuting speech . . .

THE PRESIDENT: You seem to be coming back to further attacks upon the way in which this case has been tried and that is not what you are here to do now. What you are here to do now is to present the case on behalf of the Defendant Keitel.

I see that further on here you go on to complain about alleged noncommunication to you of various documents and you refer to a discussion on the subject which took place as long ago as February of 1946. On that occasion I expressed the view on behalf of the Tribunal that the French Prosecution might properly show to you or give you the opportunity to look at their documents. From that day to this, that is to say from February until July, you have made no application to the Tribunal or made any complaint to the Tribunal that that has not been done; and now, in your final speech, you make this complaint that you have not been allowed to see the documents in spite of the fact that in February I expressed, on behalf of the Tribunal, the opinion that you might see such documents.

Well, it seems to me that it is a waste of time, a waste of our time now to make these complaints after all these months, apart

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from the fact that you have already spent time which has been involved in reading 11 pages of your speech without coming to anything which really affects the Defendant Keitel.

DR. NELTE: Mr. President, I believe that in February you told the Prosecution, according to the record, that they should place these documents at my disposal. The Prosecution, unfortunately, have not placed these documents at my disposal.

THE PRESIDENT: Why did you not come back to the Tribunal? You knew perfectly well that I had expressed my opinion on behalf of the Tribunal; and if there was anything to complain about, you had full access to the Tribunal from February until today. It seems to me that it is a frivolous complaint to come now.

DR. NELTE: I hope, Mr. President, that nevertheless the facts which I am putting to you in my manuscript will be considered by the Tribunal. You will notice that I shall refer to this matter at a later stage. On 1 February the session took place during which this affair came up, and on 11 February I went to the French Delegation.

THE PRESIDENT: That is what I have stated, Dr. Nelte. I have already pointed that out to you.

DR. NELTE: And the French Prosecution did not give it to me.

THE PRESIDENT: Why did you not come back to the Tribunal if you had any complaint to make? I have said-and I repeat- that I think to make a complaint now after not having made it for all these months is a frivolous complaint and an attempt to create prejudice, and I should be glad of your explanation.

DR. NELTE: Mr. President, it is merely an attempt to show you that I did not wish to raise a complaint about the Prosecution, recognizing as I did that the Prosecution did not want to help me. I have never been inclined to raise complaints about higher authorities, and I did not want to do it in this case either.

THE PRESIDENT: Dr. Nelte, I think that is a most unfair and a most improper thing for a responsible counsel to say. I think the mention of such a complaint is, as I have said, simply an effort on your part to create prejudice against the French Prosecution and against the fair conduct of this Trial.

DR. NELTE: Mr. President, in my view it was merely meant to show how difficult it was for us to find material in favor of our clients.

THE PRESIDENT: Well, perhaps you will try and get on to something that is really material for the Tribunal to consider.

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DR. NELTE: May I ask you to turn to Page 15 where, under Figure 3, I am dealing with the documents.

The document governs the hearing of evidence before this Tribunal. Against that the witnesses remain in the background. More important is the examination of these documents to ascertain the possibility of their utilization and their probative value.

The Prosecution has submitted as evidence to a large extent official reports which are admitted according to Article 21 of the Charter. I intended to show with respect to a number of these documents the conditional value of such reports as evidence. But I shall limit myself to a few fundamental arguments in this connection, trusting that you, Your Honors, in examining this kind of evidence will take my statements into consideration.

These numerous official reports submitted contain factual statements which to a great extent are based on witnesses' testimony. These testimonies are not always related in the form of protocols but as summarizing reports. I do not want to dispute that these testimonies of witnesses are made as deposed in the reports. However, I will not do injustice to any of the witnesses who are not known by the Tribunal and whose testimony is hard to verify for lack of a personal impression, when I say that it concerns mostly very subjective attestations. There are a number of documents in which this is clearly recognizable, and in fact stated, and even documents in which hatred finds its clear expression. I can understand the hatred of these hard-hit people. The suffering they had to endure was so great that one cannot expect impartiality from them. I may, however, say too that such personal feelings are not conducive to rendering the testimony of these sorely afflicted ones a suitable basis for finding the real truth. I am thinking of the form of oath so often heard here on the part of the witnesses: "Swear that you will tell without hatred or fear..." And these official reports often contain not only factual statements, but final conclusions and judgments. To this extent, the probative value of these official reports cannot be recognized. In part these judgments go so far that outside the sphere of those directly involved they level reproaches against authorities, that is, the OKW and Keitel, without it being possible to recognize from the document itself on what the conclusion drawn rests. As long as it is a question of the indictment of an individual like the Defendant Keitel, a document used in evidence must give a proof which yields concrete facts for responsibility or which at least reveals causal connection. Above all, it cannot suffice, in order to consider Keitel's responsibility as proved, if in such reports crimes committed by soldiers and officers of the Army or of the Armed Forces are alleged in order to derive responsibility

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on the part of the Defendant Keitel from this fact alone, because he was the Chief of Staff of the OKW.

It must be added that in these reports military agencies have often been erroneously named and confused; for example, when the Defendant Keitel is spoken of as the "High Commander (Oberkommandierender) of the Wehrmacht," which is called "OKW" instead of "OKH." It is not always possible to decide to what extent it is a question of an erroneous conception on the part of the Prosecution or whether it comes from a translation which is not in accordance with the meaning.

In order to examine the responsibility of the Defendant Keitel, I wish to make clear to the Tribunal, in a manner which excludes any doubt, what the channels of command and competence were and to this end I have submitted two affidavits to the Court a) "The Channels of Command in the East" (Document Book 2, Keitel-10); b) "The Development of the Situation in France 19401945 and the Military Authorities" (Document Book 2, Keitel-13). The latter affidavit has also been signed by the Codefendant Jodl. I refer to these affidavits and make them the contents of my argument without reading from them.

Finally I would like to direct the attention of the Tribunal toward other circumstances which may well impair the probative value of the documents which the Prosecution has submitted and you have accepted-for example, when documents do not bear any signatures, and it is impossible to decide whether it is a question of copies of documents which have actually been issued. As an example I will refer to Document 081-PS, which was submitted by the Prosecution for Keitel's Indictment during the question of the treatment of prisoners of war. As far as its contents are concerned it is a fabulous document. Keitel does not remember ever having seen this report or ever having knowledge of the details contained in it. From all appearances one must consider this document as the draft of a report which was not issued, for:

a) it bears neither a signature nor an initial as is usual in copies,

b) if this fetter had been sent out, it would have a blank journal number; and

c) the letter was not found at the addressee's. In such cases mere knowledge of the addressee-in this case the Defendant Keitel-and the consequent deduction of his guilt in omitting to take measures to change conditions cannot be considered as proved.

I come to the Indictment against Field Marshal Keitel. I shall shorten the reading of Pages 19 to 21. The reading of the general Indictment and the special Indictment in the trial briefs can be omitted here since, with the exception of the Jewish problem and the persecution of the Church, there is no part of the Indictment which the Prosecution has not raised against the Defendant Keitel.

I should wish merely to point out that the original general Indictment holds Keitel responsible only for the period after 1938 and secondly, that at the beginning of the Indictment, Keitel is described as Chief of Army Command. According to the evidence submitted by the Prosecution, Keitel was also held responsible

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for the period after 1933, although the American, British, and French Prosecutions seem to have dropped the allegation that Keitel was Chief of Army Command. The Indictment of Field Marshal Keitel is split, therefore, between the periods 1933 to 1938-that is, 4 February 1938-and from 4 February 1938 until the end.

I shall now continue on Page 21, the last paragraph.

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 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.]

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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 forces; their conflict with each other makes up much of

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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.

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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 recomputed, or should have recognized this;

(c) that recognizing this he, together with the others, especially the codefendants, 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?

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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,

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f

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

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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,

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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. Bruning'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 Bruning 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

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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..."

I quote further:

"The world does not take seriously the wishes of the weak. Weakness is too great a temptation for the strong."

And finally I quote:

"Above all, it seems to me, we must correct the tragic misunderstanding that a policy directed at security is a war policy."

The best witness with regard to this question, which is so important for the Defendant Keitel, is the book by a British Major General, A. C. Temperley, (Publishers Collins, 1938) The Whispering Gallery of Europe, for which the British Foreign Secretary of the second World War, Mr. Anthony Eden, wrote a very friendly, concurring preface.

THE PRESIDENT: Dr. Nelte, wouldn't it be possible for you to pass over the reading of these passages which come from the book of Major General Temperley? The Tribunal will take notice of them. There are quite a number of long speeches from the book.

DR. NELTE: I intended to ask the Tribunal whether it would kindly take judicial notice of these passages if I submit them.

They carry particular weight because Temperley reports and judges retrospectively from the year of 1938.

The statements made by Temperley, who witnessed the disarmament conference, the official negotiations and the negotiations behind the scenes, are deeply moving because they reveal the tragic-I must use the word-fateful- and primary conflict: fateful because the thesis presented by the representatives of the different countries-which was derived from the national, given conditions and from traditionally bound conceptions-proved that the difficulties could not be overcome and thus formed the origin of the confusion the last consequences of which we have just experienced. Temperley says:

1) (Page 50) "The French had studied the question of disarmament much more thoroughly than any other nation, and some of their best brains of the General Staff and Naval Staff had examined the problem for months ... To characterize their problem roughly, it was their goal to disarm themselves as little as possible although they were the strongest power of the world, but at the same time to keep Germany in a state of disarmament down to the minutes" detail according to the conditions of the peace treaty...

(page 71) "`In the report which I gave, I spared neither the French nor us. We had made big mistakes, but at that time I came to recognize that in reality the French never thought of disarming at all... M. Paul Boneour certainly was honest and worked intensively in order to achieve success,, but the pressure of the French General Staff upon the Government was too great...

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2) (Page 126) "Mr. Stresemann knew his people best. It was a race against time. How long could he keep his people in an atmosphere of cooperative acquiescence any tangible success in the form of concessions on the part of the Allies? Ought the Allied Governments to have given faster and more willingly what they were ready to give? Would this gesture have prevented the catastrophe? . . . Doubtless, history will provide the answer. I do not know what kind of an answer it is going to be, but it seems certain to me that the most important period, when Germany turned away from the road of peace, will be found to be the period of co-operation between 1929 and 1930... Would a less hesitating policy as regards the Cancellation of the debts, economic reconstruction, and concessions in the treaties have prevented Hitlerism and all its consequences? Who knows? . . . In his Review of International Affairs, 1930, Professor Arnold Toynbee writes: 'For the foreign observer who visited Germany at that time it was a terrible and strange drama to see a whole nation-one of the greatest and most civilized nations of the world-engaged in a heroic struggle against fate, had paralyzed already in titanic battle, driven by the conviction that its steps had already irresistibly been led on to the path of destruction.' (Pages 128 and 129) "The German people had lost hope. .. The French had always contended that Germany would maintain a pretext of modesty as long as the Rhineland was occupied, and that when the occupation ceased the true color would show... This has proved to be a good prediction, yet it was a concurrence of circumstances and the expression of a people taking its last gasp rather than premeditated planning...

3) (Page 151) "I was present at the session and was profoundly moved in the face of the attitude of the French delegation and that of the Little Entente. They believed that they now had Germany financially by the throat and that her utter ruin was only a question of weeks. Our Foreign Office recognized the situation. Yet after a discussion with Henderson I ask myself whether he really did recognize the abyss which was gaping before us..."

Perhaps one certain passage might be of interest, on Page 38, under (4):

"I also name the general staffs, because there is no greater illusion than that they, taken as a whole, are in favor of war. I know the general staffs of many countries very well, and have never known any general staff which would have glorified war or would have wished for war. They knew too much about it. If they advocated strength, it was because ~ they believed in the idea that armed strength can prevent war. "fin opposition to the bloodthirsty pacifists who reject modern weapons, but who immediately clamor for their presence on the battlefield when one must resist attackers... This leads to the conclusion that armaments are not the main reason for wars. The history of the years 1926 to 1931 is not that of a race for rearmament, But that of a slowly developing deterioration of the international situation because of the economic and political chaos, which made disarmament impossible and rearmament unavoidable... (Page 222) "The Germans actually repeated their successful tactics in circumventing treaties, the very tactics they had used id Napoleon's time. And yet, one wonders what other honor-loving nation in the same circumstances would not also have done its utmost to Circumvent a treaty which had been forced upon it at the point of the bayonet...

(Page 232) "The following 6 months brought Germany's return, Hoover's failure and that of the French plans, and the complete change in the atmosphere through Hitler seizure of power. However dreadful this was for the peace of the world-the other powers, above all France, have only themselves to blame for it... We should have exerted more pressure upon the French and made greater efforts to keep a moderate government in office in Germany.

(Page 256) ''. . . they felt they were still being treated as outlaws . . ."

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I would like to ask that these opinions of the British general which, as I already said, had the approval of the Foreign Secretary, Mr. Anthony Eden, be taken into consideration. In this connection I want to refer also to the statements by the following statesmen: Paul Boneour, Henderson, Briand, and Cecil, these statements were submitted by Dr. Schacht's defense (Schacht Document Book Number 3 Exhibit Schacht-12) on the same subject matter and were accepted by the Tribunal; I also want to refer to the book by Viscount Rothermere: Warnings and Predictions (Page 100).

In examining and deciding whether the Defendant Keitel knowingly violated the military clauses of the Treaty of Versailles in the meaning of the Indictment, the Tribunal will have to consider the facts which have been presented. Individual charges against him on this point have not been made.

It is unquestionable that from 1933 on rearmament took place in the Reich. The Defendant Keitel has admitted that, and he stated that in the official positions he held up to 30 September 1934 and from 1 October 1935 on he participated in this rearmament in accordance with the functions incumbent on him. Like everything the Germans do, the rearmament too was well thought out and organized. The Prosecution collected data for that; especially Document Number 2353-PS and the transcripts of the sessions of the Reich Defense Committee.

During the hearing of evidence the total picture of this period from 1935 to 1938 was not clearly defined. The Prosecution arranged its presentation of evidence retrospectively and drew a conclusion from the results of the war as to the motive for the rearmament, but at the same time it deduced from the fact, which cannot be denied and has not been denied, that this rearmament could not have been planned and carried out by any one man, that it constituted a joint plot for the purpose of aggressive war.

Now, where is the decisive criterion: in military armament or in other preparations for war from which the conclusion may be drawn that these measures have an aggressive character, that is to say, that they aim at an aggressive war? In principle, from armament itself nothing can be deduced as to the alleged intentions; armament may, in fact it must, look just the same if carried out for security and defense as it would if applied to aggressive war. Therefore, if the intention of rearmament for the purpose of a plot is to be determined, distinction must be made between:

(a) Armament and preventive measures which must be taken in case a mobilization should become necessary for defense at any time;

(b) Rearmament and enacting of measures which exceed, in quantity or quality, the volume under (a) to such an extent that the intention of the political leadership to begin a war will be recognized by those concerned, in which case the political question of whether an aggressive, defensive, or preventive war is intended

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may be disregarded. Therefore, in the end, the decisive question will be whether in connection with these measures the intention of planning for an aggressive war was expressed or had become otherwise noticeable, or whether the measures, because of their nature and volume, demand the conclusive deduction that an aggressive war was being prepared.

In retrospect, the events are presented as the logical chain of a development according to plan. In reality, not only Hitler's far reaching intentions and his planning were subject to an actual course of events in which, objectively viewed, a certain causality seems to be inherent, but the knowledge and approving support of co-operating circles were equally subject to this. There can be no dispute over the statement that the economic capacity of a country, which in its totality must be regarded as armament for the case of war, will eventually get to a point which must be considered of decisive importance in solving the question of when the rearmament, that is, the status of the entire industry essential for war, exceeds the capacity of armament for defense.

While considering this, it must be taken into account, especially for the Defendant Keitel as a soldier, that until he took over the of lice of Chief of OKW on 4 February he had not held an important position.

Now, what part did the Defendant Keitel play at that time,

(a) In the field of rearmament with regard to material and personnel;

(b) in the field of administrative and-as charged by the Prosecution-military-political rearmament as dealt with under the heading of the Reich Defense Council?

I shall now skip Pages 43 to 46, since they contain the historical development of the organizational principles, and I beg the Tribunal, if it can make use of this information, to consider it in reaching a verdict. I shall continue on Page 47.

When on 1 October 1935 the Defendant Keitel became the Chief of the High Command of the German Armed Forces in the Reich Ministry of Von Blomberg, there was a Military Economy Branch headed by Colonel Thomas. He was appointed by Von Blomberg as an expert adviser for the organization.

This Military Economy Branch, later called the Military Economy Staff, as a ministerial service post had to represent the Reich Minister of War with the competent and authoritative economy posts, later also with the Plenipotentiary General for Economy (GB), nominated in 1935. The Minister of War, Von Blomberg, generally communicated directly with Thomas at the time when Field Marshal Keitel was Chief of the Armed Forces Department.

To clarify the part Keitel had in the organizational development of rearmament in this period, I would explain the following:

I. The position at the start in 1933 (for the period 1933-38) was as follows: Lack of any kind of basis for production as a consequence of the destruction of the armament industry following the Treaty of Versailles.

Consequence: no capacity for production, no motor vehicles, no mechanical equipment, no offices for construction, no experience.

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Thus the first stage for rearmament: the restoration of a basis for production, and equipment and reconversion of factories.

IT. Basic initial factors to procure armaments:

(a) Branches of the Armed Forces, in issuing orders to firms through their ordnance offices as purchasing agents, were handicapped by budget means and their incorporation in the budget year.

Consequence: Subsidizing of firms for lack of long term orders and through the impossibility of calculation.

(b) War Economy Office in the OKW as the central organizer and representative of the producer firms through War Economy Dater Armament) Inspectorates as intermediary offices in the military area, to serve the branches of the Armed Forces as executive. Duties of the organization, which was run by a military staff:

(1) To gain information about and recommend firms to the military branches.

(2) To adjust the orders of the military branches to the capacity.

(3) To provide for the allotment of raw materials, machinery, and manpower.

(4) To further the extension and capacity of industrial plants.

(5) To protect the plants from bad investments, air raids, espionage, et cetera.

(c) The Plenipotentiary for Economy, GBW, as from the autumn of 1935 was the declared organizer of the entire German economy for its mobilization in case of war and its prospective leader during a war.

His duties in peacetime were preparatory only:

1. Statistical co-ordination of' the individual industrial and economic branches, including the armament authorities connected with the OKW, and the War Economy office under Thomas.

2. Provision and storing of raw materials obtainable by importation only.

3. Procurement of foreign currencies for importation.

4. Financing of domestic rearmament.

5. Planning of reconversion of the entire economy to war needs, and extension of the special armament industry.

6. Duties as mentioned already under II (b), (3), and (4), together with the War Economy office in the OKW.

In addition to this, but planned to take effect only in case of mobilization, there was collaboration with the following subordinate ministries: a) Ministry of Economics, b) Ministry of Food, e) Ministry of Labor, d) Ministry of Finance, for foreign exchange and purchase of raw materials, e) Ministry of Forestry.

This necessitated, from December 1935 onward, the participation of a GBW deputy for purposes of information in the Reich Defense Commission.

Alter Dr. Schacht's retirement from the Reich Ministry of Economics, the GBW became only fiction, because the fun powers had been transferred to the Four Year Plan, that is to say, Goering. Only when the powers of the ministry Of armament and munitions were extended in August 1943, when it became known as the Ministry for Armament and War Production, was there a revival of the originally planned position of the GBW entailing fun powers in time of war, but he remained subordinate as regards organization to the Four Year Plan, with the Fuehrer as the general authority in reality at the top, owing to the failure of the Four Year Plan.

II. In collaboration of the GBW with the War Economy Office in the OKW the "Mobilization Plan for Rearmament" had been set up, with General Thomas presiding. This "Mobilization Plan for Rearmament" acted on behalf of the Armed Forces and the GBW who supplied particulars of the industrial plants to be assigned from general production for reconversion to armament production in time of war. It was to attend to:

(a) labor requirements, (b) raw material requirements, and (c) industrial equipment (special machinery for weapons, et cetera).

The prerequisite of modern warfare is not so much the exploitation and organization of the manpower of a country into military formations, but it is essentially a problem of industrial capacity

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and of its appropriate utilization for the production of all necessary raw materials. This process must of necessity precede any rearmament, and requires expenditure of money and, even more, of time.

When Germany proclaimed her equal rights as regards defense -that is, military sovereignty-she did not possess the necessary resources for a material rearmament, as they had been taken away in the execution and recognition of the disarmament plan. It has been confirmed here during the Trial by various sources that first 10, then 7 to 8 years were allowed and anticipated for providing material equipment in the form of hitherto prohibited modern weapons and supplies, especially including munitions, for the peacetime Armed Forces which had been announced to the world with the proclamation of liberty for national defense in 1935. This becomes comprehensible if one considers that even the U.S.A. with its unlimited means, which were not impaired by the effects of war, required 1 to 5 years for the necessary conversion and rearmament in this war. Thus we see that rearmament, if it is intended to exceed the limits of defensive armament, can only be achieved gradually in the case of nations, which-like Germany in 1934-had no armaments.

First stage: Procuring of essentials with regard to industries and raw materials for the production of war supplies.

Second stage: Placing of orders with the armament industry for the first equipment of the peacetime strength of the Armed Forces and execution of these orders within the framework of the means provided by the annual budgets.

Third stage: Procurement of the munition and weapon supplies to be stored for the equipment of a mobile Armed Forces which would be developed, in the case of war, from the permanent peacetime strength in accordance with the manpower capacity of a nation. Those supplies would include the necessary replacements during the war.

If one considers that in 1934 Germany had no modern weapons, no submarines, and no military aircraft at her disposal, it can well be believed that any reasonable soldier had to assume under the given circumstances there could be no thought of a war, let alone a war of aggression.

Accordingly, the tasks which the Defendant Keitel assumed in his official capacity of Chief of Staff of the Armed Forces Department must be considered as purely preparatory and organizational. Keitel, of course, bears the responsibility for General Thomas, Chief of the Defense Economy Staff. The technical details and the

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extent of his activity can be seen from Document 2353-PS, which is correct in essence despite the fact that Thomas, in the declaration prefixed to this historical document, now wants it to look as if he had presented his original notes in an exaggerated way and given them a more favorable turn to please Hitler and avoid arrest. This does not correspond to the facts. What Thomas wrote proves, according to the Defendant Keitel's opinion, that a "war armament" with mobilization of the industrial capacity- and its conversion to war economy did not begin until early in October 1939. It further proves that the statements of the defendants who were examined here, as far as they were connected with this rearmament, and especially those of Dr. Schacht until 1937, are in complete agreement on the following point: At this period wars of aggression were not avowedly desired, and that in the light of the state of actual armament they must have appeared impossible.

But rearmament in manpower also shows the same picture during this period. The evidence has demonstrated that up to the spring of 1938 only 27 peacetime divisions were scantily equipped and that 10 or 12 reserve divisions were in preparation; at that time the Wehrmacht had no other supplies or armaments at its disposal. If despite this fact, and operating without general mobilization, it succeeded by the autumn of 1938 in preparing an army of almost 40 divisions for the aggression against Czechoslovakia, at a time' when it had the poorest protection on its western border, one can see what the maximum war potential was in those days.

Under such circumstances, and with knowledge of the armament situation and war potentials of neighboring countries which were mutually united by alliances and assistance pacts, none of the generals of the old school could ever think of bringing about a war. The fact that already one year later, in 1939, the state of German armaments was substantially improved, must primarily be attributed to the occupation of Czechoslovakia. Finally it must be pointed out that during this period there was no strategic plan for any aggression whatsoever. General Jodl has declared on the witness stand that when in 1935 he came to the Armed Forces Department, no plan nor anything similar was in existence, except what was provided for in case of internal unrest. The occupation of the demilitarized Rhineland zone was not planned, but was improvised by Hitler. The Initial Assembly and Combat Directives of June 1937 is a general instruction for possible military conflicts.

For the sake of completeness I must also call attention to Document EC-194. This is an order issued by the Commander-in-Chief of the Armed Forces, Von Blomberg, on the subject of aerial reconnaissance and the observation of submarine movements during the

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occupation of the Rhine. Keitel signed and forwarded this order. It is the only existent document of that period.

The \Reichswehr had a permanent force of 100,000 men, as had been laid down by the Treaty of Versailles. It is indisputable that in view of the size of the Reich, its unprotected borders and the way East Prussia was cut off, this figure was absolutely inadequate for creating a feeling of internal security and the possibility of defense in the face of an attack from the outside world-an elementary right for any country and nation. This state of inadequacy, which had been created by the military clauses of the Treaty of Versailles, was the subject of reflection even before 1933 with a view to improving it without actually making use of soldiers for the purpose. An examination was made and it was found that in case of mobilization a series of tasks could be taken over by the civil ministries. Here tasks of a purely defensive nature were concerned, which cannot be considered aggressive. They were tasks of national defense, and principally the following: I have enumerated them in my manuscript and, without reading them, I would like the High Tribunal to take judicial notice of these points. As it is quite clear these are matters for defense only.

(1) Protection of the frontiers by reinforcement of the customs service;

(2) Postal security by Reichspost agencies (repeater offices);

(3) Railroad protection by Reichsbahn personnel;

(4) Laying of cables instead of overhead telegraph lines;

(a) Construction of railroad viaducts and elimination of level crossings on main traffic roads;

(6) Construction of frontier fortifications in the East, Oder-Warthe line, Pomeranian line, Oder line (terrain expropriation);

(7) Improvement of maritime traffic with East Prussia and of rail transit through the Corridor;

(8) Fortifications in East Prussia;

(9) Reinforcement of frontier protection in East Prussia;

(10) Preparation by the Reichsbahn of mobile loading ramps;

(11) Reinforcement of the coastal customs service;

(12) Development by the Reichspost of the radio network (amplified transmitters and receivers);

(13) Manning of permanent army signal stations with Reichspost personnel;

(14) Relieving the Reichswehr from the charge of detaching soldiers for duties which can be carried out by civilian personnel;

(15) Protection of frontier crossings by the local authorities (Landrate);

(16) Co-ordination of motor vehicles, et cetera.

The advisory body for these tasks and their execution was, up to 1933, the Committee of Experts. It consisted of experts coming from the different civil ministries, who after being accepted by the Minister of the Interior-Severing, up to the end of 1933-met for conferences at the Reich Defense Ministry. The Reichswehr Minister charged the then Colonel Keitel to direct these meetings. At these meetings the experts received and discussed the desires of the Reich Defense Ministry as regards the afore-mentioned tasks, which the individual ministers could take over in case of a mobilization.

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During Minister Severing's time this co-operation worked without friction with the idea of satisfying as far as possible the wishes of the Reichswehr Minister, and it continued in the same way after 30 January 1933. The scope and content of the tasks remained the same. When, on 4 April 1933, a Reich Defense Council was established by a resolution of Hitler's new Reich Government, the committee was retained and only its name was changed: The Committee of Experts became the Reich Defense Committee. However, it did not change its field of action and was not given any new jurisdiction. It only grew in size as it went on developing, especially after the introduction of compulsory military service. Now, as before, the Reich Defense Committee was a body which had to give advice about those tasks of national defense concerning the civilian sector which had to be prepared and also partly taken over by the civil ministries. For this Count of the Indictment it must be made quite clear that after 4 April 1933 Keitel's position did not change either, and especially that he was not a member of the Reich Defense Council.

The Reich Defense Council, which has taken up a lot of space in the statements of the Prosecution, may be considered as virtually nonexistent in the light of the evidence produced-later on I will come back to the time after 1938. In any case the Prosecution could not prove that there was any session of the Reich Defense Council during this period. The minutes submitted dealt without exception with the sessions of the Reich Defense Committee, and the members of this committee reported to their competent ministries, who in turn had an opportunity, within the framework of the cabinet, to translate into concrete form the suggestions and proposals discussed in the Reich Defense Committee. Thus there were never any sessions of the Reich Defense Council whose existence was merely formal, so that witnesses could rightly say that the Reich Defense Council existed only on paper.

Keitel, up to 30 September 1933, as colonel and section chief in the Reich Defense Ministry, and later from October 1935 as major general and Chief of Stay of the Armed Forces Department in the Reich War Ministry, was a member of the Reich Defense Committee. Therefore, from 30 September 1933 to 30 September 1935 he was not in the War Ministry, and thus had no function connected with this Count of the Indictment. Neither did he during this time participate in sessions of the Reich Defense Committee, the minutes of which have been presented by the Prosecution as having special probative value. The session of 22 May 1933, described as the second session of the working Committee of Experts, was the last session in which Keitel participated before being transferred to serve with the troops. The first session after his transfer to the Reich

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War Ministry was held on 6 September 1935. It is put down as the 11th session of the Reich Defense Committee. Although in the examination of Keitel's responsibility one has to exclude the work done by the Reich Defense Committee during the two years between sessions 3 and 10, I will nevertheless make it the subject of my statements, as it is from these very minutes that one can see what the Reich Defense Committee was doing.

Only the knowledge of these minutes makes it clear why an institution, which in this or some other form exists in every country and which serves the purpose of national defense as deemed legitimate by every country, has now been presented as an important factor in submitting evidence on plans and preparations for aggression.

The minutes of the sessions- of the Reich Defense Committee in 1933, 1934, and 1935 reveal the character of the work as that of preparations for the event of war. But it is likewise evident that it is a question of preparations intended to bring about a more perfect degree of readiness in national defense in case of mobilization. If the "political situation" is twice mentioned, these allusions indicate the fear of military sanctions from neighboring states. (Reference is made to the case of Abyssinia, which led to sanctions against Italy.) Everything is rooted in the thought of overcoming that state of military impotency which made it impossible to safeguard the open frontiers of the Reich.

The recurring idea of obligation to secrecy can only be attributed to fear arising from the situation at the time lest the revelation of measures, however defensive, might produce preventive measures on the part of the victorious powers.

That these suspicions were well-founded is shown by the intransigent attitude of certain states after the complete disarmament of Germany, and this question is important for Keitel's attitude, for he affirms that the conclusion drawn from the obligation to secrecy, namely, that secrecy is a proof of bad conscience, and. bad conscience is a proof of knowledge of illegality, is erroneous.

The Reich Defense Committee never passed resolutions; it was an advisory body on matters of national defense insofar as the civilian sector was concerned with mobilization. At no time did it ever indulge in deliberations concerning rearmament as regards manpower or material, or concerning plans of aggression. The Prosecution has tried in one instance to show that the Reich Defense Committee was involved in plans for aggression.

I do not wish to read the next few sentences. Here we deal with the well-known event of freeing the River Rhine for traffic, a

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question which was designated as the technical liberation of the Rhine River. This came up in Goering's testimony.

They pointed out Document Number EC - 05, the minutes of the Committee for Reich Defense, session of 26 June 1934, in which there is mention of "participation in preparing mobilization." In these minutes under (e) can be found: "Preparation for the liberation of the Rhine." From this the prosecuting authorities have drawn the conclusion that already on :6 June 1934 the Reich Defense Committee was contemplating the "liberation of the Rhine." The witness Reich Marshal Goering has stated during his hearing that, given the unequivocal wording of the German text, it is a question here of the technical freeing of the river Rhine, but not of any strategic or political matter. I am mentioning this manifest error by the prosecuting authorities, which can only have occurred through a gross mistake in translation, because it has led to an erroneous conception of the prosecution as to the competence of the Reich Defense Committee, and because it is the only ease which has come up in connection with this complex.

The true nature of the Reich Defense Committee's activities is set out quite simply and clearly in the Manual of Mobilization for the Civilian Administration; Documents 1639-PS and 1639a-PS. It refers to the result of discussions between all the experts of the Reich Defense Committee, and is an appendix to the mobilization plan of the Armed Forces as well as to that of armaments.

These three mobilization plans all taken together form the basis of your decision. You may see from them whether the Prosecution is right in its assumption of a total planning for aggressive war, or whether the Defendant Keitel was right when he stated during his hearing:

"What has been discussed and planned here is what every country is entitled to do and what the responsible agencies are bound to do, if they do not wish to violate their most sacred duty, namely the safeguarding of the security of their country."

The decision of 4 February 1938 was fateful for General Keitel as well as for the German Wehrmacht: for Keitel who could not yet form an opinion on the newly-created office of the "High Command of the Armed Forces" (OKW); for the Armed Forces which on that day lost its relative independence.

Hitler broke down the last barriers between himself and the Armed Forces-the nation in arms-by removing both the Commander-in-Chief of the Armed Forces and the constitutionally responsible Reich War Minister. This truly portentous decision was fatal for Keitel and the German nation, though at the time of its occurrence this was not realized by the participants. That they must be blamed for not realizing it is easy to say now, in retrospect.

At thee time everybody who was not an inveterate skeptic or pessimist had to base his judgment on the development of things in general and on the strength of the personalities involved. Neither the one nor the other could be clearly appreciated on 4 February 1938.

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It was not a personal decision of the Defendant Keitel who did not know Hitler personally in these days and who met him for the first time man to man in the preliminary. Hitler assigned him to the newly-created office of Commander-in-Chief of the Armed Forces and Keitel accepted it. Even if we disregard entirely the human emotions connected with such a brilliant promotion there was no reasonable ground for the then Chief of the Armed Forces Department in the Reich War Ministry to decline the offer, since Von Blomberg himself had recommended him. Hitler's ideas about this office could not be discerned by Keitel. I shall pass to the next page...

The decree gave Keitel a wonderfully impressive office name as "Chief of the High Command of the Armed Forces." The historical foundation is the elimination of the commanding authority over the entire Armed Forces, which up to 4 February 1938 was in the hands of Field Marshal Von Blomberg, and on that day was taken over by Hitler himself. Hitler created at the same time the responsible Ministry of War, which up to that time had also been administrated by Field Marshal Von Blomberg. Dr. Rammers says the following about the origin of the Fuehrer's Decree of 4 February 1938: (Morning Session of 8 April 1946; Volume XI, Page 29.)

"The Fuehrer informed me that the Reich Minister of War, Von Blomberg, is resigning his office and that he avails himself of this opportunity to make some other changes in the Reich Government, particularly since the Foreign Minister, Von Neurath, is going to retire, which will make a change; there is also a change in the High Command of the Army. In this connection the Fuehrer gave orders for a decree to be worked out regarding the Command of the Armed Forces. It was to be merged with the Ministry of War. As a directive the Fuehrer gave me the following instruction:

"In the future I shall not have any War Minister; neither will I have in the future a Commander-in-Chief of the Armed Forces to stand between me, as the Supreme Commander, and the other commanders-in-chief within the Armed Forces.

"In accordance with this instruction the decree was formulated, by which the High Command of the Armed Forces was established as an Army Staff directly subordinate to the command of the Fuehrer. The Fuehrer did not want any independent office in this function, inserted between himself and the commanders-in-chief of the Armed Forces branches. In consequence, General Keitel, now appointed Chief of the High Command of the Armed Forces, had no independent commanding authority over the different branches of the Armed Forces. Such authority would not have been considered for other reasons as well."

Field Marshal Von Blomberg declares in the affidavits I have submitted: To Question 24:

"At our last discussion Hitler pointed out that he presumably would not fill my position again, and that he would thereby become himself the real Supreme Commander of the German Army...

"He asked for a suggestion for the assignment of a Chef do Bureau who would direct and carry out current tasks under him and thus under Hitler's responsibility.

PI named Keitel, who, under me, had administered this office very capably." In answer to Question 27:

"I proposed Keitel as Chef do Bureau, believing that I had put him in the right job."

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In such a position he would not be a military adviser to Hitler. Whether and in how far Hitler ever asked for his advice, I do not know. Even so, Keitel's responsibility, in my opinion, would not thereby be established.

Question 29:

"Was it not Hitler's intention to create a tool for himself in the person of Keitel, whose capacity for organization and hard work seemed to him valuable, as an executive organ for his decisions and orders?

"Answer: This question is emphatically confirmed by me. Hitler's original intention at that time was most certainly to have at his disposal a trustworthy subordinate organ, and in no way an adviser endowed with any responsibility."

The decree of 4 February 1938 regarding leadership in the Armed Forces is known to the Tribunal. Therefore, I do not need to read it to you. One sees from this and from the hearing of witnesses regarding the position of the Defendant Keitel and questions of his competence and responsibility, that:

(1) Hitler did not want either a responsible War Ministry or any other person but himself to exercise the commanding authority over the entire Armed Forces. He united in his own person both these institutions by declaring that, in regard to the commanding authority, he would from now on exercise this directly and personally, as well as the functions of the Reich War Ministry which were to be administered by Keitel under his instructions.

(2) Hitler thus created a military staff for a military-technical program. He designated it the High Command of the Armed Forces. This "Oberkommando der Wehrmacht" was therefore nothing more-and, I may add, no less-than the military chancellery of the Fuehrer and Supreme Commander. Such chancelleries already existed as Reich Chancellery, Presidential Chancellery, and Party Chancellery. The Defendant Keitel was assigned to the post of chief of the military chancellery with the title of Chief of Staff of the High Command of the Armed Forces (for short, Chief OKW).

(3) Hence it follows that the OKW was not intended to be an intermediary agency between the Supreme Commander of the Armed Forces and the three Armed Forces' sections. The assumption to the contrary held by the Prosecution, which is based on a graphic representation, is founded upon an erroneous opinion.

An independent intermediary level between the Supreme Commander and the three Commanders-in-Chief of the Army, Navy, and Air Force such as existed before 4 February 1938 no longer existed. The OKW, in which the Defendant Keitel was the Chief of Staff, was no independent military agency or authority, but exclusively Hitler's military-technical staff and his War Ministry office. The OKW had no independent authority whatsoever, neither the

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power to issue orders nor the command authority. Therefore, the OKW could not issue its own orders. On the contrary, all instructions, decrees, general directions, or orders issued by the OKW were the expression of the desires of the Supreme Commander of the Armed Forces. The Commanders-in-Chief of the three Armed Forces' branches were always aware of the fact that no intermediary level existed between them and the Supreme Commander, and they never considered or recognized the OKW as such. This is confirmed by the affidavits of the Codefendants Admiral Doenitz and Admiral Raeder, as well as by the testimony of Reich Marshal Goering and Dr. Lammers.

The idea that the OKW, or the Defendant Keitel as Chief of the OKW, would have had authority to issue instructions or orders independently is therefore erroneous. All official business, oral or in writing, which went beyond an exchange of ideas with other military agencies or authorities, was subject to the exclusive decision of the Supreme Commander himself. The OKW was merely the executive staff of the Supreme Commander.

(4) Therefore, when documents issued by the Supreme Commander or by the OKW show signatures or initials of the Defendant Keitel, or of a chief of office or section chief, one must not draw the conclusion that the persons concerned had authority to issue orders independently. In each instance it was merely a case of noting, forwarding, or transmitting the orders of the Supreme Commander himself. Because of the demands made on Hitler's time in his positions as head of State, Reich Chancellor, Party Leader, and Supreme Commander of the Armed Forces, it was not always possible to obtain his personal signature, unless it concerned fundamental matters of unusual significance. It must be noted that in all cases Hitler's personal decision or approval had to be obtained.

Such being the state of affairs, we cannot accept the Prosecution's argument that because the Defendant Keitel signed or initialed documents he is co-responsible for their actual contents. It would be arbitrary to infer the responsibility of the Defendant Keitel as chief of the military chancellery because he forwarded or signed orders, instructions, and so on, a responsibility which in my opinion can be charged only to the person who promulgates the order by virtue of his authority.

A real responsibility for this could be laid upon the Defendant Keitel only in case it were proved that he willfully participated in drawing up these orders, instructions, et cetera. ~

THE PRESIDENT: Dr. Nelte, would that be a convenient time to break off?

[A recess was taken.]

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M. CHARLES DUBOST (Deputy Chief Prosecutor for the French

Republic): Gentlemen, Counsel for the Defense have presented a request to the French Prosecution to have certain documents communicated to them. This request is divided into two parts.

The first part concerns the Scapini incident, which arose from the publication of a document in the course of my own statement. I am able to communicate to the Defense the answer which the French Government has made to its request.

The French Government has found in the archives left behind by the German authorities the answer which was made to the protest raised at the time of the massacre of French prisoners. It is, by the way, a purely dilatory answer. The German authorities replied that the Armistice Commission was not competent; that the request must be made by the Scapini Embassy. I have handed this document to the Defense and I think that the incident is closed.

The second part of defense counsel's request concerns a statement made by my colleague, M. Edgar Faure, who at the beginning of his speech announced to the Tribunal that he had examined approximately 2,500 documents, of which he had retained only 200. I can, of course, not answer on behalf of M. Edgar Faure. I only know that the French Delegation has only a total of 800 documents in its archives, and has submitted them all to the Tribunal and to the Defense. I therefore think that it is merely oratorical hyperbole and that my colleague wished to allude to covering letters which were of no importance. In any case, I had previously informed defense counsel Dr. Nelte that all the documents of our delegation were open for him to see and that he would be able to verify that we had no other documents than those which we had published.

On the other hand, the requests which we forwarded to Paris to have complementary documents which might have been forgotten sent to us have all been in vain. We therefore conclude that we have here all the documents which we could make use of in this Trial.

DR. NELTE: Mr. President, I am grateful to the French Delegation for the explanation given now regarding the complaint I made this morning. If I had had that explanation a few days earlier, what happened this morning would not have occurred. I regret it very much indeed.

I continue on Page 64 to the effect that Keitel co-operated in drawing up orders. In order to clarify this as much as possible I would like furthermore to point out the following:

The '`instructions,'' which were of fundamental significance for the planning of military operations, are operational orders issued to the Commanders-in-Chief of the three Armed Forces' branches by the Supreme Commander in this capacity. Before these instructions

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were drawn up Hitler discussed the military-technical aspect of each order with the competent OKW experts and also with the Defendant Keitel. The instructions, aside from opinions manifested by the individual experts, were exclusively the expression of the Supreme Commander's wishes, and they were not directed to the OKW but to the Commanders-in-Chief of the three Armed Forces' branches, to whom they were forwarded through the OKW. The three Armed Forces' branches on their part ordered, on the basis of the general instructions, the details incident to their execution. Therefore, I shall not refer in this connection to the statement of the Charter according to which the carrying-out of orders is not accepted as a ground for exemption from punishment. For the transmission of the order was not an order issued by the OKW to the Armed Forces' branches, but the forwarding of the expression of the wishes of the Supreme Commander of the Armed Forces. The order directed to the OKW, if you will, referred-in all cases to the elaboration of Some desire expressed by the Supreme Commander and to the purely external act of transmitting the finished idea without having authority of expressing an opinion thereon. It must be assumed that the Prosecution, perhaps influenced by the defendant's rank of Field Marshal, did not appreciate correctly this position of the Defendant Keitel. This rank had no relationship to the real authority of the defendant to issue military orders. One is inclined to imagine that a Field Marshal is a military commander. However, as we have seen, the Defendant Keitel had no command authority whatsoever.

Field Marshal Von Blomberg, whose testimony has been submitted to the Tribunal by the Prosecution, defines the position of the Defendant Keitel as Chef do Bureau. This definition is materially correct. A Chef do Bureau has to see to it that the bureau which he directs operates properly; that the affairs are correctly and promptly attended to by the competent officials. But he does not participate in the final decisions deemed correct by his superior, in this case the Supreme Commander of the Armed Forces. If this principle holds true in general, it is especially true here. It is known that Hitler did not accept any advice from Keitel concerning military decisions. This has been proved by the evidence, particularly by the testimony of General Jodl.

The Defendant Keitel has clearly outlined in Affidavit Number 8, called "Coordination in the State and in the Armed Forces," his activity and that of the OKW. The affidavit gives an idea of the difficult and thankless work of the Defendant Keitel. It consisted mainly of a co-ordination of the desires and needs of the Armed Forces' branches. It consisted, furthermore, in reconciling divergencies as they arose and in the struggle against Hitler's negative

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attitude toward any proper procedure, that is to say, through the competent departments.

In every branch of the Armed Forces there exist interests which differ from the interests of other branches and which cannot be entirely satisfied; sometimes they even oppose each other. This is true especially for the replacement of personnel, but also for the supply of everything that is required for special warfare.

The point of intersection of all these factual and personal differences of opinion was the OKW.

If one desires to estimate properly the incontestable fact that the Defendant Keitel was shown hostility and was personally judged unfavorably by nearly all sides, one must note that this fact occurred as a necessary result of the overlapping of factually opposing interests and personal differences of opinion, which Keitel tried to settle by means of co-ordination or mediation, that is, in nearly all cases by means of compromise. No particular personal experience is needed in order to know that the objective mediator will always incur the ingratitude of both parties. The same picture becomes evident in the relationship to the numerous offices which were endowed with special official authorities or which had Hitler's favor and special confidence for personal, mostly Party political, reasons. One must realize these differences and overlapping interests to appreciate the heavy burden involved in Keitel's position and, I might add, in order to judge correctly the significance of his position.

It is difficult to realize the special relationship between the leadership of the Armed Forces and the political sector because the functions of Supreme Commander of the Armed Forces, of Reich War Minister and of head of State were from 4 February 1938 all embodied in the person of Hitler.

Therefore, since 4 February 1938, complete accord existed between the political leadership and the highest leadership of the Armed Forces since both powers resided in one and the same person.

The assumption of the Prosecution that the chief of Hitler's military staff was closely connected with his superior Hitler and must therefore also be held responsible for political questions, if not as the perpetrator, then in some form as provided in Article 6 of the Charter, is erroneous.

In this connection there is no need to enter into the hierarchy of the Fuehrer State and the binding character of the Fuehrer order. The military hierarchy is older than the National Socialist ideology; moreover it must be stated and taken into consideration that the introduction of the absolute Leadership Principle into the Armed Forces signifies the final elimination of all efforts which could perhaps be regarded as democratic in a certain sense, or in any case

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as a restraint on the dictatorial appetite of Hitler. In this connection I refer to the affidavit of Keitel, Document Book 2, Number 9, "The OKW and the General Staff." The rigid application of the Leadership Principle, judged retrospectively, gradually adulterated the healthy military principle of obedience into immoderate militarism. This found its expression, among other things, in the prohibition of all criticism, from the highest authorities to the lowest. I refer you to the speech made by Hitler in the Kroll Opera House in 1937 or 1936, also to the critical marginal note-statement of General Winter-in the decree prohibiting applications for release on the part of the generals in 1938, and finally to the removal of the Supreme Commander of the Armed Forces and the War Minister.

It cannot and shall not be denied that the Defendant Keitel was absolutely in favor of the Leadership Principle in the leadership of the Armed Forces and that the essay "Foundations of the Organization of the German Armed Forces" (L-211) can be regarded as a contribution to the conduct of a future war-not, however, that an actual war was anticipated at that time or that it was the reason for this essay.

What does this mean in regard to the Defendant Keitel? Anyone recognizing the Leadership Principle as being militarily correct must act accordingly. Professor Jahrreiss has stated that the Leadership Principle, like every other political system, is not absolutely good or bad, but that everything depends on the manner and methods used in applying it.

Keitel has a military background and favors the Leadership Principle for the field he knows. According to this principle the responsibility lies completely with the one who has authority to command. While the Leadership Principle in fact hardly underwent any change in the civilian areas where it was also applied, though superficially, this principle necessarily made itself felt much more strongly in the military sphere, particularly in the relationship between the commanders-in-chief and their chiefs of the General Staff.

Formerly the chiefs of the General Staff had been the really responsible commanders, now they became the operational assistants to the commanders-in-chief. In the formulation of orders they were "collaborating advisers" in the field of strategic operations, for which these officers had been especially trained. Keitel was neither a commander-in-chief nor a chief of the General Staff; he was the chief of the military chancellery under Hitler, a soldier and an administrator of war-ministerial duties, therefore a "minister," claims the Prosecution.

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One should not refer in this Trial to formal distinctions when the real functions give another picture. This is particularly important in the case of Keitel. It should be determined what he actually was and how he acted in reality.

The dual position created by the decree of 4 February 1938 has led to an erroneous conception of Keitel's functions. We assume that Hitler dissolved the Reich War Ministry because he no longer wished to have a War Minister; in spite of the fact that on 4 February 1938 a considerable number of functions up to then handled by the Reich War Ministry had been assigned to the individual Armed Forces' branches, there were a number of functions which had to be retained and administered in the OKW.

But taking into account the idea of an intended strict concentration of functions pertaining to the conduct of the war, Keitel was unable to deal even with those on the basis of complete authority and according to his own judgment, but had to present the demands of the Armed Forces and co-ordinate the Armed Forces' affairs with the tasks of the other ministries.

It cannot and will not be denied that this concentration of duties in the person of Hitler was impracticable. Thus, a huge amount of preparatory and executive work rested with Hitler's military staff' whose Chief of Staff was Keitel. Hence, it was also responsible, although not with reference to important questions, especially those of a fundamental nature. It was, of course, a matter of judgment to what extent the Defendant Keitel considered matters essential and fundamental and submitted them. But the evidence showed that when in doubt about matters, after conscientious examination, Keitel was inclined to present them rather than to make his own decision about them.

The sources from which Hitler obtained his news, through Himmler, Bormann or some other way, were so intricate that Keitel had no way of knowing whether Hitler had the information that seemed to him to be important. To avoid the unavoidable discussions afterward with Hitler who, being distrustful of everyone, always took it for granted that people would intentionally conceal things from him, Keitel was anxious not to leave himself open to the reproach of having omitted anything. A characteristic example is the case of the mass escape of 80 R. A. F. officers from the POW Camp Sagan.

Here the point is simply to show that Keitel in his capacity as guardian of the actual war functions which still remained in the OKW, held no position as a minister. Here, too, he was the Chef du Bureau, the head of the military chancellery, a position which is also held by the chief of a ministerial office, or even a state secretary. I wish to refer again in this connection to Dr. Lammers'

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statement, and to the affidavits of Admirals Raeder and Doenitz, which I have already mentioned repeatedly.

The text of the Fuehrer decree of 4 February 1938 shows that Hitler also wished to make this clear. If Hitler had not had the definite desire to exclude everyone else from a responsible, and perhaps for him uncomfortable function in the highest military sector, he might have given Keitel at least the authority to take part in Cabinet meetings. In the Fuehrer decree in which the Commanders-in-Chief of the Army and Navy as well as Keitel had been given the "rank" of a Reich minister, it was explicitly ordered that both commanders-in-chief should be entitled to take part in Cabinet meetings. The fact that this was decreed simultaneously is a convincing argumentum e contrario. It proves that Hitler did not wish to give his Chief of Staff of the OKW an opportunity to present his own opinions and possible doubts before the Cabinet. Hitler gave the Defendant Keitel the "rank" of a Reich minister for the purpose of enabling him to carry on direct negotiations with the departmental ministers. Had Keitel not had the rank of a Reich minister, he would have been limited to conferences with state secretaries and the like, and thus be very much handicapped in carrying out the Fuehrer's orders and his tasks.

It is in error, therefore, that the Prosecution has classified Keitel as a Reich minister "without portfolio." He was not a minister, nor a member of the Reich Government. State Secretary Stuckart in a document submitted to the Prosecution has listed all members of the Reichsregierung. Keitel is not among them; he is mentioned in this document only as the holder of one of the highest offices.

Now, the Prosecution has not limited the term Reichsregierung to membership in the Reich Cabinet, but considered other committees as part of the Reichsregierung; too. It would seem, therefore, as if the Prosecution looked upon the legal structure based on German law as irrelevant. Pursuant to Appendix B to the general bill of Indictment, the Reichsregierung in the sense of the Indictment is composed of:

1. Members of the regular Cabinet after 30 January 1933, the day Hitler became Chancellor of the German Republic. The expression "regular Cabinet" used here includes: Reich ministers, that is, heads of departments of the Central Government; Reich ministers without portfolio, ministers of State with the function of Reich ministers, and other officials entitled to participate in the Cabinet meetings.

2. Members of the Ministerial Council for the Defense of the Reich.

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3. Members of the Secret Cabinet Council.

Regardless of the individual responsibility of every defendant the Tribunal must examine whether the concept of a "Reich Government" as defined by the Prosecution is correct, that is, practical; whether, as to the composition of this group, the Prosecution's concept of a "Reich Government" appears justified. In any case it is not sufficient to accept as correct the assertion of the Prosecution in this respect.

I assume that my colleague Dr. Kubuschok will enlarge on this during his case.

THE PRESIDENT: Dr. Nelte, the Tribunal feels that you are taking a very long time over this question of whether Keitel was- what his exact position was.

DR. NELTE: I believe, Mr. President, that the Prosecution also took a great deal of time to make clear what position Field Marshal Keitel occupied in their opinion. He is not here as Field Marshal, but as the Chief of the OKW.

THE PRESIDENT: Well, if they have, I must confess that I have forgotten. It seems to me and the Tribunal generally that you are taking up far too long on this topic. You have got many other topics which are of very great importance to the defendant, and you have already been speaking for several hours, and you occupied a large number of pages in order to try and define what Keitel's position was. I thought you might be able to cut it down.

DR. NELTE: I shall try.

I have explained that Defendant Keitel did not belong to Group 1; that is to say, that he was not a minister.

He was neither chief of a Government department, nor a Reich minister without portfolio, nor a state minister having the functions of a Reich minister, nor an official who was entitled to attend Cabinet sessions.

In the hearing of evidence it was proved that despite the Fuehrer Decree of 4 February 193u there never existed a Secret Cabinet Council; that such council was never set up; that it never held a session; and that no persons involved ever received a commission. Thus, it is proved that the defendant was also never a member of the Secret Cabinet Council.

It is true that Keitel was a member of the Ministerial Council for the Defense of the Reich. Witness Dr. Lammers has confirmed that the fact of his becoming a member of the Ministerial Council for the Defense of the Reich did not change Keitel's official position, and especially did not make him a minister. In his affidavit of 25 November 1945, Codefendant Dr. Frick says that Keitel worked in the Ministerial Council for the Defense of the Reich as "liaison man."

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Although he is not listed among the members of the Reich Cabinet, Keitel's capacities as a member of the so-called "Dreimanner-Kollegium" (Three Man College) and as a member of the Reich Defense Council have been mentioned by the Prosecution. I believe I may refer to the result of the hearing of evidence. It was shown that a Three Man College as a Government committee never existed, and that the Reich Defense Council, after the unpublished Reich Defense Law of 1938, never held sessions, or in any case that it never held conferences or passed resolutions.

In order to clarify the Defendant Keitel's responsibility and competence it is necessary to analyze the concept of OKW. I ask that this statement be not considered a theoretical and therefore superfluous discussion. The very fact that the Prosecution makes a sweeping and fundamental assertion...

THE PRESIDENT: Dr. Nelte, may I ask what you have been doing if you have not been analyzing the concept of the OKW?

DR. NELTE: Up to now I have explained Keitel's position as Chief of the OKW. In statements on Page 74 and the following pages I wanted to explain to you that the Prosecution, and others as well, have talked about the OKW: and "OKW" is a word which has three different types of significance.

Mr. President, if you will be good enough to permit me to submit this in its written form, and if you would consider it as having been presented in Court, then I am willing to leave out the pages up to 77 and submit them to you. In any case, it appears to me to be an important part of the explanation regarding the interpretation of the word "OKW," and the fact that this is not identical with Keitel is particularly important.

May I do that?

[The President nodded his assent.]

In that case, then, I shall continue at Page 77.

In order to clarify the Defendant Keitel's responsibility and competence it is necessary to analyze the concept of OKW. I ask that this statement be not considered a theoretical and therefore superfluous discussion. The very fact that the Prosecution makes a Weeping and fundamental assertion, and that the French Prosecution undertakes a pointedly legal examination of the question as to the office in which each defendant was active with regard to the counts he is charged with, makes it my duty to clear up a mistake made by the Prosecution. However, this mistake is an the more excusable, because not only foreign countries but large groups at home, even within the Armed Forces, did not know what OKW meant. It became a popular collective term for the supreme command of the Armed Forces without anybody taking the trouble to find out who and what was behind the three words "Oberkommando der Wehrmacht." This corresponds to the law of inertia governing the association of human beings, to the almost pathological mania to abbreviate titles of military commands. Since, furthermore, the communiqués of the High Command of the Armed Forces were published daily, and all announcements referring to war events began with the words: ``The High Command of the Armed Forces announces," not only did these words become impressed upon the public's mind, but also the conception that the "High Command of the Armed Forces" was the supreme military command. The conception would be correct had the words OKW not been translated with Oberkommando der Wehrmacht (High Command of the Armed Forces) but rather as Supreme Commander (Oberkommandierender) of the Armed Forces. It was

Hitler alone, as "Supreme Commander of the Armed Forces,,, who was the

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incarnation of what everybody imagined the OKW to be, namely, the central military planning and command and thus the supreme command and executive headquarters for all military matters. In this respect the OKW was synonymous with Hitler as "Supreme Commander of the Armed Forces," which was his official title.

If, in naming the headquarters of the supreme commander, it was desired to avoid the title "Supreme Commander of the Armed Forces" which was in accordance with the prevalent Leadership Principle, the title "Oberkommando der Wehrmacht" was bound to be used. This headquarters comprises the supreme

commander himself, that is, Hitler, and his assistants, his staff.

The Fuehrer Decree of 4 February 1938 bearing the heading: "Decree concerning the Command of the Armed Forces" resulted, through the unfortunate and vague nature of its wording, in an interpretation that the "Chief OKW" mentioned therein was the chief in the sense of director, of the High Command of the Armed Forces. It is true that it follows from the decree that "Chief OKW" is to mean "Chief of Staff OKW," that is chief of Hitler's bureau in his capacity as Supreme Commander of the Armed Forces. But since then, every time that people have spoken and speak of the OKW, everybody thinks of Keitel without examining whether the expression means: OKW-Oberkommandierender (supreme Commander) of the Armed Forces, OKW-Headquarters of the Supreme Commander of the Armed Forces, or OKW-Staff of the Headquarters of the Supreme Commander of the Armed Forces.

The Prosecution makes no distinction in this respect, just as the German agencies were unaware of the exact difference, or at any rate paid no attention to it. They, just like the Prosecution now, thought it right to claim the OKW's jurisdiction and responsibility for anything having a connection with the Armed Forces or members of the Armed Forces. From this viewpoint to claiming Keitel's personal jurisdiction by virtue of the title "Chief OKW" there is only a short step. For Germans and foreigners the recollection of the first World War was a contributing factor in forming this opinion, which was not based on an examination according to constitutional law. The relationship between Hitler and Keitel prompted the comparison with the relationship between the Kaiser and Von Hindenburg. This comparison had results for the Defendant Keitel which are shown at this Trial. Without thinking of the fundamental differences between Von Hindenburg as Chief of the Great General Staff which existed until 1918, and Keitel as the chief of Hitler's military executive staff, and without knowing the field of Keitel's jurisdiction and what possibilities Keitel had as regards Hitters plans and measures by virtue of the functions assigned to him, comparisons were made which gave rise to doubts about him. When furthermore-after the catastrophe had set in-Keitel once again came to play an outwardly similar part as representative of the Armed Forces when he had to execute the signature for unconditional surrender, this comparison also turned out to his disadvantage. People do not ask about jurisdiction when things go badly, but look for a guilty person and the guilty person is judged by external appearances. Quite naturally the great attention Paid to Keitel's person at this Trial can largely be traced to the fact that after Hitler's death Keitel came into the public eye.

In order to see clearly what part Keitel really played, and what share he had in what happened, I now wish-after investigating his legal competencies-to examine what actual influence he had upon the development and carrying-out of the measures, the effects of which constitute the subject of this Trial. From everyday experience we know that it does not matter so much what a person is supposed to be in a particular position, but what he has made of that position by virtue of his personality I believe I may say that in the course of this Trial the personality of no other defendant has been judged in such varying and contradictory ways as that of the Defendant Keitel.

Decisive for Keitel's material responsibility is his actual position in the tug-of-war with and around Hitler, his effective influence

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upon that group, and thus on those circumstances as a whole which could have influenced the operations of Hitler's headquarters in the military field.

I shall deal with this fundamental topic when taking up the charges made by the Prosecution against Keitel and other defendants on the strength of the cross-examination of Dr. Gisevius, in other words, after the presentation of evidence for Keitel has been completed.

In view of the comprehensive scope of Justice Jackson's questions and the answers given thereto by Dr. Gisevius, the testimony of Dr. Gisevius has become of tremendous importance in the case of the Defendant Keitel. Had Dr. Gisevius' statements about Keitel been true-that is, statements made by him on the basis of information, in most instances in terms of conclusive findings-the Defendant Keitel could not have told the truth during the presentation of evidence. The importance of that fact becomes evident when it is considered that a negative opinion on truthfulness would of necessity destroy Keitel's defense, which in its essence draws on the subjective aspect of facts as a whole. In view of this fact and the importance of the testimony of Dr. Gisevius also for other defendants, it becomes my duty to explain the contrast between Keitel's answers and the testimony of the witness Gisevius.

Experience teaches us that dead witnesses are the best witnesses, because their purported utterances cannot be directly refuted. Evidence on the strength of information belongs-to another group of statements which. almost defy refutation. The testimony of Gisevius combines both possibilities, in that he bases his testimony primarily on information obtained from witnesses who are dead. Justice Jackson used Dr. Gisevius as star witness in his comprehensive attack on the Defendant Keitel. After the completion of the presentation of evidence against Keitel, he did not bring forward One individual circumstance, but an Indictment on all Counts and a general judgment on Keitel's answers.

The counterevidence is concerned with proving the objective incorrectness of facts based upon information obtained-from certain individuals and further, with establishing proof of the unreliability of the information. I call to mind the words which the Defendant Keitel said under oath upon completion of his direct examination by me while in the witness box:

"One may hold it against me that I was wrong and made mistakes, that my attitude toward the Fuehrer Adolf Hitler was wrong and weak, but it should not be said of me that I was a coward, that I was untruthful, and that I was disloyal."

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I sum up in condensed form the charges made against the Defendant Keitel during interrogation by the Prosecution, as follows:

(1) Keitel built an impenetrable ring round Hitler so that the latter could be told nothing.

(2) Keitel failed to pass on to Hitler reports he had received from Canaris whenever they concerned atrocities, crimes, and the like, or he gave orders to modify them.

(3) Keitel had a tremendous influence on the OKW and the Army.

(4) Keitel threatened his subordinates, when they made political statements, that he would not protect them; he even said that he would turn them over to the Gestapo.

Dr. Gisevius says in one part of his statement that Keitel had no influence over Hitler. He exonerates Hitler by explaining that Keitel had formed a ring round Hitler, in order that the latter should be told nothing. The British and American Prosecution in their Indictment called Keitel a powerful staff officer who had exerted great influence over Hitler; the French Prosecution described Keitel as a willing tool of Hitler; the German generals called him a `'yes man" who could not carry anything through; and now Keitel grows, according to the statement of Dr. Gisevius, into a real handyman and butler for Hitler, who hid from the latter anything bad, who submitted to him only what he saw fit, and permitted no one to approach Hitler.

To assert that Keitel blocked access to Hitler, can only be maintained by somebody who did not know the conditions prevailing around Hitler. Before the war Keitel worked in Berlin in Bendler Strasse, while Hitler was in Wilhelmstrasse. Keitel came perhaps once a week to report, or on special order. At that time, on account of the distance, it was in fact impossible for Keitel to exert any influence over access to the Fuehrer. It was equally impossible when Hitler was at the Berghof near Berchtesgaden for weeks at a time, while Keitel remained in Berlin. .

At the beginning of operations, Keitel was with Jodl and the Armed Forces Operations Staff at the Fuehrer's headquarters. Here also they were separated. Keitel did not sit in Hitler's anteroom, but rather in other buildings or barracks. He came from time to time with General Jodl to the conference on the situation, in which, besides Hitler, some 15 or 20 officers of all three branches of the Armed Forces took part. Apart from the conferences on the situation there was no personal contact. When Hitler wanted Keitel for anything he sent for him. Personally and individually there was closer contact in Berlin between Hitler and his adjutants, the Chief of the Party Chancellery, the Chief of the Presidential Chancellery,

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and the Chief of the Reich Chancellery. Keitel not only could not decide who should see Hitler, he also could not possibly prevent anybody going to Hitler.

Hitler's sources of information were the responsible heads of each department; it was occasionally not clear whence Hitler obtained his information, as I have already stated. Gisevius did not know these conditions from his own experience; he himself was never near Keitel, who never saw or spoke to him and did not know his name. When he gave his opinion here, he could only base on information given him by Canaris, Thomas, and Oster.

General Jodl has been heard regarding this question. He certainly is the best witness in this matter, since he, as well as Keitel, lived in direct proximity to Hitler and therefore could form his own judgment. He stated concerning this matter:

"Unfortunately, it was impossible to keep things from Hitler. Many channels of information led directly to Hitler."

Upon my interrogation, at the suggestion of the Tribunal, Jodl fully confirmed that what Keitel had testified was quite correct, and that what witness Gisevius stated in this respect was, in general, merely figures of speech.

The Codefendants, Admirals Raeder and Doenitz, have confirmed that the allegation of the witness Gisevius that Keitel was able to keep the commanders-in-chief of the branches of the Armed Forces away from Hitler is false. If, however, this was not the case, it follows that the way from the branches of the Armed Forces to the Fuehrer was open at any time. Through the hearing of witnesses it was also established that apart from Jodl, the Chief of the Armed Forces Operations Stan, Canaris in particular had direct access to Hitler. Thus, the accusation of the witness Gisevius that Keitel had formed a ring round Hitler is proved false.

The witness Gisevius has declared that reports were submitted to Keitel by Canaris about atrocities in connection with deportations, extermination of Jews, concentration camps, the persecution of the Church, and the killing of insane persons, all of which Keitel withheld from Hitler. The same is alleged about the reports of General Thomas, Chief of the War Economy Office, the purpose of which was to inform Hitler about the war potential of the enemy and make him listen to reason.

Concerning Admiral Canaris' reports, it must be said that as chief of espionage and counterintelligence he naturally delivered regular reports which concerned the conduct of the war, including the conduct of economic warfare. It is affirmed that reports were submitted on subjects which belonged neither to the jurisdiction of the Counterintelligence Office nor to that of the OKW. It has

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been proved that Hitler took strict care that every worker confined himself to his own special field, and it was particularly forbidden for military offices to concern themselves with political affairs.

Keitel has declared under oath that he knew nothing about the atrocities, and especially the extermination of the Jews and the concentration camps. This is in absolute contradiction to the assertion of the witness Gisevius that Canaris submitted reports to the Defendant Keitel on the above-mentioned subjects.

One can assert that reports of any kind whatsoever were delivered to Keitel without fear of being contradicted, especially when one has no fear that these reports will be found. For if they are not delivered they cannot be found, because they do not exist Now Gisevius has declared that he collected documents from the beginning which contained incriminating material. Is it not remarkable, under these circumstances, that up to now none of these reports have been produced? As far as they were available at the OKW, they have been used in the accusation and as evidence. Can it be sufficient under these circumstances for a witness to declare that he knows from third parties that such reports were submitted to Keitel?

Canaris, because of his particular activity, which took him constantly to foreign countries on personal secret errands for Hitler, had access to Hitler at all times. He would thus have had an opportunity to go to Hitler immediately if he had had such serious misgivings of conscience, as Gisevius has declared he had. Why did he not do so?

Now, Gisevius, who in general has pronounced comprehensive and damning accusations, has, luckily for Keitel, at one point of his deposition made a positive declaration that permits of objective verification. I quote:

". . . I believe that I have still two examples to mention, which to me are particularly characteristic: First, the attempt was made by all possible means to induce Field Marshal Keitel to warn Hitler against the invasion of Holland and Belgium, that is, to inform Hitler that the information submitted by Keitel about alleged violations of neutrality by the Dutch and Belgians was false. The Counterintelligence Office was to prepare Reports incriminating the Dutch and Belgians. Admiral Canaris at that time refused to sign these reports. I request that this be verified. He told Keitel repeatedly that this report which was ostensibly made by the OKW was false. This is an instance where Herr Keitel did not transmit to Hitler what he was supposed to have transmitted..."

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I have submitted to General Jodl, here on the witness stand, Document 790-PS, which refers to the case of the White Paper concerning violations of neutrality by Holland and Belgium. Jodl testified literally, and I quote:

". . . I understand the question, and would like very briefly to state the facts how it was possible-if disgust does not choke me. I was present when Canaris came to the Field Marshal in the Reich Chancellery with these report notes and laid before him the draft of the Foreign Office's White Paper. Field Marshal Keitel then looked it through, above all paying attention to the comments which Canaris had made at the request of the Foreign Office, namely, that the reports were perhaps still somewhat in need of improvement, that he should confirm the fact that a military operation against Holland and Belgium was absolutely necessary, and that, as is expressed here, a final really striking violation of neutrality was still lacking. Before Canaris had said a word, Field Marshal Keitel threw the book on the table and said: 'I refuse to do this, why should I take any responsibility at all for a political decision? In this White Paper there appear word for word, true and correct, the very same reports that you, yourself, Canaris, brought to me.' To this Canaris said: 'I am entirely of the same point of view. It is, in my. opinion too, entirely superfluous to have this document signed on the part of the Armed Forces, and the reports that we have here are altogether quite sufficient to prove the violations of neutrality which have taken place in Holland and Belgium.' And he advised Field Marshal Keitel not to sign it at all. That is the way it happened. The Field Marshal then took the paper with him and I do not know what happened subsequently..."

Keitel did not sign the White Paper. Therefore in the only verifiable case a clear proof is obtained of the incorrectness of Gisevius' testimony.

According to the statement of the witness Gisevius, Keitel exerted a tremendous influence on the OKW and the Army. These words, without any presentation of concrete facts, are only a phrase in the mouth of a man who had no contact whatsoever with Keitel. They are refuted by the statements of Reich Marshal Goering, Admiral Doenitz, and Admiral Raeder. Jodl has defined this statement as merely a figure of speech.

Insofar as the witness speaks of his tremendous influence on the OKW, it must appear questionable what he really means. Naturally, Keitel as Chief of Staff had influence in the OKW, influence which resulted from his position, which I have already discussed. His position in relation to his subordinates will be taken up later. The

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important thing, however, is whether Keitel had a decisive and culpable influence on what happened. That this was not the case has even been confirmed by Gisevius, and also the fact that he had no decisive influence on the branches of the Armed Forces; it has also been established by the results of the testimony.

A particularly damaging charge against the Defendant Keitel was "that instead of placing himself in front of his subordinate officers to protect them, he threatened to hand them over to the Gestapo."

In contradiction to this it has been established that no chief of office in the OKW was dismissed in the years up to 1944; furthermore, until 20 July 1944, the day of the attempt on Hitler's life and the transfer of the judicial power in the home Army to Himmler, no officer of the OKW was turned over to the Police. Admiral Doenitz has confirmed that the branches of the Armed Forces and the OKW were very scrupulous in maintaining the privileges of the Armed Forces in relation to the Police.

The Court has also seen here how General Jodl spoke about his relationship to the Defendant Keitel. I think this remark has a special importance, not only because Keitel lived on companionable and friendly terms with his official subordinate, General Jodl, during their long years of co-operation. As natural as that may appear, the less natural it is if one reflects that Jodl, in spite of his officially subordinate position, in reality became more and more Hitler's sole strategic adviser. What this means, considering the preponderance of the operational tasks in the war, has been convincingly demonstrated here by General Jodl.

If Keitel accepted this without jealousy, freely acknowledging the superiority of his subordinate Jodl in this domain this proves that Keitel possessed a trait of character which refutes the information derived from obscure sources by the witness Gisevius.

The proven fact that Keitel lived on friendly and companionable terms with his subordinate Chief of Office, Canaris, is also in contrast with the assertion to the contrary by the witness Gisevius.

In this connection it is necessary to refer to the fact, not submitted by Keitel but testified to by Jodl without Keitel's consent, that the latter supported and helped Canaris' family after his arrest. I only refer to this to refute the perhaps most serious personal reproach, according to which Keitel did not behave decently toward his subordinates and abused his superior position-which was especially powerful in military life-even to the point of threatening them with violence.

In reality, according to Gisevius' evidence, Admiral Canaris not only played a double role officially, but also with respect to the Defendant Keitel; in exploiting the friendship shown to him he

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expressed a similar attitude, whereas among his own group he openly spoke in a spiteful way about Keitel.

Finally, in this connection reference must still be made to the evidence of the witness Von Buttlar-Brandenfels (Session of 8 May 1946) from which it is clear that Keitel always treated the officers of the Armed Forces Operations Staff kindly.

The witness mentions a quarrel between himself and Lieutenant Colonel Ziervogel on the one hand and Himmler on the other, in which Keitel, to whom the incident was reported, immediately and energetically intervened in writing to protect his subordinates against Himmler. The affidavit of the Chief of Office in Canaris' office, Admiral Burckner, to which I refer, testifies in the same way to Keitel's kindly attitude toward his subordinates. At any rate, it must be said in clarification that Keitel many times had occasion to speak energetically to his office and department chiefs.

I shall then continue by explaining that officers did not generally concern themselves with politics, and that only when the situation became worse did they make political information the subject of their argumentation. And I add that Keitel has, in fact, defined his attitude with words based on the assumption that the soldier in war must declare his faith and obedience, and if Keitel ever heard anything about such matters, he would reprimand these officers.

Dr. Gisevius himself has said here that it was strictly forbidden for officers to concern themselves with political questions. The Defendant Keitel has stated that Hitler several times categorically declared the politicians were not allowed to concern themselves with military questions because they knew nothing of them; neither were the generals allowed to concern themselves with politics because they knew nothing about that either.

Hitler's fundamental attitude in this question is shown in the decree dating from 1936, or the winter 1936-37, by which political reports to or for the Armed Forces were prohibited.

In logical execution of Fuehrer Order Number 1, Hitler not only wanted an absolute separation of the fields of activity, but also that no office should ever be informed of the proceedings in another office. It was only a logical consequence that Hitler strictly prohibited any discussion of political questions by officers, and that the Defendant Keitel, while carrying out this prohibition which he himself approved, charged his officers, when there was reason to do so, to refrain from such discussions.

It is obvious that this was not a question of an academic discussion of political problems, but of an attitude revealing itself as negative toward the position of the Supreme Commander of the Armed Forces. As long as there were successes, there was no question of this. After Stalingrad one could hear expressions of opinion, which at that time were characterized by Hitler as the expressions of a weak nature.

In accordance with his fundamental attitude that a soldier in wartime should show unconditional and natural loyalty toward his people and fatherland as represented by the head of the State and Supreme Commander of the Armed Forces (and to an extreme degree when reverses set in), Keitel was actually ruthless in condemning such expressions. He did not wish even to cause the impression that he was of a different opinion than his superior, that he personally had fears.

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I now continue at the bottom of Page 19:

Keitel did this with "words." That does not mean that this was mere camouflage which did not reflect his inner attitude, but it does mean that the manner, perhaps often rough and harsh, in which the Defendant Keitel spoke to his officers, more than once led to an officer being punished or disciplined.

Dr. Gisevius, however, perhaps wanted to suggest that Keitel had dealt with his subordinates in the OKW in a morally reprehensible way.

He did not know the Defendant Keitel personally and therefore cannot give a personal opinion, he had to rely on the information of officers who were strongly opposed to Keitel, without such opposition ever becoming apparent. No one ever contacted Keitel to entice him to join in the conspiracy. That is plausible since the conspirators, knowing the character and the soldierly attitude of Keitel, could not expect any success. Since on the other hand Keitel was completely innocent, which does not need to be proved, the following situation results:

Keitel knew nothing of conspiratorial activities; what he did encounter appeared in the shape of technical objections or personal remarks which were dealt with by Keitel officially and in a cordial manner, as by a superior of whom the subordinates say that he barks but does not bite. On the other side the so-called conspirators had to consider everyone a foe who was not in favor of their own aim. Every move and every word was weighed and critically judged. As every conspirator hopes for the success of his revolutionary activities he has to gather evidence for the coming reckoning. This is, of course, a task for a future police minister and home secretary.

From an impartial estimation of the facts, verified by the evidence presented, it is shown that the accusations arising from the testimony of the witness Gisevius are not correct. But the picture would not be complete if light were not thrown on the personality of the witness Gisevius by his own evidence. This judgment is made up from two factors:

(1) The career and the position of the witness.

(2) The trustworthiness of his information.

On Page 92 of my text I have stated in detail the functions Dr. Gisevius carried out. I have not emphasized anything which, from my point of view, might impeach him in any way for having given the evidence here which you all have heard. I have only impartially confirmed the following:

(a) He evaded military service through falsified papers put at his disposal by Oster.

(b) He lived in Germany during the whole time from 1933 without restriction of liberty, and remained in office up to 20 July 1944.

(c) He was an official of the German Reich and was in its pay from the middle of 1937 to the beginning of 1939 with the exception of leave.

(d) He was Vice Consul of the Reich in Switzerland from 1943 in the Consulate General at Zurich, placed there through Canaris as

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intelligence agent, and was naturally paid for it. At the same time he was in touch with the enemy's intelligence service.

(e) He had since 1933, when he worked in the Gestapo, exact knowledge of all the horrible happenings and knew what consequences could arise there for the German people.

(I) A special circumstance, which shows the witness Dr. Gisevius in his true light, is the advice, or the suggestion, which he gave to the experienced bank specialist, Dr. Schacht, that he should allow inflation to set in and thus get the control of matters into his own hands. This suggestion leaves only two possibilities: either complete ignorance of the national economic importance and social effect of an inflation, or else a boundless unscrupulousness which completely disregards the fate of employees and workmen. An inflation brought about knowingly can be described only as a crime against the people. Schacht described it as a catastrophe. Schacht answered him, according to the record: "You want the catastrophe; I want to avoid it."

In order to judge the reliability of the statements by the witness Gisevius before this Tribunal, I must refer to the book submitted by the witness as evidence: To the Bitter End. This book is also a "statement" of the witness Gisevius.

To err is human, but when in the year 1945, after the collapse of Germany, a book appears in which facts and occurrences are presented of historical and, for those personally involved, of moral and even criminal importance, the incorrectness of which has become obvious in the meantime, then the error is unforgivable and reference to false information is no longer an excuse.

Of the many inaccuracies contained in this book I will only point out briefly the four which were established before this Tribunal through the cross-examination by Dr. Kubuschok, which refer to the Defendant Von Papen, and I beg you to take official cognizance of it.

(1) Dr. Gisevius has asserted in his book that Von Papen did not resign notwithstanding the events of 30 June 1934. It is established that Von Papen did resign and that the public announcement was simply contemplated to be made at a later date.

(2) Dr. Gisevius asserted further that Von Papen took part in the Cabinet meeting which he describes with exact details and when the law was resolved that the measures taken on 30 June 1934 were correct in the interest of the State. Actually Von Papen has never taken part in this meeting.

(3) Dr. Gisevius asserted anally that Von Papen went to see Von Hindenburg, but had not raised a sufficient protest against the measures. Actually what happened was that the attempts of Von Papen to visit Von Hindenburg were frustrated, therefore he failed to see him.

(4) The assertion in the book of Dr. Gisevius that Von Papen took part ins the meeting of the Reichstag in which the measures of 30 June were approved, must equally be labeled incorrect information.

It could not be termed an unfounded reproach if such a statement were to be described as dubious and the author as unreliable. It is

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difficult for me as a German defense counsel to deal calmly with this problem. The statement of Gisevius reveals the entire tragedy of the German people. It is for me a proof of the weakness and of the decadence of certain German circles, who played with the idea of revolt and high treason without any feeling for the distress of the people. They were a higher level of future ministers and generals without the backing of the large masses of our people, the working classes, as Reich Minister Severing has declared here very clearly.

Mr. Justice Jackson has used the word "resistance movement" in connection with the examination of the witness Gisevius. We have often heard during the progress of this Trial about dauntless, brave men and women, who fought for their country, and have suffered and died for it. They were our enemies. But no one who tries to judge these things impartially would deny them acknowledgment of their heroism. But where do you find this heroism in the group around Gisevius? If one has read his book To the Bitter End and has heard him here, one looks in vain for a readily self-sacrificing man. Even the late deed of a Stauffenberg lacks heroism, because it lacked the resolution of self-sacrifice. Gisevius, up to 1938-when there might still have been time to succeed in holding back the wheel of fate-always speaks about negotiations, conferences; but all these men wished the others, that is, the generals, to act. If one considers the knowledge of affairs which Gisevius had as member of the Gestapo, and all his friends had; if one takes into account the realization of the great danger hovering over the people-then the decision to take action should not have been in doubt for an instant for patriotic men, as the members of the group claimed themselves to be. But what did they do? When the leaders of the army hesitated or refused, they did not think of taking action themselves, but turned to the foreign countries.

One would have full understanding for those Germans who were treated in an outrageous manner or who had been thrown out by the Government particularly when they had no means or ways to undertake direct action. But the Gisevius group had such means and possibilities. Men in the most influential key positions, men in the OKW, in Hitler's closest circle, belonged to them; men who had the possibility to get close to Hitler and to his evil men behind the scenes. Not one of them mustered up courage for action Even there was time. What did they do instead? They remained in office, they helped effectively so as to allow crimes such as, led to this Trial to be committed.

I should not like to leave any doubt that the fact of the conspiracy in itself is of no importance in the question of credibility to be discussed here. Whoever is a conspirator out of pure motives, who risks his life, in the full realization of the danger which threatens his country, is not only clean, but also deserves the gratitude of the fatherland.

If Gisevius and his friends, who owing to their positions were informed about everything which most Germans only learned of in

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all its horror through this Trial, had served their country in unselfish sacrifice, then perhaps we and the whole world would have been spared much distress and suffering.

Admiral Doenitz, who knew Admiral Canaris, the source of information, well, said:

"During the time that he was in the Navy, Admiral Canaris was an officer in whom little trust was placed. He was altogether different from us. We said that he had seven sides to his character."

But, Gentlemen, what does Dr. Gisevius say about Canaris on Page 319 of the book To the Bitter End?

"The successor was Canaris, at that time captain in the Navy,

quite clever and more cunning than Himmler and Heydrich

put together."

On the subsequent pages I have analysed those personalities who have been quoted by Gisevius as being the chief sources of information. I do not wish to go into this in any more detail. We are concerned here with the persons of Canaris, Nebe, and Thomas.

As regards Pages 96 to 103, I shall make the following brief summary. With reference to Canaris, I only want to say that he was living in the closest touch and was very friendly with Himmler, Heydrich, and the Gestapo, although he was supposed to be their sworn enemy. Thomas, who was also allegedly a member of the group from the beginning, was an excellent General Staff officer, and he was an exemplary organizer and untiring worker in the Army Economic Staff under Keitel and later in the Army Economic Armament Staff in the High Command of the Army; you know his publication, 2353-PS. This man was the spirit and the driving power behind rearmament which he, as well as Keitel and others, considered necessary to the extent which he energetically pursued. But he is also the same man who organized the "Barbarossa-Oldenburg Plan" and who later, under the Four Year Plan, became the head of the economic staff of the Plan Oldenburg. The results of that plan need not be explained here by me.

It was General Thomas who, according to very convincing outward appearances, used all his powers for the economic direction of the war, and who, after leaving Speer's division, was not dismissed but was assigned by Keitel to work with the records office so that he could write the book which forms the main point of the Indictment with regard to rearmament. If what Gisevius has said about Thomas is true, then since 1933 he played a double game, and was an opportunist and not a man who can be expected to give impartial information.

The figure of Canaris is almost mystical. This is probably necessarily the case with men who concern themselves with matters which cannot stand the

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clear light of day. His position was of great importance for the entire conduct of the war. It is clear that such people must have to the highest degree the confidence of both the political and military leaders. One can judge by the amount of confidence which somebody! enjoys whether he is trustworthy. He also enjoyed the confidence of the Defendant Keitel, with whom, as is proven, he associated in a friendly and companionable way, and not only as a subordinate with his superior. Jodl declared that Keitel was much too trusting. Can one believe that such a condition existed for- years if Keitel dealt with the alleged reports of Canaris, as the witness Gisevius has testified here, or if he could even have received an order to commit murder from Keitel, as Lahousen would have us believe in the cases of Generals Weygand and Giraud?

Now if Canaris enjoyed such great confidence with Hitler and Keitel, but at the same time also worked authoritatively in Gisevius' group, his character must not only be considered dual, but unreliable and untrustworthy as well. It is understandable that a person might temporarly display such a dual nature, if it is done for the sake of a higher aim, to serve one's country, to liberate it from a tyrant. However, one searches here in vain for such a serious aim, for a deed which makes the unlawful action appear in a light of greater moral right.

Canaris believed that he could satisfy his revolutionary duty by expressing doubts in the circle of his trusted political associates and raising the severest kind of criticism. He waited, like others, for the generals to act-as an admiral he apparently did not count himself in this circle-while he himself cultivated his confidential relations with Hitler and Keitel. According to the testimony of the witness Gisevius, one must assume that he permitted his political associates to establish contacts abroad.

When did Canaris tell the truth? He was necessarily entangled in falsehood. Did he not have to ten his political associates something, which, in the opinion of the group, looked like activity? Did he not also have to report on what he supposedly had told Keitel? He is the typical example of an over refined, highly intelligent drawing-room conspirator, protected by the nature of his obscure activity, which to a large extent could not be checked, in whom however the spirit of action was lacking.

Keitel had such confidence in Canaris, and such a liking for him, that he again and again ignored Jodl's various warnings and even until after 20 July 1944 maintained his confidence in Canaris.

Although Canaris was the most bitter enemy of the Gestapo, he worked, certainly not out of conviction, closely and on an astonishingly friendly basis with Himmler and Heydrich. There existed a certain competition; Himmler also had a central intelligence office, which at first concentrated on the domestic sphere, although later, step by step, it expanded abroad. The Defendant Kaltenbrunner testified that this competition carried with it a possibility of friction, which, in view of Himmler's thirst for power, with which Canaris also was familiar, might easily lead to the Counterintelligence Department becoming integrated into the Reich Security Main Office (RSHA). Canaris saw himself and the circle of conspirators endangered. He therefore did something very clever in organizing co-operation, with the result that Himmler covered him in various dubious affairs. For a long time this co-operation functioned well, until the Oster case and the Ankara case afforded the RSHA's foreign intelligence service, organized by Kaltenbrunner, an opportunity to discredit the Counterintelligence of the OKW so strongly that Hitler decreed the transfer of the Counterintelligence Department. What is important in this connection is the fact of Himmler's particular co-operation with Canaris, and the ensuing consequence, resulting with compelling logic, that Canaris at no time could have presented a report which would have seriously incriminated Himmler and his organizations. For if Canaris had presented such a written order to Keitel, he either would have had to refer the report to Hitler or inquire from Himmler and the RSHA respectively. In both cases Himmler would have become informed. The consequence would have been clear. Co-operation would have become enmity, and enmity with Himmler meant the greatest danger for Canaris and his group. I believe that this compelling logic is stronger than any account by the witness Gisevius which concerns itself with alleged statements by Canaris.

Such was the versatility of character in a man whom one may judge at will, but who was neither a conspirator nor can lay claim to credibility.

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For an opinion on the character and credibility of General Thomas, the following documents are important: Document 2353-PS (Green File), Document EC-270 and Document EC-271.

(1) Document 2353-PS, entitled "Part A: Work done in the fields of war economy and armaments industry until the beginning of mobilization in 1939" was presented by the Prosecution to prove rearmament. It does furnish this proof, which is not being denied by the Defendant Keitel.

After being taken prisoner, Thomas made a declaration in reference to this work of his which says that after 20 July 1944 he revised his rather critical memorandum on the rebuilding of German war economy in such a manner that in case of need, that is, in proceedings before a German court, it might serve in his defense.

His declaration, which precedes and is attached to Document 2353-PS, is either untrue, in which case it cannot be presented as evidence by the Prosecution, or it is true, thereby raising the question of the credibility of this immediate witness as a source of information for Dr. Gisevius.

On the whole, the memorandum is true. It is also true, however, that Thomas wholeheartedly co-operated not only in rearmament but also in the organization Oldenburg, that is, in economic preparation for war against the U.S.S.R. I refer to Exhibit USA-141 (conversation of 29 April 1941).

Purpose of the meeting: Introduction to organizational reconstruction of the economic sector of the Barbarossa-Oldenburg Plan. There it says:

"He"-the Reich Marshal-"has delegated the task to an economic leader ship staff headed by the Chief of the Wirtschafts-Rustungsamt (Economy and Armaments Office) (Thomas,."

For this task General Thomas thereby became attached to the Reich Marshal as the chief of this entire undertaking. As explained in Keitel's affidavit (Document Book 2, Exhibit Number K-ll), Thomas prepared and directed the entire organizational construction of the undertaking.

Is this consonant with the contention of Gisevius, and now also of Thomas, that on principle they were opposed to war, and with their convinced attitude against Hitler? The task which Thomas assumed and organized was unmistakably incompatible with valid international law. At no time did he protest against assumption of this office. The attitude of General Thomas can also be ascertained from Document EC-270, submitted by the Prosecution on 6 May 1946. It is the draft of a letter written on 27 April 1938 by the War Economy Staff (chief General Thomas), addressed to Department L (National Defense within the Armed Forces Operations Staff); it is not signed by the Defendant Keitel. This involves the struggle for power by Plenipotentiary (GBW) Funk, and Goering as the Delegate of the Four Year Plan. Document EC-271 shows that the aim of General Thomas was to place the entire war economy under the supervision of OKW, that is, under the War Economy Staff which he headed. Under the guise of an interpretation of the decree of 4 February 19;18 on "direction of German armament" he attempted to prevent Funk's subordination to Field Marshal Goering as Delegate of the Four Year Plan; at the same time he also wanted to prevent the plenipotentiary from becoming independent. It was "to be established" (Page 5 of the document, last paragraph of the communication) "that in all questions pertaining to the Armed Forces' supplies, the plenipotentiary was to carry out the instructions of OKW."

This plan did not succeed; nor did Keitel approve it. But from Document EC-270, with special reference to Figures 1 to 9 (Pages 2 to 4) it follows that the endeavor of General Thomas was to extend the scope of his office to that of a General Staff on Economics within the OKW, a plan which Thomas had been pursuing for years already, in opposition to Keitel and Jodl; he is the man, an opportunist and a double-dealer, who claims to have fought against methods he terms corrupt and contrary to international law. The Defendant Keitel admits that Thomas made reports pointing to the scarcity of raw materials; he expressed doubts as to whether armaments would suffice to carry on a war. But these doubts were shared by the generals, especially by Keitel. Generaloberst Jodl confirmed the fact that such reports were submitted to Hitler and Thomas, so that Dr. Gisevius' contention is proved incorrect in that respect too.

But it is worst of all with friend Nebe. The witness Gisevius has described Nebe as one of his most intimate friends who held the

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same views as he did. According to the statements of Dr. Gisevius, Nebe had been his friend since 1933 and was thoroughly familiar with the views of the witness. He remained in the RSHA-an organization discussed from many angles here-until 20 July 1944, and in the year 1944 he was in charge of the headquarters of the Special Service (Sonderdienst) for the prevention of the escape of prisoners of war. This is shown by Document USSR-413 submitted by the Prosecution.

To describe this witness-from whom Dr. Gisevius, after leaving, the Gestapo, claims to have received important information continuously-it should be pointed out that from 1933 to 1944 Nebe served in the RSHA, evidently to the satisfaction of his superiors Himmler, Heydrich, and Kaltenbrunner-otherwise he would not have stayed in office so long and would not have been promoted to the rank of Police General and SS Gruppenfuehrer.

So while on the one hand for 11 years he carried out the duties of his office with the well-known methods of the Gestapo-which was under Himmler-and later the Kripo, Dr. Gisevius refers to him as his friend and staunch political associate. Now it might be assumed, perhaps, that in the position he held he was able to prevent disaster, possibly even to hold up execution of orders. Document USSR-413, just referred to, shows that Nebe did not do this. In the deposition by Wielen, forming part of the document, the horrible case of the 50 escaped R. A. F. fliers, in which General Nebe, the friend of Dr. Gisevius, was involved, is dealt with.

Wielen states as follows in this connection:

"One day during that time I received, about noon, an order by telegraph from General Nebe to proceed to Berlin immediately, to be entrusted with a confidential order. Arriving in Berlin on the evening of that day, I reported to General Nebe at his office, Wendischer Markt 5-7. I gave him a condensed report on the position of the matter at that time. He then showed me a teletype order signed by Kaltenbrunner, to the effect that, in conformity with the Fuehrer's explicit and personal order, more than half of the officers who escaped from Sagan were to be shot when recaptured. General Nebe himself seemed shocked at this order. He was deeply worried. I heard later that he did not go to bed that night, but spent the night on his sofa in his office. I myself was likewise shocked at this frightful step which was to be taken, and refused to carry it out. I said it violated rules of war and undoubtedly was bound to result in reprisal measures against those of our own officers who were in English camps as prisoners of war, and that I flatly refused to take any responsibility in the matter. General Nebe declared that in this

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instance I would not be in any way responsible as the State Police was to act entirely independently, and that, after all, orders given by the Fuehrer had to be executed without protest.

"Nebe furthermore added that naturally it was my duty to keep the matter in deepest secrecy, and that the reason for his showing me the original order was so that I would make no trouble for the State Police."

Any comment seems superfluous. This is significant of Nebe's personality. The trustworthiness of a person is an inseparable part of his entire personality. Information obtained from a person who for more than a decade was able to play such an abominable double role can lay no claim to credibility.

I believe that this analysis of the statements of the witness Dr. Gisevius and of the men belonging to the Gisevius group gives me the right to say that the charges made against the Defendant Keitel by the witness can be no suitable foundation for the argument of the Prosecution, namely, that the Defendant Keitel

(1) formed a circle around Hitler;

(2) had tremendous influence on the OKW and the Armed Forces;

(3) did not submit reports on atrocities and crimes to Hitler; and

(4) did not protect his subordinates, but even threatened them with the Gestapo.

Rather is it true that the real position of Keitel, however important it may have seemed to outsiders, was neither decisive nor of importance either for the total sum of events or for the basic and important decisions of Hitler. Justice can be done to the actual importance of this activity if one says that it was tremendous, because physically and spiritually it went beyond human strength; because it placed the defendant perpetually in a dilemma between his military point of view and the unbending will of Hitler to whom he was faithfully, far too faithfully, devoted. Physically it presented an almost insoluble problem, for it had no sharply defined, clear outline but called for the perpetual balancing of essential differences; the adjustment of personal sensitiveness; the "self-protection" against encroachments of the individual of flees among themselves or against the OKW; clever maneuvering when Hitler, in explosive reaction to disagreeable news, wished to issue extravagant orders; the settlement of all disagreeable matters which Hitler did not wish to attend to himself.

It was a tremendously thankless task, which found only very slight compensation in the brilliant position in the immediate proximity to the head of the State, in the decorative participation in all events of what is called world history, in the representative discharge of the duties of a field marshal.

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Was Keitel a political general? The Defendant Keitel is accused of having taken part in, helped, and promoted the planning of, preparing of, and inciting to aggressive wars, and in so doing of violating international treaties and assurances. The defendant has testified in the witness box in this connection.

Insofar as knowledge or having cognizance of the intention to attack is concerned, I shall come back to the subject in connection with another point. The facts as such have been set forth by the Defendant Keitel.

As far as initiating and carrying out of strategic measures is concerned, defense counsel for General Jodl will deal with these questions.

I would like to mention a single event which assumed historical importance, and a personal importance for the Defendant Keitel, during this Trial: the conversation between Hitler and Schuschnigg at the Obersalzberg on 12 February 1938. This was the sheet-lightning that might have revealed the coming of the storm to clearsighted people. Keitel, Chief of the High Command of the Armed Forces for only a week, so far without any contact with big political events, did not perceive these signs of approaching stormy weather. Hitler, who after the sudden change of 4 February 38 had immediately gone to the Obersalzberg, called Keitel for the first time, without giving any explanation. Keitel came without knowing what Hitler wanted or what was to happen at the Obersalzberg. Only in the course of the day did he realize that his presence could have any connection with the presence of Schuschnigg and the discussion of the Austrian question. He did not participate in any of the conversations, especially with Schuschnigg or Dr. Schmidt, as is shown by the evidence. He realized, however, that his presence, together with that of Generals Von Reichenau and Sperrle, was to have some significance for the conversations with Schuschnigg; for as Hitler did not speak to him at all about military matters he was forced to the conclusion that the representatives of the High Command of the Armed Forces, the Army and the Air Force had been invited in order that their presence should indicate the power of the Armed Forces to Schuschnigg.

The situation therefore was that Hitler intended to use the representatives of the Armed Forces as a means of pressure for the realization of his political plans, while the latter had no knowledge of this beforehand, but realized this intention only later on.

This meeting at the Obersalzberg is now being used by the Prosecution as a basis for the accusation that Keitel was a political general. The Prosecution introduced the conversations of Hitler with Hacha and Tiso, at which the Defendant Keitel also was present, as a further symptomatic event to bear out this charge.

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This evidence does not appear convincing if it is intended to prove that Keitel also actively participated in the political conversations. When the Defendant Keitel took part in State visits and conversations with foreign statesmen, he did not participate in the conversations, although present. Hitler liked to have Keitel in his entourage as the representative of the Armed Forces. Thus, Keitel was present at Godesberg when Prime Minister Chamberlain went there, also at Munich on 30 September 1938, and at the visit of Molotov in November 1940. He was also present at the meetings of Hitler with Marshal Petain, General Franco, King Boris, Regent Von Horthy, and Mussolini. This function of Keitel is, however, insufficient to make the defendant a general who must have taken a decisive part in the shaping of political events.

How little this assertion is justified is seen from the fact testified to by Admiral Burckner that Keitel was extremely careful not to encroach on the affairs of the Foreign Office and gave his officers orders not to engage in matters referring to foreign policy. In domestic politics the exclusion of the Chief of the OKW resulted from the removal of-the Reich War Minister, already dealt with, and the thereby intended and achieved elimination of political representation of the Armed Forces in the Cabinet.

It is obvious, and has also already been pointed out, that the position of the Defendant Keitel as Chief of the OKW involved, and in time of war to an increased extent, his coming into some kind of contact with all the ministries and highest offices, and dealing with them as the representative of the OKW, that is to say, of Hitler.

That did not make Keitel a politician, that is to say, a man who took part in an advisory capacity in the determination of the Government's aims, and had an influence on them. In his high office he naturally worked to carry out these aims and bears a responsibility to that extent, but not as a political general.

Mr. President, I am now beginning a long chapter. Do you want me to start with it?

THE PRESIDENT: Go on reading then until 5 o'clock.

DR. NELTE: The idea of war against Russia was rejected by Keitel. This found visible expression in the memorandum which Field Marshal Keitel drew up, discussed with Von Ribbentrop, and handed over to Hitler. According to his sworn statements the reasons were:

(a) military considerations;

(b) the Nonaggression Pact with the Soviet Union dated 23 August 1939.

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In spite of being personally presented, the memorandum had no success. Hitler, as usual in questions of strategic nature, rejected Keitel's point of view as unconvincing.

In this connection, and owing to Hitler's curt rejection, Keitel asked for release and transfer to the front. This is the case which Reich Marshal Goering confirmed in his interrogation. Hitler refused, sharply criticizing the habit of generals asking to be released or tendering their resignation whenever he did not approve their opinions or suggestions.

That was decisive for Keitel: he remained at his post, did his duty, and fulfilled his obligations in carrying out the tasks incumbent upon him within the framework of further preparations. Here, too, in keeping with his conception of duty, Keitel did not make known to the outside world his basically negative attitude toward the war with Russia, after Hitler had made his decision.

This case is in several respects typical of Keitel and of the way he is judged by others. We know-and it has been proved by the evidence-that other generals were also opposed to war with the Soviet Union. Their objections, too, were waived or rejected by Hitler. They, too, accepted the decision of the Supreme Commander of the Armed Forces, continued to do their duty and carried out the orders given to them. But there was one basic difference: these other generals went back to their headquarters after the discussion. There, in their own circle of officers they spoke about the decision made by Hitler. Of course it was disputed, yet they acted in accordance with it.

Since Field Marshal Keitel, due to his military conception, as already depicted, did not make known to the generals, when they appeared in the Fuehrer's headquarters for discussions, what his own attitude was, which was also at variance, the impression was bound to arise that Field Marshal Keitel completely agreed with Hitler and did not support the scruples of the Armed Forces' branches.

THE PRESIDENT: Dr. Nelte, I think you might stop there.

[The Tribunal adjourned until 9 July 1946 at 1000 hours.]

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