ONE HUNDRED
AND SEVENTY-FOURTH DAY
Tuesday, 9 July 1946

Morning

MARSHAL (Lieutenant Colonel James R. Clifford): May it please the Tribunal, the Defendants Hess and Fritzsche are absent.

THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): I have an order to read. The Tribunal orders:

1. Applications for witnesses for organizations to be heard by the Tribunal in open court in accordance with Paragraph 5 of the Tribunal's order of 13 March 1946 should be made to the General Secretary as soon as possible, and in any case not later than 20 July.

2. The Tribunal believes that so much evidence has already been taken, and so wide a field has been covered, that only a very few witnesses need be called for each organization.

That is all.

DR. OTTO NELTE (Counsel for Defendant Keitel3: Mr. President, Gentlemen of the Tribunal, yesterday I dealt with the problem of Keitel and the Russian campaign. Now I recall to you what Keitel said in the witness box concerning the so-called ideological orders:

"I knew their content. In spite of my personal misgivings I passed them on without letting myself be deterred by the possibility of serious consequences."

I wanted to point that out in order to make what I have to say now comprehensible, above all, in its extent. In the course of time the opinion arose and was disseminated throughout the Army, that Field Marshal Keitel was a "yes man," a tool of Hitler's and that he was betraying the interests of the Armed Forces. These generals did not see, nor were they interested in the fact that this man was fighting a constant battle, day after day, in every possible field, with Hitler and the forces which were influencing him on all sides. The effects of this distorted picture shown here in detail, which definitely did not apply to Keitel, especially not in the sphere of strategic operations, planning, and execution, made themselves still felt even in this Trial; perhaps not without the fault of the Defendant Keitel himself. As to the

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justification of his conception of duty there can in principle be no argument. It has also been confirmed here by the witness Admiral Schulte-Mönting for the Defendant Grossadmiral Raeder. There can be no doubt that the rest of the admirals and generals were in principle of the same point of view, that it is impossible in military spheres to criticize before subordinates the decision of a superior as expressed in an order, even if one has misgivings about the order.

One may say that every principle, every basic rule must be interpreted and applied in a reasonable way, that every exaggeration of a good principle detracts from it. In the case of Keitel this objection affects the problem of his responsibility and guilt.

Does nonrecognition of the point where a principle, correct in itself, is being carried to excess and thus endangers the object for the protection of which it has been established, constitute guilt? In the case of Keitel we must consider this crucial question from the point of view of a soldier. The thoughts and ideas which the Defendant Keitel had in this connection were the following:

It is incontestable that the principle of obedience is necessary for every army; one might say that obedience-in civilian life a virtue and therefore more or less unstable in its application- must be the essential element of a soldier's character, because without this principle of obedience the aim which is to be accomplished by the army could not be achieved. This aim-the security of the country, the protection of the people, the maintenance of the most precious national possessions-is so sacred that the importance of the principle of obedience cannot be valued highly enough. Hence, the duty of those called upon to preserve that national institution, the Armed Forces, in the sense of its higher task, is to emphasize the importance of obedience. But what the general demands of the soldier, because it is indispensable, must hold good for himself too. This also applies to the principle of obedience.

It would be dangerous to weaken an order, still less an essential principle, by mentioning exaggerations and taking them into consideration at the outset. That would leave the principle of decision to the individual, that is, to his judgment. There may be cases where the decision depends, or must be made dependent, on actual circumstances. In theory, that would lead to a devaluation or even to an abrogation of the principle. In order to forestall this danger and to eliminate any doubt as to its absolute importance, the principle of obedience has been changed in military life into one of "absolute obedience," and embodied in the oath of allegiance. This is equally valid for the general as for the common soldier.

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The Defendant Keitel not only grew up in this school of thought, but during the 37 years of his military service, up to 1938, including the first World War, he had become convinced that this principle of obedience is the strongest pillar upon which the Armed Forces, and thereby the security of the country, rests.

Deeply imbued with the importance of his profession, he had served the Kaiser, Ebert, and Von Hindenburg in accordance with this principle. As representatives of the State, they had to a certain extent an impersonal and symbolic effect on Keitel; Hitler, from 1934, at first appeared in the same light to him, that is, merely as representing the State, without any personal connection, in spite of the fact that his name was mentioned in the oath of allegiance. In 1938 Keitel as Chief of the OKW came into the immediate circle and the personal sphere of Hitler. It appears important for further explanation and in assessing the personality of Keitel to bear in mind that Keitel, as the result of his highly-developed soldierly conception of duty described above, and the pronounced feeling of soldierly obedience, was now exposed to the direct effects of Hitler's personality.

I am inclined to assume that, Hitler had clearly realized, in the preliminary discussions with Keitel which led to the Fuehrer Order of 4 February 1938, that Keitel was the type of person he was including in his calculations: A man upon whom he could rely as a soldier at any time; who was devoted to him with sincere soldierly loyalty; whose bearing fitted him to be a worthy representative for the Armed Forces in his sphere; and who in the opinion of his superiors was an extraordinarily able organizer as shown by the report of Field Marshal Von Blomberg. Keitel himself has admitted that he sincerely admired Hitler, and that the latter subsequently attained a strong influence over him and brought him completely under his spell.

This must be borne in mind if we wish to understand how Keitel could have made out and transmitted orders from Hitler which were irreconcilable with the traditional conceptions of a German officer, such as, for instance, orders C-50, 447-PS, et cetera, submitted by the Soviet Russian Prosecution.

By exploiting the willingness to fight for Germany, which might be taken for granted in the case of every German general, Hitler was able to camouflage his party political aims with the pretext of defending the national interests and to present the impending struggle with the Soviet Union as a dispute which must inevitably be settled-even as a war of defense, the necessity for which was made clear by definite information which had been received and on which depended the existence of Germany.

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In this way Hitler broached the fateful question. General Jodl has testified here to the fact that, as an officer of long standing, Keitel's conscience pricked him nevertheless; and that he repeatedly, but unsuccessfully, raised objections and suggested alternatives to the orders drafted.

During his cross-examination by the representative of the American Prosecution, the Defendant Keitel has openly declared that he was aware of the illegal nature of these orders, but that he believed that he could not refuse to obey the orders of the Supreme Commander of the Armed Forces and head of the State, whose final pronouncement in the case of all objections was: "I do not know why you are worrying; after all, it is not your responsibility. I myself am solely responsible to the German people."

This is a reasoned analysis of Keitel's attitude toward the so-called ideologically-based orders of Hitler.

Keitel's last hope, which in many cases proved to be justified, was that the commanders-in-chief and subordinate commanders of the Armed Forces would at their discretion and within the scope of their responsibility either fail altogether to apply these harsh, inhuman orders, or would apply them only to a limited degree. In view of his position, Keitel had only the choice between military disobedience by refusing to transmit the orders, or complying with the instructions to forward them. I shall investigate in another connection the question of what alternative cases of action might have been open to him. The problem here is to show how Keitel came to forward orders which indisputably violated the laws of warfare and humanity and why, by reason of his duty to obey, his sworn loyalty to the Supreme Commander, and the fact that he saw in the order of the head of the State the absolution of his own responsibility, he failed to recognize the point at which even the soldier's strict duty of obedience must end.

Every soldier who has appeared here as a defendant or as a witness has mentioned the duty of allegiance. All of them, when they sooner or later realized that Hitler had drawn them and the Armed Forces into his egocentric gamble for the highest stakes, have considered their oath of allegiance as rendered to their country and have believed that they must continue to do their duty in circumstances which to us and even to themselves, when they realized the extent of resulting disaster, appear inconceivable. Not only soldiers such as Raeder, Dönitz, and Jodl, but Paulus as well, kept their positions and remained at their posts, and we have heard the same from other defendants. The statements of the Defendants Speer and Jodl in this connection were deeply moving.

The question of whether these facts relieve the Defendant Keitel of guilty responsibility requires investigation. Keitel does not deny

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that he bears a heavy moral responsibility. He realizes that no one who played even the smallest part in this terrible drama can feel himself devoid of the moral guilt in which he was entangled.

If I nevertheless emphasize the legal point of view, I am doing so because Justice Jackson, in his speech on behalf of the Prosecution, expressly referred to the law as being the basis of your verdict-to international law, the law of individual states, and the law which the victorious powers have embodied in the Charter.

I assume that the Defendant Keitel has recognized that some of Hitler's orders violated international law. The Charter says that a soldier cannot clear himself by referring to orders given by his superiors or by his government. At the beginning of my argument I asked you to determine whether, independently of the terms of the Charter, the principle is unimpeachable that the standard determining right or wrong cannot but depend on a national concept.

THE PRESIDENT: Dr.Nelte, I see that in the next few pages you pass into the realm of metaphysics. Don't you think that part you might leave for the Tribunal to read?

You must remember that you began your speech-yesterday before the morning adjournment, and you have got over seventy pages left of your speech to read.

DR. NELTE: I have limited it and shall be through by noon.

THE PRESIDENT: Very well. Do you think it is necessary to read these passages about metaphysics?

DR. NELTE: I want to show in these pages that they are not metaphysical forces, and that the individual is not in a position to free himself through metaphysical forces. I shall-well' I think I shall continue on Page 121, immediately following my reference to Hitler's character.

Perhaps I may just read from Page 120 at the bottom.

THE PRESIDENT: Very well, if you tell the Tribunal that you have limited your presentation. I think you began yesterday at a quarter past 12. Go on then. Take your own course, but do your best to limit it, and go to Page 120 now.

DR. NELTE: The French prosecutor, M. De Menthon, has pointed to the 'demoniacal" undertaking of Hitler and therewith pronounced a word which had necessarily to be brought up in a discussion which is dedicated to the investigation of events forming the background of these Trials. It is the natural endeavor of intelligent people to analyze the reasons for events which have deeply touched the fate of mankind in these days. If these events deviate from the regular happenings and the natural course of things so much that they sharpen our imagination, we take our refuge in metaphysical powers. I ask you not to consider the pointing to such metaphysical forces as an attempt to evade responsibility. We are all still under the impression of the attempt by a single man to lead the world from its course. I should not care to be misunderstood: The "demoniacal" is an incomprehensible yet extremely real power. Many call it "fate." If I speak of fateful, metaphysical powers, I do not mean the fate

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of antiquity and of pre-Christian Germanism to which even the gods are necessarily subject.

I should like to make this quite clear: The demoniacal about which I am talking in this connection does not exclude the capacity of man to discern evil; of course, I believe that the demoniacal, should it become effective, does limit the capacity for perception. Principiis obsta. The old German maxim says: "Resist from the very start, the remedy will be prepared too late."

Fate and guilt are not phenomena excluding one another, but rather circles which overlap, so that there are sections of life when both power groups are operative. I can only indicate here in a few words what things may be considered as being governed by fate: nationality, historical and traditional conditions of existence, individual origin, professional surroundings.

Mankind today cannot yet recognize the difference between the fateful, that is, the metaphysical powers which have become operative, and the persons who have appeared as tools of these powers; therefore the people who made their appearance as actors on the stage of this terrible drama are ``guilty people" to them. The further removed mankind is from the events, the less it sees or feels the consequences, the more objective does judgment-divested of actuality and subjective instincts-become within the framework of the history of human development. In this way the active figures and their share in the events will be better recognized. But as long as we are under the recent impression of the events, we do, it is true, realize the border line between guilt and fate, but we cannot yet recognize it clearly.

No less a person than Marshal Stalin has pointed out in February 1946 that the second World War was not so much the result of mistakes of individual statesmen, but rather the consequence of a development of economic and political tension on the basis of the existing capitalist economic system.

I am now beginning Paragraph 3 on Page 120.

Hitler was the exponent of an idea. He was not only the representative of a Party political program, but also of a philosophy which separated him and the German people from the ideology of the rest of the world. As a convinced enemy of parliamentary democracy, and obsessed with the conviction that this was the true ideology, he was devoid of tolerance and the spirit of compromise. This produced an egocentric ideology which recognized as right only his own ideas and his own decisions. It led to the "Fuehrer State," in which he was enthroned on a lonely height as the incarnation of this faith, blind and deaf to all misgivings and objections, suspicious of all those who he thought might constitute a threat to his power, and brutal to everything that crossed his ideological path.

This outline of his character, which has been verified by the evidence, is incompatible with the Prosecution's assumption that a partnership of interests might have existed between Hitler and the defendant. There was no partnership of interests and no common planning between Hitler and the men who were supposed to be his advisers. The hierarchy of the Fuehrer State, in connection with the Fuehrer Order Number 1, which gives the crudest expression to the separation of work, can only admit of the conclusion that the so-called co-workers were merely mouthpieces or tools of an overwhelming will, and not men who translated their own will into deeds. The only question, therefore, which can be raised is whether

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these men were guilty in putting themselves at the disposal of such a system and in submitting to the will of a man like Hitler.

This problem requires special examination in the case of soldiers, because this submission to the will of some person, which is contrary to the nature of a free man, is for the soldier the basic element of his profession, and of the duties of obedience and allegiance which exist for the soldier in all political systems.

The legal problem of conspiracy in the sense of the Indictment has been dealt with by my colleague Dr. Stahmer and by Dr. Horn. In the specific case of the Defendant Keitel I should only like to refer to two sentences of the speech as the starting point of my statements:

(1) "It is not sufficient that the plan be common to them all; they must know that it is common to all of them, and each one of them must of his own accord accept the plan as his own.

(2) "That is why a conspiracy with a dictator at the head is a contradiction in itself. The dictator does not enter into a conspiracy with his followers; he concludes no agreement with them; he dictates."

Dr.Stahmer has pointed out that no one acting under or on account of pressure can therefore be a conspirator. I should like to modify this for the circle to which the Defendant Keitel belonged. To say that the defendants belonging to the military branch acted on account of or under pressure, does not accurately represent the real circumstances. It is correct to say that soldiers do not act voluntarily, that is, of their own free will. They must do what they are ordered, regardless of whether or not they approve of it. Accordingly, when soldiers engage in any action, their will is disregarded, or at least not taken into consideration; it will in fact always be disregarded because of the nature of the military profession, and in applying the Leadership Principle in the Armed Forces it cannot appear as a causal factor in the initiation and execution of orders. In this military sphere, therefore, we are not dealing with an abstract and thus theoretical deduction, but with a conclusion which is bound to result from the nature and practice of the military profession, when we maintain that the function of the Defendant Keitel was based on military orders. The activity of the Defendant Keitel with regard to the initiation of orders, decrees, and other measures by Hitler, even insofar as they are criminal, cannot therefore be considered as common work, that is, as the result of a common plan within the meaning of the term "conspiracy." Keitel's activity in regard to the execution of orders consists in the proper transmission of orders in the operations sector

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and in the proper execution of orders concerning the administration of the war, that is, in the so-called ministerial sector.

No matter how this activity in itself might be qualified in terms of the penal code, the Prosecution have not, I think, so far submitted anything which could refute this train of thought as to the conspiracy.

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

The existence of a conspiracy seems to me incompatible with the theory of a soldier's functions and with Keitel's position as head of the OKW, and cannot logically be derived therefrom. In all cases in which the Prosecution has claimed conspiracy to be prejudice, the purpose of this conspiracy is an activity indulged in by the members in perpetrating acts which differ from their normal private activity. The ex contrario proposition is that the activity which a man must practice because it belongs to his profession or office cannot be termed a conspiracy. It may be added that the soldier does not act on his own initiative, but on orders received. A soldier may therefore take part in a conspiracy aimed against the duties he has undertaken as a soldier; but his activity within the scope of his military functions can on no account be termed a conspiracy.

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

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

Keitel feels himself to be gravely incriminated by the frank statements he made in the witness box on the whole question of the Russian war. It is, therefore, not only an understandable proceeding on the part of the defense, but in fact its duty, to clarify the extent to which Keitel bears the responsibility for these entire conditions of most frightful atrocity and unimaginable degeneration.

To make these matters of competency, which are frequently extremely complicated, easier of understanding, I refer to the Defendant Keitel's affidavit Number K-10, which was submitted to the Tribunal. It seems to me essential just to emphasize the fact that the war against the Soviet Union was from the first subject to three effective factors: (1) Operations and command: High Command of the Army; (2) Economics: The Four Year Plan; (3) Ideological: The SS Organizations.

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

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

To begin with, I referred to Documents USSR-90, 386, 364, 366, 106, and 407, and tried to prove in detail that the charges made against the OKW and Keitel as the guilty parties have no value as evidence as far as these documents are concerned.

Then, on Page 130, I referred to a category of documents with which I have dealt earlier in Part 2 of my presentation on the subject of official documents. If I refer in this connection to the official reports of the Investigation Commission, I do so not because of their actual contents, but because, although they were submitted in order to implicate Keitel, they are in themselves proof that the charges made against Keitel and the OKW are not justified as far as these grave indictments are concerned.

Out of the large number of documents in this connection I have dealt with USSR-40, 35, and 38. These official reports, which implicate the High Command of the Armed Forces, do not contain a

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single concrete fact referring to the Staff of the OKW-that is, Keitel-as the perpetrator or instigator of these atrocities.

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

First of all I shall deal with the Documents USSR-90, 386, 364, 366, 106, 407, submitted by the Prosecution for the specific purpose of establishing Keitel's responsibility.

They will show that not in a single ease are they orders, decrees, or regulations issued by the German High Command of the Armed Forces and that it has not been proved that the latter was even informed thereof.

(1) The document Exhibit USSR-90 is a court-martial sentence against the German Generals Bernhardt and Hamann, and includes the following sentence:

"During the temporary occupation of the Orlova area ... German Fascist intruders committed bestial crimes in huge numbers against the peaceful populations and prisoners of war on direct orders of the rapacious Hitler Government and the command of the Armed Forces, thus violating the rules of warfare established by international law...."

The argumentation leading up to the verdict does not reveal proof of the claim that the "German Armed Forces command"-if this means the OKW and the Defendant Keitel-ordered the crimes with which the court-martial verdict is dealing. This is another of the frequent confusions as to the status of the High Command of the Army and the High Command of the Armed Forces. Statements on Page 2 of the verdict seem to indicate this; it is said there:

"The defendant, Lieutenant General Bernhardt... acted according to plans and instructions of the Commander-in-Chief of the Army..."

This document, therefore, cannot furnish proof for the Prosecution's contention that the Defendant Keitel is connected with the crime which is described in Document USSR-90.

(2) In connection with the facts in the case dealing with 'compulsory labor," the Prosecution submitted in proof of its charge against Keitel Document USSR-36, a letter by Reich Marshal Göring, in whom Hitler had vested general powers within the framework of the Four Year Plan for this essential project- Plan Barbarossa-Oldenburg-as shown in the Green File.

(3) Nor does the report or discussion of the Economic Staff East (Wirtsehaftsstab Ost) of 7 November 1911 (USSR-386) touch upon the competency and responsibility of OKW, because the Economic Staff East had nothing to do with the OKW and the Defendant Keitel.

This is also proved by the Green File, the Thomas Document 2353-PS, and Keitel's affidavit, Keitel Document Book 2, Exhibit Number Keitel-ll.

The conclusion drawn by the Soviet Russian Prosecution that ``Proof is established of the OKW commander having been primarily responsible for the mobilization of labor in the Reich,, is erroneous, it the argument is to establish responsibility on the part of the Defendant Keitel. If, on the other hand, reference as commander of the OKW is made to Hitler, this cannot be contradicted.

(4) Document USSR-364 is a document from the OKH (High Command of the Army), signed by the Quartermaster General of the Army, Wagner. It can be seen from the distribution of the document that the OKW was not even informed through the usual channels.

(5) Document USSR-366 mentions the name of the defendant as having complained because: ``OT (Organization Todt) units operating in the vicinity of Lvov paid local laborers a daily wage of 25 rubles and because OF availed itself of the services of local factories."

The Prosecution's argument runs that ``Keitel writes to Minister Todt. . ." The document which was submitted does not reveal this, because it does not

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make any mention of such a letter. Inasmuch as the entire economic administration and the exploitation of the Eastern Territories had been transferred to the Four Year Plan, OKW had no relevant office problem.

This becomes evident from the Green File just referred to, and from the Fuehrer order for the "Barbarossa-Oldenburg Plan." Presumably, after discussion of the basic question during the conference on the situation, Keitel once again received orders from Hitler to get into touch with Reich Minister Todt. This would then be one of the instances where the defendant merely served as an instrument for the transmission of a Hitler order to the competent office without the matter being in any way within the competency of the OKW. In any ease, the information conveyed by the document does not show in how far this problem should be a charge on Keitel.

(6) Document USSR-106 is a Fuehrer Order of 8 September 1942, dealing with the employment of prisoners of war and the construction of field fortifications behind the front. The heading of the Fuehrer order reads:

"The Fuehrer.

"OKH. General Staff of the Army Operations Section 1."

The order was signed by the Army General Staff and issued by Halder. This proves conclusively that the Defendant Keitel or the OKW was not involved.

(7) Nor is it possible to refer to Document USSR-407 for the establishment of the defendant's participation. This document deals with the order given by a local commander, who refers to alleged OKW instructions.

It has already been emphasized on several occasions that the OKW does not mean Keitel. It may however be quite possible, as no date of the alleged OEW order is mentioned in Document USSR-407, that this is one of the numerous eases of confusion, especially since even in Armed Forces circles the exact conception of the OKW was rot known.

In any ease the conclusion by the Soviet Russian Prosecution, after submission of this document, that "OKW and Keitel have not only ordered the mobilization of labor from the occupied part of Russia, but have worked directly in the execution of this order" is incorrect and has not been proved.

Now there is still a category of documentary evidence which contains official communiqués of the Extraordinary Commission for the determination and investigation of War Crimes and Crimes against Humanity. I already some time ago dealt with the importance of official documents in the presentation of evidence, and pointed out their limited value as evidence.

If in this connection I discuss the official reports of the investigating commissions, then I do so because ostensibly they have been presented in order to incriminate Keitel, while in actual feet they furnish proof that the accusations against Keitel and the OKW Staff are not based on any reasoning in these very weighty Prosecution charges.

From the large number of documents concerning this I would refer to the following:

Document USSR-4 has been submitted to show that the Soviet-Russian population was exterminated through intentional infection with typhus, and that this was a case of a planned spreading of typhus-epidemics among the Soviet population. For this the following, among others, are named as the culprits (Page 10 of the document), `4The Hitler Government and the Supreme Command of the Armed Forces."

Once again it cannot be seen from the document itself on what concrete facts the commission supports the guilt of the "Supreme Command of the German Armed Forces" and what military agency is thereby described. There is no mention made of an order of the "Supreme Command of the German Armed Forces" in any part of this lengthy document. However, since the Prosecution have presented this document as proof of the guilt of the Defendant Keitel and the OKW, I establish that this document cannot be valid as evidence for an accusation against Keitel in this horrible charge.

Document USSR-9 bears the heading:

"Report of the Extraordinary State Commission for the determination and investigation of the atrocities of the Fascist German invaders and the

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damage caused to citizens, collective organizations, State plants and institutions of the Soviet Union.

"Regarding the demolitions and bestialities which the German Fascist invaders have committed in Kiev."

On Page 4 it is stated: By order of the German High Command German Army units looted, blew up, and destroyed the old cultural monument, the Lavra of Kiev. The following are described as responsible: "The German Government and the German High Command and all officers and officials listed by name." From the speech of the representative of the Prosecution and from the term, "the German Government and the German High Command" it can be seen that the High Command of the Armed Forces and Keitel are to be accused as having been responsible. This document lacks any positive statement on which the Investigating Commission supports this judgment.

It is also shown here that the judgment of the investigating commission- in any ease with reference to the Defendant Keitel-is not basically supported.

Document USSR-35 is a report "regarding the material damage which the Fascist German invaders inflected on State plants and institutions, collective industries, and citizens of the Soviet Union."

This document states:

``The German armies and occupation authorities which earned out the directives of the criminal Hitler Government and the High Command of the Armed Forces, destroyed and looted the Soviet cities occupied by them ...."

To this it must be stated:

(1) The contents of this document do not show one single concrete "directive" issued by the OKW or Keitel.

(2) The OKW had no authority to give orders, and therefore could not issue directives.

(3) Therefore the findings of the State investigation commission, which for formal reasons would not be binding for the Tribunal, cannot be considered as justified insofar as the OKW and Keitel are concerned.

(4) No opinion is going to be expressed as to the remaining contents of the reports.

Document USSR-38 is entitled:

"Communication of the Extraordinary State Commission for the Determination and Investigation of the Atrocities of the Fascist German invaders and their Accomplices. Regarding atrocities of the Fascist German invaders in the city of Minsk."

In this document it is stated on Page 1:

``Following instructions, which were issued directly by the German Government, the Hitlerite military authorities destroyed without any limitation scientific research institutes, et cetera... they exterminated thousands of peace-loving Soviet citizens and also prisoners of war."

Page 13 states:

"Responsible for the crimes committed by the Germans at Minsk... are the Hitler Government and the High Command of the Armed Forces."

Nowhere in this document have either concrete or verifiable instructions or orders by the Defendant Keitel or from the OKW been given.

Then, on Page 134, Paragraph 1:

In the documents previously quoted, either Keitel or the OKW is named as the responsible party. However, during the Prosecution's presentation many such official reports were quoted as evidence for Keitel's guilt, which do not even mention either the name of the defendant or the OKW. In this connection, I draw your attention to Documents USSR-8, 39, 45, 46, and 63. I only ask the Tribunal to examine the remaining documents with equal

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care in order to ascertain whether, if submitted in connection with Keitel and the OKW, they allow Keitel's guilt whether that is not the case. In this connection I should like to add that I am not going to read, and am not referring to, the remarks at the bottom of Page 134 (USSR-3).

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

In the war against Poland as well as later in the West, extended on the basis of experiences in Poland, expert personnel trained in military economy were detached from the Armed Forces Economic Office in the form of small staffs and units to the Army Groups and Army High Commands as expert advisers and assistants in all military economic questions which resulted from the conquest and occupation of economically and industrially valuable territories. The Economic Armament Office, together with the OKW, prepared the organization of these groups of experts and technical detachments.

By and large, they consisted of: (a) Expert advisers with the unit staffs (at first known as liaison officers of the OKH Economic Armament Office); (b) Reconnaissance Staffs for factories and raw materials important to war economy; (e) technical detachments and formations for security, repairs, and protection from destruction of essential and vital plants and supply installations.

This organization was prepared by the OKW (Economic Armament Office) because it relied on expert research personnel from all three branches of the Armed Forces and civilian economy with the 'technical emergency aid', (Technische Nothilfe). The Army completed the set-up itself.

The organization was subordinated to the senior troop commanders in charge. Their employment took place exclusively on the orders of the troop command, for which each adviser submitted suggestions from time to time to the unit staffs (the General Staff Ib or the Chief Quartermaster).

The missions of these technical detachments were: (a) Advising the command concerning the importance and significance of industrial plants and supply installations (fuel, water, electric current, repair plants, mines, et cetera); (b) Protection of these installations from destruction by the enemy and our own forces and the civilian population; (e) Utilization for the purpose of Germany's conduct of the war for troops and population, (d) Examination of essential and vital plants and establishment of their productive capacity for German use; (e) Establishment of raw material supplies of metals, ore, coal, fuel, et cetera, for reindustrialization of Germany's conduct of the war.

All functions, with the exception of those mentioned under (d) and (e), served exclusively to supply the fighting troops, the occupational troops, and the native population. The statistical collections (d) and (e) were reported through military channels to the competent offices at home (Plenipotentiary for Economy, Four Year Plan, Minister of Armaments) who had to make disposition concerning use and utilization. The Armed Forces itself had no independent right of action.

It is correct that (according to the Thomas book, 2353-PS) raw materials and also machines were removed to Germany for the production of implements of war as the Prosecution charges, since both had served the enemy's conduct of the war and had necessarily gone out of production. No military agency could order the removal to Germany, because it had no right at all to dispose of "booty" of this sort. Only the three highest Reich authorities mentioned could effect such a removal on the basis of a general authority by the Fuehrer or a special order by him to the Commander-in-Chief of the Army. The OKW and the Chief

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of the OKW, as well as the Economic Armament Office, had no right of disposition and command outside of their own fields, nor did any separate chain of command exist from the OKW. Economic Armament Office to these detachments, et cetera. The communications and report chain ran via the unit staffs to the OKH Quartermaster General, with whom the highest Reich authorities (Food, Economy, Armament Ministry, Four Year Plan) had representatives who reported to their departmental chiefs. Orders by the Defendant Keitel as Chief of the OKW concerning utilization, use, or seizure of economic goods have not been given; this follows from Document 2353-PS.

The unified leadership of the entire war economy in France and Belgium was then centered in Reich Marshal Göring as Delegate of the Four Year Plan by the Fuehrer Decree of 16 June 1940.

For determining the responsibility it is of significance that the staff of the Economic Armament Office examined the problems which concerned the armament economy and utilization of economy in the occupied territories. Their appraisals, which in this respect were regarded as decisive, are collected in Document EC-344, coming from the Foreign Department in the OKW (headed by Admiral Canaris).

With reference to Articles 52, 53, 54, and 56 of the Hague Convention of Land Warfare, it is explained therein in connection with total warfare that "economic rearmament" must be regarded as forming part of the "belligerent enterprise," and accordingly all industrial supplies of raw materials, semifinished and manufactured goods as well as machinery, et cetera, are to be regarded as serving the war effort. Therefore, according to the viewpoint of the author of this opinion, all these goods are liable to be seized and used against compensation after the conclusion of peace. Furthermore, the problem of the need for war is examined and Germany's state of economic difficulty at that time is already affirmed. For the judgment of the Defendant Keitel this opinion is of significance insofar as the well-known Foreign Department under the responsible leadership of Admiral Canaris as late as November 1941 gave vent to an opinion which justified the economic utilization of the occupied countries. That was the office which concerned itself with problems of international law and on which the Defendant Keitel based his confidence.

An organization for all economic requirements and intended to supersede the former organization was created for Russia on the basis of experiences in the West by Reich Marshal Goering by virtue of a general delegation of authority by the Fuehrer.

The chief of the Economic Armament Office together with State Secretary Körner drew up this organization for Reich Marshal Göring without participation by the Chief of the OKW. The Chief of the OKW for this purpose put General Thomas at the disposal of Reich Marshal Göring. The Chief of the OKW did not acquire any influence at all on this organization, and severed his own and the OKW's connection with it after Reich Marshal Göring had received full powers and the OKW had put General Thomas at his disposal. General Thomas thus acted solely on instructions by Reich Marshal Goering. The OKW and the Defendant Keitel were never under Reich Marshal Göring's orders nor were they bound by his instructions. The Defendant Keitel was not represented in Göring's Economic Staff and had nothing to do with the Eastern Economic Staff (See Thomas book, Page 366).

The execution of the work was centrally directed by the Economic Operations Staff in Berlin as part of the Four Year Plan. The local higher command in the Eastern district was under the Eastern Economic Staff. To this organization was also attached ~- the troops' supply department. The OKW, and the Defendant Keitel as Chief of the OKW, never issued orders concerning the exploitation, administration, or confiscation of economic property in occupied territory. This is revealed in the book submitted by the Prosecution, Document 23s3-Ps. On Page 386 of this document, Thomas, in summarizing, correctly stated as follows:

The Eastern Economic Operations Staff under the Reich Marshal or State

Secretary Körner was responsible for the whole economic direction of the

Eastern area; the state secretaries were responsible for departmental

instructions; the Economic Armament Office was responsible for the

reconstruction of the economic organization; the Eastern Economic Opera

lions Staff was responsible for the execution of all measures."

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The same is shown by Document USSR-10:

"Directives (of Reich Marshal Göring) for the unified conduct of economic

management in the zone of operations and in political administrative

areas to be subsequently established."

This ought to prove that the OKW and Keitel are clear of any responsibility for the consequences attendant upon carrying out the measures within the scope of the Barbarossa-Oldenburg operation.

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

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

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

You will understand that the Defendant Keitel attaches particular importance to the production of evidence to the effect that he is not responsible for these terrible occurrences, and, further, that when such things came to his knowledge he took steps to have them cleared up in order that the actual offenders might be brought to account. It is an indisputable fact that Keitel had no direct part in these crimes. Any responsibility and guilt attaching to the defendant can therefore be derived only from his official position. No orders of any kind bearing Keitel's signature have been submitted by the Prosecution, so that, whoever is guilty, Keitel is not, at any rate, among those directly responsible.

The terrible sufferings inflicted on a large number of French villages are recorded in the notes of General Barred dated 6 July and 3 August 1944. I pointed out, when this document was submitted, that the submission of these complaints alone-that is, unaccompanied by the replies, which are also in the hands of the Prosecution-cannot convey an objective picture of the actual facts, on which to base a pronouncement on the guilt of the Defendant Keitel. As the Defendant Keitel, not being empowered to issue orders in the matter, cannot possibly be taken into consideration as the originator of the orders which led to the complaint, any responsibility and guilt on Keitel's part can therefore be based only on the fact that he did not cause the necessary steps to be taken on receiving information from the German Armistice

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Commission. What Keitel did or did not do can be gathered only from the reply notes and from the directives issued by the OKW to the German Armistice Commission.

Here, too, the Defendant Keitel would have been unable to provide proof to the contrary, had not the French Prosecution themselves submitted a document, F-673, which was intended to furnish proof of Keitel's individual guilt. This document was already read by the French Prosecution at the session of 31 January 1946:

`High Command of the Armed Forces; F. H. Qu., 5 March 1945; Secret.

"WFST./ Qu. 2 (I) No. 01487145 g.

"Subject: Alleged Killing of French Nationals without Trial.

''German Armistice Commission; Group Wa/Ib No. 5/45 g.

"1) German Armistice Commission; 2) Commander-in-Chief West.

"Received: 17 March 1945.

``In August 1944 the French delegation of the German Armistice Commission addressed a memorandum to D. W. St. K. (German Armistice Commission) describing in detail incidents leading to the alleged shooting without justification of Frenchmen during the period of 9 to 23 June 1944. Statements made in the French note were almost entirely made in such detail that an examination by Germany was possible without any difficulty.

``On 26 September 1944 the High Command of the Armed Forces charged the German Armistice Commission with the handling of the case. Thereupon, the German Armistice Commission asked the Commander-in-Chief West to investigate the incidents and to take action with regard to the representation of facts given in the French memorandum.

"On 12 February 1945 the German Armistice Commission was informed by the Judge of Army Group B that since November 1944 the case was in the hands of Army Judge of Pz. AOK/6 (6th Armored Army Command) and that Pz. AOK/6 and 2. SS Pz. Division 'Des Reich' (2nd Armored SS Division 'Des Reich') had in the meantime separated from the Army Group.

"Handling of this matter calls for the following remarks:

``The Frenchmen, and the delegation of the Vichy Government, have made the grave charge against the German Armed Forces of numerous cases of unjustified killing of French nationals, in other words, of murder. Germany's interest demanded a reply to this charge at the earliest possible

moment. Considering the length of time which has elapsed since receipt of the French memorandum, it should have been possible to take up at least some of the charges and to refute them through actual investigation irrespective of subsequent development in military matters and the transfer of troops incidental thereto. If even a portion of the charges made had been refuted at once, the French people would have been shown that their whole subject matter is based on doubtful material; but because nothing was undertaken by the Germans, the opponents' impression must be that we are not in a position to answer these charges.

`4The manner in which this case was handled indicates that there possibly still exists a great deal of ignorance as to the importance to be attached to all reproaches against the German Armed Forces, to counteract any enemy propaganda, and to refute immediately any purported German acts of atrocity.

``The German Armistice Commission' is hereby instructed to continue to devote to this matter all possible energy. It is requested to render any assistance possible, and particularly to take all steps for expediting matters within its own sphere of action. The fact that Pz. AOKl6 (6th Armored Army Command) no longer forms part of the forces of the Commander-in-Chief West is no reason to hold up the necessary investigations in order to clarify and refute the French charges.

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"For information: Army General Staff (Gen. St. d. }I.); Headquarters

Gen./Qu.

"(signed) Keitel."

This document of the OKW, signed by Keitel, shows that:

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

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

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

"It was in the German interest to answer these charges at the earliest possible moment.

"This case shows that there is still widespread ignorance as to the importance of combating all imputations made against the German Armed Forces and all enemy propaganda, and of refuting immediately any alleged acts of atrocity on the part of the Germans.

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

It may therefore be considered as proved that in this case the Defendant Keitel, on receiving information, took energetic steps in accordance with the range of his competency as Chief of the OKW, and as far as he was in a position to do so. This eliminates the charge made by the Prosecution insofar as the Defendant Keitel is concerned. At the same time, however, the way in which the Defendant Keitel handled this case suggests that he acted in similar manner in other cases.

Mr. President, before dealing with the problem of hostages which I may discuss later, I should like to discuss the grave evidence on the Night and Fog Decree on Page 154.

War, which is frightful even under orderly international law, becomes atrocious when the last restraints are removed. Many terrible things have happened during this war and it is impossible to tell which chapter of this book of sorrows and tears is the saddest; but, in any case, one of the most lamentable chapters is that of the treatment of hostages. In international law the question of treatment of hostages is controversial. The taking of hostages is almost generally admitted. Doubtless, although taking hostages is assumed to be admissible under international law, that has as yet no bearing on their treatment. The treatment, even more than the seizure, of hostages must be subject on the one hand to the law of absolute military necessity which cannot otherwise be met, and, on the

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other, to the application of all guarantees to prevent the indiscriminate shooting of hostages as a principle. Any primitive and brutal handling of this very institution, which is doubtful under international law and is apt to affect the absolutely innocent, must be rejected.

Unfortumately, this problem which seldom arose in previous wars between civilized people, acquired considerable importance during World Wars I and II. The cases previously taken into consideration and also explained in the Army Manual 2g (H. Dv. 2g) (Document Book 1, Exhibit Number Keitel-7) resulted from military necessity of troops in operation. As happened with so many things in this war, but especially due to the change-over from theater of operations to rear area, there finally developed a broadening and degeneration in the application of a principle which originally was indisputable according to international law.

The immediate connection with military necessity was absent, that is to say, with military action; its place was taken by interests which naturally included military safeguards, particularly of lines of communications between the front zone and home.

It must be said that this fundamental change ought to have been recognized, and ought to have been taken into consideration in the handling of the existing rules governing hostages. The degeneration in the treatment of hostages was decisively influenced by the fact that civil administrative and police organizations claimed for themselves one of the extreme means of soldierly warfare and often made use of it arbitrarily, wherever they wanted to break resistance, by arresting people without concrete individual or even presumptive guilt and by treating them from the viewpoint of reprisals. Collective arrests for individual offenses come into this category.

All these cases have nothing to do with the original facts in the cases of hostages, but since the word ``hostage" is used for all these cases, the Prosecution in many cases has placed on the Armed Forces a responsibility which they should not bear.

I request the Tribunal, when judging this complex and when examining the responsibility of the Defendant Keitel, to take into consideration:

(1) The concept of hostages, the basic conditions governing the taking of hostages and their treatment had become known to all authorities in command and their of flees in the armed Forces by the Army manual regulations (H. Dv. 2g) before the war, especially before the campaign in the West. The Documents 1585PS; submitted by the Prosecution itself (discussions of the hostage question with the Luftwaffe), and 877-PS (operation orders of the Army for "Case Yellow" and the attack in the West, dated 29 October 1939) reveal that special regulations had originally been issued for the seizure of hostages. Their application was justifiably transferred to the Army offices and later to the military commanders who were subordinate to the Army, never to the Armed Forces High Command (OKW).

(2) Nobody could be in doubt, according to existing regulations (H. Dv. 2g), as to what authority Army commanders had and as to who had to make a decision on a possible shooting of hostages. No supplementary order or supplementary regulation was ever issued by the Armed Forces High Command (OKW). The letter from Falkenhausen (Military Commander in Belgium), dated 16 September 1942 (Document 1594-PS), mentioned by the Prosecution, and the report of this military commander (1587-PS) are not addressed to Keitel, but quite correctly to his superior office, the Army High Command (OKH) Quartermaster General; Keitel received neither the letter nor the report. Whether Hitler received them in his capacity of Supreme Commander of the Army and Military superior of the military commanders, Keitel does not know.

(3) The OKW was not informed of the cases in which inhabitants of the occupied territories were mistakenly and falsely described as hostages and treated without legal procedures.

(4) Whenever hostages, without being connected with the plots and terror acts against the occupying power, were held responsible for them without local or material connection, such practice is contrary to service regulations.

(a) Insofar as the OKW or the Defendant Keitel was approached by military agencies in individual cases referring to hostage problems, for example by the Military Commanders in France and Belgium, the evidence has shown that the "hostages" to be shot were to be selected from the circle of persons already

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sentenced to death by virtue of the law. However, so that this should not be outwardly recognized-for producing the desired deterrent effect-it was to be announced that hostages had been shot.

The French Prosecution has cited the OKW and Keitel in connection with this complex by means of Document 389-PS, which is the same as UK-25, a Fuehrer order of 16 September 1941 drawn up by Keitel. This document, whose contents are monstrous, does not, however, have anything to do with the question of taking hostages and the treatment of hostages. The word ``hostages" does not appear in the text. From the subject and from the contents it can be seen that this is an order designed to combat the resistance movement in the eastern and southeastern war theaters, and therefore is related to the basic principles of the so-called ideological war against the Soviet Union, which has been already dealt with at another place, and condemned. When the communication of 16 September 1941 was addressed to the Military Commander in France by the High Command of the Army for information purposes the latter had already decreed the so-called "Hostages Law" (Document Number 1588-PS). Accordingly no causal connection existed, as the French Prosecution has assumed, between the directives signed by Keitel and ordered by Hitler in Document 389-PS, and the hostage legislation in the West. The latter had been decreed without collaboration or consultation of the OKW. The agency to which the Military Commanders in France and in Belgium were subordinated was the High Command of the Army (OKH), and not the OKW; the agency which specialized in this matter was the Quartermaster General (in the OKH). With regard to this it must also be considered that at this period of time Hitler himself was the Commander-in-Chief of the Army, which explains the above-mentioned references to the OKW. In reality, they were not references to the OKW, but to Hitler as Supreme Commander of the Armed Forces and Commander-in-Chief of the Army, which were partially routed through Hitler's working stair (the OKW). This however establishes no competence and thereby no responsibility of the OKW and the Defendant Keitel as Chief of the OKW.

In conclusion I request permission to hand in some literature to the Tribunal demonstrating present-day opinions pertaining to international law with regard to the question of hostages for consideration in the examination of these facts in the case. I limit myself to reading the summarization of expert opinions and military practices:

"In summarizing it must be said, concerning the question of taking hostages and the execution of hostages, that according to existing practices and probably also according to existing rules of international law, the taking of hostages in occupied territory is permissible under international law insofar as hostages are taken in order to guarantee the proper legal behavior of the enemy civilian population. According to the commentary by Waltzog, which is standard for the German conduct of warfare, it is also a formal requirement, whenever hostages are taken according to unwritten international law (common law), that such taking of hostages, the reasons therefor, and in particular the threat of their execution must be brought to the knowledge of those for whose lawful behavior the hostages are to go bail. The question as to whether it is permissible to execute hostages cannot be interpreted unequivocally. The German jurisprudents of international law, like Meurer, the Englishman, Spaight, and the Frenchmen, Sorel and Fumek, consider this permissible in the extremes of emergency, and therefore not contrary to international law."

During the whole course of this Trial, no order made such a deep impression on the mind of the public as did the Night and Fog Decree. This was an order which originated during the fight waged against acts of sabotage and against the resistance movement in France. As a result of the withdrawal of troops in connection with the campaign against the Soviet Union, the number of plots aimed against the security of German troops stationed in France, and in particular the acts of sabotage aimed at the destruction of all means of communication increased daily. This

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necessitated increased activity on the part of the counterintelligence offices, which in its turn led to proceedings being taken and sentences being passed by military courts against members of the resistance movement and their accomplices. These sentences were very severe. In addition to a large proportion of death sentences, sentences of imprisonment were also passed. The reports made almost daily during the situation conferences led to violent disputes in which Hitler, in accordance with his usual habit, tried to find someone on whom to put the blame; in this instance he fixed upon the far too cumbersome handling of military justice. In his spontaneous and explosive way, he ordered directives to be worked out for a rapid, effective, and lasting intimidation of the population. He declared that imprisonment could not be considered an effective means of intimidation. To Keitel's objection that it was impossible to sentence everyone to death and that military courts would, in any case, refuse to co-operate, he replied that he did not care. Offenses found sufficiently grave to necessitate the imposition of capital punishment without very lengthy court proceedings would continue to be dealt with as before- that is, by the courts-but where this was not the case, he would order the suspected persons to be brought secretly to Germany and all news of their fate to be withheld, since the publication of prison sentences in occupied territory was robbed of its intimidating effect by the prospect of the amnesty to be expected at the end of the war.

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

The staff of experts and the Defendant Keitel had succeeded in establishing the competency of the Reich Administration of Justice for the persons removed to Germany (see last paragraph of directives of 7 December 1941). Keitel had guaranteed this stipulation by means of the first Enactment Decree governing the directives, in which he specified (last sentence in Paragraph I, IV) that unless orders to the contrary were issued by the OKW, the case would be turned over to the civil authorities in accordance with Section 3, Paragraph 2, second sentence, of the Articles of War. The defendant believed that in this way he had at least made certain that the persons concerned would have the benefit of regular court proceedings and that in accordance with the

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German regulations for the accommodation and treatment of prisoners on trial and prisoners serving a sentence, there would be no danger to life and limb. Keitel and his staff of experts reassured themselves by the fact that however cruel the suffering and suspense endured by those concerned might be, the lives of the deported persons had at least been saved.

In this connection, allusion is also made to the text of the covering letter of 12 December 1941. As the Codefendant General Jodl stated during his examination, a certain wording was regularly adopted to indicate that the signatory did not agree with the order submitted. The covering letter begins with the words: "It is the carefully considered desire of the Fuehrer..."

The closing sentence runs: "The attached directives... represent the Fuehrer's views."

Persons who received such letters knew from that wording that here was another order of the Fuehrer which could not be evaded, and concluded that the order should be applied as leniently as possible.

The letter of 2 February 1942 originated with the counterintelligence office (Amt Ausland Abwehr), and the original which is before you must have been signed by Canaris. At that time the defendant was not in Berlin where, after promulgation of the decree of 7 December 1941, the matter was dealt with further. Keitel, at the Fuehrer's headquarters, was not informed of the contents of the letter. In connection with the above remarks, the possibility of leniency in application, which might be deduced from the wording of the letter, resided in the fact that counterintelligence offices were directed "to insure as far as possible before making the arrest that they were in possession of sufficient evidence to justify a conviction of the offender." The competent military court had also to be approached before the arrest took place with a view to ascertaining whether the evidence was adequate.

In Germany the persons concerned were to be handed over to the Reich Administration of Justice. The correctness of the Defendant Keitel's assumption in this respect is borne out by the fact that Canaris, in view of his attitude with which the Tribunal is familiar, would never have ordered a prisoner to be handed over to the Gestapo. As already stated, the Defendant Keitel did not know of the letter of 2 February 1942.

Although the Defendant Keitel believed that he had succeeded as far as possible in safeguarding those in question, the Night and Fog Decree, as it was later called, weighed heavily on his mind. Keitel does not deny that this decree is incompatible with international law and that he knew that.

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What Keitel denies, however, is that he knew-or that prior to the Nuremberg Trial he knew-that on arrival in the Reich the persons involved were imprisoned by the Police and then transferred to concentration camps. This was contrary to the meaning and purpose of the decree. The Defendant Keitel could not know of this because in cases which did not involve proceedings by a military court, the competency of the Armed Forces only extended to turning over the persons concerned through the competent military court officials to the Police to be transferred to Germany and there turned over to the Administration of Justice. The Defendant Keitel is unable to say from his own knowledge why so many persons were brought into concentration camps and there subjected to the treatment known as "Night and Fog," as described by witnesses who have appeared here. The evidence presented to this Tribunal must lead to the conclusion that all political suspects who, as a result of political measures, were removed from the occupied territories to Germany for detention in concentration camps were without the knowledge of the military authorities designated "NN" prisoners by the Police, for according to the testimonies we have heard the majority of persons in "NN" camps had not been formally sentenced by military courts in occupied territories for transfer to Germany.

It is evident therefore that Police authorities in the occupied territories made use of this decree as a universal and unrestricted carte blanche for deportations, exceeding every conceivable limit and disregarding the exclusive rights exercised by the military authorities and the rules of procedure imposed upon them.

Such a state of affairs in the occupied territories without the knowledge of the Armed Forces authorities can only be explained by the fact that as a result of the appointment of Higher SS and Police leaders the military commanders of the occupied territories no longer had executive powers in Police affairs and that these Higher SS and Police leaders received their orders from the Reichsfuehrer SS.

The Reichsfuehrer SS and the Higher SS and Police leaders were never authorized by the OKW to apply this decree, which was intended as a police executive measure to be used only by the Armed Forces. The decree affected only those offices of the Armed Forces exercising judicial authority; and it is clear from the wording that it was restricted to these and drafted to apply to them.

The German Armistice Commission's letter of 10 August 1944 (Document 843-PS) proves that the OKW really had no knowledge of this improper application of the decree of 7 December 1941. It says there:

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"...that the basis for arrests seems to have undergone a change, since in the early stages they were only made in individual cases of attacks on the Reich or the occupation forces; in other words, those elements were apprehended who had played an active part in definite cases"-and who were liable to punishment under those articles of the Hague Convention which refer to land warfare-"whereas at present. . . numerous persons are also being deported to Germany who, on account of their anti-German sentiments, are being removed from France as a precautionary measure..."

Paragraph 4 of that letter contains the following passage:

"The above-mentioned decree is based on the condition that the persons arrested will be made the subject of judicial proceedings. There is reason to believe that on account of the number of cases-especially those coming within the scope of precautionary measures-such proceedings are now frequently dispensed with and prisoners are no longer confined in the detention or penal institutions of the German legal authorities, but in concentration camps. In this respect, too, there has been a considerable change as compared with the original provisions of the decree..."

The OKW's reply of 2 September 1944, which is signed by Dr. Lehmann, refers expressly to the directives of the Fuehrer decree of 7 December 1941, the so-called Night and Fog Decree. It contains no statement to the effect that the original conditions for deportation to Germany were changed by the OKW.

This reply, however, was sent from Berlin without the knowledge of the Defendant Keitel; and the Armistice Commission's letter was obviously also sent to Berlin, where the legal department of the Armed Forces was situated. Keitel himself was at the Fuehrer's headquarters and did not hear of the correspondence.

It must be admitted that failure to reply immediately to the German Armistice Commission's letter of 10 August 1944, with the explanation that this constituted an abuse of the decree of 7 December 1941 and the directives issued in connection with it, was a grave omission. An investigation should have been initiated at once in order to find and punish those responsible for this abuse. Insofar as the Tribunal should regard Hitler's military staff as guilty, the Defendant Keitel accepts responsibility within the scope of his general responsibility as Chief of the OKW.

THE PRESIDENT: Perhaps this will be a convenient time to take a recess.

[A recess was taken.7

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DR. NELTE: Mr. President, the Prosecution have charged the Defendant Keitel with participating in the deportations for the purpose of obtaining forced labor. In this connection Keitel declares that his competency did not cover the procurement, recruiting, and conscription of people in the occupied territories nor did it cover allocation of the labor forces procured in this way for the armament industry. The Codefendant Sauckel confirmed this in his testimony of 27 May 1946.

Mr. President, I should like to have official notice taken of the following statements without my reading them. My colleague Dr. Servatius, according to our agreement, will explain the connection between the Armed Forces replacement and the procurement of manpower through the Plenipotentiary General for the Allocation of Labor.

The Codefendant Sauckel gave the following testimony:

"Question: You mean by that that the OKW and the Defendant Keitel had no functions whatsoever appertaining to the matter of procurement, recruiting, and conscription of labor in the occupied territories?

4`Answer: He had no function whatsoever appertaining to this matter. I got in touch with Field Marshal Keitel, because the Fuehrer frequently charged me to ask Field Marshal Keitel to transmit his orders by phone or by instructions to the army groups.

"Question: Did the OKW, and in particular Keitel as Chief of the OKW, have any function appertaining to the question of labor allocation in the homeland?

"Answer: No; because the commitment of workers took place in the economic branches for which they had been requested. They had nothing to do with the OKW."

During the cross-examination by General Alexandrov documents were presented which, according to the opinion of the Prosecution, should prove the participation of Keitel and the OKW. In this connection it must be examined whether and in what way the OKW and Keitel had participated in the sphere of duty of Defendant Sauckel as Plenipotentiary General for the Allocation of Labor (GBA). Document USSR-365, presented by the Prosecution, contains the basic provisions concerning spheres of tasks and powers of the GBA, the decree of 21 March 1942 about the appointment of Sauckel as GBA, the order of Goering as Delegate for the Four Year Plan dated 27 March 1942, the program for labor allocation, and the task and solution as conceived by Sauckel.

These documents give expression to the relationships and contacts of the GBA with many offices. These relationships and contacts vary in their nature.

The jurisdiction and the official channels in the sphere of tasks of the GBA are clear: He is the spokesman for the Four Year Plan (Order Number 3 of 27 March 1942) and he was therefore subordinate to Reich Marshal Goering and Hitler, who was identified with the Four Year Plan. The relationships and contacts of the OKW or Keitel with the GBA and his sphere of tasks, according to the outcome of the evidence (testimony of Keitel, Sauckel, and the documents) were as follows:

The replacement system for the whole Armed Forces was under the jurisdiction of the Defendant Keitel in his capacity as Chief of Staff of the High Command of the Armed Forces (OKW). Losses at the front were reported to the OKW by each individual branch of the Armed Forces and at the same time replacements were requested.

On the basis of these requests, Keitel submitted a report to the Fuehrer, according to which replacements had to be procured for the troops of the various branches of the Armed Forces at certain designated times by the service commands through their replacement inspectorates.

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The replacement inspectorates consequently called up the recruit year group besides those draftees who had been deferred up to that time. With the war progressing, the result was almost invariable that, for instance, the Armament Ministry (for the deferred employees of the armament industry), the Ministry for Agriculture (for the deferred employees of agriculture), the Transportation Ministry (for the deferred employees working for the railroad), et cetera, made the greatest difficulties with regard to the demands of the replacement authorities, and protested against them.

They pointed out that the tasks of the various departments would suffer dangerously if the deferred employees were removed without further ado. The competent ministers requested that before the release of deferred employees new workers should be procured to make up for those released.

Therefore, the matter was referred by way of the labor offices to the Plenipotentiary General for the Allocation of Labor (GBA), whose task it was to procure the necessary manpower for the domestic labor allocation required. The Defendant Sauckel as the GBA, who as a special deputy personally did not have at his disposal an independent organization of his own for the recruiting, procurement, and possible conscription of labor, was therefore forced to get in touch with the competent authorities in the occupied territories for the execution of his task.

(a) In the occupied territories under civil administration (Holland, Norway, East), it was the Reich Commissioner who had to assist Sauckel.

(b) In the territories under military commanders (France, Belgium and the Balkans) it was the Quartermaster General of the Army.

(c) In Italy, in the highest instance, it was the Ambassador, Hahn.

This is obvious from the decree of 27 March 1942.

Before Sauckel became active in the execution of his task in the various territories, he invariably turned to Hitler, whose subordinate he was with respect to the Four Year Plan, in order to obtain through his instructions the necessary backing by the local authorities. This was done in such a way that the order was issued to the local authorities to give Sauckel the assistance which he considered necessary for the execution of his task. The Defendant Keitel was not present at such discussions between Hitler and Sauckel, nor did he have any jurisdiction or competence in these questions. However, somebody had to inform the local authorities about Hitler's orders, and the result was that Hitler, who did not recognize any difficulties of jurisdiction, told the next best man to inform the local authorities about Sauckel and to point out Hitler's wish to grant him all the necessary assistance.

These "next best" were Keitel, for the military administration of the occupied territories, or Dr. hammers, for the territories under civilian administration.

Such was the contact which existed between Keitel and Sauckel in this matter. How the details of recruiting or otherwise procuring labor were carried out was not within the competence of the OKW, nor did they receive any reports on the matter. The interest of the OKW was limited to the fact that the required number of soldiers were placed at its disposal through induction by the replacement authorities. In particular, the OKW and the Defendant Keitel had nothing to do with the allocation of the labor procured by the Plenipotentiary General for the Allocation of Labor within war economy, this was solely the business of the labor offices, where firms requiring labor requested the workers deemed necessary.

(1) The name of Keitel stands at the beginning of Sauckel's activity, as submitted by the Prosecution, because Keitel was cosignatory to the Fiihrer decree concerning the Plenipotentiary General for the Allocation of Labor (Document USSR-365). From repeated references of the Prosecution to this fact the conclusion must be drawn that apparently it sees in this cosignatory act of the Defendant Keitel the beginning of a chain of developments, at the end of which stood such frightful happenings as were presented here.

In this connection I would refer to the significance, expounded elsewhere of the cosignature by Keitel as Chief of the OKW on such decrees of the Fuehrer This fact, which penally cannot be considered as determinative, does not constitute guilt for the reason that all conception of the events occurring during the further course of developments was lacking.

(2) If the Fuehrer's decree of March 1992 provides the legal origin of the Plenipotentiary General for the Allocation of Labor (GBA), the first step in the participation of this official is also connected with the name of Keitel as head

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of the OKW, as the personnel replacements matters were subordinated to him and he made his requests for replacement of losses at the front to the subordinate military replacement offices. Here also the same applies as in (1), as neither an appreciable determinative effect nor criminal guilt was involved.

(3) Owing to the situation, as characterized by the shortage of manpower, there came into being a purely factual connection between the military personnel requirements and the requirements of the economic replacement of workers, without Keitel thereby coming in contact with the GBA either as regards competence or orders.

Sauckel confirmed the statement of Keitel that the OKW had nothing to do with the recruiting, levying, or any other mobilization of labor, nor with the allocation of the labor procured for German economy.

I have to refer to some documents which the French Prosecution have submitted to incriminate the OKW and Keitel on account of active participation in deportation. These are Documents 1292-PS, 3819-PS, 814-PS, and 824-PS.

The first document is a marginal note by the Chief of the Reich Chancellery, Dr.Lammers, on a conference with Hitler, at which the question of procuring labor for 1944 was discussed. The Defendant Keitel took part in this discussion. Annexed to this report is a copy of a letter from the Defendant Sauckel dated 5 January 1944, in which he sums up the results of the conference of 4 January and proposes a Fuehrer decree. I quote the following passages:

"5. The Fuehrer pointed out that all German offices in occupied territories and countries within the Tripartite Agreement must become convinced of the necessity of taking in foreign labor, in order to be able to give uniform support to the Plenipotentiary General for the Allocation of Labor in carrying out the required organization, propaganda, and police measures."

I quote from the penultimate paragraph:

"In my opinion the decree should in the first place be sent to the following offices...

"3. The Chief of the OKW, Field Marshal Keitel, for the information of the Military Commanders in France and Belgium, the Military Commander Southeast, the General accredited to the Fascist Republican Government of Italy, the chiefs of the army groups in the East."

The document therefore proves that Field Marshal Keitel took part in a conference, without, however, stating his point of view on the problem of labor procurement; and that he was to be informed of the Fuehrer decree so that the military commanders might be informed. This confirms what the Defendant Keitel stated in the passages which I have not read as to how he came to be concerned with this question. The second and third documents refer to a conference in the Reich Chancellery on 11 July 1944, in which Field Marshal Keitel did not take part.

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Now the French prosecutor has made the statement that the teletype is an order issued by Field Marshal Keitel to the military commanders to carry out the decisions of the conference of 11 July. M. Herzog has said in this connection that Keitel's order was dated 15 July 1944. A brief examination of the document, a photostat, shows it to be a teletype dated 9 July, containing an invitation from the Chief of the Reich Chancellery, Dr. Lammers, to a conference on 11 July, which invitation Keitel transmitted to the military commanders.

This was, therefore, an error. The conclusions based by the Prosecution on this document are therefore also invalid, but the document is interesting from another point of view as well. It contains the following statement:

"The following directives will govern the attitude of military

commanders or their representatives:

". . . I refer to my directives for the collaboration of the

Armed Forces in the procurement of labor from France

(OKW/West/ku (Verw. 1 u. 2 West) Or. 05210/44 geh.)."

The Defendant Keitel requested me to call the attention of the Court to this method of expression for the following reasons: Numerous documents bearing the signature "Keitel" have been submitted here. In accordance with his position, which has already been described and which excluded all powers of command, Keitel never used the first person in communications or transmissions of orders. Apart from this document, only one other teletype was submitted by the Prosecution in which the first person is used. In consideration of the large number of documents which bear out Keitel's statement, his claim that he was transmitting an order from the Fuehrer must be believed; and, indeed, the whole style of wording is that of a Fuehrer order.

General Warlimont (Document 3819-PS) also expressly refers during the conference of 11 July to a "recently issued Fuehrer order," the contents of which as reproduced by him are exactly as contained in the teletype directive bearing the signature "Keitel."

The newly-submitted Document F-824 (RF-1515) is also significant and confirms the evidence given by the Defendant Keitel. This is a letter written on 25 July 1944 by the Commander-in-Chief West, Von Rundstedt, who in the meantime had become the Chief of the Military Commanders in France and Belgium. It states that "by order of the Fuehrer the demands of the GBA and of Speer are to be fulfilled"; further, that in the event of evacuation of the battle area measures must be taken to secure refugees for labor and finally, that reports on the measures taken must be sent to the OKW.

This reference to the Fuehrer's order shortly after 11 July 1944 shows, as does Warlimont's statement, that no directives from Keitel

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or the OKW existed. It may therefore be considered proved that neither Keitel himself nor the OKW had any part in measures for the recruitment or conscription of labor. The OKW was the office responsible for transmitting the orders which Hitler as Sauckel's superior wished to forward to the military commanders; it had no competence and no legal responsibility.

Nor is this complex in line with subjects within the ministerial scope of the OKW, where at least there functioned a team of experts providing an opportunity for voicing objections.

In the sphere of labor procurement and labor commitment Keitel was in contact with Sauckel's activities at the following points:

(a) He was cosignatory of the Fuehrer's decree of 21 March 1942 concerning the appointment of the GBA;

(b) He transmitted Hitler's orders to support the activities of the GBA by special instructions to the local military authorities in the occupied territories.

Now, the French Prosecution, at the session of 2 February 1946, made the following statement in regard to the deportation of the Jews, within the scope of the Defendant Keitel's responsibility:

"I shall discuss the order for the deportation of the Jews later; and I shall prove that in the case of France this order was the result of joint action on the part of the military government, the diplomatic authorities, and the Security Police. This leads to the conclusion that: (1) the Chief of the High Command, et cetera; (2) the Reich Foreign Minister, and (3) the Chief of the Security Police and Reich Security Main Office (RSHA) must necessarily have been informed of and have agreed to this action, for it is clear that through their official functions they must have learned that such measures concerning important matters were taken, and also that the decisions were invariably made jointly by the staffs of three different administrations. These three persons are therefore

responsible and guilty."

If you examine the very detailed treatment of this point of the Indictment you will find that the High Command of the Armed Forces is not mentioned and that no document is produced which originates either with the OKW or with the Defendant Keitel. It appears from the Keitel affidavit, Document Book 2, that the military commander for France, who is mentioned several times, was not subordinated to the OKW. In handling this question the Prosecution have attempted to prove that the "Army" as M. Faure says, co-operated with the Foreign Office and the Police, and is endeavoring to place responsibility for this co-operation upon the highest authorities, that is, in the case of the Army,' on the OKW, and

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therefore on Keitel. This deduction is erroneous. In order to make that clear, I must point out that there was a military commander in France. This military commander was invested with civil and military authority and represented the defunct state authority, so that in addition to military tasks he had police and political functions. The military commanders were appointed by the OKH and received their orders from the latter. It follows that on this question they had no direct relations with the OKW. Since the Defendant Keitel as Chief of the OKW was not superior to the OKH, there is likewise no direct relation either of subordination or seniority.

M. Faure's statement in this connection is unfortunately true. In France there existed a large number of authorities who worked along different lines, contradicted each other, and frequently encroached upon each other's spheres of competency. The OKW and the Defendant Keitel had actually nothing to do with the Jewish question in France or with the deportations to Auschwitz and other camps; they had no powers of command or control, and therefore no responsibility.

The fact that the letter K in the telegram of 13 May 1942 (Document RF-1215) was interpreted to mean Keitel is characteristic of the attitude adopted by the prosecuting authorities, all of whom assumed that the Defendant Keitel was implicated. The French Prosecutor has fortunately cleared up the error.

The Prisoner-of-War Question.

The fate of prisoners of war has always aroused considerable feeling. All civilized nations have tried to alleviate the fate of soldiers who fell into the hands of the enemy as far as was possible without prejudicing the conduct of the war. The reaching of an agreement to be adhered to even when the nations were engaged in a life and death struggle has been considered one of the most important advances of civilization. The torturing uncertainty with regard to the fate of these soldiers seemed to be ended; their humane treatment guaranteed; the dignity of the disarmed opponent assured.

Our belief in this achievement of human society has begun to waver, as in the case of so many other instances. Although the agreement was formally adhered to originally owing to the determined resistance of the general officers, we must nevertheless admit that a brutal policy oblivious of the nation's own sons and of anything but its own striving after power, has in many cases disregarded the sanctity of the Red Cross and the unwritten laws of humanity.

The treatment of the responsibility of the Defendant Keitel in the general complex of the prisoner-of-war system comprises the following separate problems:

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(1) The general organization of the treatment of prisoners of war, that is, the German legislation on the prisoner-of-war system; (2) the power of command over prisoner-of-war camps, which are classified under Oflag, Stalag, and Dulag; (3) the supervision and control of this legislation and its application; (4) the individual cases which have been brought before the Court in the course of the indictment.

Since the organization of the prisoner-of-war system has been set forth as part of the presentation of evidence, I can restrict myself to stating that Keitel was, by order of Hitler and within the scope of his assignments as War Minister, in accordance with the decree of 4 February 1938 competent and to that extent responsible: (a) for the material right to issue ordinances within the entire local and pertinent sphere, restricted in part by co-operation and coresponsibility regarding the utilization of prisoner-of-war labor; (b) for the general allocation of prisoners of war arriving in Germany to the corps area commander, without having powers of command over prisoner-of-war camps and prisoners of war themselves; (c) for the general supervision of the camps in the OKW area not including those within the zone of operations, the rear Army area, or the area of the military commanders, nor the Navy and Air Force prisoner-of-war camps.

The competent of lice in the OKW was the "Chief of the Prisoner-of-War Organization," who was several times made personally responsible by the Prosecution. The Defendant Keitel attaches importance to the fact that the Chief of the Prisoners of War Organization was his subordinate through the Armed Forces Department. Hence the responsibility of the Defendant Keitel in this domain is self-evident, even in those cases in which he did not personally sign orders and decrees.

The basic regulations for the treatment of prisoners of war were: (1) The service regulations issued by the Chief of the OKW within the scope of normal preparations for mobilization, and laid down in a series of Army, Navy, and Air Force publications; (2) the stipulations of the Geneva Convention, to which special reference was made in the service regulations; (3) the general decrees and, orders which became necessary from time to time in the course of events.

Apart from the treatment of Soviet Russian prisoners of war who were subject to regulations on an entirely different basis, to which I shall later make particular reference, the provisions of the service regulations in accordance with international law, that is the Geneva Convention, held good. The OKW exercised supervision over the strict observance of these Army service regulations through an Inspector of the Prisoners of War Organization and, from 1943

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on, through a further control agency, the Inspector General of the Prisoners of War Organization.

The representatives of the protecting powers and the International Red Cross may be considered as constituting an additional control agency, which no doubt submitted to the various governments reports on inspections and visits to the camps, in accordance with the provisions of the Geneva Convention. No such reports have been submitted here by the Prosecution; I shall come back to the charges made here by the French prosecutor. But the fact that the British and American prosecutors, for instance, have not submitted such reports may well permit the conclusion that the protecting powers did not discover any serious violations with regard to the treatment of inmates of prisoner-of-war camps.

The treatment of prisoners of war, which led to no serious complaints during the first few years of the war with the Western Powers-I except isolated cases like that of Dieppe-became more and more difficult for the OKW from year to year, because political and economic considerations gained a very strong influence in this sector. The Reichsfuehrer SS tried to get the Prisoners of War Organization into his own hands. The resulting struggles for power caused Hitler to turn over the Prisoners of War Organization to Himmler from October 1944 on, the alleged reason being that the Armed Forces had shown itself to be too weak and allowed itself to be influenced by doubts based on international law. Another important factor was the influence exerted on Hitler, and through him on the OKW, by the labor authorities and the armament sector. This influence grew stronger as the labor shortage increased.

The Party Chancellery, the German Labor Front, and the Propaganda Ministry also played a part in this question, which was in itself purely a military one. The OKW was engaged in a constant struggle with all these agencies, most of which had more influence than the OKW.

All these circumstances must be taken into consideration in order properly to understand and evaluate the responsibility of the Defendant Keitel. As he himself had to carry out the functions "by order," and since Hitler always kept the problem of the Prisoners of War Organization- under his personal control for reasons previously described, the Defendant Keitel was scarcely ever in a position to voice his own, that is, military, objections against instructions and orders.

The Treatment of French Prisoners of War.

As a result of the agreement of Montoire, the keynote to apply to relations with French prisoners of war became "collaboration."

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Their treatment moved in the direction indicated by this; and discussions with Ambassador Scapini brought about a considerable improvement for them. In this connection I refer to the affidavit of Ambassador Scapini, who states among other things:

"It is correct that General Reinecke examined the questions at hand objectively and without hostility, and that he attempted to regulate them reasonably when this depended on his authority alone. He took a different attitude when the

pressure exercised on the OKW by the Labor Service-that

is by the Allocation of Labor-and sometimes by the Party made itself felt."

The prisoners of war used for labor were scarcely guarded, and those employed in the country had almost complete freedom of movement. By virtue of the direct understanding with the Vichy Government there were considerable alleviations in comparison Ninth the rules of the Geneva Convention, after repatriation under the armistice provisions had very considerably lessened the number of the original prisoners of war.

To mention just a few...

THE PRESIDENT: Dr. Nelte, is there anything very important in these next few pages, until you get to Page 183?

DR.NELTE: It is the treatment of the French...

THE PRESIDENT: If you would only deal with it in a very general way. I should have thought there was nothing very important until you get to Page 183 where you begin to deal with the accusation in reference to the Sagan case. You see, it is 12 o'clock now.

DR. NELTE: I believe that by 1 o'clock I shall be through. Or am I to. understand your remark to mean that you are limiting my speech to a certain time? I asked you to grant me 7 hours for my speech, and my request...

THE PRESIDENT: That is what the Tribunal's order was.

DR. NELTE: I submitted my request to the Tribunal, and believed I could assume that in this particular case my request was granted, but if that is not the case...

THE PRESIDENT: Well, the Tribunal will give you until 12:30 on account of any interruptions which I may have made. But I again suggest to you that there is really nothing between 178 and 183 which is of any real importance.

DR.NELTE: I hope, Mr. President, that that does not mean that these statements are to be considered irrelevant. I think my

subjective opinions...

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THE PRESIDENT: I said "of real importance."

DR. NELTE: (1) Release of all prisoners of war born in or before 1900; (2) release of fathers of families with numerous children and widowers with children; (3) considerable alleviation of the mail and parcel facilities; increased German support for officers' and enlisted personnel camps by establishing institutions for entertainment and physical welfare of the prisoners of war; (4) for officer candidates, facilitation of their further training in their civilian occupation and care by a French General, Didelet.

As Ambassador Scaloppini himself has testified, he and the members of his delegation had complete freedom of Correspondence with and access to all camps and labor detachments, except for special military reasons in isolated eases. The members of the delegation were able to speak to their prisoner comrades privately, like every, representative of a protecting power, and they were particularly able to make detailed inquiries about conditions with the French camp leader or the trustees, who were elected by the prisoners of war themselves. In addition to this, officers who had been selected by him personally were placed at his disposal as his assistants.

The subsequent regrettable occurrences, as presented by the French Prosecution here resulted from the deterioration of the political and military situation. One of these occurrences was the escape of General Giraud, which Hitler, in spite of all arguments brought by the ORW, used to have measures against the French generals and officers increased in severity. The second decisive incident was the Allied invasion of Africa, which led to general unrest and to numerous attempts at escape. Finally, at the time of the last stage of the war, measures were applied which Can only be explained by the-I would call it catastrophic-morale.

In examining the responsibility of the Defendant Keitel it must be considered that he did not possess any direct influence on the occurrences in the camps and workshops. His responsibility can only be determined if it is proven that he had caused a lack of necessary supervision, or that no intervention had taken place after learning of such occurrences. In this respect, however, there is no proof of guilt of the OEW.

The French Prosecution, in the charges against the Defendant Keitel, have presented a note from Ambassador Scapini to the German Ambassador, Abetz, of 4 April lg41 under a collective number, F-668. This refers to the retaining of French civilians in Germany as prisoners of war. This document states on Page 5:

"In order to facilitate the examination of the categories to be released, I am transmitting enclosed a summarized chart. I am also enclosing a Copy of the note of the German Armistice Commission Number 178/41 of 20 January 1941, which refers to the decision of the OKW to liberate all French civilians who are being treated as prisoners of war.

"I hope that the execution of this decision win be expedited through this report, which I have the honor to submit to you."

I have asked the French Prosecution to pass on to me the note of the German Armistice Commission Number 178741 of 20 January 1941, in which this decision of the OK-W is mentioned. I believe that the copy of this note, which was attached to the communication of 4 April 1941 (Document F-668) should have been handed over with this document, because it was part of this document. Unfortunately this has not been done.

From the reference it can be seen that the ORW, and thereby the Defendant Keitel, held the view that things would have to be dealt with in a correct manner in accordance with the agreements with France, and that the OKW, which was the proper authority for these fundamental orders with regard to the prisoners of war, had decided to release all French civilians who were being treated as prisoners of war.

It is difficult to recognize how this document can serve as evidence of guilt of the Defendant Keitel. Rather will this document have to be regarded as symptomatic of the fact that the Defendant Keitel, when violations against existing agreements came to his knowledge, saw to it that they were stopped.

The Treatment of Soviet Russian Prisoners of War.

Hitler already regarded the prisoner-of-war problem as a personal domain of his legislation, and the more time passed, the less he regarded it from the points

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of view of international law and military needs, but rather from a political and economic angle. The problem in the treatment of Soviet Russian prisoners of war from the very beginning was also subject to ideological considerations which for him was the primary motive in the war against the Soviet Union. The fact that the Soviet Union was not a member of the Geneva Convention was exploited by Hitler, in order to obtain a free hand in the treatment of Soviet Russian prisoners of war.

He stated to the generals that the Soviet Union felt equally free from all stipulations which had been created by the Geneva Convention for the protection of prisoners of war. One must read the decrees of 8 September 1941 (Document Number EC-338, Exhibit Number USSR-356) in order to understand clearly Hitler's attitude. In the official document of the counterintelligence office (Amt Ausland Abwehr) of 15 September 1941, rules were laid down, which were to be observed according to international law, concerning the treatment of prisoners of war where the Geneva Convention did not apply between belligerents.

The Defendant Keitel has testified on the witness stand that he had accepted the viewpoints laid down in this document and had presented them to Hitler. The latter strictly refused to rescind the decree of 8 September 1941. He told Keitel:

"Your doubts originate from the soldierly conception of a chivalrous war. Here we are concerned with the destruction of an ideology."

Keitel noted this passage down word for word and added to his written statement of 15 September 1941: "I therefore approve and countenance these measures."

It was a typical example of Keitel expressing his doubts and Hitler taking his final decision. Keitel stood up for these decisions and did not let his subordinate offices know that he was of a different opinion. Such was his attitude. For this also he is, within the limits of his official position, taking responsibility.

What Keitel actually thought is revealed in the excerpt submitted as Document Keitel-6, Document Book 1, from the book Employment Conditions for Eastern Workers and Soviet Russian Prisoners of War. The Codefendant Speer has testified in cross-examination that he over and over again told the Defendant Keitel that any employment of prisoners of war of any enemy country in enterprises prohibited by the Geneva Convention was out of the question. Speer further testified that Keitel several times rejected any attempt to employ prisoners of war of any western nation in actual war plants.

The defense counsel for the Defendant Speer will also deal with this question in detail.

In addition, I just want to submit certain individual eases charged against the Defendant Keitel personally by the Prosecution, that is to say, eases where, in the opinion of the Prosecution, he is supposed to have exceeded the limits of the general responsibility inherent in his position.

I should not like to omit that case which was repeatedly mentioned-and rightly so-in the course of the evidence, the case of the 50 Royal Air Force officers, the shameful case of Sagan.

It particularly affects us as Germans, because it shows the utter lack of all restraint and proportion in the orders and the character of Hitler, who did not allow himself to be influenced for an instant in his explosive decisions by any thought of the honor of the German Armed Forces.

The cross-examination of the Defendant Keitel by the representative of the British Prosecution has determined how far his name too has been implicated in these abominable facts. Although the evidence clearly establishes the fact that Keitel neither heard nor transmitted Hitler's murderous order, that he and the Armed Forces had nothing to do with the execution of this order and, finally, that he did everything in his power to prevent the escaped

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officers from being handed over to Himmler and did at least succeed in saving the officers who were taken back to the camp, he is painfully conscious of his guilt in not realizing at the time the terrible blow which such a measure must inflict on German military prestige throughout the world. In connection with the treatment of the Sagan case the French Prosecution confronted the Defendant Keitel with Document 1650-PS, which deals with the treatment of escaped prisoners of war.

This, Mr. President, is the so-called "Bullet Decree." Considering the lack of time, I should like to deal shortly with this case, but I must deal with it because it is one of the most significant and gravest accusations against my client; I shall only summarize.

During his cross-examination, Keitel made the following statement:

"This Document 1650-PS emanates from a police agency and contains a reference to the OKW by the words: 'The OKW has decreed the following. . .'"

Keitel says:

"I have certainly neither signed this order of the OKW nor seen it; there is no doubt about that."

He cannot explain it; he can only assume how this order came to be issued by the Reich Security Main Office.

In his examination he mentions the various possibilities whereby such an order could have reached the office which issued it. Then he refers to another document, 1544-PS, which contains all the orders and directives concerning prisoners of war, but not this order referring to the escaped officers noncommissioned officers.

The witness Westhoff has confirmed that the concept "Stufe III" and its meaning were unknown to him and to the office of the OKW Prisoners of War Organization. He also stated that on assuming office on 1 April 1944 he found no order of this nature, not even a file note.

The meaning of that Bullet Decree was completely obscure. I believe this obscurity has been cleared up by the evidence given by the Codefendant Kaltenbrunner, who on his part had never before spoken to the Defendant Keitel on the matter.

I pass on to Page 187, where Kaltenbrunner said:

"I had never heard of the Bullet Decree before I assumed the office. It was art entirely new concept for me. Therefore I asked what it meant. He answered that it was a Fuehrer order; that was all he knew. I was not satisfied with this information, and on the same day I sent a teletype message to Himmler asking for permission to look up a Fuehrer order

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known as the Bullet Decree.... A few days later, Muller came to see me on Himmler's orders and submitted to me a decree which, however, did not originate with Hitler but with Himmler, and in which Himmler stated that he was transmitting to me a verbal Fuehrer order."

From this it is safe to assume that, without consulting Keitel and without the latter's knowledge, Hitler must have given a verbal order to Himmler, as stated in Document 1650-PS which was submitted here.

Now I come to Page 190 of my final plea:

This confirms the assumption which Keitel expressed in his interrogation, although Kaltenbrunner had not previously informed him that he knew of verbal orders given by the Fuehrer.

3) In another ease also, the one dealing with the branding of Soviet prisoners, Keitel's statement in the witness box has proved to be the simple truth.

The witness Roemer has confirmed in her supplementary affidavit that the order to mark Soviet prisoners of war by branding was cancelled immediately after being issued. A further statement of the Defendant Keitel is therefore also credible, according to which this order had been issued without his knowledge, although naturally Keitel's responsibility for the acts of the party concerned is not thereby contested.

4) In this connection I refer finally to Document 744-PS dated 8 July 1943, submitted in support of the charge against Keitel. It deals with the increased iron and steel program, for the execution of which the allocation of the necessary miners from among the prisoners of war was ordered. The first two paragraphs of the document read:

"For the extension of the iron and steel program the Fithrer on 7 July ordered the unqualified promotion of the necessary coal production and the employment of prisoners of war to cover the labor requirements. The Fuehrer ordered the following measures to be taken with all possible dispatch for the ultimate purpose of assigning 300,000 additional workers to the coal mining industry."

The last paragraph reads:

"In connection with the report to the Fuehrer, the Chief of Prisoner of War Affairs will advise every 10 days concerning the progress of the drive. First report on 25 July 1943, reference date: 20 July 1943."

I submit this document, not because of its actual content, which will be taken up by the defense of the Defendant Speer, but because of its symptomatic evidential value for the answer of the Defendant Keitel, when he stated that Hitler was particularly interested in prisoner of war affairs and himself personally issued the principal orders and those he considered important.

5) The cases also connected with this complex such as: Terrar-fliers, lynch law, Commando tasks, combat against partisans will be dealt with by other defense counsels. The Defendant Keitel has made his statement regarding these individual facts during his interrogation and cross-examination.

For the subjective facts of the alleged crimes one element is of special importance: the knowledge of them. Not only from the point of view of guilt, but also in view of the conclusions which the Prosecution have drawn, namely, acquiescence, toleration, and omission to take any counteraction. The fact of knowledge comprises: (1) Knowledge of the facts; (2) recognition of the aim; (3) recognition of the methods; (4) conception of, or possibility of conceiving the consequences.

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During the discussion of the question of how far the Defendant Keitel could possibly have drawn any conclusion as to the intention of realization by force from knowledge of the text of the National Socialist Party Program and from Hitler's book, Mein Kampf, I have already demonstrated why Keitel did not have this recognition of a realization by force.

Keitel denied any knowledge of the intended wars of aggression up to the time of the war against Poland, and his statement is confirmed by Grossadmiral Raeder. This comment is certainly a subjective truth inasmuch as Keitel did not seriously believe in a war with Poland, not to mention one involving intervention by France and England. This belief, held by Keitel and other high-ranking officers, was based on the fact that the military potential was insufficient, according to past experiences, to wage a war with any chance of victory, especially if it developed into a war on two fronts. This belief was strengthened by the nonaggression pact signed on 23 August 1939 with the U.S.S.R.

However, that is not the core of the problem. The speeches which Hitler delivered before the generals, beginning with the conference of 5 November 1937, at which Keitel was not present, made it increasingly clear that Hitler was determined to attain his goal by any means, that is, if peaceful negotiations did not succeed, he was prepared to fight, or at least to use the Armed Forces as an agent of pressure. There is no doubt about that. It is a debatable point whether the text of Hitler's speeches, of which no official record is available, is altogether accurately reproduced. There is, however, no doubt at all that they allow Hitler's intentions to be clearly recognized.

A distinction must be made as to whether it was possible for his hearers merely to gather that a definite plan was to be carried out, or whether they could not but recognize the existence of a general aim of aggression. If they did not recognize this, the only explanation lies in the fact that the generals on principle did not include the question of war or peace in their considerations. From their point of view this was a political question which they did not consider themselves competent to judge since, as has been stated here, they were not acquainted with the reasons for such a decision and, as the Defendant Keitel has testified, the generals were bound to have confidence in the leadership of the State to the extent of believing that the latter would only undertake war for reasons of pressing emergency. That is a consequence of the traditional principle that although the Armed Forces was an instrument of the politicians it should not itself take part in politics-a principle which Hitler adopted in its full stringency. The Court must decide whether this may be accepted as an excuse. Keitel

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stated on the witness stand that he recognized the orders, directives, and instructions which had such terrible consequences, and that he drew them up and signed them without allowing himself to be deflected by any consequences which they might entail.

This testimony leaves three questions undecided: (1) The question of the methods used to carry out the orders; (2) the question of the conception of the consequences which actually followed; (3) the question of the dolus eventualis.

The Defendant Keitel, in his affidavit (Document Book Number 12), showed with reference to the so-called ideological orders how the SS and Police organizations influenced the conduct of the war, and how the Wehrmacht was drawn into events. The evidence has shown that on their own responsibility numerous Wehrmacht commanders failed to apply such terrible orders, or applied them in a milder form. Keitel, brought up in a certain military tradition, was unfamiliar with SS methods which made the effects of these orders so terrible, and they were therefore inconceivable to him. According to his testimony he did not learn of these effects in their full and terrible extent.

The same is true of the Fuehrer's Night and Fog Decree which I have just discussed. If he did not allow himself to be deflected by the "possible" results when he transmitted the orders, the dolus eventualis cannot be affirmed in regard to the results which took place. It must be assumed rather that if he had been able to recognize the horrible effects, he would, in spite of the ban on resignations, have drawn a conclusion which would have freed him from the pangs of conscience and would not have drawn him from month to month further and further into the whirlpool of events.

This may be an hypothesis; but there are certain indications in the evidence which confirm it. The five attempts made by Keitel to leave his position, and the fact that he resolved to commit suicide, which General Jodl confirmed in his testimony, enable you to recognize the sincerity of Keitel's wish.

The fact that he did not succeed must be attributed to the circumstances which I have already presented: The unequivocal and, as Keitel says, unconditional duty of the soldier to do his duty obediently to the bitter end, true to his military oath.

This concept is false when it is exaggerated to the extent of leading to crime. It must be remembered, however, that a soldier is accustomed to measure by other standards in war. When all high-ranking officers, including Field Marshal Paulus, represent the same point of view, the honesty of their convictions cannot be denied, although it may not be understood.

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In reply to the questions asked so often during this Trial-why he did not revolt against Hitler or refuse to obey his orders-the Defendant Keitel stated that he did not consider these questions even for a moment. His words and behavior show him to be unconditionally a soldier.

Did he incriminate himself by such conduct? In general terms: May or must a general commit high treason if he realizes that by carrying out an order or measure he will be violating international law or the laws of humanity?

The solution of this problem depends on whether the preliminary question is answered as to who is the "authority" which "permits or orders" such criminal high treason. This question seems to me important because the source of the authority must be established-the authority which can permit or order the general to commit high treason; which can "bind and absolve."

Since the existing state power, which in this case was represented by the Chief of State, who was identical with the Supreme Commander of the Armed Forces, can certainly not be this authority, we merely have to decide whether an authority exists above or beyond the authority of the particular state, which could "bind or absolve." Since the struggle for power between Pope and Emperor, which dominated the Middle Ages, has no longer any significance in regard to constitutional law, such a power can only be impersonal and moral. The German poet Schiller expresses the supreme commandment of the unwritten eternal law in the words: "The tyrant's power yet one limit bath..." That is only one of the manifold poetical revelations in world literature, which express the deep yearning for freedom felt by all peoples.

If there is an unwritten law which indisputably expresses the conviction of all men, it is this, that with due consideration for the necessity of maintaining order in the state, there is a limit to the restriction of freedom. Where this is transgressed, a state of war will arise between the national order and the international power of world conscience.

It is important to state that no such statute of international law has hitherto existed. This is understandable, since freedom is a relative conception, and the different conceptions existing in various states and the anxiety of all states for their sovereignty are irreconcilable with recognition of an international authority. The authority which "binds and absolves"-which absolves us of guilt before God and the people-is the universal conscience which becomes alive in every individual. He must act accordingly. The Defendant Keitel did not hear the warning voice of the universal conscience. The principles of his soldierly life were so deeply rooted, and governed his thoughts and actions so exclusively, that

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he was deaf to all considerations which might deflect him from the path of obedience and faithfulness, as he understood them. This is the really tragic role played by the Defendant Keitel in this most terrible drama of all times.

THE PRESIDENT: Dr. Kaufmanns-yes, go on, Dr. Kaufmanns.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): Mr. President, may I first say that I have a few changes which I will announce when I come to them. I shall take about two hours altogether, Mr. President.

May it please the Tribunal: The present Trial is world history- world history full of revolutionary tensions. The spirits conjured up by mankind are stronger than the cries of the tortured peoples for justice and peace. Since man was deified and God humiliated, chaos, as an inevitable consequence and punishment, has afflicted mankind with wars, revolutions, famine, and despair. Whatever the guilt borne by my country, it is now enduring-and permanently enduring-the greatest penance ever endured by any people.

The means adopted to restore longed-for prosperity are wrong, because they are second-rate. And none of my listeners can question the truth of my assertion that the present Trial was not begun at the end of a period of wrong, and in order to end it, but is surrounded by-the surging waves of a furious torrent bearing on its surface the hopeless wreckage of a civilization guarded through the centuries, and in the demoniacal depths of which lurk those who hate the true God, who are the enemies of the Christian religion, and therefore opposed to all forms of justice.

The European commonwealth of peoples, of which my country, if only because of its geographical position, was the very heart, is seriously afflicted. It suffers from the spirit of negation and humiliation of human dignity. Rousseau would have cursed his own maxims had he lived to see the radical refutation of his theories in this twentieth century. The peoples proclaimed the "liberty" of the great revolution, but in the course of a mere 150 years they have in the name of that same liberty created a monster of bondage, cruel slavery, and ungodliness, which contrived to elude earthly justice, but did not escape the living God.

This Tribunal, conscious of its task and its mission, will some day have to submit to the searching eye of history. I do not doubt that the judges selected are striving to serve justice as they see it. But is not this task indeed impossible of solution? The American chief prosecutor stated that in his country important trials seldom begin until one or two years have elapsed. I do not need to elucidate the profound core of truth contained in this practice. Could human beings, torn between love and hate, justice and revenge, conduct

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a trial immediately after the greatest catastrophe humanity has ever known-and constantly harassed by the statutory demands for rapid and time-saving proceedings-in such a way as to earn the thanks of mankind when the waters of this second deluge have withdrawn into their old bed?

Would it not have been better to allow for that very lapse of time between crime and atonement with regard to the present proceedings?

Justice can be administered only when the Court possesses that inner liberty and independence which owes allegiance only to conscience and to God himself. Such a sacred activity had largely been forgotten in my country, above all, by the governing class of the nation; Hitler had prostituted the law. But this Tribunal intends to prove to the world that the welfare of the peoples is based on law alone. And no conception could arouse more joy and hope within the heart of people of good will than that of unselfish justice.

I am not criticizing the provisions of the Charter; but I do ask whether any justice has ever been, or ever could be, found on earth if might submitted to reason so far as to grant its enemies regular trial, but could not see fit to crown this tribute to reason by appointing a genuinely international tribunal; for even though 19 nations have approved of the legal basis of the Charter it is far more difficult to administer the laws laid down. '

The American chief prosecutor has emphatically declared that he did not propose to hold the entire German nation guilty; but the records of this Tribunal, which history will some day scrutinize attentively, nevertheless contain many things which, to us Germans, appear to be false and, therefore, painful. Unfortunately they also contain numerous explicit questions on the part of the French Prosecution as to the extent to which, for instance, certain Crimes against Humanity committed both inside and outside Germany were known to the German people. Indeed, the French Prosecution have asked explicitly: "Could these atrocities remain, on the whole, unknown to the entire German nation, or were they aware of them?" These and similar questions are not conducive to the solution of such a difficult and tragic problem with even the slightest approach to the truth. Insofar as evil, which always grows and manifests itself organically, reigns supreme in a nation, every individual who has reached the age of reason will bear some guilt for his country's disasters. Yet even this guilt, which is on the metaphysical plane, could never become the collective guilt of a nation unless every individual member of this nation has incurred a separate guilt. But who would be entitled to establish the existence of such a guilt without examining thousands of individual circumstances?

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The problem, however, becomes even more difficult if one should try-and this is the final aim-to establish the so-called national guilt for any past crimes against peace, humanity, and so forth, committed on the part of the omnipotent State, no matter through what agencies. One must bear in mind most carefully the condition of the Reich before 1933. This has been done sufficiently here and I shall not discuss it.

Hitler claimed for himself alone such far-reaching concepts as the powerful German diligence, austerity, family affection, willingness to make sacrifices, aristocracy of labor, and a hundred more. Millions believed in this; millions of others did not. The best of them did not lose hope of being able to avert the tragedy which they foresaw. They flung themselves into the stream of events, assembled the good, and fought, visibly or invisibly, against the evil. Can the man in the street be blamed for not immediately refusing to believe in Hitler, considering the latter's ability to pass as a seeker after the truth, and the fact that he constantly raised the palm of peace for the benefit of the peace lovers? Who knows whether he himself was not convinced at the outset that he could strengthen the Reich without going to war? After the assumption of power large sectors of the German people probably felt themselves to be at unison with many other peoples on earth. Therefore, it is not astonishing that gradually, and with the approval or tolerance of other countries, Hitler acquired the nimbus of a man unique in his century. Only a German who lived in Germany during the past few years and did not view Germany through a telescope from abroad, is competent to report on the historical facts of an almost impenetrable method of secrecy, the psychosis of fear, and the actual impossibility of changing the regime, and thus to comply with Ranke's demand of historians to establish "how it was."

Ought the artisans, peasants, merchants, or housewives categorically to have asked Hitler or Himmler for a change? I would be quite willing to let the Prosecution answer this, as I am of the opinion that there are living in my country no fewer idealistic and heroic people than in any other country.

It will never be possible to ascertain how large a number of Germans knew and approved of concentration camps, their terror and such like. Only if one could establish knowledge and approval in the soul of every individual German, considering general and particular conditions prevailing in the Germany of the last 12 years, which it is not now the moment to discuss, these, and only these, could be considered guilty.

Therefore I do not think it just to put, to a larger or smaller extent, the principle of collective guilt in the place of individual responsibility, as it is held valid in all civilized nations; it was unfortunately similarly applied by the National Socialist regime to a whole people, and almost led to its complete extermination. May there be no repetition of Article 231 of the Treaty of Versailles, that portentous document of the twentieth century.

Let me say a few words about that secrecy. This Trial has shown clearly that the State itself managed to suppress such facts as would lower its prestige and betray its real intentions. Even the men

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indicted here, who have been termed conspirators, have been the victims of that carefully devised system of secrecy, or most of them at least.

A special place in that system of secrecy is reserved to the plan-ordered by Hitler and executed by Himmler, Eichmann, and a circle of the initiated-for the biological destruction of the Jewish people, the ghastly aim of which was for years concealed by the term "final solution"-a term not immediately self-explicable. The problem of the Jewish question...

THE PRESIDENT: Dr.Kauffmann, it seems to the Tribunal a very long preamble to the defense of the Defendant Kaltenbrunner, who has not been named at all yet in what you have said. Is it not time that you came to the case of the defendant whom you represent? We are not trying a charge against the German people. We are trying the charges against the defendant. That is all we are trying.

DR.KAUFFMANN: Mr. President, in the next few sentences I would have concluded that; but I ask you to appreciate that the important word "humanity" forms the core of my case. I believe that I am the only defense counsel who intends to go more deeply into that subject; and I request permission to make these few statements. I shall come to the case of Kaltenbrunner very soon.

THE PRESIDENT: On Page 8 you have a headline which is, "The Development of the History of the Intellectual Pursuit in Europe." That seems rather far from the matters which the Tribunal have got to consider.

DR. KAUFFMANN: Mr. President, may I remind you that this question was discussed by the Prosecution, and especially by M. de Menthon. I do not believe that I can carry out my task if I take these tremendous crimes only as facts. Some German must have an opportunity of giving a short description of the development-and it is very short. At the end of a few pages I return to the case of Kaltenbrunner; and my plea will in any case be the shortest one presented here.

'1'~; PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far as it can, to decide the cases which it has got to decide in accordance with law and not with the sort of very general, very vague and misty philosophical doctrine with which you appear to be dealing in the first 12 pages of your speech, and, therefore, they would very much prefer that you should not read these passages. If you insist upon doing so, there it is; but the Tribunal, as I say, do not think that they are relevant to the case of the Defendant Kaltenbrunner. They would much prefer that you would begin at Page 13, where you really come to the defendant's case.

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DR. KAUFFMANN: Mr. President, it is, of course, extremely difficult for me to present a plea which is already very much condensed, and now to disrupt it even more. It is really difficult. I hope that the Tribunal will appreciate that.

THE PRESIDENT: Well, Dr. Kauffmann, there has been nothing condensed in what you have read up to the present. It has been all of the most general type.

DR. KAUFFMANN: In that case may I at least read a few sentences below the headline with regard to the defense? It starts...

THE PRESIDENT: Can you not summarize the general nature of what you wish to say before you come to the Defendant Kaltenbrunner?

DR. KAUFFMANN: Yes, I shall try. I shall read only a few sentences, for the sake of better understanding, from the short chapter dealing with the task of the Defense. I say there that the defense has been established by the Charter and ask how in the face of such excesses a defense can still identify its task. I then go on to say:

In this Trial, error and truth are mysteriously mixed, probably more so than ever before in any great trial. To try to find the truth raises the counsel for the defense to the dignity of an assistant of the Court. Not only does it entitle the Defense to doubt the credibility of the witnesses but also that of the documents, in particular of the Government reports. It entitles the counsel for the defense to state that such reports, although they may be admitted by the Charter in evidence, can only be accepted under protest, because none of the defendants, defendants' counsel, or neutral observers could have any influence on the way in which they originated.

These testimonies were certainly made within the framework of the law, but also within the framework of power.

The people, or a large part of the people, in their aspirations toward peace and happiness elevated the representative of a heretical doctrine to the position of their Fuehrer, and this Fuehrer abused the faith of his followers so that the people, no longer possessing the strength to offer a timely and open resistance, were engulfed in the gigantic abyss of the annihilation of their entire racial, political, spiritual, and economic existence. All of this is tragic in the truest sense of the word. Had the individual man in the street, the mother at home, and her sons and daughters, been asked to choose between peace or war, they would never voluntarily have chosen war. The unsatisfactory element in this Trial is the absence of the man...

THE PRESIDENT: Are you reading now from some part of your document?

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DR. KAUFFMANN: I am reading a few sentences, Mr. President. This is at Page 7 of the German text.

THE PRESIDENT: Can you not summarize the argument you are presenting?

DR. KAUFFMANN: Mr. President, I would appreciate it if I could be told once more whether the Tribunal does not wish me to throw any light at all on the ideological background in the interests of an understanding of these crimes against humanity and peace. If the Tribunal states that it does not desire me to make any such statements, then of course I shall follow the wishes of the Tribunal. But such a phenomenon...

THE PRESIDENT: Well, Dr. Kauffmann, if you think it is necessary for you to read this passage you can do so; but, as I have indicated to you, the Tribunal think it is very remote indeed from any question which they have to consider.

DR. KAUFFMANN: Thank you very much. Then I shall skip a few pages and shall present only 4 or 5 pages, which will be very condensed, on the subject which I have just mentioned. That begins with the heading, "Outline of Intellectual Development."

The rise of Hitler, and his downfall, unique in its extent and consequences, may be viewed from any side-from the perspective of the historical spectacle afforded by the course of German history, the course of economic forces supposedly governed by irresistible laws, the sociological divisions of the nation, the peculiarities of race and character of the German people, or the mistakes committed in the political sphere by the other brothers and sisters of the family of nations living in the same house.

All this certainly completes the picture of the analysis, but it brings to light only partial knowledge and partial truth. The deepest, and the fatal, reason for the Hitler phenomenon lies in the metaphysical domain.

In the final analysis the Second World War was unavoidable. Anyone, however, who regards the world and its phenomena only from the standpoint of economics may arrive at the conclusion that both world wars could have been avoided if the resources of the earth had been reasonably distributed. Economic factors alone can never change the face of the earth; therefore, the change in the German people's standard of living, and the demoralization of the national soul by the Treaty of Versailles, inflation, serious unemployment, and other factors formed a foundation for the advent of Hitler. It is possible that catastrophes may be delayed for years or decades, if certain external living conditions make the relationship between different nations and peoples ostensibly happier. At

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no time, however, can a misguided idea be destroyed through economic measures alone, and deprived of its power to injure the individual and the nation, unless mankind can overcome such ideas and replace them by better ones.

"In the way in which the name of God is used by the peoples and nations," says the famous Donoso Cortes, "lies the solution of the most-feared problems." Here we have the explanation of the providential mission of the separate nations and races, the great changes in history, the rise and fall of empires, conquests and wars, the different characteristics of the nations, and even their changing fortunes.

M. de Menthon has tried to make an intellectual analysis of National Socialism. He speaks. of the "sin against the spirit," and sees the deeper causes of this system in estrangement from Christianity.

I wish to add a few words. Hitler was not a meteor, the fall of which was incalculable and unpredictable. He was the exponent of an ideology which was in the last resort atheistic and materialistic.

There is every reason to reflect that, although National Socialism is eliminated through the complete defeat of Germany, and although the world is now free of the German threat as proclaimed by all nations, there has been no decisive change for the better. No peace has filled our hearts, no rest has come to any corner of human existence. It is true that the collapse of a powerful state with all its physical and spiritual forces will be felt for a long time, just as the sea is stirred into motion when a rock is thrown into calm water. But something much more is happening at present in Europe and in the world-something quite different from the mere ebbing away of such a wave of events.

To retain the comparison, the waves rise anew from the 'deep; they are fed by mysterious forces which constantly emerge anew. They are those restless ideas, aiming at the disaster of nations, of which I spoke. And nothing can disprove the truth of my words when I maintain that victor and vanquished alike live in the midst of a crisis which disturbs the conscience of individuals and of nations like a monstrous and apparently inevitable nightmare, and which causes us to look beyond the punishment of guilty individuals toward those ways and means which can spare humanity an even greater catastrophe.

In the Confessions of a Revolutionary the clear-sighted socialist Proudhon wrote the memorable words: "Every great political problem contains within itself a theological one." He coined this phrase one hundred years ago. It is most timely that the American General MacArthur, at the signing of the Japanese capitulation, is said to have repeated the essential meaning of these profound words by

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saying: "If we do not create a better and greater system, death will be at our door. The problem is, fundamentally speaking, a religious one."

History is made by changes in religious values. They constitute the strongest motive power in the cultural progress of humanity. Permit me to show you in a few bold outlines the intellectual and historical forebears of National Socialism.

THE PRESIDENT: Dr. Kauffmann, it is 1 o'clock, and I must say that the last two pages which you have read seem to me to have absolutely nothing to do with Crimes against Humanity, or with any case with which we have got to deal. I suggest to you that the next pages, headed "Renaissance, Subjectivism, French Revolution, Liberalism, National Socialism" are equally completely unlikely to have any influence at all upon the minds of the Tribunal.

The Tribunal will now adjourn.

[The Tribunal recessed until 1400 hours.]

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Afternoon Session

DR. KAUFFMANN: Mr. President, I am going to leave out the section headed "Renaissance, Subjectivism, French Revolution, Liberalism, National Socialism." The gist of those remarks can be summarized in two or three sentences and I merely beg you to take cognizance of them. I have pointed out that the course of all these disastrous movements is the spiritual attitude which Jacques Maritain described as anthropocentric humanism.

The clamor of the great struggle between the Middle Ages and modern times has filled the last centuries until this very hour. Its victims include since 1914, for the first time, the women; since 1939, for the first time, the children. The apocalyptic battle is in full progress for the 2,000-year-old meaning of the Occident, the motherland of the material as well as the personal culture of humanity. Its object is the steadily growing anthropocentric humanism which makes the human being the measure of all things, the secularization of religion. It announces itself in the Renaissance, becomes completely clear in the enlightenment of the seventeenth and eighteenth centuries and in the intellectual movements of the nineteenth century. However good the reasons and motives were, the way over the Renaissance and the schism of the sixteenth century proved to be wrong. At its very end stands, for the present, the ideology of National Socialism. In the heads of its most extreme champions National Socialism culminated in the radical demand for the fight unto death against Christianity. Therefore this ideology was in its last analysis a philosophy without love; and because of this, it extinguished the light of reason in those addicted to it. To that extent the head himself of this heresy proclaimed a truth.

Goethe expressed this problem by saying: "World history is the struggle between belief and unbelief." And I maintain, based on the declarations of the greatest minds in all camps of religious faiths, that the history of the nations, just as previously it was a struggle for the natural divine right of man, for 2,ooo years has been a striving of human intellect for the Christian soul in man. These precepts are in fact such that one may not doubt them even for a short moment without the mind beginning to reel and vacillate helplessly between truth end error. It is cause for reflection that Hitler rejected the wonderful characteristic of a truly kind man that we call humility because he had decided in favor of Machiavelli and Nietzsche and that now the fate of the Germans is humiliation without precedent. One may also reflect upon the fact that Hitler denied the virtues of pity and mercy and that now millions of women and children wail with sorrow, while the law, seemingly extinct, again assumes enormous proportions, whereas Hitler surrounded himself with lawlessness. The real and last root of these calamitous modern movements which threaten state, society, and Christianity, is rootless liberalism in the meaning of that anthropocentric humanism, as Maritain calls it. Man and his autonomous reason become the criterion of everything. The question should impose itself upon every thinking person, why from the turn of the nineteenth century until the present such catastrophes of humanity have occurred which in history, I should almost like to say, find their parallel only in cosmic catastrophes. Two world wars, with revolutions in their wake, are never an accidental development but rather a predetermined evolution of the human race founded on some intellectual-religious error. Coming from England, rationalism found its way to France and on arrival there changed its physiognomy. I believe that the paganism of the ancient times knew hardly anything like Voltaire. No sooner had rationalism become the state religion of France, when the French Revolution burst into flames and wrote the idea of the emancipated human rights with flaming letters into the sky of Europe. In spite of the proclamation of the human rights, mankind waded through blood as if this was the way to freedom. Sarcastic and scornful laughter at everything sacred went through the raving masses. When the French Revolution had put into practice its state founded on reason, the new institutions did not prove quite so reasonable. The `4brotherhood" was, compared with the glamorous promises of the rationalists, a bitterly disappointing caricature. Soon these ideas also conquered Germany; for Germany

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looked with amazement and awe toward France in this century. The manifestation of religion became a religion of pure humanity. The last step was taken by Kant, he drew the last consequence from the principle of free science. Hegel abolished the personal God and replaced him by the absolute reason. The state is everything, it is God, its will is God's will, in all relations to it there are no natural rights; it creates religion, law, and morality by virtue of its own sovereignty. Hitler once more placed the sovereignty in the people as a race. Hegel's disciples destroyed the last vestige of the moral fundaments of society, state, and law. Only the genius of a man like Leibnitz, in whom the intellect of the German nation seemed to concentrate for the last time, stood alone in a sea of the rational ideology. Voltaire ridiculed the German thinker, not only in France, but also in Berlin. The last stages are connected with the names of Nietzsche and others. Nietzsche has, as no other modern man, reasoned modern ideologies out to the end and proclaimed with dauntless logic whither the present development would inevitably lead. Thus the road leads from Caligula and Julian Apostate through many a genius, glorified by the whole world but truly destructive in their effects, directly to Hitler.

Ancient paganism or modern paganism, which of them is worse? As Donoso Cortes so wisely puts it, there will be no more hope for a society which has exchanged the stern cult of Christian quest of truth for the idolatry of reason. After the sophisms come the revolutions, and behind the sophist walk the executioners.

When Hitler, returning from. the first World War, decided, as he said, to become a politician, he declared that he had found the powers which could free Germany with its national and social elements from its misery. But fundamentally his ideology was only another step along the well-worn road to complete autonomy of so-called natural common sense, to which he so often referred. Naturally he had his teachers. The apotheosis of his own people traces back to Fichte, the ideal of the master-man to Nietzsche, the relativity of morals and right to Macchievelli, the cult of race to Darwin. We have witnessed their practical eject; for this road leads straight into the concentration camps, to the destruction of other races, to the persecution of Christians. But the outside enemies of National Socialism succumbed to the same ominous idea of "natural common sense" by killing with their bombs millions of noncombatant women and children and destroying so many dwellings in German villages and cities. The victor, even in a defensive war, must not try to excuse these events with 'military necessities" in the meaning of the Charter. The cultural values of this very city in which this Tribunal is sitting, or of Dresden, Frankfurt, and many other cities, were the cultural property of the entire Occident. All this, and the terrible misery of the flood of refugees from the East, and the fate of the prisoners of war, is part of the theme of the intellectual and cultural analysis of National Socialism.

In the midst of this whole spiritual situation stands the figure of the Defendant Dr. Kaltenbrunner. The fatherland was already bleeding from a thousand wounds dealt at its sensitive soul and its gigantic power. Is this man guilty? He has denied his guilt and yet admitted it. Let us see what the truth is.

As I have already emphasized, up to the year 1943 Kaltenbrunner was, by comparison with the other defendants at this Trial, hardly known in Germany; at any rate, he had hardly any associations with either the German public or the high officials of the regime. In those days, when the military, economic, and political fate of the German people was already swinging with great velocity toward the abyss, hate and abhorrence of the executive powers were at their peak, the more so as the paralyzing sensation of the hopelessness of any resistance against the terror of the regime began to disappear, for people had by then finally turned away from

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the legend of invincibility preached by propaganda. Up to that point Kaltenbrunner had led a retired life and, in spite of the Austrian Anschluss, his record was clear of offenses against international law. I should like to say here that he was an Austrian-I might almost say, a bona fide Austrian. Suddenly so to speak, and not on account of any special aptitude, much less through any efforts of his own, he was drawn into the net of the greatest accomplices of the greatest murderer. Not of his own free will; on the contrary, he repeatedly attempted to resist and to have himself transferred to the fighting front.

I can well understand that I might be told that I should, in view of the sea of blood and tears, refrain from illuminating the physiognomy of this man's soul and character. But deep in my heart-and I beg you not to misunderstand me-while exercising my profession as counsel, even of such a man, I am moved by the universal thesis of the great Augustine, which is hardly intelligible to the present generation: "Hate error, but love man." Love? Indeed, insofar as it should pervade justice; because justice without this virtue becomes simple revenge, which the Prosecution explicitly disavows. Therefore, for the sake of justice, I must show you that Kaltenbrunner is not the type of man repeatedly described by the Prosecution, namely, the "little Himmler," his "confidant," the "second Heydrich."

I do not believe that he is the cold-hearted being which the witness Gisevius described in such unfavorable terms, although only from hearsay. The Defendant Jodl has testified before you that Kaltenbrunner was not among those of Hitler's confidants who always gathered around him after the daily situation conferences in the Fuehrer's headquarters. The witness Dr. Mildner, on the basis of direct observation, made the following statement, which was not shaken by the Prosecution:

"From my own observation I can confirm this: I know the Defendant Kaltenbrunner personally. His private life was irreproachable. In my opinion he was promoted from Higher SS and Police Leader to Chief of the Security Police and of the SD because Himmler, after the death of his principal rival Heydrich in June 1942, did not want any man near him or under him who might have endangered his own position. The Defendant Kaltenbrunner was no doubt the least dangerous man for Himmler. Kaltenbrunner had no ambition to bring his influence to bear through special deeds and ultimately to push Himmler aside. He was not hungry for power. It is wrong to call him the 'little Himmler.' "

The witnesses Von Eberstein, Wanneck, and Dr. Hoettl have expressed themselves in a similar manner.

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And yet this man took over the Reich Security Main Office; indeed, he took it over to the fullest extent, despite his agreement with Himmler. I know that today this man is suffering a great deal in thinking of the catastrophe that has overtaken his people and from the uneasiness of his conscience; nothing is more understandable than that Dr. Kaltenbrunner, knowingly, can no longer face the fact that he actually was in charge of an office under the burden of which the very stones would have cried out if that had been possible. The personality and character of this man must be judged differently from the way the Prosecution has judged it.

For the psychologist the question arises how a man, with, let us say, a normal citizen's virtues, could take under his control an office which became the very symbol of human enslavement in the twentieth century, as far as Germany is concerned. Yet there may have been two reasons for taking over this office, nevertheless. One is based on the fact that Dr. Kaltenbrunner, although closely connected with the political and cultural interests of his Austrian homeland, supported National Socialism in its larger sense. For before he turned into the side path with its secrets, he marched with thousands and hundreds of thousands of other Germans, who desired nothing else than delivery from the unstable conditions prevailing at that time, on that wide road into which the eyes of the entire world had insight. Therefore, for example, he was without a doubt a disciple of anti-Semitism, however, only in the sense of the necessity of putting an end to the flooding of the German race with alien elements; but he condemned just as emphatically the mad crime of the physical annihilation of the Jewish race, as Dr. Hoettl definitely assures us.

Certainly Kaltenbrunner also admired Hitler's personality as long as it did not, little by little, give expression to its absolutely misanthropic and therefore un-German nature. Also, he approved in principle, as he himself admitted during his interrogation, of measures which implied more or less severe compulsion, for example, the organization of labor training camps. For this reason no sensible person will want to question the fact that he deemed the establishment of concentration camps fundamentally quite proper, at least as a provisional measure during the war, as had been the case for a long time beyond the German borders. Sine ira et studio.

The establishment of concentration camps, or whatever one wishes to call those places at the mention of which the listener involuntarily is reminded of the words of Dante, is unfortunately not unknown in many states. History knows of their existence in South Africa some decades ago, in Russia, England, and America during this war, for the admission, among others, of Persons who for reasons of conscience do not want to serve with arms. In

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Bavaria, in the land in which the Tribunal at present sits, this sort of camp is also known; also known is the so-called "automatic arrest" category for certain groups of Germans. Under the heading "Political Principles," in Point B-5 of the text of the mutual declaration of the three leading statesmen on the Potsdam Conference of 17 July 1945, the statement is contained that, among others, all persons who are a threat to the occupation or its aims shall be arrested or interned.

The apparent necessity for camps of this sort is thereby recognized. I myself detest those institutions of human slavery; but I state openly that these institutions also lie on the road which, when followed to the end, can and does bring suffering to persons holding different views to those desired by the state. By this the crimes against humanity in the German concentration camps are not in the least to be minimized.

As far as Kaltenbrunner is concerned, this man, in view of his character and attitude as apparent since 1943, according to my conviction and as can be affirmed by many witnesses, is basically a National Socialist leader who noted only with repugnance the general trend of the continually growing wave of terror and enslavement in Germany. For this reason I deem it important to point to the statement of the witness Eigruber to the effect that the claim of the Prosecution that Kaltenbrunner established Mauthausen is wrong.

The second reason lies in the subject of the two conversations with Himmler, about which Kaltenbrunner testified. According to that Kaltenbrunner was prepared to take over the offices of the Domestic and Foreign Intelligence Service in the Reich Security Main Office with the promise of Himmler that he would be allowed to expand this service into a central agency, with the aim of absorbing the Political Intelligence Service and joining it with the hitherto military one of Admiral Canaris. No doubt it is true, as the witnesses Wanneck, Dr. Hoettl, Dr. Mildner, and Ohlendorf, and also the defendant himself have testified, that Himmler, with Kaltenbrunner's wish in mind, after the murder of Heydrich, intervened in the executive realm so that nothing of any importance took place in any executive field in Germany without Himmler having the final word and thus issuing the decisive order.

The witness Wanneck confirmed the subject of those two conversations of Kaltenbrunner with Himmler in the following words, which I shall quote because of their importance:

"When material problems arose Kaltenbrunner frequently remarked that he had come to an understanding with Himmler to work rather in the field of the Foreign Political Intelligence Service and that Himmler himself wanted to exert

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more influence in executive functions. To my knowledge Himmler agreed to these adjustments all the more since he believed that he could depend on Kaltenbrunner's political instinct in foreign affairs, as was apparent from various remarks made by Himmler."

Various witnesses have testified that Kaltenbrunner, predominantly and from inner conviction, did dedicate himself to the Domestic and Foreign Intelligence Service and more and more approached the influence on domestic and foreign politics he was hoping for. I call attention again to Wanneck and Dr. Hoettl, and then also to the Defendants Jodl, Seyss-Inquart, and Fritzsche. Dr. Hoettl testified:

"In my opinion Kaltenbrunner never was completely master of the large Reich Security Main Office and, from lack of interest in police and executive problems, occupied himself far more with the Intelligence Service and with exerting influence on politics as a whole. This he considered his real domain."

From the testimony by General Jodl I stress the following sentences:

"Before Kaltenbrunner took over the Intelligence Service from Canaris he already sent to me, from time to time, very good reports from the southeastern territory, through which I first noticed his experience in the Intelligence Service... I had the impression that this man knew his business; I now received constant reports from Kaltenbrunner, just as earlier from Canaris; not only the actual reports from agents, but from time to time he sent to me, I might almost say, a political survey on the basis of his individual reports from agents. I noticed these condensed reports on the entire political situation abroad especially, because they revealed, with a frankness and sobriety never possible under Canaris, the seriousness of our entire military position."

The results therefore, which I must deduce from the evidence, are as follows: Kaltenbrunner, on the basis of the separation of the Intelligence Service from the executive police function in the Reich Security Main Office as desired by him, actually held a position, the main interest of which was the Intelligence Service and its continuous development. I should add that this Intelligence Service covered more than Europe; it went from the North Cape to Crete and Africa, from Stalingrad and Leningrad to the Pyrenees. Kaltenbrunner was the most zealous of all those in Germany who wished to feel the pulse of the enemy nations.

That was the lifework of this man as he himself wished it to be for the duration of the war. Personally he lived in modest

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circumstances, and it is the truth when I say that he leaves the stage of political life just as poor as when he first entered it. The witness Wanneck once quoted a statement by Kaltenbrunner which is characteristic of him: That he, Kaltenbrunner, would retire completely from office after the war and return to the land as a farmer. Only with deep regret will the spectator see that under the pressure of political and military events this man did not observe the limitations desired by himself. His obedience to Hitler, and therefore also Himmler, submitted to the apparent necessity, in the years 1943-45, of guaranteeing the stability of conditions inside Germany through police compulsion. Thereby he became involved in guilt; for it is clear that he might count on a milder judgment on his guilt before the conscience of the world only if he could produce evidence that he actually effected a sharp separation from the unholy Amt IV of the Secret Police, if he had in no way participated in the ideas and methods, which I believe, eventually led to the institution of this whole Trial. I cannot deny that he did not undertake this separation. Nothing is clearly proved in this direction; even his own testimony speaks against him. Thus his statement at the beginning of his examination before the Tribunal may be explained, which I should like to define as the thesis of his guilt:

"Question: 'You realize that a very special accusation has been brought against you. The Prosecution accuses you of Crimes against Peace as well as of your role of an intellectual principal or of a participant in committing Crimes against Humanity and against the rules of war. Finally the Prosecution has connected your name with the terrorism of the Gestapo and with the cruelties in the concentration camps. I now ask you: Do you assume responsibility for these points of accusation, as they are outlined and familiar to you?"'

And Kaltenbrunner answers:

"First of all I should like to state to the Court that I am fully aware of the serious nature of the accusations brought against me. I know that the hatred of the world is directed against me, since I am the only one here to answer to the world and to the Court, because a Himmler, a Muller, a Poll are no longer alive . . . I want to state at the very beginning that I assume responsibility for every wrong which from the time of my appointment as Chief of the Reich Security Main Office was committed within the jurisdiction of that office as far as it occurred under my actual command, and I thus knew or should have known of these occurrences."

Thus the duty of the Defense. is automatically delineated by asking the questions:

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(1) What did Kaltenbrunner do, good and evil, after his appointment as Chief of the Reich Security Main Office on 1 February 1943?

(2) To what extent is the statement justified that in the essential points he did not have sufficient knowledge of all the Crimes against Humanity and against the rules of war?

(3) In how far can his guilt be established from the viewpoint that he should have known about the serious crimes against international law in which AmtIV of the Reich Security Main Office (Secret State Police) was directly or indirectly involved?

What has Kaltenbrunner done? In this connection I am passing over the accusation brought against him by the Prosecution for his participation in the events surrounding the occupation of Austria and Czechoslovakia, for no matter with what energy he followed his goal of seeing his Austrian homeland incorporated into the German Reich and used the SS forces under his command for the realization of this end, this aim cannot have been a criminal one according to the world's conscience. Just as little could one reach a verdict of criminal guilt because of the forcible means employed at that time to accomplish the annexation of Austria, which was the outcome of history and desired by millions. Kaltenbrunner was still much too insignificant a man for that. Economic distress-Anschluss movement-National Socialism: That was the path followed by the majority of the Austrian people, not the National Socialist ideology; for Hitler himself was, from the standpoint of Austrianism, a spiritual and political renegade. Yet the Austrian Anschluss movement was a people's movement before National Socialism had reached any importance in Germany. Austria wanted to protect herself against the Versailles and St. Germain ruling, which forbade the Anschluss, by holding a plebiscite in each province. After 90 percent had voted in Tyrol and Salzburg, the victorious powers threatened to discontinue the shipment of food supplies. Hitler's seizure of power paralyzed the desire for~Anschluss among those not sympathizing with the Party, but the distress in Austria became still more acute and isolated the Dollfuss-Schuschnigg regime. Incorporation into the economic sphere of Greater Germany, where the removal of mass unemployment seemed to be the source of hope, appeared to the greatly distressed Austrian people as the only way out. The wave of enthusiasm which on 12 and 13 March 1933 went through all Austria was real. To try to deny this today would be to falsify history. The Anschluss, not the Dollfuss-Schuschnigg Government, was based on democracy.

Just as little can one, I believe, according to the reasons mentioned above, reach a verdict of guilt for Kaltenbrunner because of his alleged activity in the question of Czechoslovakia. In my opinion, the question of guilt and expiation arises only for the time

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after 1 February 1943. The indignation of the German people over one of the most infamous terroristic measures, the imposition of protective custody, had already become immense before this date. Is it correct to say that Kaltenbrunner himself, of whom many orders for protective custody bearing his signature are in evidence before the Court, inwardly abhorred this type of suppression of human liberties?

May I refer to just a few sentences from his interrogations:

"Question: 'Did you know that protective custody was at all permissible and was used frequently?'

"Answer: 'As I have stated, I discussed the idea of "protective custody" with Himmler already in 1942. But I believe that already before this time I had corresponded quite extensively on this subject with him, as well as once also with Thierack. I consider protective custody as applied in Germany only in a smaller number of cases to be a necessity of state, or better a measure such as is justified by war. For the rest I often voiced my opinion, well founded in legal history, against this conception and against the application of protective custody in principle. I had several discussions about it with Himmler and with Hitler also. I publicly took my stand against it at a meeting of public prosecutors, I think in 1944, because I have always been of the opinion that a man's freedom is one of his highest possessions and only the lawful sentence of a regular court of justice founded on the Constitution may limit or take away this freedom."'

Here the same man expresses the right principles, the observance of which would have spared the German people and the world untold suffering, and the nonobservance of which constitutes the guilt of this man who in spite of his right views, suited his actions to the so-called necessity of state. He thereby, against his own will and knowledge, became subject to the principle of hatred, which sooner or later will always shake or shatter the foundations of the strongest state. "Right is what benefits the people," Hitler had proclaimed. I well know that Kaltenbrunner today deeply regrets having adhered too long to that false maxim without putting up sufficient resistance...

Although the Prosecution has not been able to produce even one single original signature of Kaltenbrunner in connection with orders for protective custody, and I do not think it incredible when Kaltenbrunner deposes that he himself never put into effect such an order for protective custody by his signature, nevertheless, in view of the tragic results due to so many of these orders, I do not need to say even one word as to whether he is entirely blameless or is much less to blame because these orders had perhaps been signed without

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his knowledge; although of course the question arises immediately how this was possible in an office however large. Be that as it may; in affairs of such depth and such tragic outcome one's feelings are inclined to make hardly any distinction between knowledge and ignorance due to negligence, because one wants to hold everyone occupying a post in an office responsible for what happens there. This recognition is also the meaning of Kaltenbrunner's statement, cited above, regarding his fundamental responsibility. Where the happiness and fate of living men are involved, it is impossible to retreat under the pretext of ignorance in order to avoid punishment; at best mitigation of sentence can be asked for. The defendant knows this too. Orders for protective custody were the ominous harbingers of the concentration camp. And I am not revealing a secret when I say that the responsibility for issuing orders for protective custody includes the beginning of responsibility for the fate of those held in the concentration camps. I could never admit that Dr. Kaltenbrunner may have known of the excesses suffered by the thousands who languished in the camps; for, as soon as the gates of the concentration camps were closed, there began the exclusive influence of that other office, the frequently mentioned Central Office for Economy and Administration. Instead of referring to many statements of witnesses regarding this point, I refer only to the one of the witness Dr. Hoettl who, when asked about subordination in rank replied:

"The concentration camps were exclusively under the command of the SS Central Office f or Economy and Administration, hence not under the Reich Security Main Office, and therefore not under Kaltenbrunner. In this sphere he had no authority of command and no competency."

Other witnesses have said that of necessity Kaltenbrunner should have had knowledge of the sad conditions in the concentration camps, but there is no doubt that the commandants of the concentration camps themselves deliberately concealed criminal excesses of the guards even from their superiors. It is furthermore a fact that the conditions found by the Allies upon their arrival were almost exclusively the results of the catastrophic military and economic situation during the last weeks of the war, which the world mistakenly identified with general conditions in former times as well. The above statement is fully verified by the statements of the camp commandant of Auschwitz, Hoess, who because of his later activity in the Concentration Camp Department of the Central Office for Economy and Administration, had an accurate over-all picture. Hoess has no ulterior motive whatsoever to give false testimony. A person like him, who sent millions of men to their deaths, no

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longer comes under the authority of human judges and considerations. Hoess stated:

"The so-called ill-treatment and tortures in the concentration camps were not, as assumed, a policy. They were rather excesses of individual leaders, subleaders, and men who laid violent hands upon the inmates."

These people themselves were, according to the statement of Hoess, taken to task for that. I believe I need not go into any more details of how, according to various witnesses, visitors to concentration camps were impressed and surprised by the good condition, cleanliness, and order in the camps; and therefore no suspicion was aroused as to special sufferings of the inmates. But it would be in the worst taste if I contested the fact that a chief of the Intelligence Service, if only on the basis of foreign news of atrocities, should not have felt a responsibility, in the interest of humanity, to clear up any doubts arising in that sphere.

The lack of knowledge seems to be confirmed by the statement of Dr: Meyer of the International Red Cross, since the permission to allow the International Red Cross to visit the Jewish Camp at Theresienstadt and to allow food and medical supplies to be sent in, coming from Kaltenbrunner seems to be proof of the bad conditions in the camps during the last months of the war; nobody, however, would allow neutral or foreign observers to have insight into the camps if it had been known that crimes against humanity were, so to speak, scheduled daily in the camps, as is asserted by the Prosecution.

In no case, therefore, do I come to the conclusion that Kaltenbrunner had full knowledge of the so-called "conditions" in the concentration camps, yet I do conclude that it was his duty to investigate the fate of those who were imprisoned. Kaltenbrunner might have found out then that a considerable number of the inmates were sent to the camps because they were criminals and that a much smaller portion was there because of their political or ideological viewpoints or because of their race but that he would then have found out about those primitive offenses against humanity, about those excesses and all the distress of these people-that I contest, in agreement with Kaltenbrunner.

The way to arrive at the truth was immensely complicated in Germany, and even the Chief of the Reich Security Main Office found nearly insurmountable obstacles in the hierarchy of jurisdiction and authority of other offices and persons. The alleviation of the sad lot of the internees was, after 1943, a problem which could have been solved only through the dissolution of such camps. A Germany of the last 12 years without any concentration camps

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would, however, have been a utopia. On the whole, Kaltenbrunner was but a small cog in this machinery.

Earlier I spoke about the orders for protective custody and of their effect. Dr. Kaltenbrunner has affirmed the necessity for work education camps, owing to-as stated by him during his examination-the conditions then prevailing in the Reich, to the shortcomings of the labor market, and to other reasons. And if I am not mistaken, no convincing proof was submitted of ill-treatment and cruelties in such camps. The reason may well lie in the fact that these camps were in some respects only related to, but not on equal footing with, concentration camps.

With all available means of evidence, Kaltenbrunner has opposed the accusation of having confirmed orders of execution with his signature. The witnesses Hoess and Zutter stated that they saw such orders in isolated cases. The Prosecution, however, does not seem to me to have proved that any such orders were issued without judicial sentence or without reasons justifying death, with the exception of a particularly serious case reported from hearsay by the witness Zutter, adjutant of the camp commandant of Mauthausen. According to him, a teletype signed by Kaltenbrunner is said to have authorized the execution of parachutists in the spring of 1945. An original signature by Kaltenbrunner is entirely lacking. I add that Kaltenbrunner has contested having any knowledge or information about this matter. I think I may safely claim that he did not sign any such orders concerning life and death, because he was not authorized to do so. Dr. Hoettl as a witness stated:

"No, Kaltenbrunner did not issue such orders and could not, in my opinion, give such orders"-for killing Jews-"on his own initiative."

And Wanneck explicitly asserted the following:

"It is known to me that Himmler personally decided over life and death and other punishment of inmates of concentration camps."

Thus the exclusive authority of Himmler in this sad sphere may be considered proved. I am not seriously disposed to deny the guilt of Kaltenbrunner completely on this point. If such orders were carried out against members of foreign powers, for example, based on the so-called "Commando Order" of. Hitler of 18 October 1942, then there arises the question of the responsibility of that person whose signature was affixed to these orders, because misuse of his name by subordinates was possible. It is certain that Kaltenbrunner never exerted the least influence in originating the "Commando Order." It can, however, hardly be doubted that this decree constituted a violation of international law. The development of the

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Second World War into a total war inevitably created an abundance of new stratagems. Insofar as genuine soldiers were employed in their execution, even a motive of bitterness, humanly quite understandable-and I am now speaking about the conduct of the Commando troops concerned in violation of the laws of warfare and other things-could not justify the order. Fortunately but very few people fell victims to this order of Hitler, as the Defendant Jodl has testified.

Perhaps one might ask me whether it is my duty, or whether I am permitted, to reiterate such points of incrimination as I have just done, since this seems to be the task of the Prosecution. To this I reply: If the Defense is so liberal as to admit the negative side of a personality, it surely is apt to be heard more readily when it approaches the Tribunal with the request to appraise the positive side in its full significance. However, is there a positive side at all in the case before us? I believe that I may answer that question in the affirmative. I already pointed out several facts which are connected with the time of the assumption of office by Kaltenbrunner. During his short 2 years of activity this man has made himself a bearer of decidedly fortunate and humane ideas. I wish to remind you of his attitude toward the lynch order of Hitler with respect to enemy aviators who were shot down. The witness, General of the Air Force Koller, described the decent conduct of Kaltenbrunner, which led to a total sabotage of this order. After first describing the contents of Hitler's order and Hitler's threat, pronounced during the situation conference at that time, namely, that any saboteur of this order should himself be shot, Koller goes on to repeat the statements of Kaltenbrunner. Permit me to quote a few sentences of the deposition of Koller. Koller says that Kaltenbrunner said:

"The tasks of the SD are always given a wrong interpretation. Such matters are not the concern of the SD. Moreover, no German soldier will do what the Fuehrer commands. He does not kill prisoners; and if a few fanatic partisans of Herr Bormann try to do so, the German soldier will interfere . . . Furthermore, I myself, too, will do nothing in this matter. . .,'

Koller and Kaltenbrunner, therefore, were fully agreed on that matter. This positive action of Kaltenbrunner, important for the judgment of the actual nature of his personality, does not stand alone. Dr. Hoettl confirmed the fact that, in questions of the future fate of Germany, Kaltenbrunner went, if not beyond, at least up to the borderline of high treason. This witness, for example, confirms that Kaltenbrunner in March 1944 caused Hitler to moderate the plans concerning the Hungarian question and succeeded in preventing the entry of Romanian units into Hungary, that with his

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support also the planned Hungarian National Socialist Government was not set up for a long time.

Dr. Hoettl then says literally:

"Since 1943 I told Kaltenbrunner that Germany must attempt to end the war by a peace at any price. I informed him of my connections with an American authority in Lisbon. I also informed him that I had taken up new contacts with an American authority abroad by way of the Austrian resistance movement. He declared that he was prepared to go to Switzerland with me and there to take up personally negotiations with the American representative, in order to prevent further useless bloodshed."

The depositions of the witness Dr. Neubacher run along the same lines. But over and beyond that, this witness testified to a significant humane deed of Kaltenbrunner. Upon being questioned whether Kaltenbrunner had assisted the witness in moderating, as much as possible, the terror policies in Serbia, Dr. Neubacher answered; and I quote:

"Yes, in this field I owe much to the assistance of Kaltenbrunner. The German Police agencies in Serbia knew from me and from Kaltenbrunner that in his capacity as Chief of the Foreign Intelligence Service he uncompromisingly supported my policies in the southeastern territory. Thereby I succeeded in exerting influence on the police offices. Kaltenbrunner's assistance was of value in my efforts to abolish the then prevailing system of collective responsibility and reprisals with the aid of intelligence officers."

I further mention the relief work of the Geneva Red Cross, which is due to the initiative of Kaltenbrunner. The activity of the defendant with respect to this was portrayed by the witnesses Professor Burckhardt, Dr. Bachmann, and Dr. Meyer. As a consequence many thousands were able to exchange their captivity for liberty.

I should like to draw your attention to a few words stated by the Defendant Seyss-Inquart on two points. He mentioned that Kaltenbrunner advocated the complete autonomy of the Polish state as well as the reintroduction of the independence of both Christian Churches, and I might add that Dr. Hoettl testified that Kaltenbrunner defended his activity very energetically and met with most bitter resistance by Bormann. Kaltenbrunner tried to realize his humane intentions not only in this field. Therefore, it seems to me to be of significance also to point out his efforts to make the Austrian Gauleiter understand that any resistance against the troops of the Western powers would be senseless and that in view

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of this, irresponsible orders for resistance were not to be issued. This was confirmed by the witness Wanneck. The Prosecution held Kaltenbrunner responsible for the evacuation and planned destruction of certain concentration camps. I believe this evidence may not only be considered as inconclusive, but that the contrary has in fact been proved. Upon the question, addressed to Dr. Hoettl, whether Kaltenbrunner had instructed the commandant of the concentration camp Mauthausen to surrender the camp to the advancing troops, Dr. Hoettl answered:

"It is correct that Kaltenbrunner issued such an order. He dictated it in my presence for transmission to the camp commandant."

As a supplement Kaltenbrunner, during his personal examination, declared very logically: If the camp of Mauthausen, filled with criminals, could not be evacuated by his orders, an order to evacuate Dachau would have been devoid of any basis by reason of its- compared with Mauthausen-harmless inmates. According to the testimony of Freiherr Von Eberstein, the destruction of the concentration camp Dachau with its two secondary camps was the goal of the then Gauleiter of Munich, Giesler.

Finally the witness Wanneck confirmed the fact that such an order of Kaltenbrunner had not become known to him; that, however, due to his position with Kaltenbrunner, he would have known if such an order had been issued by the latter or even the issuance of such an order considered. Who actually issued these orders can no longer be established with certainty. The witness Hoess, in his examination, mentioned an order of evacuation by Himmler, as well as one directly by Hitler.

In this connection it seems appropriate to me to refer to Kaltenbrunner's participation in the sad case of Sagan as charged by the Prosecution. With reference to Kaltenbrunner's statement, con firmed by the examination of the witness Wielen, it appears to me to be a proven fact that this matter came to Kaltenbrunner's attention for the first time only several weeks later, after the conclusion of this tragedy.

It also appears doubtful to me whether the so-called Einsatzgruppen, introduced on the basis of Hitler's "Commissar Order" of 1941, were still in existence and functioning after the appointment of Kaltenbrunner. Some facts speak for it, others against it. Kaltenbrunner denied the existence of these groups during his term as Chief of the Reich Security Main Office. I do not want to lose myself in details, but I should like to draw the attention of the Tribunal to these doubts. The same applies, for example, to the so-called "Bullet Decree." Document 1650-PS confirms that it was

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not Kaltenbrunner but Muller, the infamous Chief of Amt IV, who issued the instructions involved, while Document 3844-PS mentions personal signatures of the defendant. It appears to me that the first document deserves preference. May I finally draw your attention to those documents which are of less value as evidence because they are based upon indirect observation. I believe that the Tribunal possesses sufficient experience in evaluating evidence so that I need not argue this any further.

I have thus far openly conceded the negative, so that I may be the more justified in emphasizing the positive in Kaltenbrunner's personality. How far, however, shall I be justified in stating that Kaltenbrunner had actually insufficient knowledge of many War Crimes and Crimes against Humanity which were committed with some kind of participation of Amt IV in the course of the last 2 years of the war? Would such a defense offer the prospect of essentially exculpating the Chief of the Reich Security Main Office?

Dr. Kaltenbrunner admitted during his examination that it was only very late, in some cases as late as 1944 or 1945, that he obtained knowledge of orders, instructions, and directives, despite the fact that they originated much earlier-in some instances several years before he took office. And here I add-and I wish to emphasize this particularly at this point-that these orders, which are contrary to international ethics and humanity, all go back to a time during which Dr. Kaltenbrunner was still in Austria.

I will not at this moment try to prove in detail all these statements of Kaltenbrunner's. The Prosecution is interested exclusively in whether such orders, decrees, directives, and so forth, were also executed during the period of time in which the defendant was in office as Chief of the Reich Security Main Office. It is also often very difficult for a defense counsel to follow a defendant along the secret channels of his knowledge or his ignorance. Perhaps the defense counsel also sometimes lacks the necessary distance for a free and just judgment, in view of the hecatombs of victims spread out across a whole continent, and he is unfair to his client. Thus he leaves the nature of the defendant's character to the later judgment of history, for even the defense counsel is not infallible when it comes to drawing a picture of the soul of his own client.

During his examination before the Tribunal Kaltenbrunner once explained the difficult position he was in when he took over his office on 1 February 1943, and I hope that nobody will misjudge this situation. The Reich was still fighting, and even in 1943 was still dangerous for any adversary colliding with it. But it was already a fight for a goal obviously remote and out of reach. Whoever tries to hold back the spokes of the wheels on a vehicle rolling into an abyss at top speed will perish all too easily. Coupled

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with these conditions, from which there was no way of escaping, there was an uncreative officiousness, caused by nervous insecurity, in all areas of private and public life. Kaltenbrunner said with regard to this situation:

"I beg you to put yourself into my situation. I came to Berlin in the beginning of February 1943. I began my work in May 1943, except for a few complimentary calls. In the fourth year of the war the orders and decrees of the Reich also in the execution sector had piled up by the thousands on the tables and in the filing cabinets of the civil service. It was quite impossible for a human being to read through all that, even in the course of a year. Even if I had felt it to be my duty, I could never possibly have made myself acquainted with all these orders."

In connection with this I remind you respectfully that, according to the evidence given by the witness Dr. Hoettl and others, the Reich Security Main Office in Berlin had 3,000 employees of all categories when Kaltenbrunner was in office and that according to the statement of the same witness Kaltenbrunner never controlled this office completely.

Nobody will be able to deny that the question is justified whether it was not Kaltenbrunner's duty to have himself informed in the shortest possible time at least about the most essential proceedings in all the departments of the Reich Security Main Office and whether he would not then very soon have obtained knowledge of, for example, Himmler's and Eichmann's anti-Jewish operation and many other serious terrorist measures. I may remind you that Kaltenbrunner declared repeatedly and emphatically, in answering my questions before this Tribunal, that he protested regularly every time he heard of such occurrences, addressing himself to Himmler and even to Hitler, but that he had but lithe success, and this only after a long while. The defendant, for example, traces back the cessation of the extermination of Jews, by an order of Hitler in October 1944, to his personal initiative. However difficult it may be to judge whether the power and influence of a single person would have been sufficient to bring about the suspension of a program of the extermination of a race, already in its final phase, I believe I may say without being open to correction that many tens of thousands of Jews owe it to this man that they escaped the hell of Auschwitz and can still see the light of the sun. From the statements of Dr. Bachmann and Dr. Meyer of the International Red Cross it appears that Kaltenbrunner asked the International Red Cross to organize relief shipments to a large Jewish nonpolitical camp at Unskirchen near Wels.

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Wanneck has characterized Kaltenbrunner's attitude toward the question of Himmler's Jewish policy as follows. He says:

"In the daily haste of our joint labors and discussions on foreign policy, we no longer dwelt upon the problem of Jewish policy. At the time Kaltenbrunner came into office ' this question was already so far advanced that Kaltenbrunner could not have had any more influence on it. If Kaltenbrunner expressed himself at all on the subject, it was to the effect that mistakes had been made here that could never be made good."

This witness then finally confirmed the fact that this operation was conducted independently through a direct channel of command from Himmler to Eichmann and said that the position of Eichmann, which already had been a dominating one when Heydrich was still alive, had increased steadily, so that eventually he had acted completely independently in the entire Jewish sphere.

And here I add that, according to the statement of Hoess, the only man left alive who is familiar with this question, it is established that only about 200 or 300 people knew of that dreadful order of Himmler's which was given during a conference which lasted for 10 or 15 minutes, on the basis of which more than four million people were exterminated. And I add that a large nation of 80 million had learned little or probably nothing about these things which happened in the Southeast of the Reich during the war. Professor Burckhardt states that Kaltenbrunner, when discussing the Jewish question, declared:

"It is the greatest nonsense; all the Jews should be released, that is my personal opinion."

But in spite of all this, the fundamental question is raised for the problem of guilt: May a high official and the director of an influential of lice, whose subordinates in a far-reaching hierarchy continually commit crimes against humanity and against the rules of international law, assume such an office at all or remain in such an office, although he condemns these crimes? Or is it. perhaps a different case if this man has the intention of doing all that is humanly possible to break the chain of crimes and thereby finally to become a benefactor of humanity? The last question is generally to be answered in the affirmative. It is to be appraised solely from the standpoint of the highest ethical principles.

My further thought in this connection is the following: He who invokes such a philanthropic intention is free of guilt if from the first day of his taking over such an office he refuses to take any active part in the actual commitment of the crime, and, beyond this, avails himself of every conceivable possibility, even seeks it out, to

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achieve the elimination of evil orders and their execution through his never-ending resistance and every form of human cunning.

The defendant himself has also sensed and clearly recognized all these things. On account of the importance of the question I should like to refer to his interrogation:

"Question: 'I ask you whether there was a possibility that you might have brought about a change after having gradually learned the conditions in the Secret State Police and in the concentration camps, et cetera. If this possibility existed, will you then say that an alleviation, that is, an improvement, was brought about in the conditions in these fields due to your remaining in office?' "

Kaltenbrunner says:

"I repeatedly applied for service at the front. But the most burning question which I had to decide for myself was whether the conditions would be thereby improved, alleviated, or changed. Or was it my duty to do everything possible in this position to change all the conditions that have been so severely criticized here? Since my repeated demands to be sent to the front were refused, all I could do was to make a personal attempt to change a system, the ideological and legal foundations of which I could no longer change, as has been illustrated by all the orders presented here from the period before I was in office; I could only try to moderate these methods in order to help eliminate them for good.

"Question: 'And so, did you consider it consistent with your conscience to remain in spite of this?'

"Answer: 'In view of the possibility of constantly using my influence on Hitler, Himmler, and other people, I could not in my opinion reconcile it with my conscience to give up this position. I considered it my duty to take a personal stand against injustice."'

As you see, the defendant refers to his conscience and you have to decide whether this conscience, taking into consideration duty toward one's own country but also toward the community of mankind, has failed or not. The duty which I have just mentioned, to resist the orders of evil, exists in itself for every human being, regardless of his position. This duty is expressly affirmed by Kaltenbrunner also. He who holds a state office must in the first place be able to prove that he contributed toward abolishing the gigantic injustice which occurred in Europe as soon as he learned of it, if he does not want to become guilty. Has Dr. Kaltenbrunner presented sufficient proofs? The answer to this question I leave to your judgment. But one thing I should like to express as my opinion: This man was no conspirator; rather was he exclusively a

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person acting under orders and under compulsion. Himmler's order was, despite all previous agreement, for him to take over the Reich Security Main Office. Is it right that an order should change the fundamental aspect of the problem? This question is of the highest importance. According to the Charter of this Tribunal one cannot plead higher orders for the purposes of avoiding punishment. The reasons given for this by the American chief prosecutor proceeded from the presumed knowledge of the crimes or their background in the minds of the higher leaders which, therefore, precluded them from pleading the existence of orders. Like a red thread the fact runs through this Trial that hardly one high official, in whatever position of public life he may have been, was put into of lice without the order of the highest representative of official authority; for in the last 3 years of the war the already clearly discernible inevitable destiny of the Reich meant for the holder of a high office the renunciation of that part of life which many people say makes life worth living. For the duration of the war, orders tied the of lice holder to his position. Also there is no doubt that he who refused to obey an order, especially in the last years of the war, risked his own death, and possibly the extinction of his family.

From whatever side we approach the problem of orders in Germany after 1933, the invocation of the above-mentioned state of duress ought not to be denied to a defendant, because that principle of duress which exists in the German criminal code, as no doubt it does in the criminal codes of all civilized nations, is based on that freedom of the individual being which is necessary for the affirmation of any guilt.

If the perpetrator is no longer free to act, because another person deprives him of this liberty through direct immediate danger to his life, then, on principle, he is not guilty. I do not want at this instant to examine whether in the German world of reality of the last years such a direct immediate danger for one's own life always existed; but an encroachment upon the freedom of the man receiving orders did exist to a smaller or larger extent without any doubt. It seems certain to me that Himmler would have interpreted a refusal of Kaltenbrunner to take over the direction of the Reich Security Main Office as sabotage and would, as a necessary conclusion, have eliminated him.

Hitler, according to the revelations at this Trial, was one of the greatest lawbreakers that world history has ever known. Many even admit it to be a duty to kill such a monster, so as to guarantee to millions of human beings the right of freedom and life. At this Trial the most varied points of view with regard to the "Putsch," especially the killing of the tyrant, have been proffered by witnesses and defendants. I cannot recognize the duty, but the right is certainly not contestable. If the oppression of human freedom

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occurs by means of a clearly unjust order based on misanthropy, the scales in the now ensuing conflict between obedience and freedom of conscience will be weighted on the side of the latter. Even the so-called oath of allegiance could not justify a different point of view because, as everybody feels, the obligation to allegiance presupposes duties of both partners, so that he who treads under foot the obligation to respect human conscience in the person of his subordinates loses at the same moment the right to expect obedience. The tortured conscience is freed and breaks the ties which the oath had created. Perhaps some people will not agree with my point of view on this problem and will point out the necessity of orderliness in the community, and the salutary effects of obedience in the very interest of this orderly state, or they will point to the wisdom of those in command and at the impossibility of understanding and evaluating all such orders as well as the person in command does; they will point to patriotism and other aspects. And though all that may be correct, there yet remains an absolute obligation to resist an order the purport of which, clearly recognizable to a subordinate, amounts to the materialization of evil and obviously violates the healthy sentiments which aim at humanity and peace among people and individuals. The phrase "in a life-and-death struggle of a nation there can be no legality" is an untrue thesis not thought out to the end, no matter who expresses it. Even immediate danger to the life of the person receiving the order could not induce me to change my conviction. Dr. Kaltenbrunner would not deny that he who stands at the head of an office of great importance to the community is obliged to sacrifice his life under the above-mentioned conditions.

Whereas even direct and imminent danger to his own life and that of his family cannot excuse him, it does diminish his guilt, and Kaltenbrunner only means to point to this moral and legal evaluation of his position. Thus he emphasizes a fact, historically proven, which was one of the deeper reasons for the collapse of the Reich; for no living man can bring to a community liberty, peace, and welfare, who himself bears his chains reluctantly and has lost that freedom which is the decisive characteristic of all human beings.

I believe Kaltenbrunner would like to be reborn, and I know that he would fight for that freedom with his life's blood. Kaltenbrunner is guilty; but he is less guilty than he appears in the eyes of the Prosecution. As the last representative of an ominous power of the darkest and most anguish-laden period of the Reich's history he will await your judgment, and yet he was a man whom one could not meet without a feeling of tragedy.

THE PRESIDENT: The Tribunal will adjourn now.

[A recess was taken.

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THE PRESIDENT: Yes, Dr. Thomas.

DR.ALFRED THOMA (Counsel for the Defendant Rosenberg): May it please the Tribunal, Mr. President, the documentary film which was shown in this room and which was to illustrate the "Rise and Fall of National Socialism," begins with a speech delivered by Rosenberg concerning the development of the Party up to the assumption of power. He also describes the Munich insurrection and says that on the morning of 9 November 1923 he saw police cars with machine-guns assembling in the Ludwigstrasse in Munich and he knew what the march to the Feldherrnhalle implied. Nevertheless he marched in the first lines. Today also, my client takes the some position in face of the Indictment formulated by the prosecutors of the United Nations. He does not want to be pictured as though nobody paid any attention to his books, his speeches, and his publications. Even today he does not want to appear as a person other than what he was once before, a fighter for Germany's strong position in the world, namely, a German Reich in which national freedom should be linked to social justice.

Rosenberg is a German, born in the Baltic provinces, who learned to speak Russian as a young boy, passed his examination in Moscow after the Technical College in Riga moved to Moscow during the first World War, took an interest in Russian literature and art, had Russian friends, and was puzzled by the fact that the Russian nation, defined by Dostoievsky as "the nation with God in its heart," was overcome by the spirit of materialistic Marxism. He considered it inconceivable and unjust that the right of self-determination had indeed often been promised but never voluntarily granted to many nations of Eastern Europe which had been conquered by Czarism even in the nineteenth century.

Rosenberg became convinced that the Bolshevik revolution was not directed against certain temporary political phenomena only but against the whole national tradition, against the religious faith, against the old rural foundations of the Eastern European nations, and generally against the idea of personal property. At the end of 1918 he came to Germany and saw the danger of a Bolshevistic revolution in Germany too; he saw the whole spiritual and material civilization of the Occident endangered and believed to have found his 1ife\vork in the struggle against this danger as a follower of Hitler.

It was a political struggle against fanatical and well-organized opponents who had at their disposal international resources and international backing and who acted according to the principle: "Strike the Fascists wherever you can." But as little as one can deduce from that slogan that the Soviets entertained intentions of military aggression against Fascist Italy, just as little can one say

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that the struggle of the National Socialists against Bolshevism meant a preparation for a war of aggression against the U.S.S.R.

To the Defendant Rosenberg a military conflict with the Soviet Union, especially a war of aggression against the latter, seemed as likely or as unlikely as to any German or foreign politician who had read the book Mein Kampf. It is not correct to maintain that he was initiated in any way into plans of aggression against the Soviet Union; on the contrary, he publicly advocated proper relations with Moscow (Document Rosenberg-7b, Page 147). Rosenberg never spoke in favor of military intervention against the Soviet Union. However, he did fear the entry of the Red Army into the border states and then into Germany.

When, in August 1939, Rosenberg learned about the conclusion of the Non-Aggression Pact between the Reich and the Soviet Union-he was as little informed about the preliminary discussions as he was about the other foreign political measures taken by the Fuehrer-he might have gone to see the Fuehrer and protested against it. He did not do it, and he did not object to it with a single word, which the witness Goering confirmed as being a statement of Hitler's.

In the witness box Rosenberg himself described (session of 16 April 1946) how he was then suddenly called to Hitler, at the beginning of April 1941, who told him that he considered a military clash with the Soviet Union inevitable. Hitler offered two reasons for it: .

(1) The military occupation of Romanian territory, namely, Bessarabia and North Bubovina.

(2) The tremendous increase of the Red Army, along the line of demarcation and on Soviet Russian territory in general, which had been going on for a long time.

These facts were so striking, he said, that he had already issued the appropriate military and other orders, and he said that he would appoint Rosenberg in some form as a political adviser. As he further stated in the witness box, he thus found himself confronted with an accomplished fact, and the very attempt to discuss it was cut short by the Fuehrer with the remark that the orders had been issued and that hardly anything could be changed in this matter. Thereupon Rosenberg called some of his closest collaborators together, because he did not know whether the military events would take place very soon or later on; and he made, or had made, some plans concerning the treatment of political problems. On 20 April 1941 Rosenberg received from Hitler a preliminary order to establish a central office to deal with questions concerning the East and to contact the competent highest Reich authorities with respect to these matters (Document Number 865-PS, USA-143).

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If this statement made by Rosenberg is not in itself sufficient to refute the assertion made by the Prosecution, according to which Rosenberg is "personally responsible for the planning and execution of the war of aggression against Russia" (Brudno, in the session of 9 January 1946) and was aware of the "aggressive predatory character of the imminent war" (Rudenko, in the session of 17 April 1946)-if, above all, it is not accepted that Rosenberg was convinced of an imminent aggressive war to be waged by the Soviet Union against Germany, then I would like to bring up four more points in order to prove the correctness of the statements made by the defendant.

(1) Rosenberg was not called to the well-known conference at the Reich Chancellery on 5 November 1937 ("Hossbach Document," Document Number 386-PS, USA-25), when Hitler disclosed for the first time his intentions of waging war. This was at the time when Rosenberg still had political influence, or at least seemed to have it. If ever, he should have played the part of the intimate political "inspirator" then.

(2) Lammers, as a witness, stated before this Tribunal that Hitler made all important decisions quite alone; thus also the decision concerning war against Russia.

(3) To my question about Rosenberg's influence on Hitler's decisions concerning foreign policy, Goering replied before this Tribunal on 16 March 1946:

"I think that after the accession to power, the Fuehrer did not consult the Party Of lice of Foreign Affairs a single time about questions concerning foreign policy and that it was created only as a center for dealing with certain questions concerning foreign policy which came up within the Party. As far as I know, Rosenberg was certainly not consulted about political decisions after the accession to power."

This was also confirmed by the witness Von Neurath on 26 June 1946 in this courtroom.

(4) Finally I would further like to refer to the "brief report concerning the activity of the Office of Foreign Affairs of the NSDAP" (Document Number 003-PS, USA-603). Brief mention is made in it of the "Near East" in such a harmless manner that no word need be said about it. In the confidential reports 004-PS and 007-PS nothing is said either about any preparations against the Soviet Union.

Administration in the East.

It would be an easy, too superficial, and therefore, unjust procedure if one were to say that firstly the Eastern Territories were occupied in a war of aggression, and therefore anything the German administration did there was criminal; and secondly, that as Reich

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Minister for the Occupied Eastern Territories, Rosenberg was the responsible minister, and therefore he must be punished for all crimes which have occurred there, at least for what happened within the scope of the jurisdiction and authority of the administrative bodies. I will have to demonstrate that this conception is not correct for legal and factual reasons.

Rosenberg was the organizer and the highest authority of the administration in the East. On 17 July 1941 he was appointed Reich Minister for the Occupied Eastern Territories. Acting on instructions, he had performed preparatory work before that time on questions concerning Eastern Europe by contacting the Reich agencies concerned (Document Number 1039-PS; US-146). He planned and set up his office for dealing centrally with questions concerning Eastern Europe (Document Number 1024-PS; US-278). He had provisional instructions for the Reich Commissioners drawn up (Document Number 1030-PS; US-144); he delivered the programmatical speech of 20 June 1941 (Document Number 1068-PS; US-143); above all, he took part in the Fuehrer conference of 16 July 1941 (Document Number L-221; US-317).

In the presence of Rosenberg, Lammers, Keitel, and Bormann, Hitler said at that time that the real aims of the war against Russia should not be made known to the whole world, that those present should understand clearly that "we will never withdraw from the new Eastern Territories; whatever opposition appears will be exterminated; never again must a military power develop west of the Urals; nobody but a German shall ever bear a weapon." Hitler proclaimed the subjection and the exploitation of the Eastern Territories, and in making these statements he placed himself in opposition to what Rosenberg had told him before-without being contradicted by Hitler-concerning his own plans for the East.

Thus Hitler probably had a program of enslavement and exploitation. Nothing is so natural, and nothing easier than to say: Even before Rosenberg took over his ministry he knew Hitler's aims for the East; namely, to rule it, to administer it, to exploit it. Therefore he is not only an accomplice in a crime of conspiracy against peace; he is also jointly responsible for the Crimes against Humanity perpetrated in the Eastern Territories, since Rosenberg held the complete power, the highest authority in the East.

I shall deal later, de jure and de facto, with the question of Rosenberg's automatic responsibility in his capacity as supreme chief of the Eastern Territories. First I would like to consider the question of his individual responsibility. One might deduce it from two reasons:

First, because he allegedly participated in the preparation of the war of aggression against the Soviet Union; I have already

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stated that this assertion is not correct; Rosenberg has neither ideologically nor actually participated in the preparations of the war of aggression.

Secondly, because he supported Hitler's plan of conquest by making plans, delivering speeches, and organizing the administration. When a minister or general, following the instructions of the head of the State, elaborates plans or takes preparatory measures of an organizational nature, for later eventualities, this activity cannot be considered as criminal even when the interests of other countries are affected thereby and even when the plans, preparations, and measures are intended for war. Only when the minister or general in question directs his activity toward things which have to be considered as criminal according to sound common sense and an international sense of decency and justice can he be held individually responsible. Rosenberg has consistently proved by word and deed that the traditional conceptions of right are his conceptions also and that he desired to enforce them. But his position was particularly difficult since his supreme chief finally exceeded all limits in his ideas, aims, and intentions and since other strong forces like Bormann, Himmler, and Gauleiter Erich Koch were also involved, who frustrated and sabotaged Rosenberg's good and fair intentions.

Thus we witness the strange spectacle of a minister in office who partly cannot understand or approve, partly is totally unaware of the intentions of the head of the State; and on the other hand that of the head of a state who appoints a minister to take office, who is certainly an old and loyal political fellow combatant, but with whom he has no longer any spiritual contact whatsoever. It would be wrong to judge such a situation simply according to democratic conceptions of the responsibility of a minister. Rosenberg could not simply resign, yet he felt inwardly the duty of fighting for the point of view which appeared to him right and decent.

In his speech of 20 June 1941 Rosenberg said that it was the duty of the Germans to consider that Germany should not have to fight every 25 years for her existence in the East. He by no means, however, desired the extermination of the Slave, but the advancement of all the nations of Eastern Europe and the advancement, not the annihilation, of their national independence. He demanded (Document Number 1058-PS; Exhibit USA-147) "friendly sentiments" toward the Ukrainians, a guarantee of "national and cultural existence" for the Caucasians; he emphasized that, even with a war on, we were "not enemies of the Russian people, whose great achievements we fully recognize." He advocated "the right of self-determination of people"-one of the first points of the whole Soviet revolution. This was his idea, tenaciously defended till the end. The

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speech in question also contains the passage which the Prosecution holds against him in particular, that the feeding of the German people during these years will be placed at the top of German demands in the East and that the southern territories and the North Caucasus would have to make up the balance in feeding the German people. Then, Rosenberg continues literally:

"We do not see at all why we should be compelled to feed the Russian people also from these regions of surplus. We know that this is a bitter necessity which lies beyond any sentiment. Without a doubt extensive evacuation will be necessary, and there are very hard years ahead for the Russians. To what extent industries are to be kept up there is a question reserved for future decision."

This passage comes quite suddenly and all by itself in the long speech. One feels distinctly that it has been squeezed in; it is not Rosenberg's voice; Rosenberg does not proclaim here a program of his own but only states facts which lie beyond his will. In the directives of the eastern ministry (Document Number 1056-PS) the feeding of the population, as well as supplying it with medical necessities, is described as being especially urgent.

On the contrary, the true Rosenberg emerges in the conference of 16 July 1941 when, regarding Hitler's plans, he called attention to the University of Kiev and to the independence and cultural advancement of the Ukraine and when he took a stand against the intended full power of the Police and above all against the appointment of Gauleiter Erich Koch in the Ukraine (Document Number L-221).

One will contend: What is the use of opposition and protests, what is the use of secret reservations and of feigned agreement with Hitler's intentions-Rosenberg did co-operate all the same. Therefore he is responsible too. Later on I will outline in detail how and to what extent Rosenberg took part in the policy in the East, what things he did not do and how he opposed them, what he planned and desired himself in order to defend himself against the

grave charge of being responsible for the alleged exploitation and enslavement of the East. Here I would only like to point out the following: It was in no way a hopeless task to begin by accepting even Hitler's most passionate statements without contradiction in the hope and with the intention of nevertheless attaining a different result later on. In opposition to Hitler's statement: "No other than a German may ever bear weapons in the East," it was not long, for example, before, on Rosenberg's recommendation, legions of volunteers were formed from the peoples of the East; and in opposition to Hitler's wish, an edict of tolerance was issued at the end of 1941 for the churches of the East (Document Number 1517-PS).

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If, at first, Rosenberg could achieve nothing for the autonomy of the eastern nations, he still adhered to his plans for the future in this respect too. First he took care of the urgent agrarian question. An agrarian program was drawn up, which it was possible to present to the Fuehrer on 15 February 1942, and which was authorized by him in unchanged form. It was not an instrument of exploitation, but an act of liberal formation of the agrarian constitution in the midst of the most terrible of wars. Right in the middle of the wet the eastern countries not only received a new agrarian constitution but also agricultural machinery. The witness Professor Dencker, in his affidavit, has borne witness to the following deliveries to the occupied Soviet territories, including the former border states:

Tractors, 40-50 HPabout 7,000

Threshing machinesabout 5,000

Agricultural implementsabout 200,000

Gas generators for German

and Russian tractorsabout 24,000

Harvestersabout 35,000

Total Cost: about 180,000,000 marks.

I do not think one can say that these deliveries were made with a view to exploitation. So in this, too, Rosenberg accomplished a piece of constructive work that was really a blessing. In the following I will first treat the question of Rosenberg's automatic responsibility as minister for the Eastern Territories; that is, the question of his criminal liability on the grounds of his official position.

On 17 July 1941, Rosenberg was appointed Reich Minister for the Occupied Eastern Territories. Two Reich Commissariats were set up as supreme territorial authorities: "Ostland" (Esthonia, Latvia, Lithuania, and White Ruthenia) under Reich Commissioner Lohse, and "Ukraine" under Reich Commissioner Koch. The Reich Commissariats were divided into general districts and regions. Right from the beginning the eastern ministry was not conceived as an administrative authority built on a large scale but as a central office, a supreme authority which was to confine itself to over-all instructions and fundamental directives and in addition was to insure the supply of material and personnel. The actual governing was the duty of the Reich Commissioner; he was the sovereign in his territory.

Moreover, it is of special importance that Rosenberg, as minister for the East, was not at the head of the whole eastern administration, but that several supreme authorities existed at the same time. Goering, as Delegate for the Four Year Plan, was responsible for the

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control of the economy in all occupied territories and in this respect had authority over the minister for the East, for Rosenberg could only issue economic decrees with Goering's agreement. The Chief of the German Police, Himmler, was solely and exclusively competent for police security in the Occupied Eastern Territories; there was no police division at all in the ministry for the East, nor in the Reich Commissariats. Rosenberg's competence was furthermore undermined by Himmler as Reich Commissioner for the Preservation of German Nationality and by Speer, on behalf of whom a Fuehrer decree detached all technical matters from the eastern administration. It was further weakened by Goebbels who claimed for himself the control of propaganda in the Occupied Eastern Territories as well. Later on I shall come to the important question of labor mobilization, which was put under the authority of Sauckel. Nevertheless, Rosenberg was the minister responsible for the Occupied Eastern Territories. In view of this, the following must be emphasized:

In this Trial Rosenberg is not made responsible from the political standpoint, since the High Tribunal is no parliament; neither is he made responsible from the point of view of constitutional law, for the High tribunal is not a supreme court of judicature. The liability of the defendant with respect to civil law is not in question either, but only his criminal liability, his responsibility for his own alleged crimes and for the crimes of others. I do not need to outline in more detail the fact that in order to establish criminal liability and to condemn it, it must be proved that the defendant illegally committed acts punishable by law and that he may only be punished for failure to act, that is, for an omission, if he had the legal duty to act and if it was due to his inactivity that the crime occurred, always assuming that the actual possibility existed of his preventing the crime.

The fact seems to me of decisive importance that Rosenberg although Minister for the Occupied Eastern Territories, was not a supreme ruler. Supreme rulers were the Reich Commissioners of the gigantic territories "Ostland" and "Ukraine." The lines along which these territories were to be constitutionally remodeled were not yet visible, but one thing was certain: The Reich Commissioner was the highest authority. For instance, it was he who, on the most important measures-like shooting of inhabitants of a region for acts of sabotage-had the right to make the ultimate decision. I should like to insert that in practice in these cases the Police had exclusive competence. The Reich, that is, other authorities, had the right to fundamental legislation and over-all supervision. By a slight change in the well-known remark of Benjamin Constant, the French professor of constitutional law, "Le rot regne, mats it ne

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souverne pas," one may define in the following way Rosenberg's position as Minister for the Occupied Eastern Territories: "Le ministre gouverne, mais it ne règne pas." As in certain dominions of the British Empire, there existed a sovereignty of the Reich Commissioner with a central over-all supervision by the minister for the East. Today nobody would think of summoning the competent British minister before a tribunal because a governor in India had allowed a native village to be bombed and burned down.

And so I come to my conclusion that in Rosenberg's case there exists no automatic criminal responsibility for the nonprevention of crimes in the East, if only because, although he had authority of supervision, he was not sovereign; the two Reich Commissioners had the supreme authority.

The question must furthermore be asked and briefly examined whether the defendant is individually guilty of the criminal exploitation and enslavement of the nations of the East and perhaps of further crimes. What was his attitude, what were the general lines and general trends of his policy, what did he do positively, and what did he prevent or at least try to prevent?

In the Baltic countries, national administrations or directorates were installed under German supervision. The German administration was compelled by the Reich Minister for the Occupied Eastern Territories to show great understanding for all desires which could be fulfilled and strive for good relations with the Baltic countries; the Baltic countries had a free legal, educational, and cultural system and were only limited with respect to questions concerning politics, economy, and the police. After the war of 1914-18 agrarian reform in the Baltic states was carried out almost exclusively at the expense of the 700-year-old German holdings. Nevertheless Rosenberg, as minister for the East, made a law returning to private ownership the farms which had been made collective by the Soviet Union since 1940 and, by this restitution of soil which had originally been taken away from German proprietors, showed the greatest possible good will of the German Reich. This, as well as the already-mentioned agrarian program, has been expressly confirmed by the witness Riecke.

In the General District of White Ruthenia independent administration was initiated under Reich Commissioner Kube. The White Ruthenia Central Committee was founded, as well as a White Ruthenian relief system and a White Ruthenian youth organization. When a White Ruthenian youth delegation returned from a visit to Germany, Kube said that he would continue to act as a father to White Ruthenian youth; the following night he was murdered, yet this policy was not changed.

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I should like to observe here in passing that the actual Russian territories between Narva and Leningrad and around Smolensk remained all the time under military administration; likewise the districts around Kharkov and the Crimea.

As far as the Ukraine is concerned, Rosenberg intended to give it extensive central self-administrative sovereignty, as soon as possible, similar to the directorates in the Baltic states and combined with a pronounced advancement of the cultural and educational needs of the people. After Rosenberg had originally considered himself entitled to assume that Hitler agreed with this idea, another conception later came to prevail, namely, that all forces should be directed toward the war economy. Rosenberg managed to achieve and carry through one thing only: The new agrarian program of 15 February 1942, which provided for a transition from the collective economy of the Soviet Union to private enterprise and then to ownership by the farmers. On 23 June 1943 the property decree was issued as a complement to this. At first it was not possible to carry this out because of Reich Commissioner Koch's opposition, and then military events brought everything to an end. A further fundamental decree was based on a general adjustment of the school system, which Rosenberg had ordered to be worked out because the Reich Commissioner of the Ukraine declined to do it himself. Rosenberg provided for elementary schools and higher technical schools; the Reich Commissioner protested against this. On account of the conflict, which became more and more acute, between Rosenberg and Reich Commissioner Koch, Hitler in June 1943 issued the following written instruction: The Reich Commissioner had no right to make any obstructions, but the Reich Minister for the Occupied Eastern Territories should confine himself to essential questions, and when issuing any orders should make it possible for the Reich Commissioner of the Ukraine to express his opinion beforehand, which practically meant Koch's co-operation beside Rosenberg.

During his examination of 8 April 1946 the witness Lammers described Rosenberg's peculiar constitutional position as Reich Minister for the Occupied Eastern Territories and his political position, which became constantly weaker. I would like to emphasize the following striking and especially important declarations made by the witness: The authority of the Reich Minister for the Occupied Eastern Territories was detracted from by the Armed Forces, by Goering as the Delegate for the Four Year Plan, by Himmler as Chief of the German Police, by Himmler as Reich Commissioner for the Preservation of Germandom (resettlement measures), by Sauckel as Plenipotentiary General for the Allocation of Labor, by Speer in the field of armaments and engineering, and finally, through differences of opinion, by Propaganda Minister Goebbels.

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Furthermore, Rosenberg was limited by the fact that two Reich Commissioners, Lohse and Koch, were appointed for the Occupied Eastern Territories. The Higher SS and Police Leader was "personally and directly" subordinated to the Reich Commissioner; but, as Lammers has declared, in technical respects he could not take any orders from Rosenberg or from the Reich Commissioner but only from Himmler.

Lammers said furthermore: Rosenberg always wished to pursue a moderate policy in the East; he was without any doubt against a policy of extermination and against a policy of deportation, which were widely advocated in other quarters. He made efforts to rebuild agriculture through the agrarian program, to put the educational system, church affairs, the universities and schools in order. Rosenberg had great difficulty in asserting himself, for especially the Reich Commissioner for the Ukraine simply did not follow Rosenberg's orders. Rosenberg favored instituting a certain degree of independence in the eastern nations; he particularly had at heart the cultural interests of the latter. The differences of opinion between Koch and Rosenberg, says Lammers, could have filled volumes of files. Hitler called Rosenberg and Koch to him and decided that they should meet each month in order to consult each other.

The witness Lammers said, quite rightly, that of Rosenberg as the superior minister it was asking too much to have to come to an agreement in each case with his subordinate, the Reich Commissioner. Subsequently it was shown that in spite of the meetings they came to no agreement, and finally it was Herr Koch who was right in the eyes of the Fuehrer. As Lammers says it was about the end of 1943 that Rosenberg was received for the last time by the Fuehrer, and even before that time he had always had great difficulties in reaching the Fuehrer. There had been no more Reich Cabinet sessions since 1937.

Hitler's ideas tended more and more in the direction of Bormann-Himmler. The East became the ground for experiments.

To this group-as it is quite clear today, for the first time-it seemed hopeless to look for understanding on the part of Rosenberg as to the development of the Reich as they wished it. Rosenberg had no idea of the extent of the fight waged against him. His quarrel with Reich Commissioner Koch, the exponent of Himmler and Bormann, is proof of this ignorance; but it is also complete proof of Rosenberg's integrity.

On 14 December 1942 Rosenberg issued a set of instructions to the Reich Commissioner of the Ukraine (Document Number 19-PS); his other instructions have unfortunately not been found. In this, Rosenberg requested the administrative chiefs to preserve decent attitudes and views; he demanded justice and human understanding

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for the population, which had always seen in Germany the supporter of legal order (Document Number 194-PS); the war had brought terrible hardships, but every offense should be fairly examined and judged, and should not be punished to excess. It is also inadmissible that German authorities meet the population with expressions of contempt. One can only show one is the master through correct manner and actions, not by ostentatious behavior; our own attitude must bring others to respect the Germans; those administrative chiefs who have shown themselves unworthy of their tasks, who have misused the authority they were given, and who by their obnoxious behavior have shown themselves to be unworthy of our uniform, must be treated accordingly and summoned before a court or removed to Germany.

The echo which such decrees called forth in Koch is shown in his memorandum of 16 March 1943 (Document Number 192-PS). Koch writes that "it is a strange thought that not only must a correct attitude be displayed toward the Ukrainians, but that we must even be amiable to them and always ready to help." Furthermore Rosenberg demanded esteem for the highly developed consciousness of the Ukrainian people and, according to Rosenberg, a high degree of cultural self-administration was desirable for the Ukraine; nations as big as the Ukraine could not be kept in permanent dependence, arid the eastern campaign was a political campaign and not an economic raid. Here Koch, addressing Rosenberg, refers in a cynical manner to the climax reached in the relations of his organization with Ukrainian emigration. There are other decrees of Rosenberg's which are criticized by Koch. One of these is the decree of 18 June 1942 concerning the acquisition by Rosenberg of Ukrainian schoolbooks for a total of 2.3 million Reichsmark to be charged to the budget of the Reich Commissariat without his previously even getting in touch with Koch. One million primers, one million spelling charts, 200,000 schoolbooks, 300,000 language books, and 200,000 arithmetic books were to be provided at a time when there was hardly even the most necessary paper for German school children. Koch goes on to say: "It is not necessary to point out repeatedly in the decrees issued by your ministry and in telephone communications that no coercion may be used in recruiting laborers and that the eastern ministry even demands to be informed of every instance in which compulsion has been used."

In a subsequent decree Koch says he is blamed for having caused the closing of vocational schools; and he also says that Rosenberg ordered the General Commissioners to adopt a different school policy, thereby overstepping his authority as Reich Commissioner.

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Koch then concludes with a veiled threat that to him, as a veteran Gauleiter, the way to the Fuehrer could not be barred. So much challenging criticism of Rosenberg, so much unintentional praise, and so much proof of the absolute decency of his behavior and the far-sighted and statesmanlike direction of his office as chief of the eastern administration!

One last document in the fight of Rosenberg against Koch is the report regarding Reich Commissioner Koch and the timber region of Zuman of 2 April 1943 (Document Number 032-PS), regarding which Rosenberg gave exhaustive information as a witness. In this very matter Rosenberg displayed his conscientiousness particularly clearly.

And now we have again to unroll another scene before our eyes, because the Prosecution attached specific importance to it: In July 1942, Bormann wrote a letter to Rosenberg; Rosenberg replied, and a third party, Dr. Markull, an associate of Rosenberg in his ministry, wrote a commentary regarding it. According to Dr. Markull's representation the contents of Bormann's letter, the original of which is not extant, was the following: the Slavs should work for us; if of no use to us, they ought to die; health provisions were superfluous; the fertility of the Slavs was undesirable, their education dangerous; it would do if they could count up to one hundred. Every educated person is a potential enemy. We could leave them their religion as an outlet. As sustenance they should receive only the barest necessities; we are the masters and we come first.

To that letter by the closest collaborator of Hitler there could be only one reply by Rosenberg: feigned consent and feigned compliance.

In the inner circle of the eastern ministry there arose considerable apprehensions regarding this significant change in the attitude of its chief, apprehensions which were expressed in Dr. Markull's memorandum of 5 September 1942. Rosenberg as a witness has stated that there cannot exist any doubt, when that document is read impartially, that he agreed only for the sake of pacifying Hitler and Bormann. Rosenberg wanted to insure himself against an attack from the Fuehrer's headquarters, which he anticipated with certainty because he allegedly did more for the eastern population than for the German people, because he required more physicians than there were available for sick Germans, et cetera.

The Markull memorandum is the truest possible bona fide reflection of Rosenberg's personality and influence, since it shows the anxious subordinate trying to conjure up the spirit of his minister as he had come to know and to love him in his work, and to dispel an alien phantom who seemed to have taken his place. It is stated there that such a train of thought conformed with the policy of Reich Commissioner Koch, but not with the decrees of the Reich

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Minister and the conception of at least 80 percent of the District Commissioners and specialists who were counting on their minister and who considered that the eastern population should be treated decently and with understanding, for it evinced a surprisingly high capacity for culture, its efficiency in work was good, and we were about to waste a precious stock of gratitude, love, and confidence. The controversy between the minister and the Reich Commissioner was well known among the high authorities of the Reich, and it was no secret that the ministry was unable to carry out its policies in opposition to the Reich Commissioners, who considered the eastern ministry as entirely superfluous; the writings of Bormann would disavow the entire policy of the eastern minister up to now, and one was given the impression that Koch had been backed by Hitler in his opposition to the minister. Since its foundation the ministry had had to register an ever-increasing loss of power. The Higher SS and Police Leaders refused to render to the General Commissioners the normal honors such as reports, et cetera. One jurisdiction of the eastern minister after another was being taken away by other highest Reich offices; in the offices in Berlin it was openly said that the remodeling of the ministry into a mere operations staff was to be expected. On the other hand, the Reich Ministry for the Occupied Eastern Territories, due to the personality of its leader, enjoyed the exceptional esteem of the public.

Dr. Markull implores the minister to stand by his original ideas, saying that the unfortunate master complex should be as much avoided as the opinion that the intelligentsia were alien to the masses. The influence of spiritual forces should be taken into consideration. Germany should prove a "righteous judge," acknowledging the national and cultural rights of nations. Such had been the ideas of the minister before, and such they should remain.

Rosenberg's attitude did not in fact change, since at that very time he was working on the great School Program (Schulverordnung). Later on he effected the reopening primarily of the medical faculties in colleges. And then came the conflict with the Fuehrer in May 1943.

On 12 October 1944 Rosenberg tendered his resignation through Lammers to the Fuehrer (Document Number Ro-14), because German eastern policy in general and the political psychological treatment of eastern nations in particular, were still contrary to the point of view which he had had from the very beginning, namely, his plan of autonomy for the eastern nations and the cultural development of their capacities as part of an all-European conception of a family of nations on the continent. He now inwardly broke down at seeing a great statesmanlike program destroyed. All he could do in regard to the policy of enslavement and looting which was going on in his

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country was merely to accept memoranda from his colleagues in the ministry, or at best indulge in a futile paper war with people like Koch. He had not been strong enough against the plans which benighted forces wanted to carry out in the East; and he was powerless against their influence, being in addition totally unaware at that time of all the police and military orders which were presented here to the Tribunal.

When Rosenberg once reminded Hitler of the creation of a university in Kiev, Hitler apparently agreed; after Rosenberg had left and he was alone with Goering, Hitler said, "This fellow has too many worries. We have more important matters on our minds than universities in Kiev." No episode can illustrate better than all the documents the one theme: Rosenberg and the reality in the East, and the other theme: Rosenberg as the alleged inspirer of Hitler.

As Rosenberg did not receive any reply to his request for resignation, he tried many times to talk to Hitler personally. It was all in vain.

On 11 December 1945 Mr. Dodd said:

"The system of hatred, barbarism, and denial of personal rights which the conspirators had elevated to the national philosophy of Germany followed the National Socialist masters when they overran Europe. Foreign workers became the slaves of the master race, being deported and enslaved in millions."

And on 8 February 1946 General Rudenko said:

"In the long line of ruthless crimes committed by the German-Fascist troops of occupation, the forcible deportation of peaceful citizens into slavery and bondage in Germany takes a particularly important place."

He said that Goering, Keitel, Rosenberg, and Sauckel were particularly responsible for the inhuman and barbaric instructions, directives and orders of the Hitler Government, whose purpose was the carrying out of the deportation of Soviet people into German slavery.

I have already spoken of the formal and individual responsibility of Rosenberg as Reich Minister for the Occupied Eastern Territories. I have already explained, too, that in the field of labor employment it was not Rosenberg but Sauckel who, as Plenipotentiary General for the Allocation of Labor, was the highest authority and the responsible person, by virtue of the Fuehrer's decree of 21 March 1942 (Document Number 580-PS). Thus Sauckel in this field was Rosenberg's superior.

He wrote to Rosenberg on 3 October 1942 (Document Number 017-PS):

"The Fuehrer has drawn up new and most urgent armament programs which require the speediest employment of two

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million additional foreign workers. For the execution of his decree of 21 March 1942 the Fuehrer has given me more authority for my further tasks, particularly empowering me to use my own judgment in taking all measures in the Reich and in the Occupied Eastern Territories in order to insure the organized employment of labor for the German armament industry under all circumstances."

In his Program for the Allocation of Labor of 24 April 1942 (Document Number 016-PS), he emphasized that the state and local labor offices are in charge of all technical and administrative matters in connection with labor employment which come under the exclusive competence and responsibility of the Plenipotentiary General for the Allocation of Labor. The defense of Sauckel is not my task. But may I point out that he also did not take over his great and difficult task with a feeling of hatred and intentions of enslavement. In his Program for the Allocation of Labor just mentioned he says, for instance:

"Everything has to be avoided which, beyond the shortages and hardships caused by war conditions, would aggravate and even cause unnecessary suffering to foreign male and female workers during their stay in Germany. It stands to reason that we should make their presence and their work in Germany, without any loss for ourselves, as bearable as possible." On that point Sauckel and Rosenberg shared the same opinion.

Neither is it my task to state and to prove that many hundreds of thousands of foreign workers found good conditions in Germany, that in fact numberless persons were better off here than in their fatherland. I am only concerned with the bad conditions which have been charged to the Defendant Rosenberg.

I come now to the "Central Agency for Nationals of the Eastern Territories."

Gentlemen of the Tribunal, several days ago I read the affidavit of Dr. Albert Bell. Essentially it contains an authoritative statement of whatever can be said about that subject. Therefore, I should like to omit this subject, "Central Agency for Nationals of the Eastern Territories," and ask the Tribunal to consider it as having been presented.

2. Central Office for Nationals of the Eastern Territories.

As the war became more and more intensified in regard to totality and brutality, the German workers, and the Germans altogether, did anything but live in a grand style; they too, as far as they had not been drafted for the Army, were assigned to labor duties, had to do heavy work for long hours, were separated from their families, had frequently to be content with second-rate billets-especially because of the increasing number of houses damaged by air attacks-and they, too, were severely punished for refusal to work or defaulting.

The fact that the foreign workers were likewise victims of this totality and brutality of the war and, admittedly, in some respects even more so, does not incriminate Rosenberg either legally or morally. He established, within his

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ministry, the Central Office Nationals of the Eastern Territories, which had neither police tasks nor any other competencies of an administrative nature but was concerned solely with the welfare of nationals of the Eastern Territories and which employed trustees taken from among the eastern nations. In the report of 30 September 1942 (Document Number 084-PS, US-199) this office points out several inadequacies: That the accommodation, treatment, food, and pay of the Eastern Workers called forth strong criticism; that, though actually the situation was much better now (deadline 1 October 1942), the conditions for Eastern Workers were on the whole still far from being satisfactory. Rosenberg is therefore asked to discuss the matter with Hitler in order to have }liner himself take energetic measures; Himmler was to be made to rescind his general regulations concerning the treatment of Eastern Workers; the Party Chancellery and the Party to be reminded of their historical responsibility for the millions of former Soviet citizens now guided by Germany and instructed to co-operate in all matters concerning Eastern Workers in the Reich with the Reich Minister; finally it was suggested to extend the scope of the Central Office for Nationals of the Eastern Territories as quickly as possible, so as to enable it efficiently to look after the interests of the aliens from the occupied territories living in the Reich, being, so to speak, the projected arm of the East ministry, and the representative of these people. In this sense, namely, in the sense of social care and humane welfare, the eastern ministry was active for the Eastern Workers.

To refute the charge that Rosenberg was active as protagonist of the system of hatred and barbarism, of denying human rights, and of enslavement, I must add the following. Rosenberg received further unfavorable reports, one being the report of 7 October 1942 about the bad treatment of Ukrainian skilled workers (Document Number 054-PS, US-198). Abuses in recruiting and during transportation were pointed out; the workers were frequently dragged out of their beds at night and locked up in cellars until the time of their departure; threats and blows by the rural militia were a matter of course; food brought from home was often taken by the militia; during transportation to Germany neglect and transgressions on the part of the escorting units occurred, et cetera.

Rosenberg had no authority whatsoever to intervene in those matters, yet he tried to do so in a letter of 21 December 1942 to Sauckel; Rosenberg first emphasized his fundamental accord with Sauckel; but after a few tactical and polite cliches) he complained seriously and urgently about the methods used in the employment of labor. I quote:

"I must emphatically request, in view of my responsibility for the Occupied Eastern Territories, that in supplying the required quotas methods should be avoided which might one day cause me or my associates to be charged with connivance and with being responsible for the consequences."

Rosenberg further states that he empowered the Rein Commissioner for the Ukraine to make use, so far as required, of his sovereign rights and to give attention to the elimination of recruiting methods which were running counter to the interests of warfare and war economy in the occupied territories. He, Rosenberg, and the Reich Commissioners could not help being surprised that in numerous instances measures, which should have been previously

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agreed upon with the civilian authorities, were first learned of through the police or other offices. Without co-ordination of their mutual wishes Rosenberg was unfortunately unable to accept the joint responsibility for consequences resulting from these reported conditions. In conclusion Rosenberg expressed the wish to put an early end to such conditions for the sake of their common interest.

Rosenberg also tried personal consultations with Sauckel and got Sauckel to promise that he would do everything to bring about a fair solution of all these questions (conference of 14 April 1942). It was beyond Rosenberg's power and authority to do more. His secret opponent, supported by higher authorities, was Reich Commissioner Koch, who was indeed one of the chief culprits responsible for the cruel methods of recruiting and employment of Eastern Workers, and whose influence Rosenberg was unable to counteract.

When the prosecutor (Brudno, on 9 January 1946) charges the defendant with protesting against these methods not for humanitarian reasons but out of political expediency, I can only say that in my opinion one cannot, without some sound reasons, simply maintain that the Defendant Rosenberg is devoid of any human qualities.

As an example of the defendant's particular bestiality, the so-called "Hay Action" has been repeatedly pointed out by the Prosecution (Document Number 031-PS). It concerned the intention of Army Group Center to evacuate 40,000 to 50,000 juveniles from the area of operations, as they represented a considerable burden to the area of operations and were besides, for the most part, without any parental supervision. Villages for children were to be established behind the front lines under native supervision; one of these villages had already proven its value. It was hoped that through the Organization Todt, being a particularly appropriate organization due to its technical and other possibilities, the juveniles might, in the main, be placed at the disposal of German handicraft as apprentices, in order to employ them as skilled workers after 2 years' training. At first Rosenberg, as Reich Minister for the Occupied Eastern Territories, was against this because he feared that the action might be considered as a deportation of children, while on the other hand, the juveniles did not represent a considerable increase of military strength. The clues of the political operations staff approached Rosenberg again, stating that Army Group Center attached particular importance to the fact that the children should enter the Reich, not by authority of the Plenipotentiary General for the Allocation of Labor, but through the agency of the Reich Minister for the East, as it was felt that only then could they be assured of correct treatment. The Army Group wanted the action to be carried out under the most correct conditions and asked for special regulations to be issued with regard to mail facilities

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between them and their parents, et cetera. In the event of a possible reoccupation of the territory the eastern ministry could then let the children go back. Together with their parents they would certainly form a positive political element during the subsequent reconstruction of the territory.

Finally, as reason for the second request addressed to the minister, it was stated in addition that the children, to be sure, would not essentially contribute to strengthening the military power of the enemy but that the important factor in this case was the long-range weakening of his biological strength; not only the Reichsfuehrer SS but also the Fuehrer had expressed themselves to this effect. Rosenberg finally gave his consent to this action.

With regard to this it may be said: This concerned a field which was not at all within the jurisdiction of Rosenberg's administration; he did not want to destroy a foreign element, even if biological weakening was given him as a reason-a reason which he himself did not recognize. Instead he wanted to have the children educated and trained and bring them and their parents back to their homes later on. That is virtually contrary to the crime with which the defendant is charged. Later on, in the late summer of 1944, Rosenberg visited the Junkers plant in Dessau where approximately 4,700 young White Ruthenian craftsmen were employed and also visited a White Ruthenian children's camp. The clothing of the workmen was irreproachable; they were industrious, enjoyed the best treatment, and got along very well with the German workers. As Rosenberg was able to see for himself, the young people were taught languages and mathematics by Russian teachers. The children were cared for in their forest camp by White Ruthenian mothers and women teachers. The figure of 40,000 moreover, was never attained, in fact, barely half of it.

The attempt of the Prosecution in this instance to appeal especially to considerations of humanity in order to discredit the defendant cannot be successful in my estimation. For this very example compels me to point out the following in particular: We were in the midst of a war which was being conducted with terrible intensity on both sides. Is not war in itself "monstrous bestiality"?

The "weakening of the biological strength of nations" is truly a fitting expression for the goal and purpose of the whole war, for that is what the thoughts and efforts of both belligerent parties are aimed at. It would surely be unthinkable that one should forget this in judging the actions of the defendants and that one should wish to hold the defendants responsible not only for unleashing the war, but in addition, for the fact that war in its very essence constitutes a great crime on the part of mankind, both against itself and against the laws of life.

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The Prosecution contends that Rosenberg is guilty also insofar as it was he who issued the inhuman and barbaric decrees which aimed at carrying out the deportation of Soviet people into German slavery. This causes me to discuss the question as to whether the compulsory labor decree of 19 December 1941 and Rosenberg's other decrees concerning compulsory labor for the inhabitants of the Eastern Territories, were contrary to international law.

The Eastern Territories administered by Rosenberg were militarily occupied during the war. Through this occupatio bellica Germany realized complete domination and had the same sovereignty as over her own territory. While according to previous conceptions of international law the occupying power could act arbitrarily without consideration of rights and laws, the recent evolution of international law eliminated the principle of force and brought victory to the principles of humanity and culture. Therefore the formerly unlimited might of the occupying power was altered to limited rights. The Hague Rules of Land Warfare stipulated in particular the legal obligations of the occupying power.

On the other hand, it is not true to say that the Rules of Land Warfare specify only certain privileges for the occupying power. They merely set a limit to the basically unlimited right of the occupying power to exercise all powers deriving from territorial sovereignty over an occupied territory.

THE PRESIDENT: Would that be a convenient time to break off?

[The Tribunal adjourned until 10 July 1946 at 1000 hours.]

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