Chapter II: Front Matter (2)

[sm type begins]“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. AOK/6 (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.[sm type ends]

[sm type begins]“For information: Army General Staff (Gen. St.
d. H.); Headquarters Gen./Qu.[sm type ends]

[sm type begins]“(signed) Keitel.”[sm type ends]

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.

[sm type begins]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 other, to the application of all possible 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.[sm type ends]

[sm type begins]Unfortunately, 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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]I request the Tribunal, when judging this complex and when examining the responsibility of the Defendant Keitel, to take into consideration:[sm type ends]

[sm type begins](1) The concept of hostages, the basic conditions governing the taking of hostages end their treatment had become known to all authorities in command and their offices in the Armed Forces by the Army manual regulations (H. Dv. 2g) before the war, especially before the campaign in the West. The Documents 1585-PS, 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).[sm type ends]

[sm type begins](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.[sm type ends]

[sm type begins](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.[sm type ends]

[sm type begins](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.[sm type ends]

[sm type begins](5) 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 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.[sm type ends]

[sm type begins]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 Führer 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 staff (the OKW). This however establishes no competence and thereby no responsibility of the OKW and the Defendant Keitel as Chief of the OKW.[sm type ends]

[sm type begins]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:[sm type ends]

[sm type begins]“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 Funck, consider this permissible in the extremes of
emergency, and therefore not contrary to international law.”[sm
type ends]

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 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 (Canaris), 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 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 Führer ...”

The closing sentence runs: “The attached directives ... represent the Führer’s views.”

Persons who received such letters knew from that wording that here was another order of the Führer 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 Führer’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.

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 Reichsführer SS.

The Reichsführer 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:

“... 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 Führer 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 Führer’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._]

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.

[sm type begins]The Codefendant Sauckel gave the following testimony:[sm type ends]

[sm type begins]“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?[sm type ends]

[sm type begins]“Answer: He had no function whatsoever
appertaining to this matter. I got in touch with Field Marshal
Keitel, because the Führer frequently charged me to ask Field
Marshal Keitel to transmit his orders by phone or by
instructions to the army groups.[sm type ends]

[sm type begins]“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?[sm type ends]

[sm type begins]“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.”[sm type ends]

[sm type begins]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 Göring 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.[sm type ends]

[sm type begins]These documents give expression to the relationships and contacts of the GBA with many offices. These relationships and contacts vary in their nature.[sm type ends]

[sm type begins]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 Göring 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:[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]On the basis of these requests, Keitel submitted a report to the Führer, 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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]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.[sm type ends]

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

[sm type begins](b) In the territories under military commanders (France, Belgium and the Balkans) it was the Quartermaster General of the Army.[sm type ends]

[sm type begins](c) In Italy, in the highest instance, it was the Ambassador, Rahn.[sm type ends]

[sm type begins]This is obvious from the decree of 27 March 1942.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]These “next best” were Keitel, for the military administration of the occupied territories, or Dr. Lammers, for the territories under civilian administration.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins](1) The name of Keitel stands at the beginning of Sauckel’s activity, as submitted by the Prosecution, because Keitel was cosignatory to the Führer 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.[sm type ends]

[sm type begins]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 Führer. 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.[sm type ends]

[sm type begins](2) If the Führer’s decree of March 1942 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 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.[sm type ends]

[sm type begins](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.[sm type ends]

[sm type begins]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.[sm type ends]

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 Führer decree. I quote the following passages:

“5. The Führer 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 Führer 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.

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) Nr. 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 Führer must be believed; and, indeed, the whole style of wording is that of a Führer order.

General Warlimont (Document 3819-PS) also expressly refers during the conference of 11 July to a “recently issued Führer 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 Führer 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 Führer’s order shortly after 11 July 1944 shows, as does Warlimont’s statement, that no directives from Keitel 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 Führer’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 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:

(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 co-responsibility 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 office 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 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 Reichsführer 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.” 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 with 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 ...

THE PRESIDENT: I said “of real importance.”

[sm type begins]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.[sm type ends]

[sm type begins]As Ambassador Scapini 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 cases. 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.[sm type ends]

[sm type begins]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 OKW, 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.[sm type ends]

[sm type begins]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 OKW.[sm type ends]

[sm type begins]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 1941 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:[sm type ends]

[sm type begins]“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.[sm type
ends]

[sm type begins]“I hope that the execution of this decision will
be expedited through this report, which I have the honor to
submit to you.”[sm type ends]

[sm type begins]I have asked the French Prosecution to pass on to me the note of the German Armistice Commission Number 178/41 of 20 January 1941, in which this decision of the OKW 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.[sm type ends]

[sm type begins]From the reference it can be seen that the OKW, 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.[sm type ends]

[sm type begins]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.[sm type ends]

[sm type begins]The Treatment of Soviet Russian Prisoners of War.[sm type ends]