dtufail/nuremberg-trials-corpus huggingface dataset:
DR. LATERNSER: It must be made clear that the Army is not an assembly of individuals, but a fighting arm molded by discipline and controlled by the leader. The essence of democracy is freedom, the essence of the Army is discipline. It does not matter how intelligent the soldier is--the Army would let the Nation down if it were not accustomed to obey orders instantaneously. The difficult problem of achieving strict obedience to orders can only be mastered in a democratic age by the inculcation of three principles: 1. the Nation is something that is worthwhile; 2. the Army is the necessary arm of the Nation; 3. it is the duty of the soldier unquestioningly to obey al orders which the Army, that is, the Nation, gives him. And the German generals--according to the opinion expressed by the Prosecution--should not only have asked questions when they obeyed the Supreme Commander and the Nation, but they should even have rebelled openly! Whoever wishes to render a just decision on this question ought himself once to have been an army commander during a war, in the front lines and in particularly serious circumstances, because there is a great difference between the commander on a heavily contested front line, who bears the responsibility for the life and death of hundreds of thousands of soldiers, and an officer who has no responsibility at the front line, or who is engaged only in a quiet sector. If the military leaders nevertheless unceasingly defended their soldierly conceptions and acted in accordance with them to the limit of their possibilities, this attitude ultimately produced no other effect than their complete elimination towards the end of the war. This is proved by a short survey of the fate of the military leaders: Out of 17 Field Marshals who were serving in the Army, 10 were relieved of their functions in the course of the war. Three lost their lives in connection with the events of 20 July 1944.
DR. LATERNSER: Two were killed in action, one was taken prisoner, and only a single general remained in service until the end of the war without being subjected to any disciplinary action. Of 36 generals (Generalobersten), 26 were removed from their posts, from among whom three were executed in connection with the events of 20 July 1944, and two were dishonorably discharged. Seven were killed in action, and only three remained in service until the end of the war without being subjected to disciplinary action. Those who were subjected to disciplinary action were highly qualified officers who had given a good account of themselves in combat. Let me recapitulate: (1) Military disobedience is and remains a violation of duty, in times of war a crime punishable with the death penalty. (2) There exists no duty to disobey for any soldier in the world, as long as states with a sovereignty of their own continue to exist. (3) Under Hitler's dictatorship, open disobedience would only have led to the destruction of the subordinate, but never to a repeal of orders given. (4) No class has made, through its highest representatives, such great sacrifices for its conceptions as opposed to Hitler's methods, as the circle of officers who are indicted before this Tribunal. In view of the impossibility and the ineffectiveness of any passive resistance, there would have remained only the method of violence, rebellion, and coup d'etat . Whoever contemplated this method had o be aware of the fact that it would have to involve the removal of Hitler and of the leading men of the Party in such a way that these men would be put to death. There was, therefore, at the beginning of each coup d'etat the inexorable compulsion to liquidate Hitler and the leading men of the Party. To the soldier this meant murder and disloyalty to his oath.
DR. LATERNSER: Even if it is demanded that the generals, for reasons of a higher world morality, ought to have sacrificed their personal and military honor, how could they have been justified in taking such action against the will of the Nation, and when could such action have been effected with good chances of success and for the benefit of the people? After the incorporation of the Protectorate, Hitler was at the crest of his successes and was considered by a great many Germans as the greatest of all Germans. If Churchill said of him, on 4 October 1938, that "...Our leadership must have at least a fraction of the spirit of that German corporal who, when everything around him had fallen in ruins, when Germany seemed to have sunk into chaos for all times, did not hesitate to march against the formidable phalanx of victorious nations..." is that not proof enough that the wrath of the German nation would have annihilated the generals who would have laid hands on Hitler? Were the generals to remove Hitler at a time when a peaceful settlement with Poland was still a practical possibility when it was impossible for the German people to foresee that the war would actually come, and what consequences it would have -- as they are today openly visible to all our eyes? Then war did come, and it brought another and very decisive obligation for the military leaders. Any rebellion in war would have amounted to a catastrophe for the Reich. Even then, as long as there were victories, no rebellion would have had any chance success. But when it became clear after Stalingrad that the fight now had to be continued for the very existence of the German people, the military leaders had even less of a moral right to bring about a collapse of the front lines and the whole country by coup d'etat . In those days, large sections of the German people s believed in Hitler. Would the military leaders not have been mad responsible for everything that the German nation is feeling s heavily today as a consequence of the capitulation?
DR. LATERNSER: Can one reconsider a coup d'etat , disloyalty to the given oath, and murder, a a legal obligation of the soldier in the midst of a war for the very life and death of the Nation? As Field Marshal Von Rundstedt said in the witness stand: "Nothing would have been changed for the German people, but my name would have gone down in history as that of the greatest traitor." To what extent any such attempt was condemned to failure is proved by the unsuccessful attempt on Hitler's life on 20 July 1944. Even the preparation of this attempt over a number of years and the participation of men from all walks of life were not able to assure its success. How, therefore, could the 129 indicted officers have successfully carried out a coup d'etat ? Certainly, if they had been, the united association which the Prosecution would so very much like to regard them, they might perhaps also have contemplated a commonly-planned violent revolt; but since they were not a closed organization, since they were not politicians but "only" soldiers, they could do nothing on their part to bring about a change of conditions. They could only obey to the last, in spite of the fact that they knew how desperate the military situation was. The German military leaders found themselves hemmed in between their rights as men and their duties as soldiers. As citizens of the State they might have claimed for themselves the right to refuse service to a Fuehrer and a system which, the longer the war lasted, proved to be more and more harmful. They might thus have evaded their personal responsibility, they might have--as the prosecutor puts it--"saved their skins." Perhaps they would not now be before this Tribunal. But by taking such a decision they would at the same time have let down their soldiers who trusted them and for whom they felt responsible. Therefore there remained for them as soldiers only the duty to fight. This "duty" might, in a wider sense of the word, have consisted in overthrowing the system.
DR. LATERNSER: In war, however, this would practically have amounted to nothing less than inviting defeat. No soldier could take that upon himself. No military leader can for years demand of his soldiers that they should give their lives, and then abandon his post himself and go down in history as a traitor to his nation. Thus there remained for the German military leaders only the duty to fight the enemy to the last. Confronted with the tragic decision between personal rights and soldierly duties, they decided in favor of their duties, and thus acted in the spirit of soldierly morale. What other possibility would have remained open to them to keep themselves and their soldiers free of criminal acts? There was only a single possibility: circumvent criminal orders; evade them, or transform them by additional orders in such a way that the result was in keeping with the soldier's sense of justice and decency. This they did as far as possible in order to conduct the military war, which alone was their business, according to the rules of international law and of humanity. If besides this the political and ideological war was carried on by methods which have today exposed the German people to the contempt of the world, the German generals as a group had no part in this kind of war. I have now reached the end of my observations. I believe I have proved: (1) That the 129 military leaders whom the Prosecution want to indict were in no respect an "organization" or "group," and represented even less a united will for the execution of criminal acts. These men are not a gang of criminals. (2) That the invented collective term "General Staff and High Command," with which the Prosecution designates these officers, represents in reality a purely arbitrary combination, of holders of the most varied service posts from quite different periods and from fundamentally different branches of the Armed Forces.
DR. LATERNSER: Chosen without any real justification and without legal necessity, it can only have the purpose of throwing deliberate slander on the institution of the General Staff, which has been taken as a model by so many nations. What a slogan, indeed, for the international press: "The German General Staff a criminal organization!" I furthermore believe I have proved: That the military leaders in Hitler's state did not even have an opportunity to participate in a political plan or a political conspiracy with the object of waging a war of aggression, and even less to assist in it actively. They constantly uttered warnings, and were finally themselves overcome by the political leadership. I believe finally to have proved: That after the outbreak of war the military leaders engaged in passive resistance against Hitler's methods which disregarded the rules of warfare and of humanity. They thereby in practice prevented the commission of crimes against the rules of war and of humanity as far as it was possible, and maintained as soldiers the spirit of Christianity. If individual officers among the indicted generals have committed crimes, they will know how to account for themselves. The group as a whole is not guilty of the crimes which were committed. On the contrary, this circle of officers was one of the strongholds of decent, humane, and Christian conception and action. Only an observer who witnessed at close range the enormously difficult situation in which every one of these men found himself, can do justice to their attitude. All alone they had to settle the conflict of their conscience, and could not seek assistance in the distress and torment of their conscience by resorting to the members of a Parliament, to the editors of a free press, or to prominent influential men of public life, as was possible for the military leaders of the other side. It was precisely these men who were persecuted with derision and hatred.
DR. LATERNSER: They were openly, and still more in secret branded as "reactionary generals," as "dust-covered knights of a medieval code of honor." They, not the "great Hitler," were made responsible by Party propaganda for every military setback, they were the traitors and saboteurs to whose sinister influence all misfortunes were due. Without them, Hitler would have won his war. The abysmal hatred of the mass murderers from the circle around Himmler is persecuting them even to this very courtroom, and endeavoring by lies and distortions to drag them down disaster. The prosecutor does not realize how much he contributes, by his theory that Hitler was driven on by instigators and advisers and that everything was ultimately the generals' fault, to revive the halo around Hitler, so that Hitler may one day appear, not as the political criminal and the mass murderer of millions of people, but as the tragic hero who was pushed into the abyss by the gray figures who, surrounded him. Does the prosecutor really wish to challenge the judgment of history in such a way? History has its own method of judgment. The summary kind of judgment demanded in this case is practically unique in the history -of the world. There is in fact only one parallel, and it is both a warning and a lesson. On 16 February 1568, a verdict rendered by the Holy Office sentenced all inhabitants of the Netherlands to die as heretics, with the exception of a few specially-named cases. The Duke of Alba, who was devoted to his royal master in blind and fanatical obedience, was appointed executioner for this mass verdict. The judgment of history on this first great manifestation of the idea of collective guilt is well known. History will deliver its own judgment on the military leaders with whom we are concerned here, and the German generals believe that they will be able to hold their own in its verdict. Today, however, we are concerned with the verdict to be rendered by this International Military Tribunal.
DR. LATERNSER: Let the Tribunal not neglect the fact that the knowledge which it possesses today of the entire trend of past events--both as regards their external course and their background--was something these men did not have when they made the decisions for which they are to be held responsible today. These men do not fear for their lives-their anxiety is concerned only with justice. May it please the Tribunal of Nuremberg to render a verdict which, as I said in my opening remarks, is uninfluenced by the passions of everyday life, far removed from blind hatred and vengeance and the petty instincts of retaliation and -which, standing out pure and unfalsified in the face of eternity and of a better future of the nations, is nothing but just!
THE PRESIDENT: The Tribunal will adjourn. [ The Tribunal adjourned until 28 August 1946 at 1000 hours .]
SIR DAVID MAXWELL-FYFE: My Lord, might I mention the letter from General Warlimont which we discussed yesterday in connection with Dr. Laternser's application to call Colonel Buerker. My Lord, the Prosecution had the opportunity of considering the letter and they are quite prepared to admit that the part of the letter which relates to Colonel Buerker that is, Division "A" of the letter, contains what Colonel Buerker would say if he were called. We are quite prepared to make the admission or stipulation which your Lordship suggested yesterday. The other parts of the letter, "B" and "C," relate to a statement of General Warlimont himself, and a statement of a Major Meier. Dr. Laternser has not made any application with regard to these parts and he is quite prepared that they should not be read. Dr. Laternser is prepared to agree with our suggestion that the first part relating to Colonel Buerker be treated as the evidence that Colonel Buerker would have given if he were called.
THE PRESIDENT: Then perhaps you will read Paragraph "A" of the letter?
DR. LATERNSER: I shall read from a letter from General Warlimont: "Nuremberg, 23 August 1946. To Attorney Dr. H. Laternser." I shall leave out part of it and I begin at: "(A) About 10 or 14 days ago, early in the morning, there came to see me in the generals' camp at Dachau a colonel of the General Staff of the former German Army, Buerker, who is also detained there, and whom I have known for many years. He told me that he had learned from the radio news the evening before of the Russian accusation against the OKW for alleged preparation of bacterial warfare. In this connection he recollected an incident during his short activity as Chief of the Organization Department of the Armed Forces Operations Staff, which he related to me more or less as follows:..." And now comes a direct quotation: "In the autumn of 1943, probably in late September, there came to see me in my office three gentlemen who were unknown to me. One of them belonged to the Army Medical Inspection, and the second presumably was from the research office of the Army Ordnance Branch; as to the third I can no longer recall his name nor to which office he was attached. They explained to me that in their opinion research work for countering any bacterial warfare from the enemy side was no longer adequate. Their mission, which was exclusively limited to research for defense purposes, would have to be extended. They were convinced that it was essential to exhaust every possibility, even to the extent of a counterattack which might be contemplated. The gentlemen urged me to discuss this with the Chief of the OKW (Keitel). I had only just taken over the position of Chief of the Organization Department at the beginning of September 1943, after 2 months' preparatory training with my predecessor, Colonel Muench (who was killed in action), and up to then had not heard anything at all about this matter. When making my next report to the Chief of the OKW I brought up the matter.
DR. LATERNSER: He was extremely angry, and said to me in an unusually sharp tone, 'That was forbidden a long time ago and there ran be no question of such a thing, or words to that effect."
THE PRESIDENT: Dr. Kubuschok.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Mr. President, Gentlemen of the Tribunal: The proceedings which the Prosecution proposes to conduct against the organizations are in many respects an innovation. For the first time organizations with millions of members stand before the judge of a criminal court, for the first time a judgment is awaited with respect to the civilian and military leaders of a state. This brings to light the importance as well as the complexity of proceedings of that kind. It therefore follows that it is the duty of counsel for each organization to deal generally with all the factual and legal problems of these proceedings. The Prosecution base their indictment on the hypothesis that according to general principles of law there exists a collective criminal responsibility, and that in consequence a criminal condemnation of a group as such is also possible. They attempt to justify this criterion of law by examples from the penal laws of various civilized countries; it becomes clear, however, that none of the examples mentioned amount to a criminal condemnation of the organizations as such, but only to the condemnation of the individual because of his membership in an organization declared criminal. Nor could it be otherwise. Criminal responsibility can only apply to an individual. All criminal law is based upon the concept of guilt, the recognition of a criminal act as such, and the firm determination to carry out this act. Only the individual has the faculty to recognize and to form a will, and therefore to have a concept of guilt. It is a different matter whether, as a result of the developments of our age, responsibility of the organization is established for the domain in which, because of its very nature, it is bound to harm the interests of the state. We are here concerned with infringements of administrative order, not with the domain of criminality rooted in ethics.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Laws were created to prevent these infringements, to punish the organizations as such because of their responsibility in producing pernicious effects and to do so by means which can be applied to the organizations as such. A punishment under administrative law, or a fine because of prejudicing state interests by an organization, is practicable, and for the sake of expediency the laws of various countries have regulated it. This procedure is based on a merely objective establishment of the facts as distinct from an examination of the question of guilt, which is not possible. Using this as a starting point, we must examine what the significance is of the conviction which the Prosecution has demanded. First of all this requires an establishment of the facts of historical portent. Furthermore, the establishment of the criminal character of the organization represents a retroactive outlawing of the organization, which in the meantime has been legally and actually dissolved; and, what is more, it includes all members of the organization. Such a declaration of criminality involves them all, and by its effect, to use Mr. Justice Jackson's words, the "bad" elements are segregated from the "good" elements. Finally, and this is the decisive and at the same time the most problematical implication of such a declaration: by virtue of Control Council Law Number 10 it creates to a large extent the establishment of guilt for the individual member. The Control Council Law Number 10 is as yet a skeleton law, so to speak. Article II d provides that membership in an organization declared criminal by the Tribunal is liable to punishment. Once the Tribunal has given such a judgment, the former gap in the criminal provision is fined. The name of the convicted organization then, so to speak, becomes part of the wording of the penal provision. The criminal nature of the organization is now no longer a characteristic of the facts. Therefore, there is no need for the individual perpetrator to know of this characteristic of the organization.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): The criminal action now to be adjudicated by the court of the Control Council Law arises from the mere fact of membership. Therefore, only the objective and subjective elements of membership as such are subject to adjudication by the Court. The individual member who in this Trial is called to account is faced with an incidental decision already reached, which deprives him of all other subjective and objective pleas which do not concern his membership as such. When the question of his guilt comes up, he can no longer plead that he did not know of the criminal aims of the organization, that he did not foster them, no longer advance motives for his entering into the organization or remaining a member of it. The incidental determination goes even further and affects the very substance of Article II, Figure 2 e, of the Control Council Law, according to which each member of an organization declared criminal also shares the responsibility for all the crimes which the condemned organization is charged with having committed. In actual fact, the conviction of the organization constitutes a conviction of the individual member who belonged to the organization. The fiction of criminal responsibility of the organization thus brings about what no system of criminal procedure which has ever existed has so far recognized: the guilt of the members is abstractly disassociated from them, and transferred in toto to the organization, with the result that, the guilt of the organization having been established, it is no longer necessary to furnish complete proof of the guilt of the individual member. If one considers these consequences and the inescapable effect which the declaration has of proscribing all members, the definition of "criminal character" to be applied by the Court to the organization because of the absence of legal provisions can have but one result: the individual member will of necessity be included in the Court's argumentation; the concept of the organization can be understood merely as the sum total of individual members.