dtufail/nuremberg-trials-corpus huggingface dataset:
DR. LATERNSER: I think I have been misunderstood, Mr. President. According to the last paragraph which I just read, the Chief of the General Staff, Zeitzler, as a result of his counterreports, was successful in persuading Hitler to rescind the order. This is proved by Document 301-B, which I have presented to the High Tribunal and which is available in a translation. What more can be expected of the military leaders? The order did not emanate from them, they did not pass it on, they did not execute it, they endeavored to have it rescinded, and finally reached their objective. Herein lies their solidarity and their unanimity, and precisely the handling of the Commissar Order is evidence of the most conclusive kind that the generals' attitude was beyond reproach. In the same way, the directive concerning the restriction of the administration of military justice in the East met with the opposition of the commanders-in-chief, who were present when it was orally announced. It is due to the generals' negative attitude that Hitler gave up his original plan, which provided for a complete elimination of the administration of military justice in the East, and was content with certain restrictions. In this connection, too, the additional directives issued by the Commander-in-Chief of the Army concerning the maintenance of discipline are of the greatest significance. The commanders-in-chief of the army groups and of the armies acted as a group in accordance with the provisions of this additional order and took vigorous measures in all cases where members of the Armed Forces had committed offenses against the civilian population. In serious cases they had death sentences passed and executed. Even simple road accidents in which Russian civilians were injured were brought before military tribunals, and the persons responsible were taken to account. This is proved, among other things, by the evidence given by Field Marshal Von Leeb.
DR. LATERNSER: Here again, therefore, precisely the officers included in the Indictment took steps to prevent the full execution of one of Hitler's orders, which was in contradiction to their own principles. The attitude which the military leaders adopted with regard to Hitler's Commando Order was so unfavorable from the very outset, that Hitler was not only compelled to draw up this order personally, but also found it necessary to threaten exceptionally severe punishment if his order was not executed. And still the commander-in-chief in Africa, Field Marshal Rommel, destroyed the order immediately on receipt because of his inner opposition to it. The commander-in-chief in the West, Field Marshal Von Rundstedt, took steps to see to it that the order was not carried out but circumvented. The commander-in-chief in the Southwest, Field Marshall Kesselring, issued additional regulations which ensured treatment of Commando troops as prisoners of war. As regards the Eastern theater of war, the order was without significance anyway. These examples clearly show that here again the military leaders found ways and means to prevent the execution of the Commando Order which was in contradiction to their soldierly conceptions. The individual cases mentioned by the Prosecution should be left out of account in this connection, since they are concerned with individual acts which have already been the subject of special investigations, or will be investigated later. But they do not in any way reflect the typical attitude adopted by the military leaders, which alone is relevant in this Trial. It seems to me that the following questions are also of importance; could not the military leaders rely on the facts contained in this order being true? Were they not bound to assume that the order had been examined, in its relations with international law, before it was issued? Is this order absolutely inadmissible under international law? Does it still come under admissible reprisals?
DR. LATERNSER: That will be a matter for the Tribunal to decide, if it attributes some importance to this order of Hitler with reference to the persons whom I represent. As regards the treatment of prisoners of war, we have only to examine whether the commanders-in-chief, in execution of a common plan, ordered or criminally tolerated any kind of maltreatment of prisoners of war in the areas of operations. If, during the first period of the Russian campaign, the Russian prisoners of War could not be accommodated and fed in accordance with the provisions of the Geneva Convention, this is entirely due to the fact that certain difficulties were at first unavoidable when hundreds of thousands of men were taken prisoner. Although after the end of the war the Allies were faced with similar difficulties when all of a sudden great masses of Germans were taken prisoner, the Allies will certainly not be prepared to accept a charge of crimes against humanity. Moreover the individual cases put forward by the Prosecution have been invalidated or refuted by counterevidence from all theaters of war. The military leaders in all theaters of war forestalled possible excesses against prisoners of war by-issuing appropriate orders and calling to account the persons responsible for offenses connected with the treatment of prisoners of war. They neither ordered nor knowingly tolerated any maltreatment or killing of prisoners of war. Partisan warfare, as a new kind of illegal warfare, was started by the remnants of enemy armies, or by rebels who were supported by their governments. They did not fight according to the customs of war, openly and bearing arms, but acted clandestinely with all kinds of camouflage. This Is clearly shown by the Russian instructions for Partisan warfare. In consequence the partisans could not invoke on their own behalf the protective provisions of Articles I and II of the Hague Convention on Land Warfare.
DR. LATERNSER: Energetic German countermeasures in the form of reprisals were thus "necessitated by the requirements of war." Thus the Germans issued special regulations for partisan warfare in 1942, and a revised edition in 1944. The other orders issued in this connection, which. refer to "most energetic intervention," or speak of "annihilation of the enemy," that is to say, annihilation of his combat force, were likewise the consequence of the treacherous methods of the partisans. They were only intended to specify energetic intervention permissible from a military standpoint, not to authorize atrocities and arbitrary action. That excesses were committed in individual cases by the German troops was an inevitable reaction to the bestial murders of German soldiers. But if the Prosecution go even further than that, and allege that the military leaders took advantage of partisan warfare in order to exterminate the civilian population of the occupied territories, this assertion is completely unfounded. Affidavit Number 15, made by General Roettiger, to which the Prosecution have resorted, and which they have drawn up themselves, has been perfectly cleared up-in cross-examination. The witness never received any orders concerning partisan war which would have been incompatible with international law, and he confirms that military rules were observed even in this kind of operations. The struggle against the partisans had, of necessity, to be bitter, owing to their illegal methods of fighting. But it was to be conducted only with permitted means. We are, therefore, concerned with necessary German measures of defense, which were not in any way directed against the civilian population of the occupied territories as such, and did not in any way have the extermination of this population as an objective.
DR. LATERNSER: The most serious accusation lies, no doubt, in the assertion of the Prosecution that the commanders-in-chief had full knowledge of the tasks and the activities of the Einsatzgruppen, which were allegedly under their command, and that they not only tolerated, but even actively supported the execution of the tasks of these groups. In this, the Prosecution relies on statements given by the higher SS leaders Ohlendorf, Schellenberg, and Rode, as well as on Document L-180. Is this not highly doubtful evidence? Carl this evidence really convey to the Tribunal the conviction that the generals of the German Armed Forces offered their assistance in these most abominable mass exterminations? My answer is in the negative, and I give it with the fullest conviction. The evidence given by the witness Ohlendorf, under whose command thousands of Jews were murdered, has been refuted by General Woehler's evidence in all its essential points. Schellenberg, who occupied one of the most influential positions in the most notorious agency of Germany--the Reich Security Main Office-and was one of Himmler's friends, cannot supply any real facts but gives us only assumptions. He thinks he can assume that General Wagner was fully informed by Heydrich in June 1941 of the planned mass exterminations. When did this witness arrive at this incriminating assumption? Towards the end of 1945 when he was taken into custody, and when he was looking to his own advantages. Under my cross-examination, he was unable to indicate any facts from the year 1941 on which such an assumption might be based, but he nevertheless made it--for the first time in 1945. Could General Wagner, a highly-qualified officer, who gave his life in connection with 20 July 1944, fighting against National Socialism, have emitted to report this atrocious information to his direct superior, Field Marshal Von Brauchitsch, with whom he had particularly close relations for a great number of years, and to Whom he had access at any time in his capacity of Quartermaster General?
DR. LATERNSER: This assumption is impossible-and Field Marshal Von Brauchitsch confirmed this in the witness stand. Schellenberg, furthermore, believes that he can assume that the Ic officers were informed about the functions of the Einsatzgruppen in connection with mass exterminations at a meeting held in June 1941. He is not satisfied with this assumption only, but he further assumes that these Ic officers informed the commanders-in-chief. This means that two of Schellenberg's assumptions, linked together, are to furnish the proof that the commanders-in-chief had knowledge of these planned mass exterminations. And how did Schellenberg react in cross-examination to the assumptions made by him? I submitted to him a sworn statement by a man who was present at the Ic meeting, in which General Kleikamp expressly declares that there had been no mention of planned mass extermination, which must cause Schellenberg's structure of lies to crumble. His reply was that it was not for him to decide upon the value of the two oaths. He thereby places his assumption to the contrary, which is not founded on facts, on the same level as the positive statement made by one of those present at the meeting, according to which no information was given on the planned mass exterminations. So much as regards Schellenberg's evidence. I ask the Tribunal to take full cognizance of the minutes of the cross-examination of this witness before the Commission. The witness Rode, who is likewise a high-ranking SS leader, also wished to make a charge. He asserted that the Einsatzgruppen were placed fully under the authority of the commanders-in-chief, but he qualifies this statement by adding "to the best of my knowledge." This strips the evidence of the witness of all its value for the Prosecution. I now turn to Document L-180, according to which the Commander-in-Chief of Armored Group 4, General Hoeppner, allegedly entertained particularly close co-operation with the Einsatzgruppen.
DR. LATERNSER: Is not the use of such a report highly dangerous to the finding of the truth, particularly since it only contains the views of its author? Then, too, it does not contain any indication as to the nature of this co-operation, or in what it consisted. The Einsatzgruppen and Kommandos, however, also had to carry out supervisory and investigating functions, as has been proved, and only these were known to the commanders-in-chief. If there was any co-operation at all, it could never have been in connection with mass executions of Jews. General Hoeppner, who also lost his life as a victim of 20 July 1944, would have been the very last man to lend his assistance to mass murder. Is it really conceivable that a general who wants to remove a political system even at the cost of his life because of his special objection to its methods, should previously have taken part in the mass murders committed by this very system? To my profound regret, I am unable to call Generals Wagner and Hoeppner as witnesses; both of them had not conspired with this system, but against it, and both sacrificed their lives thereby. It is rather peculiar to note that the Prosecution who easily turn ironical whenever the defendants invoke the dead, are now themselves endeavoring to prove by citing the dead that the military leaders had knowledge of planned mass exterminations and participated in them; and the dead, unfortunately, are unable to protest. In contrast to these inconclusive proofs advanced by the Prosecution I have shown by numerous affidavits that (1) the Einsatzgruppen, were not placed under the authority of the military leaders, which is also shown with particular clarity by Prosecution Document Number 447-PS; (2) General Wagner clearly expressed this to General Judge Mantel; and that (3) the military leaders had not been informed of planned mass executions.
DR. LATERNSER: The Tribunal will now have to decide whether it proposes to give greater credence to the SS leaders Schellenberg, Ohlendorf, and Rode, who are trying for the last time in their hatred to draw the military leaders into their own disaster, than to the officers of whom the Tribunal was able to obtain a personal impression. Now as regards the other points of the Indictment, such as "maltreatment of the civilian population" and "destructions and lootings," I propose to refer to my submission of evidence on these points, which showed clearly that the military leaders intervened most severely in all cases of offenses brought to their knowledge. As regards the participation of military leaders in the deportations of workers, the Prosecution has been unable to submit really conclusive evidence. The question concerning the shooting of hostages must be left out of account in this Trial, because the territorial military commanders in the occupied territories, insofar as they ordered any shootings of hostages at all, are not included in the group of persons represented by me. Owing to lack of time, I propose herewith to terminate my observations on the war crimes and crimes against humanity. One thing, however, stands out very clearly: The military leaders did not act in execution of any plans having the object of committing war crimes and crimes against humanity. On the contrary, guided by a decent soldierly spirit, they conducted the war in a chivalrous way, and knew how to prevent the practical execution of all orders of Hitler which were not in keeping with their own conceptions It may, perhaps, strike the Tribunal that in all these observations I have only concerned myself with the field commanders of the Army and with land warfare, not with the generals of the Air Force and the admirals of the Navy, who are also said to belong to the so-called group. I can only defend, however, what is being attacked.
DR. LATERNSER: None of the submissions of the Prosecution concerning the commission of war crimes and crimes against humanity concern the commanders-in-chief of the Navy or of the Air Force at all. The only charge against the Navy, namely, that connected with the directives for submarine warfare, is specifically directed against the two Grossadmirale, who have assumed full responsibility for their orders, while the naval commanders-in-chief in the field had nothing to do with these orders at all. No charges have been proffered against the commanders-in-chief of the Air Force. It 17 admirals and 15 generals of the Air Force are included in the so-called "group," this constitutes the most striking proof against the theory of the existence of this "group" and renders any special defense of the admirals and of the Air Force generals superfluous. The last count of the Indictment, that the military leaders had rendered themselves guilty because they tolerated in practice Hitler's criminal plans and deeds, instead of revolting against them. returns us again to the central problem of these proceedings against the soldiers: the problem of the duty to obey. It has been repeatedly stated that the Fuehrer order was not only a military order, but that it had, over and above this, a legislative effect. Thus were not the military leaders simply bound to obey the law? If the duty to obey does not exist in the case of an order which aims at a civil crime, it is because the order demands an action. directed against the authority of the State. But can there be any question of a crime if the order requires action which is not directed against the authority of the State, but on the contrary is demanded by that authority? And even if we reply to this question in the affirmative, what citizen of any country in the world is in a position to recognize the criminal nature of his action?
DR. LATERNSER: It is not sufficient, in order to ascertain guilt, that the Prosecution explain what the defendants should not have done -- at the same time, they should tell us what they might, ought, and should have done, for any legal prohibition must also include a positive directive. If I suppose that, in spite of the sovereignty of the individual states, a legal obligation existed for the generals to act in accordance with international law and moral requirements even against the law of their own State, such a legal obligation could only be affirmed if the corresponding action offered a chance of success. After all, to allow oneself to be hanged merely to evade one's duties, to betray one's country without any prospect of being able to change matters--these things cannot be demanded by virtue of any morality. After all, there is no obligation for anybody to become a martyr. And what were the possibilities of negative or positive action against orders and law on the part of the indicted generals? What were the chances of success? The simple rejection of unlawful plans or orders, be it by contradiction, warning, representations, objections, or the like, would have been in theory possible, but utterly unsuccessful in practice. To a certain extent this remained ineffective for the simple reason that the generals received no knowledge of many of the objectionable things. In the political and if ideological struggle, these methods were so carefully kept secret from the generals, that they did not even hear about mass executions, to say nothing of being able to prevent them. In the military sphere Hitler's closest assistants may perhaps have been heard on the question as to how a resolution was to be carried out militarily, but their opinions were never asked for as to the resolution itself. In the majority of cases the military leaders indicted before this Court only learned of these decisions at the moment when they were called upon to carry them out as soldiers. As far as possible they made objections.
DR. LATERNSER: Before the Rhineland was occupied the Commander-in-Chief of the Army, Baron von Fritsch, advised against a policy which might produce a war on two fronts, as well as against rearmament, and was dismissed. The Chief of the General Staff, Beck, raised political warnings, and was relieved of his functions. General Adam also opposed the intended policies, and was discharged. The OKH opposed the offensive in the West and the infringements of neutrality, and was eliminated. The Commander-in-Chief of the Army remonstrated in connection with. outrages in Poland; the result was that the military agencies were excluded from the administration of the occupied territories. Warnings, objections, factual representations were never successful, and in the majority of cases only produced the effect that Hitler maintained his own opinions more stubbornly than ever, and insisted on his order being carried out. If even the steps taken by the highest commanders thus remained without success, what could the other indicted commanders of lower rank have achieved in this respect? A democratic politician might say that they could have resigned. That is a practical possibility for a parliamentary minister in a democratic country--a German officer could not resign. He was bound by his military oath, which was a supreme obligation for the veteran officer, more than for anyone else. A German general could only ask for approval of his resignation. Whether that request was successful or not was beyond his influence. Moreover, during the war, Hitler prohibited any such request, and placed resignation on the same footing as desertion. A collective request for resignation, riot feasible anyway in practice, would have amounted to mutiny, and would merely have served to bring compliant elements into the leadership, but would never have had enough influence on Hitler as to cause him to change his policy, his orders, or his methods.
DR. LATERNSER: The attempts at resignation which were actually made by some Field Marshals, and in particular by the Commander-in-Chief of the Army in November 1939, were flatly rejected. The subsequent dismissal was the result of Hitler's decision. The resignation of the field commanders would nevertheless have been their obvious duty and would have to be effected at all costs if these leaders had been faced with tasks in which, according to their conception, the honor of the German nation had been at stake. But precisely these tasks, among which I count the mass exterminations and the atrocities in the concentration camps, were outside the sphere of the generals and were even carefully kept secret from them. Now, would open disobedience have been more readily possible, and would it have offered greater chances of success? The American Chief Prosecutor, in his report to the President of the United States, expresses himself as follows on this point: "If a soldier drafted into the Army is detailed to an execution squad, he cannot be held responsible for the legality of the sentence he carries out. But the case may be different with a man who by virtue of his rank or the elasticity of the orders given him could act as he saw fit." This view was not shared by the generals. On the contrary, a simple soldier's disobedience is easily offset in its effect by punishment, but the disobedience of a high military leader is liable to shatter the structure of the Army, and even of the State itself. If there is anything in the world that is indivisible, it is military obedience. No one has defined the meaning and the character of a soldier's duty of obedience more correctly than the British Field Marshal, Lord Montgomery. In a speech which he made at Portsmouth on 2 July 1946, he declared that as the servant of the nation the Army is above politics, and so it must remain. Its devotion is given to the State, and it does not behoove the soldier to change his devotion on account of his political views.