dtufail/nuremberg-trials-corpus huggingface dataset:
DR. NELTE: It reveals the causes of total war and the source of the terrible disaster which resulted from it. The Defense has a difficult task in this Trial. The German people look to Nuremberg, disunited in themselves. Some are skeptical and partly hostile toward the Defense because they believe the Defense is favoring those whom they consider as war criminals and believe that the Defense wishes to prevent that just punishment be meted out to the defendants. Others say the Trial is just a show, at which the Defense Counsel act as dummies to give the Trial the appearance of a judicial procedure. Accordingly, in the view of these Germans we would make ourselves guilty of favoring the enemy. We have no reason to justify our actions because by our participation at this Trial we are fulfilling a task in line with the precept of our calling, the importance of which needs no justification. It consists of co-ordinating our efforts in the interest of clarifying the truth-the importance and effects of which is today incalculable for our German people-of getting to the bottom of the causes and of answering the question as to how all this could have happened. Only the clear recognition of the cause, the forces, and the people which brought about the disaster which has come over this world will create the possibility for the future of our people to find the way back again to the rest of the world. The task of this Tribunal is not to search for the political, economic, and metaphysical reasons for this second World War and not even to examine the course of events in its entirety, but rather only to determine whether and what part these defendants played in that which the victor nations made the object of these proceedings. The task of the Defense, within the framework of their cooperation in finding the truth, consists of examining which factual and legal points could be stated in favor of the defendants.
DR. NELTE: It should be said here that with all the co-operation on the part of the Tribunal shown to the Defense in producing their evidence, the actual possibility of producing defense material for the defendants was limited. Justice Jackson said in his basic prosecuting speech . . .
THE PRESIDENT: You seem to be coming back to further attacks upon the way in which this case has been tried and that is not what you are here to do now. What you are here to do now is to present the case on behalf of the Defendant Keitel. I see that further on here you go on to complain about alleged noncommunication to you of various documents and you refer to a discussion on the subject which took place as long ago as February of 1946. On that occasion I expressed the view on behalf of the Tribunal that the French Prosecution might properly show to you or give you the opportunity to look at their documents. From that day to this, that is to say from February until July, you have made no application to the Tribunal or made any complaint to the Tribunal that that has not been done; and now, in your final speech, you make this complaint that you have not been allowed to see the documents in spite of the fact that in February I expressed, on behalf of the Tribunal, the opinion that you might see such documents. Well, it seems to me that it is a waste of time, a waste of our time now to make these complaints after all these months, apart from the fact that you have already spent time which has been involved in reading 11 pages of your speech without coming to anything which really affects the Defendant Keitel.
DR. NELTE: Mr. President, I believe that in February you told the Prosecution, according to the record, that they should place these documents at my disposal. The Prosecution, unfortunately, have not placed these documents at my disposal.
THE PRESIDENT: Why did you not come back to the Tribunal? You knew perfectly well that I had expressed my opinion on behalf of the Tribunal; and if there was anything to complain about, you had full access to the Tribunal from February until today. It seems to me that it is a frivolous complaint to come now.
DR. NELTE: I hope, Mr. President, that nevertheless the facts which I am putting to you in my manuscript will be considered by the Tribunal. You will notice that I shall refer to this matter at a later stage. On 1 February the session took place during which this affair came up, and on 11 February I went to the French Delegation.
THE PRESIDENT: That is what I have stated, Dr. Nelte. I have already pointed that out to you.
DR. NELTE: And the French Prosecution did not give it to me.
THE PRESIDENT: Why did you not come back to the Tribunal if you had any complaint to make? I have said-and I repeat- that I think to make a complaint now after not having made it for all these months is a frivolous complaint and an attempt to create prejudice, and I should be glad of your explanation.
DR. NELTE: Mr. President, it is merely an attempt to show you that I did not wish to raise a complaint about the Prosecution, recognizing as I did that the Prosecution did not want to help me. I have never been inclined to raise complaints about higher authorities, and I did not want to do it in this case either.
THE PRESIDENT: Dr. Nelte, I think that is a most unfair and a most improper thing for a responsible counsel to say. I think the mention of such a complaint is, as I have said, simply an effort on your part to create prejudice against the French Prosecution and against the fair conduct of this Trial.
DR. NELTE: Mr. President, in my view it was merely meant to show how difficult it was for us to find material in favor of our clients.
THE PRESIDENT: Well, perhaps you will try and get on to something that is really material for the Tribunal to consider.
DR. NELTE: May I ask you to turn to Page 15 where, under Figure 3, I am dealing with the documents. The document governs the hearing of evidence before this Tribunal. Against that the witnesses remain in the background. More important is the examination of these documents to ascertain the possibility of their utilization and their probative value. The Prosecution has submitted as evidence to a large extent official reports which are admitted according to Article 21 of the Charter. I intended to show with respect to a number of these documents the conditional value of such reports as evidence. But I shall limit myself to a few fundamental arguments in this connection, trusting that you, Your Honors, in examining this kind of evidence will take my statements into consideration. These numerous official reports submitted contain factual statements which to a great extent are based on witnesses' testimony. These testimonies are not always related in the form of protocols but as summarizing reports. I do not want to dispute that these testimonies of witnesses are made as deposed in the reports. However, I will not do injustice to any of the witnesses who are not known by the Tribunal and whose testimony is hard to verify for lack of a personal impression, when I say that it concerns mostly very subjective attestations. There are a number of documents in which this is clearly recognizable, and in fact stated, and even documents in which hatred finds its clear expression. I can understand the hatred of these hard-hit people. The suffering they had to endure was so great that one cannot expect impartiality from them. I may, however, say too that such personal feelings are not conducive to rendering the testimony of these sorely afflicted ones a suitable basis for finding the real truth. I am thinking of the form of oath so often heard here on the part of the witnesses: "Swear that you will tell without hatred or fear..." And these official reports often contain not only factual statements, but final conclusions and judgments.
DR. NELTE: To this extent, the probative value of these official reports cannot be recognized. In part these judgments go so far that outside the sphere of those directly involved they level reproaches against authorities, that is, the OKW and Keitel, without it being possible to recognize from the document itself on what the conclusion drawn rests. As long as it is a question of the indictment of an individual like the Defendant Keitel, a document used in evidence must give a proof which yields concrete facts for responsibility or which at least reveals causal connection. Above all, it cannot suffice, in order to consider Keitel's responsibility as proved, if in such reports crimes committed by soldiers and officers of the Army or of the Armed Forces are alleged in order to derive responsibility on the part of the Defendant Keitel from this fact alone, because he was the Chief of Staff of the OKW. It must be added that in these reports military agencies have often been erroneously named and confused; for example, when the Defendant Keitel is spoken of as the "High Commander (Oberkommandierender) of the Wehrmacht," which is called "OKW" instead of "OKH." It is not always possible to decide to what extent it is a question of an erroneous conception on the part of the Prosecution or whether it comes from a translation which is not in accordance with the meaning. In order to examine the responsibility of the Defendant Keitel, I wish to make clear to the Tribunal, in a manner which excludes any doubt, what the channels of command and competence were and to this end I have submitted two affidavits to the Court a) "The Channels of Command in the East" (Document Book 2, Keitel-10); b) "The Development of the Situation in France 19401945 and the Military Authorities" (Document Book 2, Keitel-13). The latter affidavit has also been signed by the Codefendant Jodl. I refer to these affidavits and make them the contents of my argument without reading from them.
DR. NELTE: Finally I would like to direct the attention of the Tribunal toward other circumstances which may well impair the probative value of the documents which the Prosecution has submitted and you have accepted-for example, when documents do not bear any signatures, and it is impossible to decide whether it is a question of copies of documents which have actually been issued. As an example I will refer to Document 081-PS, which was submitted by the Prosecution for Keitel's Indictment during the question of the treatment of prisoners of war. As far as its contents are concerned it is a fabulous document. Keitel does not remember ever having seen this report or ever having knowledge of the details contained in it. From all appearances one must consider this document as the draft of a report which was not issued, for: a) it bears neither a signature nor an initial as is usual in copies, b) if this fetter had been sent out, it would have a blank journal number; and c) the letter was not found at the addressee's. In such cases mere knowledge of the addressee-in this case the Defendant Keitel-and the consequent deduction of his guilt in omitting to take measures to change conditions cannot be considered as proved. I come to the Indictment against Field Marshal Keitel. I shall shorten the reading of Pages 19 to 21. The reading of the general Indictment and the special Indictment in the trial briefs can be omitted here since, with the exception of the Jewish problem and the persecution of the Church, there is no part of the Indictment which the Prosecution has not raised against the Defendant Keitel. I should wish merely to point out that the original general Indictment holds Keitel responsible only for the period after 1938 and secondly, that at the beginning of the Indictment, Keitel is described as Chief of Army Command.
DR. NELTE: According to the evidence submitted by the Prosecution, Keitel was also held responsible for the period after 1933, although the American, British, and French Prosecutions seem to have dropped the allegation that Keitel was Chief of Army Command. The Indictment of Field Marshal Keitel is split, therefore, between the periods 1933 to 1938-that is, 4 February 1938-and from 4 February 1938 until the end. I shall now continue on Page 21, the last paragraph. Herewith the defendant is not only indicted as a member of the conspiracy but is also accused of personally participating in all the crimes in the Indictment. The space which the Prosecution has devoted to the defendant in its statements corresponds with the comprehensive Indictments. The name of no other defendant has been mentioned so often by the Prosecution as that of the Defendant Keitel. Again and again we hear the words "Keitel order," "Keitel's decree," and just as often "order of the OKW," "directives of the OKW," along with Keitel's name as "Chief, OKW" after 4 February 1938. From this is derived the very substance of the Indictment, namely, the position the Defendant Keitel occupied after 4 February 1938. But from it is also derived the scope of the justification. Here it is not a question of examining to what extent the defendant participated in the individual facts of the case, which in the long run arose from the so-called "Keitel orders" or "OKW instructions"; but what matters is the position he occupied- whether he took part and what part he took in the planning and execution of those orders and instructions, and finally and most important of all, whether his part in it was causal and culpable in the sense of the law which is to be applied here. It seems to be of importance to stress from the outset several points of view which are important for the treatment of the case and for its judgment.
THE PRESIDENT: Would that be a convenient time to break off? [The Tribunal recessed until 1400  hours.] Afternoon Session
DR. NELTE: The defendant has declared that he admits the objective, that is, the factual contents of the general Indictment to have been proved (that is to say, not every individual point), taking into consideration the law of procedure governing this Trial. It would therefore be senseless, despite the possibility of refuting various documents or individual facts, to attempt to shake the Indictment as a whole. Therefore, I shall confine myself mainly to the questions concerning the subjective facts and the conspiracy, and I will treat only these individual points which require treatment because of their special importance concerning the personal participation of the Defendant Keitel. The disproportion between the import of past events and the defendant's fate as an individual is so great that the Defendant Keitel, even if not impelled by conscience, must have known after reflection that such a course on my part would lay him open to the suspicion that he was fighting here for his life. But the defendant has already made it quite clear in his argument that he is not fighting to save his head, but fighting to save face. The defendant belongs to those men who came into the public eye through Adolf Hitler's death. From 1938 onward he was in his closest circle and was his almost constant companion. It is clear to him what that means for this Trial. It has often been alleged by the Prosecution that by referring to the dead the defendants desired to unload their own responsibility upon them. If it is the purpose of this Trial to obtain the most faithful picture possible of events and connections, it is not fair to start out by discrediting any mention of those who are dead, and who-as the Prosecution also know- are the major culprits. This is especially true of the Defendant Keitel, whose position, influence, and actions cannot possibly be judged correctly without throwing light upon the person of Adolf Hitler and upon his relationship with Keitel. As can already be seen from Mr.
DR. NELTE: Justice Jackson's opening statement, we are dealing here with an indictment against the National Socialist system. Actually, the Indictment is a global indictment against this system, split up into 21 individual indictments. The individual defendants are, to a certain extent, mere symbolic figures of the spheres of authority of the State which was ruled by this system: namely, Party, Government, and Armed Forces. If I understand Mr. Justice Jackson correctly, he goes even further in saying: "Above all personal forces are nameless. and impersonal forces; their conflict with each other makes up much of humanity's history.... What are the real forces which are battling here in front of you?" This statement raises a problem which, Gentlemen of the Tribunal, cannot be left unmentioned at this Trial, a problem which M. de Menthon also pointed out: The importance and influence of those forces which shape fate. Fate and guilt are not two poles which exclude each other from their respective spheres; they are areas which overlap so that there are spheres of life and spheres of activity in which the interplay of these two forces make the world move. One can only hint briefly here as to what forces are at work which shape fate, that is to say, what forces cannot be considered as originating in the conscious will of the individual defendants: The sense of national unity, historic events, opinions which are rooted in tradition and environment. Therefore, I will have to go into this background insofar as it is relevant to the Defendant Keitel as a person and as a type of one of the groups under the Indictment, because thus only will you be given the possibility of obtaining a correct picture of the share which the Defendant Keitel had in what has happened.
DR. NELTE: I also want to state that everything I am about to say is said with the full agreement of the Defendant Keitel; and insofar as aspects and facts are stated which might exonerate the Defendant Keitel, they should be taken as a contribution toward the clarification of what has happened, and as an answer to the question of how things could have reached that point. He does not wish to have his position or the part which he played in this drama minimized, but he is anxious at the same time to avoid giving a distorted picture of his character. The defendant has already stated on the witness stand that he was grateful for the opportunity this Trial afforded him to give an account, to the world public and the German people of what he did and why he did it. He wishes to help in ascertaining the historical truth of what happened. I consider it my obligation to express this opinion of the Defendant Keitel because this attitude, based on such reasons, made it considerably easier for me to conduct his defense. It was, and is, clear to the Defendant Keitel that if one considers the horrible consequences and monstrous deeds which-without here raising the question of guilt-undoubtedly were committed by German people, and which can indisputably be traced back to orders and directives with which Keitel came into contact in some form, then one will experience a feeling of guilt, without considering whether this is guilt in the legal sense or the tragic feeling of being linked by fate with the causes and thereby also the consequences. The Prosecution has maintained that: "At one time all the defendants had banded together with the Nazi Party for a plan which they well knew, could be realized only by the outbreak of a war in Europe." With regard to the Defendant Keitel, it is said that from 1933 on he took active part in this conspiracy.
DR. NELTE: To prove its thesis the Prosecution stated: (a) that the National Socialist program in itself, according to its wording and meaning, could be realized only by using force; (b) that the Defendant Keitel recomputed, or should have recognized this; (c) that recognizing this he, together with the others, especially the codefendants, planned and prepared aggressive wars. As regards these statements, I would like to call the Tribunal's attention, first of all, to the principal part of Mr. Justice Jackson's bill of Indictment, in which he deals with the program of the Party. He mentions there a number of points of the program, about which he says: "Naturally, these were all aims which were legally unimpeachable." At a different point he says: "I do not criticize this policy; I wish it were generally recognized. Naturally, this acknowledging criticism is subject to the one limitation: As long as these aims would be achieved without an aggressive war." According to that, the Prosecution itself do not assume that the wording and meaning of the Party program were such that normal persons would recognize that these Party political aims could be realized by use of force only. I do not wish to repeat what in this connection was said by the individual defendants at their hearings in court. Especially convincing appeared to me what Dr. Schacht stated on this subject. He concludes his critical examination of the important points of the Party program with these words: "These are essentially the contents of the National Socialist Party Program, and I cannot find that anything criminal lies therein." I quote this statement especially because it shows how this program and its recognizable objectives affected a person who may be characterized as intelligent, realistic, free from emotional impulses in politics, and possessing economic penetration and judgment. If that person did not recognize that the Party aims were to be realized by use of force, how was the soldier Keitel to' come to such a realization? Keitel was a professional officer.
DR. NELTE: As such he could not be a member of the Party. Officers were prohibited from any political and Party political activity. The Armed Forces command was intent on keeping the influence of Party politics away from the Armed Forces. This was true both for the time before 1933 and afterward. Hitler himself confirmed this principle because he clearly recognized that the time was not yet ripe for giving the corps of officers, let alone the senior officers, a political character. According to the tradition and conception of their profession, those senior officers had a "national attitude," as one used to say, and they welcomed the national points of the program which were placed in the foreground by Hitler; they were glad about the co-operation of the Armed Forces and without hesitation placed themselves behind the Government led by Hitler when it proclaimed the fight against the Treaty of Versailles, especially against its military political clauses. An agreement going beyond these aims, or possibly a union with a political object in view, did not exist. The generals, among them also Keitel, thought no differently from millions of Germans who were not Party members or who were opponents, but who regarded the national aims as being a matter of course. Now, one cannot fail to see that it is somewhat different if millions of Germans, who had no influence, supported that part of the program relating to the national aims, or if the senior officers, who led the Armed Forces, support it. Furthermore, it cannot be overlooked that the realization of these national aims carried with it the danger of a war. But the state of things seems to me to be such that the generals saw the danger of war not so much in the fact that Hitler wanted to realize these national aims by an aggressive war, but rather in the fact that the realization of these aims would entail sanctions by the former enemy powers. The idea of a realization by aggressive, warlike means was far from the generals' minds for the absolutely compelling reason of military impotency.