dtufail/nuremberg-trials-corpus huggingface dataset:
DR. NELTE: From the subject and from the contents it can be seen that this is an order designed to combat the resistance movement in the eastern and southeastern war theaters, and therefore is related to the basic principles of the so-called ideological war against the Soviet Union, which has been already dealt with at another place, and condemned. When the communication of 16 September 1941 was addressed to the Military Commander in France by the High Command of the Army for information purposes the latter had already decreed the so-called "Hostages Law" (Document Number 1588-PS). Accordingly no causal connection existed, as the French Prosecution has assumed, between the directives signed by Keitel and ordered by Hitler in Document 389-PS, and the hostage legislation in the West. The latter had been decreed without collaboration or consultation of the OKW. The agency to which the Military Commanders in France and in Belgium were subordinated was the High Command of the Army (OKH), and not the OKW; the agency which specialized in this matter was the Quartermaster General (in the OKH). With regard to this it must also be considered that at this period of time Hitler himself was the Commander-in-Chief of the Army, which explains the above-mentioned references to the OKW. In reality, they were not references to the OKW, but to Hitler as Supreme Commander of the Armed Forces and Commander-in-Chief of the Army, which were partially routed through Hitler's working stair (the OKW). This however establishes no competence and thereby no responsibility of the OKW and the Defendant Keitel as Chief of the OKW. In conclusion I request permission to hand in some literature to the Tribunal demonstrating present-day opinions pertaining to international law with regard to the question of hostages for consideration in the examination of these facts in the case.
DR. NELTE: I limit myself to reading the summarization of expert opinions and military practices: "In summarizing it must be said, concerning the question of taking hostages and the execution of hostages, that according to existing practices and probably also according to existing rules of international law, the taking of hostages in occupied territory is permissible under international law insofar as hostages are taken in order to guarantee the proper legal behavior of the enemy civilian population. According to the commentary by Waltzog, which is standard for the German conduct of warfare, it is also a formal requirement, whenever hostages are taken according to unwritten international law (common law), that such taking of hostages, the reasons therefor, and in particular the threat of their execution must be brought to the knowledge of those for whose lawful behavior the hostages are to go bail. The question as to whether it is permissible to execute hostages cannot be interpreted unequivocally. The German jurisprudents of international law, like Meurer, the Englishman, Spaight, and the Frenchmen, Sorel and Fumek, consider this permissible in the extremes of emergency, and therefore not contrary to international law." During the whole course of this Trial, no order made such a deep impression on the mind of the public as did the Night and Fog Decree. This was an order which originated during the fight waged against acts of sabotage and against the resistance movement in France. As a result of the withdrawal of troops in connection with the campaign against the Soviet Union, the number of plots aimed against the security of German troops stationed in France, and in particular the acts of sabotage aimed at the destruction of all means of communication increased daily. This 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.
DR. NELTE: These sentences were very severe. In addition to a large proportion of death sentences, sentences of imprisonment were also passed. The reports made almost daily during the situation conferences led to violent disputes in which Hitler, in accordance with his usual habit, tried to find someone on whom to put the blame; in this instance he fixed upon the far too cumbersome handling of military justice. In his spontaneous and explosive way, he ordered directives to be worked out for a rapid, effective, and lasting intimidation of the population. He declared that imprisonment could not be considered an effective means of intimidation. To Keitel's objection that it was impossible to sentence everyone to death and that military courts would, in any case, refuse to co-operate, he replied that he did not care. Offenses found sufficiently grave to necessitate the imposition of capital punishment without very lengthy court proceedings would continue to be dealt with as before- that is, by the courts-but where this was not the case, he would order the suspected persons to be brought secretly to Germany and all news of their fate to be withheld, since the publication of prison sentences in occupied territory was robbed of its intimidating effect by the prospect of the amnesty to be expected at the end of the war. The Defendant Keitel thereupon consulted the chief of the Judge Advocate's Office of the Armed Forces and the chief of the counterintelligence office (Canards), who is also the originator of the letter of 2 February 1942, Document UK-35, on the procedure to be followed. When repeated applications made to Hitler to refrain from this procedure, or at least not to insist upon complete secrecy, had no effect, they finally submitted a draft which we have before us in the well-known decree of 7 December 1941. The staff of experts and the Defendant Keitel had succeeded in establishing the competency of the Reich Administration of Justice for the persons removed to Germany (see last paragraph of directives of 7 December 1941).
DR. NELTE: 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 Fuehrer..." The closing sentence runs: "The attached directives... represent the Fuehrer's views." Persons who received such letters knew from that wording that here was another order of the Fuehrer which could not be evaded, and concluded that the order should be applied as leniently as possible. The letter of 2 February 1942 originated with the counterintelligence office (Amt Ausland Abwehr), and the original which is before you must have been signed by Canaris. At that time the defendant was not in Berlin where, after promulgation of the decree of 7 December 1941, the matter was dealt with further. Keitel, at the Fuehrer's headquarters, was not informed of the contents of the letter.
DR. NELTE: 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.
DR. NELTE: The evidence presented to this Tribunal must lead to the conclusion that all political suspects who, as a result of political measures, were removed from the occupied territories to Germany for detention in concentration camps were without the knowledge of the military authorities designated "NN" prisoners by the Police, for according to the testimonies we have heard the majority of persons in "NN" camps had not been formally sentenced by military courts in occupied territories for transfer to Germany. It is evident therefore that Police authorities in the occupied territories made use of this decree as a universal and unrestricted carte blanche for deportations, exceeding every conceivable limit and disregarding the exclusive rights exercised by the military authorities and the rules of procedure imposed upon them. Such a state of affairs in the occupied territories without the knowledge of the Armed Forces authorities can only be explained by the fact that as a result of the appointment of Higher SS and Police leaders the military commanders of the occupied territories no longer had executive powers in Police affairs and that these Higher SS and Police leaders received their orders from the Reichsfuehrer SS. The Reichsfuehrer SS and the Higher SS and Police leaders were never authorized by the OKW to apply this decree, which was intended as a police executive measure to be used only by the Armed Forces. The decree affected only those offices of the Armed Forces exercising judicial authority; and it is clear from the wording that it was restricted to these and drafted to apply to them. The German Armistice Commission's letter of 10 August 1944 (Document 843-PS) proves that the OKW really had no knowledge of this improper application of the decree of 7 December 1941.
DR. NELTE: 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 Fuehrer decree of 7 December 1941, the so-called Night and Fog Decree. It contains no statement to the effect that the original conditions for deportation to Germany were changed by the OKW. This reply, however, was sent from Berlin without the knowledge of the Defendant Keitel; and the Armistice Commission's letter was obviously also sent to Berlin, where the legal department of the Armed Forces was situated. Keitel himself was at the Fuehrer's headquarters and did not hear of the correspondence.
DR. NELTE: It must be admitted that failure to reply immediately to the German Armistice Commission's letter of 10 August 1944, with the explanation that this constituted an abuse of the decree of 7 December 1941 and the directives issued in connection with it, was a grave omission. An investigation should have been initiated at once in order to find and punish those responsible for this abuse. Insofar as the Tribunal should regard Hitler's military staff as guilty, the Defendant Keitel accepts responsibility within the scope of his general responsibility as Chief of the OKW.
THE PRESIDENT: Perhaps this will be a convenient time to take a recess. [A recess was taken.7
DR. NELTE: Mr. President, the Prosecution have charged the Defendant Keitel with participating in the deportations for the purpose of obtaining forced labor. In this connection Keitel declares that his competency did not cover the procurement, recruiting, and conscription of people in the occupied territories nor did it cover allocation of the labor forces procured in this way for the armament industry. The Codefendant Sauckel confirmed this in his testimony of 27 May 1946. Mr. President, I should like to have official notice taken of the following statements without my reading them. My colleague Dr. Servatius, according to our agreement, will explain the connection between the Armed Forces replacement and the procurement of manpower through the Plenipotentiary General for the Allocation of Labor. The Codefendant Sauckel gave the following testimony: "Question: You mean by that that the OKW and the Defendant Keitel had no functions whatsoever appertaining to the matter of procurement, recruiting, and conscription of labor in the occupied territories? 4`Answer: He had no function whatsoever appertaining to this matter. I got in touch with Field Marshal Keitel, because the Fuehrer frequently charged me to ask Field Marshal Keitel to transmit his orders by phone or by instructions to the army groups. "Question: Did the OKW, and in particular Keitel as Chief of the OKW, have any function appertaining to the question of labor allocation in the homeland? "Answer: No; because the commitment of workers took place in the economic branches for which they had been requested. They had nothing to do with the OKW." During the cross-examination by General Alexandrov documents were presented which, according to the opinion of the Prosecution, should prove the participation of Keitel and the OKW. In this connection it must be examined whether and in what way the OKW and Keitel had participated in the sphere of duty of Defendant Sauckel as Plenipotentiary General for the Allocation of Labor (GBA).
DR. NELTE: Document USSR-365, presented by the Prosecution, contains the basic provisions concerning spheres of tasks and powers of the GBA, the decree of 21 March 1942 about the appointment of Sauckel as GBA, the order of Goering as Delegate for the Four Year Plan dated 27 March 1942, the program for labor allocation, and the task and solution as conceived by Sauckel. These documents give expression to the relationships and contacts of the GBA with many offices. These relationships and contacts vary in their nature. The jurisdiction and the official channels in the sphere of tasks of the GBA are clear: He is the spokesman for the Four Year Plan (Order Number 3 of 27 March 1942) and he was therefore subordinate to Reich Marshal Goering and Hitler, who was identified with the Four Year Plan. The relationships and contacts of the OKW or Keitel with the GBA and his sphere of tasks, according to the outcome of the evidence (testimony of Keitel, Sauckel, and the documents) were as follows: The replacement system for the whole Armed Forces was under the jurisdiction of the Defendant Keitel in his capacity as Chief of Staff of the High Command of the Armed Forces (OKW). Losses at the front were reported to the OKW by each individual branch of the Armed Forces and at the same time replacements were requested. On the basis of these requests, Keitel submitted a report to the Fuehrer, according to which replacements had to be procured for the troops of the various branches of the Armed Forces at certain designated times by the service commands through their replacement inspectorates. The replacement inspectorates consequently called up the recruit year group besides those draftees who had been deferred up to that time.
DR. NELTE: With the war progressing, the result was almost invariable that, for instance, the Armament Ministry (for the deferred employees of the armament industry), the Ministry for Agriculture (for the deferred employees of agriculture), the Transportation Ministry (for the deferred employees working for the railroad), et cetera, made the greatest difficulties with regard to the demands of the replacement authorities, and protested against them. They pointed out that the tasks of the various departments would suffer dangerously if the deferred employees were removed without further ado. The competent ministers requested that before the release of deferred employees new workers should be procured to make up for those released. Therefore, the matter was referred by way of the labor offices to the Plenipotentiary General for the Allocation of Labor (GBA), whose task it was to procure the necessary manpower for the domestic labor allocation required. The Defendant Sauckel as the GBA, who as a special deputy personally did not have at his disposal an independent organization of his own for the recruiting, procurement, and possible conscription of labor, was therefore forced to get in touch with the competent authorities in the occupied territories for the execution of his task. (a) In the occupied territories under civil administration (Holland, Norway, East), it was the Reich Commissioner who had to assist Sauckel. (b) In the territories under military commanders (France, Belgium and the Balkans) it was the Quartermaster General of the Army. (c) In Italy, in the highest instance, it was the Ambassador, Hahn. This is obvious from the decree of 27 March 1942. Before Sauckel became active in the execution of his task in the various territories, he invariably turned to Hitler, whose subordinate he was with respect to the Four Year Plan, in order to obtain through his instructions the necessary backing by the local authorities.
DR. NELTE: This was done in such a way that the order was issued to the local authorities to give Sauckel the assistance which he considered necessary for the execution of his task. The Defendant Keitel was not present at such discussions between Hitler and Sauckel, nor did he have any jurisdiction or competence in these questions. However, somebody had to inform the local authorities about Hitler's orders, and the result was that Hitler, who did not recognize any difficulties of jurisdiction, told the next best man to inform the local authorities about Sauckel and to point out Hitler's wish to grant him all the necessary assistance. These "next best" were Keitel, for the military administration of the occupied territories, or Dr. hammers, for the territories under civilian administration. Such was the contact which existed between Keitel and Sauckel in this matter. How the details of recruiting or otherwise procuring labor were carried out was not within the competence of the OKW, nor did they receive any reports on the matter. The interest of the OKW was limited to the fact that the required number of soldiers were placed at its disposal through induction by the replacement authorities. In particular, the OKW and the Defendant Keitel had nothing to do with the allocation of the labor procured by the Plenipotentiary General for the Allocation of Labor within war economy, this was solely the business of the labor offices, where firms requiring labor requested the workers deemed necessary. (1) The name of Keitel stands at the beginning of Sauckel's activity, as submitted by the Prosecution, because Keitel was cosignatory to the Fiihrer decree concerning the Plenipotentiary General for the Allocation of Labor (Document USSR-365). From repeated references of the Prosecution to this fact the conclusion must be drawn that apparently it sees in this cosignatory act of the Defendant Keitel the beginning of a chain of developments, at the end of which stood such frightful happenings as were presented here.
DR. NELTE: In this connection I would refer to the significance, expounded elsewhere of the cosignature by Keitel as Chief of the OKW on such decrees of the Fuehrer This fact, which penally cannot be considered as determinative, does not constitute guilt for the reason that all conception of the events occurring during the further course of developments was lacking. (2) If the Fuehrer's decree of March 1992 provides the legal origin of the Plenipotentiary General for the Allocation of Labor (GBA), the first step in the participation of this official is also connected with the name of Keitel as head of the OKW, as the personnel replacements matters were subordinated to him and he made his requests for replacement of losses at the front to the subordinate military replacement offices. Here also the same applies as in (1), as neither an appreciable determinative effect nor criminal guilt was involved. (3) Owing to the situation, as characterized by the shortage of manpower, there came into being a purely factual connection between the military personnel requirements and the requirements of the economic replacement of workers, without Keitel thereby coming in contact with the GBA either as regards competence or orders. Sauckel confirmed the statement of Keitel that the OKW had nothing to do with the recruiting, levying, or any other mobilization of labor, nor with the allocation of the labor procured for German economy. I have to refer to some documents which the French Prosecution have submitted to incriminate the OKW and Keitel on account of active participation in deportation. These are Documents 1292-PS, 3819-PS, 814-PS, and 824-PS. The first document is a marginal note by the Chief of the Reich Chancellery, Dr.Lammers, on a conference with Hitler, at which the question of procuring labor for 1944 was discussed. The Defendant Keitel took part in this discussion. Annexed to this report is a copy of a letter from the Defendant Sauckel dated 5 January 1944, in which he sums up the results of the conference of 4 January and proposes a Fuehrer decree.