I quote from the penultimate paragraph:

The document therefore proves that Field Marshal Keitel took part in a conference, without, however, stating his point of view on the problem of labor procurement; and that he was to be informed of the Führer decree so that the military commanders might be informed. This confirms what the Defendant Keitel stated in the passages which I have not read as to how he came to be concerned with this question. The second and third documents refer to a conference in the Reich Chancellery on 11 July 1944, in which Field Marshal Keitel did not take part.

Now the French prosecutor has made the statement that the teletype is an order issued by Field Marshal Keitel to the military commanders to carry out the decisions of the conference of 11 July. M. Herzog has said in this connection that Keitel’s order was dated 15 July 1944. A brief examination of the document, a photostat, shows it to be a teletype dated 9 July, containing an invitation from the Chief of the Reich Chancellery, Dr. Lammers, to a conference on 11 July, which invitation Keitel transmitted to the military commanders.

This was, therefore, an error. The conclusions based by the Prosecution on this document are therefore also invalid, but the document is interesting from another point of view as well. It contains the following statement:

The Defendant Keitel requested me to call the attention of the Court to this method of expression for the following reasons: Numerous documents bearing the signature “Keitel” have been submitted here. In accordance with his position, which has already been described and which excluded all powers of command, Keitel never used the first person in communications or transmissions of orders. Apart from this document, only one other teletype was submitted by the Prosecution in which the first person is used. In consideration of the large number of documents which bear out Keitel’s statement, his claim that he was transmitting an order from the Führer must be believed; and, indeed, the whole style of wording is that of a Führer order.

General Warlimont (Document 3819-PS) also expressly refers during the conference of 11 July to a “recently issued Führer order,” the contents of which as reproduced by him are exactly as contained in the teletype directive bearing the signature “Keitel.”

The newly-submitted Document F-824 (RF-1515) is also significant and confirms the evidence given by the Defendant Keitel. This is a letter written on 25 July 1944 by the Commander-in-Chief West, Von Rundstedt, who in the meantime had become the Chief of the Military Commanders in France and Belgium. It states that “by order of the Führer the demands of the GBA and of Speer are to be fulfilled”; further, that in the event of evacuation of the battle area measures must be taken to secure refugees for labor and finally, that reports on the measures taken must be sent to the OKW.

This reference to the Führer’s order shortly after 11 July 1944 shows, as does Warlimont’s statement, that no directives from Keitel or the OKW existed. It may therefore be considered proved that neither Keitel himself nor the OKW had any part in measures for the recruitment or conscription of labor. The OKW was the office responsible for transmitting the orders which Hitler as Sauckel’s superior wished to forward to the military commanders; it had no competence and no legal responsibility.

Nor is this complex in line with subjects within the ministerial scope of the OKW, where at least there functioned a team of experts providing an opportunity for voicing objections.

In the sphere of labor procurement and labor commitment Keitel was in contact with Sauckel’s activities at the following points:

(a) He was cosignatory of the Führer’s decree of 21 March 1942 concerning the appointment of the GBA;

(b) He transmitted Hitler’s orders to support the activities of the GBA by special instructions to the local military authorities in the occupied territories.

Now, the French Prosecution, at the session of 2 February 1946, made the following statement in regard to the deportation of the Jews, within the scope of the Defendant Keitel’s responsibility:

If you examine the very detailed treatment of this point of the Indictment you will find that the High Command of the Armed Forces is not mentioned and that no document is produced which originates either with the OKW or with the Defendant Keitel. It appears from the Keitel affidavit, Document Book 2, that the military commander for France, who is mentioned several times, was not subordinated to the OKW. In handling this question the Prosecution have attempted to prove that the “Army” as M. Faure says, co-operated with the Foreign Office and the Police, and is endeavoring to place responsibility for this co-operation upon the highest authorities, that is, in the case of the Army, on the OKW, and therefore on Keitel. This deduction is erroneous. In order to make that clear, I must point out that there was a military commander in France. This military commander was invested with civil and military authority and represented the defunct state authority, so that in addition to military tasks he had police and political functions. The military commanders were appointed by the OKH and received their orders from the latter. It follows that on this question they had no direct relations with the OKW. Since the Defendant Keitel as Chief of the OKW was not superior to the OKH, there is likewise no direct relation either of subordination or seniority.

M. Faure’s statement in this connection is unfortunately true. In France there existed a large number of authorities who worked along different lines, contradicted each other, and frequently encroached upon each other’s spheres of competency. The OKW and the Defendant Keitel had actually nothing to do with the Jewish question in France or with the deportations to Auschwitz and other camps; they had no powers of command or control, and therefore no responsibility.

The fact that the letter K in the telegram of 13 May 1942 (Document RF-1215) was interpreted to mean Keitel is characteristic of the attitude adopted by the prosecuting authorities, all of whom assumed that the Defendant Keitel was implicated. The French Prosecutor has fortunately cleared up the error.

The Prisoner-of-War Question.

The fate of prisoners of war has always aroused considerable feeling. All civilized nations have tried to alleviate the fate of soldiers who fell into the hands of the enemy as far as was possible without prejudicing the conduct of the war. The reaching of an agreement to be adhered to even when the nations were engaged in a life and death struggle has been considered one of the most important advances of civilization. The torturing uncertainty with regard to the fate of these soldiers seemed to be ended; their humane treatment guaranteed; the dignity of the disarmed opponent assured.

Our belief in this achievement of human society has begun to waver, as in the case of so many other instances. Although the agreement was formally adhered to originally owing to the determined resistance of the general officers, we must nevertheless admit that a brutal policy oblivious of the nation’s own sons and of anything but its own striving after power, has in many cases disregarded the sanctity of the Red Cross and the unwritten laws of humanity.

The treatment of the responsibility of the Defendant Keitel in the general complex of the prisoner-of-war system comprises the following separate problems:

(1) The general organization of the treatment of prisoners of war, that is, the German legislation on the prisoner-of-war system; (2) the power of command over prisoner-of-war camps, which are classified under Oflag, Stalag, and Dulag; (3) the supervision and control of this legislation and its application; (4) the individual cases which have been brought before the Court in the course of the indictment.

Since the organization of the prisoner-of-war system has been set forth as part of the presentation of evidence, I can restrict myself to stating that Keitel was, by order of Hitler and within the scope of his assignments as War Minister, in accordance with the decree of 4 February 1938 competent and to that extent responsible: (a) for the material right to issue ordinances within the entire local and pertinent sphere, restricted in part by co-operation and co-responsibility regarding the utilization of prisoner-of-war labor; (b) for the general allocation of prisoners of war arriving in Germany to the corps area commander, without having powers of command over prisoner-of-war camps and prisoners of war themselves; (c) for the general supervision of the camps in the OKW area not including those within the zone of operations, the rear Army area, or the area of the military commanders, nor the Navy and Air Force prisoner-of-war camps.

The competent office in the OKW was the “Chief of the Prisoner-of-War Organization,” who was several times made personally responsible by the Prosecution. The Defendant Keitel attaches importance to the fact that the Chief of the Prisoners of War Organization was his subordinate through the Armed Forces Department. Hence the responsibility of the Defendant Keitel in this domain is self-evident, even in those cases in which he did not personally sign orders and decrees.

The basic regulations for the treatment of prisoners of war were: (1) The service regulations issued by the Chief of the OKW within the scope of normal preparations for mobilization, and laid down in a series of Army, Navy, and Air Force publications; (2) the stipulations of the Geneva Convention, to which special reference was made in the service regulations; (3) the general decrees and orders which became necessary from time to time in the course of events.

Apart from the treatment of Soviet Russian prisoners of war who were subject to regulations on an entirely different basis, to which I shall later make particular reference, the provisions of the service regulations in accordance with international law, that is the Geneva Convention, held good. The OKW exercised supervision over the strict observance of these Army service regulations through an Inspector of the Prisoners of War Organization and, from 1943 on, through a further control agency, the Inspector General of the Prisoners of War Organization.

The representatives of the protecting powers and the International Red Cross may be considered as constituting an additional control agency, which no doubt submitted to the various governments reports on inspections and visits to the camps, in accordance with the provisions of the Geneva Convention. No such reports have been submitted here by the Prosecution; I shall come back to the charges made here by the French prosecutor. But the fact that the British and American prosecutors, for instance, have not submitted such reports may well permit the conclusion that the protecting powers did not discover any serious violations with regard to the treatment of inmates of prisoner-of-war camps.

The treatment of prisoners of war, which led to no serious complaints during the first few years of the war with the Western Powers—I except isolated cases like that of Dieppe—became more and more difficult for the OKW from year to year, because political and economic considerations gained a very strong influence in this sector. The Reichsführer SS tried to get the Prisoners of War Organization into his own hands. The resulting struggles for power caused Hitler to turn over the Prisoners of War Organization to Himmler from October 1944 on, the alleged reason being that the Armed Forces had shown itself to be too weak and allowed itself to be influenced by doubts based on international law. Another important factor was the influence exerted on Hitler, and through him on the OKW, by the labor authorities and the armament sector. This influence grew stronger as the labor shortage increased.

The Party Chancellery, the German Labor Front, and the Propaganda Ministry also played a part in this question, which was in itself purely a military one. The OKW was engaged in a constant struggle with all these agencies, most of which had more influence than the OKW.

All these circumstances must be taken into consideration in order properly to understand and evaluate the responsibility of the Defendant Keitel. As he himself had to carry out the functions “by order,” and since Hitler always kept the problem of the Prisoners of War Organization under his personal control for reasons previously described, the Defendant Keitel was scarcely ever in a position to voice his own, that is, military, objections against instructions and orders.

The Treatment of French Prisoners of War.

As a result of the agreement of Montoire, the keynote to apply to relations with French prisoners of war became “collaboration.” Their treatment moved in the direction indicated by this; and discussions with Ambassador Scapini brought about a considerable improvement for them. In this connection I refer to the affidavit of Ambassador Scapini, who states among other things:

The prisoners of war used for labor were scarcely guarded, and those employed in the country had almost complete freedom of movement. By virtue of the direct understanding with the Vichy Government there were considerable alleviations in comparison with the rules of the Geneva Convention, after repatriation under the armistice provisions had very considerably lessened the number of the original prisoners of war.

To mention just a few ...

THE PRESIDENT: Dr. Nelte, is there anything very important in these next few pages, until you get to Page 183?

DR. NELTE: It is the treatment of the French ...

THE PRESIDENT: If you would only deal with it in a very general way. I should have thought there was nothing very important until you get to Page 183 where you begin to deal with the accusation in reference to the Sagan case. You see, it is 12 o’clock now.

DR. NELTE: I believe that by 1 o’clock I shall be through. Or am I to understand your remark to mean that you are limiting my speech to a certain time? I asked you to grant me 7 hours for my speech, and my request ...

THE PRESIDENT: That is what the Tribunal’s order was.

DR. NELTE: I submitted my request to the Tribunal, and believed I could assume that in this particular case my request was granted, but if that is not the case ...

THE PRESIDENT: Well, the Tribunal will give you until 12:30 on account of any interruptions which I may have made. But I again suggest to you that there is really nothing between 178 and 183 which is of any real importance.

DR. NELTE: I hope, Mr. President, that that does not mean that these statements are to be considered irrelevant. I think my subjective opinions ...

THE PRESIDENT: I said “of real importance.”

DR. NELTE: (1) Release of all prisoners of war born in or before 1900; (2) release of fathers of families with numerous children and widowers with children; (3) considerable alleviation of the mail and parcel facilities; increased German support for officers’ and enlisted personnel camps by establishing institutions for entertainment and physical welfare of the prisoners of war; (4) for officer candidates, facilitation of their further training in their civilian occupation and care by a French General, Didelet.

As Ambassador Scapini himself has testified, he and the members of his delegation had complete freedom of correspondence with and access to all camps and labor detachments, except for special military reasons in isolated cases. The members of the delegation were able to speak to their prisoner comrades privately, like every representative of a protecting power, and they were particularly able to make detailed inquiries about conditions with the French camp leader or the trustees, who were elected by the prisoners of war themselves. In addition to this, officers who had been selected by him personally were placed at his disposal as his assistants.

The subsequent regrettable occurrences, as presented by the French Prosecution here, resulted from the deterioration of the political and military situation. One of these occurrences was the escape of General Giraud, which Hitler, in spite of all arguments brought by the OKW, used to have measures against the French generals and officers increased in severity. The second decisive incident was the Allied invasion of Africa, which led to general unrest and to numerous attempts at escape. Finally, at the time of the last stage of the war, measures were applied which can only be explained by the—I would call it catastrophic—morale.

In examining the responsibility of the Defendant Keitel it must be considered that he did not possess any direct influence on the occurrences in the camps and workshops. His responsibility can only be determined if it is proven that he had caused a lack of necessary supervision, or that no intervention had taken place after learning of such occurrences. In this respect, however, there is no proof of guilt of the OKW.

The French Prosecution, in the charges against the Defendant Keitel, have presented a note from Ambassador Scapini to the German Ambassador, Abetz, of 4 April 1941 under a collective number, F-668. This refers to the retaining of French civilians in Germany as prisoners of war. This document states on Page 5:

I have asked the French Prosecution to pass on to me the note of the German Armistice Commission Number 178/41 of 20 January 1941, in which this decision of the OKW is mentioned. I believe that the copy of this note, which was attached to the communication of 4 April 1941 (Document F-668) should have been handed over with this document, because it was part of this document. Unfortunately this has not been done.

From the reference it can be seen that the OKW, and thereby the Defendant Keitel, held the view that things would have to be dealt with in a correct manner in accordance with the agreements with France, and that the OKW, which was the proper authority for these fundamental orders with regard to the prisoners of war, had decided to release all French civilians who were being treated as prisoners of war.

It is difficult to recognize how this document can serve as evidence of guilt of the Defendant Keitel. Rather will this document have to be regarded as symptomatic of the fact that the Defendant Keitel, when violations against existing agreements came to his knowledge, saw to it that they were stopped.

The Treatment of Soviet Russian Prisoners of War.

Hitler already regarded the prisoner-of-war problem as a personal domain of his legislation, and the more time passed, the less he regarded it from the points of view of international law and military needs, but rather from a political and economic angle. The problem in the treatment of Soviet Russian prisoners of war from the very beginning was also subject to ideological considerations which for him was the primary motive in the war against the Soviet Union. The fact that the Soviet Union was not a member of the Geneva Convention was exploited by Hitler, in order to obtain a free hand in the treatment of Soviet Russian prisoners of war.

He stated to the generals that the Soviet Union felt equally free from all stipulations which had been created by the Geneva Convention for the protection of prisoners of war. One must read the decrees of 8 September 1941 (Document Number EC-338, Exhibit Number USSR-356) in order to understand clearly Hitler’s attitude. In the official document of the counterintelligence office (Amt Ausland Abwehr) of 15 September 1941, rules were laid down, which were to be observed according to international law, concerning the treatment of prisoners of war where the Geneva Convention did not apply between belligerents.

The Defendant Keitel has testified on the witness stand that he had accepted the viewpoints laid down in this document and had presented them to Hitler. The latter strictly refused to rescind the decree of 8 September 1941. He told Keitel:

Keitel noted this passage down word for word and added to his written statement of 15 September 1941: “I therefore approve and countenance these measures.”

It was a typical example of Keitel expressing his doubts and Hitler taking his final decision. Keitel stood up for these decisions and did not let his subordinate offices know that he was of a different opinion. Such was his attitude. For this also he is, within the limits of his official position, taking responsibility.

What Keitel actually thought is revealed in the excerpt submitted as Document Keitel-6, Document Book 1, from the book Employment Conditions for Eastern Workers and Soviet Russian Prisoners of War. The Codefendant Speer has testified in cross-examination that he over and over again told the Defendant Keitel that any employment of prisoners of war of any enemy country in enterprises prohibited by the Geneva Convention was out of the question. Speer further testified that Keitel several times rejected any attempt to employ prisoners of war of any western nation in actual war plants.

The defense counsel for the Defendant Speer will also deal with this question in detail.

In addition, I just want to submit certain individual cases charged against the Defendant Keitel personally by the Prosecution, that is to say, cases where, in the opinion of the Prosecution, he is supposed to have exceeded the limits of the general responsibility inherent in his position.

I should not like to omit that case which was repeatedly mentioned—and rightly so—in the course of the evidence, the case of the 50 Royal Air Force officers, the shameful case of Sagan.

It particularly affects us as Germans, because it shows the utter lack of all restraint and proportion in the orders and the character of Hitler, who did not allow himself to be influenced for an instant in his explosive decisions by any thought of the honor of the German Armed Forces.

The cross-examination of the Defendant Keitel by the representative of the British Prosecution has determined how far his name too has been implicated in these abominable facts. Although the evidence clearly establishes the fact that Keitel neither heard nor transmitted Hitler’s murderous order, that he and the Armed Forces had nothing to do with the execution of this order and, finally, that he did everything in his power to prevent the escaped officers from being handed over to Himmler and did at least succeed in saving the officers who were taken back to the camp, he is painfully conscious of his guilt in not realizing at the time the terrible blow which such a measure must inflict on German military prestige throughout the world. In connection with the treatment of the Sagan case the French Prosecution confronted the Defendant Keitel with Document 1650-PS, which deals with the treatment of escaped prisoners of war.

This, Mr. President, is the so-called “Bullet Decree.” Considering the lack of time, I should like to deal shortly with this case, but I must deal with it because it is one of the most significant and gravest accusations against my client; I shall only summarize.

During his cross-examination, Keitel made the following statement:

Keitel says:

He cannot explain it; he can only assume how this order came to be issued by the Reich Security Main Office.

In his examination he mentions the various possibilities whereby such an order could have reached the office which issued it. Then he refers to another document, 1544-PS, which contains all the orders and directives concerning prisoners of war, but not this order referring to the escaped officers and noncommissioned officers.

The witness Westhoff has confirmed that the concept “Stufe III” and its meaning were unknown to him and to the office of the OKW Prisoners of War Organization. He also stated that on assuming office on 1 April 1944 he found no order of this nature, not even a file note.

The meaning of that Bullet Decree was completely obscure. I believe this obscurity has been cleared up by the evidence given by the Codefendant Kaltenbrunner, who on his part had never before spoken to the Defendant Keitel on the matter.

I pass on to Page 187, where Kaltenbrunner said:

From this it is safe to assume that, without consulting Keitel and without the latter’s knowledge, Hitler must have given a verbal order to Himmler, as stated in Document 1650-PS which was submitted here.

Now I come to Page 190 of my final plea:

This confirms the assumption which Keitel expressed in his interrogation, although Kaltenbrunner had not previously informed him that he knew of verbal orders given by the Führer.

3) In another case also, the one dealing with the branding of Soviet prisoners, Keitel’s statement in the witness box has proved to be the simple truth.

The witness Roemer has confirmed in her supplementary affidavit that the order to mark Soviet prisoners of war by branding was cancelled immediately after being issued. A further statement of the Defendant Keitel is therefore also credible, according to which this order had been issued without his knowledge, although naturally Keitel’s responsibility for the acts of the party concerned is not thereby contested.

4) In this connection I refer finally to Document 744-PS dated 8 July 1943, submitted in support of the charge against Keitel. It deals with the increased iron and steel program, for the execution of which the allocation of the necessary miners from among the prisoners of war was ordered. The first two paragraphs of the document read:

The last paragraph reads:

I submit this document, not because of its actual content, which will be taken up by the defense of the Defendant Speer, but because of its symptomatic evidential value for the answer of the Defendant Keitel, when he stated that Hitler was particularly interested in prisoner of war affairs and himself personally issued the principal orders and those he considered important.

5) The cases also connected with this complex such as: Terror-fliers, lynch law, Commando tasks, combat against partisans, will be dealt with by other defense counsels. The Defendant Keitel has made his statement regarding these individual facts during his interrogation and cross-examination.

For the subjective facts of the alleged crimes one element is of special importance: the knowledge of them. Not only from the point of view of guilt, but also in view of the conclusions which the Prosecution have drawn, namely, acquiescence, toleration, and omission to take any counteraction. The fact of knowledge comprises: (1) Knowledge of the facts; (2) recognition of the aim; (3) recognition of the methods; (4) conception of, or possibility of conceiving the consequences.

During the discussion of the question of how far the Defendant Keitel could possibly have drawn any conclusion as to the intention of realization by force from knowledge of the text of the National Socialist Party Program and from Hitler’s book, Mein Kampf, I have already demonstrated why Keitel did not have this recognition of a realization by force.

Keitel denied any knowledge of the intended wars of aggression up to the time of the war against Poland, and his statement is confirmed by Grossadmiral Raeder. This comment is certainly a subjective truth inasmuch as Keitel did not seriously believe in a war with Poland, not to mention one involving intervention by France and England. This belief, held by Keitel and other high-ranking officers, was based on the fact that the military potential was insufficient, according to past experiences, to wage a war with any chance of victory, especially if it developed into a war on two fronts. This belief was strengthened by the nonaggression pact signed on 23 August 1939 with the U.S.S.R.

However, that is not the core of the problem. The speeches which Hitler delivered before the generals, beginning with the conference of 5 November 1937, at which Keitel was not present, made it increasingly clear that Hitler was determined to attain his goal by any means, that is, if peaceful negotiations did not succeed, he was prepared to fight, or at least to use the Armed Forces as an agent of pressure. There is no doubt about that. It is a debatable point whether the text of Hitler’s speeches, of which no official record is available, is altogether accurately reproduced. There is, however, no doubt at all that they allow Hitler’s intentions to be clearly recognized.

A distinction must be made as to whether it was possible for his hearers merely to gather that a definite plan was to be carried out, or whether they could not but recognize the existence of a general aim of aggression. If they did not recognize this, the only explanation lies in the fact that the generals on principle did not include the question of war or peace in their considerations. From their point of view this was a political question which they did not consider themselves competent to judge since, as has been stated here, they were not acquainted with the reasons for such a decision and, as the Defendant Keitel has testified, the generals were bound to have confidence in the leadership of the State to the extent of believing that the latter would only undertake war for reasons of pressing emergency. That is a consequence of the traditional principle that although the Armed Forces was an instrument of the politicians it should not itself take part in politics—a principle which Hitler adopted in its full stringency. The Court must decide whether this may be accepted as an excuse. Keitel stated on the witness stand that he recognized the orders, directives, and instructions which had such terrible consequences, and that he drew them up and signed them without allowing himself to be deflected by any consequences which they might entail.

This testimony leaves three questions undecided: (1) The question of the methods used to carry out the orders; (2) the question of the conception of the consequences which actually followed; (3) the question of the dolus eventualis.

The Defendant Keitel, in his affidavit (Document Book Number 12), showed with reference to the so-called ideological orders how the SS and Police organizations influenced the conduct of the war, and how the Wehrmacht was drawn into events. The evidence has shown that on their own responsibility numerous Wehrmacht commanders failed to apply such terrible orders, or applied them in a milder form. Keitel, brought up in a certain military tradition, was unfamiliar with SS methods which made the effects of these orders so terrible, and they were therefore inconceivable to him. According to his testimony he did not learn of these effects in their full and terrible extent.

The same is true of the Führer’s Night and Fog Decree which I have just discussed. If he did not allow himself to be deflected by the “possible” results when he transmitted the orders, the dolus eventualis cannot be affirmed in regard to the results which took place. It must be assumed rather that if he had been able to recognize the horrible effects, he would, in spite of the ban on resignations, have drawn a conclusion which would have freed him from the pangs of conscience and would not have drawn him from month to month further and further into the whirlpool of events.

This may be an hypothesis; but there are certain indications in the evidence which confirm it. The five attempts made by Keitel to leave his position, and the fact that he resolved to commit suicide, which General Jodl confirmed in his testimony, enable you to recognize the sincerity of Keitel’s wish.

The fact that he did not succeed must be attributed to the circumstances which I have already presented: The unequivocal and, as Keitel says, unconditional duty of the soldier to do his duty obediently to the bitter end, true to his military oath.

This concept is false when it is exaggerated to the extent of leading to crime. It must be remembered, however, that a soldier is accustomed to measure by other standards in war. When all high-ranking officers, including Field Marshal Paulus, represent the same point of view, the honesty of their convictions cannot be denied, although it may not be understood.

In reply to the questions asked so often during this Trial—why he did not revolt against Hitler or refuse to obey his orders—the Defendant Keitel stated that he did not consider these questions even for a moment. His words and behavior show him to be unconditionally a soldier.

Did he incriminate himself by such conduct? In general terms: May or must a general commit high treason if he realizes that by carrying out an order or measure he will be violating international law or the laws of humanity?

The solution of this problem depends on whether the preliminary question is answered as to who is the “authority” which “permits or orders” such criminal high treason. This question seems to me important because the source of the authority must be established—the authority which can permit or order the general to commit high treason; which can “bind and absolve.”

Since the existing state power, which in this case was represented by the Chief of State, who was identical with the Supreme Commander of the Armed Forces, can certainly not be this authority, we merely have to decide whether an authority exists above or beyond the authority of the particular state, which could “bind or absolve.” Since the struggle for power between Pope and Emperor, which dominated the Middle Ages, has no longer any significance in regard to constitutional law, such a power can only be impersonal and moral. The German poet Schiller expresses the supreme commandment of the unwritten eternal law in the words: “The tyrant’s power yet one limit hath ...” That is only one of the manifold poetical revelations in world literature, which express the deep yearning for freedom felt by all peoples.

If there is an unwritten law which indisputably expresses the conviction of all men, it is this, that with due consideration for the necessity of maintaining order in the state, there is a limit to the restriction of freedom. Where this is transgressed, a state of war will arise between the national order and the international power of world conscience.

It is important to state that no such statute of international law has hitherto existed. This is understandable, since freedom is a relative conception, and the different conceptions existing in various states and the anxiety of all states for their sovereignty are irreconcilable with recognition of an international authority. The authority which “binds and absolves”—which absolves us of guilt before God and the people—is the universal conscience which becomes alive in every individual. He must act accordingly. The Defendant Keitel did not hear the warning voice of the universal conscience. The principles of his soldierly life were so deeply rooted, and governed his thoughts and actions so exclusively, that he was deaf to all considerations which might deflect him from the path of obedience and faithfulness, as he understood them. This is the really tragic role played by the Defendant Keitel in this most terrible drama of all times.

THE PRESIDENT: Dr. Kauffmann—yes, go on, Dr. Kauffmann.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): Mr. President, may I first say that I have a few changes which I will announce when I come to them. I shall take about two hours altogether, Mr. President.

May it please the Tribunal: The present Trial is world history—world history full of revolutionary tensions. The spirits conjured up by mankind are stronger than the cries of the tortured peoples for justice and peace. Since man was deified and God humiliated, chaos, as an inevitable consequence and punishment, has afflicted mankind with wars, revolutions, famine, and despair. Whatever the guilt borne by my country, it is now enduring—and permanently enduring—the greatest penance ever endured by any people.

The means adopted to restore longed-for prosperity are wrong, because they are second-rate. And none of my listeners can question the truth of my assertion that the present Trial was not begun at the end of a period of wrong, and in order to end it, but is surrounded by the surging waves of a furious torrent bearing on its surface the hopeless wreckage of a civilization guarded through the centuries, and in the demoniacal depths of which lurk those who hate the true God, who are the enemies of the Christian religion, and therefore opposed to all forms of justice.

The European commonwealth of peoples, of which my country, if only because of its geographical position, was the very heart, is seriously afflicted. It suffers from the spirit of negation and humiliation of human dignity. Rousseau would have cursed his own maxims had he lived to see the radical refutation of his theories in this twentieth century. The peoples proclaimed the “liberty” of the great revolution, but in the course of a mere 150 years they have in the name of that same liberty created a monster of bondage, cruel slavery, and ungodliness, which contrived to elude earthly justice, but did not escape the living God.

This Tribunal, conscious of its task and its mission, will some day have to submit to the searching eye of history. I do not doubt that the judges selected are striving to serve justice as they see it. But is not this task indeed impossible of solution? The American chief prosecutor stated that in his country important trials seldom begin until one or two years have elapsed. I do not need to elucidate the profound core of truth contained in this practice. Could human beings, torn between love and hate, justice and revenge, conduct a trial immediately after the greatest catastrophe humanity has ever known—and constantly harassed by the statutory demands for rapid and time-saving proceedings—in such a way as to earn the thanks of mankind when the waters of this second deluge have withdrawn into their old bed?

Would it not have been better to allow for that very lapse of time between crime and atonement with regard to the present proceedings?

Justice can be administered only when the Court possesses that inner liberty and independence which owes allegiance only to conscience and to God himself. Such a sacred activity had largely been forgotten in my country, above all, by the governing class of the nation; Hitler had prostituted the law. But this Tribunal intends to prove to the world that the welfare of the peoples is based on law alone. And no conception could arouse more joy and hope within the heart of people of good will than that of unselfish justice.

I am not criticizing the provisions of the Charter; but I do ask whether any justice has ever been, or ever could be, found on earth if might submitted to reason so far as to grant its enemies regular trial, but could not see fit to crown this tribute to reason by appointing a genuinely international tribunal; for even though 19 nations have approved of the legal basis of the Charter it is far more difficult to administer the laws laid down.

The American chief prosecutor has emphatically declared that he did not propose to hold the entire German nation guilty; but the records of this Tribunal, which history will some day scrutinize attentively, nevertheless contain many things which, to us Germans, appear to be false and, therefore, painful. Unfortunately they also contain numerous explicit questions on the part of the French Prosecution as to the extent to which, for instance, certain Crimes against Humanity committed both inside and outside Germany were known to the German people. Indeed, the French Prosecution have asked explicitly: “Could these atrocities remain, on the whole, unknown to the entire German nation, or were they aware of them?” These and similar questions are not conducive to the solution of such a difficult and tragic problem with even the slightest approach to the truth. Insofar as evil, which always grows and manifests itself organically, reigns supreme in a nation, every individual who has reached the age of reason will bear some guilt for his country’s disasters. Yet even this guilt, which is on the metaphysical plane, could never become the collective guilt of a nation unless every individual member of this nation has incurred a separate guilt. But who would be entitled to establish the existence of such a guilt without examining thousands of individual circumstances?

The problem, however, becomes even more difficult if one should try—and this is the final aim—to establish the so-called national guilt for any past crimes against peace, humanity, and so forth, committed on the part of the omnipotent State, no matter through what agencies. One must bear in mind most carefully the condition of the Reich before 1933. This has been done sufficiently here and I shall not discuss it.

Hitler claimed for himself alone such far-reaching concepts as the powerful German diligence, austerity, family affection, willingness to make sacrifices, aristocracy of labor, and a hundred more. Millions believed in this; millions of others did not. The best of them did not lose hope of being able to avert the tragedy which they foresaw. They flung themselves into the stream of events, assembled the good, and fought, visibly or invisibly, against the evil. Can the man in the street be blamed for not immediately refusing to believe in Hitler, considering the latter’s ability to pass as a seeker after the truth, and the fact that he constantly raised the palm of peace for the benefit of the peace lovers? Who knows whether he himself was not convinced at the outset that he could strengthen the Reich without going to war? After the assumption of power large sectors of the German people probably felt themselves to be at unison with many other peoples on earth. Therefore, it is not astonishing that gradually, and with the approval or tolerance of other countries, Hitler acquired the nimbus of a man unique in his century. Only a German who lived in Germany during the past few years and did not view Germany through a telescope from abroad, is competent to report on the historical facts of an almost impenetrable method of secrecy, the psychosis of fear, and the actual impossibility of changing the regime, and thus to comply with Ranke’s demand of historians to establish “how it was.”

Ought the artisans, peasants, merchants, or housewives categorically to have asked Hitler or Himmler for a change? I would be quite willing to let the Prosecution answer this, as I am of the opinion that there are living in my country no fewer idealistic and heroic people than in any other country.

It will never be possible to ascertain how large a number of Germans knew and approved of concentration camps, their terror and such like. Only if one could establish knowledge and approval in the soul of every individual German, considering general and particular conditions prevailing in the Germany of the last 12 years, which it is not now the moment to discuss, these, and only these, could be considered guilty.

Therefore I do not think it just to put, to a larger or smaller extent, the principle of collective guilt in the place of individual responsibility, as it is held valid in all civilized nations; it was unfortunately similarly applied by the National Socialist regime to a whole people, and almost led to its complete extermination. May there be no repetition of Article 231 of the Treaty of Versailles, that portentous document of the twentieth century.

Let me say a few words about that secrecy. This Trial has shown clearly that the State itself managed to suppress such facts as would lower its prestige and betray its real intentions. Even the men indicted here, who have been termed conspirators, have been the victims of that carefully devised system of secrecy, or most of them at least.

A special place in that system of secrecy is reserved to the plan—ordered by Hitler and executed by Himmler, Eichmann, and a circle of the initiated—for the biological destruction of the Jewish people, the ghastly aim of which was for years concealed by the term “final solution”—a term not immediately self-explicable. The problem of the Jewish question ...

THE PRESIDENT: Dr. Kauffmann, it seems to the Tribunal a very long preamble to the defense of the Defendant Kaltenbrunner, who has not been named at all yet in what you have said. Is it not time that you came to the case of the defendant whom you represent? We are not trying a charge against the German people. We are trying the charges against the defendant. That is all we are trying.

DR. KAUFFMANN: Mr. President, in the next few sentences I would have concluded that; but I ask you to appreciate that the important word “humanity” forms the core of my case. I believe that I am the only defense counsel who intends to go more deeply into that subject; and I request permission to make these few statements. I shall come to the case of Kaltenbrunner very soon.

THE PRESIDENT: On Page 8 you have a headline which is, “The Development of the History of the Intellectual Pursuit in Europe.” That seems rather far from the matters which the Tribunal have got to consider.

DR. KAUFFMANN: Mr. President, may I remind you that this question was discussed by the Prosecution, and especially by M. de Menthon. I do not believe that I can carry out my task if I take these tremendous crimes only as facts. Some German must have an opportunity of giving a short description of the development—and it is very short. At the end of a few pages I return to the case of Kaltenbrunner; and my plea will in any case be the shortest one presented here.

THE PRESIDENT: Dr. Kauffmann, the Tribunal proposes, as far as it can, to decide the cases which it has got to decide in accordance with law and not with the sort of very general, very vague and misty philosophical doctrine with which you appear to be dealing in the first 12 pages of your speech, and, therefore, they would very much prefer that you should not read these passages. If you insist upon doing so, there it is; but the Tribunal, as I say, do not think that they are relevant to the case of the Defendant Kaltenbrunner. They would much prefer that you would begin at Page 13, where you really come to the defendant’s case.

DR. KAUFFMANN: Mr. President, it is, of course, extremely difficult for me to present a plea which is already very much condensed, and now to disrupt it even more. It is really difficult. I hope that the Tribunal will appreciate that.

THE PRESIDENT: Well, Dr. Kauffmann; there has been nothing condensed in what you have read up to the present. It has been all of the most general type.

DR. KAUFFMANN: In that case may I at least read a few sentences below the headline with regard to the defense? It starts ...

THE PRESIDENT: Can you not summarize the general nature of what you wish to say before you come to the Defendant Kaltenbrunner?

DR. KAUFFMANN: Yes, I shall try. I shall read only a few sentences, for the sake of better understanding, from the short chapter dealing with the task of the Defense. I say there that the defense has been established by the Charter and ask how in the face of such excesses a defense can still identify its task. I then go on to say:

In this Trial, error and truth are mysteriously mixed, probably more so than ever before in any great trial. To try to find the truth raises the counsel for the defense to the dignity of an assistant of the Court. Not only does it entitle the Defense to doubt the credibility of the witnesses but also that of the documents, in particular of the Government reports. It entitles the counsel for the defense to state that such reports, although they may be admitted by the Charter in evidence, can only be accepted under protest, because none of the defendants, defendants’ counsel, or neutral observers could have any influence on the way in which they originated.

These testimonies were certainly made within the framework of the law, but also within the framework of power.

The people, or a large part of the people, in their aspirations toward peace and happiness elevated the representative of a heretical doctrine to the position of their Führer, and this Führer abused the faith of his followers so that the people, no longer possessing the strength to offer a timely and open resistance, were engulfed in the gigantic abyss of the annihilation of their entire racial, political, spiritual, and economic existence. All of this is tragic in the truest sense of the word. Had the individual man in the street, the mother at home, and her sons and daughters, been asked to choose between peace or war, they would never voluntarily have chosen war. The unsatisfactory element in this Trial is the absence of the man ...

THE PRESIDENT: Are you reading now from some part of your document?

DR. KAUFFMANN: I am reading a few sentences, Mr. President. This is at Page 7 of the German text.

THE PRESIDENT: Can you not summarize the argument you are presenting?

DR. KAUFFMANN: Mr. President, I would appreciate it if I could be told once more whether the Tribunal does not wish me to throw any light at all on the ideological background in the interests of an understanding of these crimes against humanity and peace. If the Tribunal states that it does not desire me to make any such statements, then of course I shall follow the wishes of the Tribunal. But such a phenomenon ...

THE PRESIDENT: Well, Dr. Kauffmann, if you think it is necessary for you to read this passage you can do so; but, as I have indicated to you, the Tribunal think it is very remote indeed from any question which they have to consider.

DR. KAUFFMANN: Thank you very much. Then I shall skip a few pages and shall present only 4 or 5 pages, which will be very condensed, on the subject which I have just mentioned. That begins with the heading, “Outline of Intellectual Development.”

The rise of Hitler, and his downfall, unique in its extent and consequences, may be viewed from any side—from the perspective of the historical spectacle afforded by the course of German history, the course of economic forces supposedly governed by irresistible laws, the sociological divisions of the nation, the peculiarities of race and character of the German people, or the mistakes committed in the political sphere by the other brothers and sisters of the family of nations living in the same house.

All this certainly completes the picture of the analysis, but it brings to light only partial knowledge and partial truth. The deepest, and the fatal, reason for the Hitler phenomenon lies in the metaphysical domain.

In the final analysis the second World War was unavoidable. Anyone, however, who regards the world and its phenomena only from the standpoint of economics may arrive at the conclusion that both world wars could have been avoided if the resources of the earth had been reasonably distributed. Economic factors alone can never change the face of the earth; therefore, the change in the German people’s standard of living, and the demoralization of the national soul by the Treaty of Versailles, inflation, serious unemployment, and other factors formed a foundation for the advent of Hitler. It is possible that catastrophes may be delayed for years or decades, if certain external living conditions make the relationship between different nations and peoples ostensibly happier. At no time, however, can a misguided idea be destroyed through economic measures alone, and deprived of its power to injure the individual and the nation, unless mankind can overcome such ideas and replace them by better ones.

“In the way in which the name of God is used by the peoples and nations,” says the famous Donoso Cortes, “lies the solution of the most-feared problems.” Here we have the explanation of the providential mission of the separate nations and races, the great changes in history, the rise and fall of empires, conquests and wars, the different characteristics of the nations, and even their changing fortunes.

M. de Menthon has tried to make an intellectual analysis of National Socialism. He speaks of the “sin against the spirit,” and sees the deeper causes of this system in estrangement from Christianity.

I wish to add a few words. Hitler was not a meteor, the fall of which was incalculable and unpredictable. He was the exponent of an ideology which was in the last resort atheistic and materialistic.

There is every reason to reflect that, although National Socialism is eliminated through the complete defeat of Germany, and although the world is now free of the German threat as proclaimed by all nations, there has been no decisive change for the better. No peace has filled our hearts, no rest has come to any corner of human existence. It is true that the collapse of a powerful state with all its physical and spiritual forces will be felt for a long time, just as the sea is stirred into motion when a rock is thrown into calm water. But something much more is happening at present in Europe and in the world—something quite different from the mere ebbing away of such a wave of events.

To retain the comparison, the waves rise anew from the deep; they are fed by mysterious forces which constantly emerge anew. They are those restless ideas, aiming at the disaster of nations, of which I spoke. And nothing can disprove the truth of my words when I maintain that victor and vanquished alike live in the midst of a crisis which disturbs the conscience of individuals and of nations like a monstrous and apparently inevitable nightmare, and which causes us to look beyond the punishment of guilty individuals toward those ways and means which can spare humanity an even greater catastrophe.

In the Confessions of a Revolutionary the clear-sighted socialist Proudhon wrote the memorable words: “Every great political problem contains within itself a theological one.” He coined this phrase one hundred years ago. It is most timely that the American General MacArthur, at the signing of the Japanese capitulation, is said to have repeated the essential meaning of these profound words by saying: “If we do not create a better and greater system, death will be at our door. The problem is, fundamentally speaking, a religious one.”

History is made by changes in religious values. They constitute the strongest motive power in the cultural progress of humanity. Permit me to show you in a few bold outlines the intellectual and historical forebears of National Socialism.

THE PRESIDENT: Dr. Kauffmann, it is 1 o’clock, and I must say that the last two pages which you have read seem to me to have absolutely nothing to do with Crimes against Humanity, or with any case with which we have got to deal. I suggest to you that the next pages, headed “Renaissance, Subjectivism, French Revolution, Liberalism, National Socialism” are equally completely unlikely to have any influence at all upon the minds of the Tribunal.

The Tribunal will now adjourn.

[The Tribunal recessed until 1400 hours.]