Archive/File: imt/tgmwc/tgmwc-15/tgmwc-15-146.02 Last-Modified: 2000/03/30 THE PRESIDENT: You mean that I was correct in saying that in the main it emanated from you? THE WITNESS: Yes, absolutely. The first part of this Wehrmacht communique was formulated by me, and contains an authentic refutation of a statement of the British Ministry of War, broadcast by the British radio. This statement of the British Ministry of War was false, and I established the reasons why it was false on the basis of records, photographs, and affidavits which we possessed. Initially this affair had nothing to do with commandos and reprisals, but that angle was introduced into the Wehrmacht communique by the supplement of the Fuehrer, which begins with the sentence: "The High Command of the Wehrmacht, therefore, is compelled to decree the following." BY DR. EXNER: Q. And it was considered necessary to make this announcement known in the Wehrmacht communique. Did the Fuehrer demand from you drafts of an executive order? A. When the Fuehrer had written this last supplementary sentence, he turned to Field-Marshal Keitel and to me and demanded an executive order to follow this general announcement in the Wehrmacht communique. And he added: "But I do not want military courts." Q. Did you make a draft? A. I had very many doubts which a careful study of The Hague rules of warfare could not dispel. Neither Field-Marshal Keitel nor I prepared such a draft, but members of my staff, on their own initiative, asked for drafts and for the views of various departments, and thus, Document PS-1263 came into being. I shall come back to it later. THE PRESIDENT: That is Document 1263-PS? DR. EXNER: 1263; Page 104, Volume II of my Document Book; Exhibit RF 365; but we shall deal with that later. THE PRESIDENT: Did you say Page 204? DR. EXNER: No, Page 104, Volume II, 104. BY DR. EXNER: Q. Please continue. A. My wish was an entirely different one. It was my intention to avoid an order altogether, and I rather expected that as a result of the announcement in the Wehrmacht communique - an announcement which was certainly not kept secret but which was broadcast over the air to the entire world - the British Ministry of War would approach us again, either directly or via Geneva, as it had done on several previous occasions. And I hoped that in this way the whole matter would be shifted to the sphere of the Foreign Office. However, that did not happen. The British War Ministry remained silent. [Page 299] In the meantime, ten days had passed and nothing had been done. Then, on 17th October, General Schmundt, the Chief Adjutant of the Fuehrer, came to me and said that the Fuehrer was demanding an executive order. I gave him the following answer, word for word: "Please give him my best regards, but I will not give out an order like that." Schmundt laughed and said: "Well, of course, I cannot tell him that," and my reply was: "Very well, then, tell the Fuehrer that I do not know how a decree like that could be justified under International Law." And with that, he left. I hoped now that I would be asked to come to the Fuehrer so that at long last, after many months, I should again be able to speak to him personally. Q. And this coincided with the Vinnitza crisis? A. Yes. I wanted an opportunity of telling him my misgivings or otherwise to be thrown out altogether. Either eventuality would have helped me, but neither occurred. A few minutes later Schmundt called me on the telephone and informed me that the Fuehrer was going to draw up the orders himself. On 18th October Schmundt again came in person and brought with him these two orders of the Fuehrer - the order to the troops, and an explanation for the commanders. BY THE PRESIDENT: Q. Are you referring to two documents which are before us? A. These are the two documents, 498-PS and 503-PS. The papers submitted to the High Tribunal as documents are not the originals of the Fuehrer; I personally handed over the originals at Flensburg. The documents which are in the hands of the Tribunal are copies of the originals, or mimeographed copies by my staff. BY DR. EXNER: Q. Now, I should like to interpolate a question. You mentioned that your staff worked out something in detail and you referred to PS-1263, which has been submitted to the Tribunal, Page 104 of Volume II. In this document, you made two remarks on Page 106. The first remark on that page is: "No". In the French translation this "non" is missing, and has to be added. On the same page a little further down, it says in your own handwriting: "That won't do either", and your initial "J" for Jodl. Can you explain to the Tribunal what this means? A. As I have already said, the members of my staff - and this may be seen under (1) of Page 104 - on their own initiative asked for proposals from the Counter Intelligence, Canaris, which included a group of experts on International Law, and also from the Wehrmacht Legal Department since, after all, we were concerned with a legal problem. On Page 106, under paragraph (a), there is the proposal which the foreign division of the Counter Intelligence made: "Members of terroristic and sabotage troops who are found without uniform, or in German uniform, are to be treated as bandits, or if they fall into German hands outside battle operations, are to be immediately interrogated by an officer and then to be dealt with by summary court martial." That was quite impossible, for if one came across a soldier in civilian clothing, without uniform, no one could know just who he was. He could be a spy, or an escaped prisoner of war, or an enemy airman who had saved his life by jumping from his plane and now hoped to escape in civilian clothing. That had to be determined by an experienced interrogating officer and not by a summary court martial consisting of some lieutenant, two non-commissioned officers and two soldiers. In paragraph (b) - Q. And for that reason you wrote "No"? A. For that reason I wrote "No". [Page 300] In paragraph (b) it was suggested that if such sabotage groups were apprehended wearing uniforms, a report should be made to the Wehrmacht Operational Staff and the Operational Staff was then to make a decision. But in that case the Wehrmacht Operational Staff would have assumed the function of a military court, and that it could never be. I really must claim for myself that, thanks to my wider experience, I have viewed these problems a little more clearly than some of my subordinates. Q. And so you rejected this proposal. You said that you also had grave misgivings about the Fuehrer's order. Will you tell the Tribunal now what misgivings you had? A. First of all, I had a number of legal doubts. Secondly, this order was ambiguous, for practical purposes it was not sufficiently clear. Particularly in this case, I considered military courts absolutely necessary. I know well that even judges may on occasion, consciously or not, be under coercion and may judge not only according to the law; but at least military courts provide some safeguard against a miscarriage of justice. Q. Therefore, if I understand you well, you wanted to install some legal procedure. What did you mean by vague and ambiguous? A. The theory was that soldiers who by their actions put themselves outside military law could not claim to be treated according to military law. This is a basic principle definitely recognized in International Law, in the case of a spy or "franc-tireur". This order was to intimidate British commando troops who were using such methods of warfare. But the order of the Fuehrer went further and said that all commando troops were to be wiped out. This was the point on which I had grave misgivings. Q. What legal doubts did you have? A. Just this doubt - that on the basis of this order, soldiers also would be wiped out. THE PRESIDENT: Defendant, it is not necessary to speak so slowly; if you can, speak a little faster. A. I was afraid that not only enemy soldiers who, to use the Fuehrer's expression, actually behaved like bandits, but also decent enemy soldiers would be wiped out. In addition - and this was especially repugnant to me - in the very last part in Document 503-PS, it was ordered that prisoners ... soldiers were to he shot after they had been captured and interrogated. The thing that was totally misleading to me was the general position under the law, whether a soldier who had acted like a bandit would upon capture enjoy the legal status of a prisoner of war, or whether, on account of his earlier behaviour, he had already placed himself outside this legal status. Q. By that you mean the Geneva Convention? A. Yes, I mean the Geneva Convention. Q. Did you agree with the principle that enemy soldiers who had acted in an unsoldierly manner were not to be treated as soldiers? A. Yes, I could quite understand that, and so could others. For the Fuehrer had received very bad reports. We had captured all the orders of the Canadian brigade which had landed at Dieppe, and these orders were at my disposal in the original. These orders said that, wherever possible, German prisoners were to have their hands shackled. After some time, through the Commander-in-Chief West - I received - Q. You can speak faster. A. - I received court records and testimony of witnesses with photographs, which definitely convinced me that numerous men of the organization Todt - fathers of families, unarmed, old people, who were wearing an armband with a swastika - that was their insignia - that these people had been shackled with a [Page 301] loop around their necks and the end of the rope fastened around their bent lower legs in such a way that they had strangled themselves. I may add that I withheld these photographs from the Fuehrer, I did not tell him of these aggravating incidents which had definitely been proved; I concealed them from the German people and from the Propaganda Ministry. Then came the English radio report denying emphatically that any German soldier had been shackled at Dieppe. Some time later, a commando troop made an attack on the island of Sark. Again we received official reports that German prisoners had been shackled. Finally we captured the so-called British order for close combat. That was the turning-point with the Fuehrer; I also studied it very carefully. These close combat instructions showed in pictures how men could be shackled in such a way that they would strangle themselves through the shackling; and the order set down exactly within what time death would occur. Q. Therefore, the reasons which Hitler gave for his Order 498 were actually based on reliably reported facts. I recall that Hitler referred to prisoners who had been shackled, prisoners who had been killed, and he says, that criminals ... as commandos - THE PRESIDENT: You are paraphrasing the evidence in a way that is inaccurate, because the defendant has just said that he kept these things from Hitler. You are now saying that Hitler knew about them. That is not what the witness said. BY DR. EXNER: Q. Then, I shall have to ask you whether the facts upon which this order is based were reported to you. A. I believe the Tribunal has Document PS-498. In it the Fuehrer first makes the general statement, that for some time our opponents have in their conduct of the war used methods which violate the International Geneva Conventions. I must support this statement as true on the basis of reports which, regrettably, the had been receiving since the summer of 1941. I do not wish to go into individual cases. There was an outrageous incident of a British submarine using machine-guns. There was the order in North Africa that German prisoners of war should not be given water before they were interrogated. There were a large number of such reports. THE PRESIDENT: Defendant, the Tribunal thinks that it is very difficult to go into individual incidents which occurred long before this order was drafted, and you have told us what you said the order was drafted in respect of, namely, the shackling, and you are now referring to other things which you allege happened long before that. It does not seem that it is possible for the Tribunal to investigate all those matters which happened long before. THE WITNESS: No, I do not want to dwell on these matters any longer. I only want to point out, as I think I must, that in general the reasons given by the Fuehrer for this order did not spring from a diseased imagination, but were based on actual proof in his and in our possession. For there is certainly a great difference whether I, in my own mind, had to concede some justification for this order or whether I considered it an open scandal. That is very important for my own conduct. But I shall try to be very brief. The fact that many previously convicted persons and criminals were included in the commandos, who were, of course, reckless people, was proved by the testimony of prisoners, and the fact that prisoners were shackled was obvious from captured orders and the testimony of witnesses. THE PRESIDENT: You have told us that already. We have heard that more than once - that you had evidence before you that prisoners were shackled and that you had the Canadian orders before you. [Page 302] BY DR. EXNER: Perhaps you can just say a few words on the subject of killing prisoners. A. In conclusion, I want to say that I did not see any order, any captured order, which decreed death for German prisoners of war, though this was also given as a reason in the Fuehrer's order. But I must explain that the British Ministry of War advised us - I cannot recall exactly whether via Geneva or via the radio - that situations might very well arise in which prisoners of war would have to be killed - no, rather, in which prisoners of war would have to be shackled, because otherwise one would be forced to kill them. And so, if at the end the Fuehrer says we have found orders according to which the commandos were on principle to kill prisoners, then I think he is referring to the British close combat instructions which described shackling as a means of causing death. Q. And what was your own part in this Commando Order? A. My part consisted only in distributing this order, or having it distributed, in accordance with instructions. Q. The prosecution asserted once that you signed this order, one of the two orders, I do not know which one. That is not correct? A. No, I signed only a general decree to have one of the orders kept secret. Q. Yes, we will deal with that in a moment. Could you have refused to transmit this order? A. No, if I had refused to transmit an order of the Fuehrer, I would have been arrested immediately, and I must say, with justification. But as I said, I was not at all sure whether this decree, either in its entirety or in part, actually violated the law, and I still do not know that today; I am convinced that if one were to convene here a conference of experts on International Law, each one of them would probably have a different opinion on the subject. Q. General, you can speak a little faster. Could you have made counter-proposals? A. Yes, probably, at another time, but at that time of conflict with the Fuehrer, it was not even possible for me to speak with him personally. To broach the subject during the general situation conference was quite impossible. Therefore, in practice, I intended to carry out this order very magnanimously, and I was certain that the commanders-in-chief would do the same. Q. And what do you mean by magnanimously? Could this order have been interpreted in different ways? A. Yes. The order offered two ways of avoiding that really decent soldiers would be treated like criminals. If a commando troop, mostly encountered at night, was not wiped out but captured - as was the rule in almost all cases - then that was already some proof that our troops did not consider these men as bandits. It was then the task of the commanders-in-chief to make an investigation. If it was purely a reconnaissance operation, the entire action did not fall into the sphere of the Commando Order and would not be reported as a commando raid. However, if the operation was really carried out by a sabotage and demolition troop, then its equipment had to be checked; it had to be investigated whether the men were wearing civilian clothing under their uniforms; whether they were carrying the famous armpit guns, which go off automatically when the arms are lifted in the act of surrender; or whether they used other despicable methods during the fighting. The commanders-in-chief could act in accordance with the outcome of such an investigation. I believe that if the enemy were handled in that way, if was quite possible, and in fact happened many times, I might almost say in the bulk of cases, that the shooting of brave, decent soldiers was avoided.
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