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DR. NELTE, Continued:

It was a soldier's principle which Keitel obeyed; one which
is valid wherever the military command system exists. The
significance of this statement is particularly important in
the case of this defendant. The validity of such evidence
might be questioned by saying that Keitel's functions were
not those of a soldier or at least not only those of a
soldier; and that he is therefore not entitled to claim
consideration purely on the grounds of the existing system
of command. The unfortunate nature of his position and the
many and varied assignments which fell to him as chief of
the OKW, not all of which can be fitted into the framework
of a system, tend to obscure for us the primary factor,
namely, that no matter what Keitel did or with what
authority or organization he negotiated or was in contact,
he was always impelled by his function as a soldier and by
some general or particular order issued by Hitler.

The existence of a conspiracy seems to me incompatible with
the theory of a soldier's functions and with Keitel's
position as head of the OKW, and cannot logically be derived
therefrom. In all cases in which the prosecution has
prejudged a conspiracy, this conspiracy was an activity
taken over by members of a gang and which differed from
their normal personal activity. The contrary is, however,
the case, for the activity which a man must practice because
it belongs to his profession or office cannot be termed a
conspiracy. It may be added that the soldier does not act on
his own initiative but on orders received. A soldier may
therefore take part in a conspiracy aimed against the duties
he has undertaken as a soldier; but his activity within the
scope of his military functions can on no account be termed
a conspiracy.

The OKW, including the WFS, was relatively little affected
by the conduct of the war in the East. By the OKW I mean the
Staff of the OKW. It is well known that Hitler himself as
OKW, i.e., as Supreme Commander of the Armed Forces, dealt
with all matters concerning the conduct of this - his own -
ideological war and took a hand in it. The army was in
command; but Hitler was in close and constant collaboration
with the Commander-in-Chief of the Army and his Chief of
General Staff up to December, 1941, when after taking over
the supreme command of the Army he also took over its direct

This union in one person of the Supreme Commander of the
Armed Forces and Commander-in-Chief of the Army was
evidently the cause of the numerous mistakes which led to
the severe incrimination of the OKW, as Staff OKW, and of
its Chief of Staff Keitel.

Keitel feels himself to be deeply incriminated by the frank
statements he made in the witness-box on the whole question
of the war against the Soviet Union. It is therefore not
only understandable that the defence should clarify the
extent to which

                                                  [Page 211]

Keitel bears the responsibility for all these conditions of
frightful atrocity and unimaginable degeneration, but it is
the duty of the defence to do so.

To make these matters of competency, which are frequently
extremely complicated, more easy to understand, I refer to
defendant Keitel's affidavit, No. K-10, which was submitted
to the Tribunal. It seems to me essential to emphasize the
fact that the war against the Soviet Union was from the
first subject to three effective factors:

  1. Operations and command: Commander-in-Chief of the
  Army, OKH.
  2. Economics: The Four-Year Plan.
  3. Ideological: The SS organizations.

These three factors were outside the competency of OKW
(Keitel) which was not empowered to issue orders affecting
them. It is true, nevertheless, that as a result of Hitler's
practically anarchic methods, by which he himself retained
the entire control of the government in his own hands, the
OKW and Keitel were sometimes used to transmit Hitler's
orders; but this fact cannot in itself shift the basic

In view of the mass of material presented by the Soviet
prosecution, I can refer within the scope of my statement to
only a comparatively small number of the documents. I shall
give a brief summary of the documents on Pages 126 to 136,
which have been dealt with separately.

To begin with, I referred to Exhibits USSR 90, 386, 364,
366, 106 and 407, and tried to show in detail that the
charges made against the OKW and Keitel as the guilty
parties are not proven by these documents.

Then, on Page 130, I referred to a category of documents
with which I have dealt earlier in Part two of my
presentation on the subject of official documents. If I
refer in this connection to the official reports of the
Investigation Commission, I do so not because of their
actual contents but because they were submitted in order to
implicate Keitel. They are in themselves sufficient to prove
that the charges made against Keitel and the OKW as Staff
are not justified as far as these grave statements of the
prosecution are concerned.

Out of the large number of documents in this connection I
have dealt with USSR 40, 35 and 38. These official reports,
which implicate the High Command of the Armed Forces, do not
contain a single concrete fact referring to the Staff of the
OKW - that is, Keitel - as the perpetrator or instigator of
these atrocities.

I make no comment on the contents of the documents; I merely
point out that Keitel, in his official position, had neither
the authority nor the opportunity to give orders leading to
the crimes alleged.

Then, on Page 134:

In the documents previously quoted, either Keitel or the OKW
is named as the responsible party. However, during the
prosecution's presentation many such official reports,
quoted as evidence for Keitel's guilt, do not even mention
either the name of the defendant or the OKW. In this
connection, I draw your attention to Exhibits USSR 8, 39,
45, 46 and 63. I only ask the Tribunal to examine the
remaining documents with equal care in order to ascertain
whether or not, if submitted in connection with Keitel and
the OKW, they allow Keitel's guilt to be concluded. In this
connection I should like to add that I am not going to read
- and am not referring to - the remarks at the bottom of
Page 134.

I beg the Tribunal to take note of my statements on the
economic exploitation of the occupied territories - Pages
137 to 142 - without my reading them. Since Reichsmarschall
Goering's defence counsel has already dealt with this
problem and has clarified the spheres of competency and
responsibility, it would mainly be repetition for me to
speak on it. However, I shall refer to the contents of this
part of my presentation and beg the Tribunal to take
judicial notice of it.

I now come to Page 143 and following pages, where I refer to
the assertion made by the French prosecution regarding the
participation of the OKW and Keitel in the cases of Oradour
and Tulle.

                                                  [Page 212]

The French prosecution have charged the defendant Keitel in
person with the commission of war crimes and crimes against
humanity. The accusation concerns the execution of French
civilians without a trial. In this connection the cases of
Oradour and Tulle received special emphasis. They are
recorded in a report made by the French Government -
Document F 236. The French prosecution stated that:
"Keitel's guilt in all these things is certain."

In this connection, it is not my task to discuss the
frightful events of Oradour and Tulle. As defence counsel
for the defendant Keitel, I have to examine whether the
prosecution's assertion that the defendant Keitel bears any
guilt or responsibility for these atrocious happenings has
any foundation.

You will understand that the defendant Keitel attached
particular importance to the production of evidence to the
effect that he was not responsible for these terrible
occurrences, and, further, that when such things came to his
knowledge he took steps to have them cleared up in order
that the actual offenders might be called to account.

It is an indisputable fact that Keitel had no direct part in
these crimes. Any responsibility and guilt attaching to the
defendant can therefore be derived only from his official
position. No orders of any kind bearing Keitel's signature
have been submitted by the prosecution, so that whoever is
guilty, Keitel is not, at any rate, among those directly

The terrible sufferings inflicted on a large number of
French villages are recorded in the notes of General Berard
dated 6th July and 3rd August, 1944. I pointed out when this
document was submitted that by the submission of these
complaints alone - that is, unaccompanied by the replies,
which are also in the hands of the prosecution - no
objective picture of the actual facts can be presented on
which to base a pronouncement on the guilt of the defendant
Keitel. As the defendant Keitel, not being empowered to
issue orders in the matter, cannot possibly be considered as
the originator of the orders which led to the complaint, any
responsibility and guilt on Keitel's part can be based only
on the fact that he, did not cause the necessary steps to be
taken on receiving information from the German Armistice
Commission. What Keitel did or did not do can be gathered
only from the replies and from the directives issued by the
OKW to the German Armistice Commission.

I omit the following sentence:

The defendant Keitel would be unable to prove the contrary
in this case also, had not the French prosecution themselves
submitted a document which was intended to give proof of
Keitel's individual guilt. This document was read by the
French prosecution at the session of 31st January, 1946.

I pass on to Page 147: This document, signed by Keitel,
indicates the following:

1. On receiving the French complaint of 26th September,
1944, the OKW issued orders to the German Armistice
Commission to investigate and deal with the matter.

2. The German Armistice Commission thereupon instructed C.-
in-C. West to investigate the incidents.

3. On receiving a letter from Army Group B, the OKW
expressed itself as follows:

  "It was in the German interest to answer these charges at
  the earliest possible moment.
  This case shows that there is still widespread ignorance
  as to the importance of contesting all imputations made
  against the German Wehrmacht, and all enemy propaganda,
  and of refuting immediately any alleged acts of atrocity
  on the part of the Germans.
  The German Armistice Commission is hereby instructed to
  continue their investigations as energetically as
  possible. It is requested that every possible assistance
  be rendered to the Commission and that all possible steps
  be taken to expedite matters in your own sphere of
  action. The fact that PZ, AOK 6 is no longer under the
  jurisdiction of C.-in-C. West is no excuse for
  discontinuing the necessary investigation in order to
  clarify and refute the French charges."

                                                  [Page 213]

It may therefore be considered as proved that in this case
the defendant Keitel, on receiving information, took
energetic steps within his competency as chief of the OKW
and as far as he was in a position to do so.

This eliminates the charge made by the prosecution so far as
the defendant Keitel is concerned. At the same time,
however, the way in which the defendant Keitel handled this
case suggests that he acted in a similar manner in other

Mr. President, before dealing with the problem of hostages,
which I may discuss later, I should like to discuss the
grave evidence on the "Nacht and Nebel" decree on Page 154.

During the whole course of this trial, no order made such a
deep impression on the mind of the public as did the "Nacht
and Nebel" decree. This was an order which originated during
the struggle 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 counter-intelligence offices,
which in its turn caused proceedings to be taken and
sentences passed by military courts against members of the
resistance movement and their accomplices. 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 in the course of discussions on
the situation led to violent disputes in which Hitler, in
accordance with his usual habit, tried to find someone on
whom to put the blame, and in this instance fixed it upon
the far too cumbersome administration of military justice.
In his spontaneous and explosive way, he ordered directives
to be worked out for the 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
that did not affect the position. Offences found
sufficiently grave to necessitate the imposition of capital
punishment without very lengthy court proceedings would
continue to be dealt with as before - i.e., 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 failed to intimidate in view
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 Wehrmacht and the chief of
the Counter-Intelligence Office (Canaris), who is also the
originator of the letter of 2nd 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 7th December, 1941 (Document
UK 35).

The staff of experts and the defendant Keitel had succeeded
in establishing the competency of the Reich Administration
of justice for persons removed to Germany (see last
paragraph of directives of 7th December, 1941). Keitel had
guaranteed this stipulation by means of the first Enactment-
Decree governing the directives, in which he specified (last
sentence in paragraph 1, IV) that unless orders to the
contrary were issued by OKW, the case would be handed over
to the civil authorities in accordance with section 3,
paragraph 2, second sentence of the Articles of War
(Kriegsstrafverfahrensordnung). 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
awaiting trial and prisoners serving a sentence, there could
be no danger to life and limb. Keitel and his staff of
experts reassured themselves by the fact that however cruel
the suffering and

                                                  [Page 214]

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 12th December, 1941. As the co-defendant
General Jodl stated during his examination, a certain
wording was chosen to indicate that the signer 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 ... comply with the Fuehrer's

Persons who received such letters knew from that wording
that once again this was an order of the Fuehrer which could
not be evaded but would be applied as leniently as possible.

The letter of 2nd February, 1942, originated with the
Counter-Intelligence 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 7th December, 1941, the
matter was dealt with further. Keitel, at the Fuehrer's
Headquarters, was not informed of the contents of the
letter. In connection with the above remarks, the wording of
the letter justified the assumption that some leniency might
be expected because of Counter-Intelligence Offices having
been directed "to ensure as far as possible before making
the arrest" that they were in possession of sufficient
evidence to justify handing over 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 they had to be handed over to the Reich
Administration of Justice. The correctness of defendant
Keitel's assumption is shown by the fact that Canaris - in
view of the Admiral's attitude, which is familiar to the
Tribunal - 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 2nd February, 1942.

Although the defendant Keitel believed that he had succeeded
as far as possible in safeguarding those in question, the
"Nacht and Nebel" decree - as it was later called - weighed
heavily on his mind. Keitel does not deny that this decree
is not compatible with International Law, and that he knew

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