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“The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of General International Law on the treatment of prisoners of war apply. Since the 18th century these have gradually been established along the lines that war captivity is neither revenge nor punishment but solely protective custody the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people * * * The decrees for the treatment of Soviet prisoners of war enclosed are based on a funda

mentally different viewpoint.” Canaris went on to point out the shocking nature of the orders for use of arms by guards and for equipping the camp police with clubs and whips. On this memorandum, as you were reminded this morning, Keitel noted:

"The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures. K.”

Any possible doubt that Keitel knew that transfer to the Security Police and SD was intended to mean liquidation can hardly survive study of that document. Canaris writes of the screening, as it is called, of the undesirables:

"the decision over their fate is effected by the action detach

ments of the Security Police and the SD” on which Keitel, underlining Security Police, comments "very efficient" whilst on the further criticism by Canaris that the principles of their decision are unknown to the Wehrmacht authorities, Keitel comments “not at all.”'

The parallel instruction to the Security Police and SD recites the agreement with the High Command and after enjoining the closest cooperation between the members of the Police teams and the Commandants of the Camp and listing those to be handed over, it reads (502-PS, USA 486):

"Executions must not be held in the camp. If the camps in the Government General are located in the immediate vicinity of the border the prisoners are to be taken if at all possible to former Soviet-Russian territory for special treatment.”

It is not necessary to remind you of the volume of evidence with regard to the numbers of Soviet and Polish prisoners in concentration camps. Their treatment needs no further reminder than the report by the Commandant of Gross Rosen Concentration

Camp who on the 23rd October 1941, reports the shooting of twenty Russian prisoners between five and six o'clock that day and Mueller's circular from the same file, which states (1165-PS, USA 244):

“The commandants of the concentration camps are complain· ing that five to ten percent of the Soviet Russians destined for execution are arriving in the camps dead or half dead. Therefore the impression has arisen that the Stalags are getting rid of such prisoners in this way.

“It was particularly noted that, when marching, for example from the railroad station to the camp, a rather large number of PWs collapsed on the way from exhaustion, either dead or half dead, and had to be picked up by a truck following the convoy.

"It cannot be prevented that the German people take notice of these occurrences.”

Did any of these defendants take notice of these occurrences that could not be hidden from the German people? I go on:

“Even if the transportation to the camps is generally taken care of by the Wehrmacht, the population will still attribute this situation to the SS.

“In order to prevent, if possible, similar occurrences in the future, I therefore order that, effective from today on, Soviet Russians declared definitely suspect and obviously marked by death (for example with typhus) and who therefore would not be able to withstand the exertions of even a short march on foot, shall in the future, as a matter of basic principle, be excluded from the transport into the concentration camps for execution.

"I request that the leaders of the Einsatz Kommandos be correspondingly informed of this decision without delay.”

On the 2nd March 1944, the Chief of the SIPO and SD forwarded to his various branch offices a further order of the OKW for the treatment of prisoners recaptured after attempted escape. With the exception of British and Americans, who were to be returned to the camps, the others were to be sent to Mauthausen and to be dealt with under operation “Kugel” which, as the Tribunal will remember, involved immediate shooting. Inquiries by relatives, other prisoners, the Protecting Power, and the International Red Cross were to be dealt with in such a way that the fate of those men, soldiers whose only crime had been to do their duty, should be forever hidden (L-158, USA 514; 1650-PS, USA 2 46).

It was shortly after the issue of the “Kugel” order that 80 British officers of the R.A.F. made an attempt to escape from Stalag Luft III at Sagan. The defendants directly connected with this matter have not denied that the shooting of 50 of these officers was deliberate murder and were the result of a decision at the highest level. There can be no question that Goering, Keitel, and probably Ribbentrop participated in this decision and that Jodi and Kaltenbrunner and, if he did not actually participate, Ribbentrop, were all aware of it at the time.

Goering's participation is a matter of inevitable inference from the following three facts:

First: The order was given by Hitler.
Second: Westhoff of the Prisoner of War Organization of the

OKW says he was informed by Keitel that Goering had blamed him for the escape at the meeting at which the order was decided upon. (UK-48, USSR 413.) Third: In Goering's own Ministry which was responsible for

the treatment of R.A.F. prisoners of war, Walde heard of the order on the 28th March at the meeting of executives and told General Grosch. Grosch informed Foerster, who went straight to Milch, Goering's Chief of Staff, and returned to inform Grosch that Milch had been told, and had made the

necessary notes (D-731, GB 278.) You will say whether you do not consider the denials of Goering and Milch to be mere perjury.

Keitel admits that Hitler ordered transfer to the SD and that he "was afraid" they might be shot. He told his officers Graevenitz and Westhoff:

“We must set an example. They will be shot-probably some have been shot already." and when Graevenitz protested, he replied:

"I don't care a damn.” On this evidence of his own officers, surely his complicity is clear in this matter.

Jodl said that when Himmler was reporting the escape, he was in the next room telephoning, he heard a very loud discussion and on going to the curtain to hear what it was, he learned that there had been an escape from Sagan. It is incredible in these circumstances that even if he did not take part in the decision he did not at any rate know of it from Keitel immediately after the meeting. And knowing of it, he carried on playing his part in the conspiracy.

As to Kaltenbrunner's guilt the meeting at which Walde was informed of the decision was with Mueller and Nebe, Kaltenbrun

ner's subordinates. Schellenberg's evidence of the discussion between Nebe, Mueller and Kaltenbrunner about this time on the subject of an International Red Cross enquiry about 50 English or American prisoners of war is conclusive. He heard Kaltenbrunner providing his subordinates with the answer to be given to this inconvenient enquiry and one cannot doubt his full knowledge of this matter. The reply sent to the Protecting Power and the International Red Cross by Ribbentrop is now admitted on all hands to have been a pack of lies. Is it to be believed that he also was not a party to the decision? (D-731, GB 278).

That any of these men would have been prepared to take such a decision themselves or to comply with it if taken by Hitler is, we submit, clear from the correspondence providing for the lynching or shooting of what were called terror fliers. These documents show that neither Keitel nor Jodl had any scruples in the matter while both Goering and Ribbentrop agreed to the draft order (D-777, GB 310; D-783, GB 316; D-784, GB 317).

You will remember the meetings which preceded that correspondence—first a meeting between Goering, Ribbentrop and Himmler at which it was agreed to modify (735-PS, GB 151):

“the original suggestion made by the Reich Foreign Minister who wished to include every type of terror attack on the Ger

man civilian population as justifying action.” and which concluded that

"lynch law would have to be the rule.”

At the subsequent meeting between Warlimont and Kaltenbrunner it was agreed that

“these aviators who escaped lynch law would in accordance with a procedure to be advised, be handed over to the SD for special

treatment." Finally Keitel's note on the file:

"I am against legal procedure. It does not work out." Similar evidence is provided when we consider the attitude taken up in February 1945, when Hitler wished to renounce the Geneva Convention. Doenitz advised that (C-158, GB 209):

“it would be better to carry out measures considered necessary without warning and at all costs to save face with the outside

world”— a decision with which Jodl and Ribbentrop's representative agreed. Their defense that this was merely a technical measure and that they did not in fact intend any concrete action, is disposed of by Jodl's memorandum on the whole question (D-606, GB 492): 744400-47-9

“Just as it was wrong in 1914 that we ourselves solemnly declared war on all the states which for a long time had wanted to wage war against us and through this took the whole guilt of the war on our shoulders before the outside world, and just as it was wrong to admit that the necessary passage through Belgium in 1914 was our own fault, so it would be wrong now to repudiate openly the obligations of International Law which we accepted and thereby to stand again as the guilty party before the whole world."

After this remarkable statement he added that there was nothing to prevent them in fact from sinking an English hospital ship as a reprisal and then expressing regret that it was a mistake.

It remains to consider the question of employment of prisoners of war. Under Article 31 of the Geneva Convention it might have been permissible to employ prisoners on certain work in connection with the raw materials of the armament industry. But the statement made by Milch at the Central Planning Board on the 16th of February 1943 in the presence of Speer and Sauckel had no legal justification at all (R-124, USA 179):

“We have made a request for an order that a certain percentage of men in the Ack-Ack artillery must be Russians. 50,000 will be taken altogether, 30,000 are already employed as gunners. This is an amusing thing that Russians must work the guns." That was obviously flagrantly illegal. Nobody could have had the faintest doubt about it. The minutes record no protest. It has not been suggested that Goering or any of the others who must have read the minutes and known what was going on, regarded this outrage by the effective head of the German Air Force as in any way unusual.

Himmler's cynical words spoken at Posen on the 4th October 1943 on the subject of the Russian prisoners captured in the early days of the campaign ought again io be put on record for history (1919-PS, USA 170):

“At that time we did not value the mass of humanity as we value it today as raw material, as labor. What, after all, thinking in terms of generations is not to be regretted but is now deplorable by reason of the loss of labor is that the prisoners died in tens and hundreds of thousands of exhaustion and hunger."

I turn now to the murder of the Commandos.

The evidence with regard to the Commando Order of 18th October 1942 directly involves Keitel, Jodl, Doenitz, Raeder, Goering and Kaltenbrunner. By article 30 of the Hague Rules (498-PS, USA 501):

"A spy taken in the act shall not be punished without previous trial.”.

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