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Whilst even the regulations printed in the book of every German soldier provide:

No enemy can be killed who gives up, not even a partisan or a spy. These will be brought to punishment by the Courts.” These men were not spies: they were soldiers in uniform. It is not suggested that any man dealt with under this Order was ever given a trial before he was shot. Legally there can be no answer to the guilt of any of these defendants who passed on or who applied this wicked order, an order which Jodl admitted to be murder and in respect of which Keitel, confessing his shame, admitted its illegality. Raeder admitted that it was an improper order. Even Doenitz stated that now he knew the true facts he no longer regarded it as correct. The only defense put forward have been that the individual in question did not personally carry it out, that they regarded the statement the first paragraph of the order as justifying the action by way of reprisal, that they did their best to minimize its effect and that it was not up to the individual to question the directives of a superior. But no one has seriously disputed that handing over to the SD in the context here meant shooting without a trial.

The answer to these defenses, in so far as the defenses are not purely dishonest, is that the security precautions provided in the order itself were the plainest indication that the facts stated in the first paragraph did not constitute any justification which would bear the light of day. No higher degree of precaution accompanied the Kugel Order, Nacht und Nebel Order, or any other of their brutal orders. That the shackling incident at Dieppe had nothing to do with it appears from Jodl's staff memorandum of the 14th October 1942 which states in terms that the Fuehrer's aim was to prevent the Commando method of waging war by dropping small detachments who did great damage by demolitions, etc., and then surrendered (1266-PS, GB 486).

The cancellation of the order in 1934 is further evidence that those responsible for it recognized their guilt, guilt which was perhaps best summarized by the entry in the War Diary of the Naval War Staff with regard to the shooting of the Commandos taken in uniform at Bordeaux; "Something new in International Law." Yet Raeder and his Chief of Staff were prepared to initial that entry. Kaltenbrunner's knowledge is clearly shown by his letter to the Armed Forces Planning Staff of the 23rd January 1945 referring to it in detail and disputing its application to particular categories (D-649, GB 208; D-658, GB 229).

Other men have already been sentenced to death for execution of this order, men whose only defense was that they obeyed an order from their superiors. I refer to the members of the SD

who were executed for the murder of the crew of Motor Torpedo Boat 345 in Norway and General Dostler in Italy. Innumerable instances from their own records have been proved against these defendants. Shall they escape? You will remember the attitude of the Nazi People's Court, in 1944 to the plea of superior orders (3881-PS, GB 527).

The Commando Order cannot compare in wickedness or brutality with the Nacht und Nebel Order (Night and Fog Order) of the 7th December 1941. The Hitler directive signed by Keitel, after prescribing the death penalty for offenses endangering the security or state of readiness of the occupying powers, orders the removal to Germany of offenders, other than those whose execution could be completed in a very short time, under circumstances which would deny any information with regard to their fate. And Keitel's covering letter of the 12th December gives the reason (L-90, USA 503):

"Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminals and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany."

It is interesting to contrast that statement written when Keitel thought that Germany was winning the war with his evidence before the Tribunal. He said, you will remember:

"Penal servitude would be considered dishonorable by these patriots. By going to Germany they would suffer no dishonor."

This decree was still being enforced in February 1944 when the Commanders of some 18 concentration camps were being reminded of its purpose and how to dispose of the bodies of the "Night and Fog” prisoners without revealing the place of death. The treatment of these prisoners was described by the Norwegian witness, Cappelen, and members of the Tribunal will not have forgotten his account of the transport of between 2500 and 2800 Nacht and Nebel prisoners from one concentration camp to another in 1945 when 1,347 died on the way (D-569, GB 277):

“Feeble as we were, we could not walk fast enough and when they took their guns, the line of five, the line just before usthey took their guns and smashed in the heads of all five of them and they said:

'If you don't walk in an intelligent way see what will happen to you.' But at last after six to eight hours we came to a railway station. It was very cold and we had only such striped prison clothes on and bad boots, naturally but we said, 'Oh, we are glad that we have come to a railway station. It is better to stand in a cow truck than to walk in the middle of winter. It was very cold, ten to twelve degrees I suppose, very cold. There was a long

train with open trucks. In Norway we call them sand trucks and we were kicked onto those trucks about 80 on each truck In this truck we sat for about five days without food-cold-without water. When it was snowing we made like this indicating) just to get some water in the mouth and naturally after a long long time, it seemed to me like years, we came to a place which I afterwards learnt was Dora which is in the neighborhood of Buchenwald. We came there. They kicked us down from the trucks, but many were dead. The man who sat by me, he was dead, but I had no right to get away. I had to sit with a dead man for the last day, and I didn't see the cyphers myself, naturally, but about half of us were dead, getting stiff, and they told that I heard the cipher afterwards in Dora—that the cipher of dead on our train was 1,347. Well, from Dora I don't remember so much, because I was more or less dead. I have always been a man of good humor and high spirited, to help first and my friends, but I had nearly given up. And then at the end of our sufferings we were rescued and brought to Neuengamme by Hamburg, and when we arrived there were some of my old friends, the student from Norway who had been deported to Germany, other prisoners who came from Sachsenhausen and other camps and the few, comparatively few, Norwegian Night and Fog prisoners who were living in very bad conditions. Many of my friends are still in hospital in Norway, some died after coming home.”

In July 1944 à yet more drastic order followed the Night and Fog. On the 30th of that month Hitler issued the Terror and Sabotage decree providing that all acts of violence by non-German civilians in occupied territories should be combatted as acts of terrorism and sabotage. Those not overcome on the spot were to be handed over to the SD, women put to work, only children spared. Within a month Keitel extended the order to cover persons endangering security or war preparedness by any means other than acts of terrorism or sabotage, the usual secrecy requirements were laid down, restricting distribution in writing to a minimum. He then ordered that the Terror and Sabotage decree was to form the subject of regular emphatic instruction to all personnel of the armed forces, SS and Police. It was to be extended to crimes affecting German interests, but not imperilling the security or war preparedness of the occupying power. New regulations could be made by the agreement of particular commanders and higher SS Chiefs. In other words an offense by any person in the occupied territories could be dealt with under this decree (D-762, GB 298; D-763, GB 300; D-764, GB 299).

On the 9th September 1944, a meeting was solemnly held between representatives of the High Command and SS to discuss the relationship of the Night and Fog Order to the Terror and

Sabotage decree. It was considered that the Night and Fog order had become superfluous and the meeting went on to consider the transfer of the 24,000 non-German civilians held under it by the SS to the SD. The meeting discussed the problem of certain neutrals who had been "turned into fog" by mistake. The German word “Vernebelt" justifies the statement of the witness Blaha that the special and technical expressions used in concentration camps can only be said in German and cannot really be translated into any other language. It is perhaps superfluous to remind the Tribunal that when the Luftwaffe General in Holland asked for authority to shoot striking railwaymen, since the procedure of handing over to the SD under the decree was too roundabout, Keitel, in a reply, copies of which were sent both to the Admiralty and to the Air Ministry as well as to the principal commanders in occupied territories, agreed at once that if there was any difficulty in handing over to the SD (D-767, GB 303; D-769, GB 304):

“Other effective measures are to be taken ruthlessly and independently.(D-770, GB 305)

In other words, General Christianson could shoot the railwaymen if he thought fit.

It is not easy for anyone who has not had to live in territory occupied by the Germans to realize the suffering and the state of terror and constant apprehension in which the peoples of Europe lived through the long years of subjection. It was Frank, who, writing on the 16th December 1941, said (USSR-223):

“As a matter of principle we shall have pity only for the

German people—and for no one else in the world.” Save that they had no pity even for their own people, how faithfully these men carried out that principle.

I turn now to the attack on the Partisans. If any doubt remained that the German armed forces were directed not by honorable soldiers but by callous murderers, it must be dissolved by the evidence as to the appalling ruthlessness with which it was sought to put down the Partisans. The witness Ohlendorf said that the direction of anti-Partisan warfare was the subject of a written agreement between the German War Office, the High Command, and the SS. As a result of that agreement an Einsatz Group was attached to each Army Group H.Q. and directed the work of the Einsatz Commandos allotted to the group in coordination and agreement with the Military authorities. If confirmation of the Army's support, knowledge and approval were needed, one has only to look at the report of the Einsatz Group A on its activities during the first three months of the campaign against the Soviet Union (L-180, USA 276).

“Our task was to establish hurriedly personal contact with the Commanders of the Armies and with the Commander of the Army of the rear area. It must be stressed from the beginning that cooperation with the armed forces was generally good, in some cases

it was very close, almost cordial.” And again, speaking of the difficulty of dealing with the partisans in a particular area,

“After the failure of purely military activities such as the placing of sentries and combing through the newly occupied territories with whole divisions, even the armed forces had to look out for new methods. The Action group undertook to search for new methods. Soon therefore the armed forces adopted the experiences of the security police and their methods of combatting the partisans.”

One of these methods is described in the same report in these words: "After a village had been surrounded, all the inhabitants were forcibly shepherded into the main square. The persons suspected on account of confidential information and the other villagers were interrogated and thus it was possible in most cases to find the people who helped the partisans. Those were either shot offhand, or, if further interrogations promised useful information, taken to Headquarters. After the interrogation they were shot. In order to get a deterring effect the houses of those who had helped the partisans were burnt down on several occasions."

And then, after stating that villagers were always threatened with the burning of the whole village, the report adds:

"The tactics to put terror against terror succeeded marvellously.”

The Einsatz Commandos were, as Ohlendorf stated, under Kaltenbrunner's command, but the orders under which they were acting cannot have exceeded in severity those which were issued by Keitel. The Fuehrer order issued by him on 16th December 1942 on the combatting of partisans states (UK-66, GB 274):

"If the fight against the partisans in the east as well as in the Balkans is not waged with the most brutal means, we will shortly reach the point when the available forces are insufficient to control this area. It is therefore not only justifiable but it is the duty of the troops to use all means without restriction—even against women and children so long as it ensures success.'

Three days later he and Ribbentrop were informing their Italian opposite numbers at breakfast that (D-735, GB 295):

“The Fuehrer had declared that the Serbian conspirators were to be turned out and that no gentle methods might be used in doing this.”

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