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Mr. President and Members of the Tribunal:

Under the Indictment, the prosecution asks a declaration of criminality against six groups or organizations. For purposes of clarity in specifying the charges and marshalling the evidence, this division into six parts is appropriate, since it accurately reflects the formal structure of the Third Reich.

In a deeper sense, however, the Third Reich was not sextuple. It was simpler than that. The Third Reich was a political machine and a military machine. It was embodied in and sought its ends through the Nazi Party and the Armed Forces. Its successes at home and abroad were achieved by these two instruments. The Wehrmacht owed its resurgence largely to the Nazi Party; the Party, in turn, would have been helpless and impotent without the Wehrmacht. As General Reinecke put it, the two pillars of the Third Reich are the Party and the Armed Forces, and each is thrown back on the success or downfall of the other.1

Appendix B of the Indictment specified the leaders and principal instrumentalities of the Party and the Armed Forces. From the Party, the Indictment specifies, for instance, the Corps of Political Leaders, and also the members of the SS, a principal executive arm of the Party. From the Armed Forces, the Indictment specifies the leading generals who had the principal authority for plans and operations.

1. The General Staff and High Command Group The composition of this group of military leaders was described by the prosecution during the case-in-chief, and little more needs to be said by way of exposition. The defense has taken the view that these military leaders do not constitute a group within the meaning of the Indictment. The arguments in support of this technical objection are, I believe, insubstantial, but I want to meet them directly and clearly.

A number of the points made by the defense are based either on misunderstanding or a deliberate misreading of the definition of the group in the Indictment. Thus, several witnesses have testified 744400-47-21

that the “General Staff” consisted of young officers of relatively junior rank who acted as assistants to the commanders-in-chief. This involves a confusion with what is known to military people as the "General Staff Corps" of War Academy graduates. The Indictment does not include these officers, as the prosecution made clear at the outset.2 In so far as this or similar testimony is an attack on the name which the Indictment applies to the military leadership group, it is an utterly insignificant point. There is no stock phrase or word of art in German or English for all the military leaders of the Wehrmacht; the Indictment combines the phrases “General Staff” and “High Command” as most descriptive of the chiefs of the four staffs of OKW, OKH, OKM, and OKL, all of whom were key figures in military planning, and the commanders-in-chief who directed operations. Together, they adequately comprehend the military leadership.

Several other minor and technical points merit only brief mention. It has been objected that the chart, attached to the affidavits of Halder, Brauchitsch, and Blaskowitz, does not accurately depict the chain of command. That is true; the chart was not intended to show the chain of command, the affidavits say nothing about it, and the prosecution has not suggested anything of the kind. Finally irrelevant is the question whether Keitel might have been shown in the same box with Hitler instead of having a box to himself. None of these points about the chart involves the addition or subtraction of a single member of the group, or affects the Indictment's definition of the military leadership. Equally irrelevant is the contention that the list of members of the groups includes some generals who held only temporary appointments as commanders-in-chief and were never formally designated as such. This might later be relevant in a trial of these individual generals, if they can show that they never really had the status and responsibility of a commander-in-chief, but is not important in contemplating the group as a whole.

Several affidavits submitted by the defense point out that a few generals were members of the group for less than six months, that a number of them died or were removed or retired from their positions before the end of the war, and that the younger ones were not generals when the war started. This is all quite natural. We are concerned with a 7-year period, during most of which there was war, which is a hazardous and wearing occupation. During these years some generals died, others failed, and still others fell out of favor; new faces appeared as replacements; the great increase in the number of German Army Groups and Armies brought still other officers into the status of commanderin-chief. To the extent that in war the hazards were sharper

and the failures more costly in the Wehrmacht than in politics, this turnover may have been correspondingly greater in the Wehrmacht than in the Nazi Party. But again, these questions are relevant only on the degree of responsibility of individual members of the group, and not on the responsibility of the group itself.

A special point has been made of the fact that many members of the group did not become such until after 1942. The argument drawn from this circumstance is, I take it, that the generals who joined the group only after 1942 could not have taken part in the planning and launching of aggressive wars. It is true that by the end of 1942 the Wehrmacht, led by the accused group, had invaded or overrun all or a large part of every neighboring country except Switzerland and Sweden, so that further wars of aggression had become impractical. I suppose that it might be urged with equal, if any, force that many Germans joined or rose to high rank in the SS or the Party Leadership group after 1942. Certainly the argument ignores that the military leadership group, long after 1942, was a group whose official orders were to murder commandos and commissars and to achieve “pacification” by spreading terror. Many of the atrocities committed by the German Armed Forces occurred late in the war. Once again, this point has substance only in that individual late-comers to the group may show in other proceedings that they never learned of and did not join in the criminal activities. The group itself cannot escape responsibility by pleading that it continued to grow even after the Third Reich's capacity to initiate aggressive wars had been exhausted.

The defense tells us that the military leaders were not a "group" because they merely occupied official positions without any “unifying element.” 10 This is a factual question. Its solution is not advanced by nice linguistic points, such as whether the German word "gruppe" means "group" or "number." 11

I suppose that "group" means a number of persons chosen because of some likeness.12 Or as Mr. Justice Jackson put it,13 the members must have an "identifiable relationship" and a "collective, general purpose." I suppose also that the "likeness" or "relationship" and the purpose must be meaningful under the London Agreement.

The generals who held the positions listed in the Indictment constituted the military leadership of the Third Reich. That is their “likeness,” "identifiable relationship,” or “unifying element." Their “collective general purpose” was to build up and train the Wehrmacht and to make its plans and direct its operations,

The evidence to this effect is, I submit, conclusive and uncontradicted. Leading German generals—Brauchitsch and Halderhave said in sworn statements 14 that those who held the positions

listed in the Indictment had the “actual direction of the Armed Forces” and “were in effect the General Staff and High Command.15

The technical objections made later by the defense with respect to the chart are quite irrelevant to this essential point.

The testimony of numerous generals, assuming its credibility, that the military leaders did not have any formal organization or any secret advisory council is quite wide of the mark. The prosecution has not charged this; nor has it charged that the military leaders were a political party or that they had a set or uniform view on internal political matters.

Nor are we surprised to hear from some defense witnesses that the Germans, like ourselves, found coordination within a single service easier to achieve than coordination between the Army, Navy, and Air Force 16

The mere existence of OKW is sufficient proof of the importance which the Germans attached to inter-service collaboration, and numerous documents show constant and detailed planning and discussion between the three services.17 In any event, it is unnecessary to look behind the actual course of events. Surely no one would have suggested in 1941, after witnessing the coordinated use of tanks and Stukas in Africa and the team-play of all three services during the Norwegian invasion, that the German war effort lacked coordination.

From the standpoint of military planning, we are told by Halder that the most important part of OKW was the operations staff, of which Jodl and Warlimont were the chief and deputy chief respectively.18 The field commanders, too, participated in planning. We know from Brauchitsch and Blaskowitzlo that the military plans for the attacks on Poland and other countries were submitted in advance to the commanders-in-chief of army groups and armies so that OKH would have the benefit of their recommendations. Brauchitsch and Blaskowitz have also told us that, during operations, the OKH and the commanders-in-chief of army groups and armies were in continual consultation and that the commanders-in-chief were repeatedly consulted by Hitler himself.20 The testimony of General Reinhardt is to the same effect.21 Contemporary documents clearly show the participation of the field commanders-in-chief in planning for the Polish campaign.22

The commanders-in-chief of army groups and armies in occupied territory had executive power (Vollziehende Gewalt) within the areas under their command.23 Within those areas, they were supreme, and had the power of life and death over the inhabitants. They had the responsibility for determining such questions as whether the commissar and commando orders should be distributed, and if so how widely and with what instructions.

To summarize, these generals were an aggregation of persons who directed the German Armed Forces and whose collective purpose was to prepare it for and lead it in military operations. From time to time, when all the members met together, it was a congregation.24 The purpose and spirit of the London Agreement clearly brings such a body of men within the scope of Article 9 thereof. The Agreement established this Tribunal to try such offenses as the planning and waging of aggressive wars, and violations of the laws and customs of war. The German military leaders are charged, among other things, with developing the plans under which aggressive and illegal wars were initiated, and with directing the Armed Forces in the launching and waging of these wars. They are charged with circulating throughout the Wehrmacht orders directing the murder of certain types of prisoners, and with aiding, abetting, and joining in the murder and ill treatment of the civilian population, all in violation of the laws and customs of war.

The argument of the defense that the military leaders are not a "group" and are therefore immune to a declaration under Article 9 is, we submit, utterly unfounded and flatly contrary to the plain purposes of the London Agreement. That Agreement cannot be reasonably construed to exclude from the purview of Article 9 the leaders of one of the two chief instrumentalities of the Third Reich.

The defense appears to contend that membership in this group was not voluntary.25 I say “appears to" because in one breath we are told that the generals could not withdraw from the positions they occupied,26 and in the next that many of them resigned because of disagreements with Hitler.27

This question is, I think, a simple one. We are not concerned here with the ordinary German conscript who made up the bulk of the Wehrmacht. We are concerned entirely with professional soldiers, and with the most zealous, ambitious, and able German officers in the business. Most of them chose a military career because it was in their blood and, as Manstein put it,28 they "considered the glory of war as something great." They slaved at and were devoted to their profession and if they reached the status of commander-in-chief, they were like Manstein, proud that an army had been entrusted to them. No one became a German commander-in-chief unless he wanted to.

It is true that, in time of war, a professional officer cannot resign his commission or his post at his own free will. But this does not turn the professional officer into a conscript or make his status an involuntary one. No one becomes a professional officer without knowing in advance the obligations that will bind him in

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