in December, that on March 14 Hitler was still hesitant about giving the order for the attack because he was "still looking for some justification," and that all through the weeks preceding the Norwegian attack there was discussion within the General Staff group as to whether it might not be preferable to initiate the general western offensive against France and the Low Countries before undertaking the Norwegian campaign. (Transcript, pp. 2159-2164; 1809-PS, GB 88, particularly the entry for March 13, 1940.)

As for the major attack in the west, it appears from the testimony of defense witnesses that Hitler wanted to attack in the fall of 1939 and that Brauchitsch and other generals persuaded him that it should be postponed until the spring of 1940.68 This postponement indeed shows that the generals had considerable influence with Hitler, but hardly excuses the later attack. When the spring of 1940 arrived, according to Manstein," "the offensive in the west, from the point of view of the soldier, was absolutely inevitable." There is no evidence that a single German commander protested against or opposed the flagrant and ruthless violation of the neutrality of the Low Countries."

The explanations of the defense concerning the crimes against peace are labored and implausible, and are in conflict equally with the documents before the Tribunal and with the history of the years in question. Nor is it true that the military leaders were mere puppets without influence on Hitler or the course of events. Naturally there were disagreements not only between Hitler and the Wehrmacht, but within the Wehrmacht itself. If Hitler prevailed at times so at times did the Wehrmacht, whether it was to postpone the western offensive or to launch the attack on Denmark and Norway. Despite the attempt to make the contrary appear, Hitler was not so stupid as to act without the benefit of military advice. One need only look at Hitler's directive to the military leaders of 12 November 1940,71 written after the successful conclusion of the western offensive, in which he discusses very tentatively his future plans in France, a possible offensive in Spain, whether Madeira and the Azores should be occupied, what assistance should be given the Italians in North Africa, what to do in Greece and the Balkans, what the future might hold with regard to the Soviet Union, and whether to invade England in the spring of 1941. Hitler concluded:

"I shall expect the commanders-in-chief to express their opinions of the measure anticipated in this directive. I shall then give orders regarding the method of execution and synchronization of the individual actions."

No, the leaders of the Wehrmacht were not puppets. If the

generals owed their opportunity to rebuild the Wehrmacht largely to Hitler and the Nazis, it is also true that Hitler was utterly dependent on the generals for carrying out his plans. Brauchitsch has pointed out 72 that "the carrying out of the orders that were given to the army and to the army groups required such a high knowledge of military matters and such ability and psychological understanding that there were only a few people who were actually able to carry out such orders." And it is worth noting that despite the very real and natural friction between the war lords and a former corporal, Hitler never, until July 1944, turned outside the ranks of the army for his commanders-in-chief." Even during those final desperate months, only four outsiders (Himmler himself and three others from the Waffen-SS) achieved the coveted distinction.

Nor was the Wehrmacht that swarmed over the continent of Europe led by reluctant men. These aggressive wars were launched and waged by men who worshipped armed might, and wanted to extend the hegemony of Germany. That is, at bottom, why the Nazis and the Wehrmacht leaders gave the Third Reich its unity. I recall the Tribunal's attention to Admiral Fricke's memorandum of June 1940: 75

"It is too well known to need further mention that Germany's present position in the narrows of the Heligoland Bight and in the Baltic-bordered as it is by a whole series of States and under their influence-is an impossible one for the future of Greater Germany.

*

"(3). The power of Greater Germany in the strategic areas acquired in this war should result in the existing population of these areas feeling themselves politically, economically and militarily to be completely dependent on Germany. If the following results are achieved that expansion is undertaken (on a scale I shall describe later) by means of the military measures for occupation taken during the war, that French powers of resistance (popular unity, mineral resources, industry, Armed Forces) are so broken that a revival must be considered out of the question, that the smaller States such as the Netherlands, Denmark and Norway are forced into a dependence on ús which will enable us in any circumstances and at any time easily to occupy these countries again-then in practice the same, but psychologically much more, will be achieved.

*

to

"The solution * * * therefore, appears to be * crush France, to occupy Belgium, part of North and East

France, to allow the Netherlands, Denmark and Norway to exist on the basis indicated above."

In the face of documents such as this one, we have nevertheless heard the generals say over and over again that they were never told about what was going on and heard about events for the first time over the radio. Over and over again they have protested that they never heard about certain things until they were lodged in the jail at Nurnberg. Military figures, like so many others in this case, have not hesitated to put the responsibility for things which they cannot deny or avoid on the shoulders of one or two people whom they seek to portray as peculiar and unrepresentative of the group. The common denominator of these scapegoats is that they are all dead. The dead Reichenau is made to share the blame with the other dead who cannot speak-Hitler, Himmler, Dr. Rascher and the rest. These defenses are mean and they are utterly incredible. The world will never believe them.

No group of men was more intimately concerned than were the military leaders with what was going on in and around Germany in the years before the war. The military leaders now tell us that they neither knew, nor cared to know, nor ought to have known about these things. If what they say is true, then they are unique, for nearly all the world had heard something about these things. One of the most remarkable things about this trial has been that instead of a series of startling revelations, the documents assembled here and the labor devoted to them have served to confirm what was already known or suspected throughout the world many years ago. I cannot suppose that anybody will ever subscribe to the view which the military leaders have been forced by circumstances to put forward here, in order to try to clear themselves from a stain which is too dark to be effaced.

B. COUNTS THREE AND FOUR OF THE INDICTMENT—
WAR CRIMES AND CRIMES AGAINST HUMANITY

The crimes against peace in which the General Staff and High Command group participated led inevitably to the war crimes which followed. Without the participation of this group in the crimes against peace, there would have been no war crimes. It is not a change from one subject to another, but only the inevitable chain of causation, which leads us now to consider the methods by which the Wehrmacht waged the wars it had launched.

We do not, of course, suggest that the hands of every Germant soldier were plunged into innocent blood, or that the rules of war and the laws of decency were disregarded by every German commander. But we do say that the nature and extent of the atrocities ordered by the leaders of the Wehrmacht and thereafter

perpetrated by it in many countries of Europe, reveal and prove a calculated indifference on the part of the military leaders to the commission of crimes.

The uncontested fact is that the Supreme Command of the Wehrmacht, under instructions from Hitler as its commander-inchief, issued various orders which flagrantly contravened the rules of war. These included the orders for the shooting of commandos and political commissars, the orders to "pacify" the occupied territories of the Soviet Union by spreading terror, and others. The defense does not dispute the issuance of these orders, and it does not and cannot contest their criminality. Rather we are told that the German commanders were honorable soldiers, that they disapproved of these orders, that they tacitly agreed not to execute the orders, and that the orders were not executed. Let us test this defense against the facts in the case of the commando order. The original order 70 and the other relevant documents are all in evidence." In October 1942, Hitler ordered that enemy commandos were to be slaughtered to the last man; that even if they surrendered, they were nonetheless to be shot immdiately, unless interrogation were necessary, in which case they were to be shot thereafter. The order was not a purposeless piece of criminality; allied commando operations were doing serious damage to the German war effort, and Hitler thought this order would act as a deterrent.

The order was issued from the OKW and distributed to all three branches of the service. There is ample evidence that it was widely distributed and well known with the Wehrmacht. Rundstedt, Supreme Commander in the West, reported on June 23, 1944 that "the treatment of enemy commando groups has so far been carried out" according to the Hitler order. Two years later, under different circumstances, Rundstedt testified that he "evaded" and "sabotaged" the order, and that it was not carried out." But we know from the documents that it was carried out. Pursuant to this order, British and Norwegian commandos were executed in Norway in 1942 and 1943; 80 American commandos were shot in Italy in 1944; 81 allied soldiers were executed in Slovakia in 1945.82 And, in the nature of things, the order must have been carried out in other instances of which, unhappily, no trace now remains.

In the light of these documents, what remains of the defense? Stated most favorably, merely that because some of the military leaders disapproved the order, it was not executed as often as it otherwise might have been. But this defense is worse than worthless; it is shameful.

We must not forget that to kill a defenseless prisoner-of-war

is not only a violation of the rules of war. It is murder. And murder is none the less murder whether there is one victim, or 55 (which is the number of slaughtered commandos proved by the documents), or Ohlendorf's 90,000. Crime has been piled upon. crime in this case until we are in danger of losing our sense of proportion. We have heard so much of mass extermination that we are likely to forget that simple murder is a capital offense.

The laws of all civilized nations require that a man go to some lengths to avoid associating himself with murder, whether as accomplice or accessory or co-conspirator. And these requirements can reasonably be applied to the German military leaders. Before this Tribunal they have made much of their traditions of honor, decency, courage, and chivalry.

Under German military law, a subordinate is liable to punishment for obeying the order of a superior, if the subordinate knows that the order requires the commission of a civil or a military crime.83 The commando order required the commission of murder, and every German officer who handled the order knew that perfectly well.

a

When Hitler directed the issuance of this order, the leaders of the Wehrmacht knew that it required the commission of murder. The responsibility for handling this question lay squarely on the group defined in the Indictment. The chiefs at OKW, OKH, OKL, and OKM had to decide whether to refuse to issue a criminal order or whether to pass it on to the commanders-in-chief in the field. The commanders in the field-Army, Navy and Air—had to decide whether to execute or refuse to execute the order and whether to distribute it to their subordinates.84

One can imagine that there were many meetings and telephone conversations among various members of the group to discuss this matter. There is no evidence that a single member of the group openly protested or announced his refusal to execute it. The general result was that the order was distributed throughout a large part of the Wehrmacht. This put the subordinate commanders in the same position as their superiors. We are told that some of the generals tacitly agreed not to carry out the order. If so, it was a miserable and worthless compromise. By distributing the order with "secret" or "tacit" understandings, the commanders-in-chief merely spread the responsibility and deprived themselves of any effective control over the situation. A tacit agreement to disobey cannot be as widely circulated. The inevitable result, and the result proved by the documents, was that the order was carried out, and innocent men were murdered.

Because he was responsible for enforcing the commando order, General Dostler was tried, convicted, and shot to death.85 For