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THE PRESIDENT: Is there any evidence in writing of that rescinding?

DR. LATERNSER: Yes, Mr. President. That part of the evidence is contained in the affidavits which I have presented, and the last paragraph I read can be proved by Document 301-B.

THE PRESIDENT: You mean that there was, in writing, an order by Chief of General Staff Zeitzler rescinding the order?

DR. LATERNSER: I think I have been misunderstood, Mr. President. According to the last paragraph which I have just read, the Chief of the General Staff, Zeitzler, as a result of his counter-reports, was successful in persuading Hitler to rescind the order. This is proved by Document 301-B which I have presented to the High Tribunal and which is available in a translation.

What more can be expected of the military leaders? The order did not emanate from them, they did not pass it on, they did not execute it, they endeavoured to have it rescinded, and finally reached their objective. Herein lies their solidarity

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In the same way, the directive concerning the restrictions of the administration of military justice in the East met with the opposition of the Commanders-in-Chief who were present when it was orally announced. It is due to the generals' negative attitude that Hitler gave up his original plan, which provided for a complete elimination of the administration of military justice in the East, and limited himself to certain restrictions.

In this connection, too, the additional directives issued by the Commander-in-Chief of the Army concerning the maintenance of discipline are of the greatest significance. The Commanders-in-Chief of the army groups and of the armies acted as a group in accordance with the provisions of this additional order, and took vigorous measures in all cases where members of the armed forces had committed offences against the civilian population. In serious cases, they had death sentences passed and executed. Even simple road accidents, in which Russian civilians were injured, were brought before military tribunals, and the persons responsible were called to account. This is proved by, among other things, the evidence given by Field-Marshal von Leeb. Here again, therefore, the officers included in the Indictment took steps to prevent the full execution of one of Hitler's orders, which was in contradiction to their own principles.

The attitude which the military leaders adopted with regard to Hitler's Commando Order was so unfavourable from the very outset, that Hitler was not only compelled to draw up this order personally, but he also found it necessary to threaten exceptionally severe punishment if his order were not executed.

And yet the Commander-in-Chief in Africa, Field-Marshal Rommel, destroyed the order immediately on receipt because of his opposition to it.

The Commander-in-Chief West, Field Marshal von Runstedt, took steps to see to it that the order was not carried out, but evaded. The Commander-in-Chief South-West, Field Marshal Kesselring, issued additional regulations, which safeguarded the treatment of Commando troops as prisoners of war. As regards the Eastern theatre of war, the order was without significance anyway.

These examples clearly show that here again the military leaders found ways and means to prevent the execution of the Commando Order which was in contradiction to their soldierly conceptions.

The individual cases mentioned by the prosecution must be left out of account in this connection, as they are concerned with individual acts, which have already been the subject of special investigations or will be investigated later. But they do not in any way reflect the typical attitude adopted by the military leaders, which alone is relevant in this trial.

It seems to me that here the following questions are also of importance: Could the military leaders not rely on the facts contained in this order being true? Were they not bound to assume that the order had been examined in its relations with International Law, before it was issued? Is this order at all inadmissible under International Law? Does it still come under admitted reprisals?

That will be a matter for the Tribunal to decide, if it attributes some importance to this order of Hitler in the case of the persons whom I represent.

As regards the treatment of prisoners of war, we have only to examine whether the Commanders-in-Chief, in execution of a common plan, ordered or criminally tolerated any kind of maltreatment of prisoners of war in the areas of operations.

If, during the first period of the Russian campaign, the Russian prisoners of war could not be accommodated and fed in accordance with the provisions of the Geneva convention, this is entirely due to the fact that certain difficulties were, at first, unavoidable when hundreds of thousands were taken prisoner. When, after the end of the war, even the Allies were faced with similar difficulties, when all of a sudden great masses of Germans were taken prisoners, the Allies will certainly not now be willing to allow themselves to be accused of Crimes Against Humanity.

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I shall now omit the remaining part of that page and the following page, and I continue at the end of Page 70.

The most serious accusation lies, no doubt, in the assertion of the prosecution that the Commanders-in-Chief had full knowledge of the tasks and the activities of the special purpose groups (Einsatzgruppen), which were allegedly under their command, and that they not only tolerated, but even actively supported the execution of the tasks of these groups. In this, the prosecution relies on statements given by the Higher SS leaders Ohlendorf, Schellenberg and Rode as well as on Document L-180.

Is this not highly doubtful evidence? Can this evidence really convey to the Tribunal the conviction that the generals of the German armed forces offered their assistance in these most abominable mass exterminations? My answer is in the negative, and I give it with the fullest conviction. The evidence given by the witness Ohlendorf, under whose command thousands of Jews were murdered, has been refuted by General Woehler's evidence in all its essential points. Schellenberg, who occupied one of the most influential positions in the most notorious agency of Germany - the Reich Security Main Office (RSHA) - and was one of Himmler's friends, cannot supply any real facts, but gives us only assumptions. He thinks he can assume that General Wagner was fully informed by Heydrich in June, 1941, of the planned mass exterminations. When did this witness arrive at this incriminating assumption? Towards the end of 1945, when he was taken into custody, and when he was looking to his own advantage. Under my cross-examination, he is unable to indicate any facts from the year 1941 on which such an assumption might be based, but he nevertheless made it, and for the first time, in 1945.

Could General Wagner, a highly qualified officer, who gave his life in the course of the 20th July, 1944, fighting against National Socialism, have omitted reporting this atrocious information to his direct superior, Field Marshal von Brauchitsch, with whom he had particularly close relations for a great number of years, and to whom he had access at any time in his capacity of Quartermaster General?

This assumption is impossible - and Field-Marshal von Brauchitsch also confirmed this on the witness stand.

Schellenberg, furthermore, believes that he can assume that the 1c officers were informed about the functions of the special purpose groups (Einsatzgruppen) in connection with mass exterminations, at a meeting held in June, 1941. He is not satisfied with this assumption only, but he further assumes that these 1c officers informed the Commanders-in- Chief. This means that two of Schellenberg's assumptions, linked together, are to furnish the proof that the Commanders-in-Chief had knowledge of these planned mass exterminations.

And how did Schellenberg react in cross-examination to the assumptions made by him?

I submitted to him a sworn statement by a man who was present at the Ic meeting, in which General Kleikamp expressly declared that there had been no mention of planned mass extermination, and which must cause Schellenberg' structure of lies to crumble.

His reply was that it was not for him to decide upon the value of the two oaths. He thereby places his assumption to the contrary, which is not founded on facts, on the same level as the positive statement made by one of those present at the meeting, according to which no information had been given on the planned mass exterminations.

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The witness Rode, who is likewise a high-ranking SS leader, also wished to make a charge. He asserted that the special purpose groups (Einsatzgruppen) were placed fully under the authority of the Commanders-in-Chief, but he restricts this statement by adding "to the best of my knowledge." This strips the evidence of the witness of all its value for the prosecution.

I now turn to Document L-180, according to which the Commander-in-Chief of the Armoured Group 4, General Hoeppner, allegedly entertained a particularly close co- operation with the special purpose groups.

Is not the use of such a report highly dangerous to the finding of the truth, particularly since it only contains the views of its author? Then too, it does not contain any indication as to the nature of this co-operation, or in what it consisted. The special purpose groups and commandos, however, also had to carry out supervisory and investigating functions, as has been proved, and only these were known to the Commanders-in-Chief. If there were any co-operation at all, it could never have been in connection with mass executions of Jews.

General Hoeppner, who also lost his life as a victim of the 20th July, 1944, would have been the very last man to lend his assistance to mass murder. Is it really believable that a general who wants to remove a system of government, even at the cost of his life, because of his special objection to its methods, should previously have taken part in the mass murders committed by this very system?

To my profound regret, I am unable to call Generals Wagner and Hoeppner as witnesses; both of them had not conspired with this system, but against it, and both sacrificed their lives thereby. It is rather peculiar to note that the prosecution, easily turns ironical whenever the defendants invoke the dead, endeavours to prove that the military leaders had knowledge of planned mass exterminations and participated in them; and the dead, unfortunately, are unable to protest or resist.

In contrast to these inconclusive proofs advanced by the prosecution I have shown by numerous affidavits that:

1. the special purpose groups (Einsatzgruppen) were not placed under the authority of the military leaders, which is also shown with special clarity by the prosecution's Document 447-PS.

2. General Wagner clearly expressed this to General Judge Mantel and

3. the military leaders had not been informed of planned mass executions.

Now with regard to the other points of the Indictment, such as "maltreatment of the civilian population" and "destructions and lootings," I propose to refer to my submission of evidence on these points, which showed clearly that the military leaders intervened most severely in all cases of offences brought to their knowledge.

As regards the participation of military leaders in the deportations of workers, the prosecution has been unable to submit really conclusive evidence. The question concerning the shooting of hostages must be left out of the count in this trial, because the territorial military commanders in the occupied territories, in so far as they ordered any shootings of hostages at all, are not included in the group of persons represented by me.

Owing to lack of time, I propose herewith to terminate my observations on the War Crimes and Crimes Against Humanity. One thing, however, stands out very clearly:

The military leaders did not act in execution of any plans having the object of committing War Crimes and Crimes Against Humanity. On the contrary,

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It may, perhaps, strike the Tribunal that in all these observations I have only concerned myself with the field commanders of the Army, and with land warfare, but not with the generals of the Air Force and the admirals of the Navy, who are also said to belong to the so-called group. I can only defend, however, what is being attacked. None of the submissions of the prosecution concerning the commission of War Crimes and Crimes Against Humanity concern the Commanders-in-Chief of the Navy or of the Air Force at all. The only charge against the Navy, namely, that connected with the directives for submarine warfare, is specifically directed against the two Grand Admirals, who have assumed full responsibility for their orders, while the naval Commanders-in-Chief had nothing to do with these orders at all. No charges have been preferred against the Commanders- in-Chief of the Air Force. If seventeen admirals and fifteen generals of the Air Force are included in the so-called "group," this constitutes the most striking proof against the theory of the existence of this "group" and renders any special defence of the admirals and of the Air Force generals superfluous.

The last count of the Indictment, that the military leaders had rendered themselves guilty because they tolerated in practice Hitler's criminal plans and deeds, instead of revolting against them, returns us again to the central problem of these proceedings against the soldiers: The problem of the duty to obey. It has been repeatedly stated that the Fuehrer order was not only a military order, but that it had, over and above this, a legislative effect.

Thus, were the military leaders not bound simply to obey the law? If the duty to obey does not exist concerning an order having the committing of a civil crime; as its object, it is because the order demands an action directed against the authority of the State. But can there be any question of a crime if the order requires action which is not directed against the authority of the State, but on the contrary, is demanded by that authority? And even if we reply to this question in the affirmative, what citizen of any country in the world is in a position to recognize the criminal nature of his action?

It is not sufficient, in order to ascertain guilt, that the prosecution explain what the defendants should not have done; at the same time they should tell us what they might and should have done, for any legal prohibition must also include a positive directive. If I suppose that, in spite of the sovereignty of the individual States, a legal obligation existed for the generals to act in accordance with International Law and moral requirements even against the law of their own State, such a legal obligation could only be affirmed if the corresponding action offered a chance of success. After all, to allow oneself to be hanged, merely to evade one's duties - to betray one's country without any prospect of being able to change matters, cannot be demanded by virtue of any moral. Ultimately, there is no obligation for anybody to become a martyr.

And what were the possibilities of negative or positive action against orders and law on the part of the indicted generals? What were the chances of success? The simple rejection of unlawful plans or orders, be it by contradiction, warning, representations, objections, etc., would have been possible but utterly unsuccessful in practice. To a certain extent, this remained ineffective for the simple reason that the generals received no knowledge of many of the objectionable things. In the political and ideological struggle, these methods were so carefully kept a secret from the generals that they did not even hear about mass executions, to say nothing of being able to prevent them.

In the military sphere, Hitler's closest assistants may, perhaps, have been heard on the question as to how a resolution was to be carried out militarily, but their opinions were never asked for as to the resolution itself.

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