International Military Tribunal
Incorrect Judgment with Regard to the General Staff and the OKW
The verdict incorrectly rejects the accusation of criminal activity directed against the General Staff and the OKW.
The rejection of the accusation of criminal activity of the General Staff and of the OKW contradicts both the actual situation and the evidence submitted in the course of the trial.
It has been established beyond doubt that the leadership corps of the Armed Forces of Nazi Germany together with the SS Party machine, represented the most important agency in the preparing and realising the Nazi aggressive and manhating programme. This was constantly and forcefully reiterated by the Hitlerites themselves in their official bulletins meant for the officer personnel of the armed forces. In the Nazi Party Bulletin called " Politics and the Officer in the III Reich " it is quite clearly stated that the Nazi regime is founded on " two pillars: the Party and the Armed Forces. Both are forms of expression of the same philosophy of life ", " the tasks before the Party and the Armed Forces are in an organic relationship to each other and each bears the same responsibility . . . both these agencies depend on each other's success or failure". (PS-4060, US-928, p. 4.)
This organic interrelationship between the Nazi Party and the SS on the one hand and the Nazi Armed Forces on the other hand, was particularly evident among the upper circles of military hierarchy which the Indictment groups together under the concept of criminal organisation-that is, among the members of the General Staff and the OKW.
The very selection of members of the Supreme Command of the Army in Nazi Germany was based on the criteria of their loyalty to the regime and their readiness not only to pursue aggressive militaristic policies but also to fulfil such special directives as related to treatment meted out to prisoners of war and to the civilian populations of occupied territories.
The leaders of the German Armed Forces were not merely officers who reached certain levels of the military hierarchy. They represented, first of all, a closely knit group which was entrusted with the most secret plans of the Nazi leadership. Evidence submitted to the Tribunal has fully confirmed the contention that the military leaders of Germany justified this trust completely and that they were the convinced followers and ardent executors of Hitler's plans.
It is not accidental that at the head of the Air Force stood the " second man" of the Nazi Reich, namely Goering; that the Commander-in-Chief of the Navy was Doenitz, subsequently designated by Hitler to be the latter's successor: that the command of the Ground Forces was concentrated in the hands of Keitel who signed the major part of the degrees concerning the execution of the prisoners-of-war and of the civilians in occupied territories.
Thus the comparisons made with the organisation of the Supreme Commands in Allied countries cannot be considered valid. In a democratic country, not one self-respecting military expert would agree to prepare plans for mass reprisals and merciless killings of prisoners-of-war side by side with plans of the purely military and strategic character.
Meanwhile it is precisely such matters that occupied the Supreme Command of the General Staff and of the OKW in Nazi Germany. The commission by them of the heaviest crimes against peace, of the war crimes, and of the crimes against humanity is not denied but is particularly emphasised in the verdict of the Tribunal. And yet the commission of these crimes has not brought the logical conclusion.
The verdict states:
"They have been a disgrace to the honourable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow Nazis would have been academic and sterile . . ."
" Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey, when confronted with Hitler's brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world ever had the misfortune to know . . . This must be said."
All these assertions in the verdict are correct and are based on numerous and reliable depositions. The only thing that remains incomprehensible is the reasoning which does not recognise as criminal that " hundreds of higher ranking officers " who caused the world and their own country so much sorrow, the reasons backing the decision not to declare the organisation criminal.
The verdict advances the following reasons for the decision, reasons quite contradictory to the facts:
(a) That the crimes were committed by representatives of the General Staff and of the OKW as private individuals and not as members of a criminal conspiracy.
(b) That the General Staff and the OKW were merely weapons in the hands of the conspirators and interpreters or executors of the conspirators' will.
Numerous evidence disputes such conclusions.
1. The leading representative of the General Staff and of the OKW, along with a small circle of the higher Hitlerite officials, were called upon by the conspirators to participate in the development and the realisation of the plans of aggression, not as passive functionaries, but as active participants in the conspiracy against peace and humanity.
Without their advice and active cooperation, Hitler could not have solved these problems.
In the majority of cases their opinion was decisive. It is impossible to imagine how the aggressive plans of Hitler's Germany could have been realised had it not been for the full support given him by the leading staff members of the Armed Forces.
Least of all did Hitler conceal his criminal plans and motivation from the leaders of the Supreme Command.
For instance, while preparing for the attack on Poland, as early as 29th May, 1939, at a conference with the high military commanders of the new Reich Chancellery, he stated:
" For us the matter consists of the expansion of ' Lebensraum ' to the East."
"Thus the question of sparing Poland cannot be considered, and, instead, we have to consider the decision to attack Poland at the first opportunity." (L-79.)
Long before the seizure of Czechoslovakia, in a directive of 30th May, 1938, Hitler, addressing the representatives of the Supreme Command cynically stated:
" From the military and political point of view, the most favorable time is a lightning attack on the basis of some incident, by which Germany will have been strongly provoked and which will morally justify the military measures to at least part of the world opinion." (PS-388.)
Prior to the invasion of Yugoslavia, in a directive dated 27th March, 1941, addressing the representatives of the High Command, Hitler wrote:
" Even if Yugoslavia declares its loyalty, it must be considered an enemy and must, therefore, be smashed as soon as possible." (PS- 1746.)
While preparing for the invasion of the U.S.S.R., Hitler invited the representatives of the General Staff and the OKW to help him work out the related plans and directives not at all as simply the military experts.
In the instructions to apply propaganda in the region " Barbarossa," issued by the OKW in June, 1941, it is pointed out that:
" For the time we should not have propaganda directed at the dismemberment of the Soviet Union." (PS 446.)
As early as 13th May, 1941, OKW ordered the troops to use any terrorist measures against the civilian populations of the temporarily occupied regions of the Soviet Union.
Here a special stipulation read: " To confirm only such sentences as are in accordance with the political intentions of the Leadership." (G-50.)
2. OKW and the General Staff issued the most brutal decrees and orders for relentless measures against the unarmed peaceful population and the prisoners of war.
In the " decree of special liability to punishment in the region Barbarossa " while preparing for the attack upon the Soviet Union, the OKW abolished beforehand the jurisdiction of the military courts, granting the right of repressions over the peaceful population to individual officers and soldiers.
It is particularly stated there that:
" Crimes of hostile civilians are excluded from the jurisdiction of the courts martial . . . .", " Suspected elements must be immediately delivered to the officer. The latter will decide whether they should be shot .... ", " it is absolutely forbidden to hold suspects for the purpose of bringing them to trial." There are also provisions for "the most extreme measures, and, in particular, 'Measures for mass violence', if circumstances do not permit the rapid detection of the guilty."
In the same decree of the OKW the guarantee of impunity was assured in advance to the military criminals from the service personnel of the German Army. It states there as follows: " The bringing of suits of actions, committed by officials of the Army and by the service personnel against hostile civilians is not obligatory even in the cases where such actions at the same time constitute military crimes or offences ....".
In the course of the war the High Command consistently followed this policy, increasing its terroristic actions with regard to prisoners of war and the peaceful populations of occupied countries.
The OKW directive of 16th September, 1941, states:
" It is important to realise that human life in the countries to which this refers, means nothing, and that intimidating action is possible only through the application of unusual brutality ". (P-98.)
Addressing the commanders of the Army groups on 23rd July, 1941, the OKW simply briefed them as follows: " It is not in the demand for additional security detachments, but in the application of appropriate draconic measures that the commanding officers must use to keep order in the regions under their jurisdiction." (PS-459.)
The OKW directive of 16th December, 1941, states:
" The troops . . . have the right and are obliged to apply . . . any measures whatsoever also against women and children if this contributes to success .... " (USSR-16.)
Among the most brutal OKW directives concerning the treatment of prisoners. of war one must consider The order entitled " Night and Fog " The reasons for resorting to capital punishment for prisoners of war were offences, which according to international conventions, generally should not carry any punishment, for example, escape from the camp.
Another order "Nacht und Nebel" states:
" Penalty for such offences, consisting of loss of freedom and even a life sentence is a sign of weakness. Only death sentences or measures which entail ignorance of the fate of the guilty by local population will achieve real effectiveness." (L-90. US-224. Transcript, Afternoon Session, 25th January, 1946.)
In the course of the present trial a great deal of evidence of application of this order has been submitted. One example of this kind of crime is the murder of 50 officer-pilots. The fact that this crime was inspired by the High Command cannot be doubted.
OKW also issued an order for the destruction of the " Commando " units. The original order was submitted to the Court. (PS-498, US-501.) According to this order, officers and soldiers of the " Commando " units had to be shot, except in cases when They were to be questioned, after which they were shot in any case.
This order was unswerveingly carried out by the commanding officers of Army units. In June, 1944, Rundstedt, the Commander-in-Chief of the German troops in the West, reported that Hitler's order in regard to " the treatment of the Commando groups of the enemy is still being carried out ". (PS-531, US-550.)
3. The High Command, along with the SS and the Police, is guilty of the most brutal police actions in the occupied regions.
The instructions relating to special regions, issued by OKW on 13th March, 1941, contemplated the necessity of synchronising the activities in occupied territories between the Army Command and the Reichsfuehrer of the SS. As is seen from the testimony of the chief of the 3d Department of RSHA and who was concurrently chief of the Einsatzgruppe " D ", Otto Ohlendorf, and of the chief of the VI Department of RSHA, Walter Schellenberg, in accordance with OKW instructions there was ,an agreement made between the general staff and the RSHA about the organisation of special " operational groups " of the Security Police and SD-" Einsatzgruppen" assigned to the appropriate army detachments.
Crimes committed by the Einsatzgruppen on the territory of the temporarily occupied regions are countless. The Einsatzgruppen were acting in close contact with the commanding officers of the appropriate army groups.
The following excerpt from the report of Einsatzgruppe " A " is extremely characteristic as evidence:
". . . among our functions is the establishment of personal liaison with the commanding officer both at the front and in the rear. It must be pointed out that the relations with the army were of the best, in some cases very close, almost hearty, as, for instance, the commander of the tank group, Colonel General Hoppner". (L-180.)
4. The representatives of the High Command acted in all the echelons of the army as members of a criminal group.
In spite of the violation of international law and of the customs of war, the directives of the OKW and of the General Staff and the command of individual army units were applied in life and were augmented by even more brutal orders issued as implementation to these directives.
In this connection it is characteristic to note the directive of Field Marshal von Reichenau's Army group commander, addressed to his soldiers: " The soldier in the eastern territories is not only a warrior skilled in the art of warfare but a bearer of a merciless national ideology." And elsewhere, calling for the extermination of the Jews. Reichenau wrote: " Thus the soldier must be in full cognisance of the necessity for harsh and just revenge on those subhumans, the Jews ". (USA-556.)
As another example the order of Field Marshal von Mannstein addressed to his soldiers can be referred to. On the basis of the " political aims of the war " the Field Marshal cynically appealed to his soldiers to wage the war in violation of the " recognised laws of warfare in Europe ". (USA-927.)
Thus, in the course of the hearing of evidence it has been proved beyond all doubt that the General Staff and the Supreme Command of the Hitlerite Army comprised a highly dangerous criminal organisation.
I consider it my duty as a Judge to draw up my dissenting opinion concerning those important questions in which I disagree with the decision adopted by the members of the Tribunal.
Soviet Member I.M.T., Major General Jurisprudence,
[signed] I. T. NIKITCHENKO
1 October 1946
International Criminal Court
Published online by Equipo Nizkor and Derechos Human Rights - 27 May 2002