The fact that such a large contingent was put at the disposal of the German war economy implies perfect collusion between Sauckel’s labor services and Keitel, who, in his capacity of Chief of the High Command, was responsible for this reservoir of manpower and the use to which it was put.
These flagrant violations of the Hague and Geneva Conventions were later accompanied by measures inspired or authorized by the defendants, which were even more serious because they no longer violated only the war prisoners’ rights as such but also involved physical assaults on their persons, which might even cause their deaths. These violations have a bearing, first of all, on the violation of security (Page 32 of my brief).
Exhibit Number RF-1448, (Document Number 823-PS), submitted 30 January 1946 under Exhibit Number RF-359 offers us a report drawn up by the office of the Operations Staff for the Chief of the High Command. It relates to the establishment of camps for British and American Air Force prisoners in German bombed towns. The Operations Staff of the Luftwaffe proposed this arrangement so that the presence of these air force prisoners might protect the population of the cities concerned against possible attacks by the British and American Air Forces and in order to transfer all the existing camps for air force prisoners to these places.
Jodl approved this measure on behalf of the General Staff of the High Command, considering that if it was limited to the establishment of new camps, it would not be contrary to international law.
If we did not know the reason underlying this decision we might believe, like the Defendant Jodl, that it does not run counter to international law. But this measure, as the first lines of this document specify, is above all an indirect means of safeguarding the German urban population. The Allied war prisoners are only a means of warding off possible air attacks; and to attain this end no hesitation is shown in aggravating their condition by exposing them to the dangers of war. This is a grave violation of the obligation regarding the safety of prisoners imposed by Article 9 of the Geneva Convention upon the power detaining prisoners of war.
Keitel writes only two words on the first page of the document—“No objections”—and adds his initials.
I now come (Page 34) to the measures taken against escaped prisoners. The nature of these measures later became particularly serious, as is shown by Exhibit Number RF-1449 (Document Number 1650-PS), submitted on 13 December 1945 by the American Prosecution under Number USA-246. The Tribunal is sufficiently informed as to this and it is not necessary, I think, for me to read it.
This document reveals the “Aktion Kugel” which was designed to put a stop to the escapes of officers and noncommissioned officers. Its only purpose was to turn escaped prisoners over to police organizations. This is the Sonderbehandlung mentioned in orders and reports, but this “special treatment,” as you know, is nothing more or less than extermination.
Yet, in the terms of Article 47 and succeeding articles of the Geneva Convention, only disciplinary punishment in the form of arrest can be inflicted by the detaining power on escaped prisoners of war. Keitel did not hesitate to abandon these methods for more radical means.
DR. OTTO NELTE (Counsel for Defendant Keitel): The French prosecutor is about to refer to a document which is in the document book under RF-711 and has been presented to the Court under Document RF-1450. This document is marked as a summary of an interrogation of General Westhoff, and it forms a particularly grave charge against the Defendant Keitel. It concerns the shooting of R.A.F. officers who had escaped from the Camp of Sagan. I protest against the use of this document in evidence for the following reasons:
1. The original is not an affidavit but only a summarized report of General Westhoff’s statements. 2. The report submitted is not signed by Colonel Williams, who conducted the interrogation. It is not signed at all but has only a translator’s note on it. 3. One cannot see, from the document, who drafted it. 4. In addition, one cannot see from that report whether General Westhoff was questioned under oath. 5. General Westhoff is, as far as I know, right here in Nuremberg. 6. There is a protocol concerning General Westhoff’s interrogation. For these reasons I ask the Court to verify whether that document, which has been presented as a résumé of General Westhoff’s interrogation, can be admitted in evidence.
THE PRESIDENT: [Turning to M. Quatre.] Well, what do you say to the various points raised by Dr. Nelte?
M. QUATRE: Mr. President, I recognize the soundness of the request by the Defense and I shall be in a position at the end of this session to produce before the Tribunal the complete minutes of the interrogation of General Westhoff, accompanied by an affidavit by Sir David Maxwell-Fyfe. I regret not being able to produce them at the moment. I received these minutes late for certain reasons and I thought it better not to add them to my document book.
THE PRESIDENT: The Tribunal considers that the document which you have submitted to us cannot be admitted. It is a mere résumé. The Tribunal thinks, also, that it can allow the interrogatory to be used only if a copy of it is handed to the defendants’ counsel and the witness who made the interrogatory is submitted to the defendants’ counsel for cross-examination, if they wish to cross-examine him. Otherwise you must call General Westhoff and examine him orally. Is that clear? I will repeat it if you like.
The document you have submitted to us is rejected. You can either call General Westhoff as a witness, in which case, of course, he will be liable to cross-examination; or you can put in the interrogatory after you have supplied a copy of it to Defense Counsel, and then General Westhoff, who made the interrogatory, will be liable to cross-examination by the Defense Counsel.
SIR DAVID MAXWELL-FYFE: Would the Tribunal allow me to intervene for one moment?
The document to which my learned friend referred a moment ago as having been certified by myself is a report of the United Nations War Crimes Commission, which I received from the Chairman, Lord Reith, and certified as such a report. It therefore, in my respectful submission, becomes admissible under Article 21 of the Charter. It is not merely a transcript of the interrogation. That is the document to which my learned friend referred and that is available and can be procured quite shortly.
THE PRESIDENT: Sir David, I follow that point, but at the same time that does not altogether meet the situation. If it is true that General Westhoff is in Nuremberg at the present moment, it would scarcely be fair that a document of that sort should be put in unless the person who made the statement or from whose interrogatory the statement was composed was submitted for cross-examination.
SIR DAVID MAXWELL-FYFE: With the greatest respect, My Lord, I should like the Tribunal to consider that point because the Tribunal has not got the document in front of it; but it is a report to the United Nations War Crimes Commission, based on the interrogatory. It therefore, in my respectful submission, becomes admissible as a report within the actual words of Article 21 and therefore is a matter which the Tribunal shall, under the Charter, take judicial notice of.
THE PRESIDENT: Would your submission be that the right course would be to take that report into consideration and leave it to the defendants, if they wished it, to call General Westhoff?
SIR DAVID MAXWELL-FYFE: That would be my submission—that is my submission because of the effect of Article 21 or the course which is contemplated in view of the special powers and special validity given to such reports by Article 21.
THE PRESIDENT: The Tribunal would like to know whether the interrogation was made by the Prosecution in Nuremberg?
SIR DAVID MAXWELL-FYFE: I am told that the interrogation was made in London. I did not know that General Westhoff was in Nuremberg. I will make inquiries on that point.
THE PRESIDENT: Sir David, were you able to inform us whether or not the interrogation was made in Nuremberg or in London?
SIR DAVID MAXWELL-FYFE: I am told it was made in London.
THE PRESIDENT: Do you know where the witness is now?
SIR DAVID MAXWELL-FYFE: I did not know he was in Nuremberg