A distinction must be made as to whether it was possible for his hearers merely to gather that a definite plan was to be carried out, or whether they could not but recognize the existence of a general aim of aggression. If they did not recognize this, the only explanation lies in the fact that the generals on principle did not include the question of war or peace in their considerations. From their point of view this was a political question which they did not consider themselves competent to judge since, as has been stated here, they were not acquainted with the reasons for such a decision and, as the Defendant Keitel has testified, the generals were bound to have confidence in the leadership of the State to the extent of believing that the latter would only undertake war for reasons of pressing emergency. That is a consequence of the traditional principle that although the Armed Forces was an instrument of the politicians it should not itself take part in politics—a principle which Hitler adopted in its full stringency. The Court must decide whether this may be accepted as an excuse. Keitel stated on the witness stand that he recognized the orders, directives, and instructions which had such terrible consequences, and that he drew them up and signed them without allowing himself to be deflected by any consequences which they might entail.
This testimony leaves three questions undecided: (1) The question of the methods used to carry out the orders; (2) the question of the conception of the consequences which actually followed; (3) the question of the dolus eventualis.
The Defendant Keitel, in his affidavit (Document Book Number 12), showed with reference to the so-called ideological orders how the SS and Police organizations influenced the conduct of the war, and how the Wehrmacht was drawn into events. The evidence has shown that on their own responsibility numerous Wehrmacht commanders failed to apply such terrible orders, or applied them in a milder form. Keitel, brought up in a certain military tradition, was unfamiliar with SS methods which made the effects of these orders so terrible, and they were therefore inconceivable to him. According to his testimony he did not learn of these effects in their full and terrible extent.
The same is true of the Führer’s Night and Fog Decree which I have just discussed. If he did not allow himself to be deflected by the “possible” results when he transmitted the orders, the dolus eventualis cannot be affirmed in regard to the results which took place. It must be assumed rather that if he had been able to recognize the horrible effects, he would, in spite of the ban on resignations, have drawn a conclusion which would have freed him from the pangs of conscience and would not have drawn him from month to month further and further into the whirlpool of events.
This may be an hypothesis; but there are certain indications in the evidence which confirm it. The five attempts made by Keitel to leave his position, and the fact that he resolved to commit suicide, which General Jodl confirmed in his testimony, enable you to recognize the sincerity of Keitel’s wish.
The fact that he did not succeed must be attributed to the circumstances which I have already presented: The unequivocal and, as Keitel says, unconditional duty of the soldier to do his duty obediently to the bitter end, true to his military oath.
This concept is false when it is exaggerated to the extent of leading to crime. It must be remembered, however, that a soldier is accustomed to measure by other standards in war. When all high-ranking officers, including Field Marshal Paulus, represent the same point of view, the honesty of their convictions cannot be denied, although it may not be understood.
In reply to the questions asked so often during this Trial—why he did not revolt against Hitler or refuse to obey his orders—the Defendant Keitel stated that he did not consider these questions even for a moment. His words and behavior show him to be unconditionally a soldier.
Did he incriminate himself by such conduct? In general terms: May or must a general commit high treason if he realizes that by carrying out an order or measure he will be violating international law or the laws of humanity?
The solution of this problem depends on whether the preliminary question is answered as to who is the “authority” which “permits or orders” such criminal high treason. This question seems to me important because the source of the authority must be established—the authority which can permit or order the general to commit high treason; which can “bind and absolve.”