During his cross-examination by the representative of the American Prosecution, the Defendant Keitel has openly declared that he was aware of the illegal nature of these orders, but that he believed that he could not refuse to obey the orders of the Supreme Commander of the Armed Forces and head of the State, whose final pronouncement in the case of all objections was: “I do not know why you are worrying; after all, it is not your responsibility. I myself am solely responsible to the German people.”
This is a reasoned analysis of Keitel’s attitude toward the so-called ideologically-based orders of Hitler.
Keitel’s last hope, which in many cases proved to be justified, was that the commanders-in-chief and subordinate commanders of the Armed Forces would at their discretion and within the scope of their responsibility either fail altogether to apply these harsh, inhuman orders, or would apply them only to a limited degree. In view of his position, Keitel had only the choice between military disobedience by refusing to transmit the orders, or complying with the instructions to forward them. I shall investigate in another connection the question of what alternative cases of action might have been open to him. The problem here is to show how Keitel came to forward orders which indisputably violated the laws of warfare and humanity and why, by reason of his duty to obey, his sworn loyalty to the Supreme Commander, and the fact that he saw in the order of the head of the State the absolution of his own responsibility, he failed to recognize the point at which even the soldier’s strict duty of obedience must end.
Every soldier who has appeared here as a defendant or as a witness has mentioned the duty of allegiance. All of them, when they sooner or later realized that Hitler had drawn them and the Armed Forces into his egocentric gamble for the highest stakes, have considered their oath of allegiance as rendered to their country and have believed that they must continue to do their duty in circumstances which to us and even to themselves, when they realized the extent of resulting disaster, appear inconceivable. Not only soldiers such as Raeder, Dönitz, and Jodl, but Paulus as well, kept their positions and remained at their posts, and we have heard the same from other defendants. The statements of the Defendants Speer and Jodl in this connection were deeply moving.
The question of whether these facts relieve the Defendant Keitel of guilty responsibility requires investigation. Keitel does not deny that he bears a heavy moral responsibility. He realizes that no one who played even the smallest part in this terrible drama can feel himself devoid of the moral guilt in which he was entangled.
If I nevertheless emphasize the legal point of view, I am doing so because Justice Jackson, in his speech on behalf of the Prosecution, expressly referred to the law as being the basis of your verdict—to international law, the law of individual states, and the law which the victorious powers have embodied in the Charter.
I assume that the Defendant Keitel has recognized that some of Hitler’s orders violated international law. The Charter says that a soldier cannot clear himself by referring to orders given by his superiors or by his government. At the beginning of my argument I asked you to determine whether, independently of the terms of the Charter, the principle is unimpeachable that the standard determining right or wrong cannot but depend on a national concept.
THE PRESIDENT: Dr. Nelte, I see that in the next few pages you pass into the realm of metaphysics. Don’t you think that part you might leave for the Tribunal to read?
You must remember that you began your speech yesterday before the morning adjournment, and you have got over seventy pages left of your speech to read.
DR. NELTE: I have limited it and shall be through by noon.