Int Evand) Court 5, Case 7

3 Feb-M-TB-1-1-Cohen (Int Evand) Court 5, Case 7 Official Transcript of Military Tribunal V, Case VII in the matter of the United States of America against Wilhelm List, et al, defendants, sitting at Nurnberg, Germany on 3, February 1948, 0930, Judge Wennerstrrm presiding. THE MARSHAL: The Honorable, the Judges of Military Tribunal V. Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court. THE PRESIDENT: Mr. Marshal, have you ascertained that all the defendants are present in this court? THE MARSHAL: May it please your Honors, all the defendants are present in court. THE PRESIDENT: It was my understanding that the prosecution was to present their argument at this time. Are they ready? MR. RAPP: If your Honors please, the prosecution is prepared to offer its closing argument at this time. I would merely like to make one request for the record. I have checked our files are there are still a small number of photostatic copies in the hands of the defense counsel which have not been returned. I will give Dr Laternser during the recess a list of those numbers and I ask that you be kind enough to return them as soon as possible. PROSECUTION’S CLOSING STATEMENT Case No. 7 It is a challenging and formidable task for any advocate to sum up a record of almost 10,000 pages in a trial which has lasted for almost 7 months. When the panoramic events of several years of military and political history in four different nations are the subject matter of a judicial proceeding, when nearly 700 Prosecution documents - orders, reports, war diaries, photographs and even films - are introduced into evidence, when 50 odd witnesses have personally appeared before the Tribunal and more than a thousand by affidavit - then in summation one can do little more than outline in incomplete highlight the contents of this sordid and depraved text. 3 Feb-M-TB-1-2-Cohen (Evand) Court 5, Case 7 Many things may be said in future days about this trial. No one enjoys the process of being tried and judged, and it would be too much to expect from the defendants praise of the fairness and detachment with which this litigation has been conducted. But it must be obvious even to them that they could not have found a more dispassionate forum anywhere in this world. No matter what might be said by history about this proceeding, of one thing we can be sure. No fair minded critic may ever say that not all was said in these defendants' favor which might have been said. It has been somewhat more than a year since the International Military Tribunal handed down two historic decisions involving the criminal responsibility of high ranking officers of the German Army for the outrages of German troops during World War II. In one, Keitel and Jodi were held to be as guilty as Goering and Ribbentrop for the aggressive acts and wars, with their inevitable consequences, that marked the period of German hegemony in Europe. In the other, it was held that the group of military leaders indicted as the German General Staff and High Command was too amorphous a collection to be dealt with as a group or organization. But in commenting on the evidence concerning the guilt of individual German officers the Tribunal made this clear and unequivocal pronouncement: "They have been responsible in large measure for the miseries and suffering that have fallen on men, women, and children. "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 3 Feb-M-TB-1-3-Cohen (Evand) Court 5, Case 7 world has ever had the misfortune to know. This must be said. "Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should not escape punishment." By filing the indictment here, the prosecution was in effect carrying out the mandate of the International Military Tribunal. The defendants in the dock all fit the description of tllose officers whom the International Military Tribunal believed should not be allowed to escape the consequences of the vile acts which they either fathered, furthered, or allowed to be carried out by their subordinates without a murmur of protest. Since these crimes all occurred either in territory where active fighting was taking place or in territory which was being occupied by the German Army-since, in a word, they took place in areas where the German Army constituted the only real source of political or military power and where the only organizations of any kind were either directly or ultimately controlled by the armyi't is only to be expected that the nature of these criminal acts follows a more or less uniform pattern. Indeed, it would be surprising if this were not the case. Most of these defendants, as has been said, served on the Russian front before being transferred to the Balkans. One does not ordinarily expect to see a total change of character and habits of thought effectuated by an individual's transfer from one place to another, especially if he serves in the name capacity in both places. Further, the nerve center of the entire German Army was in Berlin, and German troops, wherever they were stationed, were influenced to a certain extent by the broad policy directives which issued from the OKW, so that one would expect to nnd, as in the case of any army, a certain uniformity of policy and, within a broad framework, certain accepted ideas and methods of action. The defendants, of course, seize 3 Feb-M-TB-1-4-Cohen (Evand) Court 5, Case 7 on this unifying direction and attempt to balance on the pin point of the OKW a whole absurd inverted pyramid of argumentation to the effect that most of the indefensible acts committed by their troops and auxiliaries can be laid at the door of the OKW, and that they, who were mere lieutenant genel'als, generals, and field marshals, were completely stripped of any discretion whatever. This tendency to minimize their own importance is a characteristic which does not appear in their biographies prior to the date the indictment against them was filed. We will deal with this newly developed self-abasement presently. What is pertinent for the moment is that this identity of personnel, especially in the higher ranks in various theaters during the course of the war, plus this centralized direction of policy reduces the number of legal issues to be considered in this litigation. Especially in the case of the execution of hostages is the legal issue simple and clear. The prosecution takes the position that the killing of a civilian whose only proved offense is that he or she lives in the neighborhood of a place where some unidentified person did something which displeased the German occupation power is simply murder, no more, no less. This seems to be a principle which is utterly indigestible to the Defense. We might say parenthetically that it is rather amusing that they, on the one hand, can argue with apparent seriousness that it is perfectly legitimate to drag a man out of his house, stand him up against the wall and shoot him witho.ut even asserting that he is guilty of anything, and yet on the other hand, with an equally straight face, they are able to quiver with indignation at the outrage on their private rights which was perpetrated when they were relieved of their medals by some souvenir collecting GI in 1945. But this is only one of the many spectacles of moral acrobatics to which we have been treated in the course of this trial. And the factual issues are really little more complicated. Lifted 3 Feb-M-TB-1-5-Cohen (Int. Evand) Court 5, Case 7 out of the morass of detail with which the record is deliberately and unnecessarily encumbered, the case is impressive in its simplicity. The prosecution has had no trouble establishing that the German Army carried out executions of innocent hostages and other savagely disproportionate reprisal measures, that it killed prisoners of war of lawful belligerents by the thousands, and that it participated in the round-up and incarceration in concentration camps of the Jews, gypsies, and other groups classified as inferior by the philosopher friends of Hitler. It was easy to show that the army often was used as a uniformed press gang to shanghai foreign workers for the German war machine. The only complication that arose was in showing where these men were and what positions they held at a given point in time. In order to do this, we have had to go up and down chains of command like so many squirrels. We have had to go into the question of temporary absences from duty caused by sick leaves, holiday leaves, emergency leaves, and every other sort of furlough recognized by the German Army. The accuracy of self-preserving personal diaries and prejudicial affidavits of orderly officers with amazingly unerring memories is somewhat more than questionable.

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