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TLS in German (absent its first page), signed “von Brauchitsch,” six pages, 8 x 10.5, January 3, 1946. Letter to Lord Justice Sir Geoffrey Lawrence, President of the International Military Tribunal, arguing that the German Army and its High Command were apolitical, professional institutions separate from the Nazi Party, and not part of a 'criminal organization.'
In part (translated): "We…gathered from a newspaper that the declaration as a 'criminal organization' should form the basis of a later prosecution of its individual members. In these later trials only the usual rights of defense should be conceded. The declaration as a 'criminal organization' however could not be contested. The German defense counsel Dr. Exner finally informed us that in his capacity as counsel of General Jodl, he had also been charged with defending the general staff in the current trial. If the International Court should consent to this arrangement, a number of German generals respectively the general staff, in contrast to the actual conditions designated as an 'organization' would be deprived of an effective defense against the accusation raised against them as an 'organization'…
"The attorney Dr. Exner is not able to defend the general staff. For want of personal experiences he is not informed of the duties and the responsibilities and the activities of the particular offices and personalities. He is completely occupied with the defense of one of the main defendants, General Jodl.
"The decisive point however is that already before the war and during the war the general staff of the Army and most of its higher ranking officers found themselves in a severe opposition to the leading men of the OKW of whom Jodl was a member. Therefore it is impossible that Dr. Exner at the same time can defend him and the general staff in an unprejudiced way. The unburdening of the one could result in incriminating the other…
"Every defendant at all times has the right to defend himself in court with support of a lawyer. In this particular case the general staff can defend itself effectively only by an officer from his own ranks supported by a legal advisor. We can not imagine that this fundamental right of every defendant should be withheld from us.
"It can not be replaced by the International Court granting a heading to individual officers on their own request. They only could give their opinion to particular questions as witnesses without disposing of the rights of a defendant and the possibility of preparing their defense.
"Up to now we have no authentical knowledge as to which offices of the Army come into the sphere of a 'criminal organization' and what they are accused of. We neither have the indictment nor any other data. We only can assume on account of our rank that we occupied the accused offices.
"By the declaration as a 'criminal organization' the final judgment of the individual—it is true—would not have been given. It however would offer an excuse further to keep under arrest in a degrading manner all persons belonging thereto. Years might elapse until all trials resulting from that declaration would be concluded…
"All military documents, not destroyed, are in the hands of the Allied military authorities. For the individual defendant it will be practically impossible to search these documents of favorable proof…
"A great number of general staff officers coming into question for this purpose have been executed in consequence of the attentate of July 20th, 1944. With regard to others the individual defendants do not know whether they are alive or where they have been driven to by events. In addition no defendant is capable to raise the costs necessary for the defense.
"Thus it will be impracticable for the individual to prove himself not guilty being declared as a member of a 'criminal organization.'
"Even if the overwhelming majority of the accused would be acquitted individually in the later trials. The odium of being outlawed by the declaration as a 'criminal organization' would not be lifted with regard to the community.
"The outlawing of the general staff and the military leaders of the former German Army, potentially pronounced in the current trial, would remain in existence before the world. It would have happened without giving them the chance of a fair defense by a high court responsible for the whole world.
"We are being tried not as the representatives of a temporary organization as the political organizations were. We are the last representatives of an institution who were educated and worked up to the last in the spirit of its greatest incumbent, Field Marshal Count Moltke. It is the inheritance of this great soldier and character, esteemed by all the world, which we are out to defend. The German general staff furthermore has served as a model to many other armies…
"I request full rights of a defendant be conceded to the general staff…In particular: a) The defense should be conferred upon an officer belonging to the circle of the higher ranking commanders…B) As legal advisor we beg to summon the lawyer Dr. Paul Leverkuehn…c) The accusations and the names of the accused or the respective officers should be made known to us…D) Officers who conforming to the public resolution of the court want to be witnesses should be admitted. E) Representatives of the Navy and Air Force—officers and legal advisors—should be coordinated to the main defender for the sphere of the sea and air war."
In overall very good to fine condition, with the first German page of text missing, preserved in a contemporary English translation; most pages are backed by lightweight cardstock or archival paper, and a few have been silked on the front.
An important early intervention in the defense of Germany's military leadership at Nuremberg, this remarkable letter captures Field Marshal Walther von Brauchitsch's effort to prevent the German General Staff and High Command from being collectively branded a criminal organization. Brauchitsch, who commanded the German Army from 1938 until his dismissal by Hitler in December 1941, challenged the fairness of representation by Dr. Franz Exner, who also defended Alfred Jodl, arguing that their competing interests created an irreconcilable conflict. Just weeks later, on January 27, 1946, Dr. Hans Laternser replaced Exner as counsel for the military leadership, subsequently advancing a defense that echoed Brauchitsch's arguments concerning the nature of the General Staff and the dangers of collective criminalization.
The letter thus stands as an early and significant statement of the legal strategy that ultimately helped shield Germany's senior military leadership from collective condemnation under the Nuremberg Charter. On October 1, 1946, the International Military Tribunal declined to declare the General Staff and High Command a criminal organization, ruling that the officers did not constitute an organization or group within the charter's meaning. Nevertheless, the Tribunal emphatically rejected any suggestion of collective innocence, condemning the senior commanders for their participation in aggressive war and atrocities, declaring that they had been "a disgrace to the honorable profession of arms." An extraordinary document addressing one of Nuremberg's consequential legal questions, foreshadowing the defense arguments that prevailed in the Tribunal's historic judgment.
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