they speak for themselves.[sm type ends]
Your Honors, I now turn to the legal evaluation of the state of affairs
which may be considered as actually established: As I have already
stated, Article 6, Paragraph 3 of the Charter is not the formulation of
an independent state of criminality, but the expansion of the criminal
responsibility of the leaders, instigators, and participants who have
taken part in the drafting or in the execution of a common plan for
committing one of the crimes mentioned in Paragraph 2. According to the
regulation mentioned, these persons are to be responsible not only for
the acts which they themselves have committed, but they also are to take
upon themselves the penal consequences for all acts which were committed
by any person in the execution of such a plan.
In Article 6, Paragraph 2a, of the Charter the fact of a crime against
the peace is defined as follows:
“The planning, preparation, initiation, or waging of a war of
aggression, or a war in violation of international treaties,
agreements, or assurances, or participation in a Common Plan or
Conspiracy for the accomplishment of any of the foregoing.”
While it is expressly defined in Article 6, Paragraph 3 of the Charter
that the criminal responsibility of the participant in the drafting of a
common plan is limited to acts which “have been committed by any person
in execution of such a plan,” the crime against the peace is according
to Article 6, Paragraph 2a, of the Charter already completed with the
“agreements or assurances or participation in a Common Plan or
Conspiracy for the accomplishment of a plan which has as its aim the
preparation, initiation, or waging of a war of aggression.” In contrast
to Article 6, Paragraph 3, it is here not necessary that an act of
execution be actually committed.
I do not intend now to deal with the question more specifically whether
the war as such and especially the starting of a war of aggression was a
crime according to international law valid at the time of the outbreak
of war, on 1 September 1939. This question has already been discussed in
the opening speech of the Defense. This examination of the legal side of
this question has shown that neither the League of Nations agreement nor
the Briand-Kellogg Pact contains anything which would permit the
conclusion that the starting of a war was a criminal and therefore
punishable offense. International law knew neither a criminal
responsibility of the state as a corporate body and even less a criminal
responsibility of the agencies of the state, such as the head of the
state, the members of the government, the military commanders, the
economic leaders, _et cetera_.
The causes for this unsatisfactory state of international law need not
be discussed. It has already been correctly pointed out that the idea of
sovereignty and the refusal of the great powers in particular to
relinquish some of these rights of sovereignty in the interest of a
better supernational organization, was also a reason for the
unsatisfactory status of international law especially on this question.
In connection with this there is another fact which does not seem to be
less important to me, namely, that it was not possible until now to
create an effective organization and a procedure which would satisfy the
justified claims of the peoples for a proper participation in the
material goods of the world, and which would also in other respects take
care of a just settlement of the conflicting interests.
On the basis of this examination alone there can hardly be any doubt
that a crime against the peace, as it has found its factual definition
in Article 6, Paragraph 2a, of the Charter, does not exist. This section
of Article 6 of the Charter does not have a sufficient basis in existing
international law.
I omit the following decisive statements as they concern the effect of
the secret German-Russian treaty of 23 August 1939 on the jurisdiction
of the Tribunal. The Tribunal will have to consider officially to what
degree the jurisdiction can still be considered valid in view of this
secret treaty. I continue on Page 63. Mr. President, I am in a difficult
position, as by omitting these statements from Pages 59 to 62, an
incorrect picture would be created, as my actual statements concerning
the contents of the German-Soviet secret treaty of 1939 could be
misunderstood because of its legal consequences. I therefore ask the
Tribunal to decide.
THE PRESIDENT: The Tribunal has fully considered this matter and does
not desire to hear your point.
DR. SEIDL: Moreover, the following is to be said about Article 6,
Paragraph 3 of the Charter: The concept of a conspiracy, as it has been
expressed in Article 6, Paragraph 3, is a typical institution of
Anglo-American law. The continental European law does not know any such
criminal concept. But there cannot be any doubt that international penal
law, insofar as there is any such law, and if one does not understand by
it the sum total of the rules which are to be observed in the
application of national or foreign law, likewise does not know the
concept of conspiracy as constituting a crime in criminal law.
But it is not only the question of prevailing international law and the
agreement of the Charter with the same which is to be examined. The
issue in connection with this requires an answer to the following
question also:
In the opening speeches of the four chief prosecutors and also in the
discussions prior to the Trial concerning its legal basis, two entirely
contradictory arguments were advanced. While some argued that the
Charter was a complete expression of the prevailing international law
and was in agreement with the common legal beliefs of all members of the
international legal community, the others asserted that one of the main
tasks of the International Military Tribunal which was then to be set up
would be to develop international law further. This latter opinion, for
example, stands out clearly in the report of the American chief
prosecutor to the President of the United States of 7 June 1945. Here,
word for word, it states among other things:
“In initiating this Trial, we must also remain aware of the aims
with which our people assumed the burdens of war. After we
entered the war, and our men and our wealth were mobilized to
eradicate this evil, there was the general feeling among our
people that out of the war there should arise unmistakable rules
and a practical machine from which anyone who entertains the
thought of a further predatory war should realize that he will
be held personally responsible and that he will be personally
punished...”
Or in another part of this report, the following is stated literally:
“...According to the international law of the nineteenth and
early twentieth century, the waging of war was not generally
considered as unlawful or as a crime in the legal sense. Summed
up, the prevailing doctrine held that both parties in any war
were to be considered as being in the same legal situation and
therefore had the same rights.”
The legal considerations in the report then actually conclude with the
following challenge:
“...An attack against the fundamental principles of
international relations must be considered as nothing less than
a crime against the community, which rightly must protect the
integrity of its fundamental agreements by punishing the
aggressor. We therefore propose to raise the challenge that a
war of aggression is a crime, and that modern international law
has abandoned the justification according to which he who
instigates or wages a war acts in accordance with the law.”
And as a matter of fact, it would not be necessary to raise the demand
for a new penal law if the action under consideration was already
threatened with punishment by existing law.
It is obvious that the fulfillment of such a demand by a court of
law—whatever the legal basis for its proceedings—would be
contradictory to a principle derived from the penal legislation of
nearly all civilized nations and which finds its expression in the rule
_nulla poena sine lege_, that an act can only be the object of
punishment if the act was declared punishable by law before the act was
committed. This state of affairs seems all the more remarkable, since
the rule _nulla poena sine lege_ is a principle firmly rooted in the
constitution of practically all civilized nations. Thus, for example, it
is contained in Article 39 of the English Magna Charta of King John of
1215, in the American Constitution of 1776 and in the declarations of
the French Revolution in 1789 and 1791. This principle of _nulla poena
sine lege_ is not only contradictory to the assumption of a crime
against peace as the Prosecution expects the Tribunal in the further
development of prevailing international law to define as a punishable
act, but rather it is also contradictory to the creation of another
independent concept of conspiracy in criminal law by judicial dictum, in
the further development of hitherto existing international law. In this
it cannot make any distinction as to whether this conspiracy was
directed toward committing a crime against the peace or committing a
crime against the customs of war. Also, the assumption of a common plan
or an agreement to commit war crimes as an independent crime in criminal
law is not compatible with the principle of _nulla poena sine lege_.
What are applicable here are rather—as already correctly expounded by
the French chief prosecutor—are only the rules defining participation
according to the law of the perpetrator’s own country or according to
the law in the place of perpetration. Under given circumstances, these
rules defining participation are limited to the extension of the threat
of punishment to cases of complicity, instigation, and assistance.
Apart from his participation in the Common Plan or Conspiracy, as
defined in Count One of the Indictment, the Defendant Rudolf Hess, in
connection with his personal responsibility for War Crimes and Crimes
against Humanity, is essentially accused by the Prosecution on the basis
of the contents of only one document, and that is Document Number R-96,
Exhibit Number GB-268.
This concerns a letter from the Reich Minister of Justice to the Reich
Minister and Chief of the Reich Chancellery on 17 April 1941, which
deals with the introduction of penal laws against Poles and Jews in the
incorporated Eastern territories. The Defendant Rudolf Hess plays a part
in this only insofar as the letter mentions, among other things, that
the Deputy of the Führer had proposed the discussion of the introduction
of corporal punishment. If one considers that the staff of the Deputy of
the Führer alone comprised 500 officials and employees, and that for
questions of legislation, there was a special department which dealt
directly with the separate ministries, it seems very doubtful whether
the Defendant Rudolf Hess was personally concerned in this matter at
all. In this connection I refer to the affidavit of the witness
Hildegard Fath, Exhibit Number Hess-16. Considering, however, that the
measure proposed for discussion by the Deputy of the Führer was not
introduced, the knowledge of the defendant should not matter very much.
Without it being necessary to probe any deeper into the subjective
elements of the case, it can be said that, in application of principles
such as can be derived from the penal law of all civilized countries
there is here not even question of an attempt. The attitude of the
Führer, or, more correctly, the Deputy of the Führer, as expressed in
the letter of the Reich Minister of Justice is irrelevant from the point
of view of criminal law. We need not consider in this connection whether
a penal law would have been violated if the measure proposed for
discussion had actually found legislative expression in a Reich law.
Another document submitted by the Prosecution is Exhibit USA-696,
Document Number 062-PS. This refers to the order of the Deputy of the
Führer of 13 March 1940, which deals with the instructing of the
civilian population as to the proper attitude to be adopted in case of
landings by enemy aircraft or parachutists on German national territory.
This is the same document concerning which I have already applied for a
correction of the translation because the translation from German into
English was at any rate in my opinion not correct. This document,
however, is neither contained in the trial brief submitted by the
British Prosecution nor was it mentioned by Colonel Griffith-Jones on 7
February 1946 when he discussed the personal responsibility of the
Defendant Rudolf Hess. In consideration, however, of the fact that this
order was officially submitted as documentary evidence, it is necessary
to go into it at least briefly.
The reason for this order of 13 March 1940 was the fact that the French
Government had given instructions to the French civilian population
officially and by radio as to how they were to conduct themselves in
case of landings by German aircraft. On the basis of these instructions
of the French Government, the Commander-in-Chief of the German Air Force
considered himself also called upon on his part to inform the German
population via the official Party channels. He therefore issued a
directive about the attitude to be adopted in the case of landings by
enemy aircraft or parachutists, which was used as an appendix to the
afore-mentioned order of the Deputy of the Führer of 13 March 1940.
This directive, however, does not contain anything which is contrary to
the laws and customs of warfare, as they have been expressed, for
example, in the Hague Rules on Land Warfare. This applies particularly
to Figure 4, which contains the order that enemy parachutists are either
to be arrested or rendered harmless. According to the text as well as
the sense of this Figure 4, there cannot be the slightest doubt that
this was only meant to say that enemy parachutists were to be fought and
subdued if they did not surrender voluntarily and tried to avoid their
arrest by using force, particularly by the use of firearms. This becomes
evident from the word “or” alone. First of all, the attempt was to be
made to take them prisoner. This alone in the interest of the
intelligence service. Only if this proved impossible because of
resistance were they to be rendered harmless, that means subdued.
Any other interpretation of this order would not only be contrary to the
text and the sense, but moreover would also be contrary to the fact that
up to the French campaign the war had been waged according to rules such
as had been established, among others, in the Hague Rules on Land
Warfare and that, at any rate at that time, March 1940, the war had not
yet developed into the mutual struggle for annihilation that it was to
become after the outbreak of the German-Russian war. The fact that a
different interpretation is absolutely impossible is also evident from
the so-called “Commando Order” of the Führer of 18 October 1942, which
was presented by the Prosecution under Exhibit Number USA-501, Document
Number 498-PS. The deliberations preceding this order—which, by the
way, was issued under completely different conditions—and the fact that
this Commando Order was decreed by Hitler himself, in spite of the
opposition of the High Command of the Armed Forces and the Chief of the
Armed Forces Operations Staff, would have been entirely superfluous, if
the Commander-in-Chief of the Air Force had already issued instructions
which served the same purpose in March 1940. It is furthermore expressly
specified in Figure 4 of the Führer Order of 18 October 1942, that
captured members of Commando groups were to be handed over to the SD.
As the German text of this directive about the order of 13 March 1940 is
completely unequivocal and does not leave any room for doubt, I
refrained from procuring additional evidence about this question. In the
event, however, that the Tribunal should not share this assumption, it
would be unavoidable for the complete clarification of the facts that
the Tribunal should, on their own initiative, procure the instructions
which the French Government issued at the beginning of the year 1940 to
the French civilian population in case of landings by German aircraft or
German parachutists.
It is not necessary to go into any more detail into Exhibit Number
GB-267, Document Number 3245-PS, which is also brought forward against
the Defendant Hess, as the contents of this document can under no
circumstances be considered a crime against the rules of warfare or
against humanity, if the afore-mentioned principles are applied.
Besides being indicted as an individual, Rudolf Hess is also indicted as
a member of the SA, the SS, the Corps of Political Leaders and the Reich
Cabinet. As far as his membership in the SA and the SS is concerned,
more detailed explanations are superfluous. From the documents presented
by the Prosecution, it becomes evident that the Defendant Rudolf Hess
held only the honorary rank of an Obergruppenführer in both of these
organizations. No command or disciplinary powers were connected with it.
As Deputy of the Führer, however, the Defendant Rudolf Hess held the
highest office which existed in the Corps of Political Leaders. I cannot
assume the task of commenting in detail on the charge which is brought
against the Corps of Political Leaders under, and in application of,
Article 9 of the Charter, and which is characterized by its motion to
declare the Corps of Political Leaders a criminal organization.
Considering the fact, however, that the Defendant Rudolf Hess, although
not the only political leader here on the defendants’ bench, was
nevertheless the highest political leader, there arises the occasion for
making a few fundamental remarks.
According to Article 9 of the Charter, the Tribunal can declare to a
member of an organization that the organization to which the defendant
belongs or belonged was a criminal one. According to the Charter, a
necessary condition for this is that the declaration of the Tribunal be
connected with an act for which the defendant is convicted. By an “act”
within the meaning of Article 9 of the Charter one can only understand a
deed of commission or omission for which the defendant is personally
accountable and to blame, but not the extended liability for the act of
another resulting in a given case from Article 6, Paragraph 3. Since,
however, neither in the Indictment nor in the trial brief dealing with
the personal responsibility of the Defendant Rudolf Hess, is an act of
any kind charged against him which satisfies the conditions constituting
a war crime or a crime against humanity, a conviction of the Defendant
Hess, in this case also—namely as a member of the Corps of Political
Leaders—would be synonymous with the establishment of a criminal
responsibility for the acts or omissions of another. Although the
Defendant Rudolf Hess was the highest political leader and although no
action is charged against him personally which constitutes a crime
according to any penal law, he is to be convicted as a member of the
allegedly criminal organization of which he was the leader; it cannot be
denied that this is a legal situation which does not happen every day.
But something else appears more important. The Defense were compelled to
attack the very heart of the Charter, namely Article 6, as not being
consistent with generally valid principles of international law. Article
9 of the Charter is no less in contradiction with the common legal
beliefs of all members of the international legal community. There is
neither a legal statute in international law nor a legal statute in any
national law which declares the membership in an organization as
criminal without examining in each individual case whether the person
concerned has made himself personally guilty by his own actions or
omissions. Contrary to the general principles of criminal law, as they
are derived from the penal laws of all civilized countries, the Charter
provides in Article 9 for a criminal responsibility and collective
liability of all members of certain organizations and institutions, and
this without any consideration as to whether the individual member has
incurred any guilt.
The Charter thus abandons a principle which is an integral part of any
modern system of criminal law. The rule of “no punishment without
guilt”—and the declaration that a certain organization is criminal is a
punishment for the members affected by it—is an essential part of the
idea of the criminal law of our time, insofar as one understands by
guilt the sum total of those necessary conditions for punishment of the
culprit. If the fact of membership in a certain organization alone
becomes the object of a penal sentence, then the act which constitutes
the charge no longer appears as a legally objectionable expression of
the culprit’s personality. This must particularly apply to organizations
which had hundreds of thousands, and even millions of members. For that
reason punishment without guilt has hitherto existed only in primitive
law. Therefore, Von Liszt, the great German teacher of criminal law, who
was at the same time a constructive thinker in the field of
international law, says appropriately:
“Just as religious teaching does not oppose the visiting of the
sins of the fathers on the children and on the children’s
children, just as in the dramas of the ancients the place of
guilt is taken by blind, inexorable fate and in the literature
of today by the law of heredity, so even the oldest law of all
nations knows of no penalty without guilt.”
Only in primitive law did there exist a criminal responsibility without
guilt. As a matter of fact, in the legal history of all countries, the
so-called criminal responsibility for the effects of crime without
actual guilt was very soon replaced by the principle of responsibility
attaching to the guilty only and thereby that state was reached which is
alone compatible with the dignity of man. The regulation provided by
Article 9 of the Charter signifies not only a regrettable contribution
to the hastening of the apparently inevitable reduction of men to mere
members of a mass, but it is, moreover, a relapse to the first
beginnings of concepts of criminal law. Considering these facts, it
cannot be acknowledged that this provision of the Charter is in
agreement with prevailing law as it is derived from the common legal
beliefs of all the members of the community of international law and
from the general principle of criminal law in all civilized nations.
Rudolf Hess is finally accused as a member of the Reich Cabinet. Insofar
as his membership in the Secret Cabinet Council is concerned, the
following may be said: The presentation of evidence has shown that this
Secret Cabinet Council was only created so that the resignation of the
former Reich Foreign Minister Von Neurath would not appear to the public
as signifying a breach between him and Adolf Hitler. Actually, no
session of this Secret Cabinet Council ever took place. The council did
not even meet to outline its sphere of activity.
With reference to the Reich Cabinet, it is established on the basis of
the results of the presentation of evidence that no cabinet meetings
took place after 1937 at the latest. The tasks to be performed by the
Reich Cabinet, especially its legislative functions, were taken care of
by the so-called circulating procedure. The presentation of evidence has
shown further that from 1937 on at the latest, the major political and
military decisions were made exclusively by Adolf Hitler alone without
the members of the Reich Cabinet having been informed of them in
advance. After Hitler’s appointment as Reich Chancellor, and surely much
earlier than 1937, the Reich Cabinet as an institution probably made no
ultimate decision on politically or militarily important questions. It
would be completely misleading to assume that the members of the Reich
Cabinet in the National Socialist State had a position even
approximately like the position which is a matter of course in a state
governed by parliamentarian principles. Just as little as there was a
common plan or conspiracy among the men sitting on the defendants’
bench, was there anything of the kind within the Reich Cabinet.
It was even partly true that forces with divergent aims became apparent
within the Reich Cabinet, which in itself would have made it impossible
to agree on a common plan, such as was expressed in the Indictment. It
is sufficient here to point to the testimony of the witness Lammers and
to the fact that Adolf Hitler, from whom such facts could not remain
hidden, finally issued a prohibition to the effect that the individual
Reich ministers no longer had the right to assemble for conferences on
their own motion.
In this connection, something else cannot be left unmentioned. If the
presentation of evidence in this Trial has revealed anything with
certainty, then it is the proof of the position of enormous political
power and unimaginable authority which Adolf Hitler held within the
German governmental system. When Generaloberst Jodl testified on the
witness stand that there was no one who could successfully contradict
Hitler in the long run and that such a person could not exist, then one
might say that he expressed the true state of affairs in a few words.
That may perhaps be regrettable, but cannot in any way alter the facts
as such. Now, if one also bears in mind that this dominant position of
Hitler became constantly greater during the course of the years, then
this alone should be sufficient to exclude the assumption of a common
plan, such as is alleged in the Indictment.
In any case, the following must be said: The former Party leaders,
generals and cabinet members indicted before this Tribunal receive an
importance in this Trial because of Hitler’s death which it is apparent
they actually did not have in public life in the past. While the entire
political life of Germany was overshadowed during the past 12 years by
the overwhelming influence of Hitler’s personality, the absence of this
man from the defendants’ bench affects this Trial in such a manner that
it undoubtedly must result in an entirely distorted picture of the
political reality of the past 12 years.
Your Honors, I come now to the event which was to conclude the political
career of the Defendant Rudolf Hess—his flight to England on 10 May
1941. For several reasons this undertaking is of importance in this
Trial as evidence. As is shown by the presentation of evidence, the
Defendant Rudolf Hess had made the decision for this flight as early as
June 1940—that is, immediately after the surrender of France.
The execution of the plan was delayed for a number of reasons: In
particular, certain technical conditions had to be fulfilled in advance.
Moreover, considerations of a political nature played a part, namely,
that such an enterprise could be attended by success, if at all, only
when political conditions and especially the military situation appeared
favorable for the opening of peace-negotiations; for re-establishment of
peace was undoubtedly the aim which Hess pursued in his flight to
England.
When the Defendant Hess was led before the Duke of Hamilton on the day
after his landing, he declared to the latter, “I come on a mission of
humanity.” During the conversations which the defendant had with Mr.
Kirkpatrick of the Foreign Office on 13, 14, and 15 May, he explained to
him in detail the motives which had induced him to take this
extraordinary step. At the same time, he informed him of the conditions
under which Hitler would be prepared to make peace.
On 9 June 1941, a conversation took place between Rudolf Hess and Lord
Simon, who appeared on the order of the British Government. I submitted
the transcript of this conversation to the Tribunal as evidence and am
referring to it.
It is shown by this document that the motive for this extraordinary
flight was the intention to avoid further bloodshed and to create
favorable conditions for the opening of peace negotiations. During the
course of this conversation, the Defendant Hess handed a document to
Lord Simon which stated the four conditions under which Hitler would
have been prepared at that time to conclude peace with England. The
conditions were:
“1. In order to prevent future wars between the Axis and
England, a delimitation of spheres of interests is to take
place. The sphere of interests of the Axis Powers is to be
Europe, and that of England her Colonial Empire.
“2. Return of the German colonies.
“3. Indemnification of German nationals who were domiciled prior
to or during the war in the British Empire and who suffered
damage to life or property because of measures taken by the
Government in the Empire, or through incidents such as pillage,
riots, _et cetera_. Indemnification to British nationals on the
same basis by Germany.
“4. Conclusion of an armistice and peace treaty with Italy at
the same time.”
Rudolf Hess explained to Mr. Kirkpatrick, as well as to Lord Simon, that
such were the terms on which Hitler was prepared to make peace with
Great Britain immediately after the conclusion of the French campaign
and that this position of Hitler had undergone no further change since
completion of the campaign against France. There are no indications of
any kind why this account of the defendant should not appear plausible.
On the contrary, it is fully in harmony with many statements which
Hitler himself had made concerning relations between Germany and
England. In addition to that, the Defendants Göring and Von Ribbentrop
likewise confirmed while in the witness box that the terms which Hess
disclosed to Lord Simon corresponded completely with Hitler’s views.
If the terms announced by Hess provided that Europe was to be the sphere
of interests of the Axis Powers, the conclusion can in no way be drawn
from this that this was synonymous with a domination of Europe by the
Axis Powers. The declarations made by Hess—they are included in written
notes on the conversation between him and Lord Simon—rather demonstrate
with all clarity that this was merely to eliminate any interference by
England in continental Europe.
What legal consequences result from these facts? In the Indictment, the
Defendant Hess is charged—together with the other defendants—with
having co-operated in the psychological preparations of the German
people for war. To the extent that the psychological preparation for war
alleged by the Prosecution is part of the common plan, it is sufficient
to refer to the remarks I have made in that connection. However, if the
Prosecution also want to allege that the Defendant Hess went further and
personally engaged in this psychological preparation for war, then the
contrary is proved at the very least—apart from his numerous speeches
in favor of peace—by his flight to England and the intentions behind
it.
Without going into detail as regards general circumstances and the
personal relations between Hitler and the Defendant Hess, one thing can
still be said with certainty: By his flight to England the Defendant
Hess accomplished a deed which in view of his position in the Party and
in the State, and especially in view of the fact that after Göring he
was marked as Hitler’s successor, can only be characterized as a
sacrifice, a sacrifice which Hess made not only in the interest of the
restoration of peace, and in the interest of the German people, but also
in that of Europe and the whole world. This sacrifice was all the
greater as Hess was one of the very few whose relation to Hitler was
based on intimate personal confidence. If, nevertheless, the Defendant
Hess decided to stake his position in the Party and in the State and his
personal bond with Hitler for the re-establishment of peace, this must
lead to the conclusion that the Defendant Hess likewise saw in war the
ghastly scourge of mankind and that it must appear quite improbable for
this reason alone that it was his intention to prepare the German people
for war.
Your Honors, the following statements deal with the question of what
legal conclusions are to be drawn from the flight of the Defendant Hess
to England with respect to his participation in the Common Plan or
Conspiracy alleged by the Prosecution, particularly, in view of the
attitude of the defendant, to what extent any criminal responsibility
can still be assumed, even after the flight to England. The Defendant
Hess himself does not wish to have any favorable conclusions drawn for
him in the course of this Trial from this flight and from the intentions
connected with it. He has, therefore, also asked me to omit a part of
the following statement. Nevertheless, I consider it my duty as the
defense counsel to draw all the legal conclusions resulting from the
flight of the Defendant Hess and his intentions in connection with it
and to point out the facts and points of view which in any way speak in
the defendant’s favor.
As I have explained, it must be assumed on the basis of the evidence
presented, that the plan alleged by the Prosecution did not exist. In
the event, however, that the Tribunal should judge the results of the
testimony differently and in application of Article 6, Paragraph 3 of
the Charter, should accept the existence of such a plan, directed toward
the beginning of a war of aggression, it becomes necessary to examine
the question of what legal consequences the flight of the Defendant
Rudolf Hess to England and his intentions in connection with it had on
his participation in the common plan as asserted by the Prosecution.
To this the following can be said: Article 6, Paragraph 3 of the Charter
extends the criminal responsibility of the defendant to include all acts
committed by any person while carrying out the common plan alleged by
the Prosecution. The Charter itself contains no provisions as to whether
and under what conditions a separation or withdrawal from a common plan
is possible. This does not justify the conclusion, however, that such a
withdrawal should be excluded as a matter of principle. That assumption
is precluded by the very reason that the Charter quite clearly does not
purport to give an exhaustive ruling on all questions of substantive and
procedural law. If a withdrawal is permitted in Anglo-American law as a
matter of fundamental principle, this should be possible with more
reason under the Charter. For the Charter represents a compendium of
principles in which institutions of continental European law are also
given consideration. Continental European law proceeds quite
unequivocally from the idea that the responsibility of the perpetrator
under criminal law extends only so far as his actions or omissions are
controlled by his will. The withdrawal from the attempt, as a reason for
acquittal, has therefore become an institution which can be found in
almost all European codes of law. If, according to Anglo-American law,
withdrawal from the conspiracy is possible, there can be no doubt as to
that possibility’s existing, in principle, according to the Charter.
There is all the more reason for that assumption, in that it has been a
practice on principle to apply German law in cases where the Charter
fails to establish a binding rule. With regard to the Defendant Rudolf
Hess, there should be even less reason for doubt, because the acts
charged against the Defendant Rudolf Hess were committed within the
territory of the German Reich. According to generally accepted
principles of law, as they find expression in particular in the
so-called international penal code of all nations, the so-called lex
loci, that is, the law of the place where the act was committed, is
binding in this case.
Applying these principles to the behavior of the Defendant Rudolf Hess
and to his flight to England of 10 May 1941, it follows in the first
place—and the evidence likewise did not produce anything to the
contrary—that all the subsequent developments could not have been
controlled by his will. His influence on the course of events within the
development of the war as a whole ceased, at the latest, with his flight
to England. It contradicts all principles of penal law, as they are
derived from the codes of law of all civilized nations, to hold someone
criminally responsible for acts and results upon which he had no
influence, and was no longer able to exert any influence, and which he
did not adopt by his own volition.
In this connection reference should also be made to the Prosecution’s
contention that the Defendant Hess did not undertake his flight to
England in order to create favorable conditions for peace negotiations.
That, on the contrary, it was his intention—this is the argument of the
Prosecution—thus to protect Germany’s rear in her planned campaign
against the Soviet Union. The documents submitted by the Prosecution do
not provide any basis for this assumption. To begin with, this is
contradicted by the fact that the Defendant Hess had already decided on
the flight as early as June 1940, in other words, at a time when no one
in Germany thought of a campaign against the Soviet Union. On the
contrary, from the letter which the Defendant Hess left behind and which
was handed to Adolf Hitler at a time when Hess had already landed in
England, it becomes perfectly clear that Hess had no knowledge of the
impending campaign against the Soviet Union. In this letter the
Defendant Hess did not state by a single word—and this is established
by the testimony of the witness Fath, who read the letter herself—that
the purpose of his flight was to cover Germany’s rear for the impending
campaign against the Soviets. In that letter Hess did not mention the
Soviet Union by a single word. It must rather be assumed, with a
probability which almost amounts to certainty, that if Hess had had
knowledge of the proposed attack, and if he had intended to combine the
intention with his flight, which the Prosecution now claims, Hess would
have dealt with that question. In this connection I should like to refer
the Tribunal to Exhibit Number USA-875, Document Number 3952-PS which
also clearly shows that Hess can have had no knowledge of the impending
campaign against the Soviet Union.
But even if Hess had had definite knowledge of the planned campaign
against the Soviet Union, this would not oppose the reason for his
acquittal under criminal law in regard to the subsequent period of time.
Evidence has shown that in ordering the attack against the Soviet Union,
the idea of anticipating a forthcoming attack on the part of the Soviets
was by no means last in Hitler’s mind. I refer to the report of the
American Chief of Staff Marshall, which I have already read.
It is immaterial in connection with the question to be examined here,
whether such an attack was actually planned by Soviet Russia and was
imminent. Statements made by the Defendant Jodl while in the witness box
must make this appear at least very likely, if not absolutely certain.
The decisive point here is merely that on the basis of the reports he
had before him Hitler personally was of that opinion. Had the Defendant
Rudolf Hess been successful in establishing the necessary conditions for
armistice and peace negotiations in England, the political and military
situation in Europe would have been so fundamentally changed that under
these modified conditions an attack by the Soviet Union on Germany would
have appeared most unlikely, and the apprehensions entertained by Hitler
would have become untenable. The attempt made by the Defendant Hess in
his flight to England would also maintain its character as a reason for
acquittal under criminal law for all that happened after 10 May 1941,
and in carrying out the common plan alleged by the Prosecution, even if
it were argued that it was not the fear of an imminent Soviet attack
which prompted Hitler in his decision, but the embarrassing economic
situation in which Germany found herself as a result of the failure of
the invasion of England. For with the ending of war with England, this
embarrassing economic situation of Germany would also have come to an
end; at least it would not have been so stringent.
In conclusion, it may be said that in undertaking his flight to England,
which was linked with his plans for the restoration of peace, the
Defendant Hess committed his entire person in an attempt which obviously
sprang from the desire to avoid further bloodshed at all costs. In
application of principles of law such as are derived from the penal
codes of all civilized nations, and especially in application of German
penal law—which if doubt arises is to be taken as a basis for this
question—the conclusion must be drawn that the criminal responsibility
of the Defendant Hess will in any case be confined to acts which were
committed prior to the flight to England.
Your Honors, the past war has brought misery upon the whole of mankind
to an almost unimaginable extent; it has turned Europe into a continent
bleeding from a thousand wounds and left Germany a field of ruins. It
appears certain that at the present stage of modern technical
developments, humanity would not survive another world war. As far as it
is humanly possible to foresee, this would completely annihilate
civilization, which has already suffered unspeakably in this war. It
appears therefore only too understandable if, under these circumstances,
an endeavor should be made in the name of humanity, which is struggling
for its existence, to leave nothing untried, even from the legal
standpoint, to prevent the repetition of such a catastrophe.
There can, however, be no doubt that the law, whatever its strength may
be in social life, can only play a subordinate part in the prevention of
war. This applies without any limitation as long as the community of
nations is composed of sovereign states which acknowledge no legal code
derived from a superior authority, and as long as no procedure and no
organization exists which by virtue of its own authoritative power could
establish laws legally limiting the legitimate claims of the nations and
bringing them into harmony with one another. As long as these conditions
are not fulfilled, justice cannot be in the domain Of international
relations the regulating force it is in national life where it rests
directly upon the power of the state which is behind it. Tempting as it
may be to try to establish at least an improved and more powerful body
of international law on the ruins left us by the past world war, such an
attempt must be doomed to failure from the outset if it does not
coincide with a comprehensive new order of all international relations
and if international law is not simultaneously an essential part of an
order which guarantees the indispensable rights of all nations and which
assures in particular the satisfaction of the legitimate claims of every
nation to a proportionate share of the material wealth of the world. The
Charter of the International Military Tribunal is undoubtedly not part
of such a general new order. It was enacted by the victorious powers for
a limited duration, namely, as a foundation for a criminal trial against
the statesmen, military commanders, and economic leaders of the Axis
Powers which had been defeated in war. The contents of the London
Agreement made the Charter of the International Military Tribunal, which
constituted an essential part of this agreement, appear as a legislative
measure _ad hoc_ by reason of the very time limit of one year stipulated
by Article 7. As a matter of fact, it can scarcely remain doubtful that
essential parts of the Charter are not in accordance with the general
convictions of all members of the international legal community and that
they do not, therefore, constitute really valid international law. Under
these circumstances, a conviction for a crime against the peace and for
participation in a common plan to initiate a war of aggression could
only take place at variance with prevailing international law if the
Tribunal decided, in violation of the principle _nulla poena sine lege_,
upon a juridical extension of international law. Great as this
temptation may be, its consequences would be incalculable. Not only
would a principle be violated which is derived from the principles of
the criminal law of all civilized nations and constituted in particular
an integral component of international law, namely that an act can be
penalized only when its penal character has been juridically specified
prior to the commission of the act; but above all, in view of the fact
that in the present Trial facts were revealed which excluded
jurisdiction on Counts One and Two of the Indictment and the
jurisdiction of the Tribunal so far, the violation of the principle
_nulla poena sine lege_, combined with these special circumstances, must
put the concept of law in doubt altogether.
[sm type begins]A violation of so fundamental a legal principle inherent
in all judicial systems—and that applies to international law as
well—as expressed in the maxim _nulla poena sine lege_, and even more
so in the postulate that nobody must be a judge _in re sua_, would not
only obstruct any further development of international law but would,
furthermore, indubitably lead to an increased legal insecurity.[sm type
ends]
If the way for genuine progress in international legislation is not to
be obstructed, then only the actual international code which was valid
at the time the acts were committed can be considered as the legal basis
for the judgment of this Tribunal.
THE PRESIDENT: The Tribunal will now adjourn.
[_The Tribunal adjourned until 26 July 1946 at 1000 hours._]
ONE HUNDRED
AND EIGHTY-SEVENTH DAY
Friday, 26 July 1946
_Morning Session_
THE PRESIDENT: I call on the chief prosecutor, the United States of
America.
MARSHAL: May it please the Tribunal, the Defendant Hess is absent.
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States):
Mr. President and Members of the Tribunal: An advocate can be confronted
with few more formidable tasks than to select his closing arguments
where there is great disparity between his appropriate time and his
available material. In 8 months—a short time as state trials go—we
have introduced evidence which, embraces as vast and varied a panorama
of events as has ever been compressed within the framework of a
litigation. It is impossible in summation to do more than outline with
bold strokes the vitals of this Trial’s mad and melancholy record, which
will live as the historical text of the twentieth century’s shame and
depravity.
It is common to think of our own time as standing at the apex of
civilization, from which the deficiencies of preceding ages may
patronizingly be viewed in the light of what is assumed to be
“progress.” The reality is that in the long perspective of history the
present century will not hold an admirable position, unless its second
half is to redeem its first. These two-score years in the twentieth
century will be recorded in the book of years as one of the most bloody
in all annals. Two World Wars have left a legacy of dead which number
more than all the armies engaged in any way that made ancient or
medieval history. No half-century ever witnessed slaughter on such a
scale, such cruelties and inhumanities, such wholesale deportations of
peoples into slavery, such annihilations of minorities. The terror of
Torquemada pales before the Nazi Inquisition. These deeds are the
overshadowing historical facts by which generations to come will
remember this decade. If we cannot eliminate the causes and prevent the
repetition of these barbaric events, it is not an irresponsible prophecy
to say that this twentieth century may yet succeed in bringing the doom
of civilization.
Goaded by these facts, we were moved to redress the blight on the record
of our era. The defendants complain that our pace is too fast. In
drawing the Charter of this Tribunal, we thought we were recording an
accomplished advance in international law. But they say we have outrun
our times, that we have anticipated an advance that should be, but has
not yet been made. The Agreement of London, whether it originates or
merely records, at all events marks a transition in international law
which roughly corresponds to that in the evolution of local law when men
ceased to punish crime by “hue and cry” and began to let reason and
inquiry govern punishment. The society of nations has emerged from the
primitive “hue and cry,” the law of “catch and kill.” It seeks to apply
sanctions to enforce international law, but to guide their application
by evidence, law, and reason instead of outcry. The defendants denounce
the law under which their accounting is asked. Their dislike for the law
which condemns them is not original. It has been remarked before that:
“No thief e’er felt the halter draw with good opinion of the law.”
I shall not labor the law of this case. The position of the United
States was explained in my opening statement. My distinguished
colleague, the Attorney General of Great Britain, will reply on behalf
of all the chief prosecutors to the defendants’ legal attack. At this
stage of the proceedings, I shall rest upon the law of these crimes as
laid down in the Charter. The defendants, who except for the Charter
would have no right to be heard at all, now ask that the legal basis of
this Trial be nullified. This Tribunal, of course, is given no power to
set aside or modify the agreement between the Four Powers, to which 18
other nations have adhered. The terms of the Charter are conclusive upon
every party to these proceedings.
In interpreting the Charter, however, we should not overlook the unique
and emergent character of this body as an International Military
Tribunal. It is no part of the constitutional mechanism of internal
justice of any of the signatory nations. Germany has unconditionally
surrendered, but no peace treaty has been signed or agreed upon. The
Allies are still technically in a state of war with Germany, although
the enemy’s political and military institutions have collapsed. As a
military tribunal, this Tribunal is a continuation of the war effort of
the Allied nations. As an International Tribunal, it is not bound by the
procedural and substantive refinements of our respective judicial or
constitutional systems, nor will its rulings introduce precedents into
any country’s internal system of civil justice. As an International
Military Tribunal, it rises above the provincial and transient and seeks
guidance not only from international law but also from the basic
principles of jurisprudence which are assumptions of civilization and
which long have found embodiment in the codes of all nations.
Of one thing we may be sure. The future will never have to ask, with
misgiving, what could the Nazis have said in their favor. History will
know that whatever could be said, they were allowed to say. They have
been given the kind of a Trial which they, in the days of their pomp and
power, never gave to any man.
But fairness is not weakness. The extraordinary fairness of these
hearings is an attribute of our strength. The Prosecution’s case, at its
close, seemed inherently unassailable because it rested so heavily on
German documents of unquestioned authenticity. But it was the weeks upon
weeks of pecking at this case, by one after another of the defendants,
that has demonstrated its true strength. The fact is that the testimony
of the defendants has removed any doubt of guilt which, because of the
extraordinary nature and magnitude of these crimes, may have existed
before they spoke. They have helped write their own judgment of
condemnation.
But justice in this case has nothing to do with some of the arguments
put forth by the defendants or their counsel. We have not previously and
we need not now discuss the merits of all their obscure and tortuous
philosophy. We are not trying them for the possession of obnoxious
ideas. It is their right, if they choose, to renounce the Hebraic
heritage in the civilization of which Germany was once a part. Nor is it
our affair that they repudiated the Hellenic influence as well. The
intellectual bankruptcy and moral perversion of the Nazi regime might
have been no concern of international law had it not been utilized to
goosestep the Herrenvolk across international frontiers. It is not their
thoughts, it is their overt acts which we charge to be crimes. Their
creed and teachings are important only as evidence of motive, purpose,
knowledge, and intent.
We charge unlawful aggression but we are not trying the motives, hopes,
or frustrations which may have led Germany to resort to aggressive war
as an instrument of policy. The law, unlike politics, does not concern
itself with the good or evil in the _status quo_, nor with the merits of
the grievances against it. It merely requires that the _status quo_ be
not attacked by violent means and that policies be not advanced by war.
We may admit that overlapping ethnological and cultural groups, economic
barriers, and conflicting national ambitions created in the 1930’s, as
they will continue to create, grave problems for Germany as well as for
the other peoples of Europe. We may admit too that the world had failed
to provide political or legal remedies which would be honorable and
acceptable alternatives to war. We do not underwrite either the ethics
or the wisdom of any country, including my own, in the face of these
problems. But we do say that it is now, as it was for sometime prior to
1939, illegal and criminal for Germany or any other nation to redress
grievances or seek expansion by resort to aggressive war.
Let me emphasize one cardinal point. The United States has no interest
which would be advanced by the conviction of any defendant if we have
not proved him guilty on at least one of the Counts charged against him
in the Indictment. Any result that the calm and critical judgment of
posterity would pronounce unjust would not be a victory for any of the
countries associated in this Prosecution. But in summation we now have
before us the tested evidences of criminality and have heard the flimsy
excuses and paltry evasions of the defendants. The suspended judgment
with which we opened this case is no longer appropriate. The time has
come for final judgment and if the case I present seems hard and
uncompromising, it is because the evidence makes it so.
I perhaps can do no better service than to try to lift this case out of
the morass of detail with which the record is full and put before you
only the bold outlines of a case that is impressive in its simplicity.
True, its thousands of documents and more thousands of pages of
testimony deal with an epoch and cover a continent, and touch almost
every branch of human endeavor. They illuminate specialities, such as
diplomacy, naval development and warfare, land warfare, the genesis of
air warfare, the politics of the Nazi rise to power, the finance and
economics of totalitarian war, sociology, penology, mass psychology, and
mass pathology. I must leave it to experts to comb the evidence and
write volumes on their specialities, while I picture in broad strokes
the offenses whose acceptance as lawful would threaten the continuity of
civilization. I must, as Kipling put it, “splash at a 10-league canvas
with brushes of comet’s hair.”
The Crimes of the Nazi Regime.
The strength of the case against these defendants under the conspiracy
Count, which it is the duty of the United States to argue, is in its
simplicity. It involves but three ultimate inquiries: First, have the
acts defined by the Charter as crimes been committed; second, were they
committed pursuant to a Common Plan or Conspiracy; third, are these
defendants among those who are criminally responsible?
The charge requires examination of a criminal policy, not of a multitude
of isolated, unplanned, or disputed crimes. The substantive crimes upon
which we rely, either as goals of a common plan or as means for its
accomplishment, are admitted. The pillars which uphold the conspiracy
charge may be found in five groups of overt acts, whose character and
magnitude are important considerations in appraising the proof of
conspiracy.
1. The Seizure of Power and Subjugation of Germany to a Police State.
The Nazi Party seized control of the German State in 1933. “Seizure of
power” is a characterization used by defendants and defense witnesses,
and so apt that it has passed into both history and everyday speech.
The Nazi _junta_ in the early days lived in constant fear of overthrow.
Göring, in 1934, pointed out that its enemies were legion and said:
“Therefore, the concentration camps have been created, where we
have first confined thousands of Communists and social democrat
functionaries” (2344-PS).
In 1933 Göring forecast the whole program of purposeful cruelty and
oppression when he publicly announced:
“Whoever in the future raises a hand against a representative of
the National Socialist movement or of the State must know that
he will lose his life in a very short while” (2494-PS).
New political crimes were created to this end. It was made a treason,
punishable with death, to organize or support a political party other
than the Nazi Party (2548-PS). Circulating a false or exaggerated
statement, or one which would harm the State or even the Party, was made
a crime (1652-PS). Laws were enacted of such ambiguity that they could
be used to punish almost any innocent act. It was, for example, made a
crime to provoke “any act contrary to the public welfare” (1390-PS).
The doctrine of punishment by analogy was introduced to enable
conviction for acts which no statute forbade (1962-PS). Minister of
Justice Gürtner explained that National Socialism considered every
violation of the goals of life which the community set up for itself to
be a wrong _per se_, and that the acts could be punished even though it
was not contrary to existing “formal law” (2549-PS).
The Gestapo and the SD were instrumentalities of an espionage system
which penetrated public and private life (1680-PS). Göring controlled a
personal wire-tapping unit. All privacy of communication was abolished
(1390-PS). Party Blockleiter appointed over every 50 householders spied
continuously on all within their ken (1893-PS).
Upon the strength of this spying individuals were dragged off to
“protective custody” and to concentration camps without legal
proceedings of any kind (1956-PS) and without statement of any reason
therefor (2533-PS). The partisan Political Police were exempted from
effective legal responsibility for their acts (2347-PS).
With all administrative offices in Nazi control and with the Reichstag
reduced to impotence, the judiciary remained the last obstacle to this
reign of terror (2469-PS). But its independence was soon overcome and it
was reorganized to dispense a venal justice (784-PS). Judges were ousted
for political or racial reasons and were spied upon and put under
pressure to join the Nazi Party (2967-PS). After the Supreme Court had
acquitted three of the four men whom the Nazis accused of setting the
Reichstag fire, its jurisdiction over treason cases was transferred to a
newly established “People’s Court” consisting of two judges and five
Party officials (2967-PS). The German film of this “People’s Court” in
operation, which we showed in this chamber, revealed its presiding judge
pouring partisan abuse on speechless defendants (3054-PS). Special
courts were created to try political crimes, only Party members were
appointed judges (2065-PS), and “judges’ letters” instructed the puppet
judges as to the “general lines” they must follow (D-229).
The result was the removal of all peaceable means either to resist or to
change the Government. Having sneaked through the portals of power, the
Nazis slammed the gate in the face of all others who might also aspire
to enter. Since the law was what the Nazis said it was, every form of
opposition was rooted out and every dissenting voice throttled. Germany
was in the clutch of a police state, which used the fear of the
concentration camp as a means to enforce nonresistance. The Party was
the State, the State was the Party, and terror by day and death by night
were the policy of both.
2. The Preparation and Waging of Wars of Aggression.
From the moment the Nazis seized power, they set about feverish but
stealthy efforts, in defiance of the Versailles Treaty, to arm for war.
In 1933 they found no air force. By 1939 they had 21 squadrons,
consisting of 240 echelons or about 2,400 first-line planes, together
with trainers and transports. In 1933 they found an army of 3 infantry
and 3 cavalry divisions. By 1939 they had raised and equipped an army of
51 divisions, 4 of which were fully motorized and 4 of which were Panzer
divisions. In 1933 they found a navy of 1 cruiser and 6 light cruisers.
By 1939 they had built a navy of 4 battleships, 1 aircraft carrier, 6
cruisers, 22 destroyers, and 54 submarines. They had also built up in
that period an armament industry as efficient as that of any country in
the world (EC-28).
These new weapons were put to use, commencing in September 1939, in a
series of undeclared wars against nations with which Germany had
arbitration and nonaggression treaties, and in violation of repeated
assurances. On September 1, 1939, this rearmed Germany attacked Poland.
The following April witnessed the invasion and occupation of Denmark and
Norway, and May saw the overrunning of Belgium, the Netherlands, and
Luxembourg. Another spring saw Yugoslavia and Greece under attack, and
in June 1941 came the invasion of Soviet Russia. Then Japan, which
Germany had embraced as a partner, struck without warning at Pearl
Harbor in December 1941 and 4 days later Germany declared war on the
United States.
We need not trouble ourselves about the many abstract difficulties that
can be conjured up about what constitutes aggression in doubtful cases.
I shall show you, in discussing the conspiracy, that by any test ever
put forward by any responsible authority, by all the canons of plain
common sense, these were unlawful wars of aggression in breach of
treaties and in violation of assurances.
The third group of crimes was: Warfare in Disregard of International
Law.
It is unnecessary to labor this point on the facts. Göring asserts that
the Rules of Land Warfare were obsolete, that no nation could fight a
total war within their limits. He testified that the Nazis would have
denounced the conventions to which Germany was a party, but that General
Jodl wanted captured German soldiers to continue to benefit from their
observance by the Allies.
It was, however, against the Soviet people and Soviet prisoners that
Teutonic fury knew no bounds, in spite of a warning by Admiral Canaris
that the treatment was in violation of international law.
We need not, therefore, for the purposes of the conspiracy Count, recite
the revolting details of starving, beating, murdering, freezing, and
mass extermination admittedly used against the Eastern soldiery. Also,
we may take as established or admitted that the lawless conduct such as
shooting British and American airmen, mistreatment of Western prisoners
of war, forcing French prisoners of war into German war work, and other
deliberate violations of the Hague and Geneva Conventions, did occur,
and in obedience to highest levels of authority (R-110).
The fourth group of crimes is: Enslavement and Plunder of Populations in
Occupied Countries.
The Defendant Sauckel, Plenipotentiary General for the Utilization of
Labor (1666-PS), is authority for the statement that “out of 5,000,000
foreign workers who arrived in Germany, not even 200,000 came
voluntarily” (R-124). It was officially reported to Defendant Rosenberg
that in his territory “recruiting methods were used which probably have
their origin in the blackest period of the slave trade” (294-PS).
Sauckel himself reported that male and female agents went hunting for
men, got them drunk, and “shanghaied” them to Germany (220-PS). These
captives were shipped in trains without heat, food, or sanitary
facilities. The dead were thrown out at stations, and the newborn were
thrown out the windows of moving trains (054-PS).
Sauckel ordered that “all the men must be fed, sheltered, and treated in
such a way as to exploit them to the highest possible extent at the
lowest conceivable degree of expenditure” (054-PS). About two million of
these were employed directly in the manufacture of armaments and
munitions (016-PS). The director of the Krupp locomotive factory in
Essen complained to the company that Russian forced laborers were so
underfed that they were too weakened to do their work (D-316), and the
Krupp doctor confirmed their pitiable condition (D-288). Soviet workers
were put in camps under Gestapo guards, who were allowed to punish
disobedience by confinement in a concentration camp or by hanging on the
spot (3040-PS).
Populations of occupied countries were otherwise exploited and oppressed
unmercifully. Terror was the order of the day. Civilians were arrested
without charges, committed without counsel, executed without hearing.
Villages were destroyed, the male inhabitants shot or sent to
concentration camps, the women sent to forced labor, and the children
scattered abroad (3012-PS). The extent of the slaughter in Poland alone
was indicated by Frank, who reported, and I quote:
“If I wanted to have a poster put up for every seven Poles who
were shot, the forests of Poland would not suffice for producing
the paper for such posters” (2032-PS).
Those who will enslave men cannot be expected to refrain from plundering
them. Boastful reports show how thoroughly and scientifically the
resources of occupied lands were sucked into the German war economy,
inflicting shortage, hunger, and inflation upon the inhabitants
(EC-317). Besides this grand plan to aid the German war effort there
were the sordid activities of the Rosenberg Einsatzstab, which pillaged
art treasures for Göring and his fellow-bandits (014-PS). It is hard to
say whether the spectacle of Germany’s Number 2 leader urging his people
to give up every comfort and strain every sinew on essential war work
while he rushed around confiscating art by the trainload should be cast
as tragedy or comedy. In either case it was a crime.
International law at all times before and during this war spoke with
precision and authority respecting the protection due civilians of an
occupied country and the slave trade and plunder of occupied countries
was at all times flagrantly unlawful.
And the fifth group of crimes is: Persecution and Extermination of Jews
and Christians.
The Nazi movement will be of evil memory in history because of its
persecution of the Jews, the most far-flung and terrible racial
persecution of all time. Although the Nazi Party neither invented nor
monopolized anti-Semitism, its leaders from the very beginning embraced
it, incited it, and exploited it. They used it as “the psychological
spark that ignites the mob.” After the seizure of power, it became an
official state policy. The persecution began in a series of
discriminatory laws eliminating the Jews from the civil service, the
professions, and economic life. As it became more intense it included
segregation of Jews in ghettos, and exile. Riots were organized by Party
leaders to loot Jewish business places and to burn synagogues. Jewish
property was confiscated and a collective fine of a billion marks was
imposed upon German Jewry. The program progressed in fury and
irresponsibility to the “final solution.” This consisted of sending all
Jews who were fit to work to concentration camps as slave laborers, and
all who were not fit, which included children under 12 and people over
50, as well as any others judged unfit by an SS doctor, to concentration
camps for extermination (2605-PS).
Adolf Eichmann, the sinister figure who had charge of the extermination
program, has estimated that the anti-Jewish activities resulted in the
killing of 6 million Jews. Of these, 4 million were killed in
extermination institutions, and 2 million were killed by Einsatzgruppen,
mobile units of the Security Police and SD which pursued Jews in the
ghettos and in their homes and slaughtered them by gas wagons, by mass
shooting in antitank ditches and by every device which Nazi ingenuity
could conceive. So thorough and uncompromising was this program that the
Jews of Europe as a race no longer exist, thus fulfilling the diabolic
“prophecy” of Adolf Hitler at the beginning of the war (2738-PS).
Of course, any such program must reckon with the opposition of the
Christian Church. This was recognized from the very beginning. Defendant
Bormann wrote all Gauleiters in 1941 that “National Socialism and
Christian concepts are irreconcilable,” and that the people must be
separated from the churches and the influence of the churches totally
removed (D-75). Defendant Rosenberg even wrote dreary treatises
advocating a new and weird Nazi religion (2349-PS).
The Gestapo appointed “Church specialists” who were instructed that the
ultimate aim was “destruction of the confessional churches” (1815-PS).
The record is full of specific instances of the persecution of clergymen
(1164-PS, 1521-PS, 848-PS, 849-PS), the confiscation of Church property
(1481-PS), interference with religious publications (1498-PS),
disruption of religious education (121-PS), and suppression of religious
organizations (1481-PS, 1482-PS, R-145).
The chief instrumentality for persecution and extermination was the
concentration camp, sired by the Defendant Göring and nurtured under the
over-all authority of Defendants Frick and Kaltenbrunner.
The horrors of these iniquitous places have been vividly disclosed by
documents (2309-PS, 3870-PS) and testified to by witnesses. The Tribunal
must be satiated with ghastly verbal and pictorial portrayals. From your
records it is clear that the concentration camps were the first and
worst weapon of Nazi oppression used by the National Socialist State,
and that they were the primary means utilized for the persecution of the
Christian Church and the extermination of the Jewish race. This has been
admitted to you by some of the defendants from the witness stand. In the
words of Defendant Frank: “A thousand years will pass and this guilt of
Germany will still not be erased.”
These, then, were the five great substantive crimes of the Nazi regime.
Their commission, which cannot be denied, stands admitted. The Defendant
Keitel, who is in a position to know the facts, has given the Tribunal
what seems to be a fair summation of the case on the facts:
“The defendant has declared that he admits the contents of the
general Indictment to be proved from the objective and factual
point of view (that is to say, not every individual case) and
this in consideration of the law of procedure governing the
Trial. It would be senseless, despite the possibility of
refuting several documents or individual facts, to attempt to
shake the Indictment as a whole.”
I pass now to the inquiry as to whether these groups of criminal acts
were integrated in a Common Plan or Conspiracy.
The Prosecution submits that these five categories of premeditated
crimes were not separate and independent phenomena but that all were
committed pursuant to a Common Plan or Conspiracy. The Defense admits
that these classes of crimes were committed but denies that they are
connected one with another as parts of a single program.
The central crime in this pattern of crimes, the kingpin which holds
them all together, is the plot for aggressive wars. The chief reason for
international cognizance of these crimes lies in this fact. Have we
established the Plan or Conspiracy to make aggressive war?
Certain admitted or clearly proven facts help answer that question.
First is the fact that such war of aggression did take place. Second, it
is admitted that from the moment the Nazis came to power, every one of
them and every one of the defendants worked like beavers to prepare for
some war. The question therefore comes to this: Were they preparing for
the war which did occur, or were they preparing for some war which never
has happened? It is probably true that in their early days none of them
had in mind what month of what year war would begin, the exact dispute
which would precipitate it, or whether its first impact would be
Austria, Czechoslovakia, or Poland. But I submit that the defendants
either knew or were chargeable with knowledge that the war for which
they were making ready would be a war of German aggression. This is
partly because there was no real expectation that any power or
combination of powers would attack Germany. But it is chiefly because
the inherent nature of the German plans was such that they were certain
sooner or later to meet resistance and that they could then be
accomplished only by aggression.
The plans of Adolf Hitler for aggression were just as secret as _Mein
Kampf_, of which over six million copies were published in Germany. He
not only openly advocated overthrowing the Treaty of Versailles, but
made demands which went far beyond a mere rectification of its alleged
injustices (GB-128). He avowed an intention to attack neighboring states
and seize their lands, which he said would have to be won with “the
power of a triumphant sword.” Here, for every German to hearken to, were
the “ancestral voices prophesying war.”
Göring has testified in this courtroom that at his first meeting with
Hitler, long before the seizure of power, quoting:
“I noted that Hitler had a definite view of the impotency of
protest and, as a second point, that he was of the opinion that
Germany should be freed of the peace of Versailles. We did not
say we shall have to have a war and defeat our enemies; this was
the aim, and the methods had to be adapted to the political
situation.”
When asked if this goal were to be accomplished by war if necessary,
Göring did not deny that eventuality but evaded a direct answer by
saying, “We did not even debate about those things at that time.” He
went on to say that the aim to overthrow the Treaty of Versailles was
open and notorious and that—I quote again—“every German in my opinion
was for its modification, and there was no doubt that this was a strong
inducement for joining the Party.” Thus, there can be no possible excuse
for any person who aided Hitler to get absolute power over the German
people, or who took a part in his regime, to fail to know the nature of
the demands he would make on Germany’s neighbors.
Immediately after the seizure of power the Nazis went to work to
implement these aggressive intentions by preparing for war. They first
enlisted German industrialists in a secret rearmament program. Twenty
days after the seizure of power Schacht was host to Hitler, Göring, and
some 20 leading industrialists. Among them were Krupp von Bohlen of the
great Krupp armament works and representatives of I. G. Farben and other
Ruhr heavy industries. Hitler and Göring explained their program to the
industrialists, who became so enthusiastic that they set about to raise
3 million Reichsmark to strengthen and confirm the Nazi Party in power
(EC-433). Two months later Krupp was working to bring a reorganized
association of German industry into agreement with the political aims of
the Nazi Government (D-157). Krupp later boasted of the success in
keeping the German war industries secretly alive and in readiness
despite the disarmament clauses of the Versailles Treaty, and recalled
the industrialists’ enthusiastic acceptance of “the great intentions of
the Führer in the rearmament period of 1933-39” (D-317).
Some 2 months after Schacht had sponsored his first meeting to gain the
support of the industrialists, the Nazis moved to harness industrial
labor to their aggressive plans. In April 1933 Hitler ordered Dr. Ley
“to take over the trade unions,” numbering some six million members. By
Party directive Ley seized the unions, their property and their funds.
Union leaders, taken into “protective custody” by the SS and SA, were
put into concentration camps (2283-PS, 2271-PS, 2335-PS, 2334-PS,
2928-PS, 2277-PS, 2332-PS, 2333-PS). The free labor unions were then
replaced by a Nazi organization known as the German Labor Front, with
Dr. Ley at its head. It was expanded until it controlled over 23 million
members (2275-PS). Collective bargaining was eliminated, the voice of
labor could no longer be heard as to working conditions, and the labor
contract was prescribed by “trustees of labor” appointed by Hitler
(405-PS). The war purpose of this labor program was clearly acknowledged
by Robert Ley 5 days after war broke out, when he declared in a speech
that:
“We National Socialists have monopolized all resources and all
our energies during the past 7 years so as to be able to be
equipped for the supreme effort of battle” (1939-PS).
The Nazis also proceeded at once to adapt the Government to the needs of
war. In April 1933 the Cabinet formed a Defense Council, the working
committee of which met frequently thereafter. In the meeting of 23 May
1933 at which Defendant Keitel presided, the members were instructed
that:
“No document must be lost since otherwise the enemy propaganda
would make use of it. Matters communicated orally cannot be
proven; they can be denied by us in Geneva” (EC-177).
In January 1934—and, Your Honors, dates in this connection are
important—with Defendant Jodl present, the Council planned a
mobilization calendar and mobilization order for some 240,000 industrial
plants. Again it was agreed that nothing should be in writing so that
“the military purpose may not be traceable” (EC-404).
On 21 May 1935, the top secret Reich Defense Law was enacted. Defendant
Schacht was appointed Plenipotentiary for War Economy with the task of
secretly preparing all economic forces for war and, in the event of
mobilization, of financing the war (2261-PS).
Schacht’s secret efforts were supplemented in October 1936 by the
appointment of Defendant Göring as commissioner of the Four Year Plan,
with the duty of putting the entire economy in a state of readiness for
war within 4 years (EC-408).
A secret program for the accumulation of the raw materials and foreign
credits necessary for extensive rearmament was also set on foot
immediately upon seizure of power. In September of 1934, the Minister of
Economics was already complaining that:
“The task of stockpiling is being hampered by the lack of
foreign currency; the need for secrecy and camouflage also is a
retarding influence” (EC-128).
Foreign currency controls were at once established. Financing was
delegated to the wizard Schacht, who conjured up the mefo bill to serve
the dual objectives of tapping the short-term money market for
rearmament purposes while concealing the amount of these expenditures
(EC-436).
The spirit of the whole Nazi administration was summed up by Göring at a
meeting of the Council of Ministers, which included Schacht, on 27 May
1936, when he said,
“All measures are to be considered from the standpoint of an
assured waging of war” (1301-PS).
The General Staff, of course, also had to be enlisted in the war plan.
Most of the generals, attracted by the prospect of rebuilding their
armies, became willing accomplices. The hold-over Minister of War Von
Blomberg and the Chief of Staff General Von Fritsch, however, were not
cordial to the increasingly belligerent policy of the Hitler regime, and
by vicious and obscene plotting they were discredited and removed in
January 1938. Thereupon, Hitler assumed for himself Supreme Command of
the Armed Forces and the positions of Blomberg and of Von Fritsch were
filled by others who became, as Blomberg said of Keitel, “a willing tool
in Hitler’s hands for every one of his decisions.” The generals did not
confine their participation to merely military matters. They
participated in all major diplomatic and political maneuvers, such as
the Obersalzberg meeting where Hitler, flanked by Keitel and other top
generals, issued his virtual ultimatum to Schuschnigg (1780-PS).
As early as 5 November 1937 the plan to attack had begun to take
definiteness as to time and victim. In a meeting which included the
Defendants Raeder, Göring, and Von Neurath, Hitler stated the cynical
objective: “The question for Germany is where the greatest possible
conquest could be made at the lowest possible cost.” He discussed
various plans for the invasion of Austria and Czechoslovakia, indicating
clearly that he was thinking of these territories not as ends in
themselves, but as means for further conquest. He pointed out that
considerable military and political assistance could be afforded by
possession of these lands and discussed the possibility of constituting
from them new armies up to a strength of about 12 divisions. The aim he
stated boldly and baldly as the acquisition of additional living space
in Europe, and recognized that “the German question can be solved only
by way of force” (386-PS).
Six months later, emboldened by the bloodless Austrian conquest, Hitler,
in a secret directive to Keitel, stated his “unalterable decision to
smash Czechoslovakia by military action in the near future” (388-PS).
On the same day, Jodl noted in his diary that the Führer had stated his
final decision to destroy Czechoslovakia soon and had initiated military
preparations all along the line (1780-PS). By April the plan had been
perfected to attack Czechoslovakia “with lightning swift action as the
result of an incident” (388-PS).
All along the line preparations became more definite for a war of
expansion on the assumption that it would result in a world-wide
conflict. In September 1938 Admiral Carls officially commented on a
“Draft Study of Naval Warfare against England”:
“There is full agreement with the main theme of the study.
“1. If according to the Führer’s decision Germany is to acquire
a position as a world power, she needs not only sufficient
colonial possessions but also secure naval communications and
secure access to the ocean.
“2. Both requirements can only be fulfilled in opposition to
Anglo-French interests and will limit their positions as world
powers. It is unlikely that they can be achieved by peaceful
means. The decision to make Germany a world power therefore
forces upon us the necessity of making the corresponding
preparations for war.
“3. War against England means at the same time war against the
Empire, against France, probably against Russia as well, and a
large number of countries overseas; in fact, against one-half to
one-third of the whole world.
“It can only be justified and have a chance of success if it is
prepared economically as well as politically and militarily and
waged with the aim of conquering for Germany an outlet to the
ocean” (C-23).
This Tribunal knows what categorical assurances were given to an alarmed
world after the Anschluss, after Munich, after the occupation of Bohemia
and Moravia, that German ambitions were realized and that Hitler had “no
further territorial demands to make in Europe.” The record of this Trial
shows that those promises were calculated deceptions and that those high
in the bloody brotherhood of Nazidom knew it.
As early as 15 April 1938 Göring pointed out to Mussolini and Ciano that
the possession of those territories would make possible an attack on
Poland (1874-PS). Ribbentrop’s Ministry on 26 August 1938 was writing:
“After the settlement of the Czechoslovakian question, it will
be generally assumed that Poland will be next in turn” (TC-76).
Hitler, after the Polish invasion, boasted that it was the Austrian and
Czechoslovakian triumphs by which “the basis for the action against
Poland was laid” (789-PS). Göring suited the act to the purpose and gave
immediate instructions to exploit for the further strengthening of the
German war potential, first the Sudetenland, and then the whole
Protectorate (R-133).
By May of 1939 the Nazi preparations had ripened to the point that
Hitler confided to the Defendants Göring, Raeder, Keitel, and others his
readiness “to attack Poland at the first suitable opportunity,” even
though he recognized that “further successes cannot be attained without
the shedding of blood.” The larcenous motives behind this decision he
made plain in words that echoed the covetous theme of _Mein Kampf_:
“Circumstances must be adapted to aims. This is impossible
without invasion of foreign states or attacks upon foreign
property. Living space in proportion to the magnitude of the
state is the basis of all power—further successes cannot be
attained without expanding our living space in the East...”
(L-79).
While a credulous world slumbered, snugly blanketed with perfidious
assurances of peaceful intentions, the Nazis prepared not as before for
a war but now for the war. The Defendants Göring, Keitel, Raeder, Frick,
and Funk, with others, met as the Reich Defense Council in June of 1939.
The minutes, authenticated by Göring, are revealing evidences of the way
in which each step of Nazi planning dovetailed with every other. These
five key defendants, 3 months before the first Panzer unit had knifed
into Poland, were laying plans for “employment of the population in
wartime,” and had gone so far as to classify industry for priority in
labor supply after “5 million servicemen had been called up.” They
decided upon measures to avoid “confusion when mobilization takes
place,” and declared a purpose “to gain and maintain the lead in the
decisive initial weeks of a war.” They then planned to use in production
prisoners of war, criminal prisoners, and concentration camp inmates.
They then decided on “compulsory work for women in wartime.” They had
already passed on applications from 1,172,000 specialist workmen for
classification as indispensable, and had approved 727,000 of them. They
boasted that orders to workers to report for duty “are ready and tied up
in bundles at the labor offices.” And they resolved to increase the
industrial manpower supply by bringing into Germany “hundreds of
thousands of workers” from the Protectorate to be “housed together in
hutments” (3787-PS).
It is the minutes of this significant conclave of many key defendants
which disclose how the plan to start the war was coupled with the plan
to wage the war through the use of illegal sources of labor to maintain
production. Hitler, in announcing his plan to attack Poland, had already
foreshadowed the slave-labor program as one of its corollaries when he
cryptically pointed out to the Defendants Göring, Raeder, Keitel, and
others that the Polish population “will be available as a source of
labor” (L-79). This was part of the plan made good by Frank, who as
Governor General notified Göring that he would supply “at least one
million male and female agricultural and industrial workers to the
Reich” (1374-PS), and by Sauckel, whose impressments throughout occupied
territory aggregated numbers equal to the total population of some of
the smaller nations of Europe.
Here also comes to the surface the link between war labor and
concentration camps, a manpower source that was increasingly used and
with increasing cruelty. An agreement between Himmler and the Minister
of Justice Thierack in 1942 provided for “the delivery of antisocial
elements from the execution of their sentence to the Reichsführer SS to
be worked to death” (654-PS). An SS directive provided that bedridden
prisoners be drafted for work to be performed in bed (1395-PS). The
Gestapo ordered 46,000 Jews arrested to increase the “recruitment of
manpower into the concentration camps” (1472-PS). One hundred thousand
Jews were brought from Hungary to augment the camps’ manpower (R-124).
On the initiative of the Defendant Dönitz, concentration camp labor was
used in the construction of submarines (C-195). Concentration camps were
thus geared into war production on the one hand, and into the
administration of justice and the political aims of the Nazis on the
other.
The use of prisoner-of-war labor as then planned in that meeting also
grew with German needs. At a time when every German soldier was needed
at the front and forces were not available at home, Russian prisoners of
war were forced to man anti-aircraft guns against Allied planes. Field
Marshal Milch reflected the Nazi merriment at this flagrant violation of
international law, saying: “... this is an amusing thing, that the
Russians must work the guns” (R-124).
The orders for the treatment of Soviet prisoners of war were so ruthless
that Admiral Canaris, pointing out that they would “result in arbitrary
mistreatments and killing,” protested to the OKW against them as
breaches of international law. The reply of Keitel was unambiguous. He
said:
“The objections arise from the military conception of chivalrous
warfare! This is the destruction of an ideology! Therefore, I
approve and back the measures” (C-338).
The Geneva Convention would have been thrown overboard openly except
that Jodl objected because he wanted the benefits of Allied observance
of it while it was not being allowed to hamper the Germans in any way.
Other crimes in the conduct of warfare were planned with equal
thoroughness as a means of insuring victory of German arms. In October
1938, almost a year before the start of the war, the large-scale
violation of the established rules of warfare was contemplated as a
policy, and the Supreme Command circulated a “most secret” list of
devious explanations to be given by the Propaganda Minister in such
cases (C-2). Even before this time commanders of the Armed Forces were
instructed to employ any means of warfare so long as it facilitated
victory (L-211). After the war was in progress the orders increased in
savagery. A typical Keitel order, demanding the use of the “most brutal
means,” provided that: “... It is the duty of the troops to use all
means without restriction, even against women and children, so long as
it insures success.”
The German naval forces were no more immune from the infection than the
land forces. Raeder ordered violations of the accepted rules of warfare
wherever necessary to gain strategic successes (C-157). Dönitz urged his
submarine crews not to rescue survivors of torpedoed enemy ships in
order to cripple merchant shipping of the Allied Nations by decimating
their crews (D-642).
Thus, the war crimes against Allied forces and the crimes against
humanity committed in occupied territories are incontestably part of the
program for making the war because, in the German calculations, they
were indispensable to its hope of success.
Similarly, the whole group of prewar crimes, including the persecutions
within Germany, fall into place around the plan for aggressive war like
stones in a finely wrought mosaic. Nowhere is the whole catalog of
crimes of Nazi oppression and terrorism within Germany so well
integrated with the crime of war as in that strange mixture of wind and
wisdom which makes up the testimony of Hermann Göring. In describing the
aims of the Nazi program before the seizure of power, Göring said:
“The first question was to achieve and establish a different
political structure for Germany which would enable Germany to
obtain against the dictate (of Versailles) not only a protest,
but an objection of such a nature that it would actually be
considered.”
With these purposes, Göring admitted that the plan was made to overthrow
the Weimar Republic, to seize power, and to carry out the Nazi program
by whatever means were necessary, whether legal or illegal.
From Göring’s cross-examination we learn how necessarily the whole
program of crime followed. Because they considered a strong state
necessary to get rid of the Versailles Treaty, they adopted the
Führerprinzip. Having seized power, the Nazis thought it necessary to
protect it by abolishing parliamentary government and suppressing all
organized opposition from political parties (L-83). This was reflected
in the philosophy of Göring that the opera was more important than the
Reichstag. Even the “opposition of each individual was not tolerated
unless it was a matter of unimportance.” To insure the suppression of
opposition a secret police force was necessary. In order to eliminate
incorrigible opponents, it was necessary to establish concentration
camps and to resort to the device of protective custody. Protective
custody, Göring testified, meant that:
“People were arrested and taken into protective custody who had
committed no crime but who one might expect, if they remained in
freedom, would do all sorts of things to damage the German
State.”
The same war purpose was dominant in the persecution of the Jews. In the
beginning, fanaticism and political opportunism placed a principal part,
for anti-Semitism and its allied scapegoat, mythology, was a vehicle on
which the Nazis rode to power. It was for this reason that the filthy
Streicher and the blasphemous Rosenberg were welcomed at Party rallies
and made leaders and officials of the State or Party. But the Nazis soon
regarded the Jews as foremost among the opposition to the police state
with which they planned to put forward their plans of military
aggression. Fear of their pacifism and their opposition to strident
nationalism was given as the reason that the Jews had to be driven from
the political and economic life of Germany. Accordingly, they were
transported like cattle to the concentration camps, where they were
utilized as a source of forced labor for war purposes.
At a meeting held on 12 November 1938, 2 days after the violent
anti-Jewish pogroms instigated by Goebbels and carried out by the Party
Leadership Corps and the SA, the program for the elimination of Jews
from the German economy was mapped out by Göring, Funk, Heydrich,
Goebbels, and the other top Nazis. The measures adopted included
confinement of the Jews in ghettos, cutting off their food supply,
“Aryanizing” their shops, and restricting their freedom of movement
(1816-PS). Here another purpose behind the Jewish persecutions crept in,
for it was the wholesale confiscation of their property which helped
finance German rearmament. Although Schacht’s plan to have foreign money
ransom the entire race within Germany was not adopted, the Jews were
stripped to the point where Göring was able to advise the Reich Defense
Council that the critical situation of the Reich exchequer, due to
rearmament, had been relieved “through the billion Reichsmark fine
imposed on Jewry, and through profits accrued to the Reich in the
Aryanization of Jewish enterprises” (3575-PS).
A glance over the dock will show that, despite quarrels among
themselves, each defendant played a part which fitted in with every
other, and that all advanced the common plan. It contradicts experience
that men of such diverse backgrounds and talents should so forward each
other’s aims by coincidence.
The large and varied role of Göring was half militarist and half
gangster. He stuck his pudgy finger in every pie. He used his SA
musclemen to help bring the gang into power. In order to entrench that
power he contrived to have the Reichstag burned, established the
Gestapo, and created the concentration camps. He was equally adept at
massacring opponents and at framing scandals to get rid of stubborn
generals. He built up the Luftwaffe and hurled it at his defenseless
neighbors. He was among the foremost in harrying Jews out of the land.
By mobilizing the total economic resources of Germany he made possible
the waging of the war which he had taken a large part in planning. He
was, next to Hitler, the man who tied the activities of all the
defendants together in a common effort.
The parts played by the other defendants, although less comprehensive
and less spectacular than that of the Reichsmarshal, were nevertheless
integral and necessary contributions to the joint undertaking, without
any one of which the success of the common enterprise would have been in
jeopardy. There are many specific deeds of which these men have been
proven guilty. No purpose would be served—nor indeed is time
available—to review all the crimes which the evidence has charged up to
their names. Nevertheless, in viewing the conspiracy as a whole and as
an operating mechanism, it may be well to recall briefly the outstanding
services which each of the men in the dock rendered to the common cause.
THE PRESIDENT: Would that be a convenient time to adjourn?
MR. JUSTICE JACKSON: Entirely, Your Honor.
[_A recess was taken._]
The zealot Hess, before succumbing to wanderlust, was the engineer
tending the Party machinery, passing orders and propaganda down to the
Leadership Corps, supervising every aspect of Party activities, and
maintaining the organization as a loyal and ready instrument of power.
When apprehensions abroad threatened the success of the Nazi regime for
conquest, it was the duplicitous Ribbentrop, the salesman of deception,
who was detailed to pour wine on the troubled waters of suspicion by
preaching the gospel of limited and peaceful intentions. Keitel, the
weak and willing tool, delivered the Armed Forces, the instrument of
aggression, over to the Party and directed them in executing its
felonous designs.
Kaltenbrunner, the grand inquisitor, took up the bloody mantle of
Heydrich to stifle opposition and terrorize compliance, and buttressed
the power of National Socialism on a foundation of guiltless corpses. It
was Rosenberg, the intellectual high priest of the “master race,” who
provided the doctrine of hatred which gave the impetus for the
annihilation of Jewry, and who put his infidel theories into practice
against the Eastern Occupied Territories. His woolly philosophy also
added boredom to the long list of Nazi atrocities. The fanatical Frank,
who solidified Nazi control by establishing the new order of authority
without law, so that the will of the Party was the only test of
legality, proceeded to export his lawlessness to Poland, which he
governed with the lash of Caesar and whose population he reduced to
sorrowing remnants. Frick, the ruthless organizer, helped the Party to
seize power, supervised the police agencies to insure that it stayed in
power, and chained the economy of Bohemia and Moravia to the German war
machine.
Streicher, the venomous vulgarian, manufactured and distributed obscene
racial libels which incited the populace to accept and assist the
progressively savage operations of “race purification.” As Minister of
Economics Funk accelerated the pace of rearmament, and as Reichsbank
president banked for the SS the gold teeth fillings of concentration
camp victims—probably the most ghoulish collateral in banking history.
It was Schacht, the façade of starched respectability, who in the early
days provided the window dressing, the bait for the hesitant, and whose
wizardry later made it possible for Hitler to finance the colossal
rearmament program, and to do it secretly.
Dönitz, Hitler’s legatee of defeat, promoted the success of the Nazi
aggressions by instructing his pack of submarine killers to conduct
warfare at sea with the illegal ferocity of the jungle. Raeder, the
political admiral, stealthily built up the German Navy in defiance of
the Versailles Treaty, and then put it to use in a series of aggressions
which he had taken a leading part in planning. Von Schirach, poisoner of
a generation, initiated the German youth in Nazi doctrine, trained them
in legions for service in the SS and Wehrmacht, and delivered them up to
the Party as fanatic, unquestioning executors of its will.
Sauckel, the greatest and crudest slaver since the Pharaohs of Egypt,
produced desperately needed manpower by driving foreign peoples into the
land of bondage on a scale unknown even in the ancient days of tyranny
in the kingdom of the Nile. Jodl, betrayer of the traditions of his
profession, led the Wehrmacht in violating its own code of military
honor in order to carry out the barbarous aims of Nazi policy. Von
Papen, pious agent of an infidel regime, held the stirrup while Hitler
vaulted into the saddle, lubricated the Austrian annexation, and devoted
his diplomatic cunning to the service of Nazi objectives abroad.
Seyss-Inquart, spearhead of the Austrian fifth column, took over the
government of his own country only to make a present of it to Hitler,
and then, moving north, brought terror and oppression to the Netherlands
and pillaged its economy for the benefit of the German juggernaut. Von
Neurath, the old-school diplomat, who cast the pearls of his experience
before Nazis, guided Nazi diplomacy in the early years, soothed the
fears of prospective victims, and, as Reich Protector of Bohemia and
Moravia, strengthened the German position for the coming attack on
Poland. Speer, as Minister of Armaments and Production, joined in
planning and executing the program to dragoon prisoners of war and
foreign workers into German war industries, which waxed in output while
the laborers waned in starvation. Fritzsche, radio propaganda chief, by
manipulation of the truth goaded German public opinion into frenzied
support of the regime and anesthetized the independent judgment of the
population so that they did without question their masters’ bidding. And
Bormann, who has not accepted our invitation to this reunion, sat at the
throttle of the vast and powerful engine of the Party, guiding it in the
ruthless execution of Nazi policies, from the scourging of the Christian
Church to the lynching of captive Allied airmen.
The activities of all these defendants, despite their varied backgrounds
and talents, were joined with the efforts of other conspirators not now
in the dock, who played still other essential roles. They blend together
into one consistent and militant pattern animated by a common objective
to reshape the map of Europe by force of arms. Some of these defendants
were ardent members of the Nazi movement from its birth. Others, less
fanatical, joined the common enterprise later, after success had made
participation attractive by the promise of rewards. This group of
latter-day converts remedied a crucial defect in the ranks of the
original true believers, for as Dr. Siemers has pointed out in his
summation:
“... There were no specialists among the National Socialists for
the particular tasks. Most of the National Socialist
collaborators did not previously follow a trade requiring
technical education.”
It was the fatal weakness of the early Nazi band that it lacked
technical competence. It could not from among its own ranks make up a
government capable of carrying out all the projects necessary to realize
its aims. Therein lies the special crime and betrayal of men like
Schacht and Von Neurath, Speer and Von Papen, Raeder and Dönitz, Keitel
and Jodl. It is doubtful whether the Nazi master plan could have
succeeded without their specialized intelligence which they so willingly
put at its command. They did so with knowledge of its announced aims and
methods, and continued their services after practice had confirmed the
direction in which they were tending. Their superiority to the average
run of Nazi mediocrity is not their excuse. It is their condemnation.
The dominant fact which stands out from all the thousands of pages of
the record of this Trial is that the central crime of the whole group of
Nazi crimes—the attack on the peace of the world—was clearly and
deliberately planned. The beginning of these wars of aggression was not
an unprepared and spontaneous springing to arms by a population excited
by some current indignation. A week before the invasion of Poland Hitler
told his military commanders:
“I shall give a propagandist cause for starting war—never mind
whether it be plausible or not. The victor shall not be asked
later on whether we told the truth or not. In starting and
making a war, it is not the right that matters, but victory”
(1014-PS).
The propagandist incident was duly provided by dressing concentration
camp inmates in Polish uniforms, in order to create the appearance of a
Polish attack on a German frontier radio station (2751-PS). The plan to
occupy Belgium, Holland, and Luxembourg first appeared as early as
August 1938 in connection with the plan for attack on Czechoslovakia
(375-PS). The intention to attack became a program in May 1939, when
Hitler told his commanders that “the Dutch and Belgian air bases must be
occupied by armed forces. Declarations of neutrality must be ignored”
(L-79).
Thus, the follow-up wars were planned before the first was launched.
These were the most carefully plotted wars in all history. Scarcely a
step in their terrifying succession and progress failed to move
according to the master blueprint or the subsidiary schedules and
timetables until long after the crimes of aggression were consummated.
Nor were the war crimes and the crimes against humanity unplanned,
isolated, or spontaneous offenses. Aside from our undeniable evidence of
their plotting, it is sufficient to ask whether 6 million people could
be separated from the population of several nations on the basis of
their blood and birth, could be destroyed and their bodies disposed of,
except that the operation fitted into the general scheme of government.
Could the enslavement of 5 millions of laborers, their impressment into
service, their transportation to Germany, their allocation to work where
they would be most useful, their maintenance, if slow starvation can be
called maintenance, and their guarding have been accomplished if it did
not fit into the common plan? Could hundreds of concentration camps
located throughout Germany, built to accommodate hundreds of thousands
of victims, and each requiring labor and materials for construction,
manpower to operate and supervise, and close gearing into the
economy—could such efforts have been expended under German autocracy if
they had not suited the plan? Has the Teutonic passion for organization
suddenly become famous for its toleration of nonconforming activity?
Each part of the plan fitted into every other. The slave-labor program
meshed with the needs of industry and agriculture, and these in turn
synchronized with the military machine. The elaborate propaganda
apparatus geared with the program to dominate the people and incite them
to a war their sons would have to fight. The armament industries were
fed by the concentration camps. The concentration camps were fed by the
Gestapo. The Gestapo was fed by the spy system of the Nazi Party.
Nothing was permitted under the Nazi iron rule that was not in
accordance with the program. Everything of consequence that took place
in this regimented society was but a manifestation of a premeditated and
unfolding purpose to secure the Nazi State a place in the sun by casting
all others into darkness.
The defendants meet this overwhelming case, some by admitting a limited
responsibility, some by putting the blame on others, and some by taking
the position in effect that while there have been enormous crimes there
are no criminals. Time will not permit me to examine each individual and
particular defense, but there are certain lines of defense common to so
many cases that they deserve some consideration.
Counsel for many of the defendants seek to dismiss the conspiracy or
common planning charge on the ground that the pattern of the Nazi plan
does not fit into the concept of conspiracy applicable in German law to
the plotting of a highway robbery or a burglary. Their concept of
conspiracy is in the terms of a stealthy meeting in the dead of night,
in a secluded hideout, in which a small group of felons plot every
detail of a specific crime. The Charter forestalls resort to such
parochial and narrow concepts of conspiracy taken from local law by
using the additional and nontechnical term, “common plan.” Omitting
entirely the alternative term of “conspiracy,” the Charter reads that
“leaders, organizers, instigators, and accomplices participating in the
formulation or execution of a common plan to commit any of the described
crimes are responsible for all acts performed by any persons in
execution of such plan.”
The Charter concept of a common plan really represents the conspiracy
principle in an international context. A common plan or conspiracy to
seize the machinery of a state, to commit crimes against the peace of
the world, to blot a race out of existence, to enslave millions, and to
subjugate and loot whole nations cannot be thought of in the same terms
as the plotting of petty crimes, although the same underlying principles
are applicable. Little gangsters may plan which will carry a pistol and
which a stiletto, who will approach a victim from the front and who from
behind, and where they will waylay him. But in planning a war, the
pistol becomes a Wehrmacht, the stiletto, a Luftwaffe. Where to strike
is not a choice of dark alleys, but a matter of world geography. The
operation involves the manipulation of public opinion, the law of the
state, the police power, industry, and finance. The baits and bluffs
must be translated into a nation’s foreign policy. Likewise, the degree
of stealth which points to a guilty purpose in a conspiracy will depend
upon its object. The clandestine preparations of a state against
international society, although camouflaged to those abroad, might be
quite open and notorious among its own people. But stealth is not an
essential ingredient of such planning. Parts of the common plan may be
proclaimed from the housetops, as anti-Semitism was, and parts of it
kept under cover as rearmament for a long time was. It is a matter of
strategy how much of the preparation shall be made public, as was
Göring’s announcement in 1935 of the creation of an air force, and how
much shall be kept covert, as in the case of the Nazis’ use of shovels
to teach “labor corps” the manual of arms (3054-PS). The forms of this
grand type of conspiracy are amorphous, the means are opportunistic, and
neither can divert the law from getting at the substance of things.
The defendants contend, however, that there could be no conspiracy
involving aggressive war because: (1) None of the Nazis wanted war; (2)
rearmament was only intended to provide the strength to make Germany’s
voice heard in the family of nations; and (3) the wars were not in fact
aggressive wars but were defensive against a “Bolshevik menace.”
When we analyze the argument that the Nazis did not want war it comes
down, in substance, to this: “The record looks bad
indeed—objectively—but when you consider the state of my
mind—subjectively I hated war. I knew the horrors of war. I wanted
peace.” I am not so sure of this. I am even less willing to accept
Göring’s description of the General Staff as pacifist. However, it will
not injure our case to admit that as an abstract proposition none of
these defendants liked war. But they wanted things which they knew they
could not get without war. They wanted their neighbors’ lands and goods.
Their philosophy seems to be that if the neighbors would not acquiesce,
then they are the aggressors and are to blame for the war. The fact is,
however, that war never became terrible to the Nazis until it came home
to them, until it exposed their deceptive assurances to the German
people that German cities, like the ruined one in which we meet, would
be invulnerable. From then on, war was terrible.
But again the defendants claim, “To be sure, we were building guns. But
not to shoot. They were only to give us weight in negotiating.” At its
best this argument amounts to a contention that the military forces were
intended for blackmail, not for battle. The threat of military invasion
which forced the Austrian Anschluss, the threats which preceded Munich,
and Göring’s threat to bomb the beautiful city of Prague if the
President of Czechoslovakia did not consent to a Protectorate, are
examples of what the defendants have in mind when they talk of arming to
back negotiation.