The possibility of a direct attack on the United States was considered

and discussed as a matter for the future. Major Von Falkenstein, the

Luftwaffe liaison officer with the Operations Staff of the OKW,

summarizing military problems which needed discussion in Berlin in

October of 1940, spoke of the possibility “of the prosecution of the war

against America at a later date.” It is clear, too, that the German

policy of keeping America out of the war, if possible, did not prevent

Germany promising support to Japan even against the United States. On 4

April 1941 Hitler told Matsuoka, the Japanese Foreign Minister, in the

presence of the Defendant Von Ribbentrop, that Germany would “strike

without delay” if a Japanese attack on Singapore should lead to war

between Japan and the United States. The next day Von Ribbentrop himself

urged Matsuoka to bring Japan into the war.

On 28 November 1941, 10 days before the attack on Pearl Harbor, Von

Ribbentrop encouraged Japan, through her Ambassador in Berlin, to attack

Great Britain and the United States, and stated that should Japan become

engaged in a war with the United States, Germany would join the war

immediately. A few days later, Japanese representatives told Germany and

Italy that Japan was preparing to attack the United States, and asked

for their support. Germany and Italy agreed to do this, although in the

Tripartite Pact, Italy and Germany had undertaken to assist Japan only

if she were attacked. When the assault on Pearl Harbor did take place,

the Defendant Von Ribbentrop is reported to have been “overjoyed”, and

later, at a ceremony in Berlin, when a German medal was awarded to

Oshima, the Japanese Ambassador, Hitler indicated his approval of the

tactics which the Japanese had adopted of negotiating with the United

States as long as possible, and then striking hard without any

declaration of war.

Although it is true that Hitler and his colleagues originally did not

consider that a war with the United States would be beneficial to their

interest, it is apparent that in the course of 1941 that view was

revised, and Japan was given every encouragement to adopt a policy which

would almost certainly bring the United States into the war. And when

Japan attacked the United States fleet in Pearl Harbor and thus made

aggressive war against the United States, the Nazi Government caused

Germany to enter that war at once on the side of Japan by declaring war

themselves on the United States.

_Violations of International Treaties_

The Charter defines as a crime the planning or waging of war that is a

war of aggression or a war in violation of international treaties. The

Tribunal has decided that certain of the defendants planned and waged

aggressive wars against 12 nations, and were therefore guilty of this

series of crimes. This makes it unnecessary to discuss the subject in

further detail, or even to consider at any length the extent to which

these aggressive wars were also “wars in violation of international

treaties, agreements, or assurances.”

These treaties are set out in Appendix C of the Indictment. Those of

principal importance are the following.

_Hague Conventions_

In the 1899 Convention the signatory powers agreed: “before an appeal to

arms . . . to have recourse, as far as circumstances allow, to the good

offices or mediation of one or more friendly powers.” A similar clause

was inserted in the Convention for Pacific Settlement of International

Disputes of 1907. In the accompanying Convention Relative to Opening of

Hostilities, Article I contains this far more specific language: “The

Contracting Powers recognize that hostilities between them must not

commence without a previous and explicit warning, in the form of either

a declaration of war, giving reasons, or an ultimatum with a conditional

declaration of war.” Germany was a party to these conventions.

_Versailles Treaty_

Breaches of certain provisions of the Versailles Treaty are also relied

on by the Prosecution—Not to fortify the left bank of the Rhine

(Articles 42-44); to “respect strictly the independence of Austria”

(Article 80); renunciation of any rights in Memel (Article 99) and the

Free City of Danzig (Article 100); the recognition of the independence

of the Czechoslovak State; and the military, naval, and air clauses

against German rearmament found in Part V. There is no doubt that action

was taken by the German Government contrary to all these provisions, the

details of which are set out in Appendix C. With regard to the Treaty of

Versailles, the matters relied on are:

1. The violation of Articles 42 to 44 in respect of the demilitarized

zone of the Rhineland;

2. The annexation of Austria on 13 March 1938, in violation of Article

80;

3. The incorporation of the district of Memel on 22 March 1939, in

violation of Article 99;

4. The incorporation of the Free City of Danzig on 1 September 1939, in

violation of Article 100;

5. The incorporation of the provinces of Bohemia and Moravia on 16 March

1939, in violation of Article 81;

6. The repudiation of the military, naval, and air clauses of the

Treaty, in or about March of 1935.

On 21 May 1935 Germany announced that, whilst renouncing the disarmament

clauses of the Treaty, she would still respect the territorial

limitations, and would comply with the Locarno Pact. (With regard to the

first five breaches alleged, therefore, the Tribunal finds the

allegation proved.)

_Treaties of Mutual Guarantee, Arbitration, and Non-Aggression_

It is unnecessary to discuss in any detail the various treaties entered

into by Germany with other Powers. Treaties of mutual guarantee were

signed by Germany at Locarno in 1925, with Belgium, France, Great

Britain, and Italy, assuring the maintenance of the territorial _status

quo_. Arbitration treaties were also executed by Germany at Locarno with

Czechoslovakia, Belgium, and Poland.

Article I of the latter treaty is typical, providing: “All disputes of

every kind between Germany and Poland . . . which it may not be possible

to settle amicably by the normal methods of diplomacy, shall be

submitted for decision to an arbitral tribunal . . . .”

Conventions of Arbitration and Conciliation were entered into between

Germany, the Netherlands, and Denmark in 1926; and between Germany and

Luxembourg in 1929. Non-aggression treaties were executed by Germany

with Denmark and Russia in 1939.

_Kellogg-Briand Pact_

The Pact of Paris was signed on 27 August 1928 by Germany, the United

States, Belgium, France, Great Britain, Italy, Japan, Poland, and other

countries; and subsequently by other Powers. The Tribunal has made full

reference to the nature of this Pact and its legal effect in another

part of this judgment. It is therefore not necessary to discuss the

matter further here, save to state that in the opinion of the Tribunal

this Pact was violated by Germany in all the cases of aggressive war

charged in the Indictment. It is to be noted that on 26 January 1934

Germany signed a Declaration for the Maintenance of Permanent Peace with

Poland, which was explicitly based on the Pact of Paris, and in which

the use of force was outlawed for a period of 10 years.

The Tribunal does not find it necessary to consider any of the other

treaties referred to in the Appendix, or the repeated agreements and

assurances of her peaceful intentions entered into by Germany.

_The Law of the Charter_

The jurisdiction of the Tribunal is defined in the Agreement and

Charter, and the crimes coming within the jurisdiction of the Tribunal,

for which there shall be individual responsibility, are set out in

Article 6. The law of the Charter is decisive, and binding upon the

Tribunal.

The making of the Charter was the exercise of the sovereign legislative

power by the countries to which the German Reich unconditionally

surrendered; and the undoubted right of these countries to legislate for

the occupied territories has been recognized by the civilized world. The

Charter is not an arbitrary exercise of power on the part of the

victorious Nations, but in the view of the Tribunal, as will be shown,

it is the expression of international law existing at the time of its

creation; and to that extent is itself a contribution to international

law.

The Signatory Powers created this Tribunal, defined the law it was to

administer, and made regulations for the proper conduct of the Trial. In

doing so, they have done together what any one of them might have done

singly; for it is not to be doubted that any nation has the right thus

to set up special courts to administer law. With regard to the

constitution of the Court, all that the defendants are entitled to ask

is to receive a fair trial on the facts and law.

The Charter makes the planning or waging of a war of aggression or a war

in violation of international treaties a crime; and it is therefore not

strictly necessary to consider whether and to what extent aggressive war

was a crime before the execution of the London Agreement. But in view of

the great importance of the questions of law involved, the Tribunal has

heard full argument from the Prosecution and the Defense, and will

express its view on the matter.

It was urged on behalf of the defendants that a fundamental principle of

all law—international and domestic—is that there can be no punishment

of crime without a pre-existing law. “_Nullum crimen sine lege, nulla

poena sine lege._“ It was submitted that _ex post facto_ punishment is

abhorrent to the law of all civilized nations, that no sovereign power

had made aggressive war a crime at the time that the alleged criminal

acts were committed, that no statute had defined aggressive war, that no

penalty had been fixed for its commission, and no court had been created

to try and punish offenders.

In the first place, it is to be observed that the maxim _nullum crimen

sine lege_ is not a limitation of sovereignty, but is in general a

principle of justice. To assert that it is unjust to punish those who in

defiance of treaties and assurances have attacked neighboring states

without warning is obviously untrue, for in such circumstances the

attacker must know that he is doing wrong, and so far from it being

unjust to punish him, it would be unjust if his wrong were allowed to go

unpunished. Occupying the positions they did in the Government of

Germany, the defendants, or at least some of them must have known of the

treaties signed by Germany, outlawing recourse to war for the settlement

of international disputes; they must have known that they were acting in

defiance of all international law when in complete deliberation they

carried out their designs of invasion and aggression. On this view of

the case alone, it would appear that the maxim has no application to the

present facts.

This view is strongly reinforced by a consideration of the state of

international law in 1939, so far as aggressive war is concerned. The

General Treaty for the Renunciation of War of 27 August 1928, more

generally known as the Pact of Paris or the Kellogg-Briand Pact, was

binding on 63 nations, including Germany, Italy and Japan at the

outbreak of war in 1939. In the preamble, the signatories declared that

they were:

“Deeply sensible of their solemn duty to promote the welfare of

mankind; persuaded that the time has come when a frank

renunciation of war as an instrument of national policy should

be made to the end that the peaceful and friendly relations now

existing between their peoples should be perpetuated . . . . all

changes in their relations with one another should be sought

only by pacific means . . . thus uniting civilised nations of

the world in a common renunciation of war as an instrument of

their national policy . . . .”

The first two articles are as follows:

“Article I. The High Contracting Parties solemnly declare in the

names of their respective peoples that they condemn recourse to

war for the solution of international controversies and renounce

it as an instrument of national policy in their relations to one

another.”

“Article II. The High Contracting Parties agree that the

settlement or solution of all disputes or conflicts of whatever

nature or whatever origin they may be, which may arise among

them, shall never be sought except by pacific means.”

The question is, what was the legal effect of this Pact? The nations who

signed the Pact or adhered to it unconditionally condemned recourse to

war for the future as an instrument of policy, and expressly renounced

it. After the signing of the Pact, any nation resorting to war as an

instrument of national policy breaks the Pact. In the opinion of the

Tribunal, the solemn renunciation of war as an instrument of national

policy necessarily involves the proposition that such a war is illegal

in international law; and that those who plan and wage such a war, with

its inevitable and terrible consequences, are committing a crime in so

doing. War for the solution of international controversies undertaken as

an instrument of national policy certainly includes a war of aggression,

and such a war is therefore outlawed by the Pact. As Mr. Henry L.

Stimson, then Secretary of State of the United States, said in 1932:

“War between nations was renounced by the signatories of the

Kellogg-Briand Treaty. This means that it has become throughout

practically the entire world . . . an illegal thing. Hereafter,

when nations engage in armed conflict, either one or both of

them must be termed violators of this general treaty law . . . .

We denounce them as law breakers.”

But it is argued that the Pact does not expressly enact that such wars

are crimes, or set up courts to try those who make such wars. To that

extent the same is true with regard to the laws of war contained in the

Hague Convention. The Hague Convention of 1907 prohibited resort to

certain methods of waging war. These included the inhumane treatment of

prisoners, the employment of poisoned weapons, the improper use of flags

of truce, and similar matters. Many of these prohibitions had been

enforced long before the date of the Convention; but since 1907 they

have certainly been crimes, punishable as offenses against the laws of

war; yet the Hague Convention nowhere designates such practices as

criminal, nor is any sentence prescribed, nor any mention made of a

court to try and punish offenders. For many years past, however,

military tribunals have tried and punished individuals guilty of

violating the rules of land warfare laid down by this Convention. In the

opinion of the Tribunal, those who wage aggressive war are doing that

which is equally illegal, and of much greater moment than a breach of

one of the rules of the Hague Convention. In interpreting the words of

the Pact, it must be remembered that international law is not the

product of an international legislature, and that such international

agreements as the Pact of Paris have to deal with general principles of

law, and not with administrative matters of procedure. The law of war is

to be found not only in treaties, but in the customs and practices of

states which gradually obtained universal recognition, and from the

general principles of justice applied by jurists and practised by

military courts. This law is not static, but by continual adaptation

follows the needs of a changing world. Indeed, in many cases treaties do

no more than express and define for more accurate reference the

principles of law already existing.

The view which the Tribunal takes of the true interpretation of the Pact

is supported by the international history which preceded it. In the year

1923 the draft of a Treaty of Mutual Assistance was sponsored by the

League of Nations. In Article I the Treaty declared “that aggressive war

is an international crime”, and that the parties would “undertake that

no one of them will be guilty of its commission”. The draft treaty was

submitted to 29 states, about half of whom were in favor of accepting

the text. The principal objection appeared to be in the difficulty of

defining the acts which would constitute “aggression”, rather than any

doubt as to the criminality of aggressive war. The preamble to the

League of Nations 1924 Protocol for the Pacific Settlement of

International Disputes (“Geneva Protocol”), after “recognising the

solidarity of the members of the international community”, declared that

“a war of aggression constitutes a violation of this solidarity and is

an international crime.” It went on to declare that the contracting

parties were “desirous of facilitating the complete application of the

system provided in the Covenant of the League of Nations for the pacific

settlement of disputes between the States and of ensuring the repression

of international crimes.” The Protocol was recommended to the members of

the League of Nations by a unanimous resolution in the assembly of the

48 members of the League. These members included Italy and Japan, but

Germany was not then a member of the League.

Although the Protocol was never ratified, it was signed by the leading

statesmen of the world, representing the vast majority of the civilized

states and peoples, and may be regarded as strong evidence of the

intention to brand aggressive war as an international crime.

At the meeting of the Assembly of the League of Nations on 24 September

1927, all the delegations then present (including the German, the

Italian, and the Japanese), unanimously adopted a declaration concerning

wars of aggression. The preamble to the declaration stated:

“The Assembly:

Recognizing the solidarity which unites the community of

nations;

Being inspired by a firm desire for the maintenance of general

peace;

Being convinced that a war of aggression can never serve as a

means of settling international disputes, and is in consequence

an international crime . . . .”

The unanimous resolution of 18 February 1928 of 21 American republics at

the Sixth (Havana) Pan-American Conference, declared that “war of

aggression constitutes an international crime against the human

species”.

All these expressions of opinion, and others that could be cited, so

solemnly made, reinforce the construction which the Tribunal placed upon

the Pact of Paris, that resort to a war of aggression is not merely

illegal, but is criminal. The prohibition of aggressive war demanded by

the conscience of the world, finds its expression in the series of pacts

and treaties to which the Tribunal has just referred.

It is also important to remember that Article 227 of the Treaty of

Versailles provided for the constitution of a special Tribunal, composed

of representatives of five of the Allied and Associated Powers which had

been belligerents in the first World War opposed to Germany, to try the

former German Emperor “for a supreme offense against international

morality and the sanctity of treaties.” The purpose of this trial was

expressed to be “to vindicate the solemn obligations of international

undertakings, and the validity of international morality”. In Article

228 of the Treaty, the German Government expressly recognized the right

of the Allied Powers “to bring before military tribunals persons accused

of having committed acts in violation of the laws and customs of war”.

It was submitted that international law is concerned with the actions of

sovereign States, and provides no punishment for individuals; and

further, that where the act in question is an act of State, those who

carry it out are not personally responsible, but are protected by the

doctrine of the sovereignty of the State. In the opinion of the

Tribunal, both these submissions must be rejected. That international

law imposes duties and liabilities upon individuals as well as upon

States has long been recognized. In the recent case of Ex Parte Quirin

(1942 317 U.S. 1), before the Supreme Court of the United States,

persons were charged during the war with landing in the United States

for purposes of spying and sabotage. The late Chief Justice Stone,

speaking for the Court, said:

“From the very beginning of its history this Court has applied

the law of war as including that part of the law of nations

which prescribes for the conduct of war, the status, rights, and

duties of enemy nations as well as enemy individuals.”

He went on to give a list of cases tried by the Courts, where individual

offenders were charged with offenses against the laws of nations, and

particularly the laws of war. Many other authorities could be cited, but

enough has been said to show that individuals can be punished for

violations of international law. Crimes against international law are

committed by men, not by abstract entities, and only by punishing

individuals who commit such crimes can the provisions of international

law be enforced.

The provisions of Article 228 of the Treaty of Versailles already

referred to illustrate and enforce this view of individual

responsibility.

The principle of international law, which under certain circumstances,

protects the representatives of a state, cannot be applied to acts which

are condemned as criminal by international law. The authors of these

acts cannot shelter themselves behind their official position in order

to be freed from punishment in appropriate proceedings. Article 7 of the

Charter expressly declares:

“The official position of Defendants, whether as heads of State,

or responsible officials in Government departments, shall not be

considered as freeing them from responsibility, or mitigating

punishment.”

On the other hand the very essence of the Charter is that individuals

have international duties which transcend the national obligations of

obedience imposed by the individual state. He who violates the laws of

war cannot obtain immunity while acting in pursuance of the authority of

the state if the state in authorizing action moves outside its

competence under international law.

It was also submitted on behalf of most of these defendants that in

doing what they did they were acting under the orders of Hitler, and

therefore cannot be held responsible for the acts committed by them in

carrying out these orders. The Charter specifically provides in Article

8:

“The fact that the Defendant acted pursuant to order of his

Government or of a superior shall not free him from

responsibility, but may be considered in mitigation of

punishment.”

The provisions of this article are in conformity with the law of all

nations. That a soldier was ordered to kill or torture in violation of

the international law of war has never been recognized as a defense to

such acts of brutality, though, as the Charter here provides, the order

may be urged in mitigation of the punishment. The true test, which is

found in varying degrees in the criminal law of most nations, is not the

existence of the order, but whether moral choice was in fact possible.

_The Law as to the Common Plan or Conspiracy_

In the previous recital of the facts relating to aggressive war, it is

clear that planning and preparation had been carried out in the most

systematic way at every stage of the history.

Planning and preparation are essential to the making of war. In the

opinion of the Tribunal aggressive war is a crime under international

law. The Charter defines this offense as planning, preparation,

initiation, or waging of a war of aggression “or participation in a

Common Plan or Conspiracy for the accomplishment . . . of the

foregoing”. The Indictment follows this distinction. Count One charges

the Common Plan or Conspiracy. Count Two charges the planning and waging

of war. The same evidence has been introduced to support both Counts. We

shall therefore discuss both Counts together, as they are in substance

the same. The defendants have been charged under both Counts, and their

guilt under each Count must be determined.

The “Common Plan or Conspiracy” charged in the Indictment covers 25

years, from the formation of the Nazi Party in 1919 to the end of the

war in 1945. The Party is spoken of as “the instrument of cohesion among

the Defendants” for carrying out the purposes of the conspiracy—the

overthrowing of the Treaty of Versailles, acquiring territory lost by

Germany in the last war and “Lebensraum” in Europe, by the use, if

necessary, of armed force, of aggressive war. The “seizure of power” by

the Nazis, the use of terror, the destruction of trade unions, the

attack on Christian teaching and on churches, the persecution of Jews,

the regimentation of youth—all these are said to be steps deliberately

taken to carry out the common plan. It found expression, so it is

alleged, in secret rearmament, the withdrawal by Germany from the

Disarmament Conference and the League of Nations, universal military

service, and seizure of the Rhineland. Finally, according to the

Indictment, aggressive action was planned and carried out against

Austria and Czechoslovakia in 1936-1938, followed by the planning and

waging of war against Poland; and, successively, against 10 other

countries.

The Prosecution says, in effect, that any significant participation in

the affairs of the Nazi Party or Government is evidence of a

participation in a conspiracy that is in itself criminal. Conspiracy is

not defined in the Charter. But in the opinion of the Tribunal the

conspiracy must be clearly outlined in its criminal purpose. It must not

be too far removed from the time of decision and of action. The

planning, to be criminal, must not rest merely on the declarations of a

party program, such as are found in the 25 points of the Nazi Party,

announced in 1920, or the political affirmations expressed in _Mein

Kampf_ in later years. The Tribunal must examine whether a concrete plan

to wage war existed, and determine the participants in that concrete

plan.

It is not necessary to decide whether a single master conspiracy between

the defendants has been established by the evidence. The seizure of

power by the Nazi Party, and the subsequent domination by the Nazi State

of all spheres of economic and social life must of course be remembered

when the later plans for waging war are examined. That plans were made

to wage war, as early as 5 November 1937, and probably before that, is

apparent. And thereafter, such preparations continued in many

directions, and against the peace of many countries. Indeed the threat

of war—and war itself if necessary—was an integral part of the Nazi

policy. But the evidence establishes with certainty the existence of

many separate plans rather than a single conspiracy embracing them all.

That Germany was rapidly moving to complete dictatorship from the moment

that the Nazis seized power, and progressively in the direction of war,

has been overwhelmingly shown in the ordered sequence of aggressive acts

and wars already set out in this Judgment.

In the opinion of the Tribunal, the evidence establishes the common

planning to prepare and wage war by certain of the defendants. It is

immaterial to consider whether a single conspiracy to the extent and

over the time set out in the Indictment has been conclusively proved.

Continued planning, with aggressive war as the objective, has been

established beyond doubt. The truth of the situation was well stated by

Paul Schmidt, official interpreter of the German Foreign Office, as

follows:

“The general objectives of the Nazi leadership were apparent

from the start, namely the domination of the European Continent,

to be achieved first by the incorporation of all German speaking

groups in the Reich, and secondly, by territorial expansion

under the slogan “Lebensraum”. The execution of these basic

objectives, however, seemed to be characterized by

improvisation. Each succeeding step was apparently carried out

as each new situation arose, but all consistent with the

ultimate objectives mentioned above.”

The argument that such common planning cannot exist where there is

complete dictatorship is unsound. A plan in the execution of which a

number of persons participate is still a plan, even though conceived by

only one of them; and those who execute the plan do not avoid

responsibility by showing that they acted under the direction of the man

who conceived it. Hitler could not make aggressive war by himself. He

had to have the co-operation of statesmen, military leaders, diplomats,

and business men. When they, with knowledge of his aims, gave him their

co-operation, they made themselves parties to the plan he had initiated.

They are not to be deemed innocent because Hitler made use of them, if

they knew what they were doing. That they were assigned to their tasks

by a dictator does not absolve them from responsibility for their acts.

The relation of leader and follower does not preclude responsibility

here any more than it does in the comparable tyranny of organized

domestic crime.

Count One, however, charges not only the conspiracy to commit aggressive

war, but also to commit War Crimes and Crimes against Humanity. But the

Charter does not define as a separate crime any conspiracy except the

one to commit acts of aggressive war. Article 6 of the Charter provides:

“Leaders, organizers, instigators, and accomplices participating

in the formulation or execution of a Common Plan or Conspiracy

to commit any of the foregoing crimes are responsible for all

acts performed by any persons in execution of such plan.”

In the opinion of the Tribunal these words do not add a new and separate

crime to those already listed. The words are designed to establish the

responsibility of persons participating in a common plan. The Tribunal

will therefore disregard the charges in Count One that the defendants

conspired to commit War Crimes and Crimes against Humanity, and will

consider only the common plan to prepare, initiate, and wage aggressive

war.

_War Crimes and Crimes against Humanity_

The evidence relating to War Crimes has been overwhelming, in its volume

and its detail. It is impossible for this Judgment adequately to review

it, or to record the mass of documentary and oral evidence that has been

presented. The truth remains that War Crimes were committed on a vast

scale, never before seen in the history of war. They were perpetrated in

all the countries occupied by Germany, and on the High Seas, and were

attended by every conceivable circumstance of cruelty and horror. There

can be no doubt that the majority of them arose from the Nazi conception

of “total war”, with which the aggressive wars were waged. For in this

conception of “total war”, the moral ideas underlying the conventions

which seek to make war more humane are no longer regarded as having

force or validity. Everything is made subordinate to the overmastering

dictates of war. Rules, regulations, assurances, and treaties all alike

are of no moment; and so, freed from the restraining influence of

international law, the aggressive war is conducted by the Nazi leaders

in the most barbaric way. Accordingly, War Crimes were committed when

and wherever the Führer and his close associates thought them to be

advantageous. They were for the most part the result of cold and

criminal calculation.

On some occasions, War Crimes were deliberately planned long in advance.

In the case of the Soviet Union, the plunder of the territories to be

occupied, and the ill-treatment of the civilian population, were settled

in minute detail before the attack was begun. As early as the autumn of

1940, the invasion of the territories of the Soviet Union was being

considered. From that date onwards, the methods to be employed in

destroying all possible opposition were continuously under discussion.

Similarly, when planning to exploit the inhabitants of the occupied

countries for slave labor on the very greatest scale, the German

Government conceived it as an integral part of the war economy, and

planned and organized this particular War Crime down to the last

elaborate detail.

Other War Crimes, such as the murder of prisoners of war who had escaped

and been recaptured, or the murder of Commandos or captured airmen, or

the destruction of the Soviet Commissars, were the result of direct

orders circulated through the highest official channels.

The Tribunal proposes, therefore, to deal quite generally with the

question of War Crimes, and to refer to them later when examining the

responsibility of the individual defendants in relation to them.

Prisoners of war were ill-treated and tortured and murdered, not only in

defiance of the well-established rules of international law, but in

complete disregard of the elementary dictates of humanity. Civilian

populations in occupied territories suffered the same fate. Whole

populations were deported to Germany for the purposes of slave labor

upon defense works, armament production, and similar tasks connected

with the war effort. Hostages were taken in very large numbers from the

civilian populations in all the occupied countries, and were shot as

suited the German purposes. Public and private property was

systematically plundered and pillaged in order to enlarge the resources

of Germany at the expense of the rest of Europe. Cities and towns and

villages were wantonly destroyed without military justification or

necessity.

_Murder and Ill-Treatment of Prisoners of War_

Article 6 (b) of the Charter defines War Crimes in these words:

“War Crimes: namely, violations of the laws or customs of war.

Such violations shall include, but not be limited to, murder,

ill-treatment or deportation to slave labor or for any other

purpose of civilian population of or in occupied territory,

murder or ill-treatment of prisoners of war or persons on the

seas, killing of hostages, plunder of public or private

property, wanton destruction of cities, towns, or villages, or

devastation not justified by military necessity.”

In the course of the war, many Allied soldiers who had surrendered to

the Germans were shot immediately, often as a matter of deliberate,

calculated policy. On 18 October 1942, the Defendant Keitel circulated a

directive authorized by Hitler, which ordered that all members of Allied

“Commando” units, often when in uniform and whether armed or not, were

to be “slaughtered to the last man”, even if they attempted to

surrender. It was further provided that if such Allied troops came into

the hands of the military authorities after being first captured by the

local police, or in any other way, they should be handed over

immediately to the SD. This order was supplemented from time to time,

and was effective throughout the remainder of the war, although after

the Allied landings in Normandy in 1944 it was made clear that the order

did not apply to “Commandos” captured within the immediate battle area.

Under the provisions of this order, Allied “Commando” troops, and other

military units operating independently, lost their lives in Norway,

France, Czechoslovakia, and Italy. Many of them were killed on the spot,

and in no case were those who were executed later in concentration camps

ever given a trial of any kind. For example, an American military

mission which landed behind the German front in the Balkans in January

1945, numbering about twelve to fifteen men and wearing uniform, were

taken to Mauthausen under the authority of this order, and according to

the affidavit of Adolf Zutte, the adjutant of the Mauthausen

Concentration Camp, all of them were shot.

In March 1944 the OKH issued the “Kugel” or “Bullet” decree, which

directed that every escaped officer and NCO prisoner of war who had not

been put to work, with the exception of British and American prisoners

of war, should on recapture be handed over to the SIPO and SD. This

order was distributed by the SIPO and SD to their regional offices.

These escaped officers and NCO’s were to be sent to the concentration

camp at Mauthausen, to be executed upon arrival, by means of a bullet

shot in the neck.

In March 1944 fifty officers of the British Royal Air Force, who escaped

from the camp at Sagan where they were confined as prisoners, were shot

on recapture, on the direct orders of Hitler. Their bodies were

immediately cremated, and the urns containing their ashes were returned

to the camp. It was not contended by the defendants that this was other

than plain murder, in complete violation of international law.

When Allied airmen were forced to land in Germany, they were sometimes

killed at once by the civilian population. The police were instructed

not to interfere with these killings, and the Ministry of Justice was

informed that no one should be prosecuted for taking part in them.

The treatment of Soviet prisoners of war was characterized by particular

inhumanity. The death of so many of them was not due merely to the

action of individual guards, or to the exigencies of life in the camps.

It was the result of systematic plans to murder. More than a month

before the German invasion of the Soviet Union, the OKW were making

special plans for dealing with political representatives serving with

the Soviet Armed Forces who might be captured. One proposal was that

“political Commissars _of the Army_ are not recognized as _Prisoners of

War_, and are to be _liquidated_ at the latest in the transient prisoner

of war camps.” The Defendant Keitel gave evidence that instructions

incorporating this proposal were issued to the German Army.

On 8 September 1941 regulations for the treatment of Soviet prisoners of

war in all prisoner of war camps were issued, signed by General

Reinecke, the head of the prisoner of war department of the High

Command. Those orders stated:

“The Bolshevist soldier has therefore lost all claim to

treatment as an honorable opponent, in accordance with the

Geneva Convention . . . . The order for ruthless and energetic

action must be given at the slightest indication of

insubordination, especially in the case of Bolshevist fanatics.

Insubordination, active or passive resistance, must be broken

immediately by force of arms (bayonets, butts, and firearms)

. . . . Anyone carrying out the order who does not use his

weapons, or does so with insufficient energy, is punishable

. . . . Prisoners of war attempting escape are to be fired on

without previous challenge. No warning shot must ever be fired

. . . . The use of arms against prisoners of war is as a rule

legal.”

The Soviet prisoners of war were left without suitable clothing; the

wounded without medical care; they were starved, and in many cases left

to die.

On 17 July 1941, the Gestapo issued an order providing for the killing

of all Soviet prisoners of war who were or might be dangerous to

National Socialism. The order recited:

“The mission of the Commanders of the SIPO and SD stationed in

Stalags is the political investigation of all camp inmates, the

elimination and further ‘treatment’ (a) of all political,

criminal, or in some other way unbearable elements among them,

(b) of those persons who could be used for the reconstruction of

the occupied territories . . . . Further, the commanders must

make efforts from the beginning to seek out among the prisoners

elements which appear reliable, regardless of whether there are

Communists concerned or not, in order to use them for

intelligence purposes inside of the camp, and if advisable,

later in the occupied territories also. By use of such

informers, and by use of all other existing possibilities, the

discovery of all elements to be eliminated among the prisoners

must proceed step by step at once . . . .”

“Above all, the following must be discovered: all important

functionaries of State and Party, especially professional

revolutionaries . . . all People’s Commissars in the Red Army,

leading personalities of the State . . . leading personalities

of the business world, members of the Soviet Russian

Intelligence, all Jews, all persons who are found to be

agitators or fanatical Communists. Executions are not to be held

in the camp or in the immediate vicinity of the camp . . . . The

prisoners are to be taken for special treatment if possible into

the former Soviet Russian territory.”

The affidavit of Warlimont, Deputy Chief of Staff of the Wehrmacht, and

the testimony of Ohlendorf, former Chief of Amt III of the RSHA, and of

Lahousen, the head of one of the sections of the Abwehr, the Wehrmacht’s

Intelligence Service, all indicate the thoroughness with which this

order was carried out.

The affidavit of Kurt Lindown, a former Gestapo official,

states: “. . . . There existed in the prisoner of war camps on

the Eastern Front small screening teams (Einsatz commandos),

headed by lower ranking members of the Secret Police (Gestapo).

These teams were assigned to the camp commanders and had the job

of segregating the prisoners of war who were candidates for

execution according to the orders that had been given, and to

report them to the office of the Secret Police.”

On 23 October 1941 the camp commander of the Gross Rosen concentration

camp reported to Müller, Chief of the Gestapo, a list of the Soviet

prisoners of war who had been executed there on the previous day.

An account of the general conditions and treatment of Soviet prisoners

of war during the first eight months after the German attack upon Russia

was given in a letter which the Defendant Rosenberg sent to the

Defendant Keitel on 28 February 1942:

“The fate of the Soviet prisoners of war in Germany is on the

contrary a tragedy of the greatest extent . . . . A large part

of them has starved, or died because of the hazards of the

weather. Thousands also died from spotted fever.

“The camp commanders have forbidden the civilian population to

put food at the disposal of the prisoners, and they have rather

let them starve to death.

“In many cases, when prisoners of war could no longer keep up on

the march because of hunger and exhaustion, they were shot

before the eyes of the horrified population, and the corpses

were left.

“In numerous camps, no shelter for the prisoners of war was

provided at all. They lay under the open sky during rain or

snow. Even tools were not made available to dig holes or caves.”

In some cases Soviet prisoners of war were branded with a special

permanent mark. There was put in evidence the OKW order dated 20 July

1942 which laid down that:

“The brand is to take the shape of an acute angle of about 45

degrees, with the long side to be 1 cm. in length, pointing

upwards and burnt on the left buttock . . . . This brand is made

with the aid of a lancet available in any military unit. The

coloring used is Chinese ink.”

The carrying out of this order was the responsibility of the military

authorities, though it was widely circulated by the Chief of the SIPO

and the SD to German police officials for information.

Soviet prisoners of war were also made the subject of medical

experiments of the most cruel and inhuman kind. In July 1943

experimental work was begun in preparation for a campaign of

bacteriological warfare; Soviet prisoners of war were used in these

medical experiments, which more often than not proved fatal. In

connection with this campaign for bacteriological warfare, preparations

were also made for the spreading of bacterial emulsions from planes,

with the object of producing widespread failures of crops and consequent

starvation. These measures were never applied, possibly because of the

rapid deterioration of Germany’s military position.

The argument in defense of the charge with regard to the murder and

ill-treatment of Soviet prisoners of war, that the U.S.S.R. was not a

party to the Geneva Convention, is quite without foundation. On 15

September 1941 Admiral Canaris protested against the regulations for the

treatment of Soviet prisoners of war, signed by General Reinecke on 8

September 1941. He then stated:

“The Geneva Convention for the treatment of prisoners of war is

not binding in the relationship between Germany and the U.S.S.R.

Therefore only the principles of general international law on

the treatment of prisoners of war apply. Since the 18th century

these have gradually been established along the lines that war

captivity is neither revenge nor punishment, but solely

protective custody, the only purpose of which is to prevent the

prisoners of war from further participation in the war. This

principle was developed in accordance with the view held by all

armies that it is contrary to military tradition to kill or

injure helpless people . . . . The decrees for the treatment of

Soviet prisoners of war enclosed are based on a fundamentally

different view-point.”

This protest, which correctly stated the legal position, was ignored.

The Defendant Keitel made a note on this memorandum:

“The objections arise from the military concept of chivalrous

warfare. This is the destruction of an ideology. Therefore I

approve and back the measures.”

_Murder and Ill-treatment of Civilian Population_

Article 6 (b) of the Charter provides that “ill-treatment . . . of

civilian population of or in occupied territory . . . killing of

hostages . . . wanton destruction of cities, towns, or villages” shall

be a war crime. In the main, these provisions are merely declaratory of

the existing laws of war as expressed by the Hague Convention, Article

46, which stated: “Family honor and rights, the lives of persons and

private property, as well as religious convictions and practice must be

respected.”

The territories occupied by Germany were administered in violation of

the laws of war. The evidence is quite overwhelming of a systematic rule

of violence, brutality, and terror. On 7 December 1941 Hitler issued the

directive since known as the “Nacht und Nebel Erlass” (Night and Fog

Decree), under which persons who committed offenses against the Reich or

the German forces in occupied territories, except where the death

sentence was certain, were to be taken secretly to Germany and handed

over to the SIPO and SD for trial or punishment in Germany. This decree

was signed by the Defendant Keitel. After these civilians arrived in

Germany, no word of them was permitted to reach the country from which

they came, or their relatives; even in cases when they died awaiting

trial the families were not informed, the purpose being to create

anxiety in the minds of the family of the arrested person. Hitler’s

purpose in issuing this decree was stated by the Defendant Keitel in a

covering letter, dated 12 December 1941, to be as follows:

“Efficient and enduring intimidation can only be achieved either

by capital punishment or by measures by which the relatives of

the criminal and the population do not know the fate of the

criminal. This aim is achieved when the criminal is transferred

to Germany.”

Even persons who were only suspected of opposing any of the policies of

the German occupation authorities were arrested, and on arrest were

interrogated by the Gestapo and the SD in the most shameful manner. On

12 June 1942 the Chief of the SIPO and SD published, through Müller, the

Gestapo Chief, an order authorizing the use of “third degree” methods of

interrogation, where preliminary investigation had indicated that the

person could give information on important matters, such as subversive

activities, though not for the purpose of extorting confessions of the

prisoner’s own crimes. This order provided:

“. . . . Third degree may, under this supposition, only be

employed against Communists, Marxists, Jehovah’s Witnesses,

saboteurs, terrorists, members of resistance movements,

parachute agents, anti-social elements, Polish or Soviet Russian

loafers or tramps; in all other cases my permission must first

be obtained . . . . Third degree can, according to

circumstances, consist amongst other methods of very simple diet

(bread and water), hard bunk, dark cell, deprivation of sleep,

exhaustive drilling, also in flogging (for more than twenty

strokes a doctor must be consulted).”

The brutal suppression of all opposition to the German occupation was

not confined to severe measures against suspected members of resistance

movements themselves, but was also extended to their families. On 19

July 1944 the Commander of the SIPO and SD in the district of Radom, in

Poland, published an order, transmitted through the Higher SS and Police

Leaders, to the effect that in all cases of assassination or attempted

assassination of Germans, or where saboteurs had destroyed vital

installations, not only the guilty person, but also all his or her male

relatives should be shot, and female relatives over 16 years of age put

into a concentration camp.

In the summer of 1944 the Einsatz Commando of the SIPO and SD at

Luxembourg caused persons to be confined at Sachsenhausen concentration

camp because they were relatives of deserters, and were therefore

“expected to endanger the interest of the German Reich if allowed to go

free.”

The practice of keeping hostages to prevent and to punish any form of

civil disorder was resorted to by the Germans; an order issued by the

Defendant Keitel on 16 September 1941 spoke in terms of fifty or a

hundred lives from the occupied areas of the Soviet Union for one German

life taken. The order stated that “it should be remembered that a human

life in unsettled countries frequently counts for nothing, and a

deterrent effect can be obtained only by unusual severity.” The exact

number of persons killed as a result of this policy is not known, but

large numbers were killed in France and the other occupied territories

in the West, while in the East the slaughter was on an even more

extensive scale. In addition to the killing of hostages, entire towns

were destroyed in some cases; such massacres as those of

Oradour-sur-Glane in France and Lidice in Czechoslovakia, both of which

were described to the Tribunal in detail, are examples of the organized

use of terror by the occupying forces to beat down and destroy all

opposition to their rule.

One of the most notorious means of terrorizing the people in occupied

territories was the use of concentration camps. They were first

established in Germany at the moment of the seizure of power by the Nazi

Government. Their original purpose was to imprison without trial all

those persons who were opposed to the Government, or who were in any way

obnoxious to German authority. With the aid of a secret police force,

this practice was widely extended, and in course of time concentration

camps became places of organized and systematic murder, where millions

of people were destroyed.

In the administration of the occupied territories the concentration

camps were used to destroy all opposition groups. The persons arrested

by the Gestapo were as a rule sent to concentration camps. They were

conveyed to the camps in many cases without any care whatever being

taken for them, and great numbers died on the way. Those who arrived at

the camp were subject to systematic cruelty. They were given hard

physical labor, inadequate food, clothes and shelter, and were subject

at all times to the rigors of a soulless regime, and the private whims

of individual guards. In the report of the War Crimes Branch of the

Judge Advocate’s Section of the Third U.S. Army, under date 21 June

1945, the conditions at the Flossenburg concentration camp were

investigated, and one passage may be quoted:

“Flossenburg concentration camp can best be described as a

factory dealing in death. Although this camp had in view the

primary object of putting to work the mass slave labor, another

of its primary objects was the elimination of human lives by the

methods employed in handling the prisoners. Hunger and

starvation rations, sadism, inadequate clothing, medical

neglect, disease, beatings, hangings, freezing, forced suicides,

shooting, etc. all played a major role in obtaining their

object. Prisoners were murdered at random; spite killings

against Jews were common, injections of poison and shooting in

the neck were everyday occurrences; epidemics of typhus and

spotted fever were permitted to run rampant as a means of

eliminating prisoners; life in this camp meant nothing. Killing

became a common thing, so common that a quick death was welcomed

by the unfortunate ones.”

A certain number of the concentration camps were equipped with gas

chambers for the wholesale destruction of the inmates, and with furnaces

for the burning of the bodies. Some of them were in fact used for the

extermination of Jews as part of the “final solution” of the Jewish

problem. Most of the non-Jewish inmates were used for labor, although

the conditions under which they worked made labor and death almost

synonymous terms. Those inmates who became ill and were unable to work

were either destroyed in the gas chambers or sent to special

infirmaries, where they were given entirely inadequate medical

treatment, worse food if possible than the working inmates, and left to

die.

The murder and ill-treatment of civilian populations reached its height

in the treatment of the citizens of the Soviet Union and Poland. Some

four weeks before the invasion of Russia began, special task forces of

the SIPO and SD, called Einsatz Groups, were formed on the orders of

Himmler for the purpose of following the German Armies into Russia,

combating partisans and members of Resistance Groups, and exterminating

the Jews and communist leaders and other sections of the population. In

the beginning, four such Einsatz Groups were formed, one operating in

the Baltic States, one towards Moscow, one towards Kiev, and one

operating in the south of Russia. Ohlendorf, former Chief of Amt III of

the RSHA, who led the fourth group, stated in his affidavit:

“When the German army invaded Russia, I was leader of

Einsatzgruppe D, in the southern sector, and in the course of

the year during which I was leader of the Einsatzgruppe D it

liquidated approximately 90,000 men, women, and children. The

majority of those liquidated were Jews, but there were also

among them some communist functionaries.”

In an order issued by the Defendant Keitel on 23 July 1941, and drafted

by the Defendant Jodl, it was stated that:

“In view of the vast size of the occupied areas in the East, the

forces available for establishing security in these areas will

be sufficient only if all resistance is punished, not by legal

prosecution of the guilty, but by the spreading of such terror

by the Armed Forces as is alone appropriate to eradicate every

inclination to resist among the population . . . . Commanders

must find the means of keeping order by applying suitable

Draconian measures.”

The evidence has shown that this order was ruthlessly carried out in the

territory of the Soviet Union and in Poland. A significant illustration

of the measures actually applied occurs in the document which was sent

in 1943 to the Defendant Rosenberg by the Reich Commissar for Eastern

Territories, who wrote:

“It should be possible to avoid atrocities and to bury those who

have been liquidated. To lock men, women, and children into

barns and set fire to them does not appear to be a suitable

method of combating bands, even if it is desired to exterminate

the population. This method is not worthy of the German cause,

and hurts our reputation severely.”

The Tribunal has before it an affidavit of one Hermann Graebe, dated 10

November 1945, describing the immense mass murders which he witnessed.

He was the manager and engineer in charge of the branch of the Solingen

firm of Josef Jung in Spolbunow, Ukraine, from September 1941 to January

1944. He first of all described the attack upon the Jewish ghetto at

Rowno:

“. . . . Then the electric floodlights which had been erected

all around the ghetto were switched on. SS and militia details

of four to six members entered or at least tried to enter the

houses. Where the doors and windows were closed, and the

inhabitants did not open upon the knocking, the SS men and

militia broke the windows, forced the doors with beams and

crowbars, and entered the dwelling. The owners were driven on to

the street just as they were, regardless of whether they were

dressed or whether they had been in bed. . . . Car after car was

filled. Over it hung the screaming of women and children, the

cracking of whips and rifle shots.”

Graebe then described how a mass execution at Dubno, which he witnessed

on 5 October 1942, was carried out:

“. . . . Now we heard shots in quick succession from behind one

of the earth mounds. The people who had got off the trucks, men,

women, and children of all ages, had to undress upon the orders

of an SS man, who carried a riding or dog whip . . . . Without

screaming or crying, these people undressed, stood around by

families, kissed each other, said farewells, and waited for the

command of another SS man, who stood near the excavation, also

with a whip in his hand. . . . At that moment the SS man at the

excavation called something to his comrade. The latter counted

off about 20 persons, and instructed them to walk behind the

earth mound . . . . I walked around the mound and stood in front

of a tremendous grave; closely pressed together, the people were

lying on top of each other so that only their heads were

visible. The excavation was already two-thirds full; I estimated

that it contained about a thousand people. . . . Now already the

next group approached, descended into the excavation, lined

themselves up against the previous victims and were shot.”

The foregoing crimes against the civilian population are sufficiently

appalling, and yet the evidence shows that at any rate in the East, the

mass murders and cruelties were not committed solely for the purpose of

stamping out opposition or resistance to the German occupying forces. In

Poland and the Soviet Union these crimes were part of a plan to get rid

of whole native populations by expulsion and annihilation, in order that

their territory could be used for colonization by Germans. Hitler had

written in Mein Kampf on these lines, and the plan was clearly stated by

Himmler in July 1942, when he wrote: “It is not our task to Germanize

the East in the old sense, that is to teach the people there the German

language and the German law, but to see to it that only people of purely

Germanic blood live in the East.”

In August 1942 the policy for the Eastern Territories as laid down by

Bormann was summarized by a subordinate of Rosenberg as follows:

“The Slavs are to work for us. In so far as we do not need them,

they may die. Therefore, compulsory vaccination and Germanic

health services are superfluous. The fertility of the Slavs is

undesirable.”

It was Himmler again who stated in October 1943:

“What happens to a Russian, a Czech, does not interest me in the

slightest. What the nations can offer in the way of good blood

of our type, we will take. If necessary, by kidnapping their

children and raising them here with us. Whether nations live in

prosperity or starve to death interests me only in so far as we

need them as slaves for our Kultur, otherwise it is of no

interest to me.”

In Poland the intelligentsia had been marked down for extermination as

early as September 1939, and in May 1940 the Defendant Frank wrote in

his diary of “taking advantage of the focussing of world interest on the

Western Front, by wholesale liquidation of thousands of Poles, first

leading representatives of the Polish intelligentsia.” Earlier, Frank

had been directed to reduce the “entire Polish economy to an absolute

minimum necessary for bare existence. The Poles shall be the slaves of

the Greater German World Empire.” In January 1940 he recorded in his

diary that “cheap labor must be removed from the General Government by

hundreds of thousands. This will hamper the native biological

propagation.” So successfully did the Germans carry out this policy in

Poland that by the end of the war one-third of the population had been

killed, and the whole of the country devastated.

It was the same story in the occupied area of the Soviet Union. At the

time of the launching of the German attack in June 1941 Rosenberg told

his collaborators:

“The object of feeding the German People stands this year

without a doubt at the top of the list of Germany’s claims on

the East, and there the southern territories and the northern

Caucasus will have to serve as a balance for the feeding of the

German People . . . . A very extensive evacuation will be

necessary, without any doubt, and it is sure that the future

will hold very hard years in store for the Russians.”

Three or four weeks later Hitler discussed with Rosenberg, Göring,

Keitel, and others his plan for the exploitation of the Soviet

population and territory, which included among other things the

evacuation of the inhabitants of the Crimea and its settlement by

Germans.

A somewhat similar fate was planned for Czechoslovakia by the Defendant

Von Neurath, in August 1940; the intelligentsia were to be “expelled”,

but the rest of the population was to be Germanized rather than expelled

or exterminated, since there was a shortage of Germans to replace them.

In the West the population of Alsace were the victims of a German

“expulsion action.” Between July and December 1940, 105,000 Alsatians

were either deported from their homes or prevented from returning to

them. A captured German report dated 7 August 1942 with regard to Alsace

states that: “The problem of race will be given first consideration, and

this in such a manner that persons of racial value will be deported to

Germany proper, and racially inferior persons to France.”

_Pillage of Public and Private Property_

Article 49 of the Hague Convention provides that an occupying Power may

levy a contribution of money from the occupied territory to pay for the

needs of the army of occupation, and for the administration of the

territory in question. Article 52 of the Hague Convention provides that

an occupying Power may make requisitions in kind only for the needs of

the army of occupation, and that these requisitions shall be in

proportion to the resources of the country. These articles, together

with Article 48, dealing with the expenditure of money collected in

taxes, and Articles 53, 55, and 56, dealing with public property, make

it clear that under the rules of war, the economy of an occupied country

can only be required to bear the expense of the occupation, and these

should not be greater than the economy of the country can reasonably be

expected to bear. Article 56 reads as follows:

“The property of municipalities, of religious, charitable,

educational, artistic, and scientific institutions, although

belonging to the State, is to be accorded the same standing as

private property. All pre-meditated seizure, destruction, or

damage of such institutions, historical monuments, works of art

and science, is prohibited and should be prosecuted.”

The evidence in this case has established, however, that the territories

occupied by Germany were exploited for the German war effort in the most

ruthless way, without consideration of the local economy, and in

consequence of a deliberate design and policy. There was in truth a

systematic “plunder of public or private property”, which was criminal

under Article 6 (b) of the Charter. The German occupation policy was

clearly stated in a speech made by the Defendant Göring on 6 August 1942

to the various German authorities in charge of occupied territories:

“God knows, you are not sent out there to work for the welfare

of the people in your charge, but to get the utmost out of them,

so that the German People can live. That is what I expect of

your exertions. This everlasting concern about foreign people

must cease now, once and for all. I have here before me reports

on what you are expected to deliver. It is nothing at all, when

I consider your territories. It makes no difference to me in

this connection if you say that your people will starve.”

The methods employed to exploit the resources of the occupied

territories to the full varied from country to country. In some of the

occupied countries in the East and the West, this exploitation was

carried out within the framework of the existing economic structure. The

local industries were put under German supervision, and the distribution

of war materials was rigidly controlled. The industries thought to be of

value to the German war effort were compelled to continue, and most of

the rest were closed down altogether. Raw materials and the finished

products alike were confiscated for the needs of the German industry. As

early as 19 October 1939 the Defendant Göring had issued a directive

giving detailed instructions for the administration of the occupied

territories; it provided:

“The task for the economic treatment of the various

administrative regions is different, depending on whether the

country is involved which will be incorporated politically into

the German Reich, or whether we will deal with the

Government-General, which in all probability will not be made a

part of Germany. In the first mentioned territories, the . . .

safeguarding of all their productive facilities and supplies

must be aimed at, as well as a complete incorporation into the

Greater German economic system, at the earliest possible time.

On the other hand, there must be removed from the territories of

the Government-General all raw materials, scrap materials,

machines, etc., which are of use for the German war economy.

Enterprises which are not absolutely necessary for the meager

maintenance of the naked existence of the population must be

transferred to Germany, unless such transfer would require an

unreasonably long period of time, and would make it more

practicable to exploit those enterprises by giving them German

orders, to be executed at their present location.”

As a consequence of this order, agricultural products, raw materials

needed by German factories, machine tools, transportation equipment,

other finished products, and even foreign securities and holdings of

foreign exchange were all requisitioned and sent to Germany. These

resources were requisitioned in a manner out of all proportion to the

economic resources of those countries, and resulted in famine,

inflation, and an active black market. At first the German occupation

authorities attempted to suppress the black market, because it was a

channel of distribution keeping local products out of German hands. When

attempts at suppression failed, a German purchasing agency was organized

to make purchases for Germany on the black market, thus carrying out the

assurance made by the Defendant Göring that it was “necessary that all

should know that if there is to be famine anywhere, it shall in no case

be in Germany.”

In many of the occupied countries of the East and the West, the

authorities maintained the pretense of paying for all the property which

they seized. This elaborate pretense of payment merely disguised the

fact that the goods sent to Germany from these occupied countries were

paid for by the occupied countries themselves, either by the device of

excessive occupation costs or by forced loans in return for a credit

balance on a “clearing account” which was an account merely in name.

In most of the occupied countries of the East even this pretense of

legality was not maintained; economic exploitation became deliberate

plunder. This policy was first put into effect in the administration of

the Government General in Poland. The main exploitation of the raw

materials in the East was centered on agricultural products and very

large amounts of food were shipped from the Government General to

Germany.

The evidence of the widespread starvation among the Polish People in the

Government General indicates the ruthlessness and the severity with

which the policy of exploitation was carried out.

The occupation of the territories of the U.S.S.R. was characterized by

premeditated and systematic looting. Before the attack on the U.S.S.R.

an economic staff—Oldenburg—was organized to ensure the most efficient

exploitation of Soviet territories. The German Armies were to be fed out

of Soviet territory, even if “many millions of people will be starved to

death.” An OKW directive issued before the attack said: “To obtain the

greatest possible quantity of food and crude oil for Germany—that is

the main economic purpose of the campaign.”

Similarly, a declaration by the Defendant Rosenberg of 20 June 1941 had

advocated the use of the produce from Southern Russia and of the

Northern Caucasus to feed the German People, saying:

“We see absolutely no reason for any obligation on our part to

feed also the Russian People with the products of that surplus

territory. We know that this is a harsh necessity, bare of any

feelings.”

When the Soviet territory was occupied, this policy was put into effect;

there was a large scale confiscation of agricultural supplies, with

complete disregard of the needs of the inhabitants of the occupied

territory.

In addition to the seizure of raw materials and manufactured articles, a

wholesale seizure was made of art treasures, furniture, textiles, and

similar articles in all the invaded countries.

The Defendant Rosenberg was designated by Hitler on 29 January 1940 Head

of the Center for National Socialist Ideological and Educational

Research, and thereafter the organization known as the “Einsatzstab

Rosenberg” conducted its operations on a very great scale. Originally

designed for the establishment of a research library, it developed into

a project for the seizure of cultural treasures. On 1 March 1942 Hitler

issued a further decree, authorizing Rosenberg to search libraries,

lodges, and cultural establishments, to seize material from these

establishments, as well as cultural treasures owned by Jews. Similar

directions were given where the ownership could not be clearly

established. The decree directed the co-operation of the Wehrmacht High

Command, and indicated that Rosenberg’s activities in the West were to

be conducted in his capacity as Reichsleiter, and in the East in his

capacity as Reichsminister. Thereafter, Rosenberg’s activities were

extended to the occupied countries. The report of Robert Scholz, Chief

of the special staff for Pictorial Art, stated: “During the period from

March 1941 to July 1944 the special staff for Pictorial Art brought into

the Reich 29 large shipments, including 137 freight cars with 4,174

cases of art works.”

The report of Scholz refers to 25 portfolios of pictures of the most

valuable works of the art collection seized in the West, which

portfolios were presented to the Führer. Thirty-nine volumes, prepared

by the Einsatzstab, contained photographs of paintings, textiles,

furniture, candelabra, and numerous other objects of art, and

illustrated the value and magnitude of the collection which had been

made. In many of the occupied countries private collections were robbed,

libraries were plundered, and private houses were pillaged.

Museums, palaces, and libraries in the occupied territories of the

U.S.S.R. were systematically looted. Rosenberg’s Einsatzstab, Von

Ribbentrop’s special “Battalion”, the Reichscommissars and

representatives of the Military Command seized objects of cultural and

historical value belonging to the People of the Soviet Union, which were

sent to Germany. Thus the Reichscommissar of the Ukraine removed

paintings and objects of art from Kiev and Kharkov and sent them to East

Prussia. Rare volumes and objects of art from the palaces of Peterhof,

Tsarskoye Selo, and Pavlovsk were shipped to Germany. In his letter to

Rosenberg of 3 October 1941 Reichscommissar Kube stated that the value

of the objects of art taken from Bielorussia ran into millions of

rubles. The scale of this plundering can also be seen in the letter sent

from Rosenberg’s department to Von Milde-Schreden in which it is stated

that during the month of October 1943 alone, about 40 box-cars loaded

with objects of cultural value were transported to the Reich.

With regard to the suggestion that the purpose of the seizure of art

treasures was protective and meant for their preservation, it is

necessary to say a few words. On 1 December 1939 Himmler, as the Reich

Commissioner for the “strengthening of Germanism”, issued a decree to

the regional officers of the secret police in the annexed eastern

territories, and to the commanders of the security service in Radom,

Warsaw, and Lublin. This decree contained administrative directions for

carrying out the art seizure program, and in Clause 1 it is stated:

To strengthen Germanism in the defense of the Reich, all

articles mentioned in Section 2 of this decree are hereby

confiscated . . . . They are confiscated for the benefit of the

German Reich, and are at the disposal of the Reich Commissioner

for the strengthening of Germanism.”

The intention to enrich Germany by the seizures, rather than to protect

the seized objects, is indicated in an undated report by Dr. Hans Posse,

director of the Dresden State Picture Gallery:

“I was able to gain some knowledge on the public and private

collections, as well as clerical property, in Cracow and Warsaw.

It is true that we cannot hope too much to enrich ourselves from

the acquisition of great art works of paintings and sculptures,

with the exception of the Veit-Stoß altar, and the plates of

Hans von Kulnback in the Church of Maria in Cracow . . . and

several other works from the National Museum in Warsaw.”

_Slave Labor Policy_

Article 6 (b) of the Charter provides that the “ill-treatment or

deportation to slave labor or for any other purpose, of civilian

population of or in occupied territory” shall be a War Crime. The laws

relating to forced labor by the inhabitants of occupied territories are

found in Article 52 of the Hague Convention, which provides:

“Requisition in kind and services shall not be demanded from

municipalities or inhabitants except for the needs of the army

of occupation. They shall be in proportion to the resources of

the country, and of such a nature as not to involve the

inhabitants in the obligation of taking part in military

operations against their own country.”

The policy of the German occupation authorities was in flagrant

violation of the terms of this convention. Some idea of this policy may

be gathered from the statement made by Hitler in a speech on 9 November

1941:

“The territory which now works for us contains more than

250,000,000 men, but the territory which works indirectly for us

includes now more than 350,000,000. In the measure in which it

concerns German territory, the domain which we have taken under

our administration, it is not doubtful that we shall succeed in

harnessing the very last man to this work.”

The actual results achieved were not so complete as this, but the German

occupation authorities did succeed in forcing many of the inhabitants of

the occupied territories to work for the German war effort, and in

deporting at least 5,000,000 persons to Germany to serve German industry

and agriculture.

In the early stages of the war, manpower in the occupied territories was

under the control of various occupation authorities, and the procedure

varied from country to country. In all the occupied territories

compulsory labor service was promptly instituted. Inhabitants of the

occupied countries were conscripted and compelled to work in local

occupations, to assist the German war economy. In many cases they were

forced to work on German fortifications and military installations. As

local supplies of raw materials and local industrial capacity became

inadequate to meet the German requirements, the system of deporting

laborers to Germany was put into force. By the middle of April 1940

compulsory deportation of laborers to Germany had been ordered in the

Government General; and a similar procedure was followed in other

eastern territories as they were occupied. A description of this

compulsory deportation from Poland was given by Himmler. In an address

to SS officers he recalled how in weather 40 degrees below zero they had

to “haul away thousands, tens of thousands, hundreds of thousands”. On a

later occasion Himmler stated:

“Whether ten thousand Russian females fall down from exhaustion

while digging an anti-tank ditch interests me only insofar as

the anti-tank ditch for Germany is finished . . . . We must

realize that we have 6-7 million foreigners in Germany . . . .

They are none of them dangerous so long as we take severe

measures at the merest trifles.”

During the first two years of the German occupation of France, Belgium,

Holland, and Norway, however, an attempt was made to obtain the

necessary workers on a voluntary basis. How unsuccessful this was may be

seen from the report of the meeting of the Central Planning Board on 1

March 1944. The representative of the Defendant Speer, one Koehrl,

speaking of the situation in France, said: “During all this time a great

number of Frenchmen was recruited, and voluntarily went to Germany.”

He was interrupted by the Defendant Sauckel: “Not only voluntary, some

were recruited forcibly.”

To which Koehrl replied: “The calling up started after the recruitment

no longer yielded enough results.”

To which the Defendant Sauckel replied: “Out of the five million workers

who arrived in Germany, not even 200,000 came voluntarily”, and Koehrl

rejoined: “Let us forget for the moment whether or not some slight

pressure was used. Formally, at least, they were volunteers.”

Committees were set up to encourage recruiting, and a vigorous

propaganda campaign was begun to induce workers to volunteer for service

in Germany. This propaganda campaign included, for example, the promise

that a prisoner of war would be returned for every laborer who

volunteered to go to Germany. In some cases it was supplemented by

withdrawing the ration cards of laborers who refused to go to Germany,

or by discharging them from their jobs and denying them unemployment

benefit or an opportunity to work elsewhere. In some cases workers and

their families were threatened with reprisals by the police if they

refused to go to Germany. It was on 21 March 1942 that the Defendant

Sauckel was appointed Plenipotentiary-General for the Utilization of

Labor, with authority over “all available manpower, including that of

workers recruited abroad, and of prisoners of war”.

The Defendant Sauckel was directly under the Defendant Göring as

Commissioner of the Four Year Plan, and a Göring decree of 27 March 1942

transferred all his authority over manpower to Sauckel. Sauckel’s

instructions, too, were that foreign labor should be recruited on a

voluntary basis, but also provided that “where, however, in the occupied

territories, the appeal for volunteers does not suffice, obligatory

service and drafting must under all circumstances be resorted to.” Rules

requiring labor service in Germany were published in all the occupied

territories. The number of laborers to be supplied was fixed by Sauckel,

and the local authorities were instructed to meet these requirements by

conscription if necessary. That conscription was the rule rather than

the exception is shown by the statement of Sauckel already quoted, on 1

March 1944.

The Defendant Sauckel frequently asserted that the workers belonging to

foreign nations were treated humanely, and that the conditions in which

they lived were good. But whatever the intention of Sauckel may have

been, and however much he may have desired that foreign laborers should

be treated humanely, the evidence before the Tribunal establishes the

fact that the conscription of labor was accomplished in many cases by

drastic and violent methods. The “mistakes and blunders” were on a very

great scale. Man-hunts took place in the streets, at motion picture

houses, even at churches and at night in private houses. Houses were

sometimes burnt down, and the families taken as hostages, practices

which were described by the Defendant Rosenberg as having their origin

“in the blackest periods of the slave trade”. The methods used in

obtaining forced labor from the Ukraine appear from an order issued to

SD officers which stated:

“It will not be possible always to refrain from using force

. . . . When searching villages, especially when it has been

necessary to burn down a village, the whole population will be

put at the disposal of the Commissioner by force . . . . As a

rule no more children will be shot . . . . If we limit harsh

measures through the above orders for the time being, it is only

done for the following reason . . . . The most important thing

is the recruitment of workers.”

The resources and needs of the occupied countries were completely

disregarded in carrying out this policy. The treatment of the laborers

was governed, by Sauckel’s instructions of 20 April 1942 to the effect

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.”

The evidence showed that workers destined for the Reich were sent under

guard to Germany, often packed in trains without adequate heat, food,

clothing, or sanitary facilities. The evidence further showed that the

treatment of the laborers in Germany in many cases was brutal and

degrading. The evidence relating to the Krupp Works at Essen showed that

punishments of the most cruel kind were inflicted on the workers.

Theoretically at least the workers were paid, housed, and fed by the

DAF, and even permitted to transfer their savings and to send mail and

parcels back to their native country; but restrictive regulations took a

proportion of the pay; the camps in which they were housed were

unsanitary; and the food was very often less than the minimum necessary

to give the workers strength to do their jobs. In the case of Poles

employed on farms in Germany, the employers were given authority to

inflict corporal punishment and were ordered, if possible, to house them

in stables, not in their own homes. They were subject to constant

supervision by the Gestapo and the SS, and if they attempted to leave

their jobs they were sent to correction camps or concentration camps.

The concentration camps were also used to increase the supply of labor.

Concentration camp commanders were ordered to work their prisoners to

the limits of their physical power. During the latter stages of the war

the concentration camps were so productive in certain types of work that

the Gestapo was actually instructed to arrest certain classes of

laborers so that they could be used in this way. Allied prisoners of war

were also regarded as a possible source of labor. Pressure was exercised

on non-commissioned officers to force them to consent to work, by

transferring to disciplinary camps those who did not consent. Many of

the prisoners of war were assigned to work directly related to military

operations, in violation of Article 31 of the Geneva Convention. They

were put to work in munition factories and even made to load bombers, to

carry ammunition and to dig trenches, often under the most hazardous

conditions. This condition applied particularly to the Soviet prisoners

of war. On 16 February 1943, at a meeting of the Central Planning Board,

at which the Defendants Sauckel and Speer were present, Milch said:

“We have made a request for an order that a certain percentage

of men in the Ack-Ack artillery must be Russians; 50,000 will be

taken altogether. Thirty thousand are already employed as

gunners. This is an amusing thing, that Russians must work the

guns.”

And on 4 October 1943, at Posen, Himmler, speaking of the Russian

prisoners, captured in the early days of the war, said:

“As that time we did not value the mass of humanity as we value

it today, as raw material, as labor. What, after all, thinking

in terms of generations, is not to be regretted, but is now

deplorable by reason of the loss of labor, is that the prisoners

died in tens and hundreds of thousands of exhaustion and

hunger.”

The general policy underlying the mobilization of slave labor was stated

by Sauckel on 20 April 1942. He said:

“The aim of this new gigantic labor mobilization is to use all

the rich and tremendous sources conquered and secured for us by

our fighting Armed Forces under the leadership of Adolf Hitler,

for the armament of the Armed Forces, and also for the nutrition

of the Homeland. The raw materials, as well as the fertility of

the conquered territories and their human labor power, are to be

used completely and conscientiously to the profit of Germany and

her allies . . . . All prisoners of war from the territories of

the West, as well as the East, actually in Germany, must be

completely incorporated into the German armament and nutrition

industries . . . . Consequently it is an immediate necessity to

use the human reserves of the conquered Soviet territory to the

fullest extent. Should we not succeed in obtaining the necessary

amount of labor on a voluntary basis, we must immediately

institute conscription or forced labor. . . . The complete

employment of all prisoners of war, as well as the use of a

gigantic number of new foreign civilian workers, men and women,

has become an indisputable necessity for the solution of the

mobilization of the labor program in this war.”

Reference should also be made to the policy which was in existence in

Germany by the summer of 1940, under which all aged, insane, and

incurable people, “useless eaters,” were transferred to special

institutions where they were killed, and their relatives informed that

they had died from natural causes. The victims were not confined to

German citizens, but included foreign laborers, who were no longer able

to work, and were therefore useless to the German war machine. It has

been estimated that at least some 275,000 people were killed in this

manner in nursing homes, hospitals and asylums, which were under the

jurisdiction of the Defendant Frick, in his capacity as Minister of the

Interior. How many foreign workers were included in this total it has

been quite impossible to determine.

_Persecution of the Jews_

The persecution of the Jews at the hands of the Nazi Government has been

proved in the greatest detail before the Tribunal. It is a record of

consistent and systematic inhumanity on the greatest scale. Ohlendorf,

Chief of Amt III in the RSHA from 1939 to 1943, and who was in command

of one of the Einsatz groups in the campaign against the Soviet Union

testified as to the methods employed in the extermination of the Jews.

He said that he employed firing squads to shoot the victims in order to

lessen the sense of individual guilt on the part of his men; and the

90,000 men, women, and children who were murdered in one year by his

particular group were mostly Jews.

When the witness Bach Zelewski was asked how Ohlendorf could admit the

murder of 90,000 people, he replied: “I am of the opinion that when, for

years, for decades, the doctrine is preached that the Slav race is an

inferior race, and Jews not even human, then such an outcome is

inevitable.”

But the Defendant Frank spoke the final words of this chapter of Nazi

history when he testified in this Court:

“We have fought against Jewry: we have fought against it for

years: and we have allowed ourselves to make utterances and my

own diary has become a witness against me in this

connection—utterances which are terrible . . . . A thousand

years will pass and this guilt of Germany will still not be

erased.”

The anti-Jewish policy was formulated in Point 4 of the Party Program

which declared “Only a member of the race can be a citizen. A member of

the race can only be one who is of German blood, without consideration

of creed. Consequently, no Jew can be a member of the race.” Other

points of the program declared that Jews should be treated as

foreigners, that they should not be permitted to hold public office,

that they should be expelled from the Reich if it were impossible to

nourish the entire population of the State, that they should be denied

any further immigration into Germany, and that they should be prohibited

from publishing German newspapers. The Nazi Party preached these

doctrines throughout its history. _Der Stürmer_ and other publications

were allowed to disseminate hatred of the Jews, and in the speeches and

public declarations of the Nazi leaders, the Jews were held up to public

ridicule and contempt.

With the seizure of power, the persecution of the Jews was intensified.

A series of discriminatory laws was passed, which limited the offices

and professions permitted to Jews; and restrictions were placed on their

family life and their rights of citizenship. By the autumn of 1938, the

Nazi policy towards the Jews had reached the stage where it was directed

towards the complete exclusion of Jews from German life. Pogroms were

organized, which included the burning and demolishing of synagogues, the

looting of Jewish businesses, and the arrest of prominent Jewish

business men. A collective fine of 1 billion marks was imposed on the

Jews, the seizure of Jewish assets was authorized, and the movement of

Jews was restricted by regulations to certain specified districts and

hours. The creation of ghettos was carried out on an extensive scale,

and by an order of the Security Police Jews were compelled to wear a

yellow star to be worn on the breast and back.

It was contended for the Prosecution that certain aspects of this

anti-Semitic policy were connected with the plans for aggressive war.

The violent measures taken against the Jews in November 1938 were

nominally in retaliation for the killing of an official of the German

Embassy in Paris. But the decision to seize Austria and Czechoslovakia

had been made a year before. The imposition of a fine of one billion

marks was made, and the confiscation of the financial holdings of the

Jews was decreed, at a time when German armament expenditure had put the

German treasury in difficulties, and when the reduction of expenditure

on armaments was being considered. These steps were taken, moreover,

with the approval of the Defendant Göring, who had been given

responsibility for economic matters of this kind, and who was the

strongest advocate of an extensive rearmament program notwithstanding

the financial difficulties.

It was further said that the connection of the anti-Semitic policy with

aggressive war was not limited to economic matters. The German Foreign

Office circular, in an article of 25 January 1939, entitled “Jewish

Question as a Factor in German Foreign Policy in the Year 1938”,

described the new phase in the Nazi anti-Semitic policy in these words:

“It is certainly no coincidence that the fateful year 1938 has

brought nearer the solution of the Jewish question

simultaneously with the realization of the idea of Greater

Germany, since the Jewish policy was both the basis and

consequence of the year 1938. The advance made by Jewish

influence and the destructive Jewish spirit in politics,

economy, and culture, paralyzed the power and the will of the

German People to rise again, more perhaps even than the power

policy opposition of the former enemy Allied Powers of the first

World War. The healing of this sickness among the people, was

therefore certainly one of the most important requirements for

exerting the force which, in the year 1938, resulted in the

joining together of Greater Germany in defiance of the world.”

The Nazi persecution of Jews in Germany before the war, severe and

repressive as it was, cannot compare, however, with the policy pursued

during the war in the occupied territories. Originally the policy was

similar to that which had been in force inside Germany. Jews were

required to register, were forced to live in ghettos, to wear the yellow

star, and were used as slave laborers. In the summer of 1941, however,

plans were made for the “final solution” of the Jewish question in

Europe. This “final solution” meant the extermination of the Jews, which

early in 1939 Hitler had threatened would be one of the consequences of

an outbreak of war, and a special section in the Gestapo under Adolf

Eichmann, as head of Section B 4 of the Gestapo, was formed to carry out

the policy.

The plan for exterminating the Jews was developed shortly after the

attack on the Soviet Union. Einsatzgruppen of the Security Police and

SD, formed for the purpose of breaking the resistance of the population

of the areas lying behind the German armies in the East, were given the

duty of exterminating the Jews in those areas. The effectiveness of the

work of the Einsatzgruppen is shown by the fact that in February 1942

Heydrich was able to report that Estonia had already been cleared of

Jews and that in Riga the number of Jews had been reduced from 29,500 to

2,500. Altogether the Einsatzgruppen operating in the occupied Baltic

States killed over 135,000 Jews in three months.

Nor did these special units operate completely independently of the

German Armed Forces. There is clear evidence that leaders of the

Einsatzgruppen obtained the co-operation of Army commanders. In one case

the relations between an Einsatzgruppe and the military authorities was

described at the time as being “very close, almost cordial”; in another

case the smoothness of an Einsatzcommando’s operation was attributed to

the “understanding for this procedure” shown by the Army authorities.

Units of the Security Police and SD in the occupied territories of the

East, which were under civil administration, were given a similar task.

The planned and systematic character of the Jewish persecutions is best

illustrated by the original report of the SS Brigadier-General Stroop,

who was in charge of the destruction of the ghetto in Warsaw, which took

place in 1943. The Tribunal received in evidence that report,

illustrated with photographs, bearing on its title page: “The Jewish

Ghetto in Warsaw No Longer Exists.” The volume records a series of

reports sent by Stroop to the Higher SS and Police Führer East. In April

and May of 1943, in one report, Stroop wrote:

“The resistance put up by the Jews and bandits could only be

suppressed by energetic actions of our troops day and night. The

Reichsführer SS ordered therefore on 23 April 1943 the cleaning

out of the ghetto with utter ruthlessness and merciless

tenacity. I therefore decided to destroy and burn down the

entire ghetto, without regard to the armament factories. These

factories were systematically dismantled and then burnt. Jews

usually left their hideouts, but frequently remained in the

burning buildings, and jumped out of the windows only when the

heat became unbearable. They then tried to crawl with broken

bones across the street into buildings which were not afire

. . . . Life in the sewers was not pleasant after the first

week. Many times we could hear loud voices in the sewers . . . .

Tear gas bombs were thrown into the manholes, and the Jews

driven out of the sewers and captured. Countless numbers of Jews

were liquidated in sewers and bunkers through blasting. The

longer the resistance continued, the tougher became the members

of the Waffen SS, Police and Wehrmacht, who always discharged

their duties in an exemplary manner.

Stroop recorded that his action at Warsaw eliminated “a proved total of

56,065 people. To that we have to add the number of those killed through

blasting, fire, etc., which cannot be counted.” Grim evidence of mass

murders of Jews was also presented to the Tribunal in cinematograph

films depicting the communal graves of hundreds of victims which were

subsequently discovered by the Allies.

These atrocities were all part and parcel of the policy inaugurated in

1941, and it is not surprising that there should be evidence that one or

two German officials entered vain protests against the brutal manner in

which the killings were carried out. But the methods employed never

conformed to a single pattern. The massacres of Rowno and Dubno, of

which the German engineer Graebe spoke, were examples of one method; the

systematic extermination of Jews in concentration camps, was another.

Part of the “final solution” was the gathering of Jews from all

German-occupied Europe in concentration camps. Their physical condition

was the test of life or death. All who were fit to work were used as

slave laborers in the concentration camps; all who were not fit to work

were destroyed in gas chambers and their bodies burnt. Certain

concentration camps such as Treblinka and Auschwitz were set aside for

this main purpose. With regard to Auschwitz, the Tribunal heard the

evidence of Höss, the commandant of the camp from 1 May 1940 to 1

December 1943. He estimated that in the camp of Auschwitz alone in that

time 2,500,000 persons were exterminated, and that a further 500,000

died from disease and starvation. Höss described the screening for

extermination by stating in evidence:

“We had two SS doctors on duty at Auschwitz to examine the

incoming transports of prisoners. The prisoners would be marched

by one of the doctors who would make spot decisions as they

walked by. Those who were fit for work were sent into the camp.

Others were sent immediately to the extermination plants.

Children of tender years were invariably exterminated since by

reason of their youth they were unable to work. Still another

improvement we made over Treblinka was that at Treblinka the

victims almost always knew that they were to be exterminated and

at Auschwitz we endeavored to fool the victims into thinking

that they were to go through a delousing process. Of course,

frequently they realized our true intentions and we sometimes

had riots and difficulties due to that fact. Very frequently

women would hide their children under their clothes, but of

course when we found them we would send the children in to be

exterminated.”

He described the actual killing by stating:

“It took from three to fifteen minutes to kill the people in the

death chamber, depending upon climatic conditions. We knew when

the people were dead because their screaming stopped. We usually

waited about one half-hour before we opened the doors and

removed the bodies. After the bodies were removed our special

commandos took off the rings and extracted the gold from the

teeth of the corpses.”

Beating, starvation, torture, and killing were general. The inmates were

subjected to cruel experiments; at Dachau in August 1942, victims were

immersed in cold water until their body temperature was reduced to 28°

Centigrade, when they died immediately. Other experiments included high

altitude experiments in pressure chambers, experiments to determine how

long human beings could survive in freezing water, experiments with

poison bullets, experiments with contagious diseases, and experiments

dealing with sterilization of men and women by X-rays and other methods.

Evidence was given of the treatment of the inmates before and after

their extermination. There was testimony that the hair of women victims

was cut off before they were killed, and shipped to Germany, there to be

used in the manufacture of mattresses. The clothes, money, and valuables

of the inmates were also salvaged and sent to the appropriate agencies

for disposition. After the extermination the gold teeth and fillings

were taken from the heads of the corpses and sent to the Reichsbank.

After cremation the ashes were used for fertilizer, and in some

instances attempts were made to utilize the fat from the bodies of the

victims in the commercial manufacture of soap. Special groups traveled

through Europe to find Jews and subject them to the “final solution”.

German missions were sent to such satellite countries as Hungary and

Bulgaria, to arrange for the shipment of Jews to extermination camps and

it is known that by the end of 1944, 400,000 Jews from Hungary had been

murdered at Auschwitz. Evidence has also been given of the evacuation of

110,000 Jews from part of Rumania for “liquidation”. Adolf Eichmann, who

had been put in charge of this program by Hitler, has estimated that the

policy pursued resulted in the killing of 6 million Jews, of which 4

million were killed in the extermination institutions.

_The Law Relating to War Crimes and Crimes against Humanity_

Article 6 of the Charter provides:

“(b) War Crimes: namely, violations of the laws or customs of

war. Such violations shall include, but not be limited to,

murder, ill-treatment or deportation to slave labor or for any

other purpose of civilian population of or in occupied

territory, murder or ill-treatment of prisoners of war or

persons on the seas, killing of hostages, plunder of public or

private property, wanton destruction of cities, towns, or

villages, or devastation not justified by military necessity;

“(c) Crimes against Humanity: namely, murder, extermination,

enslavement, deportation, and other inhumane acts committed

against any civilian population, before or during the war; or

persecutions on political, racial, or religious grounds in

execution of or in connection with any crime within the

jurisdiction of the Tribunal, whether or not in violation of the

domestic law of the country where perpetrated.”

As heretofore stated, the Charter does not define as a separate crime

any conspiracy except the one set out in Article 6 (a), dealing with

Crimes against Peace.

The Tribunal is of course bound by the Charter, in the definition which

it gives both of War Crimes and Crimes against Humanity. With respect to

War Crimes, however, as has already been pointed out, the crimes defined

by Article 6, Section (b), of the Charter were already recognized as War

Crimes under international law. They were covered by Articles 46, 50,

52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46,

and 51 of the Geneva Convention of 1929. That violation of these

provisions constituted crimes for which the guilty individuals were

punishable is too well-settled to admit of argument.

But it is argued that the Hague Convention does not apply in this case,

because of the “general participation” clause in Article 2 of the Hague

Convention of 1907. That clause provided:

“The provisions contained in the regulations (Rules of Land

Warfare) referred to in Article I as well as in the present

Convention do not apply except between contracting powers, and

then only if all the belligerents, are parties to the

Convention.”

Several of the belligerents in the recent war were not parties to this

Convention.

In the opinion of the Tribunal it is not necessary to decide this

question. The rules of land warfare expressed in the Convention

undoubtedly represented an advance over existing international law at

the time of their adoption. But the convention expressly stated that it

was an attempt “to revise the general laws and customs of war”, which it

thus recognized to be then existing, but by 1939 these rules laid down

in the Convention were recognized by all civilized nations, and were

regarded as being declaratory of the laws and customs of war which are

referred to in Article 6 (b) of the Charter.

A further submission was made that Germany was no longer bound by the

rules of land warfare in many of the territories occupied during the

war, because Germany had completely subjugated those countries and

incorporated them into the German Reich, a fact which gave Germany

authority to deal with the occupied countries as though they were part

of Germany. In the view of the Tribunal it is unnecessary in this case

to decide whether this doctrine of subjugation, dependent as it is upon

military conquest, has any application where the subjugation is the

result of the crime of aggressive war. The doctrine was never considered

to be applicable so long as there was an army in the field attempting to

restore the occupied countries to their true owners, and in this case,

therefore, the doctrine could not apply to any territories occupied

after 1 September 1939. As to the War Crimes committed in Bohemia and

Moravia, it is a sufficient answer that these territories were never

added to the Reich, but a mere protectorate was established over them.

With regard to Crimes against Humanity there is no doubt whatever that

political opponents were murdered in Germany before the war, and that

many of them were kept in concentration camps in circumstances of great

horror and cruelty. The policy of terror was certainly carried out on a

vast scale, and in many cases was organized and systematic. The policy

of persecution, repression, and murder of civilians in Germany before

the war of 1939, who were likely to be hostile to the Government, was

most ruthlessly carried out. The persecution of Jews during the same

period is established beyond all doubt. To constitute Crimes against

Humanity, the acts relied on before the outbreak of war must have been

in execution of, or in connection with, any crime within the

jurisdiction of the Tribunal. The Tribunal is of the opinion that

revolting and horrible as many of these crimes were, it has not been

satisfactorily proved that they were done in execution of, or in

connection with, any such crime. The Tribunal therefore cannot make a

general declaration that the acts before 1939 were Crimes against

Humanity within the meaning of the Charter, but from the beginning of

the war in 1939 War Crimes were committed on a vast scale, which were

also Crimes against Humanity; and insofar as the inhumane acts charged

in the Indictment, and committed after the beginning of the war, did not

constitute War Crimes, they were all committed in execution of, or in

connection with, the aggressive war, and therefore constituted Crimes

against Humanity.

_The Accused Organizations_

Article 9 of the Charter provides:

“At the trial of any individual member of any group or

organization the Tribunal may declare (in connection with any

act of which the individual may be convicted) that the group or

organization of which the individual was a member was a criminal

organization.”

“After receipt of the Indictment the Tribunal shall give such

notice as it thinks fit that the prosecution intends to ask the

Tribunal to make such declaration and any member of the

organization will be entitled to apply to the Tribunal for leave

to be heard by the Tribunal upon the question of the criminal

character of the organization. The Tribunal shall have power to

allow or reject the application. If the application is allowed,

the Tribunal may direct in what manner the applicants shall be

represented and heard.”

Article 10 of the Charter makes clear that the declaration of

criminality against an accused organization is final, and cannot be

challenged in any subsequent criminal proceeding against a member of the

organization. Article 10 is as follows:

“In cases where a group or organization is declared criminal by

the Tribunal, the competent national authority of any Signatory

shall have the right to bring individuals to trial for

membership therein before national, military or occupation

courts. In any such case the criminal nature of the group or

organization is considered proved and shall not be questioned.”

The effect of the declaration of criminality by the Tribunal is well

illustrated by Law Number 10 of the Control Council of Germany passed on

20 December 1945, which provides:

“Each of the following acts is recognized as a crime:

. . .

“(d) Membership in categories of a criminal group or organization

declared criminal by the International Military Tribunal.

. . .

“(3) Any person found guilty of any of the crimes above mentioned may

upon conviction be punished as shall be determined by the Tribunal to be

just. Such punishment may consist of one or more of the following:

(a) Death.

(b) Imprisonment for life or a term of years, with or without hard

labor.

(c) Fine, and imprisonment with or without hard labor, in lieu thereof.”

In effect, therefore, a member of an organization which the Tribunal has

declared to be criminal may be subsequently convicted of the crime of

membership and be punished for that crime by death. This is not to

assume that international or military courts which will try these

individuals will not exercise appropriate standards of justice. This is

a far reaching and novel procedure. Its application, unless properly

safeguarded, may produce great injustice.

Article 9, it should be noted, uses the words “The Tribunal may

declare”, so that the Tribunal is vested with discretion as to whether

it will declare any organization criminal. This discretion is a judicial

one and does not permit arbitrary action, but should be exercised in

accordance with well-settled legal principles, one of the most important

of which is that criminal guilt is personal, and that mass punishments

should be avoided. If satisfied of the criminal guilt of any

organization or group, this Tribunal should not hesitate to declare it

to be criminal because the theory of “group criminality” is new, or

because it might be unjustly applied by some subsequent tribunals. On

the other hand, the Tribunal should make such declaration of criminality

so far as possible in a manner to insure that innocent persons will not

be punished.

A criminal organization is analogous to a criminal conspiracy in that

the essence of both is cooperation for criminal purposes. There must be

a group bound together and organized for a common purpose. The group

must be formed or used in connection with the commission of crimes

denounced by the Charter. Since the declaration with respect to the

organizations and groups will, as has been pointed out, fix the

criminality of its members, that definition should exclude persons who

had no knowledge of the criminal purposes or acts of the organization

and those who were drafted by the State for membership, unless they were

personally implicated in the commission of acts declared criminal by

Article 6 of the Charter as members of the organization. Membership

alone is not enough to come within the scope of these declarations.

Since declarations of criminality which the Tribunal makes will be used

by other courts in the trial of persons on account of their membership

in the organizations found to be criminal, the Tribunal feels it

appropriate to make the following recommendations: