V. _Incorrect Judgment with regard to the Reich Cabinet_

The Prosecution has posed before the Tribunal the question of declaring

the Reich Cabinet a criminal organization. The verdict rejects the claim

of the Prosecution, unfoundedly refusing to declare the Hitler

Government a criminal organization.

With such a decision I cannot agree.

The Tribunal considers it proven that the Hitlerites have committed

innumerable and monstrous crimes.

The Tribunal also considers it proven that these crimes were as a rule

committed intentionally and on an organized scale, according to

previously prepared plans and directives (“Plan Barbarossa”, “Night and

Fog”, “Bullet”, etc.).

The Tribunal has declared criminal several of the Nazi mass

organizations founded for the realization and putting into practice the

plans of the Hitler Government.

In view of this it appears particularly untenable and rationally

incorrect to refuse to declare the Reich Cabinet the directing organ of

the State with a direct and active role in the working out of the

criminal enterprises, a criminal organization. The members of this

directing staff had great power, each headed an appropriate Government

agency, each participated in preparing and realizing the Nazi program.

In confirmation it is deemed proper to cite several facts:

1. Immediately after the Nazi accession to power—on 24 March

1933—there was a law passed entitled “The Law of Defense of the People

and the State” whereby the Reich Cabinet, besides the Reichstag, was

empowered to enact new laws.

On 26 May 1933 the Reich Government issued a decree ordering the

confiscation of the property of all Communist organizations and on 14

June, the same year, it also confiscated the property of the Social

Democrat organizations. On 1 December 1933 the Reich Government issued

the law “Ensuring Party and State Unity”.

Following through its program of liquidating democratic institutions, in

1934 the Government passed a law of the “Reconstruction of the Reich”

whereby democratic elections were abolished for both central and local

representative bodies. The Reichstag thereby became an institution

without functional meaning. (Transcript, Afternoon Session, 22 November

1945)

By the law of 7 April 1933 and others, all Reich Government employees,

including judges, ever noted for any anti-Nazi tendencies or ever having

belonged to leftist organizations, as well as all Jews, were to be

removed from the Government service and replaced by Nazis. In accordance

with the “Basic Positions of the German Law on Government Employees” of

26 January 1937, “the inner harmony of the official and the Nazi Party

is a necessary presupposition of his appointment to his post . . . .

Government employees must be the executors of the will of the National

Socialist State, directed by the NSDAP.” (Defense Document Number 28)

On 1 May 1934 there was created the Ministry of Education instructed to

train students in the spirit of militarism, of racial hatred, and in

terms of reality thoroughly falsified by Nazi ideology (PS-2078).

Free trade unions were abolished, their property confiscated, and the

majority of the leaders jailed.

To suppress even a semblance of resistance the Government created the

Gestapo and the concentration camps. Without any trial or even a

concrete charge hundreds of thousands of persons were arrested and then

done away with merely on a suspicion of an anti-Nazi tendency.

There were issued the so-called “Nuremberg Laws” against the Jews. Hess

and Frick, both members of the Reich Government, implemented these by

additional decrees.

It was the activity of the Reich Cabinet that brought on the war which

took millions of human lives and caused inestimable damage in property

and in suffering borne by the many Nations.

On 4 February 1938, Hitler organized the Secret Council of Ministers

defining its activity as follows: “To aid me by advice on problems of

foreign policies I am creating this Secret Council”

(_Reichsgesetzblatt_, 1938, Part I, p. 112, PS-2031). The foreign policy

of the Hitler Government was the policy of aggression. For this reason

the members of the Secret Council should be held responsible for this

policy. There were attempts in Court to represent the Secret Council as

a fictitious organization, never actually functioning. This however is

an inadmissible position. It is sufficient to recall Rosenberg’s letter

to Hitler where the former insistently tried to be appointed member of

the Secret Council of Ministers—to appreciate fully the significance of

the Council.

Even more important practically in conducting aggressive warfare was the

Reich Defense Council headed by Hitler and Göring. The following were

members of the Defense Council, as is well known: Hess, Frick, Funk,

Keitel, Raeder, Lammers (PS-2194; PS-2018).

Göring characterized the function of the Defense Council and its role in

war preparations as follows, during the Court session of 23 June 1939:

“The Defense Council of the Reich _was the deciding Reich organ on all

questions concerning preparation for war_“ (PS-3787, USA-782).

At the same time Göring emphasized the fact that “the meeting of the

Defense Council always took place for the purpose of making the most

important decisions”. From the minutes of these meetings, submitted as

evidence by the Prosecution, it is quite clear that the Council made

very important decisions indeed. The minutes also show that other

Cabinet Ministers sometimes took part in the meetings of the Defense

Council alongside the members of the Council when war enterprises and

war preparedness were discussed.

For example, the following Cabinet Ministers took part in the meeting of

23 June 1939: of Labor, of Food and Agriculture, of Finance, of

Communication, and a number of others, while the minutes of the meeting

were sent to all the members of the Cabinet (USA-782).

The verdict of the Tribunal justly points out certain peculiarities of

the Hitler Government as the directing organ of the State, namely: the

absence of regular cabinet meetings, the occasional issuance of laws by

the individual Ministers having unusual independence of action, the

tremendous personal power of Hitler himself. These peculiarities do not

refute but on the contrary further confirm the conclusion that the

Hitler Government is not an ordinary rank and file cabinet but a

criminal organization.

Certainly Hitler had an unusual measure of personal power but this in no

way frees of responsibility the members of his Cabinet who were his

convinced followers and the actual executors of his program until and

when the day of reckoning arrived.

I consider that there is every reason to declare the Hitler Government a

criminal organization.

VI. _Incorrect Judgment with regard to the General Staff

and the OKW_

The verdict incorrectly rejects the accusation of criminal activity

directed against the General Staff and the OKW.

The rejection of the accusation of criminal activity of the General

Staff and of the OKW contradicts both the actual situation and the

evidence submitted in the course of the Trial.

It has been established beyond doubt that the Leadership Corps of the

Armed Forces of Nazi Germany, together with the SS-Party machine,

represented the most important agency in preparing and realizing the

Nazi aggressive and man-hating program. This was constantly and

forcefully reiterated by the Hitlerites themselves in their official

bulletins meant for the officer personnel of the armed forces. In the

Nazi Party bulletin called “Politics and the Officer in the III Reich”

it is quite clearly stated that the Nazi regime is founded on

“. . . two pillars: the Party and the Armed Forces. Both are

forms of expression of the same philosophy of life . . . the

tasks before the Party and the Armed Forces are in an organic

relationship to each other and each bears the same

responsibility . . . both these agencies depend on each other’s

success or failure.” (PS-4060, USA-928)

This organic inter-relationship between the Nazi Party and the SS on the

one hand and the Nazi Armed Forces on the other hand, was particularly

evident among the upper circles of military hierarchy which the

Indictment groups together under the concept of criminal

organization—that is, among the members of the General Staff and the

OKW.

The very selection of members of the Supreme Command of the Army in Nazi

Germany was based on the criteria of their loyalty to the regime and

their readiness not to pursue aggressive militaristic policies but also

to fulfill such special directives as related to treatment meted out to

prisoners of war and to the civilian populations of occupied

territories.

The leaders of the German Armed Forces were not merely officers who

reached certain levels of the military hierarchy. They represented,

first of all, a closely-knit group which was entrusted with the most

secret plans of the Nazi leadership. Evidence submitted to the Tribunal

has fully confirmed the contention that the military leaders of Germany

justified this trust completely and that they were the convinced

followers and ardent executors of Hitler’s plans.

It is not accidental that at the head of the Air Force stood the “second

man” of the Nazi Reich, namely Göring; that the Commander-in-Chief of

the Navy was Dönitz, subsequently designated by Hitler to be the

latter’s successor; that the command of the Ground Forces was

concentrated in the hands of Keitel who signed the major part of the

decrees concerning the execution of the prisoners of war and of the

civilians in occupied territories.

Thus the comparisons made with the organization of the supreme commands

in Allied countries cannot be considered valid. In a democratic country,

not one self-respecting military expert would agree to prepare plans for

mass reprisals and merciless killings of prisoners of war side by side

with plans of a purely military and strategic character.

Meanwhile it is precisely such matters that occupied the supreme command

of the General Staff and of the OKW in Nazi Germany. The commission by

them of the heaviest Crimes against Peace, of the War Crimes, and of the

Crimes against Humanity is not denied but is particularly emphasized in

the verdict of the Tribunal. And yet the commission of these crimes has

not brought the logical conclusion.

The verdict states: “They have been a disgrace to the honorable

profession of arms. Without their military guidance the aggressive

ambitions of Hitler and his fellow Nazis would have been academic and

sterile . . . .”

And subsequently:

“Many of these men have made a mockery of the soldier’s oath of

obedience to military orders. When it suits their defense they

say they had to obey; when confronted with Hitler’s brutal

crimes, which are shown to have been within their general

knowledge, they say they disobeyed. The truth is they actively

participated in all these crimes, or sat silent and acquiescent,

witnessing the commission of crimes on a scale larger and more

shocking than the world ever had the misfortune to know. This

must be said.”

All these assertions in the verdict are correct and are based on

numerous and reliable depositions. It remains only incomprehensible why

“these hundred or so higher officers” who have caused the world and

their own country so much suffering should not be acknowledged a

criminal organization.

The verdict advances the following reasons for the decision, reasons

quite contradictory to the facts:

a) That the crimes were committed by representatives of the General

Staff and of the OKW as private individuals and not as members of a

criminal conspiracy.

b) That the General Staff and the OKW were merely weapons in the hands

of the conspirators and interpreters or executors of the conspirators’

will.

Considerable evidence disputes such conclusions.

1. _The leading representatives of the General Staff and of the OKW,

along with a small circle of the higher Hitlerite officials, were called

upon by the conspirators to participate in the development and the

realization of the plans of aggression, not as passive functionaries,

but as active participants in the conspiracy against peace and

humanity._

Without their advice and active cooperation, Hitler could not have

solved these problems.

In the majority of cases their opinion was decisive. It is impossible to

imagine how the aggressive plans of Hitler’s Germany could have been

realized had it not been for the full support given him by the leading

staff members of the armed forces.

Least of all did Hitler conceal his criminal plans and motivations from

the leaders of the High Command.

For instance, while preparing for the attack on Poland, as early as 29

May 1939, at a conference with the high military commanders of the new

Reich Chancellery, he stated:

“For us the matter consists of the expansion of ‘Lebensraum’ to

the East. Thus the question of sparing Poland cannot be

considered, and, instead, we have to consider the decision to

attack Poland at the first opportunity.” (L-79)

Long before the seizure of Czechoslovakia, in a directive of 30 May

1938, Hitler, addressing the representatives of the High Command,

cynically stated: “From the military and political point of view, the

most favorable time is a lightning attack on the basis of some incident,

by which Germany will have been strongly provoked and which will morally

justify the military measures to at least part of the world opinion”

(PS-388).

Prior to the invasion of Yugoslavia, in a directive dated 27 March 1941,

addressing the representatives of the High Command, Hitler wrote: “Even

if Yugoslavia declares its loyalty, it must be considered an enemy and

must, therefore, be smashed as soon as possible” (PS-1746).

While preparing for the invasion of the U.S.S.R., Hitler invited the

representatives of the General Staff and the OKW to help him work out

the related plans and directives not at all as simply the military

experts.

In the instructions to apply propaganda in the region “Barbarossa”,

issued by the OKW in June 1941, it is pointed out that: “For the time we

should not have propaganda directed at the dismemberment of the Soviet

Union” (USSR-477).

As early as 13 May 1941, OKW ordered the troops to use any terrorist

measures against the civilian populations of the temporarily occupied

regions of the Soviet Union.

And the same order read: “To confirm only such sentences as are in

accordance with the political intentions of the High Command.” (G-50.)

2. _OKW and the General Staff issued the most brutal decrees and orders

for relentless measures against the unarmed peaceful population and the

prisoners of war._

In the decree of special liability to punishment in the region

“Barbarossa” while preparing for the attack upon the Soviet Union, the

OKW abolished beforehand the jurisdiction of the military courts,

granting the right of repressions over the peaceful population to

individual officers and soldiers.

It is particularly stated there that:

“Crimes of hostile civilians are excluded from the jurisdiction

of the courts martial, . . . Suspected elements must be

immediately delivered to the officer. The latter will decide

whether they should be shot . . . it is absolutely forbidden to

hold suspects for the purpose of bringing them to trial.”

There are also provisions for “the most extreme measures, and, in

particular, ‘measures for mass violence’, if circumstances do not permit

the rapid detection of the guilty.”

In the same decree of the OKW the guarantee of impunity was assured in

advance to the military criminals from the service personnel of the

German Army. It states there as follows: “The bringing of suits of

actions, committed by officials of the Army and by the service personnel

against hostile civilians is not obligatory even in cases where such

actions at the same time constitute military crimes or offenses . . . .”

In the course of the war the High Command consistently followed this

policy, increasing its terroristic actions with regard to prisoners of

war and the peaceful populations of occupied countries.

The OKW directive of 16 September 1941, states: “At the same time, it

must be borne in mind that a human life in the countries in question is

frequently held to be of no account and that a warning example can be

made only by measures of exceptional severity” (PS-389).

Addressing the commanders of the army groups on 23 July 1941, the OKW

simply briefed them as follows: “It is not in the demand for additional

security detachments, but in the application of appropriate draconic

measures that the commanding officers must use to keep order in the

regions under their jurisdiction” (PS-459).

The OKW directive of 16 December 1941, states: “The troops . . . have

the right and are obliged to apply . . . any measures whatsoever _also

against women and children_ if this contributes to success . . . .”

(USSR-16).

Among the most brutal OKW directives concerning the treatment of

prisoners of war one must consider the order entitled “Kugel (bullet)”.

The reasons for resorting to capital punishment for prisoners of war

were offenses, which according to international conventions, generally

should not carry any punishment (for example, escape from the camp).

Another order, “Nacht und Nebel”, states:

“Penalty for such offenses, consisting of loss of freedom and

even a life sentence is a sign of weakness. Only death sentence

or measures which entail ignorance of the fate of the guilty by

local population will achieve real effectiveness.” (L-90,

USA-224; Transcript, Afternoon Session, 25 January 1946)

In the course of the present Trial a great deal of evidence of

application of the “Kugel” order has been submitted. One of the examples

of this kind of crime is the murder of 50 officer-pilots. The fact that

this crime was inspired by the High Command cannot be doubted.

OKW also distributed an order for the destruction of the “commando”

units. The original order was submitted to the Court (PS-498, USA-501).

According to this order officers and soldiers of the “commando” units

had to be shot, except in cases when they were to be questioned, after

which they were shot in any case.

These orders were unswervingly carried out by the commanding officers of

Army units. In June 1944 Rundstedt, the Commander-in-Chief of the German

troops in the West, reported that Hitler’s order in regard to “the

treatment of the ‘commando’ groups of the enemy is still being carried

out” (PS-531, USA-550).

3. _The High Command, along with the SS and the Police, is guilty of the

most brutal police actions in the occupied regions._

The instructions relating to special regions, issued by OKW on 13 March

1941, contemplated the necessity of synchronizing the activities in

occupied territories between the army command and the Reichsführer of

the SS. As is seen from the testimony of the chief of the 3d Department

of RSHA and who was concurrently chief of the Einsatzgruppe “D”, Otto

Ohlendorf, and of the chief of the VI Department of RSHA, Walter

Schellenberg, in accordance with OKW instructions there was an agreement

made between the General Staff and the RSHA about the organization of

special “operational groups” of the Security Police and

SD—“Einsatzgruppen”, assigned to the appropriate army detachments.

Crimes committed by the Einsatzgruppen on the territory of the

temporarily occupied regions are countless. The Einsatzgruppen were

acting in close contact with the commanding officers of the appropriate

army groups.

The following excerpt from the report of Einsatzgruppe “A” is extremely

characteristic as evidence:

“. . . among our functions as the establishment of personal

liaison with the commanding officer both at the front and in the

rear. It must be pointed out that the relations with the army

were of the best, in some cases very close, almost hearty, as,

for instance, the commander of the tank group, Colonel-General

Hoppner” (L-180).

4. _The representatives of the High Command acted in all the echelons of

the army, as members of a criminal group._

The directives of the OKW and the General Staff, in spite of the

manifest violations of international law and customs of warfare, not

only did not provoke any protest on the part of the higher staff

officers of the command of the various groups of the armies but were:

inflexibly applied and supplemented by still more cruel orders in the

development of such directives.

In this connection it is characteristic to note the directive of

Fieldmarshal Von Reichenau, army group commander, addressed to his

soldiers: “The soldier in the eastern territories is not only a warrior

skilled in the art of warfare but a bearer of a merciless national

ideology.” And elsewhere, calling for the extermination of the Jews, Von

Reichenau wrote: “Thus the soldier must be in full cognizance of the

necessity for harsh and just revenge on those sub-humans, the Jews”

(USA-556).

As another, example the order of Fieldmarshal Von Mannstein addressed to

his soldiers can be referred to. On the basis of the “political aims of

the war” the Fieldmarshal cynically appealed to his soldiers to wage the

war in violation of the “recognized laws of warfare in Europe”

(USA-927).

Thus, in the course of the hearing of evidence it has been proven

beyond, all, doubt, that the General Staff and the High Command of the

Hitlerite Army comprised a highly dangerous criminal organization.

* * * *

I consider it my duty as a Judge to draw up my dissenting opinion

concerning those important questions on which I disagree with, the

decision adopted by the members of the Tribunal,

Soviet Member, International Military Tribunal,

Major General Jurisprudence.

/s/ I. T. Nikitchenko

Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 01 · 第 196 / 199 题