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