Chapter VII: Part 7

Two frightful world wars and the violent collisions by which peace among the States was violated during the period between these enormous and world embracing conflicts caused the tortured peoples to realize that a true order among the States is not possible as long as such State, by virtue of its sovereignty, has the right to wage war at any time and for any purpose. During the last decades public opinion in the world challenged with ever increasing emphasis the thesis that the decision of waging war is beyond good and evil. A distinction is being made between just and unjust wars and it is asked that the Community of States call to account the State which wages an unjust war and deny it, should it be victorious, the fruits of its outrage. More than that, it is demanded that not only should the guilty State be condemned and its liability be established, but that furthermore those men who are responsible for unleashing the unjust war be tried and sentenced by an International Tribunal. In that respect one goes now-a-days further than even the strictest jurists since the early middle ages. This thought is at the basis of the first three counts of the Indictment which have been put forward in this Trial, to wit, the Indictment for Crimes against Peace. Humanity insists that this idea should in the future be more than a demand,that it should be valid international law.

However, today it is not as yet valid international law. Neither in the statute of the League of Nations, world organization against war, nor in the Kellogg-Briand Pact, nor in any other of the treaties which were concluded after 1918 in that first upsurge of attempts to ban aggressive warfare, has this idea been realized. But above all the practice of the League of Nations has, up to the very recent past, been quite unambiguous in that regard. On several occasions the League had to decide upon the lawfulness or unlawfulness of action by force of one member against another member, but it always condemned such action by force merely as a violation of international law by the State, and never thought of bringing up for trial the statesmen, generals, and industrialists of the state which recurred to force. And when the new organization for world peace was set up last summer in San Francisco, no new legal maxim was created under which an international tribunal would inflict punishment upon those who unleashed an unjust war. The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not invoke existing international law, it is rather a proceeding pursuant to a new penal law, a penal law enacted only after the crime. This is repugnant to a principle of jurisprudence sacred to the civilized world, the partial violation of which by Hitler’s Germany has been vehemently discountenanced outside and inside the Reich. This principle is to the effect that only he can be punished who offended against a law in existence at the time of the commission of the act and imposing a penalty. This maxim is one of the great fundamental principles of the political systems of the Signatories of the Charter for this Tribunal themselves, to wit, of England since the Middle Ages, of the United States since their creation, of France since its great revolution, and the Soviet Union. And recently when the Control Council for Germany enacted a law to assure the return to a just administration of penal law in Germany, it decreed in the first place the restoration of the maxim, “No punishment without a penal law in force at the time of the commission of the act”. This maxim is precisely not a rule of expediency but it derives from the recognition of the fact that any defendant must needs consider himself unjustly treated if he is punished under an _ex post facto_ law.

The Defense of all defendants would be neglectful of their duty if they acquiesced silently in a deviation from existing international law and in disregard of a commonly recognized principle of modern penal jurisprudence and if they suppressed doubts which are openly expressed today outside Germany, all the more so as it is the unanimous conviction of the Defense that this Trial could serve in a high degree the progress of world order even if, nay in the very instance where it did not depart from existing international law. Wherever the Indictment charges acts which were not punishable at the time the Tribunal would have to confine itself to a thorough examination and findings as to what acts were committed, for which purposes the Defense would cooperate to the best of their ability as true assistants of the Court. Under the impact of these findings of the Tribunal the States of the international legal community would then create a new law under which those who in the future would be guilty of starting an unjust war would be threatened with punishment by an International Tribunal.

The Defense are also of the opinion that other principles of a penal character contained in the Charter are in contradiction with the maxim, “_Nulla Poena Sine Lege_”.

Finally, the Defense consider it their duty to point out at this juncture another peculiarity of this Trial which departs from the commonly recognized principles of modern jurisprudence. The Judges have been appointed exclusively by States which were the one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal and of the rules of law, prosecutor and judge. It used to be until now the common legal conception that this should not be so; just as the United States of America, as the champion for the institution of international arbitration and jurisdiction, always demanded that neutrals, or neutrals and representatives of all parties, should be called to the Bench. This principle has been realized in an exemplary manner in the case of the Permanent Court of International Justice at The Hague.

In view of the variety and difficulty of these questions of law the Defense hereby pray:

That the Tribunal direct that an opinion be submitted by internationally recognized authorities on international law on the legal elements of this Trial under the Charter of the Tribunal.

On behalf of the attorneys for all defendants who are present.

/s/ DR. STAHMER

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[19] The Tribunal rejected this motion 21 November 1945, ruling that insofar as it was a plea to the jurisdiction of the Tribunal it was in conflict with Article 3 of the Charter.

JUDGMENT

On 8 August 1945, the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics entered into an Agreement establishing this Tribunal for the Trial of War Criminals whose offenses have no particular geographical location. In accordance with Article 5, the following Governments of the United Nations have expressed their adherence to the Agreement:

Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia, Honduras, Norway, Panama, Luxembourg, Haiti, New Zealand, India, Venezuela, Uruguay, and Paraguay.

By the Charter annexed to the Agreement, the constitution, jurisdiction, and functions of the Tribunal were defined.

The Tribunal was invested with power to try and punish persons who had committed Crimes against Peace, War Crimes, and Crimes against Humanity as defined in the Charter.

The Charter also provided that 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.

In Berlin, on 18 October 1945, in accordance with Article 14 of the Charter, an Indictment was lodged against the defendants named in the caption above, who had been designated by the Committee of the Chief Prosecutors of the signatory Powers as major war criminals.

A copy of the Indictment in the German language was served upon each defendant in custody, at least 30 days before the Trial opened.

This Indictment charges the defendants with Crimes against Peace by the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances; with War Crimes; and with Crimes against Humanity. The defendants are also charged with participating in the formulation or execution of a common plan or conspiracy to commit all these crimes. The Tribunal was further asked by the Prosecution to declare all the named groups or organizations to be criminal within the meaning of the Charter.

The Defendant Robert Ley committed suicide in prison on 25 October 1945. On 15 November 1945 the Tribunal decided that the Defendant Gustav Krupp von Bohlen und Halbach could not then be tried because of his physical and mental condition, but that the charges against him in the Indictment should be retained for trial thereafter, if the physical and mental condition of the defendant should permit. On 17 November 1945 the Tribunal decided to try the Defendant Bormann in his absence under, the provisions of Article 12 of the Charter. After argument, and consideration of full medical reports, and a statement from the defendant himself, the Tribunal decided on 1 December 1945 that no grounds existed for a postponement of the Trial against the Defendant Hess because of his mental condition. A similar decision was made in the case of the Defendant Streicher.

In accordance with Articles 16 and 23 of the Charter, Counsel were either chosen by the defendants in custody themselves, or at their request were appointed by the Tribunal. In his absence the Tribunal appointed Counsel for the Defendant Bormann, and also assigned Counsel to represent the named groups or organizations.

The Trial, which was conducted in four languages—English, Russian, French, and German—began on 20 November 1945, and pleas of “Not Guilty” were made by all the defendants except Bormann.

The hearing of evidence and the speeches of Counsel concluded on 31 August 1946.

Four hundred and three open sessions of the Tribunal have been held. Thirty-three witnesses gave evidence orally for the Prosecution against the individual defendants and 61 witnesses, in addition to 19 of the defendants, gave evidence for the Defense.

A further 143 witnesses gave evidence for the Defense by means of written answers to interrogatories.

The Tribunal appointed Commissioners to hear evidence relating to the organizations, and 101 witnesses were heard for the Defense before the Commissioners, and 1,809 affidavits from other witnesses were submitted. Six reports were also submitted, summarizing the contents of a great number of further affidavits.

Thirty-eight thousand affidavits, signed by 155,000 people, were submitted on behalf of the Political Leaders, 136,213 on behalf of the SS, 10,000 on behalf of the SA, 7,000 on behalf of the SD, 3,000 on behalf of the General Staff and OKW, and 2,000 on behalf of the Gestapo.

The Tribunal itself heard 22 witnesses for the organizations. The documents tendered in evidence for the Prosecution of the individual defendants and the organizations numbered several thousands. A complete stenographic record of everything said in Court has been made, as well as an electrical recording of all the proceedings.

Copies of all the documents put in evidence by the Prosecution have been supplied to the Defense in the German language. The applications made by the defendants for the production of witnesses and documents raised serious problems in some instances, on account of the unsettled state of the Country. It was also necessary to limit the number of witnesses to be called, in order to have an expeditious hearing, in accordance with Article 18 (c) of the Charter. The Tribunal, after examination, granted all those applications which in its opinion were relevant to the defense of any defendant or named group or organization, and were not cumulative. Facilities were provided for obtaining those witnesses and documents granted through the office of the General Secretary established by the Tribunal.

Much of the evidence presented to the Tribunal on behalf of the Prosecution was documentary evidence, captured by the Allied armies in German army headquarters, Government buildings, and elsewhere. Some of the documents were found in salt mines, buried in the ground, hidden behind false walls and in other places thought to be secure from discovery. The case, therefore, against the defendants rests in a large measure on documents of their own making, the authenticity of which has not been challenged except in one or two cases.

_The Charter Provisions_

The individual defendants are indicted under Article 6 of the Charter, which is as follows:

“Article 6. The Tribunal established by the Agreement referred
to in Article 1 hereof for the trial and punishment of the major
war criminals of the European Axis countries shall have the
power to try and punish persons who, acting in the interests of
the European Axis countries, whether as individuals or as
members of organizations, committed any of the following crimes:

“The following acts, or any of them, are crimes coming within
the jurisdiction of the Tribunal for which there shall be
individual responsibility:

“(a) Crimes Against Peace: namely, planning, preparation,
initiation or waging of a war of aggression, or a war in
violation of international treaties, agreements or assurances,
or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing:

“(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 of
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.

“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.”

These provisions are binding upon the Tribunal as the law to be applied to the case. The Tribunal will later discuss them in more detail; but, before doing so, it is necessary to review the facts. For the purpose of showing the background of the aggressive war and war crimes charged in the Indictment, the Tribunal will begin by reviewing some of the events that followed the first World War, and in particular, by tracing the growth of the Nazi Party under Hitler’s leadership to a position of supreme power from which it controlled the destiny of the whole German People, and paved the way for the alleged commission of all the crimes charged against the defendants.

_The Nazi Regime in Germany
the Origin and Aims of the Nazi Party_

On 5 January 1919, not two months after the conclusion of the Armistice which ended the first World War, and six months before the signing of the peace treaties at Versailles, there came into being in Germany a small political party called the German Labor Party. On 12 September 1919 Adolf Hitler became a member of this Party, and at the first public meeting held in Munich, on 24 February 1920, he announced the Party’s program. That program, which remained unaltered until the Party was dissolved in 1945, consisted of 25 points, of which the following five are of particular interest on account of the light they throw on the matters with which the Tribunal is concerned:

“_Point 1._ We demand the unification of all Germans in the
Greater Germany, on the basis of the right of self-determination
of peoples.

_Point 2._ We demand equality of rights for the German People in
respect to the other nations; abrogation of the peace treaties
of Versailles and Saint Germain.

_Point 3._ We demand land and territory for the sustenance of
our people, and the colonization of our surplus population.

_Point 4._ 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 . . . .

_Point 22._ We demand abolition of the mercenary troops and
formation of a national army.”

Of these aims, the one which seems to have been regarded as the most important, and which figured in almost every public speech, was the removal of the “disgrace” of the Armistice, and the restrictions of the peace treaties of Versailles and Saint Germain. In a typical speech at Munich on 13 April 1923, for example, Hitler said with regard to the Treaty of Versailles:

“The Treaty was made in order to bring 20 million Germans to
their deaths, and to ruin the German Nation . . . . At its
foundation our movement formulated three demands:

1. Setting aside of the Peace Treaty.

2. Unification of all Germans.

3. Land and soil to feed our Nation.”

The demand for the unification of all Germans in the Greater Germany was to play a large part in the events preceding the seizure of Austria and Czechoslovakia; the abrogation of the Treaty of Versailles was to become a decisive motive in attempting to justify the policy of the German Government; the demand for land was to be the justification for the acquisition of “living space” at the expense of other nations; the expulsion of the Jews from membership of the race of German blood was to lead to the atrocities against the Jewish people; and the demand for a national army was to result in measures of rearmament on the largest possible scale, and ultimately to war.

On 29 July 1921, the Party which had changed its name to National Sozialistische Deutsche Arbeiter Partei (NSDAP) was reorganized, Hitler becoming the first “Chairman”. It was in this year that the Sturmabteilung or SA was founded, with Hitler at its head, as a private para-military force, which allegedly was to be used for the purpose of protecting NSDAP leaders from attack by rival political parties, and preserving order at NSDAP meetings, but in reality was used for fighting political opponents on the streets. In March 1923 the Defendant Göring was appointed head of the SA.

The procedure within the Party was governed in the most absolute way by the “Leadership Principle” (Führerprinzip).

According to the principle, each Führer has the right to govern, administer, or decree, subject to no control of any kind and at his complete discretion, subject only to the orders he received from above.

This principle applied in the first instance to Hitler himself as the leader of the Party, and in a lesser degree to all other Party officials. All members of the Party swore an oath of “eternal allegiance” to the leader.

There were only two ways in which Germany could achieve the three main aims above-mentioned, by negotiation, or by force. The 25 points of the NSDAP program do not specifically mention the methods on which the leaders of the Party proposed to rely, but the history of the Nazi regime shows that Hitler and his followers were only prepared to negotiate on the terms that their demands were conceded, and that force would be used if they were not.

On the night of 8 November 1923, an abortive putsch took place in Munich. Hitler and some of his followers burst into a meeting in the Bürgerbräu Cellar, which was being addressed by the Bavarian Prime Minister Kahr, with the intention of obtaining from him a decision to march forthwith on Berlin. On the morning of 9 November, however, no Bavarian support was forthcoming, and Hitler’s demonstration was met by the armed forces of the Reichswehr and the police. Only a few volleys were fired; and after a dozen of his followers had been killed, Hitler fled for his life, and the demonstration was over. The Defendants Streicher, Frick, and Hess all took part in the attempted rising. Hitler was later tried for high treason, and was convicted and sentenced to imprisonment. The SA was outlawed. Hitler was released from prison in 1924 and in 1925 the Schutzstaffeln, or SS, was created, nominally to act as his personal bodyguard, but in reality to terrorize political opponents. This was also the year of the publication of _Mein Kampf_, containing the political views and aims of Hitler, which came to be regarded as the authentic source of Nazi doctrine.

_The Seizure of Power_

In the eight years that followed the publication of _Mein Kampf_, the NSDAP greatly extended its activities throughout Germany, paying particular attention to the training of youth in the ideas of National Socialism. The first Nazi youth organization had come into existence in 1922, but it was in 1925 that the Hitler Jugend was officially recognized by the NSDAP. In 1931 Baldur von Schirach, who had joined the NSDAP in 1925, became Reich Youth Leader of the NSDAP.

The Party exerted every effort to win political support from the German People. Elections were contested both for the Reichstag and the Landtage. The NSDAP leaders did not make any serious attempt to hide the fact that their only purpose in entering German political life was in order to destroy the democratic structure of the Weimar Republic, and to substitute for it a National Socialist totalitarian regime which would enable them to carry out their avowed policies without opposition. In preparation for the day when he would obtain power in Germany, Hitler in January 1929, appointed Heinrich Himmler as Reichsführer SS with the special task of building the SS into a strong but elite group which would be dependable in all circumstances.

On 30 January 1933 Hitler succeeded in being appointed Chancellor of the Reich by President Von Hindenburg. The Defendants Göring, Schacht, and Von Papen were active in enlisting support to bring this about. Von Papen had been appointed Reich Chancellor on 1 June 1932. On 14 June he rescinded the decree of the Brüning Cabinet of 13 April 1932, which had dissolved the Nazi para-military organizations, including the SA and the SS. This was done by agreement between Hitler and Von Papen, although Von Papen denies that it was agreed as early as 28 May, as Dr. Hans Volz asserts in “Dates from the History of the NSDAP”; but that it was the result of an agreement was admitted in evidence by Von Papen.

The Reichstag elections of 31 July 1932 resulted in a great accession of strength to the NSDAP, and Von Papen offered Hitler the post of Vice Chancellor, which he refused, insisting upon the Chancellorship itself. In November 1932 a petition signed by leading industrialists and financiers was presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler; and in the collection of signatures, to the petition Schacht took a prominent part.

The election of 6 November, which followed the defeat of the Government, reduced the number of NSDAP members, but Von Papen made further efforts to gain Hitler’s participation, without success. On 12 November Schacht wrote to Hitler:

“I have no doubt that the present development of things can only
lead to your becoming Chancellor. It seems as if our attempt to
collect a number of signatures from business circles for this
purpose was not altogether in vain . . . .”

After Hitler’s refusal of 16 November, Von Papen resigned, and was succeeded by General Von Schleicher; but Von Papen still continued his activities. He met Hitler at the house of the Cologne banker Von Schröder on 4 January 1933, and attended a meeting at the Defendant Von Ribbentrop’s house on 22 January, with the Defendant Göring and others. He also had an interview with President Hindenburg on 9 January, and from 22 January onwards he discussed officially with Hindenburg the formation of a Hitler Cabinet.

Hitler held his first Cabinet meeting on the day of his appointment as Chancellor, at which the Defendants Göring, Frick, Funk, Von Neurath, and Von Papen were present in their official capacities. On 28 February 1933 the Reichstag building in Berlin was set on fire. This fire was used by Hitler and his Cabinet as a pretext for passing on the same day a decree suspending the constitutional guarantees of freedom. The decree was signed by President Hindenburg and countersigned by Hitler and the Defendant Frick, who then occupied the post of Reich Minister of the Interior. On 5 March elections were held, in which the NSDAP obtained 288 seats of the total of 647. The Hitler Cabinet was anxious to pass an “Enabling Act” that would give them full legislative powers, including the power to deviate from the Constitution. They were without the necessary majority in the Reichstag to be able to do this constitutionally. They therefore made use of the decree suspending the guarantees of freedom and took into so-called “protective custody” a large number of Communist deputies and Party officials. Having done this, Hitler introduced the “Enabling Act” into the Reichstag, and after he had made it clear that if it was not passed, further forceful measures would be taken, the act was passed on 24 March 1933.

_The Consolidation of Power_

The NSDAP, having achieved power in this way, now proceeded to extend its hold on every phase of German life. Other political parties were persecuted, their property and assets confiscated, and many of their members placed in concentration camps. On 26 April 1933 the Defendant Göring founded in Prussia the Geheime Staatspolizei, or Gestapo, as a secret police, and confided to the deputy leader of the Gestapo that its main task was to eliminate political opponents of National Socialism and Hitler. On 14 July 1933 a law was passed declaring the NSDAP to be the only political party, and making it criminal to maintain or form any other political party.

In order to place the complete control of the machinery of Government in the hands of the Nazi leaders, a series of laws and decrees were passed which reduced the powers of regional and local governments throughout Germany, transforming them into subordinate divisions of the Government of the Reich. Representative assemblies in the Laender were abolished, and with them all local elections. The Government then proceeded to secure control of the Civil Service. This was achieved by a process of centralization, and by a careful sifting of the whole Civil Service administration. By a law of 7 April it was provided that officials “who were of non-Aryan descent” should be retired; and it was also decreed that “officials who because of their previous political activity do not offer security that they will exert themselves for the national state without reservation shall be discharged.” The law of 11 April 1933 provided for the discharge of “all civil servants who belong to the Communist Party.” Similarly, the judiciary was subjected to control. Judges were removed from the bench for political or racial reasons. They were spied upon and made subject to the strongest pressure to join the Nazi Party as an alternative to being dismissed. When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken away and given to a newly established “People’s Court” consisting of two judges and five officials of the Party. Special courts were set up to try political crimes and only party members were appointed as judges. Persons were arrested by the SS for political reasons, and detained in prisons and concentration camps; and the judges were without power to intervene in any way. Pardons were granted to members of the Party who had been sentenced by the judges for proved offenses. In 1935 several officials of the Hohenstein concentration camp were convicted of inflicting brutal treatment upon the inmates. High Nazi officials tried to influence the Court, and after the officials had been convicted, Hitler pardoned them all. In 1942 “judges’ letters” were sent to all German judges by the Government, instructing them as to the “general lines” that they must follow.

In their determination to remove all sources of opposition, the NSDAP leaders turned their attention to the trade unions, the churches, and the Jews. In April 1933 Hitler ordered the late Defendant Ley, who was then staff director of the political organization of the NSDAP, “to take over the trade unions.” Most of the trade unions of Germany were joined together in two large federations, the “Free Trade Unions” and the “Christian Trade Unions.” Unions outside these two large federations contained only 15 percent of the total union membership. On 21 April 1933 Ley issued an NSDAP directive announcing a “coordination action” to be carried out on 2 May against the Free Trade Unions. The directive ordered that SA and SS men were to be employed in the planned “occupation of trade union properties and for the taking into protective custody of personalities who come into question.” At the conclusion of the action the official NSDAP press service reported that the National Socialist Factory Cells Organization had “eliminated the old leadership of Free Trade Unions” and taken over the leadership themselves. Similarly, on 3 May 1933 the NSDAP press service announced that the Christian trade unions “have unconditionally subordinated themselves to the leadership of Adolf Hitler.” In place of the trade unions the Nazi Government set up a Deutsche Arbeits Front (DAF), controlled by the NSDAP, and which, in practice, all workers in Germany were compelled to join. The chairmen of the unions were taken into custody and were subjected to ill-treatment, ranging from assault and battery to murder.

In their effort to combat the influence of the Christian churches, whose doctrines were fundamentally at variance with National Socialist philosophy and practice, the Nazi Government proceeded more slowly. The extreme step of banning the practice of the Christian religion was not taken, but year by year efforts were made to limit the influence of Christianity on the German people, since, in the words used by the Defendant Bormann to the Defendant Rosenberg in an official letter, “the Christian religion and National Socialist doctrines are not compatible.” In the month of June 1941 the Defendant Bormann issued a secret decree on the relation of Christianity and National Socialism. The decree stated that:

“For the first time in German history the Führer consciously and
completely has the leadership in his own hand. With the Party,
its components and attached units, the Führer has created for
himself and thereby the German Reich Leadership, an instrument
which makes him independent of the Treaty . . . . More and more
the people must be separated from the churches and their organs,
the pastor . . . . Never again must an influence on leadership
of the people be yielded to the churches. This influence must be
broken completely and finally. Only the Reich Government and by
its direction the Party, its components and attached units, have
a right to leadership of the people.”

From the earliest days of the NSDAP, anti-Semitism had occupied a prominent place in National Socialist thought and propaganda. The Jews, who were considered to have no right to German citizenship, were held to have been largely responsible for the troubles with which the Nation was afflicted following on the war of 1914-18. Furthermore, the antipathy to the Jews was intensified by the insistence which was laid upon the superiority of the Germanic race and blood. The second chapter of Book 1 of _Mein Kampf_ is dedicated to what may be called the “Master Race” theory, the doctrine of Aryan superiority over all other races, and the right of Germans in virtue of this superiority to dominate and use other peoples for their own ends. With the coming of the Nazis into power in 1933, persecution of the Jews became official state policy. On 1 April 1933, a boycott of Jewish enterprises was approved by the Nazi Reich Cabinet, and during the following years a series of anti-Semitic laws was passed, restricting the activities of Jews in the civil service, in the legal profession, in journalism and in the armed forces. In September 1935, the so-called Nuremberg Laws were passed, the most important effect of which was to deprive Jews of German citizenship. In this way the influence of Jewish elements on the affairs of Germany was extinguished, and one more potential source of opposition to Nazi policy was rendered powerless.

In any consideration of the crushing of opposition, the massacre of 30 June 1934 must not be forgotten. It has become known as the “Röhm Purge” or “the blood bath”, and revealed the methods which Hitler and his immediate associates, including the Defendant Göring, were ready to employ to strike down all opposition and consolidate their power. On that day Röhm, the Chief of Staff of the SA since 1931, was murdered by Hitler’s orders, and the “Old Guard” of the SA was massacred without trial and without warning. The opportunity was taken to murder a large number of people who at one time or another had opposed Hitler.

The ostensible ground for the murder of Röhm was that he was plotting to overthrow Hitler, and the Defendant Göring gave evidence that knowledge of such a plot had come to his ears. Whether this was so or not it is not necessary to determine.

On 3 July the Cabinet approved Hitler’s action and described it as “legitimate self-defense by the State.”

Shortly afterwards Hindenburg died, and Hitler became both Reich President and Chancellor. At the Nazi-dominated plebiscite, which followed, 38 million Germans expressed their approval, and with the Reichswehr taking the oath of allegiance to the Führer, full power was now in Hitler’s hands.

Germany had accepted the dictatorship with all its methods of terror, and its cynical and open denial of the rule of law.

Apart from the policy of crushing the potential opponents of their regime, the Nazi Government took active steps to increase its power over the German population. In the field of education, everything was done to ensure that the youth of Germany was brought up in the atmosphere of National Socialism and accepted National Socialist teachings. As early as 7 April 1933 the law reorganizing the civil service had made it possible for the Nazi Government to remove all “subversive and unreliable teachers”; and this was followed by numerous other measures to make sure that the schools were staffed by teachers who could be trusted to teach their pupils the full meaning of the National Socialist creed. Apart from the influence of National Socialist teaching in the schools, the Hitler Youth Organization was also relied upon by the Nazi Leaders for obtaining fanatical support from the younger generation. The Defendant Von Schirach, who had been Reich Youth Leader of the NSDAP since 1931, was appointed Youth Leader of the German Reich in June 1933. Soon all the youth organizations had been either dissolved or absorbed by the Hitler Youth, with the exception of the “Catholic Youth”. The Hitler Youth was organized on strict military lines, and as early as 1933 the Wehrmacht was cooperating in providing pre-military training for the Reich Youth.

The Nazi Government endeavored to unite the Nation in support of their policies through the extensive use of propaganda. A number of agencies was set up, whose duty was to control and influence the press, the radio, films, publishing firms, etc., in Germany, and to supervise entertainment and cultural and artistic activities. All these agencies came under Goebbels’ Ministry of the People’s Enlightenment and Propaganda, which together with a corresponding organization in the NSDAP and the Reich Chamber of Culture, was ultimately responsible for exercising this supervision. The Defendant Rosenberg played a leading part in disseminating the National Socialist doctrines on behalf of the Party, and the Defendant Fritzsche, in conjunction with Goebbels, performed the same task for the State.

The greatest emphasis was laid on the supreme mission of the German People to lead and dominate by virtue of their Nordic blood and racial purity; and the ground was thus being prepared for the acceptance of the idea of German world supremacy.

Through the effective control of the radio and the press, the German People, during the years which followed 1933, were subjected to the most intensive propaganda in furtherance of the regime. Hostile criticism, indeed criticism of any kind, was forbidden, and the severest penalties were imposed on those who indulged in it.

Independent judgment, based on freedom of thought, was rendered quite impossible.

_Measures of Rearmament_

During the years immediately following Hitler’s appointment as Chancellor, the Nazi Government set about reorganizing the economic life of Germany, and in particular the armament industry. This was done on a vast scale and with extreme thoroughness.

It was necessary to lay a secure financial foundation for the building of armaments, and in April 1936 the Defendant Göring was appointed coordinator for raw materials and foreign exchange, and empowered to supervise all State and Party activities in these fields. In this capacity he brought together the War Minister, the Minister of Economics, the Reich Finance Minister, the President of the Reichsbank and the Prussian Finance Minister to discuss problems connected with war mobilization, and on 27 May 1936, in addressing these men, Göring opposed any financial limitation of war production and added that “all measures are to be considered from the standpoint of an assured waging of war.” At the Party Rally in Nuremberg in 1936, Hitler announced the establishment of the Four Year Plan and the appointment of Göring as the Plenipotentiary in charge. Göring was already engaged in building a strong air force and on 8 July 1938 he announced to a number of leading German aircraft manufacturers that the German Air Force was already superior in quality and quantity to the English. On 14 October 1938, at another conference, Göring announced that Hitler had instructed him to organize a gigantic armament program, which would make insignificant all previous achievements. He said that he had been ordered to build as rapidly as possible an air force five times as large as originally planned, to increase the speed of the rearmament of the navy and army, and to concentrate on offensive weapons, principally heavy artillery and heavy tanks. He then laid down a specific program designed to accomplish these ends. The extent to which rearmament had been accomplished was stated by Hitler in his memorandum of 9 October 1939, after the campaign in Poland. He said:

“The military application of our people’s strength has been
carried through to such an extent that within a short time at
any rate it cannot be markedly improved upon by any manner of
effort . . . .

“The warlike equipment of the German people is at present larger
in quantity and better in quality for a greater number of German
divisions than in the year 1914. The weapons themselves, taking
a substantial cross-section, are more modern than is the case of
any other country in the world at this time. They have just
proved their supreme war worthiness in their victorious campaign
. . . . There is no evidence available to show that any country
in the world disposes of a better total ammunition stock than
the Reich . . . . The A. A. artillery is not equalled by any
country in the world.”

In this reorganization of the economic life of Germany for military purposes, the Nazi Government found the German armament industry quite willing to cooperate, and to play its part in the rearmament program. In April 1933 Gustav Krupp von Bohlen submitted to Hitler on behalf of the Reich Association of German Industry a plan for the reorganization of German industry, which he stated was characterized by the desire to coordinate economic measures and political necessity. In the plan itself Krupp stated that “the turn of political events is in line with the wishes which I myself and the board of directors have cherished for a long time.” What Krupp meant by this statement is fully shown by the draft text of a speech which he planned to deliver in the University of Berlin in January 1944, though the speech was in fact never delivered. Referring to the years 1919 to 1933, Krupp wrote:

“It is the one great merit of the entire German war economy that
it did not remain idle during those bad years, even though its
activity could not be brought to light, for obvious reasons.
Through years of secret work, scientific and basic groundwork
was laid in order to be ready again to work for the German armed
forces at the appointed hour, without loss of time or experience
. . . . Only through the secret activity of German enterprise
together with the experience gained meanwhile through the
production of peace time goods was it possible after 1933 to
fall into step with the new tasks arrived at, restoring
Germany’s military power.”

In October 1933 Germany withdrew from the International Disarmament Conference and the League of Nations. In 1935 the Nazi Government decided to take the first open steps to free itself from its obligations under the Treaty of Versailles. On 10 March 1935 the Defendant Göring announced that Germany was building a military air force. Six days later, on 16 March 1935, a law was passed bearing the signatures, among others, of the Defendants Göring, Hess, Frank, Frick, Schacht, and Von Neurath, instituting compulsory military service and fixing the establishment of the German Army at a peace time strength of 500,000 men. In an endeavor to reassure public opinion in other countries, the Government announced on 21 May 1935 that Germany would, though renouncing the disarmament clauses, still respect the territorial limitations of the Versailles Treaty, and would comply with the Locarno Pacts. Nevertheless, on the very day of this announcement, the secret Reich Defense Law was passed and its publication forbidden by Hitler. In this law, the powers and duties of the Chancellor and other Ministers were defined, should Germany become involved in war. It is clear from this law that by May of 1935 Hitler and his Government had arrived at the stage in the carrying out of their policies when it was necessary for them to have in existence the requisite machinery for the administration and government of Germany in the event of their policy leading to war.

At the same time that this preparation of the German economy for war was being carried out, the German armed forces themselves were preparing for a rebuilding of Germany’s armed strength.

The German Navy was particularly active in this regard. The official German Naval historians, Assmann and Gladisch, admit that the Treaty of Versailles had only been in force for a few months before it was violated, particularly in the construction of a new submarine arm.

The publications of Captain Schuessler and Colonel Scherff, both of which were sponsored by the Defendant Raeder, were designed to show the German People the nature of the Navy’s effort to rearm in defiance of the Treaty of Versailles.

The full details of these publications have been given in evidence.

On 12 May 1934 the Defendant Raeder issued the Top Secret armament plan for what was called the “Third Armament Phase”. This contained the sentence:

“All theoretical and practical A-preparations are to be drawn up
with a primary view to readiness for a war _without any alert
period_.”

One month later, in June 1934, the Defendant Raeder had a conversation with Hitler in which Hitler instructed him to keep secret the construction of U-boats and of warships over the limit of 10,000 tons which was then being undertaken.

And on 2 November 1934, the Defendant Raeder had another conversation with Hitler and the Defendant Göring, in which Hitler said that he considered it vital that the German Navy “should be increased as planned, as no war could be carried on if the Navy was not able to safeguard the ore imports from Scandinavia”.

The large orders for building given in 1933 and 1934 are sought to be excused by the Defendant Raeder on the ground that negotiations were in progress for an agreement between Germany and Great Britain permitting Germany to build ships in excess of the provisions of the Treaty of Versailles. This agreement, which was signed in 1935, restricted the German Navy to a tonnage equal to one-third of that of the British, except in respect of U-boats where 45 percent was agreed, subject always to the right to exceed this proportion after first informing the British Government and giving them an opportunity of discussion.

The Anglo-German Treaty followed in 1937, under which both Powers bound themselves to notify full details of their building program at least four months before any action was taken.

It is admitted that these clauses were not adhered to by Germany.

In capital vessels, for example, the displacement details were falsified by 20 percent, whilst in the case of U-boats, the German historians Assmann and Gladisch say:

“It is probably just in the sphere of submarine construction
that Germany adhered the least to the restrictions of the
German-British Treaty.”

The importance of these breaches of the Treaty is seen when the motive for this rearmament is considered. In the year 1940 the Defendant Raeder himself wrote:

“The Führer hoped until the last moment to be able to put off
the threatening conflict with England until 1944-45. At that
time, the Navy would have had available a fleet with a powerful
U-boat superiority, and a much more favorable ratio as regards
strength in all other types of ships, particularly those
designed for warfare on the High Seas.”

The Nazi Government as already stated, announced on 21 May 1935 their intention to respect the territorial limitations of the Treaty of Versailles. On 7 March 1936, in defiance of that Treaty, the demilitarized zone of the Rhineland was entered by German troops. In announcing this action to the German Reichstag, Hitler endeavored to justify the re-entry by references to the recently concluded alliances between France and the Soviet Union, and between Czechoslovakia and the Soviet Union. He also tried to meet the hostile reaction which he no doubt expected to follow this violation of the Treaty by saying:

“We have no territorial claims to make in Europe.”

_The Common Plan of Conspiracy and Aggressive War_

The Tribunal now turns to the consideration of the Crimes against Peace charged in the Indictment. Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace. Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other States. It will be convenient to consider the question of the existence of a common plan and the question of aggressive war together, and to deal later in this Judgment with the question of the individual responsibility of the defendants.

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world.

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

The first acts of aggression referred to in the Indictment are the seizure of Austria and Czechoslovakia; and the first war of aggression charged in the Indictment is the war against Poland begun on 1 September 1939.

Before examining that charge it is necessary to look more closely at some of the events which preceded these acts of aggression. The war against Poland did not come suddenly out of an otherwise clear sky; the evidence has made it plain that this war of aggression, as well as the seizure of Austria and Czechoslovakia, was premeditated and carefully prepared, and was not undertaken until the moment was thought opportune for it to be carried through as a definite part of the pre-ordained scheme and plan. For the aggressive designs of the Nazi Government were not accidents arising out of the immediate political situation in Europe and the world; they were a deliberate and essential part of Nazi foreign policy.

From the beginning, the National Socialist movement claimed that its object was to unite the German People in the consciousness of their mission and destiny, based on inherent qualities of race, and under the guidance of the Führer.

For its achievement, two things were deemed to be essential: the disruption of the European order as it had existed since the Treaty of Versailles, and the creation of a Greater Germany beyond the frontiers of 1914. This necessarily involved the seizure of foreign territories.

War was seen to be inevitable, or at the very least, highly probable, if these purposes were to be accomplished. The German People, therefore, with all their resources, were to be organized as a great political-military army, schooled to obey without question any policy decreed by the State.

_Preparation for Aggression_

In _Mein Kampf_ Hitler had made this view quite plain. It must be remembered that _Mein Kampf_ was no mere private diary in which the secret thoughts of Hitler were set down. Its contents were rather proclaimed from the house-tops. It was used in the schools and Universities and among the Hitler Youth, in the SS and the SA, and among the German People generally, even down to the presentation of an official copy to all newly-married people. By the year 1945 over 6½ million copies had been circulated. The general contents are well known. Over and over again Hitler asserted his belief in the necessity of force as the means of solving international problems, as in the following quotation:

“The soil on which we now live was not a gift bestowed by Heaven
on our forefathers. They had to conquer it by risking their
lives. So also in the future, our people will not obtain
territory, and therewith the means of existence, as a favor from
any other people, but will have to win it by the power of a
triumphant sword.”

_Mein Kampf_ contains many such passages, and the extolling of force as an instrument of foreign policy is openly proclaimed.

The precise objectives of this policy of force are also set forth in detail. The very first page of the book asserts that “German-Austria must be restored to the great German Motherland,” not on economic grounds, but because “people of the same blood should be in the same Reich.”

The restoration of the German frontiers of 1914 is declared to be wholly insufficient, and if Germany is to exist at all, it must be as a world power with the necessary territorial magnitude.

_Mein Kampf_ is quite explicit in stating where the increased territory is to be found:

“Therefore we National Socialists have purposely drawn a line
through the line of conduct followed by pre-war Germany in
foreign policy. We put an end to the perpetual Germanic march
towards the South and West of Europe, and turn our eyes towards
the lands of the East. We finally put a stop to the colonial and
trade policy of the pre-war times, and pass over to the
territorial policy of the future.

“But when we speak of new territory in Europe today, we must
think principally of Russia and the border states subject to
her.”

_Mein Kampf_ is not to be regarded as a mere literary exercise, nor as an inflexible policy or plan incapable of modification.

Its importance lies in the unmistakable attitude of aggression revealed throughout its pages.

_The Planning of Aggression_

Evidence from captured documents has revealed that Hitler held four secret meetings to which the Tribunal proposes to make special reference because of the light they shed upon the question of the common plan and aggressive war.

These meetings took place on 5 November 1937, 23 May 1939, 22 August 1939, and 23 November 1939.

At these meetings important declarations were made by Hitler as to his purposes, which are quite unmistakable in their terms.

The documents which record what took place at these meetings have been subject to some criticism at the hands of defending Counsel.

Their essential authenticity is not denied, but it is said, for example, that they do not propose to be verbatim transcripts of the speeches they record, that the document dealing with the meeting on 5 November 1937, was dated five days after the meeting had taken place, and that the two documents dealing with the meeting of 22 August 1939 differ from one another, and are unsigned.

Making the fullest allowance for criticism of this kind, the Tribunal is of opinion that the documents are documents of the highest value, and that their authenticity and substantial truth are established.

They are obviously careful records of the events they describe, and they have been preserved as such in the archives of the German Government, from whose custody they were captured. Such documents could never be dismissed as inventions, nor even as inaccurate or distorted; they plainly record events which actually took place.