Chapter IX: Part 9

The plan to seize Belgium and the Netherlands was considered in August 1938, when the attack on Czechoslovakia was being formulated, and the possibility of war with France and England was contemplated. The advantage to Germany of being able to use these countries for their own purposes, particularly as air bases in the war against England and France, was emphasized. In May of 1939, when Hitler made his irrevocable decision to attack Poland, and foresaw the possibility at least of a war with England and France in consequence, he told his military commanders:

“Dutch and Belgian air bases must be occupied . . . .
Declarations of neutrality must be ignored.”

On 22 August in the same year, he told his military commanders that England and France, in his opinion, would not “violate the neutrality of these countries.” At the same time he assured Belgium and Holland and Luxembourg that he would respect their neutrality; and on 6 October 1939, after the Polish campaign, he repeated this assurance. On 7 October General Von Brauchitsch directed Army Group B to prepare “for the immediate invasion of Dutch and Belgian territory, if the political situation so demands.” In a series of orders, which were signed by the Defendants Keitel and Jodl, the attack was fixed for 10 November 1939, but it was postponed from time to time until May of 1940 on account of weather conditions and transport problems.

At the conference on 23 November 1939 Hitler said:

“We have an Achilles heel: The Ruhr. The progress of the war
depends on the possession of the Ruhr. If England and France
push through Belgium and Holland into the Ruhr, we shall be in
the greatest danger . . . . Certainly England and France will
assume the offensive against Germany when they are armed.
England and France have means of pressure to bring Belgium and
Holland to request English and French help. In Belgium and
Holland the sympathies are all for France and England . . . . If
the French Army marches into Belgium in order to attack us, it
will be too late for us. We must anticipate them . . . . We
shall sow the English coast with mines which cannot be cleared.
This mine warfare with the Luftwaffe demands a different
starting point. England cannot live without its imports. We can
feed ourselves. The permanent sowing of mines on the English
coasts will bring England to her knees. However, this can only
occur if we have occupied Belgium and Holland . . . . My
decision is unchangeable; I shall attack France and England at
the most favorable and quickest moment. Breach of the neutrality
of Belgium and Holland is meaningless. No one will question that
when we have won. We shall not bring about the breach of
neutrality as idiotically as it was in 1914. If we do not break
the neutrality, then England and France will. Without attack,
the war is not to be ended victoriously.”

On 10 May 1940 the German forces invaded the Netherlands, Belgium, and Luxembourg. On the same day the German Ambassadors handed to the Netherlands and Belgian Governments a memorandum alleging that the British and French Armies, with the consent of Belgium and Holland, were planning to march through those countries to attack the Ruhr, and justifying the invasion on these grounds. Germany, however, assured the Netherlands and Belgium that their integrity and their possessions would be respected. A similar memorandum was delivered to Luxembourg on the same date.

There is no evidence before the Tribunal to justify the contention that the Netherlands, Belgium, and Luxembourg were invaded by Germany because their occupation had been planned by England and France. British and French staffs had been cooperating in making certain plans for military operations in the Low Countries, but the purpose of this planning was to defend these countries in the event of a German attack.

The invasion of Belgium, Holland, and Luxembourg was entirely without justification.

It was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war. The resolve to invade was made without any other consideration than the advancement of the aggressive policies of Germany.

_The Aggression against Yugoslavia and Greece_

On 12 August 1939 Hitler had a conversation with Ciano and the Defendant Von Ribbentrop at Obersalzberg. He said then:

“Generally speaking, the best thing to happen would be for the
neutrals to be liquidated one after the other. This process
could be carried out more easily if on every occasion one
partner of the Axis covered the other while it was dealing with
the uncertain neutral. Italy might well regard Yugoslavia as a
neutral of this kind.”

This observation was made only two months after Hitler had given assurances to Yugoslavia that he would regard her frontier as final and inviolable. On the occasion of the visit to Germany of the Prince Regent of Yugoslavia on 1 June 1939, Hitler had said in a public speech:

“The firmly established reliable relationship of Germany to
Yugoslavia now that owing to historical events we have become
neighbors with common boundaries fixed for all time, will not
only guarantee lasting peace between our two peoples and
countries, but can also represent an element of calm to our
nerve-racked continent. This peace is the goal of all who are
disposed to perform really constructive work.”

On 6 October 1939 Germany repeated these assurances to Yugoslavia, after Hitler and Von Ribbentrop had unsuccessfully tried to persuade Italy to enter the war on the side of Germany by attacking Yugoslavia. On 28 October 1940 Italy invaded Greece, but the military operations met with no success. In November Hitler wrote to Mussolini with regard to the invasion of Greece, and the extension of the war in the Balkans, and pointed out that no military operations could take place in the Balkans before the following March, and therefore Yugoslavia must if at all possible be won over by other means, and in other ways. But on 12 November 1940 Hitler issued a directive for the prosecution of the war, and it included the words: “The Balkans: The Commander-in-Chief of the Army will make preparations for occupying the Greek mainland north of the Aegean Sea, in case of need entering through Bulgaria.”

On 13 December he issued a directive concerning the operation “Marita,” the code name for the invasion of Greece, in which he stated:

“1. The result of the battles in Albania is not yet decisive.
Because of a dangerous situation in Albania, it is doubly
necessary that the British endeavor be foiled to create air
bases under the protection of a Balkan front, which would be
dangerous above all to Italy as to the Rumanian oilfields.

2. My plan therefore is (a) to form a slowly increasing task
force in Southern Rumania within the next month, (b) after the
setting in of favorable weather, probably in March, to send a
task force for the occupation of the Aegean north coast by way
of Bulgaria and if necessary to occupy the entire Greek
mainland.”

On 20 January 1941, at a meeting between Hitler and Mussolini, at which the Defendants Von Ribbentrop, Keitel, Jodl, and others were present, Hitler stated:

“The massing of troops in Rumania serves a threefold purpose:

(a) An operation against Greece;

(b) Protection of Bulgaria against Russia and Turkey;

(c) Safeguarding the guarantee to Rumania . . . .

It is desirable that this deployment be completed without
interference from the enemy. Therefore, disclose the game as
late as possible. The tendency will be to cross the Danube at
the last possible moment, and to line up for attack at the
earliest possible moment.”

On 19 February 1941 an OKW directive regarding the operation “Marita” stated: “On 18 February the Führer made the following decision regarding the carrying out of Operation Marita: The following dates are envisaged: Commencement of building bridge, 28 February; crossing of the Danube, 2 March.”

On 3 March 1941, British troops landed in Greece to assist the Greeks to resist the Italians; and on 18 March, at a meeting between Hitler and the Defendant Raeder, at which the Defendants Keitel and Jodl were also present, the Defendant Raeder asked for confirmation that the “whole of Greece will have to be occupied, even in the event of a peaceful settlement,” to which Hitler replied, “The complete occupation is a prerequisite of any settlement.”

On 25 March, on the occasion of the adherence of Yugoslavia to the Tripartite Pact at a meeting in Vienna, the Defendant Von Ribbentrop, on behalf of the German Government, confirmed the determination of Germany to respect the sovereignty and territorial integrity of Yugoslavia at all times. On 26 March the Yugoslav Ministers, who had adhered to the Tripartite Pact, were removed from office by a _coup d’état_ in Belgrade on their return from Vienna, and the new Government repudiated the Pact. Thereupon on 27 March, at a conference in Berlin with the High Command at which the Defendants Göring, Keitel, and Jodl were present, and the Defendant Von Ribbentrop part of the time, Hitler stated that Yugoslavia was an uncertain factor in regard to the contemplated attack on Greece, and even more so with regard to the attack upon Russia which was to be conducted later on. Hitler announced that he was determined, without waiting for possible loyalty declarations of the new Government, to make all preparations in order to destroy Yugoslavia militarily and as a national unit. He stated that he would act with “unmerciful harshness.”

On 6 April German forces invaded Greece and Yugoslavia without warning, and Belgrade was bombed by the Luftwaffe. So swift was this particular invasion that there had not been time to establish any “incidents” as a usual preliminary, or to find and publish any adequate “political” explanations. As the attack was starting on 6 April, Hitler proclaimed to the German people that this attack was necessary because the British forces in Greece (who were helping the Greeks to defend themselves against the Italians) represented a British attempt to extend the war to the Balkans.

It is clear from this narrative that aggressive war against Greece and Yugoslavia had long been in contemplation, certainly as early as August of 1939. The fact that Great Britain had come to the assistance of the Greeks, and might thereafter be in a position to inflict great damage upon German interests was made the occasion for the occupation of both countries.

_The Aggressive War against the Union of
Soviet Socialist Republics_

On 23 August 1939 Germany signed the non-aggression pact with the Union of Soviet Socialist Republics.

The evidence has shown unmistakably that the Soviet Union on their part conformed to the terms of this pact; indeed the German Government itself had been assured of this by the highest German sources. Thus, the German Ambassador in Moscow informed his Government that the Soviet Union would go to war only if attacked by Germany, and this statement is recorded in the German War Diary under the date of 6 June 1941.

Nevertheless, as early as the late summer of 1940, Germany began to make preparations for an attack on the U.S.S.R., in spite of the non-aggression pact. This operation was secretly planned under the code name “Case Barbarossa”, and the former Field Marshal Paulus testified that on 3 September 1940, when he joined the German General Staff, he continued developing “Case Barbarossa”, which was finally completed at the beginning of November 1940; and that even then, the German General Staff had no information that the Soviet Union was preparing for war.

On 18 December 1940 Hitler issued Directive No. 21, initialed by Keitel and Jodl, which called for the completion of all preparations connected with the realization of “Case Barbarossa” by 15 May 1941. This directive stated:

“The German armed forces must be prepared to crush Soviet Russia
in a quick campaign before the end of the war against England
. . . . Great caution has to be exercised that the intention of
an attack will not be recognized.”

Before the directive of 18 December had been made, the Defendant Göring had informed General Thomas, chief of the Office of War Economy of the OKW, of the plan, and General Thomas made surveys of the economic possibilities of the U.S.S.R., including its raw materials, its power and transport system, and its capacity to produce arms.

In accordance with these surveys, an economic staff for the Eastern territories with many military-economic units (inspectorates, commandos, groups) was created under the supervision of the Defendant Göring. In conjunction with the military command, these units were to achieve the most complete and efficient economic exploitation of the occupied territories in the interest of Germany.

The framework of the future political and economic organization of the occupied territories was designed by the Defendant Rosenberg over a period of three months, after conferences with and assistance by the Defendants, Keitel, Jodl, Raeder, Funk, Göring, Von Ribbentrop, and Frick, or their representatives. It was made the subject of a most detailed report immediately after the invasion.

These plans outlined the destruction of the Soviet Union as an independent State, and its partition, the creation of so-called Reich Commissariats, and the conversion of Estonia, Latvia, Bielorussia, and other territories into German colonies.

At the same time Germany drew Hungary, Rumania, and Finland into the war against the U.S.S.R. In December 1940 Hungary agreed to participate on the promise of Germany that she should have certain territories at the expense of Yugoslavia.

In May 1941 a final agreement was concluded with Antonescu, the Prime Minister of Rumania, regarding the attack on the U.S.S.R., in which Germany promised to Rumania, Bessarabia, Northern Bukovina, and the right to occupy Soviet territory up to the Dnieper.

On 22 June 1941, without any declaration of war, Germany invaded Soviet territory in accordance with the plans so long made.

The evidence which has been given before this Tribunal proves that Germany had the design carefully thought out, to crush the U.S.S.R. as a political and military power, so that Germany might expand to the east according to her own desire. In _Mein Kampf_, Hitler had written: “If new territory were to be acquired in Europe, it must have been mainly at Russia’s cost, and once again the new German Empire should have set out on its march along the same road as was formerly trodden by the Teutonic Knights, this time to acquire soil for the German plough by means of the German sword and thus provide the Nation with its daily bread.” But there was a more immediate purpose, and in one of the memoranda of the OKW, that immediate purpose was stated to be to feed the German Armies from Soviet territory in the third year of the war, even if “as a result many millions of people will be starved to death if we take out of the country the things necessary for us.”

The final aims of the attack on the Soviet Union were formulated at a conference with Hitler on 16 July 1941, in which the Defendants Göring, Keitel, Rosenberg, and Bormann participated:

“There can be no talk of the creation of a military power west
of the Urals, even if we should have to fight 100 years to
achieve this . . . . All the Baltic regions must become part of
the Reich. The Crimea and adjoining regions (north of the
Crimea) must likewise be incorporated into the Reich. The region
of the Volga as well as the Baku district must likewise be
incorporated into the Reich. The Finns want Eastern Karelia.
However, in view of the large deposits of nickel, the Kola
peninsula must be ceded to Germany.”

It was contended for the defendants that the attack upon the U.S.S.R. was justified because the Soviet Union was contemplating an attack upon Germany, and making preparations to that end. It is impossible to believe that this view was ever honestly entertained.

The plans for the economic exploitation of the U.S.S.R., for the removal of masses of the population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on 22 June without warning of any kind, and without the shadow of legal excuse. It was plain aggression.

_War against the United States_

Four days after the attack launched by the Japanese on the United States fleet in Pearl Harbor on 7 December 1941, Germany declared war on the United States.

The Tripartite Pact between Germany, Italy, and Japan, had been signed on 27 September 1940, and from that date until the attack upon the U.S.S.R. the Defendant Von Ribbentrop, with other defendants, was endeavoring to induce Japan to attack British possessions in the Far East. This, it was thought, would hasten England’s defeat, and keep the United States out of the war.

The possibility of a direct attack on the United States was considered and discussed as a matter for the future. Major Von Falkenstein, the Luftwaffe liaison officer with the Operations Staff of the OKW, summarizing military problems which needed discussion in Berlin in October of 1940, spoke of the possibility “of the prosecution of the war against America at a later date.” It is clear, too, that the German policy of keeping America out of the war, if possible, did not prevent Germany promising support to Japan even against the United States. On 4 April 1941 Hitler told Matsuoka, the Japanese Foreign Minister, in the presence of the Defendant Von Ribbentrop, that Germany would “strike without delay” if a Japanese attack on Singapore should lead to war between Japan and the United States. The next day Von Ribbentrop himself urged Matsuoka to bring Japan into the war.

On 28 November 1941, 10 days before the attack on Pearl Harbor, Von Ribbentrop encouraged Japan, through her Ambassador in Berlin, to attack Great Britain and the United States, and stated that should Japan become engaged in a war with the United States, Germany would join the war immediately. A few days later, Japanese representatives told Germany and Italy that Japan was preparing to attack the United States, and asked for their support. Germany and Italy agreed to do this, although in the Tripartite Pact, Italy and Germany had undertaken to assist Japan only if she were attacked. When the assault on Pearl Harbor did take place, the Defendant Von Ribbentrop is reported to have been “overjoyed”, and later, at a ceremony in Berlin, when a German medal was awarded to Oshima, the Japanese Ambassador, Hitler indicated his approval of the tactics which the Japanese had adopted of negotiating with the United States as long as possible, and then striking hard without any declaration of war.

Although it is true that Hitler and his colleagues originally did not consider that a war with the United States would be beneficial to their interest, it is apparent that in the course of 1941 that view was revised, and Japan was given every encouragement to adopt a policy which would almost certainly bring the United States into the war. And when Japan attacked the United States fleet in Pearl Harbor and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.

_Violations of International Treaties_

The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against 12 nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also “wars in violation of international treaties, agreements, or assurances.”

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

_Hague Conventions_

In the 1899 Convention the signatory powers agreed: “before an appeal to arms . . . to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers.” A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, Article I contains this far more specific language: “The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war.” Germany was a party to these conventions.

_Versailles Treaty_

Breaches of certain provisions of the Versailles Treaty are also relied on by the Prosecution—Not to fortify the left bank of the Rhine (Articles 42-44); to “respect strictly the independence of Austria” (Article 80); renunciation of any rights in Memel (Article 99) and the Free City of Danzig (Article 100); the recognition of the independence of the Czechoslovak State; and the military, naval, and air clauses against German rearmament found in Part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set out in Appendix C. With regard to the Treaty of Versailles, the matters relied on are:

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

2. The annexation of Austria on 13 March 1938, in violation of Article 80;

3. The incorporation of the district of Memel on 22 March 1939, in violation of Article 99;

4. The incorporation of the Free City of Danzig on 1 September 1939, in violation of Article 100;

5. The incorporation of the provinces of Bohemia and Moravia on 16 March 1939, in violation of Article 81;

6. The repudiation of the military, naval, and air clauses of the Treaty, in or about March of 1935.

On 21 May 1935 Germany announced that, whilst renouncing the disarmament clauses of the Treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. (With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.)

_Treaties of Mutual Guarantee, Arbitration, and Non-Aggression_

It is unnecessary to discuss in any detail the various treaties entered into by Germany with other Powers. Treaties of mutual guarantee were signed by Germany at Locarno in 1925, with Belgium, France, Great Britain, and Italy, assuring the maintenance of the territorial _status quo_. Arbitration treaties were also executed by Germany at Locarno with Czechoslovakia, Belgium, and Poland.

Article I of the latter treaty is typical, providing: “All disputes of every kind between Germany and Poland . . . which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision to an arbitral tribunal . . . .”

Conventions of Arbitration and Conciliation were entered into between Germany, the Netherlands, and Denmark in 1926; and between Germany and Luxembourg in 1929. Non-aggression treaties were executed by Germany with Denmark and Russia in 1939.

_Kellogg-Briand Pact_

The Pact of Paris was signed on 27 August 1928 by Germany, the United States, Belgium, France, Great Britain, Italy, Japan, Poland, and other countries; and subsequently by other Powers. The Tribunal has made full reference to the nature of this Pact and its legal effect in another part of this judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal this Pact was violated by Germany in all the cases of aggressive war charged in the Indictment. It is to be noted that on 26 January 1934 Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in which the use of force was outlawed for a period of 10 years.

The Tribunal does not find it necessary to consider any of the other treaties referred to in the Appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.

_The Law of the Charter_

The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.

The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.

The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.

The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the Tribunal has heard full argument from the Prosecution and the Defense, and will express its view on the matter.

It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a pre-existing law. “_Nullum crimen sine lege, nulla poena sine lege._“ It was submitted that _ex post facto_ punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.

In the first place, it is to be observed that the maxim _nullum crimen sine lege_ is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.

This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27 August 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they were:

“Deeply sensible of their solemn duty to promote the welfare of
mankind; persuaded that the time has come when a frank
renunciation of war as an instrument of national policy should
be made to the end that the peaceful and friendly relations now
existing between their peoples should be perpetuated . . . . all
changes in their relations with one another should be sought
only by pacific means . . . thus uniting civilised nations of
the world in a common renunciation of war as an instrument of
their national policy . . . .”

The first two articles are as follows:

“Article I. The High Contracting Parties solemnly declare in the
names of their respective peoples that they condemn recourse to
war for the solution of international controversies and renounce
it as an instrument of national policy in their relations to one
another.”

“Article II. The High Contracting Parties agree that the
settlement or solution of all disputes or conflicts of whatever
nature or whatever origin they may be, which may arise among
them, shall never be sought except by pacific means.”

The question is, what was the legal effect of this Pact? The nations who signed the Pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:

“War between nations was renounced by the signatories of the
Kellogg-Briand Treaty. This means that it has become throughout
practically the entire world . . . an illegal thing. Hereafter,
when nations engage in armed conflict, either one or both of
them must be termed violators of this general treaty law . . . .
We denounce them as law breakers.”

But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.

The view which the Tribunal takes of the true interpretation of the Pact is supported by the international history which preceded it. In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the Treaty declared “that aggressive war is an international crime”, and that the parties would “undertake that no one of them will be guilty of its commission”. The draft treaty was submitted to 29 states, about half of whom were in favor of accepting the text. The principal objection appeared to be in the difficulty of defining the acts which would constitute “aggression”, rather than any doubt as to the criminality of aggressive war. The preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes (“Geneva Protocol”), after “recognising the solidarity of the members of the international community”, declared that “a war of aggression constitutes a violation of this solidarity and is an international crime.” It went on to declare that the contracting parties were “desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between the States and of ensuring the repression of international crimes.” The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the assembly of the 48 members of the League. These members included Italy and Japan, but Germany was not then a member of the League.

Although the Protocol was never ratified, it was signed by the leading statesmen of the world, representing the vast majority of the civilized states and peoples, and may be regarded as strong evidence of the intention to brand aggressive war as an international crime.

At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then present (including the German, the Italian, and the Japanese), unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:

“The Assembly:

Recognizing the solidarity which unites the community of
nations;

Being inspired by a firm desire for the maintenance of general
peace;

Being convinced that a war of aggression can never serve as a
means of settling international disputes, and is in consequence
an international crime . . . .”

The unanimous resolution of 18 February 1928 of 21 American republics at the Sixth (Havana) Pan-American Conference, declared that “war of aggression constitutes an international crime against the human species”.

All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of pacts and treaties to which the Tribunal has just referred.

It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor “for a supreme offense against international morality and the sanctity of treaties.” The purpose of this trial was expressed to be “to vindicate the solemn obligations of international undertakings, and the validity of international morality”. In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers “to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war”.

It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex Parte Quirin (1942 317 U.S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:

“From the very beginning of its history this Court has applied
the law of war as including that part of the law of nations
which prescribes for the conduct of war, the status, rights, and
duties of enemy nations as well as enemy individuals.”

He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility.

The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:

“The official position of Defendants, whether as heads of State,
or responsible officials in Government departments, shall not be
considered as freeing them from responsibility, or mitigating
punishment.”

On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.

It was also submitted on behalf of most of these defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders. The Charter specifically provides in Article 8:

“The fact that the Defendant acted pursuant to order of his
Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of
punishment.”

The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.

_The Law as to the Common Plan or Conspiracy_

In the previous recital of the facts relating to aggressive war, it is clear that planning and preparation had been carried out in the most systematic way at every stage of the history.

Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offense as planning, preparation, initiation, or waging of a war of aggression “or participation in a Common Plan or Conspiracy for the accomplishment . . . of the foregoing”. The Indictment follows this distinction. Count One charges the Common Plan or Conspiracy. Count Two charges the planning and waging of war. The same evidence has been introduced to support both Counts. We shall therefore discuss both Counts together, as they are in substance the same. The defendants have been charged under both Counts, and their guilt under each Count must be determined.

The “Common Plan or Conspiracy” charged in the Indictment covers 25 years, from the formation of the Nazi Party in 1919 to the end of the war in 1945. The Party is spoken of as “the instrument of cohesion among the Defendants” for carrying out the purposes of the conspiracy—the overthrowing of the Treaty of Versailles, acquiring territory lost by Germany in the last war and “Lebensraum” in Europe, by the use, if necessary, of armed force, of aggressive war. The “seizure of power” by the Nazis, the use of terror, the destruction of trade unions, the attack on Christian teaching and on churches, the persecution of Jews, the regimentation of youth—all these are said to be steps deliberately taken to carry out the common plan. It found expression, so it is alleged, in secret rearmament, the withdrawal by Germany from the Disarmament Conference and the League of Nations, universal military service, and seizure of the Rhineland. Finally, according to the Indictment, aggressive action was planned and carried out against Austria and Czechoslovakia in 1936-1938, followed by the planning and waging of war against Poland; and, successively, against 10 other countries.

The Prosecution says, in effect, that any significant participation in the affairs of the Nazi Party or Government is evidence of a participation in a conspiracy that is in itself criminal. Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party program, such as are found in the 25 points of the Nazi Party, announced in 1920, or the political affirmations expressed in _Mein Kampf_ in later years. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.

It is not necessary to decide whether a single master conspiracy between the defendants has been established by the evidence. The seizure of power by the Nazi Party, and the subsequent domination by the Nazi State of all spheres of economic and social life must of course be remembered when the later plans for waging war are examined. That plans were made to wage war, as early as 5 November 1937, and probably before that, is apparent. And thereafter, such preparations continued in many directions, and against the peace of many countries. Indeed the threat of war—and war itself if necessary—was an integral part of the Nazi policy. But the evidence establishes with certainty the existence of many separate plans rather than a single conspiracy embracing them all. That Germany was rapidly moving to complete dictatorship from the moment that the Nazis seized power, and progressively in the direction of war, has been overwhelmingly shown in the ordered sequence of aggressive acts and wars already set out in this Judgment.

In the opinion of the Tribunal, the evidence establishes the common planning to prepare and wage war by certain of the defendants. It is immaterial to consider whether a single conspiracy to the extent and over the time set out in the Indictment has been conclusively proved. Continued planning, with aggressive war as the objective, has been established beyond doubt. The truth of the situation was well stated by Paul Schmidt, official interpreter of the German Foreign Office, as follows:

“The general objectives of the Nazi leadership were apparent
from the start, namely the domination of the European Continent,
to be achieved first by the incorporation of all German speaking
groups in the Reich, and secondly, by territorial expansion
under the slogan “Lebensraum”. The execution of these basic
objectives, however, seemed to be characterized by
improvisation. Each succeeding step was apparently carried out
as each new situation arose, but all consistent with the
ultimate objectives mentioned above.”

The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. That they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime.

Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides:

“Leaders, organizers, instigators, and accomplices participating
in the formulation or execution of a Common Plan or Conspiracy
to commit any of the foregoing crimes are responsible for all
acts performed by any persons in execution of such plan.”

In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit War Crimes and Crimes against Humanity, and will consider only the common plan to prepare, initiate, and wage aggressive war.

_War Crimes and Crimes against Humanity_

The evidence relating to War Crimes has been overwhelming, in its volume and its detail. It is impossible for this Judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that War Crimes were committed on a vast scale, never before seen in the history of war. They were perpetrated in all the countries occupied by Germany, and on the High Seas, and were attended by every conceivable circumstance of cruelty and horror. There can be no doubt that the majority of them arose from the Nazi conception of “total war”, with which the aggressive wars were waged. For in this conception of “total war”, the moral ideas underlying the conventions which seek to make war more humane are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties all alike are of no moment; and so, freed from the restraining influence of international law, the aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Führer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation.

On some occasions, War Crimes were deliberately planned long in advance. In the case of the Soviet Union, the plunder of the territories to be occupied, and the ill-treatment of the civilian population, were settled in minute detail before the attack was begun. As early as the autumn of 1940, the invasion of the territories of the Soviet Union was being considered. From that date onwards, the methods to be employed in destroying all possible opposition were continuously under discussion.

Similarly, when planning to exploit the inhabitants of the occupied countries for slave labor on the very greatest scale, the German Government conceived it as an integral part of the war economy, and planned and organized this particular War Crime down to the last elaborate detail.

Other War Crimes, such as the murder of prisoners of war who had escaped and been recaptured, or the murder of Commandos or captured airmen, or the destruction of the Soviet Commissars, were the result of direct orders circulated through the highest official channels.

The Tribunal proposes, therefore, to deal quite generally with the question of War Crimes, and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate. Whole populations were deported to Germany for the purposes of slave labor upon defense works, armament production, and similar tasks connected with the war effort. Hostages were taken in very large numbers from the civilian populations in all the occupied countries, and were shot as suited the German purposes. Public and private property was systematically plundered and pillaged in order to enlarge the resources of Germany at the expense of the rest of Europe. Cities and towns and villages were wantonly destroyed without military justification or necessity.

_Murder and Ill-Treatment of Prisoners of War_

Article 6 (b) of the Charter defines War Crimes in these words:
“War Crimes: namely, violations of the laws or customs of war.
Such violations shall include, but not be limited to, murder,
ill-treatment or deportation to slave labor or for any other
purpose of civilian population of or in occupied territory,
murder or ill-treatment of prisoners of war or persons on the
seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns, or villages, or
devastation not justified by military necessity.”

In the course of the war, many Allied soldiers who had surrendered to the Germans were shot immediately, often as a matter of deliberate, calculated policy. On 18 October 1942, the Defendant Keitel circulated a directive authorized by Hitler, which ordered that all members of Allied “Commando” units, often when in uniform and whether armed or not, were to be “slaughtered to the last man”, even if they attempted to surrender. It was further provided that if such Allied troops came into the hands of the military authorities after being first captured by the local police, or in any other way, they should be handed over immediately to the SD. This order was supplemented from time to time, and was effective throughout the remainder of the war, although after the Allied landings in Normandy in 1944 it was made clear that the order did not apply to “Commandos” captured within the immediate battle area. Under the provisions of this order, Allied “Commando” troops, and other military units operating independently, lost their lives in Norway, France, Czechoslovakia, and Italy. Many of them were killed on the spot, and in no case were those who were executed later in concentration camps ever given a trial of any kind. For example, an American military mission which landed behind the German front in the Balkans in January 1945, numbering about twelve to fifteen men and wearing uniform, were taken to Mauthausen under the authority of this order, and according to the affidavit of Adolf Zutte, the adjutant of the Mauthausen Concentration Camp, all of them were shot.

In March 1944 the OKH issued the “Kugel” or “Bullet” decree, which directed that every escaped officer and NCO prisoner of war who had not been put to work, with the exception of British and American prisoners of war, should on recapture be handed over to the SIPO and SD. This order was distributed by the SIPO and SD to their regional offices. These escaped officers and NCO’s were to be sent to the concentration camp at Mauthausen, to be executed upon arrival, by means of a bullet shot in the neck.

In March 1944 fifty officers of the British Royal Air Force, who escaped from the camp at Sagan where they were confined as prisoners, were shot on recapture, on the direct orders of Hitler. Their bodies were immediately cremated, and the urns containing their ashes were returned to the camp. It was not contended by the defendants that this was other than plain murder, in complete violation of international law.

When Allied airmen were forced to land in Germany, they were sometimes killed at once by the civilian population. The police were instructed not to interfere with these killings, and the Ministry of Justice was informed that no one should be prosecuted for taking part in them.