Chapter VII: Part 7

I will not prolong this address by detailing the steps leading to the war of aggression which began with the invasion of Poland on September 1, 1939. The further story will be unfolded to you from documents including those of the German High Command itself. The plans had been laid long in advance. As early as 1935 Hitler appointed the Defendant Schacht to the position of General Deputy for the War Economy (2261-PS). We have the diary of General Jodl (1780-PS); the “Plan Otto,” Hitler’s own order for attack on Austria in case trickery failed (C-102); the “Plan Green” which was the blueprint for attack on Czechoslovakia (388-PS); plans for the war in the West (375-PS, 376-PS); Funk’s letter to Hitler dated August 25, 1939 detailing the long course of economic preparation (699-PS); Keitel’s top-secret mobilization order for 1939-40 prescribing secret steps to be taken during a “period of tension” during which no “‘state of war’ will be publicly declared even if open war measures against the foreign enemy will be taken.” This letter order (1639A-PS) is in our possession despite a secret order issued on March 16, 1945, when Allied troops were advancing into the heart of Germany, to burn these plans. We have also Hitler’s directive, dated December 18, 1940, for the “Barbarossa Contingency” outlining the strategy of the attack upon Russia (446-PS). That plan in the original bears the initials of the Defendants Keitel and Jodl. They were planning the attack and planning it long in advance of the declaration of war. We have detailed information concerning “Case White,” the plan for attack on Poland (C-120). That attack began the war. The plan was issued by Keitel on April 3rd, 1939. The attack did not come until September. Steps in preparation for the attack were taken by subordinate commanders, one of whom issued an order on June 14, providing that:

“The Commander-in-Chief of the Army has ordered the working out
of a _plan of deployment against Poland_ which takes in account
the demands of the political leadership _for the opening of war
by surprise and for quick success_. . . .

“I declare it the duty of the commanding generals, the
divisional commanders, and the commandants to limit as much as
possible the number of persons who will be informed, and to
limit the extent of the information, and ask that all suitable
measures be taken to prevent persons not concerned from getting
information. . . .

“The operation, in order to forestall an orderly Polish
mobilization and concentration, is to be opened by surprise with
forces which are for the most part armored and motorized, placed
on alert in the neighborhood of the border. The initial
superiority over the Polish frontier guards and surprise that
can be expected with certainty are to be maintained by quickly
bringing up other parts of the Army as well to counteract the
marching up of the Polish Army. . . .

“If the development of the political situation should show that
a surprise at the beginning of the war is out of question,
because of well-advanced defense preparations on the part of the
Polish Army, the Commander-in-Chief of the Army will order the
opening of the hostilities only after the assembling of
sufficient additional forces. The basis of all preparations will
be to surprise the enemy. . . .” (2327-PS)

We have also the order for the invasion of England, signed by Hitler and initialed by Keitel and Jodl. It is interesting that it commences with a recognition that although the British military position is “hopeless,” they show not the slightest sign of giving in. (442-PS)

Not the least incriminating are the minutes of Hitler’s meeting with his high advisers. As early as November 5, 1937 Hitler told Defendants Göring, Raeder, and Neurath, among others, that German rearmament was practically accomplished and that he had decided to secure by force, starting with a lightning attack on Czechoslovakia and Austria, greater living space for Germans in Europe no later than 1943-45 and perhaps as early as 1938 (386-PS). On the 23rd of May, 1939 the Führer advised his staff that:

“It is a question of expanding our living space in the East and
of securing our food supplies. . . . Over and above the natural
fertility, thorough-going German exploitation will enormously
increase the surplus.

“There is therefore no question of sparing Poland, and we are
left with the decision: _To attack Poland at the first suitable
opportunity_. We cannot expect a repetition of the Czech affair.
There will be war.” (L-79)

On August 22nd, 1939 Hitler again addressed members of the High Command, telling them when the start of military operations would be ordered. He disclosed that for propaganda purposes, he would provocate a good reason. “It will make no difference,” he announced, “whether this reason will sound convincing or not. After all, the victor will not be asked whether he talked the truth or not. We have to proceed brutally. The stronger is always right.” (1014-PS) On 23 November 1939, after the Germans had invaded Poland, Hitler made this explanation:

“. . . For the first time in history we have to fight on only
one front, the other front is at present free. But no one can
know how long that will remain so. I have doubted for a long
time whether I should strike in the East and then in the West.
Basically I did not organize the armed forces in order not to
strike. The decision to strike was always in me. Earlier or
later I wanted to solve the problem. Under pressure it was
decided that the East was to be attacked first. . . .” (789-PS)

We know the bloody sequel. Frontier incidents were staged. Demands were made for cession of territory. When Poland refused, the German forces invaded on September 1st, 1939. Warsaw was destroyed; Poland fell. The Nazis, in accordance with plan, moved swiftly to extend their aggression throughout Europe and to gain the advantage of surprise over their unprepared neighbors. Despite repeated and solemn assurances of peaceful intentions, they invaded Denmark and Norway on 9th April 1940; Belgium, The Netherlands, and Luxembourg on 10th May 1940; Yugoslavia and Greece on 6th April 1941.

As part of the Nazi preparation for aggression against Poland and her allies, Germany, on 23rd August 1939, had entered into a non-aggression pact with Soviet Russia. It was only a delaying treaty intended to be kept no longer than necessary to prepare for its violation. On June 22, 1941, pursuant to long-matured plans, the Nazis hurled troops into Soviet territory without any declaration of war. The entire European world was aflame.

_Conspiracy with Japan_:

The Nazi plans of aggression called for use of Asiatic allies and they found among the Japanese men of kindred mind and purpose. They were brothers, under the skin.

Himmler records a conversation he had on January 31, 1939 with General Oshima, Japanese Ambassador at Berlin. He wrote:

“Furthermore, he (Oshima) had succeeded up to now to send 10
Russians with bombs across the Caucasian frontier. These
Russians had the mission to kill Stalin. A number of additional
Russians, whom he had also sent across, had been shot at the
frontier.” (2195-PS)

On September 27th, 1940 the Nazis concluded a German-Italian-Japanese 10-year military and economic alliance by which those powers agreed “to stand by and cooperate with one another in regard to their efforts in Greater East Asia and regions of Europe respectively wherein it is their prime purpose to establish and maintain a new order of things.”

On March 5, 1941 a top-secret directive was issued by Defendant Keitel. It stated that the Führer had ordered instigation of Japan’s active participation in the war and directed that Japan’s military power has to be strengthened by the disclosure of German war experiences and support of a military, economic, and technical nature has to be given. The aim was stated to be to crush England quickly thereby keeping the United States out of the war. (C-75)

On March 29, 1941 Ribbentrop told Matsuoka, the Japanese Foreign Minister, that the German Army was ready to strike against Russia. Matsuoka reassured Ribbentrop about the Far East. Japan, he reported, was acting at the moment as though she had no interest whatever in Singapore, but intends to strike when the right moment comes. (1877-PS)

On April 5, 1941 Ribbentrop urged Matsuoka that entry of Japan into the war would “hasten the victory” and would be more in the interest of Japan than of Germany since it would give Japan a unique chance to fulfill her national aims and to play a leading part in Eastern Asia (1882-PS).

The proofs in this case will also show that the leaders of Germany were planning war against the United States from its Atlantic as well as instigating it from its Pacific approaches. A captured memorandum from the Führer’s headquarters, dated October 29, 1940, asks certain information as to air bases and supply and reports further that:

“The Führer is at present occupied with the question of the
occupation of the Atlantic islands with a view to the
prosecution of war against America at a later date.
Deliberations on this subject are being embarked upon here.”
(376-PS)

On December 7th, 1941, a day which the late President Roosevelt declared “will live in infamy,” victory for German aggression seemed certain. The Wehrmacht was at the gates of Moscow. Taking advantage of the situation, and while her plenipotentiaries were creating a diplomatic diversion in Washington, Japan without declaration of war treacherously attacked the United States at Pearl Harbor and the Philippines. Attacks followed swiftly on the British Commonwealth, and The Netherlands in the Southwest Pacific. These aggressions were met in the only way that they could be met, with instant declarations of war and with armed resistance which mounted slowly through many long months of reverse until finally the Axis was crushed to earth and deliverance for its victims was won.

Your Honor, I am about to take up “Crimes in the Conduct of War”, which is quite a separate subject. We are within 5 minutes of the recessing time. It will be very convenient for me if it will be agreeable to you.

THE PRESIDENT: We will sit again in 15 minutes’ time.

[_The Tribunal recessed until 1550 hours._]

THE PRESIDENT: The Tribunal must request that if it adjourns for 15 minutes members of the bar and others are back in their seats after an interval of 15 minutes. Mr. Justice Jackson, I understand that you wish to continue to 5:15, when you may be able to conclude your speech?

MR. JUSTICE JACKSON: I think that would be the most orderly way.

THE PRESIDENT: Yes, the Tribunal will be glad to do so.

MR. JUSTICE JACKSON: May it please your Honor, I will now take up the subject of “Crimes in the Conduct of War”.

Even the most warlike of peoples have recognized in the name of humanity some limitations on the savagery of warfare. Rules to that end have been embodied in international conventions to which Germany became a party. This code had prescribed certain restraints as to the treatment of belligerents. The enemy was entitled to surrender and to receive quarter and good treatment as a prisoner of war. We will show by German documents that these rights were denied, that prisoners of war were given brutal treatment and often murdered. This was particularly true in the case of captured airmen, often my countrymen.

It was ordered that captured English and American airmen should no longer be granted the status of prisoners of war. They were to be treated as criminals and the Army was ordered to refrain from protecting them against lynching by the populace. (R-118) The Nazi Government, through its police and propaganda agencies, took pains to incite the civilian population to attack and kill airmen who crash-landed. The order, given by the Reichsführer SS Himmler on 10 August 1943, directed that: “It is not the task of the police to interfere in clashes between German and English and American flyers who have bailed out”. This order was transmitted on the same day by SS Obersturmbannführer Brand of Himmler’s personal staff to all senior executive SS and Police officers, with these directions:

“I am sending you the inclosed order with the request that the
Chief of the Regular Police and of the Security Police be
informed. They are to make this instruction known to their
subordinate officers verbally.” (R-110)

Similarly, we will show Hitler’s top secret order, dated 18 October 1942, that Commandos, regardless of condition, were “to be slaughtered to the last man” after capture (498-PS). We will show the circulation of secret orders, one of which was signed by Hess, to be passed orally to civilians, that enemy fliers or parachutists were to be arrested or liquidated (062-PS). By such means were murders incited and directed.

This Nazi campaign of ruthless treatment of enemy forces assumed its greatest proportions in the fight against Russia. Eventually all prisoners of war were taken out of control of the Army and put in the hands of Himmler and the SS (058-PS). In the East, the German fury spent itself. Russian prisoners were ordered to be branded. They were starved. I shall quote passages from a letter written February 28, 1942 by Defendant Rosenberg to Defendant Keitel:

“The fate of the Soviet prisoners of war in Germany is on the
contrary a tragedy of the greatest extent. Of 3,600,000
prisoners of war, only several hundred thousand are still able
to work fully. A large part of them has starved, or died,
because of the hazards of the weather. Thousands also died from
spotted fever. . . .

“The camp commanders have forbidden the civilian population to
put food at the disposal of the prisoners, and they have rather
let them starve to death. . . .

“In many cases, when prisoners of war could no longer keep up on
the march because of hunger and exhaustion, they were shot
before the eyes of the horrified population, and the corpses
were left.

“In numerous camps, no shelter for the prisoners of war was
provided at all. They lay under the open sky during rain or
snow. Even tools were not made available to dig holes or
caves. . . .

“Finally, the shooting of prisoners of war must be mentioned;
for instance, in various camps, all the ‘Asiatics’ were shot”.
(081-PS)

Civilized usage and conventions to which Germany was a party had prescribed certain immunities for civilian populations unfortunate enough to dwell in lands overrun by hostile armies. The German occupation forces, controlled or commanded by men on trial before you, committed a long series of outrages against the inhabitants of occupied territory that would be incredible except for captured orders and captured reports which show the fidelity with which those orders were executed.

We deal here with a phase of common criminality designed by the conspirators as part of the common plan. We can appreciate why these crimes against their European enemies were not of a casual character but were planned and disciplined crimes when we get at the reason for them. Hitler told his officers on August 22, 1939 that: “The main objective in Poland is the destruction of the enemy and not the reaching of a certain geographical line” (1014-PS). The project of deporting promising youth from occupied territories was approved by Rosenberg on the theory that “a desired weakening of the biological force” of the conquered people is being achieved (031-PS). To Germanize or to destroy was the program. Himmler announced, “Either we win over any good blood that we can use for ourselves and give it a place in our people or, gentlemen—you may call this cruel, but nature is cruel,—we destroy this blood.” As to “racially good types” Himmler further advised, “Therefore, I think that it is our duty to take their children with us, to remove them from their environment, if necessary by robbing or stealing them” (L-70). He urged deportation of Slavic children to deprive potential enemies of future soldiers.

The Nazi purpose was to leave Germany’s neighbors so weakened that even if she should eventually lose the war, she would still be the most powerful nation in Europe. Against this background, we must view the plan for ruthless warfare, which means a plan for the commission of War Crimes and Crimes against Humanity.

Hostages in large numbers were demanded and killed. Mass punishments were inflicted, so savage that whole communities were extinguished. Rosenberg was advised of the annihilation of three unidentified villages in Slovakia. (970-PS) In May of 1943 another village of about 40 farms and 220 inhabitants was ordered wiped out. The entire population was ordered shot, the cattle and property impounded, and the order required that “the village will be destroyed totally by fire.” (163-PS) A secret report from Rosenberg’s Reich Ministry of Eastern Territory reveals that:

“Food rations allowed the Russian population are so low that
they fail to secure their existence and provide only for minimum
subsistence of limited duration. The population does not know if
they will still live tomorrow. They are faced with death by
starvation. . . .

“The roads are clogged by hundreds of thousands of people,
sometimes as many as one million according to the estimate of
experts, who wander around in search of nourishment. . . .

“Sauckel’s action has caused unrest among the civilians. . . .
Russian girls were deloused by men, nude photos in forced
positions were taken, women doctors were locked into freight
cars for the pleasure of the transport commanders, women in
night shirts were fettered and forced through the Russian towns
to the railroad station, etc. All this material has been sent to
the OKH.” (1381-PS)

Perhaps the deportation to slave labor was the most horrible and extensive slaving operation in history. On few other subjects is our evidence so abundant or so damaging. In a speech made on January 25, 1944 the Defendant Frank, Governor General of Poland, boasted, “I have sent 1,300,000 Polish workers into the Reich” (059-PS, P. 2). The Defendant Sauckel reported that “out of the 5 million foreign workers who arrived in Germany not even 200,000 came voluntarily.” This fact was reported to the Führer and Defendants Speer, Göring, and Keitel. (R-24) Children of 10 to 14 years were impressed into service by telegraphic order of Rosenberg’s Ministry for the Occupied Eastern Territories:

“The Command is further charged with the transferring of
worthwhile Russian youth between 10-14 years of age, to the
Reich. The authority is not affected by the changes connected
with the evacuation and transportation to the reception camps of
Bialystok, Krajewo, and Olitei. The Führer wishes that this
activity be increased even more.” (200-PS)

When enough labor was not forthcoming, prisoners of war were forced into war work in flagrant violation of international conventions (016-PS). Slave labor came from France, Belgium, Holland, Italy, and the East. Methods of recruitment were violent (R-124, 018-PS, 204-PS). The treatment of these slave laborers was stated in general terms, not difficult to translate into concrete deprivations, in a letter to the Defendant Rosenberg from the Defendant Sauckel, which stated:

“All _prisoners of war_, from the _territories_ of the West as
well as of the East, actually in Germany, must be completely
incorporated into the German armament and munition industries.
Their production must be brought to the highest possible
level. . . .

“The complete employment of all prisoners of war as well as the
use of a gigantic number of new foreign civilian workers, men
and women, has become an indisputable necessity for the solution
of the mobilization of labor program in this war.

“All the men must be fed, sheltered, and treated in such a way
as to exploit them to the highest possible extent at the lowest
conceivable degrees of expenditure. . . .” (016-PS)

In pursuance of the Nazi plan permanently to reduce the living standards of their neighbors and to weaken them physically and economically, a long series of crimes were committed. There was extensive destruction, serving no military purpose, of the property of civilians. Dikes were thrown open in Holland almost at the close of the war not to achieve military ends but to destroy the resources and retard the economy of the thrifty Netherlanders.

There was carefully planned economic syphoning off of the assets of occupied countries. An example of the planning is shown by a report on France dated December 7, 1942 made by the Economic Research Department of the Reichsbank. The question arose whether French occupation costs should be increased from 15 million Reichsmarks per day to 25 million Reichsmarks per day. The Reichsbank analyzed French economy to determine whether it could bear the burden. It pointed out that the armistice had burdened France to that date to the extent of 18½ billion Reichsmarks, equalling 370 billion francs. It pointed out that the burden of these payments within 2½ years equalled the aggregate French national income in the year 1940, and that the amount of payments handed over to Germany in the first 6 months of 1942 corresponded to the estimate for the total French revenue for that whole year. The report concluded:

“In any case, the conclusion is inescapable that relatively
heavier tributes have been imposed on France since the armistice
in June 1940 than upon Germany after the World War. In this
connection, it must be noted that the economic powers of France
never equalled those of the German Reich and that the vanquished
France could not draw on foreign economic and financial
resources in the same degree as Germany after the last World
War.”

The Defendant Funk was the Reich Minister of Economics and President of the Reichsbank; the Defendant Ribbentrop was Foreign Minister; the Defendant Göring was Plenipotentiary of the Four Year Plan; and all of them participated in the exchange of views of which this captured document is a part. (2149-PS) Notwithstanding this analysis by the Reichsbank, they proceeded to increase the imposition on France from 15 million Reichsmarks daily to 25 million per day.

It is small wonder that the bottom has been knocked out of French economy. The plan and purpose of the thing appears in a letter from General Stülpnagel, head of the German Armistice Commission, to the Defendant Jodl as early as 14 September 1940 when he wrote, “The slogan ‘Systematic weakening of France’ has already been surpassed by far in reality” (1756-PS).

Not only was there a purpose to debilitate and demoralize the economy of Germany’s neighbors for the purpose of destroying their competitive position, but there was looting and pilfering on an unprecedented scale. We need not be hypocritical about this business of looting. I recognize that no army moves through occupied territory without some pilfering as it goes. Usually the amount of pilfering increases as discipline wanes. If the evidence in this case showed no looting except of that sort, I certainly would ask no conviction of these defendants for it.

But we will show you that looting was not due to the lack of discipline or to the ordinary weaknesses of human nature. The German organized plundering, planned it, disciplined it, and made it official just as he organized everything else, and then he compiled the most meticulous records to show that he had done the best job of looting that was possible under the circumstances. And we have those records.

The Defendant Rosenberg was put in charge of a systematic plundering of the art objects of Europe by direct order of Hitler dated 29 January 1940 (136-PS). On the 16th of April 1943 Rosenberg reported that up to the 7th of April, 92 railway cars with 2,775 cases containing art objects had been sent to Germany; and that 53 pieces of art had been shipped to Hitler direct, and 594 to the Defendant Göring. The report mentioned something like 20,000 pieces of seized art and the main locations where they were stored. (015-PS)

Moreover this looting was glorified by Rosenberg. Here we have 39 leather-bound tabulated volumes of his inventory, which in due time we will offer in evidence. One cannot but admire the artistry of this Rosenberg report. The Nazi taste was cosmopolitan. Of the 9,455 articles inventoried, there were included 5,255 paintings, 297 sculptures, 1,372 pieces of antique furniture, 307 textiles, and 2,224 small objects of art. Rosenberg observed that there were approximately 10,000 more objects still to be inventoried. (015-PS) Rosenberg himself estimated that the values involved would come close to a billion dollars (090-PS).

I shall not go into further details of the War Crimes and Crimes against Humanity committed by the gangster ring whose leaders are before you. It is not the purpose in my part of this case to deal with the individual crimes. I am dealing with the Common Plan or design for crime and will not dwell upon individual offenses. My task is to show the scale on which these crimes occurred, and to show that these are the men who were in the responsible positions and who conceived the plan and design which renders them answerable, regardless of the fact that the plan was actually executed by others.

At length, this reckless and lawless course outraged the world. It recovered from the demoralization of surprise attack, assembled its forces and stopped these men in their tracks. Once success deserted their banners, one by one the Nazi satellites fell away. Sawdust Caesar collapsed. Resistance forces in every occupied country arose to harry the invader. Even at home, Germans saw that Germany was being led to ruin by these mad men, and the attempt on July 20, 1944 to assassinate Hitler, an attempt fostered by men of highest station, was a desperate effort by internal forces in Germany to stop short of ruin. Quarrels broke out among the failing conspirators, and the decline of the Nazi power was more swift than its ascendancy. German Armed Forces surrendered, its Government disintegrated, its leaders committed suicide by the dozen, and by the fortunes of war these defendants fell into our hands. Although they are not, by any means, all the guilty ones, they are survivors among the most responsible. Their names appear over and over in the documents and their faces grace the photographic evidence. We have here the surviving top politicians, militarists, financiers, diplomats, administrators, and propagandists, of the Nazi movement. Who was responsible for these crimes if they were not?

_The Law of the Case_:

The end of the war and capture of these prisoners presented the victorious Allies with the question whether there is any legal responsibility on high-ranking men for acts which I have described. Must such wrongs either be ignored or redressed in hot blood? Is there no standard in the law for a deliberate and reasoned judgment on such conduct?

The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, “under God and the law.” The United States believed that the law long has afforded standards by which a juridical hearing could be conducted to make sure that we punish only the right men and for the right reasons. Following the instructions of the late President Roosevelt and the decision of the Yalta conference President Truman directed representatives of the United States to formulate a proposed International Agreement, which was submitted during the San Francisco Conference to Foreign Ministers of the United Kingdom, the Soviet Union, and the Provisional Government of France. With many modifications, that proposal has become the Charter of this Tribunal.

But the Agreement which sets up the standards by which these prisoners are to be judged does not express the views of the signatory nations alone. Other nations with diverse but highly respected systems of jurisprudence also have signified adherence to it. These are Belgium, The Netherlands, Denmark, Norway, Czechoslovakia, Luxembourg, Poland, Greece, Yugoslavia, Ethiopia, Australia, Haiti, Honduras, Panama, New Zealand, Venezuela, and India. You judge, therefore, under an organic act which represents the wisdom, the sense of justice, and the will of 21 governments, representing an overwhelming majority of all civilized people.

The Charter by which this Tribunal has its being, embodies certain legal concepts which are inseparable from its jurisdiction and which must govern its decision. These, as I have said, also are conditions attached to the grant of any hearing to defendants. The validity of the provisions of the Charter is conclusive upon us all, whether we have accepted the duty of judging or of prosecuting under it, as well as upon the defendants, who can point to no other law which gives them a right to be heard at all. My able and experienced colleagues believe, as do I, that it will contribute to the expedition and clarity of this Trial if I expound briefly the application of the legal philosophy of the Charter to the facts I have recited.

While this declaration of the law by the Charter is final, it may be contended that the prisoners on trial are entitled to have it applied to their conduct only most charitably if at all. It may be said that this is new law, not authoritatively declared at the time they did the acts it condemns, and that this declaration of the law has taken them by surprise.

I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law. That this is so will appear from many acts and statements, of which I cite but a few.

In the Führer’s speech to all military commanders on November 23, 1939 he reminded them that at the moment Germany had a pact with Russia, but declared: “Agreements are to be kept only as long as they serve a certain purpose.” Later in the same speech he announced: “A violation of the neutrality of Holland and Belgium will be of no importance” (789-PS). A top secret document, entitled “Warfare as a Problem of Organization,” dispatched by the Chief of the High Command to all commanders on April 19, 1938 declared that “the normal rules of war towards neutrals may be considered to apply on the basis whether operation of rules will create greater advantages or disadvantages for the belligerents” (L-211). And from the files of the German Navy Staff, we have a “Memorandum on Intensified Naval War,” dated October 15, 1939, which begins by stating a desire to comply with International Law. “However,” it continues, “if decisive successes are expected from any measure considered as a war necessity, it must be carried through even if it is not in agreement with international law.” (L-184) International law, natural law, German law, any law at all was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do. That men may be protected in relying upon the law at the time they act is the reason we find laws of retrospective operations unjust. But these men cannot bring themselves within the reason of the rule which in some systems of jurisprudence prohibits _ex post facto_ laws. They cannot show that they ever relied upon international law in any state or paid it the slightest regard.

The third Count of the Indictment is based on the definition of War Crimes contained in the Charter. I have outlined to you the systematic course of conduct toward civilian populations and combat forces which violates international conventions to which Germany was a party. Of the criminal nature of these acts at least, the defendants had, as we shall show, clear knowledge. Accordingly, they took pains to conceal their violations. It will appear that the Defendants Keitel and Jodl were informed by official legal advisors that the orders to brand Russian prisoners of war, to shackle British prisoners of war, and to execute commando prisoners were clear violations of international law. Nevertheless, these orders were put into effect. The same is true of orders issued for the assassination of General Giraud and General Weygand, which failed to be executed only because of a ruse on the part of Admiral Canaris, who was himself later executed for his part in the plot to take Hitler’s life on July 20, 1944.

The fourth Count of the Indictment is based on Crimes against Humanity. Chief among these are mass killings of countless human beings in cold blood. Does it take these men by surprise that murder is treated as a crime?

The first and second Counts of the Indictment add to these crimes the crime of plotting and waging wars of aggression and wars in violation of nine treaties to which Germany was a party. There was a time, in fact, I think the time of the first World War, when it could not have been said that war-inciting or war making was a crime in law, however reprehensible in morals.

Of course, it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding fire arms to bare knuckles, made it a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate warfare. The age of imperialistic expansion during the eighteenth and nineteenth centuries added the foul doctrine, contrary to the teachings of early Christian and international law scholars such as Grotius, that all wars are to be regarded as legitimate wars. The sum of these two doctrines was to give war-making a complete immunity from accountability to law.

This was intolerable for an age that called itself civilized. Plain people with their earthy common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunities. Statesmen and international lawyers at first cautiously responded by adopting rules of warfare designed to make the conduct of war more civilized. The effort was to set legal limits to the violence that could be done to civilian populations and to combatants as well.

The common sense of men after the first World War demanded, however, that the law’s condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war, but also the waging in any way of uncivilized wars—wars of aggression. The world’s statesmen again went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920’s did outlaw aggressive war.

The re-establishment of the principle that there are unjust wars and that unjust wars are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy, and Japan, in common with practically all nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. This pact altered the legal status of a war of aggression. As Mr. Stimson, the United States Secretary of State put it in 1932, such a war:

“. . . is no longer to be the source and subject of rights. It
is no longer to be the principle around which the duties, the
conduct, and the rights of nations revolve. It is an illegal
thing. . . . By that very act, we have made obsolete many legal
precedents and have given the legal profession the task of
re-examining many of its codes and treaties.”

The Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of 48 governments, declared that “a war of aggression constitutes . . . an international crime.” The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of 48 member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the 21 American Republics unanimously adopted a resolution stating that “war of aggression constitutes an international crime against the human species.”

A failure of these Nazis to heed, or to understand the force and meaning of this evolution in the legal thought of the world, is not a defense or a mitigation. If anything, it aggravates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. Indeed, by their own law—had they heeded any law—these principles were binding on these defendants. Article 4 of the Weimar constitution provided that: “The generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich” (2050-PS). Can there be any doubt that the outlawry of aggressive war was one of the “generally accepted rules of international law” in 1939?

Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.

But if it be thought that the Charter, whose declarations concededly bind us all, does contain new law I still do not shrink from demanding its strict application by this Tribunal. The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives.

It is true of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law. International law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. Innovations and revisions in international law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations. The fact is that when the law evolves by the case method, as did the common law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error. The law, so far as international law can be decreed, had been clearly pronounced when these acts took place. Hence, I am not disturbed by the lack of judicial precedent for the inquiry it is proposed to conduct.

The events I have earlier recited clearly fall within the standards of crimes, set out in the Charter, whose perpetrators this Tribunal is convened to judge and punish fittingly. The standards for War Crimes and Crimes against Humanity are too familiar to need comment. There are, however, certain novel problems in applying other precepts of the Charter which I should call to your attention.

_The Crime against Peace_:

A basic provision of the Charter is that to plan, prepare, initiate, or wage a war of aggression, or a war in violation of international treaties, agreements, and assurances, or to conspire or participate in a common plan to do so, is a crime.

It is perhaps a weakness in this Charter that it fails itself to define a war of aggression. Abstractly, the subject is full of difficulty and all kinds of troublesome hypothetical cases can be conjured up. It is a subject which, if the defense should be permitted to go afield beyond the very narrow charge in the Indictment, would prolong the Trial and involve the Tribunal in insoluble political issues. But so far as the question can properly be involved in this case, the issue is one of no novelty and is one on which legal opinion has well crystallized.

One of the most authoritative sources of international law on this subject is the Convention for the Definition of Aggression signed at London on July 3, 1933 by Romania, Estonia, Latvia, Poland, Turkey, the Soviet Union, Persia, and Afghanistan. The subject has also been considered by international committees and by commentators whose views are entitled to the greatest respect. It had been little discussed prior to the first World War but has received much attention as international law has evolved its outlawry of aggressive war. In the light of these materials of international law, and so far as relevant to the evidence in this case, I suggest that an “aggressor” is generally held to be that state which is the first to commit any of the following actions:

(1) Declaration of war upon another state;

(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another state;

(3) Attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another state; and

(4) Provision of support to armed bands formed in the territory of another state, or refusal, notwithstanding the request of the invaded state, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.

And I further suggest that it is the general view that no political, military, economic, or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a state which has been subjected to aggression, shall not constitute a war of aggression.

It is upon such an understanding of the law that our evidence of a conspiracy to provoke and wage an aggressive war is prepared and presented. By this test each of the series of wars begun by these Nazi leaders was unambiguously aggressive.

It is important to the duration and scope of this Trial that we bear in mind the difference between our charge that this war was one of aggression and a position that Germany had no grievances. We are not inquiring into the conditions which contributed to causing this war. They are for history to unravel. It is no part of our task to vindicate the European _status quo_ as of 1933, or as of any other date. The United States does not desire to enter into discussion of the complicated pre-war currents of European politics, and it hopes this trial will not be protracted by their consideration. The remote causations avowed are too insincere and inconsistent, too complicated and doctrinaire to be the subject of profitable inquiry in this trial. A familiar example is to be found in the “Lebensraum” slogan, which summarized the contention that Germany needed more living space as a justification for expansion. At the same time that the Nazis were demanding more space for the German people, they were demanding more German people to occupy space. Every known means to increase the birth rate, legitimate and illegitimate, was utilized. “Lebensraum” represented a vicious circle of demand—from neighbors more space, and from Germans more progeny. We do not need to investigate the verity of doctrines which led to constantly expanding circles of aggression. It is the plot and the act of aggression which we charge to be crimes.

Our position is that whatever grievances a nation may have, however objectionable it finds the _status quo_, aggressive warfare is an illegal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920’s and 1930’s faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods—persuasion, propaganda, economic competition, diplomacy—were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbors in order to effectuate a foreign policy which they knew could not be accomplished by measures short of war. And that is as far as we accuse or propose to inquire.

_The Law of Individual Responsibility_:

The Charter also recognizes individual responsibility on the part of those who commit acts defined as crimes, or who incite others to do so, or who join a common plan with other persons, groups or organizations to bring about their commission. The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under international law, is old and well established. That is what illegal warfare is. This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our constitution was that the laws of the Confederation, which operated only on constituent states, were found ineffective to maintain order among them. The only answer to recalcitrance was impotence or war. Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility.

Of course, the idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.

The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.

Even the German Military Code provides that:

“If the execution of a military order in the course of duty
violates the criminal law, then the superior officer giving the
order will bear the sole responsibility therefor. However, the
obeying subordinate will share the punishment of the
participant: (1) if he has exceeded the order given to him, or
(2) if it was within his knowledge that the order of his
superior officer concerned an act by which it was intended to
commit a civil or military crime or transgression.”
(_Reichsgesetzblatt_, 1926 No. 37, P. 278, Art. 47)

Of course, we do not argue that the circumstances under which one commits an act should be disregarded in judging its legal effect. A conscripted private on a firing squad cannot expect to hold an inquest on the validity of the execution. The Charter implies common sense limits to liability just as it places common sense limits upon immunity. But none of these men before you acted in minor parts. Each of them was entrusted with broad discretion and exercised great power. Their responsibility is correspondingly great and may not be shifted to that fictional being, “the State”, which cannot be produced for trial, cannot testify, and cannot be sentenced.

The Charter also recognizes a vicarious liability, which responsibility is recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which a defendant has become a party. I need not discuss the familiar principles of such liability. Every day in the courts of countries associated in this prosecution, men are convicted for acts that they did not personally commit, but for which they were held responsible because of membership in illegal combinations or plans or conspiracies.

_The Political, Police, and Military Organizations_:

Accused before this Tribunal as criminal organizations are certain political and police organizations which the evidence will show to have been instruments of cohesion in planning and executing the crimes I have detailed. Perhaps the worst of the movement were the Leadership Corps of the NSDAP, the Schutzstaffeln or “SS”, and the Sturmabteilungen or “SA”, and the subsidiary formations which these include. These were the Nazi Party leadership, espionage, and policing groups. They were the real government, above and outside of any law. Also accused as organizations are the Reich Cabinet and the Secret Police, or Gestapo, which were fixtures of the Government but animated solely by the Party.

Except for a late period when some compulsory recruiting was done in the SS, membership in all these militarized organizations was voluntary. The police organizations were recruited from ardent partisans who enlisted blindly to do the dirty work the leaders planned. The Reich Cabinet was the governmental facade for Nazi Party Government and in its members legal, as well as actual responsibility was vested for the entire program. Collectively they were responsible for the program in general, individually they were especially responsible for segments of it. The finding which we ask you to make, that these are criminal organizations, will subject members to punishment to be hereafter determined by appropriate tribunals, unless some personal defense—such as becoming a member under threat to person, to family, or inducement by false representation, or the like—be established. Every member will have a chance to be heard in the subsequent forum on his personal relation to the organization, but your finding in this trial will conclusively establish the criminal character of the organization as a whole.

We have also accused as criminal organizations the High Command and the General Staff of the German Armed Forces. We recognize that to plan warfare is the business of professional soldiers in all countries. But it is one thing to plan strategic moves in the event war comes, and it is another thing to plot and intrigue to bring on that war. We will prove the leaders of the German General Staff and of the High Command to have been guilty of just that. Military men are not before you because they served their country. They are here because they mastered it, along with these others, and drove it to war. They are not here because they lost the war, but because they started it. Politicians may have thought of them as soldiers, but soldiers know they were politicians. We ask that the General Staff and the High Command, as defined in the Indictment, be condemned as a criminal group whose existence and tradition constitute a standing menace to the peace of the world.

These individual defendants did not stand alone in crime and will not stand alone in punishment. Your verdict of “guilty” against these organizations will render _prima facie_ guilty, as nearly as we can learn, thousands upon thousands of members now in custody of United States forces and of other armies.

_The responsibility of this Tribunal_: