Afternoon Session (continued 2)

With these simple and categorical provisions we have to contrast the staggering dimensions of the operation which the Defendant Sauckel directed and in which the other defendants participated, the ruthlessness with which peaceful citizens were torn from their families, surroundings, and employment, the manner in which they were transported, the treatment which they received on arrival, the conditions in which they worked and died in thousands and tens of thousands, and the kind of work which they were compelled to perform as direct helpers in the production of arms, munitions, and other instruments of war against their own country, and against their own people. How can all that be reconciled with the law?

It seems to have been suggested that the prohibition of the Law of Nations relating to deportation had in some way become obsolete in the face of the modern development of totalitarian war requiring the vastest possible use and exploitation of the material and labor resources of the occupied territory. I confess I do not understand how the extent of the activities a belligerent imposes on himself, the size of the effort he needs to make in order to avoid defeat, can enlarge his rights against peaceful noncombatants or enable him to brush aside the rules of war. We cannot make these post factum repeals of accepted international law in favor of the lawbreakers.

Nor is there a shadow of a right to invoke any material change in conditions as a justification for their crimes at sea—crimes which cost the lives of 30,000 British seamen alone. We need not base our case here solely on the mere violation of the customary rules of warfare as embodied in the London Protocols of 1930 and 1936, fully subscribed to as they were by Germany and prohibiting sinking without warning, or even with warning if proper provision had not been made for the safety of passengers and crew. We need not concern ourselves with the niceties of argument whether the practice of arming merchantmen affects the position.

Nor need we take time to examine the astonishing proposition that the sinking of neutral shipping was legalized by the process of making a paper order excluding such neutral ships not from some definite war zone over which Germany exercised control but from vast areas of the seas. For there is one matter at least about which nobody questions or puts questions to the law.

If you are satisfied that orders were given that survivors should not be rescued, that steps should be taken to prevent the shipwrecked from surviving, for the use of such weapons that there could be no question of survivors, you will have no doubt that what was done was contrary to law. It is no answer that to allow noncombatants to survive entailed greater risk to the attackers. The murderer is not excused because he says that it was necessary to kill the victim he had violated lest he should subsequently identify him.

So also in regard to the orders for the execution of commandos. New methods of warfare, new forms of attack, do not in themselves repeat existing established rules of law. The sanctity of the life of the soldier in uniform, who surrenders after the accomplishment of his mission and who committed no war crime prior to his capture, is, and I ask you to say, must remain an absolute principle of international law. Those who, for whatever motive, trample upon it in disregard of law, in disregard of humanity, in disregard of chivalry, must pay the penalty when at last the law is vindicated.

I shall not examine this matter further or detail the other types of war crimes charged in the Indictment. For that these matters, various in their kind or method, were crimes under established law is not in doubt. The Tribunal will be concerned only to affirm the law and to decide upon the measure of these prisoners’ involvement in its breach.

Let me, however, before I turn to questions of fact refer to the Fourth Count of the Indictment, the Crimes against Humanity. It is convenient, I think, to deal with these matters together for insofar as they were committed during the war, to some extent they overlap and in any case they are interconnected. The war crimes were in their very enormity crimes against humanity. The crimes against humanity were not seldom war crimes, larger still. Moreover, the crimes against humanity with which this Tribunal has jurisdiction to deal are limited to this extent—they must be crimes the commission of which was in some way connected with, in anticipation of or in furtherance of the crimes against the peace or the war crimes stricto sensu with which the defendants are indicted. That is the qualification which Article 6(c) of the Charter introduces. The considerations which apply here are, however, different to those affecting the other classes of offense, the crime against peace or the ordinary war crime. You have to be satisfied not only that what was done was a crime against humanity but also that it was not purely a domestic matter but that directly or indirectly it was associated with crimes against other nations or other nationals, in that, for instance, it was undertaken in order to strengthen the Nazi Party in carrying out its policy of domination by aggression, or to remove elements such as political opponents, the aged, the Jews, the existence of which would have hindered the carrying out of the total war policy.

Pursuing that for a moment, the racial policy against the Jews was, as I have said, simply one facet of the Herrenvolk doctrine. In Mein Kampf Hitler had said that the most decisive factor in the German collapse in 1918 was “the failure to recognize... the racial problem and the Jewish menace.” The attack on the Jews was at once a secret weapon—an enduring fifth column weapon—to split and weaken the democracies and a device for unifying the German people for war. Himmler made it clear in his speech on 4 October 1943, that the treatment meted out to German Jews was closely connected with the war policy. He said:

“For we know how difficult we should have made it for ourselves if ... we still had Jews today in every town as secret saboteurs, agitators, and trouble mongers.”

So the crime against the Jews, insofar as it is a crime against humanity and not a war crime as well, is one which we indict because of its close association with the crime against the peace. That is, of course, a very important qualification on the Indictment of the Crimes against Humanity which is not always appreciated by those who have questioned the exercise of this jurisdiction. But subject to that qualification we have thought it right to deal with matters which the criminal law of all countries would normally stigmatize as crimes—murder, extermination, enslavement, persecution on political, racial, or economic grounds. These things done against belligerent nationals, or for that matter, done against German nationals in belligerent occupied territory would be ordinary war crimes the prosecution of which would form no novelty. Done against others they would be crimes against municipal law except insofar as German law, departing from all the canons of civilized procedure, may have authorized them to be done by the State or by persons acting on behalf of the State. Although, so to do, does not in any way place those defendants in greater jeopardy than they would otherwise be; the nations adhering to the Charter of this Tribunal have felt it proper and necessary in the interest of civilization to say that these things even if done in accordance with the laws of the German State, as created and ruled by these men and their ringleader, were, when committed with the intention of affecting the international community—that is in connection with the other crimes charged—not mere matters of domestic concern but crimes against the law of nations. I do not minimize the significance for the future of the political and jurisprudential doctrine which is here implied. Normally international law concedes that it is for the state to decide how it shall treat its own nationals; it is a matter of domestic jurisdiction. And although the Social and Economic Council of the United Nations Organization is seeking to formulate a charter of the Rights of Man, the Covenant of the League of Nations and the Charter of the United Nations Organization do recognize that general position. Yet international law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind. Grotius, the founder of international law, had some notion of that principle when—at a time when the distinction between the just and the unjust war was more clearly accepted than was the case in the nineteenth century—he described as just a war undertaken for the purpose of defending the subjects of a foreign state from injuries inflicted by their ruler. He affirmed, with reference to atrocities committed by tyrants against their subjects, that intervention is justified for “the right of social connection is not cut off in such a case.” The same idea was expressed by John Westlake, the most distinguished of British international lawyers, when he said:

“It is idle to argue in such cases that the duty of neighboring peoples is to look quietly on. Laws are made for men and not creatures of the imagination and they must not create or tolerate for them situations which are beyond endurance.”

The same view was acted upon by the European powers which in time past intervened in order to protect the Christian subjects of Turkey against cruel persecution. The fact is that the right of humanitarian intervention by war is not a novelty in international law—can intervention by judicial process then be illegal? The Charter of this Tribunal embodies a beneficent principle—much more limited than some would like it to be—and it gives warning for the future. I say, and repeat again, gives warning for the future, to dictators and tyrants masquerading as a state that if, in order to strengthen or further their crimes against the community of nations, they debase the sanctity of man in their own country they act at their peril, for they affront the international law of mankind.

As for the criticism which is made of retroactive law, that it makes that criminal which men did not know to be wrong when they committed it—what application can that have here? You will not disregard it even if these defendants time after time disregard it, the countless warnings that were given by foreign states and foreign statesmen on the course which was being pursued by Germany before the war. No doubt these men counted on victory, their whole policy was based on the notion of success; they little thought that they would be brought to account. But can any one of them be heard to say that if he knew about these things at all he did not know them to be wrongs crying out to High Heaven for vengeance?

Let me deal with what they did to prisoners of war, for this alone, the clearest crime of all, demands their conviction and will for all time stain the record of German arms.

On the 8th of September 1941, final regulations for the treatment of Soviet prisoners of war in all prisoner-of-war camps were issued, signed by General Reinecke, the head of the prisoners of war department of the High Command. They were the result of agreement with the SS and read as follows (Document Number 1519-PS):

“The Bolshevist soldier has therefore lost all claim, to treatment as an honorable soldier in accordance with the Geneva Convention.... The order for ruthless and energetic action must be given at the slightest indication of insubordination especially in the case of Bolshevist trouble mongers. Insubordination, active or passive resistance, must be broken immediately by force of arms (bayonets, butts, and firearms).... Anyone carrying out the order who does not use his weapons or does so with insufficient energy is punishable.... Prisoners of war attempting to escape are to be fired on without previous challenge. No warning shot must ever be fired.... The use of arms against prisoners of war is, as a rule, legal.... Camp police must be formed of suitable Soviet prisoners of war in the camp.... Within the wire fence the camp police may be armed with sticks, whips, or other similar weapons to enable them to carry out their duties effectively.”

The regulations go on to order the segregation of civilians and politically undesirable prisoners of war taken during the Eastern campaign. After prescribing the importance for the Armed Forces of ridding themselves of all those elements among the prisoners of war which could be considered as the driving forces of Bolshevism, emphasis is placed on the need for special measures, free from bureaucratic administrative influences, and accordingly their transfer to the Security Police and the SD is given as the way to reach the “appointed goal.”

That Keitel, who is directly responsible for this order, was issuing it with full knowledge of its implications is made clear by the memorandum of Admiral Canaris dated 15 September 1941, protesting against it, and correctly stating the legal position, as follows (Document Number EC-338):

“The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the U.S.S.R. Therefore only the principles of general international law on the treatment of prisoners of war apply. Since the eighteenth century these have gradually been established along the lines that war captivity is neither revenge nor punishment but solely protective custody the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people.... The decrees for the treatment of Soviet prisoners of war enclosed ... are based on a fundamentally different viewpoint.”

Canaris went on to point out the shocking nature of the orders for use of arms by guards and for equipping the camp police with clubs and whips. On this memorandum, as you were reminded this morning, Keitel noted:

“The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore, I approve and back the measures. K.”

Any possible doubt that Keitel knew that the transfer to the Security Police and SD was intended to mean liquidation can hardly survive study of that document. Canaris writes of the screening, as it is called, of the undesirables: “The decision over their fate is effected by the action detachments of the Security Police and the SD,” on which Keitel, underlining Security Police, comments “very efficient,” whilst on the further criticism by Canaris that the principles of their decision are unknown to the Wehrmacht authorities, Keitel comments “not at all.”

The parallel instruction to the Security Police and SD recites the agreement with the High Command and after enjoining the closest co-operation between the members of the police teams and the commandants of the camp and listing those to be handed over, it reads (Document 502-PS):

“Executions must not be held in the camp.... If the camps in the Government General are located in the immediate vicinity of the border the prisoners are to be taken if at all possible to former Soviet Russian territory for special treatment.”

It is not necessary to remind you of the volume of evidence with regard to the numbers of Soviet and Polish prisoners in concentration camps. Their treatment needs no further reminder than the report by the commandant of Gross-Rosen Concentration Camp who on the 23d of October 1941 reports the shooting of 20 Russian prisoners between 5 and 6 o’clock that day and Müller’s circular from the same file, which states (Document Number 1165-PS):

“The commanders of the concentration camps are complaining that five to ten percent of the Soviet Russians destined for execution are arriving in the camps dead or half dead. Therefore the impression has arisen that the Stalags are getting rid of such prisoners in this way.

“It was particularly noted that, when marching, for example from the railroad station to the camp, a rather large number of prisoners of war collapsed on the way from exhaustion, either dead or half dead, and had to be picked up by a truck following the convoy.

“It cannot be prevented that the German people take notice of these occurrences.”

Did any of these defendants take notice of these occurrences that could not be hidden from the German people?

I go on:

“Even if the transportation to the camps is generally taken care of by the Wehrmacht, the population will still attribute this situation to the SS.

“In order to prevent, if possible, similar occurrences in the future, I therefore order that, effective from today on, Soviet Russians declared definitely suspect and obviously marked by death (for example with typhus) and who therefore would not be able to withstand the exertions of even a short march on foot, shall in the future, as a matter of basic principle, be excluded from the transport into the concentration camp for execution.

“I request that the leaders of the Einsatzkommandos be correspondingly informed of this decision without delay.”

On the 2d of March 1944, the Chief of the Sipo and SD forwarded to his various branch offices a further order of the OKW for the treatment of prisoners recaptured after attempted escape (Document Number L-158). With the exception of British and Americans, who were to be returned to the camps, the others were to be sent to Mauthausen and to be dealt with under “Operation Kugel” which, as the Tribunal will remember, involved immediate shooting. Inquiries by relatives, other prisoners, the Protecting Power, and the International Red Cross were to be dealt with in such a way that the fate of these men, soldiers whose only crime had been to do their duty, should be forever hidden (Document 1650-PS).

It was shortly after the issue of the Kugel order that 80 British officers of the R.A.F. made an attempt to escape from Stalag Luft III at Sagan. The defendants directly connected with this matter have not denied that the shooting of 50 of these officers was deliberate murder and was the result of a decision at the highest level. There can be no question that Göring, Keitel, and probably Ribbentrop, participated in this decision and that Jodl and Kaltenbrunner and, if he did not actually participate, Ribbentrop, were all aware of it at the time.

Göring’s participation is a matter of inevitable inference from the following three facts:

First: The order was given by Hitler.

Second: Westhoff of the Prisoners of War Organization of the OKW says he was informed by Keitel that Göring had blamed him for the escape at the meeting at which the order was decided upon (Document Number UK-48).

Third: In Göring’s own Ministry which was responsible for the treatment of R.A.F. prisoners of war, Walde heard of the order on the 28th of March at the meeting of executives and told General Grosch. Grosch informed Förster, who went straight to Milch, Göring’s Chief of Staff, and returned to inform Grosch that Milch had been told, and had made the necessary notes (Documents Number D-730, D-731).

You will say whether you do not consider the denials of Göring and Milch to be mere perjury.

Keitel admits that Hitler ordered transfer to the SD and that he “was afraid” they might be shot. He told his officers Graevenitz and Westhoff: “We must set an example. They will be shot—probably some have been shot already.” And when Graevenitz protested, he replied: “I do not care a damn.”

On this evidence of his own officers, surely his complicity is clear in this matter.

Jodl said that when Himmler was reporting the escape, he was in the next room telephoning, he heard a very loud discussion and on going to the curtain to hear what it was, he learned that there had been an escape from Sagan. It is incredible in these circumstances that even if he did not take part in the decision he did not at any rate know of it from Keitel immediately after the meeting. And knowing of it, he carried on playing his part in the conspiracy.

As to Kaltenbrunner’s guilt, the meeting at which Walde was informed of the decision was with Müller and Nebe, Kaltenbrunner’s subordinates. Schellenberg’s evidence of the discussion between Nebe, Müller, and Kaltenbrunner about this time on the subject of an International Red Cross inquiry about 50 English or American prisoners of war is conclusive. He heard Kaltenbrunner providing his subordinates with the answer to be given to this inconvenient inquiry and one cannot doubt his full knowledge of this matter. The reply sent to the Protecting Power and the International Red Cross by Ribbentrop is now admitted on all hands to have been a pack of lies. Is it to be believed that he also was not a party to the decision?

That any of these men would have been prepared to take such a decision themselves or to comply with it if taken by Hitler is, we submit, clear from the correspondence providing for the lynching or shooting of what were called terror-fliers. These documents show that neither Keitel nor Jodl had any scruples in the matter while both Göring and Ribbentrop agreed to the draft order (Documents Number D-777, D-783, D-784).

You will remember the meetings which preceded that correspondence—first a meeting between Göring, Ribbentrop, and Himmler at which it was agreed to modify “the original suggestion made by the Reich Foreign Minister who wished to include every type of terror attack on the German civilian population as justifying action” (Document Number 735-PS), and which concluded that “lynch law would have to be the rule.”

At the subsequent meeting between Warlimont and Kaltenbrunner it was agreed that “those aviators who escaped lynch law would in accordance with a procedure to be devised ... be handed over to the SD for special treatment.”

Finally Keitel’s note on the file: “I am against legal procedure. It does not work out.”

Similar evidence is provided when we consider the attitude taken up in February 1945, when Hitler wished to renounce the Geneva Convention. Dönitz advised that: “It would be better to carry out measures considered necessary without warning and at all costs to save face with the outside world” (Document Number C-158), a decision with which Jodl and Ribbentrop’s representative agreed. Their defense that this was merely a technical measure and that they did not in fact intend any concrete action is disposed of by Jodl’s memorandum on the whole question (Document Number D-606):

“Just as it was wrong in 1914 that we ourselves solemnly declared war on all the states which for a long time had wanted to wage war against us and through this took the whole guilt of the war on our shoulders before the outside world, and just as it was wrong to admit that the necessary passage through Belgium in 1914 was our own fault, so it would be wrong now to repudiate openly the obligations of international law which we accepted and thereby to stand again as the guilty party before the whole world.”

After this remarkable statement he added that there was nothing to prevent them in fact from sinking an English hospital ship as a reprisal and then expressing regret that it was a mistake ...

THE PRESIDENT: Would it be convenient to you to sit at 9:45 in the morning? The Tribunal anticipates in these circumstances we might be able to finish at 1 o’clock or shortly afterward. In any event, we would sit on in order to finish.

SIR HARTLEY SHAWCROSS: I think I would be very much obliged if the Court would do that.

[The Tribunal adjourned until 27 July 1946 at 0945 hours.]