Afternoon Session

THE PRESIDENT: I call on the Chief Prosecutor of the United Kingdom of Great Britain and Northern Ireland.

SIR HARTLEY SHAWCROSS (Chief Prosecutor for the United Kingdom): May it please the Tribunal; like my distinguished colleague, whose succinct, able, and eloquent speech I cannot hope to emulate, I desire on behalf of the British prosecutors at this Trial to lay before the Tribunal some comment. I am afraid it is of some length on those salient and outstanding features of the evidence which, in our submission, make clear the guilt of these defendants. Although throughout these proceedings the representatives of the prosecuting powers have worked in the closest co-operation and agreement and although there are certain matters which I shall be laying before the Tribunal on behalf of all of us, we all thought it right at this final stage, even at the cost of some inevitable repetition and overlapping, that we should prepare our final submissions quite independently so that the Tribunal and our own countries might know exactly the grounds on which we seek the condemnation of these men; and if it turns out that several of us point to the same evidence or reach similar conclusions, as no doubt it will, that very coincidence reached independently may perhaps add force to our submissions that each of these defendants is legally guilty.

I say legally guilty. That these defendants participated in and are morally guilty of crimes so frightful that the imagination staggers and reels back at their very contemplation is not in doubt. Let the words of the Defendant Frank, which were repeated to you this morning, be well remembered: “Thousands of years will pass and this guilt of Germany will not be erased.” Total and totalitarian war, waged in defiance of solemn undertakings and in breach of treaties; great cities, from Coventry to Stalingrad, reduced to rubble, the countryside laid waste, and now the inevitable aftermath of war so fought—hunger and disease stalking through the world; millions of people homeless, maimed, bereaved. And in their graves, crying out, not for vengeance but that this shall not happen again: 10 million who might be living in peace and happiness at this hour, soldiers, sailors, airmen, and civilians killed in battles that ought never to have been.

Nor was that the only or the greatest crime. In all our countries when perhaps in the heat of passion or for other motives which impair restraint some individual is killed, the murder becomes a sensation, our compassion is aroused, nor do we rest until the criminal is punished and the rule of law is vindicated. Shall we do less when not one but on the lowest computation 12 million men, women, and children, are done to death? Not in battle, not in passion, but in the cold, calculated, deliberate attempt to destroy nations and races, to disintegrate the traditions, the institutions, and the very existence of free and ancient states. Twelve million murders! Two-thirds of the Jews in Europe exterminated, more than 6 million of them on the killers’ own figures. Murder conducted like some mass production industry in the gas chambers and the ovens of Auschwitz, Dachau, Treblinka, Buchenwald, Mauthausen, Maidanek, and Oranienburg.

And is the world to overlook the revival of slavery in Europe, slavery on a scale which involved 7 million men, women, and children taken from their homes, treated as beasts, starved, beaten, and murdered?

It may be that the guilt of Germany will not be erased, for the people of Germany share it in large measure, but it was these men who, with a handful of others, brought that guilt upon Germany and perverted the German people. “It is my guilt”—confessed the Defendant Schirach—“that I educated the German youth for a man who committed murders a millionfold.”

For such crimes these men might well have been proceeded against by summary executive action and had the treatment, which they had been parties to meting out against so many millions of innocent people, been meted out to them, they could hardly have complained. But this Tribunal is to adjudge their guilt not on any moral or ethical basis alone, but according to law—that natural justice which demands that these crimes should not go unpunished, at the same time insists that no individual should be punished unless patient and careful examination of the facts shows that he shared the guilt for what has been done. And so, during these many months, this Tribunal has been investigating the facts and has now to apply the law in order both that justice may be done to these individuals as to their countless victims, and also that the world may know that in the end the predominance of power will be driven out and law and justice shall govern the relations between states.

For the effects of this Trial will reach out far beyond the punishment of a score or so of guilty men. Issues are at stake far greater than their fate, although upon their fate those issues, in some measure, depend. In the pages of history it will count for nothing whether this Trial lasted for 2 months or for 10. But it will count for much that by just and patient examination the truth has been established about deeds so terrible that their mark may never be erased, and it will count for much that law and justice have been vindicated in the end.

Within the space of a year evidence far exceeding that previously presented to any tribunal in history has been collected, sifted, and placed before you. Almost all of that evidence consists of the captured records and documents of the government to which these men belonged, and much of it directly implicates each one of them with knowledge of, and participation in one or other aspect of the crimes committed by the Nazi State. This evidence has not been refuted and it will remain forever to confront those who may hereafter seek to excuse or mitigate that which has been done. Yet now that this mass of evidence has been presented to you, I shall invite you for a little to detach your minds from its detail to consider the cumulative effect and to review this overwhelming case as a whole. It is only by chance that their own captured papers have enabled us to establish these crimes out of the very mouths of the criminals. But the case against these men can be established on a broader basis than that, and must be looked at in the light of its historical background.

When one considers the nature and the immensity of the crimes committed, the responsibility of those who held the highest positions of influence and authority in the Nazi State is manifest beyond doubt. For years, in a world where war had itself been declared a crime, the German State was organized for war; in a world where we proclaim the equality of men, for years the Jews were boycotted, deprived of their elementary rights of property, liberty, life itself; for years honest citizens lived in fear of denunciation and arrest by one or other of the organizations, criminal as we allege them to be, through which these men ruled Germany; for years throughout the German Reich millions of foreign slaves worked in farm and factory, were moved like cattle on every road, on every railway line.

These men, with Hitler, Himmler, Goebbels, and a few other confederates, were at once the leaders and the drivers of the German people; it was when they held the highest positions of authority and of influence that these crimes were planned and perpetrated. If these men are not responsible, who are? If minions who did no more than obey their orders, Dostler, Eck, Kramer, and a hundred others, have already paid the supreme penalty, are these men less responsible? How can it be said that they and the offices of state which they directed took no part? Lammers, their own witness, head of the Reich Chancellery, said in 1938 (Document Number 3863-PS):

“Despite the total concentration of power of authority in the person of the Führer as a matter of principle, no excessively strong and unnecessary centralization of administration in the hands of the Führer results in the governmental administration....

“The authority of the subordinate leaders”—the Unterführer—“directed downwards, forbids interference with every individual order he may issue. This principle is applied by the Führer in his governmental leadership in such a way that, for example, the position of Reich ministers is actually much more independent today than formerly, even though today the Reich ministers are subordinated to the Führer’s unlimited power of command.... Willingness to bear responsibility, ability to make decisions, aggressive energy, and real authority—these are the qualities which the Führer demands primarily of his subordinate leaders. Therefore he allows them the greatest freedom in the direction of their affairs and in the manner in which they fulfill their tasks.”

Let them now, accused murderers as they are, attempt to belittle the power and influence they exercised how they will, we have only to recall their ranting as they strutted across the stage of Europe dressed in their brief authority, to see the part they played. They did not then tell the German people or the world that they were merely the ignorant, powerless puppets of their Führer. The Defendant Speer has said (Session of 21 June 1946):

“... even in a totalitarian system there must be total responsibility... it is impossible after the catastrophe to evade this total responsibility. If the war had been won, the leaders would also have assumed total responsibility.”

Had the war been won is it to be supposed that these men would have retired to the obscurity and comparative innocence of private citizenship? That opportunity was not denied to them before the war had they wished to disassociate themselves from what was taking place. They chose a different path. From small beginnings, at a time when resistance instead of participation could have destroyed this thing, they fostered the Hitler legend, they helped to build up the Nazi power and ideology and to direct its activities until, like some foul octopus, it spread its slime over Europe and extended its tentacles throughout the world. Were these men ignorant of the ends sought to be achieved during that period of the rise to power? Paul Schmidt, Hitler’s interpreter, a witness of great knowledge, has testified (Document Number 3308-PS):

“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 of ‘Lebensraum.’ ”

That slogan “Lebensraum”—that entirely false idea that the very existence of the German people depended upon territorial expansion under the Nazi flag—was from the earliest days an openly avowed part of the Nazi doctrine—yet any thinking person must have known that it would lead inevitably to war.

It was the justification Hitler offered to his fellow conspirators at those secret meetings on the 5th of November 1937 (Document Number 386-PS), 23d of May (Document Number L-79), and 23d of November 1939 (Document Number 789-PS), at which the fate of so many countries was sealed.

Although less concrete it was no less false than the demand for a revision of the Treaty of Versailles. The so-called injustice of Versailles, so cunningly exploited to provide a popular rallying point under the Nazi banner, had succeeded in uniting behind the Nazis many Germans who would not otherwise have supported some of the rest of the Nazi program.

And the effect of that propaganda can be judged from the repeated efforts here made by the Defense to develop the alleged injustice of the treaty. Unjust or not, it was a treaty and no government content to live at peace need have complained of its provisions. Even if the complaints were justified, there was comparatively soon no ground left for them. The provisions of the treaty could have been—in some respects they were—revised by peaceful negotiations. By 1935, 4 years before the world was plunged into war, these men had publicly renounced the treaty. What miserable rubbish is the long tirade on behalf of the treaty, when one realizes that by 1939 not only were they free of nearly all the restrictions of which they had complained, but they had seized territory which had never belonged to Germany in the whole of European history. The cry of Versailles was a device for rallying men to wicked and aggressive purposes. But it was a device no less diabolical than the cry of anti-Semitism and racial purity, by which these men sought both to rally and cement the various forms of public opinion in their own country and to sow discord and antagonism amongst the people of foreign lands. Rauschning reports Hitler’s statement (Document Number USSR-378):

“Anti-Semitism is a useful revolutionary expedient. Anti-Semitic propaganda in all countries is an almost indispensable medium in the extension of our political campaign. You will see how little time we shall need in order to upset the ideas and criteria of the whole world simply and solely by attacking Judaism. It is beyond question the most important weapon in our propaganda arsenal.”

And as a result of this wicked propaganda, I would remind you of the words of Bach-Zelewski who, when he was asked how Ohlendorf could admit that the men under his command had murdered 90,000 people, replied:

“As to this I am of a different opinion. When, for years, for decades, the doctrine is preached that the Slav race is an inferior race and Jews are not even human beings, then such outburst is inevitable.” (Session of 7 January 1946.)

And so, from the earliest day, the aims of the Nazi movement were clear and beyond doubt: Expansion, European domination, elimination of the Jews, ultimate aggression, ruthless disregard of the rights of any people but themselves.

Such were the beginnings. I shall not pause to trace the Nazi Party’s growth to power; how, as the writer of the history of the SA has said, they found that (Document Number 2168-PS) “... possession of the streets is the key to power in the state,” or how, by the organized terror which the witness Severing has described the storm troops of Brown Shirts terrified the people whilst the Nazi propaganda, headed by Der Stürmer, vilified all opponents and incited people against the Jews.

I shall not examine that period, grave as are the lessons which democratic peoples ought to learn from it, for it may not be easy to say exactly at what date each of these defendants must have realized, if, indeed, he had not known and gloried in it all from the beginning, that Hitler’s apparently hysterical outpourings in Mein Kampf were intended in all seriousness and that they formed the very basis of the German plan. Some, no doubt, such as Göring, Hess, Ribbentrop, Rosenberg, Streicher, Frick, Frank, Schacht, Schirach, and Fritzsche, realized it, very early. In the case of one or two, such as Dönitz and Speer, it may have been comparatively late. Few can have been ignorant after 1933; all must have been active participants by 1937. When one remembers the apprehension caused abroad during that period there can be no doubt, in our submission, that these men, almost all of whom were the rulers of Germany from 1933 onward, Hitler’s intimate associates, admitted to his secret meetings, with full knowledge of plans and events, not only acquiesced in what was taking place, but were active and willing participants.

May I then examine in a little more detail the period of the “build-up”—the position of domestic government in Germany between 1933 and 1939, because what happened then makes clear the criminal involvement of these men in what was done later. What I say now has some special reference to the first Count in the Indictment, for it is against this general background that we must consider the allegation that these men were common conspirators to commit the crimes (such as Crimes Against Peace, and the Crime Against Humanity), which are more specifically charged in the later Counts.

Totalitarian government brooks no opposition. Any means justifies the end and the immediate end was ruthlessly to gain complete control of the German State and to brutalize and train its people for war. What stood in the way in January 1933? First, the members of the other political parties; secondly, the democratic system of election and of public assembly, the organization of trade unions; thirdly, the moral standards of the German people, and the churches which fostered them.

Accordingly the Nazis set out, quite deliberately, to eliminate this opposition: first, by imprisoning or terrorizing their opponents; second, by declaring illegal all elements of tolerance and liberalism, outlawing trade unions and opposition parties, reducing the democratic assembly to a farce and controlling elections; third, by systematic discouragement and persecution of religion, by replacing the ethics of Christianity with the idolatry of the Führer and the cult of the blood and by rigidly controlling education and youth. Youth was systematically prepared for war and taught to hate and persecute the Jews; the plans for aggression required a nation trained in brutality and taught that it was both necessary and heroic to invade the peoples of other countries.

It is a measure of the wickedness and effectiveness of this domestic policy that, after 6 years of rule, the Nazis found little difficulty in leading a perverted nation into the greatest criminal enterprise in history. It is perhaps worth considering from the evidence a few examples of how this policy developed during these 6 years. They are examples of what was happening in every German town and village. It must be remembered here that in the need to avoid cumulative evidence you have, in the result, been deprived of its cumulative effect (Document Number D-911).

First then, the elimination of political opponents. Within 6 weeks of the Nazis coming to power in January 1933, the German newspapers were quoting official sources for the statement that 18,000 Communists had been imprisoned whilst the 10,000 prisoners in the jails of Prussia included many Socialists and intellectuals. The fate of many of these men was described by Severing, who estimated that at least 1,500 Social Democrats and a similar number of Communists were murdered in concentration camps recently established by Göring as Chief of the Gestapo.

These camps, controlled by the Party organizations, were deliberately so run as to strike terror throughout the country. In the words of the witness Severing, the concentration camps represented for the people “the incarnation of all that was terrible.”

Göring has said: “We found it necessary that we should permit no opposition,” and he admitted that there were arrested and taken into protective custody people who had committed no crime.

It might have been well if at that time they had read the maxim of which they spoke yesterday, nulla poena sine lege.

Göring added: “... if everyone knows that if he acts against the State he will end up in a concentration camp that is our advantage.”

The camps were at first run indiscriminately by the SA and the SS, and according to Göring were created “... as an instrument which at all times was the instrument of power for home politics.”

Gisevius, who at that time had recently joined the Gestapo, you remember, gave the following description:

“I was hardly more than 2 days in that new police office when I had discovered already that incredible conditions existed there. There was no police which interfered against crimes, against murder, against arrests, against burglary. There was a police organization which protected just those who committed such crimes. Those arrested were not those who were guilty of such crimes; they arrested those who sent their cries for help to the police. It was not a police which interfered for protection, but a police whose task, it seemed, was in fact to hide, to cover up, and to sponsor crimes; those commandos of the SA and SS who played police were encouraged by that so-called Secret State Police and all possible aid was given to them....

“Special concentration camps for the Gestapo were installed, and their names will remain as a terrible shame in history. They were Oranienburg and the private prison of the Gestapo, in the Papestrasse, the Columbia House, or, as it was called cynically, the ‘Columbia Diele’.... I asked one of my colleagues, who was also a professional civil servant.... ‘Tell me, please, am I here in a police office or in a robber’s cave?’ The answer that I received was: ‘You are in a robber’s cave and you can expect that you will see much more yet.’ ”

Gisevius went on to describe Göring’s order to murder the National Socialist Strasser and how he gave “blank authority” for murder to the political police by signing a form granting amnesty to the policeman, leaving a blank space for the name of the murdered person in respect of whom the amnesty had been granted.

If confirmation of the evidence of these defense witnesses were required, it is to be found in the series of reports dated in May and June 1933, from the Munich Public Prosecutor to the Minister of Justice, which are in evidence recording a succession of murders by SS officials in the concentration camp at Dachau (Documents 641, 642, 644, 645-PS).

In 1935 the Reich Minister of Justice is writing to Frick (Document Number 3751-PS). He is protesting against numerous instances of ill-treatment in concentration camps, including:

“Beating as a disciplinary punishment...

“Ill-treatment—mostly of political internees—in order to make them talk.”—and—“Ill-treatment of internees arising out of wantonness or sadistic motives.”

He went on to complain that:

“The beating of the Communists held in custody is regarded as an indispensable police measure for a more effective suppression of Communist activities.”

And after citing instances of torture, he concludes: “These few examples show a degree of cruelty which is an insult to German sensibility....”

Frick’s sensibility was apparently not so tender. The very next year he received a similar protest from one of his own subordinates and shortly afterward he issued a decree making all police forces subordinate to Himmler, the very man whom he knew to be responsible for these atrocities (Document Number 775-PS).

These brutalities, well known to ministers, as we suggest they were, were not confined to the privacy of concentration camps. It is perhaps worth quoting one instance from the thousands who suffered from the policy which was being pursued.

The Tribunal will remember the account by Sollman, a Social Democrat, and member of the Reichstag from 1919 to 1933. He spoke of the incident on 9 March 1933 when, to quote his own words (Document Number 3231-PS):

“... members of the SS and SA came to my home in Cologne and destroyed the furniture and my personal records. At that time I was taken to the Brown House in Cologne, where I was tortured, being beaten and kicked for several hours. I was then taken to the regular Government prison in Cologne where I was treated by two medical doctors and released the next day. On 11 March 1933 I left Germany....”

The second object, the suppression of all democratic institutions, was comparatively simple. The necessary laws were passed to outlaw trade unions. The Reichstag became a farce directly the opposition parties had been dissolved and their members had been put in concentration camps. The witness Severing has spoken of the treatment of the Reichstag members. In 1932, on Von Papen’s order he, who was chief of the Prussian Ministry of the Interior, was forcibly removed from his office. It was not long after the 30th of January 1933 that the Communist and Social Democratic parties were decreed illegal and all form of public expression, other than by the Nazis, was prevented. This action resulted from deliberate planning. Frick has said as far back as 1927 (Document Number 2513-PS):

“The National Socialists longed for the day when ...”—they—“... could put an inglorious but well-deserved end to this infernal sham (the Reichstag) and open the way for a national dictatorship.”

At this time when democratic government is seeking to re-establish itself throughout the world, the Nazi attitude to elections is not to be forgotten. Free elections could not, of course, be permitted. Göring had told Schacht in February 1933 when seeking money for the Party from industry, and I quote (Document Number D-203):

“The sacrifice asked for will surely be so much easier for industry to bear if it is realized that the election of 5 March will be the last one for the next 10 years, probably for the next 100 years.”

In these circumstances it is not surprising to find that thereafter, as the evidence such as the SD report on the conduct of the plebiscite at Kappel makes clear, the occasional votes of the people, always announced as triumphs for the Nazis, were conducted dishonestly (Document Number R-142).

I turn to the third class of opposition, the churches—Bormann’s memorandum sent in December 1941 to all Gauleiter and distributed to the SS sums up the Nazi attitude to Christianity (Document Number D-75):

“National Socialist and Christian, concepts are irreconcilable. ... If therefore in the future our youth knows nothing more of this Christianity whose doctrines are far below ours, Christianity will disappear by itself.... All influences which might impair or damage the leadership of the people exercised by the Führer with the aid of NSDAP must be eliminated. More and more the people must be separated from the churches and their organs, the pastors....”

The persecution of the churches makes a melancholy story. From the abundance of evidence which has been submitted to the Tribunal it is perhaps permissible to quote from a complaint to Frick made early in 1936 (Document Number 775-PS):

“... lately half the political police reports concern clerical matters. We have untold petitions from all kinds of cardinals, bishops, and dignitaries of the Church. Most of these complaints concern matters under the jurisdiction of the Reich Ministry of the Interior, although the respective rules were not decreed by it....”

And then after referring to the chaos resulting from the division of authority between the various police forces, the report goes on to refer to the results of the religious struggle:

“Instances of disturbances of congregations are mounting terribly fast lately, often necessitating the intervention of the emergency squad.... After discarding the rubber truncheon, the idea of exposing executive officials to situations in which, during interruptions of meetings, they may be forced to use cold steel, is unbearable.”

The diary of the Minister of Justice for 1935 provides ample instances of the sort of behavior which was being encouraged by the Hitler Youth under the Defendant Schirach and the Defendant Rosenberg. The Hitler Jugend, whose membership increased from just under 108,000 in 1932 to nearly 8 million in 1939, was organized on a military basis (Document Number 2435-PS). The close collaboration between Keitel and Schirach in their military education has been described; the special arrangement between Schirach and Himmler by which the Hitler Jugend became the recruiting organization for the SS is in evidence (Document Number 2396-PS). You will not have forgotten the words of Schirach’s deputy (Document Number 1992-PS): “In the course of years we want to insure that a gun feels just as natural in the hands of a German boy as a pen.”

What a horrible doctrine!

The terrorization, murder, and persecution of political opponents, the dissolution of all organizations affording opportunity for opposition, criticism, or even free speech, the systematic perversion of youth and training for war would not, however, have sufficed without persecution of the Jews.

Let no one be misled by the metaphysical explanations which are put forward for this most frightful crime. What Hitler himself in this very town described as the fanatical combat against the Jews was part and parcel of the policy of establishing “ein Volk”—“ein Herrenvolk,” which would dominate Europe and the world. And so the persecution of the Jews was popularized throughout the country. It provided the cement which bound the people to the regime. It gave the youths a butt to bully and so to acquire practical schooling in brutality.

With the accession to power the persecution of the Jews increased in violence. The final solution of mass murder had then been conceived. In Mein Kampf of Hitler, the bible of the Nazis, Hitler had regretted that poison gas had not been employed to exterminate the German Jews during the last war, and as early as 1925 Streicher said (Document Number M-13): “Let us make a new beginning today, so that we can annihilate the Jew.” It may be that he, even before Hitler, Himmler, or the others, had visualized the annihilation of the Jews, but the Nazis were not at first ready completely to defy world opinion and they confined themselves to persecution and to making life in Germany unbearable for Jews. To the never-ceasing accompaniment of the Stürmer and the official Nazi press the campaign of Jew-baiting was fostered and encouraged. Rosenberg, Von Schirach, Göring, Hess, Funk, Bormann, Frick joined hands with Streicher and Goebbels. The boycott in April 1933 celebrated the Nazi accession to power and provided only a taste of what was to follow. It was accompanied by demonstrations and window-smashing—“Action Mirror” as it has been referred to in this Court. Accounts of typical incidents are given in the affidavit of the witness Geist who describes the events in Berlin on 6 March 1933 (Document Number 1759-PS):

“Wholesale attacks on the Communists, Jews, and those who were suspected of being either; mobs of SA men roamed the streets, beating up, looting, and even killing persons.”

In 1935 followed the infamous Nuremberg Decrees. In 1938 the so-called spontaneous demonstrations ordered throughout Germany resulted in the burning of the synagogues, the throwing of 20,000 Jews into concentration camps with the accompaniment of penalties, of Aryanization of property, and the wearing of a yellow star.

The cynicism of these men and the merciless character of their policy towards the Jews appeared at Göring’s meeting of 12 November 1938, when they vied with each other in suggesting methods of degrading and persecuting their helpless victims. Neither Hitler nor Himmler, whom today they seek to blame, was present, but who, reading the record of that meeting, can doubt the end in store for the Jews of Europe? At that meeting Heydrich reported on the events which occurred on the night of 9 November: 101 synagogues destroyed by fire, 76 demolished and 7,500 stores ruined throughout the Reich. The Reichsmark approximate cost of replacing broken glass alone was estimated at 6 million and the damage to one store alone in Berlin at 1.7 million Reichsmark. Heydrich also reported 800 cases of looting, the killing of 35 Jews, and estimated the total damage of property, furniture, and goods at several hundred million Reichsmark.

You will recall Heydrich’s order for the riot, including the arrests of the Jews and their removal to concentration camps. After referring to the fact that demonstrations were to be expected in view of the killing of a German legation official in Paris that night, he instructs the Police on the prospective burning of synagogues, destruction of business, and private apartments of Jews, and in their duty to refrain from hindering the demonstrators: “... the Police has only to supervise compliance with the instructions.” And finally (Document Number 3051-PS):

“In all districts as many Jews—especially rich ones—are to be arrested as can be accommodated in the existing prisons. For the time being only healthy men, not too old, are to be arrested. Upon their arrest, the appropriate concentration camps should be contacted immediately in order to confine them in these camps as fast as possible.”

We now know from the evidence with regard to the seizure of the houses of Jews by Neurath and Rosenberg why the orders were to concentrate upon the richest (Document Number 1759-PS).

These events are neither secret nor hidden. Ministers were writing to each other and discussing them. Long before 1939 they were common knowledge not only to Germany but to the whole world. Every one of these defendants must have heard again and again stories similar to that of Sollman. Almost all of them have sought to gain credit from helping one or two Jews; and you will remember the evidence of a special office in Göring’s Ministry to deal with protests, and his witness Körner who stated with pride that Göring had always intervened on behalf of individuals (Session of 12 March 1946 a. m.). Perhaps it afforded them some gratification or eased their conscience in some way occasionally to demonstrate their influence by exempting some unhappy individual who sought their favor from the general horror of the regime which they continued to uphold. But these men participated in a Government which was conducted without any regard for human decency or established law. There is not one of them who, being a member of the Government during that period, has not got the blood of hundreds of his own countrymen on his hands.

Göring and Frick established the concentration camps; the witness Severing and the documents quoted testify to the murders which took place in them at a time when these two were directly responsible. Even Göring could not defend all the murders of 30 June 1934. He shares with Hess and Frick the responsibility for the Nuremberg Laws. The record of the meeting of 12 November 1938 (Document Number 1816-PS) and Göring’s initials on Heydrich’s order of the 9 November (Document Number 3051-PS) require no comment.

As Ambassador in England, Ribbentrop must have been well aware of the facts, if only from the English papers, whilst his delegate Woermann assented to the atrocities reported to the meeting of 12 November 1938. The previous owner of his country house, Herr Von Remitz, was placed in a concentration camp, and he expressed his sentiments toward the Jews to M. Bonnet, on 8 December 1938 in the following terms (Document Number L-205):

“The German Government had therefore decided to assimilate them”—the Jews—“with the criminal elements of the population. The property which they acquired illegally would be taken from them. They would be forced to live in districts inhabited by the criminal classes.”

Hess, who set up an office for racial policy in 1933, shares responsibility for the Nuremberg Decrees (Document Number 1814-PS).

At the meeting of 12 November 1938 a full report was given of similar measures against the Jews in Austria (Document Number 1816-PS) and it seems certain that the Defendant Kaltenbrunner as a faithful member of the Party was giving full support to the necessary measures. The evidence that Seyss-Inquart was playing his part is before the Tribunal. Rosenberg was writing The Myth of the 20th Century and taking his full share in the struggle against the Church and in the anti-Semitic policy of the Government; whilst even Raeder on Heroes’ Day 1939 was speaking of “the clear and inspiring summons to fight Bolshevism and international Jewry whose race-destroying activities we have sufficiently experienced on our own people.”

Frick, as Minister of the Interior, bears a responsibility second to none for the horrors of the concentration camps and for the Gestapo, whilst Frank, as Minister of Justice for Bavaria, was presumably receiving the reports on the murders in Dachau. He was the leading jurist of the Party, a member of the Central Committee which carried out the boycott of the Jews in March 1933 and he spoke on the wireless in March 1934 justifying racial legislation and the elimination of hostile political organizations. He also was present at Göring’s meeting.

The Tribunal will not require to be reminded of the part played by Streicher. It was in March 1938 that the Stürmer began consistently to advocate extermination, the first article of a series which was to continue throughout the next 7 years, beginning with an article signed by Streicher ending with the words: “We are approaching wonderful times—a Greater Germany without Jews.”

Funk, as Vice President of the Reich Chamber for Culture from 1933, had participated in the policy for the elimination of the Jews (Document 3505-PS); he was present and assented to the recommendations at Göring’s November meeting in 1938 at which it will be remembered Göring suggested that it would have been better to kill 200 Jews, whereupon Heydrich mentioned that in fact the number was a mere 35 (Document 1816-PS).

Schacht himself admitted that as early as the second half of 1934 and the first half of 1935 he found that he was wrong in thinking that Hitler would bring the “revolutionary” force of the Nazis into a regulated atmosphere, and that he discovered that Hitler, having done nothing to stop the excesses of individual Party members or Party groups, was in fact pursuing a “policy of terror.” Nevertheless he remained in office and Schacht accepted the Golden Party Badge in January 1937 when Von Eltz refused it.

Schirach has confirmed his part in insuring that the younger generation of Germany grew up rabid anti-Semites under his teaching. He cannot escape responsibility for training the youth to bully Jews, to persecute the Church, to prepare for war. This perversion of children is perhaps the basest crime of all.

Sauckel, who had joined the Party in 1921, filled the post of Gauleiter of Thuringia (Document Number 2974-PS). He cannot have been ignorant of the persecution of the churches, of the trade unions, of other political parties and of the Jews, taking place throughout this important Gau, and there is every reason to suppose that he gave the fullest support to these policies and thus enhanced his reputation with the Nazis. Papen and Neurath were in a better position to judge these matters than any of the other defendants, since it was their political associates who were being persecuted; whilst, in the case of Papen, some of his own staff were killed and he himself arrested and was lucky to escape with his life.

Neurath’s attitude to the Jews is shown by his speech in September 1933:

“The stupid talk about purely internal affairs, as for example the Jewish question, will quickly be silenced if one realizes that the necessary cleaning up of public life must temporarily entail individual cases of personal hardship but that nevertheless it only serves to establish all the more firmly the authority of justice and law in Germany.”

What prostitution of these great words!

Of the remainder, all were men of intelligence and already held positions of considerable authority. None of them can have been ignorant of what the whole world knew, yet not one of them has suggested that he made any effective protest against this regime of brutality and terror. All of these men continued in their spheres of government and in the highest positions of responsibility. Each in his part—and such a vital part—these men built up the evil thing, the ultimate purpose of which was so well known to them, and instilled the evil doctrines which were essential to the achievement of that purpose. It was Lord Acton—that great European—who, 80 years ago, in expressing his conviction of the sanctity of human life, said: “The greatest crime is homicide. The accomplice is no better than the assassin; the theorist is the worst.”

I shall return if I may, later, to the question of conspiracy and to the part these men played in it, but no conclusion upon the conspiracy charge in the first Count of the Indictment is really possible until the specific crimes set out in the subsequent counts have been considered. And first of these is the Crime against Peace, set out in Count Two. I say first, first in its place in the Indictment. Moralists may argue which is greatest in moral guilt. But this perhaps should be said at the very outset. It is said that there is no such crime as a crime against peace, and those superficial thinkers who, whether in this Court or in armchairs elsewhere, have questioned the validity of these proceedings, have made much of this argument. Of its merits I shall have something to say presently. But let it be said plainly now that these defendants are charged also as common murderers. That charge alone merits the imposition of the supreme penalty and the joinder in the Indictment of this Crime against Peace can add nothing to the penalty which may be imposed on these individuals. Is it, then, a mere work of supererogation to have included this matter in the Indictment at all? We think not, for the very reason that more is at stake here than the fate of these individuals. It is the crime of war which is at once the object and the parent of the other crimes; the Crimes against Humanity, the War Crimes, the common murders. These things occur when men embark on total war as an instrument of policy for aggressive ends.

Moreover, taking this crime, the Crime against Peace, in isolation, it was responsible for the deaths in battle of 10 million men, and for bringing to the very edge of ruin the whole moral and material structure of our civilization. Although it may be that it may add nothing to the penalty which may be imposed upon these men, it is a fundamental part of these proceedings to establish for all time that international law has the power, inherent in its very nature, both to declare that a war is criminal and to deal with those who aid and abet their states in its commission. I shall come back to the law. Let me first refer to the facts.

You have had from Defense Counsel an elaborate, but a partial and a highly controversial account of foreign relations leading up to 1939. I do not propose to follow them in that examination, nor am I concerned to say that as events have turned out, the policies pursued by the democratic powers may not sometimes have been weak, vacillating, and open to criticism. Defense Counsel have sought to base some argument on the protocol attached to the German-Soviet Pact. They argue that it was wrong. I am not concerned with that, and, of course, I do not concede it. But let them argue that it was wrong. Do two wrongs make a right? Not in that international law which this Tribunal will administer.

The review which Defense Counsel have made entirely overlooks the two basic facts in this case, that from the time of Mein Kampf on, the whole aim of Nazi policy was expansion, aggression, domination, and that the democratic powers had to deal with a Germany of which that was, in spite of occasional lip service to peace, the fundamental aim. If peace was contemplated at all, it was peace only at Germany’s price. And knowing that that price would not be and could not be paid voluntarily, the Germans were determined to secure it by force.

Whilst the German people were being psychologically prepared for war, the necessary measures of rearmament were taken simultaneously. At his conference on the 23d of November 1939, Hitler summed up this period of preparation in these words (Document Number 789-PS):

“I had to reorganize everything beginning with the mass of the people extending it to the Armed Forces. First internal reorganization, eradication of appearances of decay and of defeatist ideas, education for heroism. While reorganizing internally, I undertook the second task to release Germany from its international ties ... secession from the League of Nations and denunciation of the Disarmament Conference ... After that the order for rearmament... In 1935 the introduction of compulsory armed service. After that militarization of the Rhineland...”

The conspirators set out first to get rid of the political restraints which prevented rearmament. In October 1933 Germany left the League of Nations and in March 1935 renounced the armament clauses of Versailles and informed the world of the establishment of an air force, of a large standing army, and of conscription. Already the Reich Defense Council had been set up and its Working Committee had had its second meeting as early as 26 April 1933 with representatives from every department. It is difficult, is it not, to believe that reading the minutes of these meetings, as they must have done, Neurath, Frick, Schacht, Göring, Raeder, Keitel, and Jodl, the last two being generally present, can have supposed that the regime did not intend war.

On the economic side Schacht, already President of the Reichsbank and Minister of Economics, was made General Plenipotentiary for War Economy in May 1935. The appointment was to be a complete secret (Document Number 2261-PS). His contribution is best expressed in his own words (Document Number EC-611):

“It is possible that no bank of issue in peacetime carried on such a daring credit policy as the Reichsbank since the seizure of power by National Socialism. With the aid of this credit policy, however, Germany created an armament second to none and this armament in turn made possible the results of our policy.”

Schacht’s speech on 29 November 1938 is seen to be no boast when the report of his deputy, which has been put in evidence, is considered. That report shows that under Schacht’s guidance, 180,000 industrial plants had been surveyed as to usefulness for war purposes (Document Number EC-258). Economic plans for the production of 200 basic materials had been worked out. A system for the letting of war contracts had been revised, allocations of coal, motor fuel and power had been determined, 248 million Reichsmark had been spent on storage facilities alone, evacuation plans for skilled workers and war materials and military zones had been worked out; 80 million wartime ration cards had already been printed and distributed to local areas and a card index on the skill of some 20 million workers had been prepared.

The most detailed and thorough preparations which that report sets out were not made without the knowledge of every member of the Government and no more graphic illustration of the common purpose and awareness of the aim which permeated all departments of the State is to be found than the second meeting of the Reich Defense Council itself held on 25 June 1939, under the presidency of the Defendant Göring, the head of the Four Year Plan. The Defendants Frick, Funk, Keitel, and Raeder were present and Hess and Ribbentrop were represented. The methodical detail in the plans which were being worked out—the preparation in respect of manpower involving the use of concentration camp workers and the unfortunate slaves of the protectorate are eloquent testimonies to the size of the struggle upon which these men knew that Germany was about to embark.

The major share in rearmament must be attributed to the Defendants Göring, Schacht, Raeder, Keitel, and Jodl, but the others, too, each in his sphere, played their parts: Rosenberg, Schirach, and Streicher in education, Dönitz in the preparation of the U-boat fleet, Neurath and Ribbentrop in the field of foreign affairs.

Funk and Fritzsche were reorganizing propaganda and news systems until the former succeeded Schacht and became Minister of Economics and in September 1938 General Plenipotentiary for Economics. As Plenipotentiary Funk was charged with insuring the economic conditions for the production of the armament industry, according to the requirements of the High Command. Frick as Plenipotentiary for the Reich Administration (Document Number 2978-PS), with Funk and Keitel, formed the Three Man College planning the necessary steps and decrees in case of war.

It is unnecessary in assessing this work of rearmament to do more by way of summary than to quote the words of Hitler himself in the memorandum which Jodl described as written during two nights of work by the Führer personally and which he sent to the Defendants Raeder, Göring, and Keitel. In that memorandum of 9 October 1939, Hitler finally disposes of the evidence of these defendants that Germany was never adequately prepared for war (Document Number L-52):

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

And again:

“The warlike equipment of the German people is at present larger in quantity and better in quality for a great number of German divisions, than in the year 1914. The weapons themselves, taking a substantial cross section, are more modern than is the case with any other country in the world at this time. They have just proved their supreme warworthiness in a victorious campaign. In the case of the armaments of other countries this has yet to be demonstrated. In some arms Germany today possesses clear indisputable superiority of weapons.”

And then, speaking of the ammunition available after the conclusion of the Polish campaign:

“There is no evidence available to show that any country in the world disposes of a better total ammunition stock than the German Reich.... The Air Force at present is numerically the strongest in the world.... The anti-aircraft artillery is not equalled by any country in the world.”

That, then, was the practical result of 6 years of intensive rearmament carried out at the expense and with the knowledge of the whole of the German people.

Meanwhile the youth of Germany was educated and drilled in semimilitary formations for war and then, on reaching the age for conscription, was called up for more intensive training. This was going on throughout the Reich, together with the enormous work of economic preparation. Is it to be believed that any one of these men did not guess—did not, indeed, know—the purpose of this terrific effort?

If, indeed, any of them was in doubt, the successful actions in which—to use the words of one of Neurath’s witnesses—“the Nazis were able to reap cheap laurels without war through the successfully practiced tactics of bluff and sudden surprise,”—must have opened their eyes.

The first step was the Rhineland and the technique became the model for each subsequent move. On 21 May 1935, Hitler gave a solemn assurance that the stipulations of Versailles and Locarno were being observed. Yet 3 weeks earlier on the very day of the conclusion of the Franco-Soviet Pact, later to become the official excuse for the reoccupation of the Rhineland, and the defense for it, before this Tribunal, the first directive for reoccupation had been issued to the service chiefs. The Defendant Jodl, having perhaps noted the significance of the date, has sought to persuade the Tribunal that his first admission, that “Operation Schulung” referred to the reoccupation of the Rhineland, was wrong, and that it applied to some military excursion in the Tyrol. Yet on the 26th of June he himself was addressing the Working Committee of the Reich Defense Council on the plans for reoccupation and revealing that weapons, equipment, insignia, and field grey uniforms were being stored in the zone under conditions of the greatest secrecy (Document Number EC-405). Can anyone who reads his words doubt that this process had been going on at least for 7 weeks?

Any representative of the innumerable departments who attended that meeting and heard Jodl’s remarks on the 26th of June 1935 or who subsequently read the minutes knew what to expect. On the 2d of March 1936 the final orders were given and passed to the Navy 4 days later (Document Number C-194). The Defendants Keitel, Jodl, Raeder, Frick, Schacht, and Göring were all involved in the necessary executive action and, if his U-boats complied with the instruction of the 6th of March, the Defendant Dönitz, as well.

From the beginning, at every stage you see the common plan worked out—and worked out as it could only be if each of those men played his allotted part. First the period of apparent quiet, during which treaties are concluded, assurances given, and protestations of friendship made while beneath the surface the Auslands-Organisation under Hess and Rosenberg begins to undermine and disrupt. The victim is deceived by open promises and weakened by underhand methods. Next, the decision to attack is taken and military preparations are hastened. If the victim shows signs of suspicion, the assurances of friendship are redoubled.

Meanwhile, the finishing touches are put to the work accomplished by the fifth column. Then when all is prepared, what Hitler called “the propagandist cause for starting the war” is chosen, frontier incidents are faked, abuse and threats take place of fair words and everything is done to terrify the victim into submission. Finally, the blow is struck without warning. The plan varies in detail from case to case, but essentially, it is the same, the perfect example repeated again and again, of treachery, intimidation, and murder.

The next step was Austria. First, the Nazis arranged the murder of Dollfuss in 1934. After the evidence in the case of the Defendant Neurath, there can be little doubt as to his assassination being plotted in Berlin and arranged by Habicht and Hitler some six weeks before. The failure of that Putsch made it necessary to temporize, and accordingly in May 1935 Hitler gave a complete assurance to Austria (Document Number TC-26). At the same time the Defendant Papen was sent to undermine the Austrian Government. With the occupation of the Rhineland, Austria was next on the program but Hitler was still not yet ready, hence the solemn agreement of July 1936 (Document Number T-22). By the autumn of 1937 Papen’s reports showed progress and accordingly the plot was divulged at the Hossbach meeting (Document Number 386-PS). A slight delay was necessary for the removal of the refractory Army leaders, but in February 1938, Papen having completed his plotting with Seyss-Inquart, Schuschnigg was lured to Berchtesgaden and bullied by Hitler, Ribbentrop, and Keitel. Shortly afterward, the final scene took place; Göring played his part in Berlin. The defendants, Göring, Hess, Keitel, Jodl, Raeder, Frick, Schacht, Papen, and Neurath, were all aware of this Austrian plot, Neurath and Papen from the very beginning of it.

With the exception of Göring, each one of them has attempted to put forward a defense of ignorance which cannot be regarded as other than ludicrous in the light of the documents. Not one of them has suggested that he protested, each one of them remained in office thereafter.

Already the plan for Czechoslovakia was ready; it had been discussed at the Hossbach meeting in November 1937, within 3 weeks of the Munich Agreement the directive to prepare to march in had been given and on the 15th of March 1939, President Hacha having been duly bullied by Hitler, Ribbentrop, Göring, and Keitel, Prague was occupied and the Protectorate established by Frick and Neurath. You will remember the astonishing admission of Göring that although he certainly threatened to bomb Prague he never really intended to do it. Ribbentrop also seems to have considered that in diplomacy any lie is permissible.

The stage was now set for Poland.

As Jodl explained (Document Number L-172):

“The peaceful solution of the Czech conflict in the autumn of 1938 and the annexation of Czechoslovakia rounded off the territory of greater Germany so that it was possible to consider the Polish problem on a basis of more or less favorable strategic premises.”

And now the time has come when, to use Hitler’s words (Document Number 386-PS): “German policy must reckon with its two hateful enemies, England and France.” And accordingly followed the policy laid down by Ribbentrop in January 1938 (Document Number TC-75): “The formation in great secrecy but with whole-hearted tenacity of a coalition against England.”

In the case of Poland, however, the German Foreign Office had already advised Ribbentrop as long ago as a month before Munich in the following terms (Document Number TC-76):

“It is unavoidable that the German departure from the border problems in the southeast and their direction to the east and northeast must make the Poles sit up. The fact is that after the solution of the Czech problem it will be generally assumed that Poland will be the next in turn. But the later this assumption sinks in in international politics as a firm factor the better. In this sense, however, it is important for the time being to carry on German policy under the well-known and proved slogans of the right to autonomy and racial unity. Anything else might be interpreted as pure imperialism on our part and create resistance to our plan by the Entente at an earlier date and more energetically than our forces could stand up to.”

In this case, therefore, the usual assurances were reiterated and again and again Hitler and Ribbentrop made the most explicit statements. Meanwhile the usual steps were taken, and following the meeting of the 23d of May 1939 (Document L-79), which Raeder described as an academic lecture on war, the final military economic and political preparations for war against Poland were taken and in due time war was commenced; and you get that quotation that you have heard so often, and it ought to be remembered for all times (Document Number 1014-PS):

“The victor shall not be asked later on whether we were telling the truth or not. In starting and making a war, not the right is what matters, but victory.”

These were Hitler’s words, but those men echoed and implemented them at every stage. That was the doctrine underlying Nazi policy. Step by step the conspirators had reached the crucial stage and had launched Germany upon an attempt to dominate Europe and involve the world in untold horror. Not one of these men had turned against the regime. Not one of them except Schacht—to whose vital contribution to the creation of the Nazi monster I shall return later—had resigned and even he continued to lend his name to the Nazi Government.

Would that be a convenient place to adjourn?

THE PRESIDENT: Yes, we will adjourn now.

[A recess was taken.]

SIR HARTLEY SHAWCROSS: If it please the Tribunal: Holland having been overrun, the course of the war soon showed that Germany’s military aims and the interests of her strategy would be improved by further aggression. I do not propose to take time now by tracing again the various steps. As Hitler said at the meeting in November 1939 (Document 739-PS):

“Breach of the neutrality of Belgium and Holland is meaningless. No one will question that when we have won. We shall not bring forth as silly a reason for the breach of neutrality as in 1914.”

Norway and Denmark were invaded. No kind of excuse, then or now, has been put forward for the occupation of Denmark, but a strenuous attempt has been made in the course of this Trial to suggest that Norway was invaded only because the Germans believed that the Allies were about to take a similar step. Even if it were true, it would be no answer, but the German documents completely dispose of the suggestion that it was for such a reason that the Germans violated Norwegian neutrality.

Hitler, Göring, and Raeder had agreed as early as November 1934, and I quote (Document Number C-190): “... no war could be carried on if the Navy was not able to safeguard the ore imports from Scandinavia.”

Accordingly, as the European struggle drew near, a nonaggression pact was made with Denmark on 31 May 1939 (Document Number TC-24) following the mutual assurance to both Norway and Denmark which had already been given a month earlier (Document Number TC-30). At the outbreak of the war a further assurance was made to Norway (Document Number TC-31), followed by another on the 6th of October (Document Number TC-32). On the 6th of September, 4 days after his assurance, Hitler was discussing with Raeder the Scandinavian problem and his political intentions in regard to the Nordic states, expressed in Admiral Assman’s diary as: “a North Germanic community with limited sovereignty in close dependence on Germany.”

On the 9th of October, 3 days after his most recent assurance, in his memorandum for the information of Raeder, Göring, and Keitel, Hitler was writing of the great danger of the Allies blocking the exits for U-boats between Norway and the Shetlands and of the consequent importance of “the creation of U-boat strongpoints outside these constricted home bases” (Document Number L-52). Where outside the constricted home bases if not in Norway?

It is significant that the very next day Dönitz submitted a report on the comparative advantages of the different Norwegian bases (Document C-5), having discussed the matter with Raeder some 6 days before (Document C-122). The strategic advantages were apparent to all these men and the hollowness of the defense that the invasion of Norway was decided upon because it was believed that the Allies were going to invade is completely exposed when you consider the statement in Hitler’s memorandum preceding the passage I have just quoted, that (Document Number L-52):

“Provided no completely unforeseen factors appear, their neutrality in the future is also to be assumed. The continuation of German trade with these countries appears possible even in a war of long duration.”

Hitler saw no threat from the Allies at that time.

Rosenberg and Göring’s deputy, Körner, had been in touch with Quisling and Hagelin as early as June and it is clear from Rosenberg’s subsequent report that Hitler had been kept fully informed (Document Number 004-PS). In December the time for planning had arrived and the decision to prepare for invasion was accordingly taken at a meeting between Hitler and Raeder (Document Number C-66). It was not long before Keitel and Jodl issued the necessary directives and in due course as necessary, Göring, Dönitz, and Ribbentrop were involved.

On the 9th of October, as I have already said, Hitler was confident that there would be no danger to the Nordic states from the Allies. All the alleged intelligence reports contain no information which comes within miles of justifying an anticipatory invasion based—you might think it is laughable—on the doctrines of self-preservation. It is true that in February 1940 Raeder pointed out to him that if England did occupy Norway the whole Swedish supply of ore to Germany would be endangered (Document Number D-881), but on the 26th of March he advised that the Russo-Finnish conflict having ceased, the danger of an Allied landing was no longer considered serious. Nonetheless he went on to suggest that the German invasion, for which all the directives had been issued, should take place at the next new moon, on the 7th of April (Document Number R-81). It is interesting to note that Raeder’s own war diary signed by himself and his chief of staff operations records a similar opinion 4 days earlier. If further evidence were needed to show that the actual step was taken regardless of any risk of interference from the West, it is to be found in telegrams from the German ministers at both Oslo and Stockholm and from the German military attaché at Stockholm, advising the German Government that, far from being worried over invasion by the British, the Scandinavian Governments were apprehensive that it was the Germans who intended to invade (Documents Number D-843, D-844, D-845). Perhaps Jodl’s comment in his diary for March that Hitler “is still looking for an excuse” (Document Number 1809-PS) with Raeder’s lame explanation that this refers to the text of the diplomatic note which would have to be sent and Ribbentrop’s assertion that he was informed of the invasion only a day or so before it was to take place are as conclusive as anything else of the dishonesty of this defense. Once again all these men in their different spheres were playing their appointed parts—notably, of course, Rosenberg, who paved the way, Göring, Raeder, Keitel, Jodl, and Ribbentrop who took the necessary executive action. Not one of them protested: Even Fritzsche’s only defense is that he was not told until a very late stage when he was as usual required to broadcast. He does not suggest that he protested. Once again, a completely ruthless invasion of two countries was undertaken in breach of every treaty and assurance, solely because it was strategically desirable to have Norwegian bases and to secure Scandinavian ore.

And so it went on: Yugoslavia, her fate settled before the war, Greece, and then Soviet Russia. The German-Soviet Pact of the 23d of August 1939 paved the way. Complete worthlessness of a Ribbentrop signature is made clear by Hitler’s memorandum 6 weeks later, where he remarked (Document Number L-52): “The trifling significance of treaties of agreement has been proved on all sides in recent years.”

By the 18th of December 1940 it must have become apparent that the German hopes of overcoming the resistance of Great Britain—then and for many months holding the fort of freedom and democracy alone against an enemy never more powerful than at that time—were vain, and so the first directive was issued for an attack in another direction this time—against Soviet Russia (Document Number 446-PS). It is indeed true—and it is interesting—that on this occasion a number of the defendants did make some objection. Little Norway might be violated without protest: There was no danger there. There was happy acquiescence in the rape of the gallant Netherlands and of Belgium. But here was an enemy which might perhaps strike fear in the heart of the bully. The defendants objected, of course, if at all, on purely military grounds, although Raeder does say that he was influenced by the moral wrong which a breach of the German Soviet treaty would involve. It is for you to say. These moral scruples which ought so properly to have manifested themselves on countless other occasions are only previously recorded when one of his officers wishes to marry a lady of doubtful reputation. The truth is that some of these men were beginning to become apprehensive. Great Britain’s resistance had already begun to make them think. Was Hitler now taking on another enemy whom he could not defeat? Once the decision was taken, however, every one of them set to work to play his part with his usual disregard for all laws of morality or even decency.

In no single case did a declaration of war precede military action. How many thousands of innocent, inoffensive men, women, and children, sleeping in their beds in the happy belief that their country was and would remain at peace, were suddenly blown into eternity by death dropped on them without warning from the skies? In what respect does the guilt of any one of these men differ from the common murderer creeping stealthily to do his victims to death in order that he may rob them of their belongings?

In every single case, as the documents (Documents 386-PS, L-79) make clear, this was the common plan. The attack must be “blitzartig schnell”—without warning, with the speed of lightning—Austria, Czechoslovakia, Poland—Raeder repeating Keitel’s directive for “heavy blows struck by surprise” (Document Number C-126)—Denmark, Norway, Belgium, Holland, Russia. As Hitler had said in the presence of a number of these men (Document Number L-79): “Considerations of right or wrong or treaties do not enter into the matter.”

The killing of combatants in war is justifiable, both in international and in municipal law, only where the war itself is legal. But where a war is illegal, as a war started not only in breach of the Pact of Paris but without any sort of warning or declaration clearly is, there is nothing to justify the killing, and these murders are not to be distinguished from those of any other lawless robber bands.

Every one of these men knew of these plans at one stage or another in their development. Every one of these men acquiesced in this technique, knowing full well what it must represent in terms of human life. How can any one of them now say he was not a party to common murder in its most ruthless form?

But I am dealing now not with the murders which alone so well justify the condemnation of these men, but with their crime against peace. Let me say something about the legal aspect of this matter, for it is one to the firm establishment of which His Majesty’s Government of the United Kingdom, and indeed all the chief prosecutors here, attach great importance.

The distinguished speech by Professor Jahrreiss for the Defense was free of ambiguity. The effect was that though the Kellogg-Briand Pact and the other international declarations and treaties rendered aggressive war illegal, they did not make it criminal. In support of this contention it was argued that they could not have done so because any such attempt to make aggressive war a crime would be contrary to the sovereignty of states, and that, in any event, the entire system of prohibition of war had collapsed before the outbreak of the second World War and therefore ceased to be law. It was further argued that these treaties were not taken seriously by numerous jurists and journalists whose opinions were cited and were not really entitled to be treated seriously because they contained no provision for coping with the problem of the peaceful change of the status quo. With regard to the Pact of Paris itself, counsel contended that there could be no question of a criminal—or even unlawful—breach of that Pact of Paris because it left to each state, including Germany, the right to determine whether it was entitled to go to war in self-defense. Finally it was suggested that the state could not become the subject of criminal responsibility and that, if that proposition were not admitted, the crime was one of the German State and not of individual members of it, because in the German State which launched that war upon the world there were no individual wills but only one sovereign, uncontrolled, and final will—that of the dictator-Führer.

It might be enough for me to say that this entire line of arguments is beside the point and cannot be heard in this Court since it is in contradiction to the Charter. For the Charter lays down expressly that the planning—and I emphasize the word “planning”—preparation, initiation, or waging of a war of aggression or of a war in violation of international treaties, agreements, or assurances shall be considered crimes coming within the jurisdiction of the Tribunal. It would appear, therefore, that the only way in which the accused can escape liability is to show to the satisfaction of the Tribunal that these wars were not wars of aggression or in violation of treaties. They have not done that. That being so one asks what is the purpose of the argument which has been advanced in their behalf. Is it to deny the jurisdiction of this Tribunal in this matter? Or what is perhaps more probable, is it a political appeal to some outside audience which may be more easily impressed by the complaint that the accused are being made the object of post factum legislation?

Whatever its object, it is important that the argument should not go unchallenged. I am anxious not to take up time by repeating what I said in my opening statement on the change effected in the position of war in international law as the result of the long series of treaties, in particular the General Treaty for the Renunciation of War. I have submitted that that treaty, one of the most generally signed international treaties, established a rule of international law with a solemnity and clarity which is often lacking in customary international law; that the profound change which it produced, and this is important, although indeed the distinction between just and unjust wars had been recognized in medieval times, was reflected in weighty pronouncements of governments and statesmen. I submit that it rendered illegal recourse to war in violation of the treaty, and that there is no difference between illegality and criminality in a breach of law involving the deaths of millions and a direct attack on the very foundations of civilized life. Nor do I propose to take time by answering in detail the, if I may say so, strange chain of legal argument put forward by the Defense such as that the treaty had no effect attributed to it by its signatories on the ground that it was received in some quarters with disbelief or cynicism.

Even more curious to ordinary legal thinking is the reasoning that in any case that treaty—and the other treaties and assurances which followed it—had ceased to be legally binding by 1939 because by that time the entire system of collective security had collapsed. The fact that the United States declared its neutrality in 1939 was cited as an example of the collapse of the system as if the United States had been under any legal obligation to act otherwise. But what is the relevance of the fact that the system designed to enforce these treaties and to prevent and to penalize criminal recourse to war failed to work? Did the aggressions of Japan and Italy and the other states involved in the Axis conspiracy, followed by the German aggressions against Austria and Czechoslovakia, deprive those obligations of their binding effect simply because those crimes achieved a temporary success? Since when has the civilized world accepted the principle that the temporary impunity of the criminal not only deprives the law of its binding force but legalizes his crime?

And you will notice, incidentally, that in the case both of the Japanese and Italian aggressions, the Council and the Assembly of the League of Nations denounced these acts as violations both of the Covenant and of the General Treaty for the Renunciation of War and that in both cases sanctions were decreed. It may be that the policemen did not act as effectively as one could have wished them to act. But that was a failure of the policeman, not of the law.

But not content with the remarkable suggestion that by their very aggressions, because of the reluctance of the peace-loving states to take arms against the blackmail and the bullying which was directed against them, the aggressors had abrogated the law against aggression, the defendants have introduced some question of self-defense. They have not, indeed, really suggested that these wars were defensive wars. Not even Goebbels in his wildest extravagances went quite so far as that. It appears that what they seek to say is not that their wars were wars in self-defense, but that since the Pact of Paris not only left intact the right of states to defend themselves but also the sovereign right of each state to determine whether recourse to war in self-defense was justified in the circumstances, it did not in fact contain any legal obligation at all. That is, in our strong submission, a wholly fallacious argument. It is true that in the declarations preceding and accompanying the signature and the ratification of the Pact of Paris, self-defense was not only recognized as an inherent and inalienable right of the parties to the treaty, but its signatories reserved for themselves the exclusive right of judging whether circumstances called for the exercise of that right.

The question is whether this reservation of self-defense destroyed the purpose and the legal value of the treaty. If Germany was entitled to have recourse to war in self-defense and if she was free to determine in what circumstances she was permitted to exercise the right of self-defense, can she ever be considered to have violated the solemn obligation of the treaty? That question counsel of the defense sought to answer in the negative. But that answer amounts to an assertion that that solemn treaty subscribed to by more than sixty nations is a scrap of paper devoid of any meaning at all, and it would result in this—that every prohibition or limitation of the right of war would be a nullity if it expressly provides for the right of self-defense, and I invite the Tribunal emphatically to consign that parody of legal reasoning to where it properly belongs.

Neither the Pact of Paris nor any other treaty was intended to—or could—take away the right of self-defense. Nor did it deprive its signatories of the right to determine, in the first instance, whether there was danger in delay and whether immediate action to defend themselves was imperative; and that only is the meaning of the express proviso that each state judges whether action in self-defense is necessary. But that does not mean that the state thus acting is the ultimate judge of the propriety and of the legality of its conduct. It acts at its peril. Just as the individual is answerable for the exercise of his common law right of defense, so the state is answerable if it abuses its discretion, if it transforms “self-defense” into an instrument of conquest and lawlessness, if it twists the natural right of self-defense into a weapon of predatory aggrandizement and lust. The ultimate decision as to the lawfulness of action claimed to be taken in self-defense does not lie with the state concerned, and for that reason, the right of self-defense, whether expressly reserved or implied, does not impair the capacity of a treaty to create legal obligations against war.

Under the Covenant of the League of Nations, Japan was entitled to decide in the first instance whether events in Manchuria justified resort to force in self-defense. But it was left to an impartial body of enquiry to find, as it did find, that there was in fact no justification for action in self-defense and to mention a more recent example, Article 51 of the Charter of the United Nations lays down that nothing in the Charter shall impair the inherent right of individual or collective self-defense in case of armed attack. But it expressly leaves to the Security Council the power of ultimate action and determination. It is to be hoped that the judgment of this Tribunal will discourage, and discourage with appropriate finality, any further reliance on the argument that, because a treaty reserved for the signatories the right of action in self-defense, it becomes, for that reason, incapable of imposing upon the signatories any effective legal obligation against war.

I will now turn to the argument that the motion of criminal responsibility is incompatible with the idea of national sovereignty. A state may, and this Professor Jahrreiss conceded, commit an offense against international law, but he contends that to make it criminally responsible and punishable would be to deny the sovereignty of the state.

It is strange to see the accused who in their capacity as the German Government overran most of the states of Europe, who trampled brutally upon their sovereign independence, and who with boastful and swaggering cynicism made the sovereignty of the conquered states subservient to the new conception of the “Grossraumordnung”—it is strange to see these defendants appealing to the mystic virtues of the sanctity of state sovereignty, and perhaps it is not less remarkable to find them invoking orthodox international law to protect the defeated German State and its rulers from just punishment at the hands of the victorious powers. But there is no rule of international law which they can call in aid to this regard.

In a sense these proceedings are not concerned with punishing the German State. They are concerned with the punishment of individuals. But it might seem strange if individuals were criminally responsible for the acts of the state if such acts by the state were not themselves crimes. There is, in our submission, no substance at all in the view that international law rules out the criminal responsibility of states and that since, because of their sovereignty, states cannot be coerced, all their acts are legal. Legal purists may contend that nothing is law which is not imposed from above by a sovereign power body having the power to compel obedience. That idea of the analytical jurists has never been applicable to international law. If it had, the undoubted obligation of states in matters of contract and tort could not exist.

It may be true that in international relationships prior to the war, there was no super-sovereign body which at the same time imposed international laws and enforced them. But, at least in the international field, the existence of law has never been dependent on the existence of a correlated sanction external to the law itself. International law has always been based on the element of common consent and where you have a body of rules which, whether by common consent or treaty, are obligatory upon the members of the international community, those rules are the laws of that community although the consent has not been obtained by force, and although there may be no direct or external sanction to secure obedience. The fact is that absolute sovereignty in the old sense is, very fortunately, a thing of the past. It is a conception which is quite inconsistent with the binding force of any international treaty.

In the course of the work of the Permanent Court of International Justice, it became a stock argument to rely on state sovereignty in support of the opinion that, as states are sovereign, treaty obligations entered into by them ought to be at least interpreted restrictively. The court consistently discouraged that view. In its very first judgment—a judgment given against Germany in the Wimbledon case—it rejected the plea of sovereignty as a reason for the restrictive interpretation of obligations in treaties. The court declined to see in a treaty, by which a state undertook to observe a definite line of conduct, an abandonment of its sovereignty and the court reminded Germany that the very right to enter into international engagements is an attribute of state sovereignty. As a philosophical proposition the right to contract and the right to freedom of action too, I suppose, present an eternal antithesis. But just as individuals secure their freedom by adherence to their laws, so may sovereign states maintain their own individual status; the view that since states are sovereign they cannot be coerced has long since been abandoned. The Covenant of the League of Nations made provision, in Article 16, for sanctions against sovereign states—sanctions being only another name for coercion, probably coercion of a punitive character. The Charter of the United Nations has followed suit—much more decisively. It is true that, because of the absence of a competent compulsory jurisdiction, there is no judicial precedent for states being arraigned before a criminal tribunal. But that is equally true of the undoubted civil responsibilities of states, for apart from treaty there is no compulsory jurisdiction in any international tribunal to adjudicate upon them.

The first man tried for murder may have complained that no court had tried such a case before. The methods of procedure, the specific punishments, the appropriate courts, can always be defined by subsequent proclamation. The only innovation which this Charter has introduced is to provide machinery, long overdue, to carry out the existing law, and there is no substance in the complaint that the Charter is a piece of post factum legislation either in declaring wars of aggression to be criminal, or in assuming that the state is not immune from criminal responsibility.

But then it is argued, even if the state is liable, it is only the state and not the individual who can be made responsible under international law. That argument is put in several ways. States only, it is said, and not individuals, are the subject of international law. But there is no such principle of international law. One need only mention the case of piracy or breach of blockade, or the case of spies, to see that there are numerous examples of duties being imposed by international law directly upon individuals. War crimes have always been recognized as bringing individuals within the scope of international law. In England and the United States our courts have invariably acted on the view that the accepted customary rules of the law of nations are binding upon the subject and the citizen, and the position is essentially the same in most countries. In Germany itself, Article 4 of the Weimar Constitution laid it down that generally recognized rules of international law must be regarded as an integral part of German Federal Law and what can it mean in effect, save that the rules of international law are binding upon individuals? Shall we depart from that principle merely because we are here concerned with the gravest offense of all—crimes against the peace of nations and crimes against humanity? The law is a living, growing thing. In no other sphere is it more necessary to affirm that the rights and duties of states are the rights and duties of men and that unless they bind individuals they bind no one. It is a startling proposition that those who aid and abet, who counsel and procure the commission of a crime are themselves immune from responsibility. The international crime does not differ from the municipal offense in this respect.

Then the argument is put in another way. Where the act concerned is an act of state, those who carry it out as the instruments of the state are not personally responsible and they are entitled, it is claimed, to shelter themselves behind the sovereignty of the state. It is not suggested, of course, that this argument has any application to war crimes, and we submit each of these men is guilty of countless war crimes. It might be enough to brush the matter aside as academic. But that course perhaps would diminish the value which these proceedings will have on the subsequent development of international law. Now it is true that there is a series of decisions in which courts have affirmed that one state has no authority over another sovereign state or over its head or representative. Those decisions have been based on the precepts of the comity of nations and of peaceful and smooth international intercourse. They do not in truth depend upon any sacrosanctity of foreign sovereignty, except insofar as the recognition of sovereignty in itself promotes international relations. They really afford no authority for the proposition that those who constitute the organs of incorporate states, those who are behind the state, are entitled to rely on the metaphysical entity which they create and control when, by their very directions, that state sets out to destroy that very comity on which the rules of international law depend. Suppose a state were to send a body of persons into the territory of another state with instructions to murder and to rob. Would those persons carrying out those orders be immune because in the fulfillment of their criminal design they were acting as the organs of another state? Suppose the individuals who had ordered the predatory expedition were to fall into the hands of the state attacked—could they plead immunity? In my submission clearly not. Yet the case put is exactly the case which occurred here. The truth is that this attempt to clothe crime with impunity because the motive was political rather than personal invokes no principle of law but is based on arbitrary political doctrines more appropriate to the sphere of power politics than to that in which the rule of law prevails.

And finally it is said that these wretched men were powerless instruments in Hitler’s hands, ordered to do that which reluctantly, so they say, they did. The defense of superior orders is excluded by the Charter although Article 8 provides that it may in appropriate cases be considered in mitigation of punishment, if the Tribunal thinks that justice so requires. But the Charter no more than declares the law. There is no rule of international law which provides immunity for those who obey orders which—whether legal or not in the country where they are issued—are manifestly contrary to the very law of nature from which international law has grown. If international law is to be applied at all, it must be superior to municipal law in this respect, that it must consider the legality of what is done by international and not by municipal tests. By every test of international law, of common conscience, of elementary humanity, these orders—if indeed it was in obedience to orders that these men acted—were illegal. Are they then to be excused?

The dictatorship behind which these men seek to shelter was of their own creation. In the desire to secure power and position for themselves they built up the system under which they received their orders. The continuance of that system depended on their continued support. Even if it were true that—as Jodl suggested—these men might have been dismissed, perhaps imprisoned, had they disobeyed the orders which they were given, would not any fate have been better than that they should have lent themselves to these things? But it was not true. These were the men in the inner councils, the men who planned as well as carried out; of all people the ones who might have advised, restrained, halted Hitler instead of encouraging him in his satanic courses. The principle of collective responsibility of the members of a government is not an artificial doctrine of constitutional law. It is an essential protection of the rights of man and the community of nations; international law is fully entitled to protect its own existence by giving effect to it.

Let me now pass to Counts Three and Four of the Indictment, the Counts dealing with War Crimes and what we have described, as in fact they are, as Crimes against Humanity.

And as to these, may I first make some comment on the legal position. About the law as to war crimes, little indeed need be said, because the law is clear enough and not in doubt. Here are crimes more terrible indeed in their extent than anything which had hitherto been known, but none the less well recognizable under the pre-existing rules of international law and clearly within the legitimate jurisdiction either of a national or of an international tribunal. There is no element of retroactivity here, no question of post factum law making, nor is there any shadow of novelty in the decision of the Charter that those who shared the ultimate responsibility for these frightful deeds should bear individual responsibility. It is true that the lawyers and the statesmen who, at The Hague and elsewhere in days gone by, built up the code of rules and the established customs by which the world has sought to mitigate the brutality of war and to protect from its most extreme harshness those who were passive noncombatants, never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten-million-fold. Crimes do not cease to be criminal because they have a political motive. These crimes were many and manifold. It is not useful to catalog them here. They vary most considerably in the numbers of victims. There are the 50 murdered prisoners of war who escaped from Stalag Luft III; the hundreds of commandos and airmen who were exterminated; there are the thousands of civilian hostages put to death; the tens of thousands of sailors and passengers who perished in a piratical campaign of terror; there are the hundreds of thousands of prisoners of war, especially Russians, and of civilians who met their death because of the rigors and cruelties to which they were exposed, if not by outright murder, and there are the many millions murdered outright, or by the slower method of deliberate starvation, 6 million of them for no better reason than that they were of Jewish race or faith.

The mere number of victims is not the real criterion of the criminality of an act. The majesty of death, the compassion for the innocent, the horror and detestation of the ignominy inflicted upon man—man created in the image of God—these are not the subjects of mathematical calculation. Nonetheless, somehow, numbers are relevant. For we are not dealing here with the occasional atrocities which are perhaps an incident in any war. It may be that war develops the good things in man; it certainly brings out the worst. It is not a game of cricket. In any war, in this war no doubt there have been—and no doubt on both sides—numbers of brutalities and atrocities. They must have seemed terrible enough to those against whom they were committed. I do not excuse or belittle them. But they were casual, unorganized, individual acts. We are dealing here with something entirely different; with systematic, wholesale, consistent action, taken as a matter of deliberate calculation—calculation of the highest level. And so the principal war crime in extent as in intensity with which these men are charged is the violation of the most firmly established and least controversial of all the rules of warfare, namely, that noncombatants must not be made the direct object of hostile operations. What a mockery the Germans sought to make of the Fourth Hague Convention on the laws and customs of war—convention which merely formulated what was already a fundamental rule: “Family honor and rights, the lives of persons and private property, as well as religious convictions and practices, must be respected.”

The murdering on the orders of the German Government, whose members are here in the dock, in the territory occupied by its military forces, whose leaders are here in the dock, of millions of civilians, whether it was done in pursuance of a policy of racial extermination, as the result of, or in connection with, the deportation of slave labor, in consequence of the desire to do away with the intellectual and political leaders of the countries which had been occupied or was part of the general application of terror through collective reprisals upon the innocent population and upon hostages—this murdering of millions of noncombatants is a war crime. It may indeed be a crime against humanity as well. Both imagination and intellect, shattered by the horror of these things, recoil from putting the greatest crime in history into the cold formula already described in the textbooks as a war crime. Yet it is important to remember that that is what these crimes were. Irrespective, in the main, of where they were committed or of the race or nationality of the victims, these were offenses upon the civilian population, contrary to the laws of war in general and to those of belligerent occupation in particular. The truth is that murder, wholesale, planned, and systematic, became part and parcel of a firmly entrenched and apparently secure belligerent occupation. That that was a war crime no one has sought to dispute.

But some attempt has been made to canvass the illegality of three other classes of action with which also these men stand charged: Deportation to Germany for forced labor; the crimes at sea in connection with submarine warfare, and the shooting of commandos. And let me shortly examine these matters.

The deportation of the civilian population for forced labor is, of course, a crime both according to international custom and to conventional international law as expressed in the Hague Convention. Article 46 of Hague Convention Number IV enjoins the occupying powers to respect “family honor and rights” and “the lives of persons.” Article 52 of the same convention lays down that:

“Services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation”—and that—“they shall be in proportion to the resources of the country and of such a nature as not to involve the population in the obligation of taking part in the operations of war against that country.”