The Search for World Peace
Opinion and Judgment
III. The Common Plan of Conspiracy and Aggressive War
The Tribunal now turns to the consideration of the crimes against peace charged in the indictment. Count one of the indictment charges the defendants with conspiring or having a common plan to commit crimes against peace. Count two of the indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other States. It will be convenient to consider the question of the existence of a common plan and the question of aggressive war together, and to deal later in this judgment with the question of the individual responsibility of the defendants.
The charges in the indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
The first acts of aggression referred to in the indictment are the seizure of Austria and Czechoslovakia; and the first war of aggression charged in the indictment is the war against Poland begun on the 1st September 1939.
Before examining that charge it is necessary to look more closely at some of the events which preceded these acts of aggression. The war against Poland did not come suddenly out of an otherwise clear sky; the evidence has made it plain that this war of aggression, as well as the seizure of Austria and Czechoslovakia, was premeditated and carefully prepared, and was not undertaken until the moment was thought opportune for it to be carried through as a definite part of the preordained scheme and plan.
For the aggressive designs of the Nazi Government were not accidents arising out of the immediate political situation in Europe and the world; they were a deliberate and essential part of Nazi foreign policy.
From the beginning, the National Socialist movement claimed that its object was to unite the German people in the consciousness of their mission and destiny, based on inherent qualities of race, and under the guidance of the Fuehrer.
For its achievement, two things were deemed to be essential: The disruption of the European order as it had existed since the Treaty of Versailles, and the creation of a Greater Germany beyond the frontiers of 1914. This necessarily involved the seizure of foreign territories.
War was seen to be inevitable, or at the very least, highly probable, if these purposes were to be accomplished. The German people, therefore, with all their resources, were to be organized as a great political-military army, schooled to obey without question any policy decreed by the State.
(A) PREPARATION FOR AGGRESSION
In "Mein Kampf" Hitler had made this view quite plain. It must be remembered that "Mein Kampf" was no mere private diary in which the secret thoughts of Hitler were set down. Its contents were rather proclaimed from the house tops. It was used in the schools and universities and among the Hitler Youth, in the SS and the SA, and among the German people generally, even down to the presentation of an official copy to all newly married people. By the year 1945 over 6 1/2 million copies had been circulated. The general contents are well known. Over and over again Hitler asserted his belief in the necessity of force as the means of solving international problems, as in the following quotation:
"The soil on which we now live was not a gift bestowed by Heaven on our forefathers. They had to conquer it by risking their lives. So also in the future, our people will not obtain territory, and therewith the means of existence, as a favor from any other people, but will have to win it by the power of a triumphant sword."
"Mein Kampf" contains many such passages, and the extolling of force as an instrument of foreign policy is openly proclaimed.
The precise objectives of this policy of force are also set forth in detail. The very first page of the book asserts that "German-Austria must be restored to the great German Motherland," not on economic grounds, but because "people of the same blood should be in the same Reich."
The restoration of the German frontiers of 1914 is declared to be wholly insufficient, and if Germany is to exist at all, it must be as a world power with the necessary territorial magnitude.
"Mein Kampf" is quite explicit in stating where the increased territory is to be found:
"Therefore we National Socialists have purposely drawn a line through the line of conduct followed by prewar Germany in foreign policy. We put an end to the perpetual Germanic march towards the south and west of Europe, and turn our eyes towards the lands of the east. We finally put a stop to the colonial and trade policy of the prewar times, and pass over to the territorial policy of the future.
"But when we speak of new territory in Europe today, we must think principally of Russia and the border states subject to her."
"Mein Kampf" is not to be regarded as a mere literary exercise, nor as an inflexible policy or plan incapable of modification.
Its importance lies in the unmistakable attitude of aggression revealed throughout its pages.
(B) THE PLANNING OF AGGRESSION
Evidence from captured documents has revealed that Hitler held four secret meetings to which the Tribunal proposes to make special reference because of the light they shed upon the question of the common plan and aggressive-war.
These meetings took place on the 5th November 1937, the 23d of May 1939, the 22d of August 1939, and the 23d of November 1939.
At these meetings important declarations were made by Hitler as to his purposes, which are quite unmistakable in their terms.
The documents which record what took place at these meetings have been subject to some criticism at the hands of defending counsel.
Their essential authenticity is not denied, but it is said, for example, that they do not propose to be verbatim transcripts of the speeches they record, that the document dealing with the meeting on the 5th November 1937, was dated 5 days after the meeting had taken place, and that the two documents dealing with the meeting of August 22, 1939 differ from one another, and are unsigned.
Making the fullest allowance for criticism of this kind, the Tribunal is of the opinion that the documents are documents of the highest value, and that their authenticity and substantial truth are established.
They are obviously careful records of the events they describe, and they have been preserved as such in the archives of the German Government, from whose custody they were captured. Such documents could never be dismissed as inventions, nor even as inaccurate or distorted; they plainly record events which actually took place.
(C) CONFERENCES OF THE 23RD NOVEMBER 1939 AND 5TH NOVEMBER 1937
It will perhaps be useful to deal first of all With the meeting of the 23d November 1939, when Hitler called his supreme commanders together. A record was made of what was said, by one of these present. At the date of the meeting, Austria and Czechoslovakia had been incorporated into the German Reich, poland had been conquered by the German armies, and the war with Great Britain and France was still in its static phase. The moment was opportune for a review of past events. Hitler informed the commanders that the purpose of the conference was to give them an idea of the world of his thoughts, and to tell them his decision. He thereupon reviewed his political task since 1919, and referred to the secession of Germany from the League of Nations, the denunciation of the Disarmament Conference, the order for rearmament, the introduction of compulsory armed service, the occupation of the Rhineland, the seizure of Austria, and the action against Czechoslovakia. He stated:
"One year later, Austria came; this step also was considered doubtful. It brought about a considerable reinforcement of the Reich. The next step was Bohemia, Moravia, and Poland. This step also was not possible to accomplish in one campaign. First of all, the western fortification had to be finished. It was not possible to reach the goal in one effort. It was clear to me from the first moment that I could not be satisfied with the Sudeten German territory. That was only a partial solution. The decision to march into Bohemia was made. Then followed the erection of the Protectorate and with that the basis for the action against Poland was laid, but I wasn't quite clear at that time whether I should start first against the east and then in the west or vice versa ... Basically I did not organize the armed forces in order not to strike. The decision to strike was always in me. Earlier or later I wanted to solve the problem. Under pressure it was decided that the east was to be attacked first."
This address, reviewing past events and reaffirming the aggressive intentions present from the beginning, puts beyond any question of doubt the character of the actions against Austria and Czechoslovakia, and the war against Poland.
For they had all been accomplished according to plan; and the nature of that plan must now be examined in a little more detail.
At the meeting of the 23d November 1939, Hitler was looking back to things accomplished; at the earlier meetings now to be considered, he was looking forward, and revealing his plans to his confederates. The comparison is instructive.
The meeting held at the Reich Chancellery in Berlin on the 5th November 1937 was attended by Lieutenant Colonel Hossbach, Hitler's personal adjutant, who compiled a long note of the proceedings, which he dated the 10th November 1937 and signed.
The persons present were Hitler, and the defendants Goering, von Neurath, and Raeder, in their capacities as Commander in Chief of the Luftwaffe, Reich Foreign Minister, and Commander in Chief of the Navy respectively, General von Blomberg, Minister of War, and General von Fritsch, the Commander in Chief of the Army.
Hitler began by saying that the subject of the conference was of such high importance that in other States it would have taken place before the Cabinet. He went on to say that the subject matter of his speech was the result of his detailed deliberations, and of his experiences during his 4 1/2 years of government. He requested that the statements he was about to make should be looked upon in the case of his death as his last will and testament. Hitler's main theme was the problem of living space, and he discussed various possible solutions, only to set them aside. He then said that the seizure of living space on the continent of Europe was therefore necessary, expressing himself in these words:
"It is not a case of conquering people but of conquering agriculturally useful space. It would also be more to the purpose to seek raw material producing territory in Europe directly adjoining the Reich and not overseas, and this solution would have to be brought into effect for one or two generations ... The history of all times—Roman Empire, British Empire—has proved that every space expansion can only be effected by breaking resistance and taking risks. Even set-backs are unavoidable: neither formerly nor today has space been found without an owner; the attacker always comes up against the proprietor."
He concluded with this observation:
"The question for Germany is where the greatest possible conquest could be made at the lowest cost."
Nothing could indicate more plainly the aggressive intentions of Hitler, and the events which soon followed showed the reality of his purpose. It is impossible to accept the contention that Hitler did not actually mean war; for after pointing out that Germany might expect the opposition of England and France, and analyzing the strength and the weakness of those powers in particular situations, he continued:
"The German question can be solved only by way of force, and this is never without risk... If we place the decision to apply force with risk at the bead of the following expositions, then we are left to reply to the questions 'when' and 'how'. In this regard we have to decide upon three different cases."
The first of these three cases set forth a hypothetical international situation, in which he would take action not later than 1943 to 1945, saying:
"If the Fuehrer is still living then it will be his irrevocable decision to solve the German space problem not later than 1943 to 1945. The necessity for action before 1943 to 1945 will come under consideration in cases 2 and 3."
The second and third cases to which Hitler referred show the plain intention to seize Austria and Czechoslovakia, and in this connection Hitler said:
"For the improvement of our military-political position, it must be our first aim in every case of entanglement by war to conquer Czechoslovakia and Austria simultaneously in order to remove any threat from the flanks in case of a possible advance westwards."
He further added:
"The annexation of the two States to Germany militarily and politically would constitute a considerable relief, owing to shorter and better frontiers, the freeing of fighting personnel for other purposes, and the possibility or reconstituting new armies up to a strength of about twelve divisions."
This decision to seize Austria and Czechoslovakia was discussed in some detail; the action was to be taken as soon as a favorable opportunity presented itself.
The military strength which Germany had been building up since 1933 was now to be directed at the two specific countries, Austria and Czechoslovakia.
The defendant Goering testified that he did not believe at that time that Hitler actually meant to attack Austria and Czechoslovakia, and that the purpose of the conference was only to put pressure on von Fritsch to speed up the rearmament of the Army.
The defendant Raeder testified that neither he, nor von Fritsch, nor von Blomberg, believed that Hitler actually meant war, a conviction which the defendant Raeder claims that he held up to the 22d August 1939. The basis of this conviction was his hope that Hitler would obtain a "political solution" of Germany's problems. But all that this means, when examined, is the belief that Germany's position would be so good, and Germany's armed might so overwhelming, that the territory desired could be obtained without fighting for it. It must be remembered too that Hitler's declared intention with regard to Austria was actually carried out within a little over 4 months from the date of the meeting, and within less than a year the first portion of Czechoslovakia was absorbed, and Bohemia and Moravia a few months later. If any doubts had existed in the minds of any of his hearers in November 1937, after March of 1939 there could no longer be any question that Hitler was in deadly earnest in his decision to resort to war. The Tribunal is satisfied that Lieutenant Colonel Hossbach's account of the meeting is substantially correct, and that those present knew that Austria and Czechoslovakia would be annexed by Germany at the first possible opportunity.
(D) THE SEIZURE OF AUSTRIA
The invasion of Austria was a premeditated aggressive step in furthering the plan to wage aggressive wars against other countries. As a result Germany's flank was protected, that of Czechoslovakia being greatly weakened. The first step had been taken in the seizure of "Lebensraum"; many new divisions of trained fighting men had been acquired; and with the seizure of foreign exchange reserves the rearmament program had been greatly strengthened.
On the 21st May 1935 Hitler announced in the Reichstag that Germany did not intend either to attack Austria or to interfere in her internal affairs. On the 1st May 1936 he publicly coupled Czechoslovakia with Austria in his avowal of peaceful intentions; and so late as the 11th July 1936 he recognized by treaty the full sovereignty of Austria.
Austria was in fact seized by Germany in the month of March 1938. For a number of years before that date the National Socialists in Germany had been cooperating with the National Socialists of Austria with the ultimate object of incorporating Austria into the German Reich. The Putsch of July 25, 1934, which resulted in the assassination of Chancellor Dollfuss, had the seizure of Austria as its object; but the Putsch failed, with the consequence that the National Socialist Party was outlawed in Austria. On the 11th July 1936 an agreement was entered into between the two countries, article 1 of which stated:
"The German Government recognizes the full sovereignty of the Federated State of Austria in the spirit of the pronouncements of the German Fuehrer and Chancellor of the 21st May 1935."
Article 2 declared:
"Each of the two Governments regards the inner political order (including the question of Austrian National Socialism) obtaining in the other country as an internal affair of the other country, upon which it will exercise neither direct nor indirect influence."
The National Socialist movement in Austria, however, continued its illegal activities under cover of secrecy; and the National Socialists of Germany gave the party active support. The resulting "incidents" were seized upon by the German National Socialists as an excuse for interfering in Austrian affairs. After the conference of the 5th Novenber 1937 these "incidents" rapidly multiplied. The relationship between the two countries steadily worsened, and finally the Austrian Chancellor Schuschnigg was persuaded by the defendant von Papen and others to seek a conference with Hitler, which took place at Berchtesgaden on the 12th February 1938. The defendant Keitel was present at the conference, and Dr. Schuschnigg was threatened by Hitler with an immediate invasion of Austria. Schuschnigg finally agreed to grant a political amnesty to various Nazis convicted of crime, and to appoint the Nazi Seyss-Inquart as Minister of the Interior and Security with control of the police. On the 9th March 1938, in an attempt to preserve the independence of his country, Dr. Schuschnigg decided to hold a plebescite on the question of Austrian independence, which was fixed for the 13th March 1938. Hitler, 2 days later, sent an ultimatum to Schuschnigg that the plebescite must be withdrawn. In the afternoon and evening of the 11th March 1938 the defendant Goering made a series of demands upon the Austrian Government, each backed up iy the threat of invasion. After Schuschnigg had agreed to the cancellation of the plebiscite another demand was put forward that Schuschnigg must resign, and that the defendant Seyss-Inquart should be appointed Chancellor. In consequence Schuschnigg resigned, and President Miklas, after at first refusing to appoint Seyss-Inquart as Chancellor, gave way and appointed him.
Meanwhile Hitler had given the final order for the German troops to cross the border at dawn on the 12th of March and instructed Seyss-Inquart to use formations of Austrian National Socialists to deposeMiklas and to seize control of the Austrian Government. After the order to march had been given to the German troops, Goering telephoned the German Embassy in Vienna and dictated a telegram in which he wished Seyss-Inquart to send to Hitler to justify the military action which had already been ordered. It was:
"The provisional Austrian Government, which, after the dismissal of the Schuschnigg Government, considers its task to establish peace and order in Austria, sends to the German Government the urgent request to support it in its task and to help it to prevent bloodshed. For this purpose it asks the German Government to send German troops as soon as possible."
Keppler, an official of the German Embassy, replied:
"Well, SA and SS are marching through the streets, but everything is quiet."
After some further discussion, Goering stated:
"Please show him (Seyss-Inquart) the text of the telegram, and do tell him that we are asking him-well, he doesn't even have to send the telegram. All he needs to do is to say 'Agreed'."
Seyss-Inquart never sent the telegram; he never even telegraphed, "Agreed."
It appears that as soon as he was appointed Chancellor, some time after 10 p. m., he called Keppler and told him to call up Hitler and transmit his protests against the occupation. This action outraged the defendant Goering, because "it would disturb the rest of the Fuehrer, who wanted to go to Austria the next day." At 11: 15 p. m. an official in the Ministry of Propaganda in Berlin telephoned the German Embassy in Vienna and was told by Keppler: "Tell the General Field Marshal that Seyss-Inquart agrees."
At daybreak on the 12th March 1938, German troops marched into Austria, and met with no resistance. It was announced in the German press that Seyss-Inquart had been appointed the successor to Schuschnigg, and the telegram which Goering had suggested, but which was never sent, was quoted to show that Seyss-Inquart had requested the presence of German troops to prevent disorder. On the 13th March 1938, a law was passed for the reunion of Austria in the German Reich. Seys-Inquart demanded that President Miklas should sign this law, but he refused to do so, and resigned his office. He was succeeded by Seyss-Inquart, who signed the law in the name of Austria. This law was then adopted as a law of the Reich by a Reich Cabinet decree issued the same day, and signed by Hitler and the defendants Goering, Frick, von Ribbentrop, and Hess.
It was contended before the Tribunal that the annexation of Austria was justified by the strong desire expressed in many quarters for the union of Austria and Germany; that there were many matters in common between the two peoples that made this union desirable; and that in the result the object was achieved without bloodshed.
These matters, even if true, are really immaterial, for the facts plainly prove that the methods employed to achieve the object were those of an aggressor. The ultimate factor was the armed might of Germany ready to be used if any resistance was encountered. Moreover, none of these considerations appear from the Hossbach account of the meetings of the 5th November 1937, to have been the motives which actuated Hitler; on the contrary, all the emphasis is there laid on the advantage to be gained by Germany in her military strength by the annexation of Austria.
(E) THE SEIZURE OF CZECHOSLOVAKIA
The conference of the 5th November 1937, made it quite plain that the seizure of Czechoslovakia by Germany had been definitely decided upon. The only question remaining was the selection of the suitable moment to do it. On the 4th March 1938, the defendant von Ribbentrop wrote to the defendant Keitel wth regard to a suggestion made to von Ribbentrop by the Hungarian Ambassador in Berlin, that possible war aims against Czechoslovakia should be discussed between the German and Hungarian armies. In the course of this letter von Ribbentrop said:
"I have many doubts about such negotiations. In case we should discuss with Hungary possible war aims against Czechoslovakia, the danger exists that other parties as well would be informed about this."
On the 11th March 1938, Goering made two separate statements to M. Mastny, the Czechoslovak Minister in Berlin, assuring him that the developments then taking place in Austria would in no way have any detrimental influence on the relations between the German Reich and Czechoslovakia, and emphasized the continued earnest endeavor on the part of the Germans to improve those mutual relations. On the 12th March, Goering asked M. Mastny to call on him, and repeated these assurances.
This design to keep Czechoslovakia quiet whilst Austria was absorbed was a typical maneuver on the part of the defendant Goering, which he was to repeat later in the case of Poland, when he made the most strenuous efforts to isolate Poland in the impending struggle. On the same day, the 12th March, the defendant von Neurath spoke with M. Mastny, and assured him on behalf of Hitler that Germany still considered herself bound by the German-Czechoslovak arbitration convention concluded at Locarno in October 1925.
The evidence shows that after the occupation of Austria by the German Army on the 12th March, and the annexation of Austria on the 13th March, Conrad Henlein, who was the leader of the Sudeten German Party in Czechoslovakia, saw Hitler in Berlin on the 28th March. On the following day, at a conference in Berlin, when von Ribbentrop was present with Henlein, the general situation was discussed, and later the defendant Jodl recorded in his diary:
"After the annexation of Austria the Fuehrer mentions that there is no hurry to solve the Czech question, because Austria has to be digested first. Nevertheless, preparations for Case Gruen (that is, the plan against Czechoslovakia) will have to be carried out energetically; they will have to be newly prepared on the basis of the changed strategic position because of the annexation of Austria."
On the 21st April 1938, a discussion took place between Hitler and the defendant Keitel with regard to "Case Gruen", showing quite clearly that the preparations for the attack on Czechoslovakia were being fully considered. On the 28th May 1938, Hitler ordered that preparations should be made for military action against Czechoslovakia by the 2d October, and from then onwards the plan to invade Czechoslovakia was constantly under review. On the 30th May 1938 a directive signed by Hitler declared his "unalterable decision to smash Czechoslovakia by military action in the near future."
In June 1938, as appears from a captured document taken from the files of the SD in Berlin, an elaborate plan for the employment of the SD in Czechoslovakia had been proposed. This plan provided that "the SD follow, if possible, immediately after the leading troops, and take upon themselves the duties similar to their tasks in Germany..."
Gestapo officials were assigned to cooperate with the SD in certain operation. Special agents were to be trained beforehand to prevent sabotage, and these agents were to be notified "before the attack in due time... in order to give them the possibility to hide themselves, avoid arrest and deportation..."
"At the beginning, guerilla or partisan warfare is to be expected, therefore weapons are necessary..."
Files of information were to be compiled with notations as follows:
"To arrest"... "To liquidate".. "To confiscate" ... "To deprive of passport", etc.
The plan provided for the temporary division of the country into larger and smaller territorial units, and considered various "suggestions", as they were termed, for the incorporation into the German Reich of the inhabitants and districtv of Czechoslovakia. The final "suggestion" included the whole country, together with Slovakia and Carpathian Russia, with a population of nearly 15 millions.
The plan was modified in some respects in September after the Munich Conference, but the fact that the plan existed in such exact detail and was couched in such war-like language indicated a calculated design to resort to force.
On the 31st August 1938, Hitler approved a memorandum by Jodl dated 24th August 1938, concerning the timing of the order for the invasion of Czechoslovakia and the question of defense measures. This memorandum contained the following:
"Operation Gruen will be set in motion by means of an 'incident' in Czechoslovakia, which will give Germany provocation for military intervention. The fixing of the exact time for this incident is of the utmost importance."
These facts demonstrate that the occupation of Czechoslovakia had been planned in detail long before the Munich conference.
In the month of September 1938, the conferences and talks with military leaders continued. In view of the extraordinarily critical situation which had arisen, the British Prime Minister, Mr. Chamberlain, flew to Munich and then went to Berchtesgaden to see Hitler. On the 22d September Mr. Chamberlain met Hitler for further discussions at Bad Godesberg. On the 26th September 1938, Hitler said in a speech in Berlin, with reference to his conversation:
"I assured him, moreover, and I repeat it here, that when this problem is solved there will be no more territorial problems for Germany in Europe; and I further assured him that from the moment when Czechoslovakia solves its other problems, that is to say, when the Czechs have come to an arrangement with their other minorities, peacefully and without oppression, I will be no longer interested in the Czech State, and that as far as I am concerned I will guarantee it. We don't want any Czechs."
On the 29th September 1938, after a conference between Hitler and Mussolini and the British and French Prime Ministers in Munich, the Munich Pact was signed, by which Czechoslovakia was required to acquiesce in the cessiop of the Sudetenland to Germany. The "piece of paper" which the British Prime Minister brought back to London, signed by himself and Hitler, expressed the hope that for the future Britain and Germany might live without war. That Hitler never intended to adhere to the Munich Agreement is shown by the fact that a little later he asked the defendant Keitel for information with regard to the military force which in his opinion would be required to break all Czech resistance in Bohemia and Moravia. Keitel gave his reply on the 11th October 1938. On the 21st October 1938, a directive was issued by Hitler, and countersigned by the defendant Keitel, to the armed forces on their future tasks, which stated:
"Liquidation of the remainder of Czechoslovakia. It must be possible to smash at any time the remainder of Czechoslovakia if her policy should become hostile towards Germany."
On the 14th March 1939, the Czech President Hacha and his Foreign Minister Chvalkovsky came to Berlin at the suggestion of Hitler, and attended a meeting at which the defendants von Ribbentrop, Goering, and Keitel were present, with others. The proposal was made to Hacha that if he would sign an agreement consenting to the incorporation of the Czech people in the German Reich at once Bohemia and Moravia would be saved from destruction. He was informed that German troops had already received orders to march and that any resistance would be broken with physical force. The defendant Goering added the threat that he would destroy Prague completely from the air. Faced by this dreadful alternative, Hacha and his Foreign Minister put their signature to the necessary agreement at 4: 30 in the morning, and Hitler and Ribbentrop signed on behalf of Germany.
On the 15th March, German troops occupied Bohemia and Moravia, and on the 16th March the German decree was issued incorporating Bohemia and Moravia into the Reich as a protectorate, and this decree was signed by the defendants von Ribbentrop and Frick.
(F) THE AGGRESSION AGAINST POLAND
By March 1939 the plan to annex Austria and Czechoslovakia, which had been discussed by Hitler at the meeting of the 5th November 1937, had been accomplished. The time had now come for the German leaders to consider further acts of aggression, made more possible of attainment because of that accomplishment.
On the 23d May 1939, a meeting was held in Hitler's study in the new Reich Chancellery in Berlin. Hitler announced his decision to attack Poland and gave his reasons, and discussed the effect the decision might have on other countries. In point of time, this was the second of the important meetings to which reference has already been made, and in order to appreciate the full significance of what was said and done, it is necessary to state shortly some of the main events in the history of German-Polish relations.
As long ago as the year 1925 an Arbitration Treaty between Germany and Poland had been made at Locarno, providing for the settlement of all disputes between the two countries. On the 26th January 1934, a German-Polish declaration of nonaggression was made, signed on behalf of the German Government by the defendant von Neurath. On the 30th January 1934, and again on the 30th January 1937, Hitler made speeches in the Reichstag in which he expressed his view that Poland and Germany could work together in harmony and peace. On the 20th February 1938, Hitler made a third speech in the Reichstag in the course of which he said with regard to Poland:
"And so the way to a friendly understanding has been successfully paved, an understanding which, beginning with Danzig, has today, in spite of the attempts of certain mischief makers, succeeded in finally taking the poison out of the relations between Germany and Poland and transforming them into a sincere, friendly cooperation. Relying on her friendships, Germany will not leave a stone unturned to save that ideal which provides the foundation for the task which is ahead of us—peace."
On the 26th September 1938, in the middle of the crisis over the Sudetenland, Hitler made the speech in Berlin which has already been quoted, and announced that he had informed the British Prime Minister that when the Czechoslovakian problem was solved there would be no more territorial problems for Germany in Europe. Nevertheless, on the 24th November of the same year, an OKW directive was issued to the German armed forces to make preparations for an attack upon Danzig; it stated:
"The Fuehrer has ordered: (1) Preparations are also to be made to enable the Free State of Danzig to be occupied by German troops by surprise."
In spite of having ordered military preparations for the occupation of Danzig, Hitler, on the 30th January 1939, said in a speech in the Reichstag:
"During the troubled months of the past year, the friendship between Germany and Poland has been one of the reassuring factors in the political life of Europe."
Five days previously, on the 25th January 1939, von Ribbentrop said in the course of a speech in Warsaw:
"Thus Poland and Germany can look forward to the future with full confidence in the solid basis of their mutual relations."
Following the occupation of Bohemia and Moravia by Germany on the 15th March 1939, which was a flagrant breach of the Munich Agreement, Great Britain gave an assurance to Poland on the 31st March 1939, that in the event of any action which clearly threatened Polish independence, and which the Polish Government accordingly considered it vital to resist with their national forces, Great Britain would feel itself bound at once to lend Poland all the support in its power. The French Government took the same stand. It is interesting to note in this connection, that one of the arguments frequently presented by the defense in the present case is that the defendants were induced to think that their conduct was not in breach of international law by the acquiescence of other powers. The declarations of Great Britain and France showed, at least, that this view could be held no longer.
On the 3d April 1939, a revised OKW directive was issued to the armed forces, which after referring to the question of Danzig made reference to Fall Weiss (the military code name for the German invasion of Poland) and stated:
"The Fuehrer has added the following directions to Fall Weiss: (1) Preparations must be made in such a way that the operation can be carried out at any time from the 1st September 1939 onwards. (2) The High Command of the Armed Forces has been directed to draw up a precise timetable for Fall Weiss and to arrange by conferences the synchronized timings between the three branches of the Armed Forces."
On the 11th April 1939, a further directive was signed by Hitler and issued to the armed forces, and in one of the annexes to that document the words occur:
"Quarrels with Poland should be avoided. Should Poland, however, adopt a threatening attitude toward Germany, 'a final settlement' will be necessary, notwithstanding the pact with Poland. The aim is then to destroy Polish military strength, and to create in the east a situation which satisfies the requirements of defense. The Free State of Danzig will be incorporated into Germany at the outbreak of the conflict at the latest. Policy aims at limiting the war to Poland, and this is considered possible in view of the internal crisis in France, and British restraint as a result of this."
In spite of the contents of those two directives, Hitler made a speech in the Reichstag on the 28th April 1939, in which, after describing the Polish Government's alleged rejection of an offer he had made with regard to Danzig and the Polish Corridor, he stated:
"I have regretted greatly this incomprehensible attitude of the Polish Government, but that alone is not the decisive fact; the worst is that now Poland like Czechoslovakia a year ago believes, under the pressure of a lying international campaign, that it must call up its troops, although Germany on her part has not called up a single man, and had not thought of proceeding in any way against Poland .... The intention to attack on the part of Germany which was merely invented by the international Press . . ."
It was 4 weeks after making this speech that Hitler, on the 23d May 1939, held the important military conference to which reference has already been made. Among the persons present were the defendants Goering, Raeder, and Keitel. The adjutant on duty that day was Lieutenant Colonel Schmundt, and he made a record of what happened, certifying it with his signature as a correct record.
The purpose of the meeting was to enable Hitler to inform the heads of the armed forces and their staffs of his views on the political situation and his future aims. After analyzing the political situation and reviewing the course of events since 1933, Hitler announced his decision to attack Poland. He admitted that the quarrel with Poland over Danzig was not the reason for this attack, but the necessity for Germany to enlarge her living space and secure her food supplies. He said:
"The solution of the problem demands courage. The principle by which one evades solving the problem by adapting oneself to circumstances is inadmissible. Circumstances must rather be adapted to needs. This is impossible without invasion of foreign states or attacks upon foreign property."
Later in his address he added:
"There is therefore no question of sparing Poland, and we are left with the decision to attack Poland at the first suitable opportunity. We cannot expect a repetition of the Czech affair. There will be war. Our task is to isolate Poland. The success of the isolation will be decisive... The isolation of Poland is a matter of skillful politics."
Lieutenant Colonel Schmundt's record of the meeting reveals that Hitler fully realized the possibility of Great Britain and France coming to Poland's assistance. If, therefore, the isolation of Poland could not be achieved, Hitler was of the opinion that Germany should attack Great Britain and France first, or at any rate should concentrate primarily on the war in the West, in order to defeat Great Britain and France quickly, or at least to destroy their effectiveness. Nevertheless, Hitler stressed that war with England and France would be a life and death struggle, which might last a long time, and that preparations must be made accordingly.
During the weeks which followed this conference, other meetings were held and directives were issued in preparation for the war. The defendant von Ribbentrop was sent to Moscow to negotiate a nonaggression pact with the Soviet Union.
On the 22d August 1939 there took place the important meeting of that day, to which reference has already been made. The prosecution have put in evidence two unsigned captured documents which appear to be records made of this meeting by persons who were present. The first document is headed: "The Fuehrer's speech to the Commanders in Chief on the 22nd August 1939..." The purpose of the speech was to announce the decision to make war on Poland at once, and Hitler began by saying:
"It was clear to me that a conflict with Poland had to come sooner or later. I had already made this decision in the spring, but I thought that I would first turn against the West in a few years, and only afterwards against the East... I wanted to establish an acceptable relationship with Poland in order to fight first against the West. But this plan, which was agreeable to me, could not be executed since essential points have changed. It became clear to me that Poland would attack us in case of a conflict with the West."
Hitler then went on to explain why he had decided that the most favorable moment had arrived for starting the war. "Now," said Hitler, "Poland is in the position in which I wanted her... I am only afraid that at the last moment some Schweinhund will make a proposal for mediation... A beginning has been made for the destruction of England's hegemony."
This document closely resembles one of the documents put in evidence on behalf of the defendant Raeder. This latter document consists of a summary of the same speech, compiled on the day it was made, by one Admiral Boehm, from notes he had taken during the meeting. In substance it says that the moment had arrived to settle the dispute with Poland by military invasion, that although a conflict between Germany and the West was unavoidable in the long run, the likelihood of Great Britain and France coming to Poland's assistance was not great, and that even if a war in the West should come about, the first aim should be the crushing of the Polish military strength. It also contains a statement by Hitler that an appropriate propaganda reason for invading Poland would be given, the truth or falsehood of which was unimportant, since "the Right lies in Victory."
The second unsigned document put in evidence by the prosecution is headed: "Second Speech by the Fuehrer on the 22d August 1939," and it is in the form of notes of the main points made by Hitler. Some of these are as follows:
"Everybody shall have to make a point of it that we were determined from the beginning to fight the Western Powers. Struggle for life or death...destruction of Poland in the foreground. The aim is elimination of living forces, not the arrival at a certain line. Even if war should break out in the West, the destruction of Poland shall be the primary objective. I shall give a propagandist cause for starting the war—never mind whether it be plausible or not. The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the Right is what matters, but Victory... The start will be ordered probably by Saturday morning." (That is to say, the 26th August.)
In spite of it being described as a second speech, there are sufficient points of similarity with the two previously mentioned documents to make it appear very probable that this is an account of the same speech, not as detailed as the other two, but in substance the same.
These three documents establish that the final decision as to the date of Poland's destruction, which had been agreed upon and planned earlier in the year, was reached by Hitler shortly before the 22d August 1939. They also show that although he hoped to be able to avoid having to fight Great Britain and France as well, he fully realized that there was a risk of this happening, but it was a risk which he was determined to take.
The events of the last days of August confirm this determination. On the 22d August 1939, the same day as the speech just referred to, the British Prime Minister wrote a letter to Hitler, in which he said:
"Having thus made our position perfectly clear, I wish to repeat to you my conviction that war between our two peoples would be the greatest calamity that could occur."
On the 23d August, Hitler replied:
"The question of the treatment of European problems on a peaceful basis is not a decision which rests with Germany, but primarily on those who since the crime committed by the Versailles Dictate have stubbornly and consistently opposed any peaceful revision. Only after a change of spirit on the part of the responsible Powers can there be any real change in the relationship between England and Germany."
There followed a number of appeals to Hitler to refrain from forcing the Polish issue to the point of war. These were from President Roosevelt on the 24th and 25th August; from His Holiness the Pope on the 24th and 31st August; and from M. Daladier, the Prime Minister of France, on the 26th August. All these appeals fell on deaf ears.
On the 25th August, Great Britain signed a pact of mutual assistance with Poland, which, reinforced the understanding she had given to Poland earlier in the year. This coupled with the news of Mussolini's unwillingness to enter the war on Germany's side, made Hitler hesitate for a moment. The invasion of Poland, which was timed to start on the 26th August, was postponed until a further attempt had been made to persuade Great Britain not to intervene. Hitler offered to enter into a comprehensive agreement with Great Britain, once the Polish question had been settled. In reply to this, Great Britain made a countersuggestion for the settlement of the Polish dispute by negotiation. On the 29th August, Hitler informed the British Ambassador that the German Government, though skeptical as to the result, would be prepared to enter into direct negotiations with a Polish emissary, provided he arrived in Berlin with plenipotentiary powers by midnight for the following day, August 30. The Polish Government were informed of this, but with the example of Schuschnigg and Hacha before them, they decided not to send such an emissary. At midnight on the 30th August the defendant von Ribbentrop read to the British Ambassador at top speed a document containing the first precise formulation of the German demands against Poland. He refused, however, to give the Ambassador a copy of this, and stated that in any case it was too late now, since no Polish plenipotentiary had arrived.
In the opinion of the Tribunal, the manner in which these negotiations were conducted by Hitler and von Ribbentrop showed that they were not entered into in good faith or with any desire to maintain peace, but solely in the attempt to prevent Great Britain and France from honoring their obligations to Poland.
Parallel with these negotiations were the unsuccessful attempts made by Goering to effect the isolation of Poland by persuading Great Britain not to stand by her pledged word, through the services of one Birger Dahlerus, a Swede. Dahlerus, who was called as a witness by Goering, had a considerable knowledge of England and of things English, and in July 1939 was anxious to bring about a better understanding between England and Germany, in the hope of preventing a war between the two countries. He got into contact with Goering as well as with official circles in London, and during the latter part of August, Goering used him as an unofficial intermediary to try and deter the British Government from their opposition to Germany's intentions toward Poland. Dahlerus, of course, had no knowledge at the time of the decision which Hitler had secretly announced on the 22d August, nor of the German military directives for the attack on Poland which were already in existence. As he admitted in his evidence, it was not until the 26th September, after the conquest of Poland was virtually complete, that he first realized that Goering's aim all along had been to get Great Britain's consent to Germany's seizure of Poland.
After all attempts to persuade Germany to agree to a settlement of her dispute with Poland on a reasonable basis had failed, Hitler, on the 31st August, issued his final directive, in which he announced that the attack on Poland would start in the early morning of the 1st September, and gave instructions as to what action would be taken if Great Britain and France should enter the war in defense of Poland.
In the opinion of the Tribunal, the events of the days immediately preceding the 1st September 1939, demonstrate the determination of Hitler and his associates to carry out the declared intention of invading Poland at all costs, despite appeals from every quarter. With the ever increasing evidence before him that this intention would lead to war with Great Britain and France as well, Hitler was resolved not to depart from the course he had set for himself. The Tribunal is fully satisfied by the evidence that the war initiated by Germany against Poland on the 1st September 1939, was most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity.
(G) THE INVASION OF DENMARK AND NORWAY
The aggressive war against Poland was but the beginning. The aggression of Nazi Germany quickly spread from country to country. In point of time the first two countries to suffer were Denmark and Norway.
On the 31st May 1939, a treaty of nonaggression was made between Germany and Denmark, and signed by the defendant'von Ribbentrop. It was there solemnly stated that the parties to the treaty were "firmly resolved to maintain peace between Denmark and Germany under all circumstances." Nevertheless, Germany invaded Denmark on the 9th April 1940.
On the 2d September 1939, after the outbreak of war with Poland, Germany sent a solemn assurance to Norway in these terms:
"The German Reich Government is determined in view of the friendly relations which exist between Norway and Germany, under no circumstance to prejudice the inviolability and integrity of Norway, and to respect the territory of the Norwegian State. In making this declaration the Reich Government naturally expects, on its side, that Norway will observe an unimpeachable neutrality towards the Reich and will not tolerate any breaches of Norwegian neutrality by any third party which might occur. Should the attitude of the Royal Norwegian Government differ from this so that any such breach of neutrality by a third party occurs, the Reich Government would then obviously be compelled to safeguard the interests of the Reich in such a way as the resulting situation might dictate."
On the 9th April 1940, in pursuance of her plan of campaign, Norway was invaded by Germany.
The idea of attacking Norway originated, it appears, with the defendants Raeder and Rosenberg. On the 3d October 1939, Raeder prepared a memorandum on the subject of "gaining bases in Norway," and amongst the questions discussed was the question: "Can bases be gained by military force against Norway's will, if it is impossible to carry this out without fighting?" Despite this fact, 3 days later, further assurances were given to Norway by Germany, which stated:
"Germany has never had any conflicts of interest or even points of controversy with the Northern States and neither has she any today."
Three days later again, the defendant Doenitz prepared a memorandum on the same subject, namely, bases in Norway, and suggested the establishment of a base in Trondheim with an alternative of supplying fuel in Narvik. At the same time the defendant Raeder was in correspondence with Admiral Karls, who pointed out to him the importance of an occupation of the Norwegian coast by Germany. On the 10th October, Raeder reported to Hitler the disadvantages to Germany which an occupation by the British would have. In the months of October and November Raeder continued to work on the possible occupation of Norway, in conjunction with the "Rosenberg Organization." The "Rosenberg Organization" was the Foreign Affairs Bureau of the NSDAP, and Rosenberg as Reichsleiter was in charge of it. Early in December, Quisling, the notorious Norwegian traitor, visited Berlin and was seen by the defendants Rosenberg and Raeder. He put forward a plan for a coup d'etat in Norway. On the 12th December, the defendant Raeder and the naval staff, together with the defendants Keitel and Jodl, had a conference with Hitler, when Raeder reported on his interview with Quisling, and set out Quisling's views. On the 16th December, Hitler himself interviewed Quisling on all these matters. In the report of the activities of the Foreign Affairs Bureau of the NSDAP for the years 1933-43, under the heading of "Political preparations for the military occupation of Norway," it is stated that at the interview with Quisling, Hitler said that he would prefer a neutral attitude on the part of Norway as well as the whole of Scandinavia, as he did not desire to extend the theater of war, or to draw other nations into the conflict. If the enemy attempted to extend the war he would be compelled to guard himself against that undertaking. He promised Quisling financial support, and assigned to a special military staff the examination of the military questions involved.
On the 27th January 1940, a memorandum was prepared by the defendant Keitel regarding the plans for the invasion of Norway. On the 28th February 1940, the defendant Jodl entered in his diary:
"I proposed first to the Chief of OKW and then to the Fuehrer that 'Case Yellow' (that is the operation against the Netherlands) and Weser Exercise (that is the operation against Norway and Denmark) must be prepared in such a way that they will be independent of one another as regards both time, and forces employed."
On the 1st March, Hitler issued a directive regarding the Weser Exercise which contained the words:
"The development of the situation in Scandinavia requires the making of all preparations for the occupation of Donmark and Norway by a part of the German Armed Forces. This operation should prevent British encroachment on Scandinavia and the Baltic; further, it should guarantee our ore base in Sweden and give our Navy and Air Force a wider start line against Britain... The crossing of the Danish border and the landings in Norway must take place simultaneously... It is most important that the Scandinavian States as well as the Western opponents should be taken by surprise by our measures."
On the 24th March the naval operation orders for the Weser Exercise were issued, and on the 30th March the defendant Doenitz as Commander in Chief of U-boats issued his operational order for the occupation of Denmark and Norway. On the 9th April 1940 the German forces invaded Norway and Denmark.
From this narrative it is clear that as early as October 1939 the question of invading Norway was under consideration. The defense that has been made here is that Germany was compelled to attack Norway to forestall an Allied invasion, and her action was therefore preventive.
It must be remembered that preventive action in foreign territory is justified only in case of "an instant and overwhelming necessity for self-defense, leaving no choice of means and no moment of deliberation." (The Caroline Case, Moores Digest of International Law, Vol. II, p. 412.) How widely the view was held in influential German circles that the Allies intended to occupy Norway cannot be determined with exactitude. Quisling asserted that the Allies would intervene in Norway with the tacit consent of the Norwegian Government. The German Legation at Oslo disagreed with this view, although the Naval Attaché at that Legation shared it.
The War Diary of the German Naval Operations Staff for January 13, 1940, stated that the Chief of the Naval Operations Staff thought that the most favorable solution would be the maintenance of the neutrality of Norway, but he harbored the firm conviction that England intended to occupy Norway in the near future, relying on the tacit agreement of the Norwegian Government.
The directive of Hitler issued on March 1, 1940, for the attack on Denmark and Norway stated that the operation "should prevent British encroachment on Scandinavia and the Baltic."
It is, however, to be remembered that the defendant Raeder's memorandum of the 3d October 1939 makes no reference to forestalling the Allies, but is based upon "the aim of improving our strategical and operational position."
The memorandum itself is headed "Gaining of Bases in Norway." The same observation applies mutatis mutandis to the memorandum of the defendant Doenitz of October 9, 1939.
Furthermore, on the 13th March the defendant Jodl recorded in his diary:
"Fuehrer does not give order yet for 'W' (Weser Exercise). He is still looking for an excuse." (Justification ?)
On the 14th March 1940 he again wrote:
"Fuehrer has not yet decided what reason to give for 'Weser Exercise'."
On the 21st March 1940 he recorded the misgivings of Task Force XXI about the long interval between taking up readiness positions and the close of the diplomatic negotiations, and added:
"Fuehrer rejects any earlier negotiations, as otherwise calls for help go out to England and America. If resistance is put up, it must be ruthlessly broken."
On April 2d he records that all the preparations are completed; on April 4th the Naval Operational Order was issued; and on the 9th April the invasion was begun.
From all this it is clear that when the plans for an attack on Norway were being made they were not made for the purpose of forestalling an imminent Allied landing, but, at the most, that they might prevent an Allied occupation at some future date.
When the final orders for the German invasion of Norway were given, the diary of the Naval Operations Staff for March 23, 1940, records:
"A mass encroachment by the English into Norwegian territorial waters... is not to be expected at the present time."
And Admiral Assmann's entry for March 26 says:
"British landing in Norway not considered serious."
Documents which were subsequently captured by the Germans are relied on to show that the Allied plan to occupy harbors and airports in western Norway was a definite plan, although in all points considerably behind the German plans under which the invasion was actually carried out. These documents indicate that an altered plan had been finally agreed upon on March 20, 1940, that a convoy should leave England on April 5, and that mining in Norwegian waters would begin the same day; and that on April 5 the sailing time had been postponed until April 8. But these plans were not the cause of the German invasion of Norway. Norway was occupied by Germany to afford her bases from which a more effective attack on England and France might be made, pursuant to plans prepared long in advance of the Allied plans which are now relied on to support the argument of self-defense.
It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Kellogg-Briand Pact, whether preventive action was a necessity, and that in making her decision her judgment was conclusive. But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.
No suggestion is made by the defendants that there was any plan by any belligerent, other than Germany, to occupy Denmark. No excuse for that aggression has ever been offered.
As the German armies entered Norway and Denmark, German memoranda were handed to the Norwegian and Danish Governments which gave the assurance that the German troops did not come as enemies, that they did not intend to make use of the points occupied by German troops as bases for operations against England, as long as they were not forced to do so by measures taken by England and France, and that they had come to protect the North against the proposed occupation of Norwegian strong points by English-French forces.
The memoranda added that Germany had no intention of infringing upon the territorial integrity and political independence of the Kingdom of Norway then or in the future. Nevertheless, on the 3d of June 1940, a German naval memorandum discussed the use to be made of Norway and Denmark, and put forward one solution for consideration, that the territories of Denmark and Norway acquired during the course of the war should continue to be occupied and organized so that they could in the future be considered as German possessions.
In the light of all the available evidence it is impossible to accept the contention that the invasions of Denmark and Norway were defensive, and in the opinion of the Tribunal they were acts of aggressive war.
(H) THE INVASION OF BELGIUM, THE NETHERLANDS AND LUXEMBURG
The plan to seize Belgium and the Netherlands was considered in August 1938, when the attack on Czechoslovakia was being formulated, and the possibility of war with France and England was contemplated. The advantage to Germany of being able to use these countries for their own purposes, particularly as air bases in the war against England and France, was emphasized. In May of 1939, when Hitler made his irrevocable decision to attack Poland, and foresaw the possibility at least of a war with England and France in consequence, he told his military commanders:
"Dutch and Belgian air bases must be occupied... Declarations of neutrality must be ignored."
On 22 August in the same year, he told his military commanders that England and France, in his opinion, would not "violate the neutrality of these countries." At the same time he assured Belgium and Holland and Luxemburg that he would respect their neutrality; and on the 6th October 1939, after the Polish campaign, he repeated this assurance. On the 7th October General von Brauchitsch directed Army Group B to prepare "for the immediate invasion of Dutch and Belgian territory, if the political situation so demands." In a series of orders, which were signed by the defendants Keitel and Jodl, the attack was fixed for the 10th November 1939, but it was postponed from time to time until May of 1940 on account of weather conditions and transport problems.
At the conference on the 23d November 1939, Hitler said:
"We have an Achilles heel: The Ruhr. The progress of the war depends on the possession of the Ruhr. If England and France push through Belgium and Holland into the Ruhr, we shall be in the greatest danger... Certainly England and France will assume the offensive against Germany when they are armed. England and France have means of pressure to bring Belgium and Holland to request English and French help. In Belgium and Holland the sympathies are all for France and England... If the French army marches into Belgium in order to attack us, it will be too late for us. We must anticipate them... We shall sow the English coast with mines which cannot be cleared. This mine warfare with the Luftwaffe demands a different starting point. England cannot live without its imports. We can feed ourselves. The permanent sowing of mines on the English coasts will bring England to her knees. However, this can only occur if we have occupied Belgium and Holland ... My decision is unchangeable; I shall attack France and England at the most favorable and quickest moment. Breach of the neutrality of Belgium and Holland is meaningless. No one will question that when we have won. We shall not bring about the breach of neutrality as idiotically as it was in 1914. If we do not break the neutrality, then England and France will. Without attack, the war is not to be ended victoriously."
On the 10th May 1940 the German forces invaded the Netherlands, Belgium, and Luxemburg. On the same day the German Ambassadors handed to the Netherlands and Belgian Governments a memorandum alleging that the British and French armies, with the consent of Belgium and Holland, were planning to march through those countries to attack the Ruhr, and justifying the invasion on these grounds. Germany, however, assured the Netherlands and Belgium that their integrity and their possessions would be respected. A similar memorandum was delivered to Luxemburg on the same date.
There is no evidence before the Tribunal to justify the contention that the Netherlands, Belgium, and Luxemburg were invaded by Germany because their occupation had been planned by England and France. British and French staffs had been cooperating in making certain plans for military operations in the Low Countries, but the purpose of this planning was to defend these countries in the event of a German attack.
The invasion of Belgium, Holland, and Luxemburg was entirely without justification.
It was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war. The resolve to invade was made without any other consideration than the advancement of the aggressive policies of Germany.
(I) THE AGGRESSION AGAINST YUGOSLAVIA AND GREECE
On the 12th August 1939, Hitler had a conversation with Ciano and the defendant von Ribbentrop at Obersalzberg. He said then:
"Generally speaking, the best thing to happen would be for the neutrals to be liquidated one after the other. This process could be carried out more easily if on every occasion one partner of the Axis covered the other while it was dealing with the uncertain neutral. Italy might well regard Yugoslavia as a neutral of this kind."
This observation was made only 2 months after Hitler had given assurances to Yugoslavia that he would regard her frontier as final and inviolable. On the occasion of the visit to Germany of the Prince Regent of Yugoslavia on 1 June 1939, Hitler had said in a public speech:
"The firmly established reliable relationship of Germany to Yugoslavia, now that owing to historical events we have become neighbors with common boundaries fixed for all time, will not only guarantee lasting peace between our two peoples and countries, but can also represent an element of calm to our nerve-racked continent. This peace is the goal of all who are disposed to perform really constructive work."
On the 6th October 1939, Germany repeated these assurances to Yugoslavia, after Hitler and von Ribbentrop had unsuccessfully tried to persuade Italy to enter the war on the side of Germany by attacking Yugoslavia. On the 28th October 1940, Italy invaded Greece, but the military operations met with no success. In November, Hitler wrote to Mussolini with regard to the invasion of Greece, and the extension of the war in Balkans, and pointed out that no military operations could take place in the Balkans before the following March, and therefore Yugoslavia must if at all possible be won over by other means, and in other ways. But on the 12th November 1940, Hitler issued a directive for the prosecution of the war, and it included the words:
"The Balkans: The Commander-in-Chief of the Army will make preparations for occupying the Greek mainland north of the Aegean Sea, in case of need entering through Bulgaria."
On the 13th December he issued a directive concerning the operation "Marita," the code name for the invasion of Greece, in which he stated:
"1. The result of the battles in Albania is not yet decisive. Because of a dangerous situation in Albania, it is doubly necessary that the British endeavor be foiled to create air bases under the protection of a Balkan front, which would be dangerous above all to Italy as to the Rumanian oil fields.
"2. My plan therefore is (a) to form a slowly increasing task force in Southern Rumania within the next month, (b) after the setting in of favorable weather, probably in March, to send a task force for the occupation of the Aegean north coast by way of Bulgaria and if necessary to occupy the entire Greek mainland."
On the 20th January 1941, at a meeting between Hitler and Mussolini, at which the defendants von Ribbentrop, Keitel, Jodl, and others were present, Hitler stated:
"The massing of troops in Rumania serves a threefold purpose:
(a) An operation against Greece;
(b) Protection of Bulgaria against Russia and Turkey;
(c) Safeguarding the guarantee to Rumania... It is desirable that this deployment be completed without interference from the enemy. Therefore, disclose the game as late as possible. The tendency will be to cross the Danube at the last possible moment, and to line up for attack at the earliest possible moment."
On the 19th February 1941, an OKW directive regarding the operation "Marita" stated:
"On the 18th February the Fuehrer made the following decision regarding the carrying out of Operation Marita: The following dates are envisaged: Commencement of building bridge, 28th February; Crossing of the Danube, 2d March."
On the 3d March 1941, British troops landed in Greece to assist the Greeks to resist the Italians; and on the 18th March, at a meeting between Hitler and the defendant Raeder, at which the defendants Keitel and Jodl were also present, the defendant Raeder asked for confirmation that the "whole of Greece will have to be occupied, even in the event of a peaceful settlement," to which Hitler replied, "The complete occupation is a prerequisite of any settlement."
On the 25th March, on the occasion of the adherence of Yugoslavia to the Tripartite Pact at a meeting in Vienna, the defendant von Ribbentrop, on behalf of the German Government, confirmed the determination of Germany to respect the sovereignty and territorial integrity of Yugoslavia at all times. On the 26th March the Yugoslav Ministers, who had adhered to the Tripartite Pact, were removed from office by a coup d'etat in Belgrade on their return from Vienna, and the new Government repudiated the pact. Thereupon on 27 March, at a conference in Berlin with the High Command at which the defendants Goering, Keitel, and Jodl were present, and the defendant von Ribbentrop part of the time, Hitler stated that Yugoslavia was an uncertain factor in regard to the contemplated attack on Greece, and even more so with regard to the attack upon Russia which was to be conducted later on. Hitler announced that he was determined, without waiting for possible loyalty declarations of the new Government, to make all preparations in order to destroy Yugoslavia militarily and as a national unit. He stated that he would act with "unmerciful harshness."
On the 6th April, German forces invaded Greece and Yugoslavia without warning, and Belgrade was bombed by the Luftwaffe. So swift was this particular invasion that there had not been time to establish any "incidents" as a usual preliminary, or to find and publish any adequate "political" explanations. As the attack was starting on the 6th April, Hitler proclaimed to the German people that this attack was necessary because the British forces in Greece (who were helping the Greeks to defend themselves against the Italians) represented a British attempt to extend the war to the Balkans.
It is clear from this narrative that aggressive war against Greece and Yugoslavia had long been in contemplation, certainly as early as August of 1939. The fact that Great Britain had come to the assistance of the Greeks, and might thereafter be in a position to inflict great damage upon German interests was made the occasion for the occupation of both countries.
(J) THE AGGRESSIVE WAR AGAINST THE UNION OF SOVIET SOCIALIST REPUBLICS
On the 23d August 1939, Germany signed the nonaggression pact with the Union of Soviet Socialist Republics.
The evidence has shown unmistakably that the Soviet Union on their part conformed to the terms of this pact; indeed the German Government itself had been assured of this by the highest German sources. Thus, the German Ambassador in Moscow informed his Government that the Soviet Union would go to war only if attacked by Germany, and this statement is recorded in the German War Diary under the date of June 6, 1941.
Nevertheless, as early as the late summer of 1940, Germany began to make preparations for an attack on the USSR, in spite of the nonaggression pact. This operation was secretly planned under the code name "Case Barbarossa," and the former Field Marshal Paulus testified that on the 3d September 1940, when he joined the German General Staff, he continued developing "Case Barbarossa," which was finally completed at the beginning of November 1940; and that even then, the German General Staff had no information that the Soviet Union was preparing for war.
On the 18th of December 1940, Hitler issued directive No. 21, initialled by Keitel and Jodl, which called for the completion of all preparations connected with the realization of "Case Barbarossa" by the 15th May 1941. This directive stated:
"The German armed forces must be prepared to crush Soviet Russia in a quick campaign before the end of the war against England... Great caution has to be exercised that the intention of an attack will not be recognized."
Before the directive of the 18th December had been made, the defendant Goering had informed General Thomas, chief of the Office of War Economy of the OKV, of the plan, and General Thomas made surveys of the economic possibilities of the USSR including its raw materials, its power and transport system, and its capacity to produce arms.
In accordance with these surveys, an economic staff for the Eastern territories with many military-economic units (inspectorates, commandos, groups) was created under the supervision of the defendant Goering. In conjunction with the military command, these units were to achieve the most complete and efficient economic exploitation of the occupied territories in the interest of Germany.
The framework of the future political and economic organization of the occupied territories was designed by the defendant Rosenberg over a period of 3 months, after conferences with and assistance by the defendants Keitel, Jodl, Raeder, Funk, Goering, von Ribbentrop, and Frick or their representatives. It was made the subject of a most detailed report immediately after the invasion.
These plans outlined the destruction of the Soviet Union as an independent State, and its partition, the creation of so-called Reich Commissariats, and the conversion of Esthonia, Latvia, Byelorussia, and other territories into German colonies.
At the same time Germany drew Hungary, Rumania, and Finland into the war against the USSR. In December 1940, Hungary agreed to participate on the promise of Germany that she should have certain territories at the expense of Yugoslavia.
In May 1941 a final agreement was concluded with Antonescu, the Prime Minister of Rumania, regarding the attack on the USSR, in which Germany promised to Rumania, Bessarabia, northern Bukovina and the right to occupy Soviet territory up to the Dnieper.
On the 22d June 1941, without any declaration of war, Germany invaded Soviet territory in accordance with the plans so long made.
The evidence which has been given before this Tribunal proves that Germany had the design carefully thought out, to crush the USSR as a political and military power, so that Germany might expand to the east according to her own desire. In "Mein Kampf," Hitler had written:
"If new territory were to be acquired in Europe, it must have been mainly at Russia's cost, and once again the new German Empire should have set-out on its march along the same road as was formerly trodden by the Teutonic Knights, this time to acquire soil for the German plough by means of the German sword and thus provide the nation with its daily bread."
But there was a more immediate purpose, and in one of the memoranda of the OKW, that immediate purpose was stated to be to feed the German armies from Soviet territory in the third year of the war, even if "as a result many millions of people will be starved to death if we take out of the country the things necessary for us."
The final aims of the attack on the Soviet Union were formulated at a conference with Hitler on July 16, 1941, in which the defendants Goering, Keitel, Rosenberg, and Bormann participated:
"There can be no talk of the creation of a military power west of the Urals, even if we should have to fight 100 years to achieve this . . . All the Baltic regions must become part of the Reich. The Crimea and adjoining regions (North of the Crimea) must likewise be incorporated into the Reich. The region of the Volga as well as the Baku district must likewise be incorporated into the Reich. The Finns want Eastern Karelia. However, in view of the large deposits of nickel, the Kola peninsula must be ceded to Germany."
It was contended for the defendants that the attack upon the USSR was justified because the Soviet Union was contemplating an attack upon Germany, and making preparations to that end. It is impossible to believe that this view was ever honestly entertained.
The plans for the economic exploitation of the USSR, for the removal of masses of the population, for the murder of commissars and political leaders, were all part of the carefully prepared scheme launched on the 22d June without warning of any kind, and without the shadow of legal excuse. It was plain aggression.
(K) WAR AGAINST THE UNITED STATES
Four days after the attack launched by the Japanese on the United States fleet in Pearl Harbor on December 7, 1941, Germany declared war on the United States.
The Tripartite Pact between Germany, Italy, and Japan, had been signed on the 27th September 1940, and from that date until the attack upon the USSR the defendant von Ribbentrop, with other defendants, was endeavoring to induce Japan to attack British possessions in the Far East. This, it was thought, would hasten England's defeat, and keep the United States out of the war.
The possibility of a direct attack on the United States was considered and discussed as a matter for the future. Major von Falkenstein, the Luftwaffe liaison officer with the Operations Staff of the OKW, summarizing military problems which needed discussion in Berlin in October of 1940, spoke of the possibility "of the prosecution of the war against America at a later date". It is clear, too, that the German policy of keeping America out of the war, if possible, did not prevent Germany promising support to Japan even against the United States. On the 4th April 1941, Hitler told Matsuoka, the Japanese Foreign Minister, in the presence of the defendant von Ribbentrop, that Germany would "strike without delay" if a Japanese attack on Singapore should lead to war between Japan and the United States. The next day von Ribbentrop himself urged Matsuoka to bring Japan into the war.
On the 28th November 1941, 10 days before the attack on Pearl Harbor, von Ribbentrop encouraged Japan, through her Ambassador in Berlin, to attack Great Britain and the United States, and stated that should Japan become engaged in a war with the United States, Germany would join the war immediately. A few days later, Japanese representatives told Germany and Italy that Japan was preparing to attack the United States, and asked for their support. Germany and Italy agreed to do this, although in the Tripartite Pact, Italy and Germany had undertaken to assist Japan only if she were attacked. When the assault on Pearl Harbor did take place, the defendant von Ribbentrop is reported to have been "overjoyed," and later, at a ceremony in Berlin, when a German medal was awarded to Oshima, the Japanese Ambassador, Hitler indicated his approval of the tactics which the Japanese had adopted of negotiating with the United States as long as possible, and then striking hard without any declaration of war.
Although it is true that Hitler and his colleagues originally did not consider that a war with the United States would be beneficial to their interest, it is apparent that in the course of 1941 that view was revised, and Japan was given every encouragement to adopt a policy which would almost certainly bring the United States into the war. And when Japan attacked the United States fleet in Pearl Harbor and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.
IV. VIOLATIONS OF INTERNATIONAL TREATIES
The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against 10 nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements, or assurances." These treaties are set out in appendix C of the indictment. Those of principal importance are the following:
(A) HAGUE CONVENTIONS
In the 1899 Convention the signatory powers agreed: "before an appeal to arms... to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers." A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, article I contains this far more specific language:
"The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war."
Germany was a party to these conventions.
(B) VERSAILLES TREATY
Breaches of certain provisions of the Versailles Treaty are also relied on by the prosecution—not to fortify the left bank of the Rhine (art. 42-44) ; to "respect strictly the independence of Austria" (art. 80) ; renunciation of any rights in Memel (art. 99) and the Free City of Danzig (art. 100); the recognition of the independence of the Czecho-Slovak State; and the Military, Naval, and Air Clauses Against German rearmament found in part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set out in appendix C. With regard to the Treaty of Versailles, the matters relied on are:
1. The violation of articles 42 to 44 in respect of the demilitarized zone of the Rhineland.
2. The annexation of Austria on the 13th March 1938, in violation of article 80.
3. The incorporation of the district of Memel on the 22d March 1939, in violation of article 99.
4. The incorporation of the Free City of Danzig on the 1st September 1939, in violation of article 100.
5. The incorporation of the provinces of Bohemia and Moravia on the 16th March 1939, in violation of article 81.
6. The repudiation of the military naval and air clauses of the treaty, in or about March of 1935.
On the 21st May 1935, Germany announced that, whilst renouncing the disarmament clauses of the treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. (With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.)
(C) TREATIES OF MUTUAL GUARANTEE, ARBITRATION, AND NON-AGGRESSION
It is unnecessary to discuss in any detail the various treaties entered into by Germany with other powers. Treaties of Mutual Guarantee were signed by Germany at Locarno in 1925, with Belgium, France, Great Britain, and Italy, assuring the maintenance of the territorial status quo. Arbitration treaties were also executed by Germany at Locarno with Czechoslovakia, Belgium, and Poland.
Article I of the latter treaty is typical, providing:
"All disputes of every kind between Germany and Poland... which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision to an arbitral tribunal..."
Conventions of arbitration and conciliation were entered into between Germany, the Netherlands, and Denmark in 1926; and between Germany and Luxemburg in 1929. Nonaggression treaties were executed by Germany with Denmark and Russia in 1939.
(D) KELLOGG-BRAND PACT
The Pact of Paris was signed on the 27th August 1928 by Germany, the United States, Belgium, France, Great Britain, Italy, Japan, Poland, and other countries; and subsequently by other powers. The Tribunal has mide full reference to the nature of this Pact and its legal effect in another part of this judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal this pact was violated by Germany in all the cases of aggressive war charged in the indictment. It is to be noted that on the 26th January 1934, Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in which the use of force was outlawed for a period of 10 years.
The Tribunal does not find it necessary to consider any of the other treaties referred to in the appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.
(E) THE LAW OF THE CHARTER
The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.
The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.
The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the Tribunal has heard full argument from the prosecution and the defense, and will express its view on the matter.
It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a preexisting law. "Nullum crimen sine lege, nulla poena sine lege." It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had definedaggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.
In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.
This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of August 27, 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy, and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they were—
"Deeply sensible of their solemn duty to promote the welfare of mankind; persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples should be perpetuated... all changes in their relations with one another should be sought only by pacific means... thus uniting civilized nations of the world in a common renunciation of war as an instrument of their national policy..."
The first two articles are as follows:
"ARTICLE I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another."
"ARTICLE II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."
The question is, what was the legal effect of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:
"War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world... an illegal thing. Hereafter, when engaged in armed conflict, either one or both of them must be termed violators of this general treaty law... We denounce them as law breakers."
But it is argued that the pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.
The view which the Tribunal takes of the true interpretation of the pact is supported by the international history which preceded it. In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the treaty declared "that aggressive war is an international crime," and that the parties would "undertake that no one of them will be guilty of its commission." The draft treaty was submitted to twenty-nine states, about half of whom were in favor of accepting the text. The principal objection appeared to be in the difficulty of defining the acts which would constitute "aggression," rather than any doubt as to the criminality of aggressive war. The preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes, ("Geneva Protocol"), after "recognising the solidarity of the members of the international community," declared that "a war of aggression constitutes a violation of this solidarity and is an international crime." It went on to declare that the contracting parties were "desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between the states and of ensuring the repression of international crimes." The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the Assembly of the 48 members of the League. These members included Italy and Japan, but Germany was not then a member of the League.
Although the Protocol was never ratified, it was signed by the leading statesmen of the world, representing the vast majority of the civilized States and peoples, and may be regarded as strong evidence of the intention to brand aggressive war as an international crime.
At the meeting of the Assembly of the League of Nations on the 24th September 1927, all the delegations then present (including the German, the Italian, and the Japanese), unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
"The Assembly: Recognizing the solidarity which unites the community of nations;
Being inspired by a firm desire for the maintenance of general peace;
Being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an international crime ***."
The unanimous resolution of the 18th February 1928, of 21 American republics at the sixth (Havana) Pan-American Conference, declared that "war of aggression constitutes an international crime against the human species."
All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of Pacts and Treaties to which the Tribunal has just referred.
It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the First World War opposed to Germany, to try the former German Emperor "for a supreme offence against international morality and the sanctity of treaties." The purpose of this trial was expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of international morality." In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."
It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of Ex parts Quirin (1942 317 U. S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the
United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the court, said:
"From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals."
He went on to give a list of cases tried by the courts, where individual offenders were charged with offences against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility.
The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:
"The official position of defendants, whether as heads of State, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment."
On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.
It was also submitted on behalf of most of these defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders. The Charter specifically provides in Article 8:
"The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment."
The provisions of this Article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.
V. THE LAW AS TO THE COMMON PLAN OR CONSPIRACY
In the previous recital of the facts relating to aggressive war, it is clear that planning and preparation had been carried out in the most systematic way at every stage of the history.
Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offense as planning, preparation, initiation, or waging of a war of aggression "or participation in a common plan or conspiracy for the accomplishment... of the foregoing." The indictment follows this distinction. Count one charges the common plan or conspiracy. Count two charges the planning and waging of war. The same evidence has been introduced to support both counts. We shall therefore discuss both counts together, as they are in substance the same. The defendants have been charged under both counts, and their guilt under each count must be determined.
The "common plan or conspiracy" charged in the indictment covers 25 years, from the formation of the Nazi Party in 1919 to the end of the war in 1945. The party is spoken of as "the instrument of cohesion among the defendants" for carrying out the purposes of the conspiracy—the overthrowing of the Treaty of Versailles, acquiring territory lost by Germany in the last war and "lebensraum" in Europe, by the use, if necessary, of armed force, of aggressive war. The "seizure of power" by the Nazis, the use of terror, the destruction of trade unions, the attack on Christian teaching and on churches, the persecution of the Jews, the regimentation of youth—all these are said to be steps deliberately taken to carry out the common plan. It found expression, so it is alleged, in secret rearmament, the withdrawal by Germany from the Disarmament Conference and the League of Nations, universal military service, and seizure of the Rhineland. Finally, according to the indictment, aggressive action was planned and carried out against Austria and Czechoslovakia in 1936-38, followed by the planning and waging of war against Poland; and, successively, against ten other countries.
The prosecution says, in effect, that any significant participation in the affairs of the Nazi Party or government is evidence of a participation in a conspiracy that is in itself criminal. Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party pro-
Source: Nazi Conspiracy and Aggression, Opinion and Judgement, Office of the United States Chief Counsel for Prosecution of Axis Criminality, Washington, DC : United States Government Printing Office, 1947, pp. 16-54.
Editorial Note: This is a true copy of an extract (pp. 16-54) of "Nazi Conspiracy and Aggression, Opinion and Judgement". Nazi Conspiracy and Aggression is also known as the "Red Set" or "Red Series" (8 volumes, Supplement A & B, Opinion and Judgement). The full text of the Nuremberg IMT Judgment is contained in this series.
This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 20.
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