The Search for World Peace
Judgment in Ministries Case
"THE MINISTRIES CASE"
MILITARY TRIBUNAL IV
THE UNITED STATES OF AMERICA -against-
ERNST VON WEIZSAECKER, GUSTAV ADOLF STEENGRACHT VON MOYLAND, WILHELM KEPPLER, ERNST WILHELM BOHLE, ERNST WOERMANN, KARL RITTER, OTTO VON ERDMANNSDORFF, EDMUND VEESENMAYER, HANS HEINRICH LAMMERS, WILHELM STUCKART, RICHARD WALTHER DARRi, OTTO MEISSNER, OTTO DIETRICH, GOTTLOB BERGER, WALTER SCHELLENBERG, LUTZ SCHWERIN VON KROSIGK, EMIL PUHL, KARL RASCHE, PAUL KOERNER, PAUL PLEIGER, and HANS KEHL, Defendants
B. JUDGMENT |1| INTRODUCTION
On 18 November 1947, |2| an indictment against the above-named defendants was filed with the Secretary General of the United States Military Tribunals at Nuernberg. Generally stated, said indictment, consisting of eight counts, charged the defendants with having committed crimes against peace, war crimes, crimes against humanity, and with having participated in a common plan and conspiracy to commit crimes against peace, all as defined in Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945.
Several, but not all, of the defendants are charged under each of the counts of the indictment. The applicable provisions of Control Council Law No. 10 will hereinafter be referred to and set forth as they relate to each count of the indictment when such counts are reached for discussion and decision.
The indictment was served upon all of the defendants in the German language, more than 30 days before arraignment of the defendants thereunder. On 19 December 1947 the case was assigned to this Tribunal for trial by the Supervisory Committee of Presiding Judges of the United States Military Tribunals in Germany, in conformity with Article V of Military Government Ordinance No. 7, as amended, this Tribunal theretofore having been duly established and constituted, pursuant to said Ordinance No. 7, which ordinance was promulgated by the United States Military Governor of the United States Occupation Zone of Germany on 18 October 1946. The arraignment of the defendants took place on 20 December 1947, at which time all defendants pleaded "Not Guilty" to the charges in the indictment.
Throughout the trial of this case, all of the defendants were represented by German counsel of their own choice. One defendant requested that he also be allowed to retain American counsel to represent him. The request was granted.
The presentation of evidence in the case was commenced on 7 January 1948. Final arguments before the Tribunal were concluded on 18 November 1948. The transcript record of the case consists of 28,085 pages. In addition thereto, the prosecution and the defense together introduced in evidence 9,067 documentary exhibits, totaling over 39,000 pages. Generally accepted technical rules of evidence were not adhered to during the trial, and any evidence that, in the opinion of the Tribunal, had probative value was admitted when offered by either the prosecution or the defense. This practice was in accord with that followed by the International Military Tribunal, and as subsequently thereto provided in Article VII of the hereinbefore referred to Military Government Ordinance No. 7. In the interest of expedition the Tribunal, following the practice adopted by the International Military Tribunal, appointed court commissioners to assist in taking both oral and documentary evidence, but many of the principal witnesses and all of the defendants who testified were heard before the Tribunal itself.
In order that any relevant documentary defense evidence of which the defendants had knowledge or which they believed existed might be made available to the defense, the Tribunal in response to various defense motions uniformly ordered that the persons or agencies having possession or custody of such evidence make same available to the defense. This was even true with respect to documentary evidence in possession of the prosecution. Moreover, at the request of a number of the defendants, the Tribunal appointed a German research analyst, of the defendants' choice, for the purpose of making a search of files of the former Reich government, located in the Document Center in Berlin, under Allied control. Such research analyst spent many months in Berlin in this search for defense evidence. The same research expert was further authorized by this Tribunal to visit London for the purpose of research in behalf of the defendants and was, in fact, so engaged for a number of weeks with the cooperation of British authorities. Other representatives were likewise authorized to make search of former Reich government files in Berlin.
In arriving at the conclusions hereinafter reached with respect to the charges against the defendants as contained in the indictment, the Tribunal has undeviatingly adhered to the proposition that a defendant is presumed innocent until proved guilty beyond a reasonable doubt.
During the course of the trial, a motion was made in behalf of all defendants charged in count four of the indictment that said count be stricken. The motion was granted and a formal order in the matter made and filed by the Tribunal. |*|
During the trial from time to time motions were also made in behalf of individual defendants to dismiss counts of the indictment relating to them on the ground that the Tribunal was without jurisdiction to try the defendants on such counts and on the further ground that the evidence adduced by the prosecution was insufficient to sustain the charges. Such motions were denied without prejudice, except in three instances where charges in certain counts of the indictment were dismissed with respect to certain defendants because of a failure of proof. Specific attention to the charges thus dismissed and the defendants affected thereby will be given when the charges involved in such dismissals are reached in the ensuing discussion of the individual counts of the indictment. Like attention will be called to instances wherein the prosecution, during the trial, withdrew certain charges against certain of the defendants.
In the final arguments and briefs of the defendants, the contention that this Tribunal is without jurisdiction in this matter was renewed. In this connection, attention is directed to the fact that a number of United States Military Tribunals of precisely the same type and origin as this one have heretofore had their jurisdiction questioned on similar grounds in the course of their trial of cases involving offenses defined in Control Counsel Law No. 10. (Flick, et al., Case 5; List, et al., Case 7; and Ohlendorf, et al., Case 9. |*|) The statements made in the judgments of such cases in the course of disposing of the attacks made on the jurisdiction of such Tribunals, we deem to be conclusive answers to the challenge here made to this Tribunal's jurisdiction, and we accordingly reject the contention of the defendants that these proceedings should be dismissed because of the Tribunal's lack of jurisdiction.
The record, including briefs of counsel all of which the Court has considered and examined, amounts to approximately 79,000 pages. The evidence of this case presents a factual story of practically every phase of activity of the Nazi Party and of the Third Reich, whether political, economic, industrial, financial, or military.
Hundreds of captured official documents were offered, received, and considered which were unavailable at the trial before the International Military Tribunal (sometimes herein referred to as the IMT), and which were not offered in any of the previous cases before United States Military Tribunals, and the record here presents, more fully and completely than in any other case, the story of the rise of the Nazi regime, its programs, and its acts.
The Tribunal has had the aid of and here desires to express its appreciation and gratitude for the skill, learning, and meticulous care with which counsel for the prosecution and defense have presented their case.
Notwithstanding the provisions in Article X of Ordinance No. 7, that the determination of the International Military Tribunal that invasions, aggressive acts, aggressive wars, crimes, atrocities, and inhumane acts were planned or occurred, shall be binding on the Tribunals established thereunder and cannot be questioned except insofar as the participation therein and knowledge thereof of any particular person may be concerned, we have permitted the defense to offer evidence upon all these matters. In so doing we have not considered this article to be a limitation on the right of the Tribunal to consider any evidence which may lead to a just determination of the facts. If in this we have erred, it is an error which we do not regret, as we are firmly convinced that courts of justice must always remain open to the ascertainment of the truth and that every defendant must be accorded an opportunity to present the facts.
Before considering the questions of law and fact which are here involved, we deem it proper to state the nature of these trials, the basis on which they rest, and the standards by which these defendants should be judged.
These Tribunals were not organized and do not sit for the purpose of wreaking vengeance upon the conquered. Was such the purpose, the power existed to use the firing squad, the scaffold, or the prison camp without taking the time and putting forth labor which have been so freely expended on them, and the Allied Powers would have copied the methods which were too often used during the Third. Reich. We may not, in justice, apply to these defendants because they are Germans standards of duty and responsibility which are not equally applicable to the officials of the Allied Powers and to those of all nations. Nor should Germans be convicted for acts or conducts which, if committed by Americans, British, French, or Russians would not subject them to legal trial and conviction. Both care and caution must be exercised not to prescribe or apply a yardstick to these defendants which cannot and should not be applied to others, irrespective of whether they are nationals of the victor or of the vanquished.
The defendants here are charged with violation of international law, and our task is: first, to ascertain and determine what it is; second, whether the defendants have infringed these principles.
International law is not statutory. It is in part defined by and described in treaties and covenants among the powers of the world. Nevertheless, much of it consists of practices, principles, and standards which have become developed over the years and have found general acceptance among the civilized powers of the world. It has grown and expanded as the concepts of international right and wrong have grown. It has never been suggested that it has been codified, or that its boundaries have been specifically defined, or that specific sanctions have been prescribed for violations of it. The various Hague and Geneva Conventions, the Constitution and the Charter of the League of Nations, and the Kellogg-Briand treaties have given definitive shape to limited fields of international law. It can be said that insofar as certain acts are prohibited or permitted by these treaties or covenants, a codification exists and specific rules of conduct prescribed. It does not follow however that they are exclusive, and assuredly it cannot be said that they cover or pretend to cover the entire field of international law.
In determining whether the action of a nation is in accordance with or violates international law, resort may be had not only to those treaties and covenants, but to treatises on the subject and to the principles which lie beneath and back of these treaties, covenants, and learned treatises; and we need not hesitate, after having determined what they are, to apply them to new or different situations. It is by this very means that all legal codes, civil or criminal, have developed.
Aggressive wars and invasions.—The question, therefore, is whether or not the London Charter and Control Council Law No. 10 define new offenses or whether they are but definitive statements of preexisting international law. That monarchs and states, at least those who considered themselves civilized, have for centuries recognized that aggressive wars and invasions violated the law of nations is evident from the fact that invariably he who started his troops on the march or his fleets over the seas to wage war has endeavored to explain and justify the act by asserting that there was no desire or intent to infringe upon the lawful rights of the attacked nation or to engage in cold-blooded conquest, but on the contrary that the hostile acts became necessary because of the enemy's disregard of its obligations; that it had violated treaties; that it held provinces or cities which in fact belonged to the attacker; or that it had mistreated or discriminated against his peaceful citizens.
Often these justifications and excuses were offered with cynical disregard of the truth. Nevertheless, it was felt necessary that an excuse and justification be offered for the attack to the end the attacker might not be regarded by other nations as acting in wanton disregard of international duty and responsibility. From Caesar to Hitler the same practice has been followed. It was used by Napoleon, was adopted by Frederick the Great, by Philip II of Spain, by Edward I of England, by Louis XIV of France, and by the powers who seized lands which they desired to colonize and make their own. Every and all of the attackers followed the same time-worn practice. The white, the blue, the yellow, the black, and the red books had only one purpose, namely, to justify that which was otherwise unjustifiable.
But if aggressive invasions and wars were lawful and did not constitute a breach of international law and duty, why take the trouble to explain and justify? Why inform neutral nations that the war was inevitable and excusable and based on high notions of morality, if aggressive war was not essentially wrong and a breach of international law? The answer to this is obvious. The initiation of wars and invasions with their attendant horror and suffering has for centuries been universally recognized by all civilized nations as wrong, to be resorted to only as a last resort to remedy wrongs already or imminently to be inflicted. We hold that aggressive wars and invasions have, since time immemorial, been a violation of international law, even though specific sanctions were not provided.
The Kellogg-Briand Pact not only recognized that aggressive wars and invasions were in violation of international law, but proceeded to take the next step, namely, to condemn recourse to war (otherwise justifiable for the solution of international controversies), to renounce it as an instrumentality of national policy, and to provide for the settlement of all disputes or conflicts by pacific means. Thus war as a means of enforcing lawful claims and demands became unlawful. The right of self-defense, of course, was naturally preserved, but only because if resistance was not immediately offered, a nation would be overrun and conquered before it could obtain the judgment of any international authority that it was justified in resisting attack.
The preamble of the treaty [General Pact for the Renunciation of War] provides that the nations declare their conviction—
"* * * that any signatory power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this treaty."
Quincy Wright, Professor of International Law, University of Chicago, in January 1933 (American Journal of International Law, vol. 21, No. 1, 23 January 1933), reviewed the Pact and the conclusions put upon, and the implications arising from, its provisions by the leading statesmen of that time. He quotes Secretary Stimson as follows:
"Under the former concept of international law, when a conflict occurred it was usually deemed the concern only of the parties to the conflict * * * But now, under the covenant and the Kellogg-Briand Pact, the conflict becomes of legal concern to everybody connected with the treaty. All steps taken to enforce the treaty must be adjudged by this new situation. As was said by M. Briand, quoting the words of President Coolidge: 'An act of war in any part of the world is an act that injures the interests of my country.'
"The world has learned that great lesson and the execution of the Kellogg-Briand Treaty codified it."
Professor Wright continues—
"Furthermore, the suggestion that the obligation is not legal because it is unprovided with sanctions has carried no more weight. Many treaties have no specific sanctions but insofar as they create obligations under international law, those obligations are covered by the sanctions of all international law * * *.
"In his exposition of the treaty, Secretary Kellogg pointed out 'there can be no question, as a matter of law, that the violation of a multilateral antiwar treaty through resort to war by one party thereto would automatically release the other parties from their obligations to the treaty-breaking states. Any express recognition of this principle of law is wholly unnecessary * * *.'
"These changes in international law consequent upon theexistence of war, arise from the following propositions:
"1. A Party to the Pact responsible for initiating a state of war (a primary belligerent) will have violated the rights of all the parties to the Pact and will have lost all title to its benefits from non-participating states as well as from its enemies.
"2. A Party to the Pact involved in a state of war but not responsible for initiating it (a secondary belligerent) will not have violated the Pact and consequently will continue entitled to its benefits not only from nonparticipating states but also from its enemies.
"3. The other Parties to the Pact, nonparticipating in the war or 'partial,' while free to keep out of the war, will have suffered a legal injury through the outbreak of war, and though bound to extend the full benefits of the traditional international law of neutrality as well as the benefits of the Pact to the secondary belligerent will be free to deny these benefits to the primary belligerent."
It is to be noted that these views were expressed long before the seizure of power by Hitler and the Nazi Party, and years before the occurrence of the acts of aggression here charged, and are contemporaneous conclusions regarding the intent, meaning, and scope of the Treaty.
Is there personal responsibility for those who plan, prepare, and initiate aggressive wars and invasions? The defendants have ably and earnestly urged that heads of states and officials thereof cannot be held personally responsible for initiating or waging aggressive wars and invasions because no penalty had been previously prescribed for such acts. History, however, reveals that this view is fallacious. Frederick the Great was summoned by the Imperial Council to appear at Regensburg and answer, under threat of banishment, for his alleged breach of the public peace in invading Saxony.
When Napoleon, in alleged violation of his international agreement, sailed from Elba to regain by force the Imperial Crown of France, the nations of Europe, including many German princes in solemn conclave, denounced him, outlawing him as an enemy and disturber of the peace, mustered their armies, and on the battlefield of Waterloo, enforced their decree, and applied the sentence by banishing him to St. Helena. By these actions they recognized and declared that personal punishment could be properly inflicted upon a head of state who violated an international agreement and resorted to aggressive war.
But even if history furnished no examples, we would have no hesitation in holding that those who prepare, plan, or initiate aggressive invasions, and wage aggressive wars; and those who knowingly participate therein are subject to trial, and if convicted, to punishment.
By the Kellogg-Briand Treaty, Germany as well as practically every other civilized country of the world, renounced war as an instrumentality of governmental policy. The treaty was entered into for the benefit of all. It recognized the fact that once war breaks out, no one can foresee how far or to what extent the flames will spread, and that in this rapidly shrinking world it affects the interest of all.
No one would question the right of any signatory to use its armed forces to halt the violator in his tracks and to rescue the country attacked. Nor would there be any question but that when this was successfully accomplished sanctions could be applied against the guilty nation. Why then can they not be applied to the individuals by whose decisions, cooperation, and implementation the unlawful war or invasion was initiated and waged? Must the punishment always fall on those who were not personally responsible? May the humble citizen who knew nothing of the reasons for his country's action, who may have been utterly deceived by its propaganda, be subject to death or wounds in battle, held as a prisoner of war, see his home destroyed by artillery or from the air, be compelled to see his wife and family suffer privations and hardships; may the owners and workers in industry see it destroyed, their merchant fleets sunk, the mariners drowned or interned; may indemnities result which must be derived from the taxes paid by the ignorant and the innocent; may all this occur and those who were actually responsible escape?
The only rationale which would sustain the concept that the responsible shall escape while the innocent public suffers, is a result of the old theory that "the King can do no wrong," and that "war is the sport of Kings."
We may point out further that the [Hague and] Geneva Conventions relating to rules of land warfare and the treatment of prisoners of war provide no punishment for the individuals who violate those rules, but it cannot be questioned that he who murders a prisoner of war is liable to punishment.
To permit such immunity is to shroud international law in a mist of unreality. We reject it and hold that those who plan, prepare, initiate, and wage aggressive wars and invasions, and those who knowingly, consciously, and responsibly participate therein violate international law and may be tried, convicted, and punished for their acts.
The "Tu Quoque" Doctrine.—The defendants have offered testimony and supported it by official documents which tend to establish that the Union of Soviet Socialist Republics entered into a treaty with Germany in August 1939, which contains secret clauses whereby not only did Russia consent to Hitler's invasion of Poland, but at least tacitly agreed to send its own armed forces against that nation, and by it could demand and obtain its share of the loot, and was given a free hand to swallow the little Baltic states with whom it had then existing nonaggression treaties. The defense asserts that Russia, being itself an aggressor and an accomplice to Hitler's aggression, was a party and an accomplice to at least one of the aggressions charged in this indictment, namely, that against Poland, and therefore was legally inhibited from signing the London Charter and enacting Control Council Law No. 10, and consequently both the Charter and Law are invalid, and no prosecution can be maintained under them.
The justifications, if any, which the Soviet Union may claim to have had for its actions in this respect were not represented to this Tribunal. But if we assume, arguendo, that Russia's action was wholly untenable and its guilt as deep as that of the Third Reich, nevertheless, this cannot in law avail the defendants or lessen the guilt of those of the Third Reich who were themselves responsible. Neither the London Charter nor Control Council Law No. 10 did more than declare existing international law regarding aggressive wars and invasions. The Charter and Control Council Law No. 10 merely defined what offenses against international law should be the subject of judicial inquiry, formed the International Military Tribunal, and authorized the signatory powers to set up additional tribunals to try those charged with committing crimes against peace, war crimes, and crimes against humanity.
But even if it were true that the London Charter and Control Council Law No. 10 are legislative acts, making that a crime which before was not so recognized, would the defense argument be
valid? It has never been suggested that a law duly passed becomes ineffective when it transpires that one of the legislators whose vote enacted it was himself guilty of the same practice or that he himself intended, in the future, to violate the law.
COUNT ONE—CRIMES AGAINST PEACE
The defendants von Weizsaecker, Keppler, Bohle, Woermann, Ritter, von Erdmannsdorff, Veesenmayer, Lammers, Stuckart, Darré, Meissner, Dietrich, Berger, Schellenberg, Schwerin von
Krosigk, Koerner, and Pleiger are charged with having participated in the initiation of invasions of other countries and wars of aggression, including but not limited to planning, preparation, initiation, and waging of wars of aggression in violation of international treaties, agreements, and assurances. The invasions and wars referred to and the dates of their initiation are alleged to have been as follows:
Austria 12 March 1938 Czechoslovakia 1 October 1938 and 15 March 1939 Poland 1 September 1939 United Kingdom and France 3 September 1939 Denmark and Norway 9 April 1940 Belgium, Netherlands, and Luxembourg 10 May 1940 Yugoslavia and Greece 6 April 1941 Union of Soviet Socialist Republics 22 June 1941 United States of America 11 December 1941
The prosecution dismissed this count as to the defendants Bohle, von Erdmannsdorff, and Meissner.
Notwithstanding the fact that the International Military Tribunal and several of these Tribunals have decided that the Third Reich was guilty of aggressive wars and invasions, we have reexamined this question because of the claim made by the defense that newly discovered evidence reveals that Germany was not the aggressor. It should be made clear, however, that this defense is not submitted by all of the defendants. For example, the defendant von Weizsaecker freely admits that these acts were aggressions.
The argument is based on the alleged injustices and harsh terms of the Versailles Treaty, which it is claimed was imposed upon Germany by force; that agreements made under duress are not binding, and in attempting to rid itself of the bonds thus thrust upon it, Germany was compelled to use force and in so doing cannot be judged an aggressor. Unless the defense has sufficient legal merit necessitating our so doing, a review of the treaty and the reasons which underlie it and its terms, with a view to determining the accuracy of these claims, would expand our opinion beyond permissible limits. In our opinion, however, there is no substance to the defense, irrespective of the question whether the treaty was just or whether it was imposed by duress.
We deem it unnecessary to determine either the truth of these claims or whether one upon whom the victor by force of arms has imposed a treaty on unjust or unduly harsh terms may therefore reject the treaty and, by force of arms, attempt to regain that which it believes has been wrongfully wrested from it.
If, arguendo, both propositions were conceded, nevertheless, both are irrelevant to the question confronting us here. In any event the time must arrive when a given status, irrespective of the means whereby it came into being, must be considered as fixed, at least so far as a resort to an aggressive means of correction is concerned.
When Hitler solemnly informed the world that so far as territorial questions were concerned Germany had no claims, and by means of solemn treaty assured Austria, France, Czechoslovakia, and Poland that he had no territorial demands to be made upon them, and when he entered into treaties of peace and nonaggression with them, the status of repose and fixation was reached. These assurances were given and these treaties entered into when there could be no claim of existing compulsion. Thereafter aggressive acts against the territories of these nations became breaches of international law, prohibited by the provisions of the Kellogg-Briand Treaty to which Germany had become a voluntary signatory.
No German could thereafter look upon war or invasion to recover part or all of the territories of which Germany had been deprived by the Treaty of Versailles as other than aggressive. To excuse aggressive acts after these treaties and assurances took place is merely to assert that no treaty and no assurance by Germany is binding and that the pledged word of Germany is valueless. It is therefore particularly unfortunate both for the present and future of the German people that such a defense should be raised as it tends to create doubt when, if at all, the nations of the world can place reliance upon German international obligations.
Czechoslovakia.—On 16 October 1929, Germany entered into a treaty with Czechoslovakia, Article I of part 1 of which provides that all disputes of any kind between Germany and Czechoslovakia, which it may not be possible to settle amicably by normal means of diplomacy, should be submitted for decision either to an arbitral tribunal or to a permanent court of international justice, and it was agreed that the disputes referred to include those mentioned in Article XIII of the Covenant of the League of Nations.
On 11 and 12 March 1938 the Hitler government reassured Czechoslovakia that the developments in Austria would in no way have any detrimental influence upon the relations of the German Reich and that state, emphasizing the continued earnest endeavor on the part of Germany to improve those mutual relations. The Czechs were so assured by Goering who gave his "word of honor" and by von Neurath, then Foreign Minister, who officially assured the Czech Minister Mastny, on behalf of Hitler, that Germany still considered herself bound by the German-Czech Arbitration Convention concluded at Locarno in October 1925. Von Mackensen of the Foreign Office gave further assurances that the clarification of the Austrian situation would tend to improve German-Czechoslovakian relations.
Austria.—On 21 May 1935, Germany assured Austria that it neither intended nor wished to intervene in the domestic affairs of that state, or annex, or attach that country to her. On 11 July 1936 Hitler entered into an agreement with Austria containing among other things the provision that the German Government recognized the full sovereignty of the Federal State of Austria and in the sense of the pronouncement of the German Leader and Chancellor of 21 May 1935.
By the Treaty of Versailles, Article 40, Germany acknowledged and agreed to respect strictly the independence of Austria within the boundaries which might be fixed in the treaty between the states and the principal Allied and Associated Powers, and further agreed that this independence should be inalienable except by the consent of the Council of the League of Nations.
Poland.—On 16 October 1925 Germany, at Locarno, entered into a treaty with Poland which recited that the contracting parties were equally resolved to maintain peace between them by assuring the peaceful settlement of differences which might arise between the two countries, and declared that respect for the rights established by treaty or resulting from the law of nations was obligatory for international tribunals, that the rights of a state could not be modified save with its consent, and that all disputes of every kind between Germany and Poland, which it was not possible to settle amicably by normal methods of diplomacy, should be submitted for decision either to an arbitral tribunal or to an international court of justice.
On 26 January 1934 Germany and Poland signed a nonaggression pact which provided, among other things, that under no circumstances would either party proceed to use force for the purpose of settling disputes.
On 7 March 1936 Hitler announced: "We have no territorial demands to make in Europe." On 20 February 1938 Hitler in a speech said (2357-PS): |3|
"* * * in our relations with the state with which we had had perhaps the greatest differences not only has there been a detente, but in the course of years there has been a constant improvement in relations * * *. The Polish state respects the national conditions in this state and both the city of Danzig and Germany respect Polish rights. And so the way to an understanding has been successfully paved, an understanding which, beginning with Danzig, has today in spite of the attempts of many mischief-makers finally succeeded in taking the poison out of the relations of Germany and Poland and transforming them into a sincere and friendly cooperation."
On 26 September 1938, Hitler said (TC-73 (42)): |4|
"In Poland there ruled not a democracy, but a man, and with him I succeeded in precisely 12 months in coming to an agreement which, for 10 years, to begin with, entirely removed the danger of conflict. We are all convinced that this agreement will bring lasting pacification."
On 24 November 1938 Keitel issued orders based on Hitler's instructions of 21 October that preparations be made to enable German troops to occupy the Free City of Danzig by surprise.
Denmark and Norway.—On 31 May 1939 Germany and Denmark entered into a nonaggression pact in which they agreed that (TC-24, Pros. Ex. 202)—
"* * * in no case * * * [shall either country] resort to war or any other use of force, one against the other."
On 28 August 1939 the defendant von Weizsaecker assured the Danish Minister of Germany's intention to abide bv the terms of this pact.
On 2 September 1939 Germany assured Norway that in view of the friendly relations existing between them, it would under no circumstances prejudice the inviolability or neutrality of Norway, and on 6 October 1939 Germany again assured Norway that it had never had any conflicts of interest or even points of controversy with the northern states, "and neither has she any today," and that Sweden and Norway had both been offered nonaggression pacts and refused them solely because they did not feel themselves threatened in any way.
Belgium.—On 13 January 1937 Hitler stated that Germany had "and here I repeat, solemnly" given assurances time and again that, for instance, between Germany and France there cannot be any humanly conceivable points of controversy; that the German Government had given the assurance to Belgium and Holland that it was prepared to recognize and guarantee the inviolability of those territories. This was reiterated on 26 August 1939 and was against renewed on 6 October of that year. At that very time, by Hitler's order, the chiefs of the German Army were engaged in planning and preparing the invasions of these countries.
Yugoslavia.—On 28 April 1938 the German Government, through the defendant von Weizsaecker, stated that having become reunited with Austria, it would consider the frontiers of Italy, Yugoslavia, Estonia, Lichtenstein, and Hungary as inviolable, and that the Yugoslavian Government had been informed by authoritative German circles that Germany policy had no aims beyond Austria, and that the Yugoslavian frontier would, in no case, be assaulted. When in September 1939 Heeren, Minister to Yugoslavia, reported that there was increased anxiety there over Germany's military intentions and requested that some kind of announcement be made to alleviate local fears, the defendant von Weizsaecker replied that in view of Hitler's recent speech dcelaring that Germany's boundaries to the west and south were final, it would not appear necessary to say more unless new occasions for reissuing reassuring communiques to Yugoslavia should arise.
On 6 October 1939 Hitler gave Yugoslavia the following assurance (TC-A3, Pros. Ex. 262):
"After the completion of the Anschluss I informed Yugoslavia that from now on the boundaries with this country would also be an inviolable one, and that we only desire to live in friendship and peace with her."
What reliance could be placed on German pledges is revealed by the minutes of the Hitler-Ciano meeting of 12 August 1939 where Hitler stated (1871-PS, Pros. Ex. 260):
"Generally speaking, it would be best to liquidate the pseudoneutrals, one after another. This is fairly easily done if the Axis partner protects the rear of the other who is just finishing off one of the uncertain neutrals and vice versa. Italy might consider Yugoslavia such an uncertain neutral."
Russia.—On 23 August 1939 Germany entered into a nonaggression treaty with Russia, providing for arbitral commissions in case of any dispute, and on the same day entered into a secret protocol with the Soviet Union that in the event of a territorial and political rearrangement in the areas belonging to Latvia, Estonia, and Lithuania, the northern boundaries of Lithuania should represent the boundaries of spheres of influence between Germany and Russia, and that the spheres of Germany and Russia in Poland should be bound by the rivers Narew, Vistula, and San, and declared Germany's complete political disinterest in the Soviet claims in Bessarabia.
On 28 September 1939 Germany and the Soviet Union entered into a boundary and friendship agreement which divided Poland between them and fixed their mutual boundaries, and on the same date entered in a secret supplementary protocol which amended that of 23 August putting the Lithuanian state within the sphere of Soviet influence and Lublin and parts of Warsaw in the German sphere.
On the same day the two nations entered into a further agreement declaring that Germany and Russia would direct their common efforts jointly, and with other friendly powers if occasion arises, toward putting an end to the war between Germany and England and France, and that if these efforts remained fruitless, this failure would demonstrate the fact that England and France were responsible for the conditions of the war, and Germany and Russia would engage in mutual consultations with regard to necessary measures.
Such were the treaties. Nevertheless, as was found by the International Military Tribunal, as early as the late summer of 1940 Germany began to make preparations for an attack on the Soviets in spite of the nonaggression pact.
The German Ambassador in Moscow reported that the Soviet Union would go to war only if attacked. Russia had fulfilled not only its obligations under the political treaty, but those arising out of the commercial treaty.
The claim now made that Russia intended to attack Germany is without foundation. It expressed concern over the large German troop concentrations in Rumania which were of such size that the German explanation that they were intended to prevent the British from establishing a Salonikian front was obviously false, but there is no substantial evidence that Russia intended to attack Germany; its concern was that it might become the attacked.
In addition to all speeches, assurances, and treaties Germany nad signed the Kellogg-Briand Pact, which not only prescribed aggressive wars between nations, but abandoned war as an instrument of governmental policy and substituted conciliation and arbitration for it. One of its most important and far-reaching provisions was that it implicitly authorized the other nations of the world to take such measures as they might deem proper or necessary to punish the transgressor. In short, it placed theaggressor outside the society of nations. The Kellogg-Briand Pact, however, did not attempt to either prohibit or limit the right of self-defense, but it is implicit, both in its word and spirit, that he who violates the treaty is subject to disciplinary action on the part of the other signatories and that he who initiates aggressive war loses the right to claim self-defense against those who seek to enforce the Treaty. This was merely the embodiment in international law of a long-established principle of criminal law: |*| "* * * there can be no self-defense against self-defense."
The indictment charges that German aggression started with the forcible annexation of Austria. It is not urged that this action arose because of any fear of aggression by that state, or that it had planned or proposed to join any other state in any aggressive action against Germany. That Hitler planned to seize both Austria and Czechoslovakia without regard to the wishes of those people is clear from his statements made at the famous secret conferences of 5 November 1937 and 23 November 1939.
The Austro-Hungarian Empire was dissolved at the end of the First World War, and by the Treaty of Versailles [St. Germain] Austria became an independent and sovereign state. At that time, and at least during most of the time of the Weimar Republic, there was a strong desire on the part of Austria to join Germany.
Notwithstanding attempts to conceal ultimate objectives and palpable deceptive disclaimers by official Germany and by the Nazi Party of any desire to interfere in Austrian affairs, it became obvious that by fair means or foul the Hitler regime intended and proceeded to subsidize, direct, and control the Austrian members of the Party, and that these efforts were directed toward the annexation of the country. No agreement was made which was not violated; none were made with any intention to abide by them; and the same technique of propaganda, coercion, and violence was followed in Austria which had been successful in Germany. In the latter stages when it was felt that the plum was ripe and about to fall, and when the possible intervention of other powers still existed, a purported repudiation of Austrian radicals was put forth, not because of disapproval of what they were doing, but to camouflage the program.
While it is now asserted that an overwhelming majority of Austrians accepted and were enraptured by the Anschluss, neither Hitler nor his crew could contain themselves to await what they now term was the inevitable, nor run the hazard of a plebiscite, but Seyss-Inquart was forced on Schuschnigg and made Minister of the Interior where he could control the police, and finally an ultimatum was served on the Austrian Government, and the troops marched in. But before a German soldier crossed the border, armed bands of National Socialist SA and SS units under German control and orders and leaders had taken possession of the city of Vienna, seized the reins of government, and ousted the leaders of the Austrian state and placed them under guard.
In view of the size of the German Army, the disproportion inmanpower and military resources, no hope of successful resistance existed. Austria fell without a struggle and the Anschluss was accomplished. It was followed by the proscription, persecution, and internement in concentration camps of those who had resisted the Nazi movement, and the policy there pursued was identical with those which had followed the seizure of power in Germany.
That the invasion was aggressive and that Hitler followed a campaign of deceit, threats, and coercion is beyond question. The whole story is one of duplicity and overwhelming force. It was a part of a program declared to his own circle, and was the first step in the well-conceived and carefully planned campaign of aggression; Austria first, Czechoslovakia second, and Poland third, while visions of the further aggressive aggrandizement were dangled before the eyes of the German leaders. Neither these acts nor the invasion by German armed forces can be said to be pacific means or a peaceful and orderly process within the meaning of the preamble of the Kellogg-Briand Pact, and violated both its letter and spirit.
It must be borne in mind that the term "invasion" connotes and implies the use of force. In the instant cases the force used was military force. In the course of construction of this definition, we certainly may consider the word "invasion" in its usually accepted sense. We may assume that the enacting authorities also used the term in a like sense. In Webster's Unabridged Dictionary, we find the following definition of invasion:
"Invasion.—1. Act of invading, especially a warlike or hostile entrance into the possessions or domains of another; the incursion of an army for conquest or plunder."
The evidence with respect to both Austria and Czechoslovakia indicates that the invasions were hostile and aggressive. An invasion of this character is clearly such an act of war as is tantamount to, and may be treated as, a declaration of war. It is not reasonable to assume that an act of war, in the nature of an invasion, whereby conquest and plunder are achieved without resistance, is to be given more favorable consideration than a similar invasion which may have met with some military resistance. The fact that the aggressor was here able to so overawe the invaded countries, does not detract in the slightest from the enormity of the aggression, in reality perpetrated. The invader here employed an act of war. This act of war was an instrument of national policy. Tribunal V in Case 12 (the High Command case) |*| in the course of its judgment said:
"As a preliminary to that we deem it necessary to give a brief consideration to the nature and characteristics of war. We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body, against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war, as to the waging of defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.
"Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat." [Emphasis added.]
We hold that the invasion of Austria was aggressive and a crime against peace within the meaning of Control Council Law No. 10.
We have already quoted Hitler's words as to his plans regarding the Czechoslovakian state. The objectives were fixed but the tactics of accomplishment were elastic and depended upon the necessities and conveniences of time and circumstance. This was no more than the distinction between military strategy and tactics. Strategy is the over-all plan which does not vary. Tactics are the techniques of action which adjust themselves to the circumstances of weather, terrain, supply, and resistance. The Nazi plans to destroy the Czech state remained constant. But where, when, and how to strike depended upon circumstances as they arose.
The evidence establishes beyond all question or doubt that Germany, under Hitler, never made a promise which it intended to keep, that it promised anything and everything whenever it thought promises would lull suspicion, and promised peace on the eve of initiating war.
When in 1938 Germany invaded Austria it was in no danger from that state or its neighbors. When it had swallowed the Austrian Federal State, Germany moved against Czechoslovakia, using the question of the Sudeten Germans as a mere excuse for its demands at Munich. It completed its organization of and assumed even greater control over Henlein and his party, which it had secretly organized and subsidized, and directed him to reject any Czech efforts of composition and compromise and to constantly increase his demands.
At Munich it put forth demands for the annexation of the Sudetenland when theretofore it had not suggested it. Its Foreign Office had instructed its representatives to inform Lord Runciman that unless his report regarding the Sudeten question was favorable to the German wishes, dire international results would follow. After Munich it promised and declared that it had no further ideas of aggression against the remnants of the Czech state when, at the very moment, those plans were in existence, and were ready to be matured. It fomented, subsidized, and supported the Slovakian movement for independence in the face of its assurance of friendship with the Czechs. When Tiso seemed to hesitate, Hitler made it clear that unless this action was taken he would lose interest in the Slovakians. He summoned the aged and ill Hacha to Berlin and threatened his country with war and the destruction of its ancient capital, Prague, by aerial warfare. He started his armed forces on the march into Bohemia and Moravia before he had coerced Hacha into submission.
The announcement that its relations with Poland were excellent and that peace was assured came when plans for the invasion of Poland were already decided upon. It made nonaggression pacts, gave assurances to Denmark and Norway, at a time when the question of occupying these countries for the purpose of obtaining bases was being considered. It assured Holland, Belgium, and Luxembourg that it would respect their neutrality when it had already planned to violate it and only awaited a propitious moment so to do.
When Germany fomented and subsidized the Henlein Sudeten movement, it knew that Czechoslovakia desired peace and not war. It used the technique of agent provocateur, both in Czechoslovakia and again in Poland, to create incidents upon which it could seize as an excuse for military action.
Hitler's aggression against Russia was not induced by fear of attack, but because Russia had material resources for which Hitler hankered. How, at that time, any country could have had the slightest faith in Germany's word is beyond comprehension. The record is one of abyssmal duplicity which carried in its train death, suffering, and loss to practically every people in the world; it brought ruin to Germany and a world-wide distrust in the ability of its people to govern themselves as a peace-loving and useful nation. Because of this record the road back is long and arduous and beset with difficulty.
The attempt, which had been made to create the fiction and fable that the Third Reich acted in self-defense and was justified in its acts toward its neighbors, has no foundation and is, in fact, a disservice to the German people. We believe it is an effort to lay the ground work for a resurgence of the ideology which brought untold suffering to the world and ruin to the German nation.
Until the seizure of power, the Western World, on the whole, looked with sympathy and satisfaction on the efforts of the German people to regain the place in the family of nations to which it was entitled, and which it had lost. They suspected, even if they did not know, that Germany, from the very day that it signed the Versailles Treaty, had secretly violated its terms as to disarmament. But while suspicion of Germany's good faith existed in some circles, a strong hope and faith prevailed that the German nation would achieve a free and prosperous society.
It was the Nazi regime and its ready acceptance by the German people which brought the world to arms in defense against an ideology and a dictator whose programs and aims knew no bounds.
After having relied upon Germany's pledge at Munich and found it worthless, having observed the increasing demands upon and its intransigence toward Poland, it is not surprising that France and England found it necessary to enter into a treaty of assistance with Poland, and there is neither fact nor substance to the contention that that treaty gave Poland a blank check. Germany was so informed by France and England, as were the Poles.
No justification can, or has been, oftered for the invasion of Denmark, other than the pseudo one of military necessity. The Danes had maintained their neutrality and had given no offense to Germany. It was helpless and resistance hopeless as the gallant but futile resistance of the Palace Guards indicated. But as we shall hereafter discuss, military necessity is never available to an aggressor as a defense for invading the rights of a neutral.
Norway.—The defense insists that the invasion of Norway was justified because of French and British plans to land expeditionary forces there, in violation of Norwegian neutrality, and, therefore, Germany acted in self-defense. We may repeat the statement that having initiated aggressive wars, which brought England and France to the aid of the Poles, Germany forfeited the right to claim self-defense, but there are other and cogent facts which make this defense unavailable.
Long before the discovery of alleged British and French plans, and before any such plans existed, the Third Reich commenced to support and subsidize Quisling and his movement for the purpose of gaining control of the Norwegian Government and therefore of Norway. It made no inquiry whether Norway could or would protect its neutrality against Britain and France, and the German official documents disclose that it avoided such an approach and kept its plans secret because of the fear that the other neutral powers would intervene and institute discussions directed toward maintaining Norwegian neutrality and preventing that country from becoming a theatre of war. Finally the desirability of obtaining air and other bases in Norway was a motivating factor for the invasion and this was pointed out by Raeder and Doenitz as early as 3 October 1939.
We hold that the invasion of Norway was aggressive, that the war which Germany initiated and waged there was without lawful justification or excuse and is a crime under international law and Control Council Law No. 10.
Luxembourg.—No justification or excuse is offered regarding the invasion of Luxembourg other than military convenience. No claim is made that Luxembourg had in any way violated its neutrality. In fact, it had not. The German invasion was aggressive, without legal justification or excuse.
Belgium and the Netherlands.—That both of these nations were pathetically eager to avoid being drawn into the holocaust is established beyond doubt. That they had every reason to be distrustful of Germany's word is equally clear. The testimony offered by the defense discloses that when the Third Reich assured the Low Countries that it intended to, and would, observe its treaty obligations and had no hostile intentions, the intention to invade had already been determined upon and was only awaiting a favorable moment.
An attempt has been made to assert that the invasion of Belgium was justified because of conversations between the French and Belgian military staffs. The Belgian Government had been apprehensive for many months that Germany would use its territory as a means to attack the French flank. German preparations to invade Belgium had been matured long since and were hardly a secret. Belgium was properly concerned regarding her defense and possible aid if she were invaded, and her conversations with the French and English were addressed to this alone. Hitler's attack was without justification or excuse and constituted a crime against peace. As to Holland, there is even less ground for justification and excuse.
Yugoslavia and Greece.—Germany's Axis partner, Italy, initiated an aggressive attack against Greece which the defense does not attempt to justify, but asserts that this was undertaken without previous consultations or agreement with Hitler. This appears to be true. But Germany had been advised by its representatives in Rome of the imminence of the attack and its Foreign Office knew of Greek apprehensions regarding the same, and it intentionally displayed alleged ignorance and refused to take any action to prevent it. The German excuse for the attack on Greece is that England had landed certain troop elements in aid of Greece's defense against Italy and that as a matter of self-defense Germany was compelled to intervene, but an aggressor may not loose the dogs of war and thereafter plead self-defense.
The only justification offered for the German invasion of Yugoslavia is the coup d'état which overthrew the government which had signed the Anti-Comintern Pact, and the fear that Yugoslavia would remain neutral only until such time as it might join the ranks of Germany's enemies.
The unquestioned fact is that every country, and particularly those which lay along or near German boundaries, was fully aware that German actions in Austria, Czechoslovakia, and Poland were aggressive and unjustified, and that in attacking and invading, Hitler had broken not only the provisions of the Kellogg-Briand Pact, but the pledges which he had given to those countries; each fully disapproved of Germany's action and the question which lay in their minds was where the next blow would fall. We think there is no doubt whatsoever that every country in Europe, except its Axis partners, hoped for German defeat as the one insurance for its own safety, but such hopes cannot justify the German action against them.
The claim of self-defense is without merit. That doctrine is never available either to individuals or nations who are aggressors. The robber or the murderer cannot claim self-defense, in attacking the police to avoid arrest or those who, he fears, disapprove of his criminal conduct and hope that he will be apprehended and brought to justice.
The invasion of Austria, the invasion of Bohemia and Moravia, and the attack on Poland were in violation of international law and in each case, by resorting to armed force, Germany violated the Kellogg-Briand Pact. It thereby became an international outlaw and every peaceable nation had the right to oppose it without itself becoming an aggressor, to help the attacked and join with those who had previously come to the aid of the victim. The doctrine of self-defense and military necessity was never available to Germany as a matter of international law, in view of its prior violations of that law.
United States of America.—That the United States abandoned a neutral attitude toward Germany long before Germany declared war is without question. It hoped for Germany's defeat, gave aid and support to Great Britain and to the governments of the countries which Germany had overrun. Its entire course of conduct for over a year before 11 December 1941 was wholly inconsistent with neutrality and that it had no intention of permitting Germany's victory, even though this led to hostilities, became increasingly apparent. However, in so doing, the United States did not become an aggressor; it was acting within its international rights in hampering and hindering with the intention of insuring the defeat of the nation which had wrongfully, without excuse, and in violation of its treaties and obligations embarked on a coldly calculated program of aggression and war. But such intent, purpose, and action does not remove the aggressive character of the German declaration of war of 11 December 1941.
A nation which engages in aggressive war invites the other nations of the world to take measures, including force, to halt the invasion and to punish the aggressor, and if by reason thereof the aggressor declares war on a third nation, the original aggression carries over and gives the character of aggression to the second and succeeding wars.
We hold that the invasions and wars described in paragraph two of the indictment against Austria, Czechoslovakia, Poland, the United Kingdom and France, Denmark and Norway, Belgium, the Netherlands, and Luxembourg, Yugoslavia and Greece, the Union of Soviet Socialist Republics, and the United States of America were unlawful and aggressive, violated international law, and were crimes within the definition of the London Charter and Control Council Law No. 10.
Our task is to determine which, if any, of the defendants, knowing there was an intent to so initiate and wage aggressive war, consciously participated in either plans, preparations, initiations of those wars, or so knowing, participated or aided in carrying them on. Obviously, no man may be condemned for fighting in what he believes is the defense of his native land, even though his belief be mistaken. Nor can he be expected to undertake an independent investigation to determine whether or not the cause for which he fights is the result of an aggressive act of his own government. One can be guilty only where knowledge of aggression in fact exists, and it is not sufficient that he have suspicions that the war is aggressive.
Any other test of guilt would involve a standard of conduct both impracticable and unjust.
Criminal responsibility.—Article II, paragraph 2, of Control Council Law No. 10, provides that —
"Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein * * *."
Therefore, all those who were either principals or accessories before or after the fact, are criminally responsible, although the degree of criminal responsibility may vary in accordance with the nature of his acts.
Under the provisions of paragraph 4 (b), Article II —
"The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
In the realm of the ordinary criminal law, one who conceals the fact that a crime has been committed or gives false testimony as to the facts for the purpose of giving some advantage to the perpetrator, not on account of fear but for the sake of an advantage to the accused, is an accessory after the fact. Under English criminal law, one who destroys or suppresses evidence of a crime or manufactures evidence tending to prove the felon's innocence is likewise an accessory after the fact. |*|
1. The judgment was read in open Court on 11-13 April 1949 and is recorded in the mimeographed transcript, pages 28086-28803. Just before the reading of the judgment, Presiding Judge Christianson said "The Tribunal will file the original of such judgment with the Secretary General, and the original copy as filed shall constitute the official judgment record of this case." (Tr. p. 28086.) The judgment as reproduced herein is taken from the record copy filed with the Secretary General. [Back]
3. This document was introduced in evidence in the IMT trial as Exhibit GB-30, and the German text is reproduced in part in Trial of the Major War Criminals, op. cit., volume XXX, pages 285 and following. [Back]
*. American Jurisprudence (Bancroft-Whitney Co., San Francisco. Calif., Lawyers' Cooperative Publishing Co., Rochester, N.Y., 1938), Criminal Law, volume 14, paragraphs 103 and 104, pages 837 and 838. [Back]
Source: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Volume XV, Nuernberg, October 1946-April 1949, Washington, DC : United States Government Printing Office, 1952, pp. 314-337.
Editorial Note: This is a true copy of an extract (pp. 314-337) of "Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Volume XV", as referenced above. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 22.
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