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Last-Modified: 1999/09/03

4. CRIMES IN THE CONDUCT OF WAR

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

It was ordered that captured English and American airmen
should no longer be granted the status of prisoners of war.
They were to be treated as criminals and the Army was
ordered to refrain from protecting them against lynching by
the populace (R-118). The Nazi Government, through its
police and propaganda agencies, took pains to incite the
civilian population to attack and kill airmen who crash-
landed. The order, given by the Reichsfuehrer S.S., Himmler,
on 10th August, 1943, directed that:

   It is not the task of the police to interfere in clashes
  between German and English and American fliers who have
  bailed out."

This order was transmitted on the same day by S.S.
Obersturmbannfuehrer Brandof, Himmler's Personal Staff to
all Senior Executive S.S. and Police Officers, with these
directions:

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

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

This Nazi campaign of ruthless treatment of enemy forces
assumed its greatest proportions in the fight against
Russia. Eventually all prisoners of war were taken out of
control of the Army and put in the hands of Himmler and the
S.S. (058-PS.) In the East, the German fury spent itself.
Russian prisoners of war were ordered

                                                   [Page 75]

to be branded. They were starved. I shall quote passages
from a letter written 28th February, 1942, by defendant
Rosenberg to defendant Keitel:

   " The fate of the Soviet prisoners of war in Germany is,
   on the contrary, a tragedy of the greatest extent. Of
   3,600,000 prisoners of war, only several hundred
   thousand are still able to work fully. A large part of
   them has starved, or died, because of the hazards of the
   weather. Thousands also died from spotted fever.
   
   The camp commanders have forbidden the civilian
   population to put food at the disposal of the prisoners,
   and they have rather let them starve to death.
   
   In many cases, when prisoners of war could no longer
   keep up on the march because of hunger and exhaustion,
   they were shot before the eyes of the horrified
   population, and the corpses were left.
   
   In numerous camps, no shelter for the prisoners of war
   was provided at all.
   
   They lay under the open sky during rain or snow. Even
   tools were not made available to dig holes or caves.
   
   Finally, the shooting of prisoners of war must be
   mentioned; for instance, in various camps, all the
   'Asiatics' were shot." (081-PS.)

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

We deal here with a phase of common criminality designed by
the conspirators as part of the Common Plan. We can
appreciate why these crimes against their European enemies
were not of a casual character but were planned and
disciplined crimes when we get at the reason for them.
Hitler told his officers on 22nd August, 1939, that "The
main objective in Poland is the destruction of the enemy and
not the reaching of a certain geographical line." (1014-PS.)
Those words were quoted. The project of deporting promising
youth from occupied territories was approved by Rosenberg on
the theory that "a desired weakening of the biological force
of the conquered people is being achieved." (03I-PS) To
Germanise or to destroy was the programme. Himmler
announced, "Either we win over any good blood that we can
use for ourselves and give it a place in our people, or,
gentlemen - you may call this cruel, but nature is cruel -
we destroy this blood." As to "racially good types" Himmler
further advised, "Therefore, I think that it is our duty to
take their children with us, to remove them from their
environment, if necessary, by robbing or stealing them." (L-
90.) He urged deportation of Slavic children to deprive
potential enemies of future soldiers.

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

Hostages in large numbers were demanded and killed. Mass
punishments were inflicted, so savage that whole communities
were extinguished. Rosenberg was advised of the annihilation
of three unidentified villages in Slovakia. In May of 1943,
another village of about 40 farms and 220 inhabitants was
ordered to be wiped out. The entire population was ordered
to be shot, the cattle and property impounded, and the order
required that "the village will be destroyed totally by
fire." A secret report from Rosenberg's Reich Ministry of
Eastern territory, where he was responsible reveals that:

  "Food rations allowed to the Russian population are so
  low that they fail to secure their existence and provide
  only for minimum subsistence of limited
  
                                                   [Page 77]
  
  duration. The population does not know if they will still
  live. They are faced with death by starvation.
  
  The roads are clogged by hundreds of thousands of people,
  sometimes as many as one million according to the
  estimate of experts, who wander around in search of
  nourishment.
  
  Sauckel's action has caused great unrest among the
  civilians. Russian girls were deloused by men, nude
  photos in forced positions were taken, women doctors were
  locked into freight cars for the pleasure of the
  transport commanders, women in night shirts were fettered
  and forced through the Russian towns to the railroad
  station, etc. All this material has been sent to the
  OKH."

Perhaps the deportation to slave-labour was the most
horrible and extensive slaving operation in history. On few
other subjects is our evidence so abundant and so damaging.
In a speech made on 25th January, 1944, the defendant Frank,
Governor-General of Poland, boasted: "I have sent 1,200,000
Polish workers into the Reich." The defendant Sauckel
reported that "out of the five million foreign workers who
arrived in Germany, not even 200,000 came voluntarily." This
fact was reported to the Fuehrer and to the defendants
Speer, Goering, and Keitel. (R-124) Children of 10 to 14
years were impressed into service by telegraphic order of
Rosenberg's Ministry for the Occupied Eastern Territories:

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

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

  "All prisoners of war, from the territories of the West
  as well as of the East, actually in Germany, must be
  completely incorporated into the German armament and
  munition industries. Their production must be brought to
  the highest possible level."
  
  The complete employment of prisoners of war as well as
  the use of a gigantic  number of new civilian workers,
  men and women, has become an undisputable necessity for
  the solution of the mobilisation of labour programme in
  this war.
  
  All the men must be fed, sheltered and treated in such a
  way as to exploit them to the highest possible extent at
  the lowest conceivable degrees of expenditure.."(016-PS.)

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

There was carefully planned economic siphoning off of the
assets of occupied countries. An example of the planning is
shown by a report on France dated 7th December, 1942, made
by the Economic Research Department of the Reichsbank. The
question arose whether French occupation costs should be
increased from 15 million Reichsmarks per day to 25 million
Reichsmarks per day. The Reichsbank analysed French economy
to determine whether it could bear the burden. It pointed
out that the armistice had burdened France to that date to
the extent of 18 1/4 billion Reichsmarks, equalling 370
billion Francs. It pointed

                                                   [Page 77]

out that the burden of these payments within two and a half
years equalled the aggregate French national income in the
year 1940, and that the amount of payments handed over to
Germany in the first six months of 1942 corresponded to the
estimate for the total French revenue for that whole year.
The report concluded, "In any case, the conclusion is
inescapable that relatively heavier tributes have been
imposed on France since the armistice in June, 1940, than
upon Germany after the First World War. In this connection,
it must be noted that the economic powers of France never
equalled those of the German Reich, and that the vanquished
France could not draw on foreign economic and financial
resources in the same degree as Germany after the First
World War."

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

It is small wonder that the bottom had been knocked out of
French economy. The plan and purpose of the thing appears in
a letter from General Stupnagel, head of the German
Armistice Commission, to the defendant Jodl as early as 14th
September, 1940, when he wrote: "The slogan 'Systematic
weakening of France' has already been surpassed by far in
reality."

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

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

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

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

I shall not go into further details of the War Crimes and
Crimes against Humanity committed by the Nazi gangster ring
whose leaders are before you. It is not the purpose in my
part of this case to deal with the individual crimes. I am
dealing with the Common Plan or design for crime and will
not dwell on individual offences. My task is to show the
scale on which those crimes occurred,

                                                   [Page 78]

and to show that these are the men who were in the
responsible positions and who conceived the plan and design
which renders them answerable, regardless of the fact that
the plan was actually executed by others.

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

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

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

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

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

While this declaration of the law by the Charter is final,
it may be contended

                                                   [Page 79]

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

I cannot, of course, deny that these men are surprised that
this is the law; they really are surprised that there is any
such thing as law. These defendants did not rely on any law
at all. Their programme ignored and defied all law. That
this is so will appear from many acts and statements, of
which I cite but a few. In the Fuehrer's speech to all
military commanders on 23rd November, 1939, he reminded them
that at the moment Germany had a pact with Russia, but
declared "Agreements are to be kept only as long as they
serve a certain purpose." Later in the same speech lie
announced "A violation of the neutrality of Holland and
Belgium will be of no importance." (789-PS.) A Top Secret
document, entitled " Warfare as a Problem of Organisation,"
dispatched by the Chief of the High Command to all
Commanders on 19th April, 1938, declared that "the normal
rules of war toward neutrals must be considered to apply on
the basis whether operation of these rules will create
greater advantages or disadvantages for the belligerents. (L-
211.) And from the files of the German Navy Staff, we have a
"Memorandum on Intensified Naval War," dated 15th October,
1939, which begins by stating a desire to comply with
International Law. "However," it continues, "if decisive
successes are expected from any measure considered as a war
necessity, it must be carried through even if it is not in
agreement with International Law." (L-184) International
Law, Natural Law, German Law,  any law at all was to these
men simply a propaganda device to be invoked when it helped
and to be ignored when it would condemn what they wanted to
do. That men may be protected in relying upon the law at the
time they act is the reason we find laws of retrospective
operation unjust. But these men cannot bring themselves
within the reason of the rule which in some systems of
jurisprudence prohibits ex post facto laws. They cannot show
that they ever relied upon International Law in any state or
paid it the slightest regard.

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

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

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

Of course, it was, under the law of all civilised peoples, a
crime for one man with his bare knuckles to assault another.
How did it come about that multiplying this crime by a
million, and adding fire-arms to bare knuckles, made it a
legally innocent act ? The doctrine was that one could not
be regarded as criminal for committing the usual violent
acts in the conduct of legitimate warfare. The age of

                                                   [Page 80]

imperialistic expansion during the eighteenth and nineteenth
centuries added the foul doctrine, contrary to the teachings
of early Christian and International Law scholars such as
Grotius, that all wars are to be regarded as legitimate
wars. The sum of these two doctrines was to give war-making
a complete immunity from accountability to law.

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

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

The re-establishment of the principle that there are unjust
wars and that unjust wars are illegal is traceable in many
steps. One of the most significant is the Briand-Kellogg
Pact of 1928, by which Germany, Italy and Japan, in common
with practically all nations of the world, renounced war as
an instrument national policy, bound themselves to seek the
settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international
controversies. This pact altered the legal status of a war
of aggression. As Mr. Stimson, the United States Secretary
of State put it in 1932, such a war "is no longer to be the
source and subject of rights. It is no longer to be the
principle around which the duties, the conduct, and the
rights of nations revolve. It is an illegal thing.. By t. we
have made obsolete many legal precedents and have given the
legal profession the task of re-examining many of its codes
and treaties."

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