Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-187.12
Last-Modified: 2000/10/19

So the crime against the Jews, in so far as it is a crime
against humanity and not a war crime as well, is one which
we indict because of its close association with the crime
against the peace. That it is, of course, a very important
qualification on the Indictment of the crimes against
humanity is not always appreciated by those who have
questioned the exercise of this jurisdiction. But subject to
that qualification we have thought it right to deal with
matters which the criminal law of all countries would
normally stigmatise as crimes. Murder, extermination,
enslavement, persecution on political, racial or economic
grounds. These things done against belligerent nationals or,
for that matter, done against German nationals in
belligerent occupied territory would be ordinary war crimes
the prosecution of which would form no novelty. Done against
others they would be crimes against national law except in
so far as German law, departing from all the canons of
civilised procedure, may have authorized them to be done by
the State or by persons acting on behalf of the State.
Although so to do does not in any way place those defendants
in greater jeopardy than they would otherwise be, the
nations adhering to the Charter of this Tribunal have felt
it proper and necessary in the interest of civilisation to
say that these things even if done in accordance with the
laws of the German State, as created and ruled by these men
and their ringleader, were, when committed with the

                                                  [Page 432]

intention of affecting the international community - that is
in connection with the other crimes charged - not mere
matters of domestic concern but crimes against the Law of
Nations: I do not minimise the significance for the future
of the political and jurisprudential doctrine which is here
implied. Normally International Law concedes that it is for
the State to decide how it shall treat its own nationals; it
is a matter of domestic jurisdiction. And although the
Social and Economic Council of the United Nations
Organization is seeking to formulate a charter of the Rights
of Man, the Covenant of the League of Nations and the
Charter of the United Nations Organization does recognize
that general position. Yet International Law has in the past
made some claim that there is a limit to the omnipotence of
the State and that the individual human being, the ultimate
unit of all law, is not disentitled to the protection of
mankind when the State tramples upon his rights in a manner
which outrages the conscience of mankind. Grotius, the
founder of International Law, had some notion of that
principle when - at a time when the distinction between the
just and the unjust war was more clearly accepted than was
the case in the nineteenth century - he described as just a
war undertaken for the purpose of defending the subjects of
a foreign State from injuries inflicted by their ruler. He
affirmed, with reference to atrocities committed by tyrants
against their subjects, that intervention is justified for
"the right of social connection is not cut off in such a
case". The same idea was expressed by John Westlake, the
most distinguished of British international lawyers, when he
said:

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

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

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

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

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

  "The Bolshevist soldier has therefore lost all claim to
  treatment as an honourable opponent in accordance with
  the Geneva Convention .... The order for ruthless and
  energetic action must be given at the slightest
  indication of

                                                  [Page 433]

  insubordination, especially in the case of Bolshevist
  fanatics. Insubordination, active or passive resistance
  must be broken immediately by force of arms (bayonets,
  butts and firearms) ... anyone carrying out the order who
  does not use his weapons or does so with insufficient
  energy is punishable ... prisoners of war attempting to
  escape are to be fired on without previous challenge. No
  warning shot must ever be fired ... the use of arms
  against prisoners of war is, as a rule, legal ... camp
  police must be formed of suitable Soviet prisoners of war
  in the camp ... within the wire fence the camp police may
  be armed with sticks, whips or other similar weapons to
  enable them to carry out their duties effectively."

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

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

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

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

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

Any possible doubt that Keitel knew that the transfer to the
Security Police and SD was intended to mean liquidation can
hardly survive study of that document. Canaris writes of the
screening, as it is called, of the undesirables:

  "The decision over their fate is effected by the action
  detachments of the Security Police and the SD,"

on which Keitel, underlining Security Police, comments "very
efficient" whilst on the further criticism by Canaris that
the principles of their decision are unknown to the
Wehrmacht authorities, Keitel comments, "not at all".

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

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

It is not necessary to remind you of the volume of evidence
with regard to the numbers of Soviet and Polish prisoners in
concentration camps. Their treatment

                                                  [Page 434]

needs no further reminder than the report by the Commandant
of Gross Rosen concentration camp who on 23rd October, 1941,
reports the shooting of twenty Russian prisoners between
five and six o'clock that day, and Muller's circular from
the same file, which states:

  "The commandants of the concentration camps are
  complaining that five to ten per cent of the Soviet
  Russians destined for execution are arriving in the camps
  dead or half-dead. Therefore the impression has arisen
  that the Stalags are getting rid of such prisoners in
  this way.
  
  It was particularly noted that when marching, for example
  from the railroad station to the camp, a rather large
  number of P.O.W.s collapsed on the way from exhaustion,
  either dead or half-dead, and had to be picked up by a
  truck following the convoy.
  
  It cannot be prevented that the German people take notice
  of these occurrences."

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

I go on:

  "Even if the transportation to the camps is generally
  taken care of by the Wehrmacht, the population will still
  attribute this situation to the SS. In order to prevent,
  if possible, similar occurrences in the future, I
  therefore order that, effective from today on, Soviet
  Russians declared definitely suspect and obviously marked
  by death (for example with typhus) and who therefore
  would not be able to withstand the exertions of even a
  short march on foot, shall in the future, as a matter of
  basic principle, be excluded from the transport to the
  concentration camp, and executed.
  
  I request that the leaders of the Einsatz Kommandos be
  correspondingly informed of this decision without delay."

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

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

Goering's participation is a matter of inevitable inference
from the following three facts:

First: The order was given by Hitler.

Second: Westhoff, of the Prisoner-of-War Organization of the
OKW, says he was informed by Keitel that Goring had blamed
him for the escape at the meeting at which the order was
decided upon.

Third: In Goering's own Ministry, which was responsible for
the treatment of R.A.F. prisoners of war, Walde heard of the
order on 28th March at the meeting of executives and told
General Grosch Grosch informed Foerster, who went straight
to Milch, Goering's Chief of Staff, and returned to inform
Grosch that Milch had been told, and had made the necessary
notes.

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

                                                  [Page 435]

Keitel admits that Hitler ordered transfer to the SD and
that he "was afraid" they might be shot. He told his
officers Gravenitz and Westhoff:

  "We must set an example. They will be shot - probably
  some have been shot already."

And when Gravenitz protested he replied: "I don't care a
damn."

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

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

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

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

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

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

Finally Keitel's note on the file:

  "I am against legal procedure. It does not work out."

Similar evidence is provided when we consider the attitude
taken up in February, 1945, when Hitler wished to renounce
the Geneva Convention. Donitz advised that "it would be
better to carry out measures considered necessary without
warning and at all costs to save face with the outside
world" - a decision with which Jodl and Ribbentrop's
representative agreed. Their defence that this was merely a
technical measure, and that they did not in fact intend any
concrete action, is disposed of by Jodl's memorandum on the
whole question:

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

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

Would this be a convenient place?

                                                  [Page 436]

THE PRESIDENT: Yes, Mr. Attorney. Would it be convenient to
you to sit at 9.45 in the morning? The Tribunal anticipates
in these circumstances we might be able to finish at one
o'clock or shortly afterwards. In any event, we would sit on
in order to finish.

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

(The Tribunal adjourned until 27th July, 1946, at 0945 hours.)

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