The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
7th January to 19th January, 1946

Thirty-sixth Day: Thursday, January 17th, 1946
(Part 8 of 10)


[Page 369]

Then came the war of 1914. Imperial Germany waged the first World War with a brutality perhaps less systematic and frenzied than that of the National Socialist Reich, but just as deliberate. The deportation of workers, looting of public and private property, the taking and killing of hostages, the demoralisation of the occupied territories constituted, in 1914 as in 1939, the political methods of German warfare.

The Treaty of Versailles was based on The Hague Convention in order to establish the suppression of War Crimes. Under the title "Sanctions," Charter VII, of the Treaty of Versailles discusses criminal responsibility incurred in the launching and waging of the conflict, which was then the Great War. Article 227 accused William of Hohenzollern, previously Emperor of Germany, of a supreme offence against international morality and against the sacred character of treaties. Article 228 acknowledged the right of the Allied and Associated Powers to bring persons guilty of acts contrary to the laws and customs of war before military tribunals.

Article 229 provided that criminals whose acts were not of precise geographical location were to be referred to the inter-allied jurisdiction. The

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provisions of the Treaty of Versailles were repeated in the conventions which were signed in 1919 and 1920 with the powers allied with Germany, in particular in the Treaty of Saint-Germain and in that of Neuilly. That is how the idea of War Crime was affirmed in International Law. The peace treaties of 1919 not only defined the concept of infringement; they formulated the terms of its suppression. The defendants were aware of this, just as they were aware of the warnings of the Governments of the United Nations. They no doubt hoped that the repetition of the factual circumstances which hampered the punishment of the criminals in 1914 would permit them to escape their just punishment. Their presence before this Tribunal is the symbol of the constant progress which International Law is making in spite of all obstacles.

International Law had given a still more precise definition of the term "War Crime." This definition was formulated by the Commission which the preliminary peace conference appointed on 25th January, 1919, to disentangle the various responsibilities incurred in the course of the war. The report of the Commission of Fifteen of 29th March, 1919, constitutes the historical basis of Article 227 and following of the Treaty of Versailles. The Commission of Fifteen based its investigation of criminal responsibilities on an analysis of the crimes liable to involve them.

A material element enters into the juridical settlement of any infraction. Its definition is, therefore, the more precise as it includes an enumeration of the facts which it encompasses. That is why the Commission of Fifteen set up a list of War Crimes. This list includes 32 infractions. These are particularly:

Murders, massacres, systematic terrorism.
Killing of hostages.
Torture of civilians.
Burying of civilians in inhuman conditions.
Forced labour of civilians in connection with military operations of the enemy.
Usurpation of sovereignty during the occupation of occupied territories.
Forced conscription of soldiers among the inhabitants of the occupied territories.
Attempts to denationalise the inhabitants of occupied territories.
Confiscation of property.
Imposition of collective fines.
Wilful devastation and destruction of property.
Violation of other rules concerning the Red Cross.
Ill-treatment of wounded and prisoners of war.
Use of prisoners of war for unauthorised work.
This list, which already includes the grievances against the defendants enumerated in the Indictment and from which we have just quoted a few facts, is significant because the War Crimes which it encompasses all present a composite character. They are crimes against both International Law and national law. Some of these crimes constitute attacks on the fundamental liberties and constitutional rights of peoples and of individuals; they consist in the violation of public guarantees which are recognised by the constitutional Charter of the Nations whose territories were occupied; violation of the principles of liberty, equality and fraternity which France proclaimed in 1789 and which the civilised States guarantee in perpetuity. These War Crimes are violations of public national law, since they represent a systematic refusal of acknowledgement of all respective rights of both occupying and occupied Power; but they also may be analysed as violations of public national law, since they mean forcibly transforming the constitutional institutions of the occupied territories and the juridical statute of their inhabitants.

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More numerous are crimes which constitute attacks on the integrity of the physical person and of property.

They are allied with war law regulations and include violations of International Law and customs.

But the international conventions, it should be remarked, determine the elements constituting an infraction more than they actually establish that infraction itself. The latter existed before in all national legislatures; it was to some extent a part of the juridical inheritance common to all nations; Governments agreed to affirm its international character and to define its contents. International Penal - Law is thus superimposed on national law, which preserves its repressive basis because the War Crime remains, after all, a crime of Common Law. National penal law gives the definition of this. All the acts referred to in Article 6 of the Charter of 8th August, 1945, all the facts encompassed by the Third Count of the Indictment of 18th October, 1945, correspond to the infractions of Common Law provided for and punished by national penal legislation. The killing of prisoners of war, of hostages, and of inhabitants of occupied territories falls, in French law, under Article 295 and following of the Penal Code, which define murder and assassination. The mistreatment to which the Indictment refers would come under the heading of bodily injuries caused intentionally or through negligence, which are defined by Article 309 and following. Deportation is analysed, independently of the murders which accompany it, as arbitrary restraint, which is defined by Articles 341 and 344. Pillage of public and private property and imposition of collective fines are penalised by Article 221 and the following of Military Code of Justice. Article 434 of the Penal Code punishes voluntary destruction, and the deportation of civilian workers may be compared with the forced conscription provided for by Article 92. The oath of allegiance is equivalent to the exaction of a false oath in Article 366, and the Germanisation of occupied territories may be applied to a number of crimes, the most obvious of which is forced incorporation in the Wehrmacht in violation of Article 92. The same equivalents can be found in all modem legislative systems and particularly in German law.

The crimes against persons and property, of which the defendants are guilty, are provided for by all national laws. They present an international character because they were committed in several different countries; from this there arises a problem of jurisdiction of competency which the Charter of 8th August, 1945, has solved as we have previously explained; but this leaves intact the rule of definition.

A crime of Common Law, the War Crime, is, nevertheless, not an ordinary infraction; it has a character peculiarly intrinsic - it is a crime committed on the occasion or under the pretext of war. It must be punished because, even in time of war, attacks on the integrity of the physical person and of property are crimes if they are not justified by the laws and customs of war. The soldier who on the battlefield kills an enemy combatant commits a crime, but this crime is justified by the law of war. International Law, therefore, intervenes in the definition of a War Crime, not in order to give it its essential qualification but in order to fix its outer limits. In other words, every infraction committed on the occasion or under the pretext of hostilities is criminal unless justified by the laws and customs of war. International Law applies the national theory of legitimate defence which is common to all codes of criminal law. The combatant is engaged in legitimate defence on the battlefield; his homicidal action is therefore covered by a justifying fact. But if this justifying fact is taken away the infraction, whether ordinary crime or War Crime remains such in its entirety. To establish the justifying fact, the criminal action must be necessary and proportional to the threat to which it responds. The

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defendants, against whom justice is demanded of you, can plead no such justification.

Nor can they escape their responsibility by arguing that they were not the physical authors of the crimes. The War Crime involves two responsibilities, distinct and complementary, that of the physical author and that of the instigator. There is nothing heterodox in this conception. It is the faithful representation of the criminal theory of complicity through instructions. The responsibility of the accomplice, whether independent or complementary to that of the principal author, is incontestable. The defendants bear the entire responsibility for the crimes which were committed upon their instructions or under their control.

Finally, they cannot be justified by the pretext that an order from above was given by Hitler to the defendants. The theory of the justifying fact of an order from above has, in national law, definite fixed limits; it does not cover the execution of orders whose illegality is manifest. German law, moreover, assigns only a limited rule to the concept of justification by orders from above. Article 47 of the German Military Code of Justice of 1940, although maintaining in principle that a criminal order from a superior removes the responsibility of the agent, punishes the latter as an accomplice when be exceeded the orders received or when he acted with knowledge of the criminal character of the act which had been ordered. Goebbels once made this juridical concept the theme of his propaganda. On 28th May, 1944, he wrote in an article in the "Volkischer Beobachter" which was submitted to you by the American Prosecution, an article intended to justify the murder of Allied pilots by German mobs:

"The pilots cannot validly claim that as soldiers they obeyed orders. No law of war provides that a soldier will remain unpunished for a hateful crime by referring to the orders of his superior, if their orders are in striking opposition to all human ethics, to all international customs in the conduct of war."
Orders from a superior do not exonerate the agent of a manifest crime from responsibility. Any other solution would, moreover, be unacceptable, for it would testify to the impotence of all repressive policy.

All the more reason why orders from above cannot be the justifying fact for the crimes of the defendants. Sir Hartley Shawcross told you with eloquence that the accused cannot claim that the Crime against Peace was the doing of Hitler alone and that they limited themselves to transmitting the general directives. War Crimes may be compared to the will for aggression; they are the common work of the defendants; the defendants bear a joint responsibility for the criminal policy which resulted from the National Socialist doctrine.

The responsibility for German war criminality, because it constituted a systematic policy, planned and prepared before the opening of hostilities, and perpetrated without interruption from 1940 to 1945, rests with all the defendants, political or military leaders, high officials of National Socialist Germany, and leaders of the Nazi Party.

Nevertheless, some among them appear more directly responsible for the acts taken as a whole, particularly those facts connected with the French charges, that is to say, crimes committed in the Western occupied territories or against the nationals of those countries. We shall cite:

The defendant Goering as Director of the Four Year Plan and President of the Cabinet of Ministers for Reich Defence, the defendant Ribbentrop in his capacity as Minister of Foreign Affairs in charge of the administration of occupied countries, the defendant Frick in his capacity as Director of the Central Office for occupied territories, the defendant Funk in his capacity as Minister of Reich Economy,

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the defendant Keitel, inasmuch as he had command over the occupation armies, the defendant Jodl, associated in all the responsibilities of the preceding defendant, the defendant Seyss-Inquart in his capacity as Reich Commissar for the occupied Dutch territory from 13th May, 1940, to the end of the hostilities.

We will examine more particularly among these defendants, or among others, those responsible for each category of acts, it being understood that this enumeration is in no wise restrictive.

The defendant Sauckel bears the chief responsibility for compulsory labour in its various forms. As Plenipotentiary for Labour, he carried out the intensive recruiting of workers by every possible means. He is in particular the signer of the decree of 22nd August, 1942, which constitutes the charter for compulsory labour in all occupied countries. He worked in liaison with the defendant Speer, Chief of the Todt Organisation, as General Plenipotentiary for Armament in the office of the Four Year Plan, as well as with the defendant Funk, Minister of Reich Economy, and with the defendant Goering, Chief of the Four Year Plan.

The defendant Goering participated directly in economic looting in the same capacity. He appears to have often sought and derived a personal profit from it. The defendant Ribbentrop in his capacity as Minister of Foreign Affairs was no stranger to these acts. The defendant Rosenberg, organiser and Chief of the "Einsatzstab Rosenberg," is particularly guilty of the looting of works of art in the occupied countries.

The chief responsibility for the murders of hostages lies with the defendant Keitel, the drafter notably of the general order of 16th September, 1941, with his assistant the defendant Jodl, and with the defendant Goering who agreed to the order in question.

The defendant Kaltenbrunner, Himmler's direct associate and chief of all the foreign police and security offices, is directly responsible for the monstrous devices to which the Gestapo had recourse in all occupied countries, devices which are only the continuation of the methods originated in the Gestapo by its founder in Prussia, the defendant Goering.

The defendant Kaltenbrunner is likewise directly responsible for the crimes committed in deportation. Moreover, he visited these camps of deportation, as will be proved by the French delegation in the case of the Mauthausen Camp. The defendant Goering knew of and gave his approval to the medical experiments made on prisoners. The defendant Sauckel forced prisoners by every possible means to work under conditions which were often inhuman, for the German war production.

The defendant Keitel and his assistant the defendant Jodl are responsible for treatment contrary to the laws of war inflicted upon war prisoners, for murders and killings to which they were subjected, as well as for handing over great numbers of them to the Gestapo. The defendant Goering shares their responsibility for the execution of Allied aviators and soldiers belonging to the Commando groups. The defendant Sauckel directed the work of war prisoners for the German war production in violation of International Law.

The defendant Keitel and the defendant Kaltenbrunner share the chief responsibility for the terrorist actions carried out jointly by the German Army and the police forces in the various occupied countries and notably in France against the Resistance, as well as for the devastations and massacres carried out against the civilian population of several French Departments. The defendant Jodl shares in this responsibility, most particularly through his initial order, "Fight Against Partisan Bands," dated 6th May, 1945, which provides for "collective measures against the inhabitants of entire villages." These blows against mankind are the result of racialist theories of which the defendant Hess,

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the defendant Rosenberg, and the defendant Streicher are among the instigators or propagandists. The defendant Hess participated notably in the elaboration of this subject, which is found in "Mein Kampf."

The defendant Rosenberg, one of the principal theorists of racial doctrine, exercised the function of special delegate for the spiritual and ideological training of the Nazi Party. The defendant Streicher showed himself to be one of the most violent anti-Semitic agitators. In the execution of the policy of Germanisation and Nazification responsibility is shared between the Ministry of Foreign Affairs, that is to say, the defendant Ribbentrop, the General Staff, i.e., the defendants Keitel and Jodl, and the Central Office for all the occupied territories, i.e., the defendant Frick.

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