We cannot believe that the Tribunal is sole audience to which this argument is addressed. We think it quite likely that an equally important purpose has been to put these anarchistic and nihilistic views on the record for like minded people to read in future years. For the most part these so-called "arguments" embody their own refutation. It will be a sad day for the world if they are ever taken at face value.
In closing this case, therefore, we plan to devote most of the short time we will consume to a discussion of these fundamental questions with respect to the content and nature of the laws of war and international penal law. There is absolutely no need at this time to review the evidence again with respect to the individual defendants. There are, however, several points which have been raised in respect to the defendants List, Foertsch and Rendulic which warrant a few words.
Dr. Laternser argues that List's order of 4 October 1941 was in effect a limitation on the OKW order of 16 September - restriction, if you please, by the very man who had passed on the OKW order in the first place. The Keitel directive provided that hostages were to be executed at fixed ratios. The List order of 4 October merely specifies what classes of persons were to be used as hostages. List was not restricting Keitel; he was merely supplementing him.
List's involved explanation why he was never informed of the Boehme 100:1 order of 10 October 1941 also falls short of the mark. He would have us believe that such an important order was sent by a courier, in fact a courier who must have been hobbled since he took over five days to travel from Belgrade to Athens. Moreover, List's lack of knowledge also assumes that there was no telephone or teletype communications between Belgrade and Athens, a state of affairs which we know did not exist.
List further asserts that Boehme's order of 2 October 1941 ordering the execution of 2100 Serbs was based on an order directly forwarded to Boehme by the OKW. Foertsch never mentioned that fact during his examination. Moreover, General Pemsel, who was Boehme's Chief of Staff at the time, expressly stated that the order on which Boehme's 2 October order was based came to the staff of the Plenipotentiary Commanding General in Serbia from the 12th Army. Who better than Pemsel would know from which agency that order had been received? It is unbelievable that List had no knowledge of that order.
Dr. Laternser denies that the German violated their duties as occupying power in Greece and Yugoslavia or that such violations were a motivating cause for the hostile actions taken by the civilian populations. The Weichs 100:1 order of 28 April 1941 is not irrelevant to this case simply because its author has ceased to be a defendant here. That order was no idle threat, for the very poster announcing the 100:1 ration expressly stated that 100 Serbs had already been shot in retaliation for the death of one German soldier. What occupation duties had the German violated? It was their invasion that caused, and their occupation and exploitation which aggravated, starvation in Greece; they carved up Yugoslavia, annexed a portion of it to the Reich itself, gave Hungary and Rumania portions of the Banat, assigned sections of Macedonia to Bulgaria and created a fictitious sovereignty in the guise of the independent state of Croatia; they arrested all Jews in Yugoslavia, with the result that by the summer and fall of 1942 Streicher's newspaper could announce the death of 18,000 Jews in Croatia and 85,000 in Yugoslavia. It was these acts, in addition to the carrying out of the German reprisal policy, that constituted the German violations of their duties as occupiers.
It has also been contended that the German measures in the Southeast were solely counter or defensive measures provoked by acts of the occupied peoples. Dr. Laternser, dramatically defies us to name one reprisal action which was not preceded by an attack upon German soldiers.
Can he have forgotten Distomon and Klissura?
Dr. Laternser claims, too, that the resistance movement in Greece and Yugoslavia was unlawful and that an occupying power has a right to punish those guilty of hostile acts against it irrespective of whether the requirements of Article 1 of the Hague Rules for belligerent status are fulfilled. Were such the law, Article 1 would be complete meaningless.
It is contended that the partisans were not "militia or volunteer" corps within the meaning of Article 1 of the Hague Rules. Even if the partisans, as Dr. Laternser contends, did not form a part of the Yugoslav and Greek Armies, they were certainly volunteer corps within the meaning of that term as used in Article 1.
In arguing that the partisans did not fulfill the requirements of Article 1 because they were not "commanded by a person responsible for his subordinates", Dr. Laternser insists that according to the British Manual of Military Law, that requirement can be satisfied only if some state is in existence. Had he quoted the entire section, rather than a mere fragment, of the British manual to which he refers, it would be quite clear that it gives no support whatever to the principle which he seeks to establish. Paragraph 22 of the British Manual reads as follows:
"22. The first condition, 'to be commanded by a person responsible for his subordinates,' is completely fulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or in a person of position and authority, or if the members are provided with certificates or badges granted by the government of the state to show they are officers N.C.Os., or soldiers, so that there may be no doubt that they are not partisans acting on their own responsibility. State recognition, however, is not essential, and an organization may be formed spontaneously and elect its own officers."
DR. LATERNER argues also that the requirement with respect to insignia was not fulfilled because the insignia was worn on the partisans' headgear. It is hard to conceive of any more prominent place to display insignia. Had the partisans intended to throw away such headgear immediately before capture, as Dr. Laternser asserts, it is difficult to see why any such insignia would have been worn in the first place. There is, of course, no requirement that insignia be uniform, and so the fact that one group of partisans wore insignia different from that of another group is wholly irrelevant to the to the question whether the insignia requirement of Article 1 was met. It is apparent from the defendants' testimony that partisan insignia was not particularly important anyway because of the nature of the partisan attacks -- the fact that they were made at night, from ambush and the like. Moreover, all of the defendants have admitted that partisans would have been executed no matter what insignia they had worn. Even if it be conceded that the partisans wore no insignia at all, this fact would have been no justification for the German reprisal actions against the civilian population.
Nor is there any requirement in Article 1 of the Hague Rules that the partisans, in order to be treated as belligerents, must be acting under state authorization. The concept that wars are conflicts between stales and not individuals is as outmoded as the writers Dr. Laternser cites to sustain it.
But even if the criteria of these authorities who insist upon state authorization of partisan fighting be accepted, the Greek and Yugoslav partisans fulfilled all such criteria. Nurick and Barrett's criteria were not violated in the case of the Greek and Yugoslav partisans, because their governments had not formally surrendered to Germany but rather continued their existence in exile in London. Moreover, the Greek and Yugo-slav partisans were numerous enough to constitute a "de facto" government within the scope of Murick and Barrett's requirements.
Oppenehim's criteria were also fulfilled, since there had been no "downfall" of the enemy governments of Greece and Yugoslavia.
It is contended that the partisans had no connection with their governments-in-exile. Yet we have heard much about Allied military missions with the partisans. The witness Triandaplyllidis himself testified to the orders and reports which were exchanged between the Greek EDES units and the Allied Middle East Command in Cairo.
Dr. Laternser maintains that the type of hostage whose killing is made criminal by the Charter and the Control Council Law is the "Traditional" or "peace" hostage and not the "reprisal" hostage. The use of "peace" hostages, and even "danger" hostages has declined almost to to non-existence in modern times. It is inconceivable that, since thousands of hostages were executed in reprisal for hostile note during the last two wars, this was not precisely the practice which the Charter and Control Council Law condemned. If these statutes were held not to include the execution of all kinds of hostages, they would be completely anachronistic and meaningless.
Dr. Laternser argues that the law concerning hostages is not clear and cites examples which allegedly prove that the right to execute hostages is recognized by all the great powers in the world. How alleged threats by Lincoln and Sherman to execute enemy prisoners of war are supposed to support his contention is somewhat difficult to follow. Reprisal executions of prisoners of war are flatly outlawed by the Geneva Convention. If Lincoln and Sherman made the threats which Dr. Laternser attributes to them, we can congratulate ourselves on having made some progress in the right direction since 1865.
Even if Dr. Laternser's unproved assertion that Belgium took hostages in the Rhineland in 1918 be granted, not even he contends that any of those were executed.
Now were any hostages executed by the Allies during World War II. A good example of the kind of proof that has been adduced by the defense in support of allegations of Allied hostage executions is the evidence concerning Markdorf. One affiant says that in the beginning of May 1945 a 30:1 hostage proclamation was posted by the French. Another affiant says that upon the death of a French soldier in Markdorf a 10:1 hostage ratio was intended to be applied. It is more than doubtful that there was any proclamation at all. Dr. Laternser, inclaiming that hostages were executed at Markdorf at a ratio of 4:1, is citing his client's own affiant improperly. Wilhelm Kahles, the former mayor of Markdorf, expressly stated that there was a rumor that four persons had been shot as hostages in reprisal for the death of a French soldier but that "this is not in accord with the facts". Kahles himself gave the lie to the other affiants who mentioned 30:1 and 20:1 hostages proclamations by stating:
"I do not know of any placard containing any sort of threats by the French Army in case of hostile acts by the civilians or individual German soldiers."
No hostages were executed at Birkenfeld and, indeed it is quite unlikely that any threats to execute hostages were ever announced in that town. None of the affiants who testified about an alleged 10:1 proclamation published by the French in that town in July 1945 ever saw the proclamation themselves. They simply talk about having been given a copy of such a proclamation by an unknown third party who supposedly tore down the proclamation from a public posting place sometime during the summer of 1946. There is no evidence whatever to show where or when the proclamation was supposedly posted. If any proclamation had been publicized as widely and for so long a time, as the affiants contend, why was no eye witness brought here to testify.
In all their arguments with respect to charges that other nations have also taken and executed hostages, the defendants overlook one fundamental point. There is a great difference between showing that someone else may also have committed a crime - which may be interesting but is in no way a defense to the defendant in the case at bar - and showing that by a sustained course of conduct and usage certain behavior has been recognized as lawful. In this latter respect, the defendants' own evidence has boomeranged very painfully. It is surprising that they have not been more successful in proving instances where German hostages were executed by the troops of other countries during the recent war. France, for example, was occupied for over four years by the Germans and hostage executions were almost a daily occurrence there. It would have been perfectly understandable if after the French troops had crossed the Rhine a whole series of retaliatory executions of German civilians had been committed. What surprises us is that the defendants, although they have combed all of Western Germany in an effort to obtain affidavits describing such occurrences, have only succeeded in dredging up one instance - the execution of four persons at Reutlingen. But even in that case, it is not at all clear whether the four persons were executed as hostages or whether they were executed because they had been responsible for the shooting to death of a French soldier the day before. The dearth of evidence which the defendants have been able to produce on this point is proof positive that their conduct is recognized universally as indefensive, criminal, and violative of the usages of war. We are very much indebted to counsel for the defense for strengthening our arguments by their failures.
The ambiguity in the American Army's basic field manual on the hostage issue was definitely resolved by the attitude of the American 6th Army Group when it rescinded the LeClerc 5:1 hostage order in Strassbourg. If the manual had indeed authorized the execution of hostages, when would there have been a better time to rely on such a provision?
As is made clear from the entire file of the Adjutant General's office which was introduced into evidence, hostages, under the American Army conception, must be treated as prisoners of war and may not be executed under any circumstances.
It is incomprehensible why Dr. Laternser mentions the Kesselring case as being any authority for what the defense is contending here. The LOndon Charter was not mentioned in that case, simply because it involved the law of reprisals and not hostage law. No hostages were involved in the Ardeantine Cave massacre, but rather prisoners who were already condemned to death as criminals.
Even though there was only a 10:1 killing of condemned criminals rather than of hostages, and even though the general laws of war rather than a specific statute were involved, the sentence by the military court in the Kesselring case was that of death.
In asking why, even if the execution of hostages is not unlawful, the names and addressed of hostages must be announced to the population at the time of their seizure, Dr. Laternser gives his own answer by pointing out the hostage requirements which are set forth in Waltzog's commentary. When he says that a "spiritual" connection between the hostage and the perpetrator of the hostile act, or that their common nationality are sufficient, Dr. Laternser isl, of course, making up his rules to fit the game, and rules which are devoid of any conceivable meaning at that.
Well aware that under the law of reprisals the hostage executions by the defendants could not be justified, Dr. Laternser carefully avoids any mention of the ratios employed during the German occupation of the Southeast. He maintains that the requirement that reprisals be not "excessive" is simply a criterion of military necessity, and he cites Professor Hyde as authority for the point of view that only a commander may be the judge of the military necessity for a particular measure.
Had he quoted the previous portion of Professor Hyde's statement on military necessity, he would have given a less distorted version of that author's attitude on military necessity. Professor Hyde says:
"In a word, military necessity, as understood by the United States, does not purport to indicate circumstances when a belligerent commander or State is free from a duty to observe the law of nations. It does not embody a formulation of excuses for lawlessness. It does not signify the use of force in opposition to law. It betokens rather the extent and mode of violence which, in accordance with law and therefore with propriety, may, under varying circumstances, be employed in the prosecution of war."1 (underlining added) Nor can it be fairly argued that in the German Army only divisional commanders were authorized to order reprisal measures.
If that were so, then General Felmy must not have known about such a provision. The Klissure and Distomon reprisals were ordered by mere company commanders who stated that they felt that their actions would have been approved subsequently by higher authorities.
Under the American Rules of Land Warfare the "highest accessible military authority" must be consulted before reprisals may be ordered. A subordinate commander may order reprisals upon his own initiative only if immediate action is demanded as a matter of military necessity. The Rules go on to provide that if "hasty or ill-considered action may subsequently be found to have been wholly unjustified, it will subject the responsible officer himself to punishment as for a violation of the laws of war, and seriously damage his cause." In view of the clarity 1. Hyde International Law, Vol.
III, p. 1802 of the American position, it is particularly significant that no subordinate German commander who ordered reprisal measures was ever punished by any of these defendants.
Dr. Laternser has no answer to the statements on the law of superior orders and the many precedents cited in the Prosecution's brief on that point. He makes no retort to the interpretation or application of Paragraph 47 of the German Military Penal Code on the question of superior orders. The fact remains that these defendants not only executed the criminal orders forwarded to them from OKW, but in many cases even exceeded those brutal prescriptions. The fact remains, too, that not one German general in the entire German Army was ever executed for having disobeyed a superior order. The true test on the question of superior orders is, as the IMT pointed out, not the existence of the superior order, but whether or not there was moral choice in carrying it out. Not only legal and moral choice was possible, but factual choice also existed for these defendants.
We are also indebted to defense counsel for having bolstered our "bomb in the mail box" theory of guilt. Kuntze, for instance, denies responsibility for measures which, though occurring after he assumed command, were prescribed by his predecessor's orders, with which Kuntze says he was not yet familiar. This puts the finger squarely on List. The converse would seem to be that Kuntze is liable for acts committed in execution of his own orders even after he left the Southeast. Kuntze, however, wants to seize the rose without being pricked by the thorns. He refuses to accept the blame for events which occurred after his own departure and before his successor could become acclimatized.
He further maintains that he gained knowledge of various OKW reprisal orders only gradually in the course of his tenure. He says, for example, that he did not know about the Boehme 100-1 order of 10 October 1941 and that if he had known about Boehme's excesses, he certainly would have interfered. If this is true, it can only mean that Foertsch bears a good deal of responsibility for events which occurred during Kuntze's period in office.
Foertsch had a duty to inform Kuntze. If he failed to inform Kuntze of the various reprisal orders and of various reports which came in from Boehme's headquarters, then it could only be because he did not want Kuntze to know about such things. If Kuntze's testimony is true, then Foertsch is criminally responsible.
In the closing argument on behalf of Foertsch (and the same applies also to Geitner), the principal stress was laid upon the fact that they were chiefs of staff, not commanders. Many of the arguments drawn from this circumstance seem to be based on the assumption that the only way in which one can be guilty of a war crime is to give an order as commander in chief. Of course, this is not the case under international law, any more than under any known system of domestic law. All well developed legal systems have evolved a variety of tests to determine the degree of connection with a crime which is necessary in order to attribute guilt to an individual. The principles by which this question is settled are, on the whole, very similar in all legal systems. The fact that Foertsch and Geitner were chiefs of staff does not automatically exculpate them any more than the fact that the other defendants were commanders in chief automatically renders them guilty. The only question is whether Foertsch or Geitner or any other defendants were connected with the crimes charged in the indictment within the meaning of Paragraph 2 of Article II of Control Council Law No. 10, which is, in essence, nothing more than a statement of recognized legal principles relating to the degree of guilty connection with the crime.
With the question of Foertsch's and Geitner's status as chiefs of staff thus put in its proper setting, it is abundantly apparent that their defense is very weak. Both were constantly involved in active participation in the crimes charged in this indictment.
Foertsch claims that in his role of chief advisor to the various commanders-in-chief Southeast he only gave operational and tactical advice. Even if this were so, it would be no excuse since reprisal measures, as General Loehr has specifically stated, concerned matters of tactics.
But in fact Foertsch gave more than just operational and tactical advice. His own final plea contains references to two memoranda of a political nature which Foertsch wrote. In one he recommended the replacement of Pavelic by the Croat leader Macek and the recall of the German ambassador to Croatia, Kasche. In the other, his situation report on the Balkans dated 2 November 1941, Foertsch dealt not only with matters relating to strategy and tactics, but with the government, administration and economy of the occupied Southeast. Foertsch's sphere was illimitable.
He contends that the presence of his initials under the orders is unimportant on the question of his criminal responsibility. But the IMT, in discussing Keitel's guilt, mentioned that his initials appeared on "Case Otto," which concerned the aggression against Austria; on Hitler's directive for the attack on Czechoslovakia, and on "Case Barbarrosa", the directive for the invasion of Russia. And in dealing with the guilt of General Jodl, the IMT pointed out that he had initialed Hitler's order for the invasion of Austria and Hitler's directive to prepare plans against Russia. Jodl too signed the covering memorandum which forwarded the Commando Order.
Foertsch, moreover, denies having any outstanding personal influence or control over events which transpired during his period of service in the Southeast. But List had sufficient confidence in him to send him to confer with Keitel and Halder, though he was then only a Colonel. And is there any doubt, after observing both men on the witness stand, that it was Foertsch who dominated the office of Armed Forces Commander Southeast during the time Kuntze occupied that position? Foertsch was better informed at the time Kuntze took over, and the latter has already testified that he was kept ignorant of the most important events which transpired during the first month and a half after he assumed his office. If you believe Kuntze, then Foertsch must have deliberately have kept him in the dark so that he, Foertsch, might rule in the Southeast.
Foertsch admits that even the OKW accepted his advice. One example will suffice. After some urging, the OKW finally agreed to Foertsch's proposal to treat captured partisans as prisoners of war. It is almost inconceivable to believe that a man of Foertsch's energy, intelligence and willa man who, after serving as Chief of Staff in the Southeast, was made in fast succession a divisional, corps and finally Army commander - did not influence the policy adopted by his respective commanders-in-chief.
But if there was any lingering doubt as to the prominence of Foertsch's role, it was completely dispelled by the testimony of his own affiant and subordinate, Colonel von Harling. Von Harling is, of course, an incorrigible liar. On the witness stand he attempted to protect his old superior, but even he stated that Foertsch was the most important single military personality in the entire Southeast.
Foertsch and Geitner did have the power to influence their commanders in-Chief. Geitner, though recently addicted to modesty, admits that on tactical matters his commanders generally followed his advice. The device of the so-called "fictitious executions" was Geitner's very own brain child which he succeeded in selling to his commanders. For Foertsch to say now that he would have been courtmartialed if he had counseled his commanders to disobey orders which they had received from OKW is to give a picture of List and Kuntze which neither of them wished to give of themselves. If you believe List and Kuntze, they and Foertsch operated as a team, consulting each other and exchanging advice freely. If what Foertsch says is true, that List and Kuntze brooked no counsel of moderation from their chief advisor, then they are even more guilty than would at first seem apparent.
Actually, however, Foertsch himself confirmed that he never had any disagreement with his commanders, and no such dissension is mentioned or even hinted at in Foertsch's letters to his wife.
The IMT in its decision against Field Marshal Keitel expressly stated that the OKW was Hitler's military staff and that Keitel had no command function over the three branches of the Wehrmacht.
Keitel's orders were always begun by the words "the Fuehrer has ordered," which is to say that Keitel signed on behalf of Hitler in the very same way that Foertsch or Geitner signed on behalf of their commanders-in-chief. Like Foertsch, Keitel had command only over his own staff at the OKW. In drawing an analogy between the functions of Keitel and Foertsch, we do not mean to imply that Foertsch was as important a personality in the direction of the entire war as was Keitel, but we do mean to say that the IMT in its decision against Keitel completely repudiated the "no command function" defense to criminal responsibility for war crimes.
Geitner also maintains that he is being tried as a substitute for General Bader and General Felber. It is rather unusual for an accomplice to murder to defend on the ground that the man who pulled the trigger or the man who conceived and planned the crime had escape d apprehension. It is no coincidence that for the extended period of more than two years Geitner remained as Chief of Staff to two of the bloodiest butchers that Serbia, throughout its centuries of oppression, ever saw.
Foertsch and Geitner aided and abetted and counseled and influenced in favor of the execution of measures which were criminal in nature. The man on a gun team who calibrates the figures necessary for the effective firing of the weapon is as responsible for the result of the firing as is the man who actually gave the order to fire.
A few theories advanced in the course of the final argument on behalf of Rendulic should be briefly noted. Dr. Fritsch argues that the capitulation agreement which Rendulic made was valid despite the fact that General Rossi, the Commander of the Italian Group East, refused to be a party to it and in fact was kidnapped and removed from his command by Rendulic because of his refusal. Dr. Fritsch says that it was sufficient for General Rossi's subordinate, General D'Almazzo, who commanded the 9th Italian Army, to agree to the German terms. If this had been true, then we might well have asked why General Rendulic went to all the trouble of personally conducting an expedition to capture General Rossi in order to install a more compliant Italian in his place.
But the legal theory which Dr. Fritsch urges is based on a complete and false premise as General Rendulic knew at the time. He knew that elements of both the 9th Italian Army and the 18th Italian Army were within the area of the German 2nd Panzer Army, and that General Rossi, as commander of the 9th Italian Army, had no authority whatever to conclude a surrender agreement for troops not under his command. He knew further that General D'Almazzo under the circumstances was not even competent to conclude a capitulation agreement with respect to his own troops, because in doing so he was acting in conflict with the orders of his direct superior officer, General Rossi. The law governing the authority of a commander in this respect is clearly defined by Lauterpacht in his treatise on international law as follows:
"The competence to conclude capitulations is vested in the commanders of the forces opposing each other." 1 Rendulic knew that the commander of the Italian forces was General Rossi and that no one else was authorized to make such an agreement as the German proposed.
Lauterpacht goes on to say:
"Capitulations entered into by unauthorized subordinate officers may, therefore, be disowned by the Commander without breach of faith." 2 This is why it was necessary for Rendulic to kidnap and depose Rossi and to install D'Almazzo in his place.
Rendulic knew that any surrender agreement which he concluded with d'Almazzo would be repudiated by Rossi. Rossi was, therefore, an obstacle who had to be removed.
We stated before that the destruction of Northern Norway could not be justified by any appeals to the doctrine of military necessity. Dr. Fritsch's remarks have borne us out. In that part of his plea in which he 1 - Lauterpacht, "Oppenheim's International Law," Vol.
II, p. 432.
2 - Ibid.
sought to use this justification, he blandly ignored the testimony of Jodl to the effect that by 28 October, the date that the order for the devastation was given, the Germans knew for certain that the bulk of the Russian troops had been transferred to the East and that from the middle of October it was evident that the Russian pursuit had come to an end.
The systematic destruction of Hammerfest began only around the end of November. Furthermore, it was obvious that this town could not have been used to cut off the German retreat because the German troops were already far to the west and south of that town.
If one follows that part of Dr. Fritsch's argument which is based on military necessity, he will see that what it boils down to is this: no one is competent to judge whether a given devastation was military necessity except the general who ordered it to be done. In other words, only the man who is accused of wanton devastation is qualified to judge the matter. This is merely another way of denying the existence of law: not merely international law, but all law.
Dr. Fritsch realized the impossibility of justifying the devastation on the grounds of military necessity and accordingly, he falls back on a political justification. He says that Rendulic was in no position to refute Hitler's argument that it was necessary to prevent the formation of an exile government in the evacuated part of Norway, because such a government would have repercussions on the whole country and on the German occupation forces.
The advancement of this argument constitutes an assault on morality. What Dr. Fritsch is saying is that any time a retreating any anticipates that a political situation which displeases it may develop in the areas over which it is retreating, then it was the right to reduce that area to a desert. No more barbarous and ridiculous a theory has even been urged upon any court.
We pass now from arguments chiefly important with respect to particu lar defendants to those more general contentions by the defense which affect the case as a whole.
Most of these were set forth in Dr. Laternser's main argument - a few were put forward in the pleas by other counsel. Here counsel have stressed again and again that the trial of this case is being conducted by a Tribunal constituted by authority of the powers occupying Germany - the victorious powers. This, of course, is not a new note. Defense counsel before the first International Military Tribunal raised it at the very outset in their initial motion on 12 November 1945. It has been raised and answered on many occasions since that time, and we would not feel disposed to say anything more about it now but for the insistency and, one might add, the belligerency with which it was put forward last week. In this connection we do not think it is possible to improve on what Mr. Justice Jackson said over two years ago in his opening statement in the international case:1 "Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations vanquished foes.
The world wide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course. The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual inte 1 - Vol.
II, Trial of the Major War Criminals, pp. 101, 102.
grity to our task that this Trial will commend itself to posterity an fulfilling humanity's aspirations to do justice."
* * * * * * "If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law.
Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. But they do have a fair opportunity to defend themselves - a favor which these men, when in power, rarely extended to their fellow country-man. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission."
In apparent realization that the evidence overwhelmingly establishes that the slaughter charged in the indictment did occur and that these defendants ordered and otherwise caused it; and aware, likewise, that this wanton slaughter was clearly in violation of the laws of war and the Hague Conventions, defense counsel as a last resort wish this Tribunal to declare that the laws of war are not laws at all, and that no one can be held judicially answerable for such murderous conduct.
One technique the defendants have used is to suggest that Allied aerial warfare is also a violation of the laws of war. The bombing of various German cities, particularly Dresden, and the use of the atomic bomb at Hiroshima have been cited. In both cases the gratuitous and entirely false statement was made that these aerial attacks occurred at a time when the Allied leaders knew that victory would be achieved without them, If our learned opponents had such knowledge at that time, they were singularly blessed with prescience. It is true that both raids occurred at a time when ultimate victory appeared probable, but that probability could be based only on the assumption that the fighting would continue until Allied superiority in arms had made itself overwhelmingly felt. Certainly neither Germany nor Japan, at the time of these attacks, had manifested any intention of surrendering.
As to the atomic bomb, it is unfortunately all too true, as the defendant Rendulic pointed out in his testimony, that War always tends to produce bigger guns and faster airplanes and more lethal explosives. The laws of war have never attempted to prohibit such development, nor did the Hague Conventions ever undertake to lay any limitations in this regard.
We are constrained to say that the suggestion that the dropping of bombs, whether ordinary bombs or atomic bombs, on large cities is criminal, comes with singular gracelessness from defense counsel here. It is sad but true that the destruction of an enemy's economic potential by air attack against urban industrial centers has become an accepted part of modern warfare, and tho defendants have only themselves to thank.
The first cities to undergo the terror of modern airraids suffered under German bombs, not English or American or French or Russian bombs. By the end of 1940 there was still hardly a scratch on a city in Germany, but already Warsaw and Rotterdam lay flattened, and London and many other cities in England were badly mauled. In all these matters, the memories of Defense counsel appear to be scandalously short.
And now the Tribunal is asked to help make the future world a better world by abolishing the laws of war entirely. Incomplete as they are, the Hague Conventions contain very important principles with respect to the treatment of prisoners of war, the preservation of neutrality, the protection of populations of occupied countries, and other similar matters. The observance of these rules during the recent war - partial as it was on the part of the Germans - saved millions of lives. The Tribunal is now asked to overthrow the binding character of these salutary rules, so necessary for the preservation of even a part of our civilization. The suggestion is put forward by defense counsel, none to subtly, that some day the United States may again find itself involved in a war with another country, and that we will be indeed foolish to recognize the binding character of the laws of war, which might hamper us in such a future conflict. So we are invited to tread in the path beaten ahead of us by these very defendants. The invitation is an insulting and a degrading one.
Indeed, of the many things about this case which are hard to understand, there is one which we find the most baffling. One might expect these defendants, brought up in the German profession of arms, which openly preaches in its military manual that attempts to give the laws of war binding character are derived from "sentimentality and flabby emotion," might remain quite unimpressed by the accusation that they have violated the Geneva Conventions. One might be prepared to find in such men a lack of respect for the binding character of international law. But one thing these men do respect, and that is victory. It does seem quite beyond belief that it has never entered the heads of these defendants that there is a profound connection between their behavior and the defeat they suffered.