In no other sphere is it more necessary to affirm that the rights and duties of States are the rights and duties of men and that unless they bind individuals they bind no one.
It is a startling proposition that those who aid and abet, who counsel and procure the commission of a crime are themselves immune from responsibility. The international crime does not differ from the municipal offense in this respect.
The then argument is then put in another way. Where the act concerned is an act of State those who carry it out as the instruments of the State are not personally responsible and they are entitled, it is claimed, to shelter themselves behind the sovereignty of the State. It is not suggested of course that this argument has any application to war crimes and we submit each of these men is guilty of countless war crimes it might be enough to brush the matter aside as academic. But that course perhaps would diminsh the value which these proceedings will have on the subsequent development of international law. Now it is true that there is a series of decision in which Courts have affirmed that one State has no authority over another sovereign State or over its Head or representative. Those decisions have been based on the precepts of the comity of nations and of peaceful and smooth international intercourse: they do not in truth depend upon any sacrosanctity of foreign sovereignty except in so far as the recognition of sovereignty in itself promotes international relations. They really afford no authority for the proposition that those who constitute the organs, those who are behind the State, are entitled to rely on the metaphysical entity which they create and control when, by their directions that State sets out to destroy that very comity on which the rules of international law depends. Suppose a State were to send a body of persons into the territory of another State with instructions to murder and to rob. Would those persons carrying out these orders be immune because in the fulfilment of their criminal design they were acting as the organs of another State. Suppose the individuals who had ordered the predatory expedition were to fall into the hands of the State attacked -- could they plead immunity. In my submission clearly not. Yet the case put is exactly the case which occurred here. The truth is that this attempt to clothe crime with impunity because the motive was political rather than personal invokes no principle of law but is based on arbitrary political doctrines more appropriate to the sphere of power politics than to that in which the rule of law prevails. ments in Hitler's hands, ordered to do that which reluctantly, or so they say, they did.
The Defence of superior orders is excluded by the Charter although Article 8 provides that it may in appropriate cases be considered in mitigation of punishment, if the Tribunal thinks that justice so requires. But the Charter no more than declares the law. There is no rule of International Law which provides immunity for those who obey orders which -- whether legal or not in the country where they are issued -- are manifestly contrary to the very law of nature from which international law has grown. If international law is to be applied at all, it must be superior to municipal law in this respect, that it must consider the legality of what is done by international and not by municipal tests. By every test of international law, of common conscience, of elementary humanity, these orders -- if indeed it was in obedience to orders that these men acted -- were illegal. Are they then to be excused? own creation. In the desire to secure power and position for themselves they built up the system under which they received their orders. The continuance of that system depended on their continued support. Even if it were true that -- as Jodl suggested -- these men night have been dismissed, perhaps imprisoned, had they disobeyed the orders which were given, would not any fate have been better than that they should have lent themselves to these things. But it was not true. These were the men in the inner councils, the men who planned as well as carried out; of all people the ones who might have advised, restrained, halted Hitler instead of encouraging him in his satanic courses. The principle of collective responsibility of the members of a government is not an artificial doctrine of constitutional law. It is an essential protection of the rights of man and the community of nations; international law is fully entitled to protect its own existence by giving effect to it. with war crimes and what we have described as in fact they are, as crimes against humanity. About the law as to war crimes, little indeed need be said, because the law is clear enough and not in doubt. Here are crimes more terrible indeed in their extent than anything which had hitherto been known, but none the less well recognizable under the preexisting rules of International Law and clearly within the legitimate jurisdiction either of a National or of an International Tribunal.
There is no element of retroactivity here, no question of post factum law making, nor is there any shadow of novelty in the decision of the Charter that those who shared the ultimate responsibility for these frightful deeds should bear individual responsibility. It is true that the lawyers and the statesmen who at The Hague and elsewhere in days gone by built up the code of rules, and the established customs by which the world has sought to mitigate the brutality of war and to protect from its most extreme harshness those who were passive non-combatants, never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten million fold. Crimes do not cease to be criminal because they have a political motice. These crimes were many and manifold. It is not useful to catalogue them here. They vary most considerably in the numbers of victims. There are the fifty murdered prisoners of war who escaped from Stalag Luft III; the hundreds of Commandos and Airmen who were exterminated; there are the thousands of civilian hostages put to death; the tens of thousands of sailors and passengers who perished in a piratical campaign of terror; there are the hundreds of thousands of prisoners of war, especially Russians, and of civilians who met their death because of the rigours and cruelties to which they were exposed, if not by outright murder, and there are the many millions murdered outright, or by the slower method of deliberate starvation, six millions of them for no better reason than that they were of Jewish race of faith. of an act. The majesty of death, the compassion for the innocent, the horror and detestation of the ignominy inflicted upon man - man created in the image of God -- these are not the subjects of mathematical calculation. None the less, somehow, numbers are relevant. For we are not dealing here with the occasional atrocities which are perhaps an incident in any war. It may be that war develops the good things in man; it certainly brings out the worst. It is not a game of cricket.
In any war, in this war no doubt there have been -and no doubt on both sides -- numbers of brutalities and atrocities. They must have seemed terrible enough to those against whom they were committed. I do not excuse or belittle them. But they were casual, unorganised individual acts. We are dealing here with something entirely different. With systematic, wholesale, consistent action, taken as a matter of deliverate calculation - calculation of the highest level. And so the principal war crime in extent as in intensity with which these men are charged is the violation of the firmly established and least controversial of all the rules of warfare, namely, that noncombatants must not be made the direct object of hostile operations. What a mockery the Germans sought to make of the IV Hague Convention on the laws and customs of war - Convention which merely formulated what was already a fundamental rule:
"Family honour and rights, the lives of persons and private be respected."
here in the Dock, in the territory occupied by its military forces, whose leaders are here in the dock, of millions of civilians, whether it was done in pursuance of a policy of racial extermination, as the result of or in connection with the deportation of slave labour, in consequence of the desire to do away with the intellectual and political leaders of the countries which had been occupied or was part of the general application terror through collective reprisals upon the innocent population and upon hostages -- this murdering of millions of non-combatants is a war crime.
It may indeed be a crime again humanity as well. Both imagination and intellect, shattered by the horror of these things, recoil from putting the greatest crime in history into the cold formula already described in the text books as a war crime. Yet it is important to remember that that is what these crimes were. Irrespective, in the main of where they were committed or of the race or nationality of the victims, these were offences upon the civilian population, contrary to the laws of war in general and to those of belligerent occupation in particular. The truth is that murder, wholesale, planned and systematic became part and parcel of a firmly entrenched and apparently secure belligerent occupation That that was a war crime no one has sought to dispute. classes of action with which also these men stand charged. Deportation to Germany for forced labour; the crimes at sea in connection with submarine warfare, and the shooting of Commandos. And let me shortly examine these matters. course, a crime both according to international custom and to conventional international law as expressed in the Hague Convention. Article 46 of Hague Convention No. IV enjoins the occupying powers to respect "family honour and rights" and "the lives of persons". Article 52 of the same Convention lays down that "services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation" and that "they shall be in proportion to the resources of the country and of such a nature as not to involve the population in the obligation of taking part in the operations of war against the country." With these simple and categorical provisions we have to contrast the staggering dimensions of the operation which the defendant Sauckel directed and in which other defendants participated, the ruthlessness with which peaceful citizens were torn from their families, surroun dings and employment, the manner in which they were transported, the treatme which they received on arrival, the conditions in which they worked and died in thousands and tons of thousands, and the kind of work which they were compelled to perform as direct helpers in the production of arms, munitions and other instruments of war against their own country, and against their own people.
How can all that be reconciled with the law? Nations had in some way become obsolete in the face of the modern development of totalitarian war requiring the vastest possible use and exploitation of the material and labor resources of the occupied territory. I confess I do not understand how the extent of the activities a belligerent imposes on himself, the size of the effort he needs to make in order to avoid defeat, can enlarge his rights against peaceful non-combatants or enable him to brush aside the rules of war. We cannot make these post factum repeals of accepted International Law in favour of the law breakers. conditions as a justificationfor their crimes at sea - crimes which cost the lives of thirty thousand British seamen alone. We need not base our case here solely on the mere violation of the customary rules of warfare as embodied in the London Protocols of 1930 and 1936, fully subscribed to as they were by Germany and prohibiting sinking without warning, or even with warning if proper provision had not been made for the safety of passengers and crew. We need not concern ourselves with theniceties of argument whether the practice of arming merchantmen affects the position. the sinking of neutral shipping was legalized by the process of making a paper order excluding such ships not from some definite war zone over which Germany exercised control but from vast areas of the seven seas. For there is one matter at least about which nobody questions the law. be rescued, thatsteps should be taken to prevent the shipwrecked from surviving, for the use of such weapons that there could be no question of survivors, you will have no doubt that what was done was contrary to law. It is no answer that to allow non-combatants to survive entailed greater risk to the attackers. The murderer is not excused because he says that it was necessary to kill thevictim he had violated lest he should subsequently identify him.
So also in regard to the orders for the execution of Commandos. New methods of warfare, new forms of attack, do not in themselves repeal existing established rules of law. The sanctity of the life of the soldier in uniform, who surrenders after the accomplishment of his mission and who committed no war crimeprior to his capture, is and I ask you to say, must remain an absolute principle of International Law. Those who, for whatever motive, trample upon it in disregard of law, in disregard of humanity, in disregard of chivalry, must pay the penalty when at last the law is vindicated. war crimes charged in the Indictment. For that these matters, various in their kind or method, were crimes under established law is not in doubt. The Tribunal will be concerned only to affirm the law and to decide upon the measure of these Prisoners involvment in its breach. Count of the Indictment, the crimes against humanity. It is convenient, I thin, to deal with these matters together for, in so far as they were committed during the war, to some extent they overlap and in any case they are interconnected. The war crimes were in their very enormity crimes against humanity. The crimes against humanity were writ larger still. Moreover, the crimes against humanity which this Tribunal has jurisdiction to deal are limited to this extent - they must be crimes the commission of which was in some way connected with, in anticipation of or in furtherance of the crimes against the peace or the war crimes stricto sensu with which the Defendants are indicted. That is the qualification which Article 6 (c) of the Charter introduces. The considerations which apply here are, however, different to those affecting the other classes of offence, the crime against Peace or the ordinary war crime. You have to be satisfied not only that what was done was a crime against humanity but also thatitwas not purely a domestic matter but that directly or indirectly it was associated with crimes against other nations or other nationals, in that, for instance, it was undertaken in order to strengthen the Nazi Party in carrying out its policy of domination by aggression, or to remove elements such as political opponents, the aged, the Jews, the existence of which would have hindered the carrying out of the total war policy.
as I have said simply one facet of the Herrenvolk doctrine. In "Mein Kampf", Hitler had said that themost decisive factor in the German collapse in 1918 was "the failure to recognize ..... the racial problem and the Jewish menace." The attack on the Jews was at once a secret weapon -- an enduring fifth column weapon -- to split and weaken the democracies sad a device for unifying the German people for war. Himmler made it clear in his speech on October 4, 1943, that the treatment meted out to German Jews was closely connected with the war policy. He said:
"For we know how difficult we should have made it for ourselves if .... we still had Jews today in every town as secret saboteurs, agitators and trouble mongers." humanity and not a war crime, is one which we indict because of its association with the crime against the peace. That it is of course a very important qualification, and is not always appreciated by these 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 theprosecution of which would form no novelty. Done against others they would be crimes against municipal law except in so far asGerman law, departing from all the canons of civilized 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, thenations adhering to the Charter of this Tribunal have felt it proper and necessary in the interest of civilization to say that those 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 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 forthe 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 Convenant of the League of Nations and the Charter of the United Nations Organization does recognize that general position. Yet International Law has in thepast 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 theprotection of mankind whom theState tramples upon his rights in a manner which outrages the conscience of mankind. Grotius, the founder of International Law had some notion of thatprinciple when - at a time when thedistinction between the just and unjust war was more clearly accepted than was the case in the 19th 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 neighboring peoples is to look quietly on.
Laws are 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 subjedts 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 Charterof this Tribunal embodies a beneficient 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 asa State that if, in order to strengthen or further their crimes against the community ofnations they debase the sanctity of man in their own country they act at their peril for they affront the international law of mankind. 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 disregard it, the countless warnings that were given by foreign states and foreign statesmen on the counts which was being pursued by Germany before the War. No doubt these men counted on victory and little thought that they would be brought to account. But can anyone 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. the clearest crime of all, demands their conviction and will for all time stain the record of German arms. 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 accor dance with the Geneva Convention.
... The especially in the case of Bolshevist fanatics.
Insub immediately by force of arms (bayonets, butts and firearms) ... anyone carrying out the order sufficient energy is punishable .... prisoners of 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 camp.
.. within the wire fence the camp police may to enable them to carry out their duties effectively."
The regulations go on to order the segregation of civilians 26 July A LJG 22-1 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 adminsitrative influences, and accordingly their transfer to the security police and the SD is given as the way to reach the "appointed goal". 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 and the U.S.S.R. Therefore only the principles of General apply.
Since the 18th century these have gradually been from further participation in the war.
This principle or injure helpless people.
... The decrees for the treatment mentally 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. There fore I approve and back the measures.
K." 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 26 July A LJG 22-2 principles of their decision are unknown to the Wehrmacht authorities, Keitel comments "not at all". 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 Camp and listing those to be handed over, it roads:
"Executions must not be held in the camp. If the camps in ment". with regard to the numbers of Soviet and Polish prisoners in concentration camps.
Their treatment needs no further reminder than the report by the Commandant of Gross Resen Concentration Camp who on the 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 "It was particularly noted that, when marching, for example "It cannot be prevented that the German people take notice that could not be hidden from the German people?
I go on:
"Even if the transportation to the camps is generally taken "In order to prevent, if possible, similar occurrences in marked by death (for example with typhus) and who therefore "I request that the leaders of the Einsatz Kommandos be 26 July A LJG 22-3 On the 2nd March 1*44, the Chief of the SIPO and SD forwarded to his various bench 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. Enquiries 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 those men, soldiers whose only crime had been to do their duty, should be forever hidden.
It was shortly after the issue of the "Kugel" order that 80 British Officers of the R.A.T. 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 50 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, 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 y Hitler.
Second: Westhoff of the Prisoner of War Organization of Third:
In Goering's own Ministry which was responsible for the treatment of R.A.F. prisoners of war, Walde of executives and told General Grosch.
Grosch in formed Foerster, who went straight to Milch, Goering's You will say whether you to not consider the denials of Goering and Milch to be mere perjury.
Keitel admits that Hitler ordered transfer to the SD and 26 July A LJG 22-4 that he "was afraid" they might he shot.
He told his officers Graevenitz and Westhoff:
"We must set an example. They will be shot - probably some have been shot already."
and when Graevenitz protested, he replied:
"I don't care a damn." On this evidence of his own officers, surely his complicity is clear in this matter. was in the next room telephoning, he heard a very loud discussion and on Being 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': subordinates. Schellenberg's evidence of the discussion between Nebo, Muller and Kaltenbrunner about this time on the subject of an International Red Cross enquiry about 50 English or American prisoners of war is conclusive. He heard Kaltenbrunner providing his subordinates with the answer to be given to this inconvenient enquiry 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 new 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? 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 fliers. These documents, show that neither Keitel nor Jodl had any scruples in the matter while both Goering and Ribbentrop agreed 26 July A LJG 22-5 to the draft order.
spondence -- first a meeting between Goering, Ribbentrop and Himmler at which it was agreed to modify "the original suggestion made by the Reich Foreign Minister German civilian population as justifying action."
and which concluded that "lynch law would have to be the rule."
brunner it was agreed that "these aviators who escaped lynch law would in accordance for special treatment". Finally Keitel's note on the file:
"I am against legal procedure. It does not work out." taken up in February 1945, when Hitler wished to renounce the Geneva Convention. Doenitz advised that "it would be better to carry out measures considered with the outside world"-a decision with which Jodl and Ribbentrop's representative agreed.
Their defense 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 questions:
"Just as it was wrong in 1914 that we ourselves solemnly de again as the guilty party before the whole world."
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 that be a convenient place?
THE PRESIDENT: Yes, Mr. Attorney. Would it be convenient 26 July A LJG 22-6 to you to sit at 9:45 in the morning?
The Tribunal anticipates in those circumstance 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 he very much obliged if the Court would do that.
(The Tribunal adjourned until 27 July 1946 at 0945 hours.)
SIR HARTLEY SHAWCROSS: May it please the Tribunal : stricto senso and in particular with the murder of the RAF officers from Stalagluft 3. prisoners of war. Under article 31 of the Geneva Convention it might have been permissible to employ prisoners on certain work in connection with the raw materials of the armament industry. But the statement made by Milch at the Central Planning board on the 16th of February 1943 in the presence of Speer and Sauckel had no legal justification at all. He dais, if you will remember, and I quote :
"We have made a request for an order that a certain percentage of me in the Ack-Ack artillery must be russians. 50,000 will be taken altogether 30,000 are already employed as gunners. This is an amusing thing that Russians must work the guns." That was obviously flagrantly illegal. Nobody could have had the faintest doubt about it. The minutes record no protest. It has not been suggested that Goering or any of the others who must have read the minutes and known what was going on, regarded this outrage by the effective head of the German Air Force as in any way unusual.
Himmler's cynical words spoken at Posen on the 4th October 1943 on the subject of the Russian prisoners captured in the early days of the campaign ought again to be put on record for history :
"At that time we did not value the mass of humanity as we value it to day as raw material, as labour. What, after all, thinking in terms of gene rations is not to be regretted but is now deplorable by reason of the loss of labour is that the prisoners died in tens and hundreds of thousands of exhaustion and hunger."
I turn now to the murder of the Commandos. rectly involves Keitel, Jodl, Doenitz, Raeder, Goering and Kaltenbrunner. By article 30 of the Hague Rules and I quote:
"A spy taken in the act shall not be punished without previous trial." Whilst even the regulations printed in the book of every German soldier provide :
"No enemy can be killed who gives up, not even a partisan or a spy. These will be brought to punishment by the Courts." These men were not spies : they were soldiers in uniform. It is not suggest that any man dealt with under this Order was ever given a trial before he was shot. Legally there can be no answer to the guilt of any of these defen dants who passed on or who applied this wickedorder, and order which Jodl admitted to be murder and in respect of which Keitel, confessing his shame, admitted its illegality. Raeder admitted that it was an improper order. Even Doenitz stated that no he knewthe true facts be no Ion er regarded it as correct. The only defen put forward have been that the individual in question did not personally carry it cut, that they regarded the statement the first paragraph of the order as justifying the action by way of reprisal, that they did their best to minimise its effect and that it was not up to the individual to question the directives of a superior. But no one has seriously disputed that handing ever to the SD in the context here meant shooting without a trial. dishonest, is that the security precautions provided in the order itself were the plainest indication that the facts stated in the first paragraph did not constitute any justification which would bear the light of day. No higher degree of precaution accompanied the Kugel Order, Nacht und Nebel Or der, or any other of their brutal orders. That the shackling incident at Dieppe had nothing to do with it appears from Jodl's staff memorandum of the 14th October 1942 which states in terms that the Fuehrer's aim was to prevent the Commando method of waging war by dropping small detachments who di great damage by demolitions, etc., and then surrendered.