principle of all law - international and domestic - is that there can be no punishment of crime without a pre-existing law. "Nullum crimen sine logo nulla poena sine lege." It was submitted that ox post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders. crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so for from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of 11 international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.
of the state of international law in 1939, so far as aggressive war is concerned.
The General Treaty for the Renunciation of War of August 27th 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they were:
"Deeply sensible of their solemn duty to promote the welfare of mankind; persuaded that the time perpetuated ... all changes in their relations means ... thus uniting civilised nations of the instrument of their national policy ..." The first two articles are as follows:
"Article I: The High Contracting Parties solemnly to one another."
"Article II: The High Contracting Parties agree that be sought except by pacific means."
The question is, what was the legal effect of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of the solemn renunciation of war as an instrument of national national policy breaks the pact.
In the opinion of the Tribunal, policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:
"War between nations was renounced by the signatories of the Kellogg-Briand Treaty.
This means that it has become throughout practically the entire world ... an illegal thing.
Hereafter, when nations engage in termed violators of this general treaty law ... We denounce them as law breakers."
that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally rules of the Hague Convention.
In interpreting the words of the illegal, and of much greater moment than a breach of one of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure.
The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing. tion of the Pact is supported by the international history which preceded it. In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the treaty declared "that aggressive war is an international crime", and that the parties would "undertake that no one of them will be guilty of its commission". The draft treaty was submitted to twenty-nine states, about half of whom were in favor of accepting the text. The principal objection appeared to be in the difficulty of defining the acts which would constitute "aggression", rather than any doubt as to the criminality of aggressive war. The preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes ("Geneva Protocol"), after "recognising the solidarity of the members of the International community", declared that "a war of aggression constitutes a violation of this solidarity and is an International crime." It went on to declare that the contracting parties were "desirous of the Covenant of the League of Nations for the pacific settlement facilitating the complete application of the system provided in of disputes between the states and of ensuring the repression of international crimes."
The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the Assembly of the forty-eight members of the League. These members included Italy and Japan, but Germany was not then a member of the League. the leading statesmen of the world, representing the vast majority of the civilized states and peoples, and may be regarded as strong evidence of the Intention to brand aggressive war as an international crime. the 24th September 1927, all the delegations then present (including the German, the Italian and the Japanese), unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
"The Assembly:
of nations;
of general peace;
in consequence an international crime ..." one American republics at the sixth (Havana) Pan-American Conference, declared that "war of aggression constitutes an international crime against the human species." cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of Pacts and Treaties to which the Tribunal has just referred.
Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor "for a supreme offence against International morality and the sanctity of treaties."
The purpose of this trial was expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of international morality." In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."
with the actions of sovereign states, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State.
In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of Ex Parte Quirin (1942 317 US 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:
"From the very beginning of its history this Court enemy nations as well as enemy individuals."
He went on to give a list of cases tried by the Courts, where individual offenders were charged with offences against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. sailles already referred to illustrate and enforce this view of individual responsibility.
circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law.
The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:
"The official position of defendants, whether as punishment."
that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under International Law.
defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders.
The Charter specifically provides in Article 8:
"The fact that the defendant acted pursuant to considered in mitigation of punishment."
The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.
aggressive war, it is clear that planning and preparation had been carried out in the most systematic way at every stage of the history. of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offense as planning, preparation, initiation or waging of a war of aggression "or participation in a common plan or conspiracy for the accomplishment ... of the foregoing." The Indictment follows this distinction. Count One charges the common plan or conspiracy. Count Two charges the planning and waging of war. The same evidence has been introduced to support both counts. We shall therefore discuss both counts together, as they are in substance the same. The defendants have been charged under both counts, and their guilt under each count must be determined.
The "common plan or conspiracy" charged in the Indictment covers twenty-five years, from the formation of the Nazi Party In 1919 to the end of the war in 1945. The party is spoken of as "the instrument of cohesion among the defendants" for carrying out the purposes of the conspiracy - the overthrowing Germany in the last war and "lebensraum" in Europe, by the of the Treaty of Versailles, acquiring territory lost by use, if necessary, of armed force, of aggressive war.
The "seizure of power" by the Nazi, the use of terror, the destruction of trade unions, the attack on Christian teaching and on churches, the persecution of the Jews, the regimentation of youth - all these are said to be steps deliberately taken to carry out the common plan. It found expression, so it is alleged, in secret rearmament, the withdrawal by Germany from the Disarmament Conference and the League of Nations, universal military service, and seizure of the Rhineland. Finally, according to the Indictment, aggressive action was planned and carried out against Austria and Czechoslovakia in 1936-1938, followed by the planning and waging of war against Poland; and, successively, against ten other countries. participation in the affairs of the Nazi Party or government is evidence of a participation in a conspiracy that is in itself criminal. Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party program, such as are found in the twenty-five points of the Nazi Party, announced in 1920, or the political affirmations expressed in "Mein Kampf" in later years. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan. conspiracy between the defendants has been established by the evidence. The seizure power by the Nazi Party, and the subsequent domination by the Nazi State of all spheres the later plans for waging war are examined.
That plans were of economic and social life must of course be remembered when made to wage wars, as early as November 5th 1937, and probably before that, is apparent.
And thereafter, such preparations continued in many directions, and against the peace of many countries. Indeed the threat of war - and war itself if necessary - was an integral part of the Nazi policy. But the evidence establishes with certainty the existence of many separate plans rather than a single conspiracy embracing them all. That Germany was rapidly moving to complete dictatorship from the moment that the Nazis seized power, and progressively in the direction of war, has been overwhelmingly shown in the ordered sequence of aggressive acts and wars already set out in this Judgment. the common planning to prepare and wage war by certain of the defendants. It is immaterial to consider whether a single conspiracy to the extent and over the time set out in the Indictment has been conclusively proved. Continued planning, with aggressive war as the objective, has been established beyond doubt. The truth of the situation was well stated by Paul Schmidt, official interpreter of the German Foreign Office, as follows:
"The general objectives of the Nazi leadership were slogan "Lebensraum."
The execution of these basic improvisation.
Each succeeding step was apparently sistent with the ultimate objectives mentioned above."
there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of that they acted under the direction of the man who conceived it.
Hitler them; and those who execute the plan do not avoid responsibility by showing could not make aggressive war by himself.
He had to have the co-operation of statesmen, military leaders, diplomats, and business men. when they, with knowledge of his aims, gave him their co-operation, they made themselve parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. That they were assigned to their tasks be a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime. aggressive war, but also to commit war crimes and crimes against humanity. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides:
"Leaders, organizers, instigators and persons in execution of such plan."
separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate and wage aggressive war.
THE PRESIDENT: I now ask Judge Parker to continue the reading of the Judgment. JUDGE PARKER:
volume and its detail. It is impossible for this Judgment adequately to review it, or to record the mass of documentary and oral evidence that has been presented. The truth remains that War Crimes were committed on a vast scale, never before seen in the history of War. They were perpetrated in all the countries occupied by Germany, and on the High Seas, and were attended by every conceivable circumstance of cruelty and horror. There can be no doubt that the majority of them arose from the Nazi conception of "total war", with which the aggressive wars were waged. For in this conception of "total war", the moral ideas underlying the Conventions which seek to make war more humane are no longer regarded as having force or validity. Everything is made subordinate to the overmastering dictates of war. Rules, regulations, assurances and treaties all alike are of no moment; and so, freed from the restraining influence of international law, the aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Fuehrer and his close associates thought them to be advantageous. They were for the most part the result of cold and criminal calculation. advance. In the case of the Soviet Union, the plunder of the territories to be occupied, and the ill-treatment of the civilian population, were settled in minute detail before the attack was begun. As early as the Autumn of 1940, the invasion of the territories of the Soviet Union was being considered. From that date onwards, the methods to be employed in destroy ing all possible opposition were continuously under discussion.
occupied countries for slave labor on the very greatest scale, the German Government conceived it as an integral part of the war economy, and planned and organized this particular War Crime down to the last elaborate detail.
escaped and been recaptured, or the murder of Commandos or captured airmen, or the destruction of the Soviet Commissars, were the result of direct orders circulated through the highest official channels. question of War Crimes, and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate. Whole populations were deported to German for the purposes of slave labor upon defence works, armament production and similar tasks connected with the war effort. Hostages were taken in very large numbers from the civilian populations in all the occupied countries, and were shot as suited the German purposes. Public and private property was systematically plundered and pillaged in order to enlarge the resources of Germany at the expense of the rest of Europe. Cities and towns and villages were wantonly destroyed without military justification or necessity.
Article 6 (b) of the Charter defines War Crimes in these words:
"War Crimes: namely, violations of the laws or customs of war.
Such violations shall include, or devastation not justified by military necessity."
to the Germans were shot immediately, often as a matter of deliberate, calculated policy. On the 18th October 1942, the defendant Keitel circulated a directive authorized by Hitler, which ordered that all members of Allied "Commando" units, often when in uniform, and whether armed or not, were to be "slaughtered to the last man", even if they attempted to surrender. It was further provided that if such Allied troops came into the hands of the military authorities after being first captured by the local police, or in any other way, they should be handed over immediately to the SD. This order was supplemented from time to time, and was effective throughout the remainder of the war, although after the Allied landings in Normandy in 1944 it was made clear that the order did not apply to "Commandos" captured within the immediate battle area. Under the provisions of this order, Allied "Commando" troops, and other military units operating independently, lost their lives in Norway, France, Czechoslovakia and Italy. Many of them were killed on the spot, and in no case were those who were executed later in concentration camps ever given a trial of any kind. For example, an American military mission which landed behind the German front in the Balkans in January 1945, numbering about twelve to fifteen men and wearing according to the affidavit of Adolf Zutte, the adjutant of the Mauthausen uniform, were taken to Mauthausen under the authority of this order, and Concentration Camp all Of them were shot.
In March 1944 the OKH issued the "Kugel" or "Bullet" decree, which directed that every escaped officer and NCO prisoner of war who had not been put to work, with the exception of British and American prisoners of war, should on recapture he handed over to the SIPO and SD. This order was distributed by the SIPO and SD to their regional offices. These escaped officers and NCOs were to be sent to the concentration camp at Mauthausen, to be executed upon arrival, by means of a bullet shot in the neck. escaped from the camp at Sagan where they Were confined as prisoners, were shot on recapture, on the direct orders of Hitler. Their bodies were immediately cremated, and the urns containing their ashes were returned to the camp. It was not contended by the defendants that this was other than plain murder, in complete violation of international law. killed at once by the civilian population. The police were instructed not to interfere with these killings, and the Ministry of Justice was informed that no-one should be prosecuted for taking part in them. inhumanity. The death of so many of them was not due merely to the action of individual guards, or to the exigencies of life in the camps. It was the result of systematic plans to murder. More than a month before the German invasion of the Soviet Union, the OKW were making special plans for who might be captured.
One proposal was that "political Commissars of the dealing with political representatives serving with the Soviet armed forces Army are not recognized as Prisoners of War, and are to be liquidated at the latest in the transient prisoner of war camps."
The defendant Keitel gave evidence that instructions incorporating this proposal were issued to the German army. prisoners of war in all prisoner of war camps were issued, signed by General Reinecke, the head of the prisoner of war department of the High Command. These orders stated:
"The Bolshevist soldier has therefore lost all claim with the Geneva Convention.
...The order for ruthless of Bolshevist fanatics.
Insubordination, active or force of arms (bayonets, butts and firearms)...punishable.
.. Prisoners of war attempting escape are to be fired of without previous challenge.
No warning shot must ever be hired.
.. The use of arms against prisoners of war is as a rule legal."
The Soviet prisoners of war were left without suitable clothing. The wounded without medical care; they were starved, and in many cases left to die. the killing of all Soviet prisoners of war who were or might be dangerous to National Socialism. The order recited:
"The mission of the Commanders of the SIPO and SD 'treatment' (a) of all political, criminal or in some other way unbearable elements among them, (b) struction of the occupied territories.
... Further, to seek out among the prisoners elements which appear occupied territories also.
By use of such informers, " Above all, the following must be discovered:
professional revolutionaries... all People's Commissars immediate vicinity of the camp.
.. The prisoners are to former Soviet Russian territory."
The affidavit of Warlimont, deputy Chief of Staff of the Wehrmacht, and the the head of one of the sections of the Abwehr, the Wehrmacht's Intelligence The affidavit of Kurt Lindown, a former Gestapo official, states:
"... There existed in the prisoner of war camps on the Eastern Front small screehing teams (Einsatz commandos), headed by lower ranking members of the Secret Police (Gestapo). These teams were assigned and to report them to the office of the Secret Police."
tration camp reported to Mueller, chief of the Gestapo, a list of the Soviet prisoners of war who had been executed there on the previous day. of war during the first eight months after the German attack upon Russia was Keitel on the 28th February 1942:
given in a letter which the defendant Rosenberg sent to the defendant "The fate of the Soviet prisoners of war in Germany of the hazards of the weather.
Thousands also died " The camp commanders have forbidden the civilian " In many cases, when prisoners of war could no " In numerous camps, no shelter for the prisoners of war was provided at all.
They lay under the open sky during rain or snow.
Even tools were not make available to dig holes or caves."
permanent mark. There was put in evidence the OKW order dated the 20th July 1942 which laid down that:
"The brand is to take the shape of an acute angle buttock.
.. This brand is made with the aid of a lancet available in any military unit.
The coloring used is Chinese ink."
The carrying out of this order was the responsibility of the military authorities, though it was widely circulated by the Chief of the SIPO and the SD to German police officials for information. ments of the most cruel and inhuman kind. In July 1943 experimental work was begun in preparation for a campaign of bacteriological warfare; Soviet prisoners of war were used in these medical experiments, which more often than not proved fatal. In connection with this campaign for bacteriological warfare, preparations were also made for the spreading of bacterial emulsions consequent starvation.