With many modifications, that proposal has become the Charter of this Tribunal. prisoners are to be judged does not express the views of the signatory nations alone. Other nations with diverse but highly respected systems of jurisprudence also have signified adherence to it. These are Belgium, The Netherlands, Denmark, Norway, Czechoslovakia, Luxembourg, Poland, Greece, Yugoslavia, Ethiopia, Australia, Haiti, Honduras, Panama and New Zealand. You judge, therefore, under an organic act which represents the wisdom, the sense of justice, and the will of nineteen governments, representing an overwhelming majority of all civilized people. legal concepts which are inseparable from its jurisdiction and which govern its decision. These, as I have said, are also conditions attached to any grant of hearing to defendants. The validity of the provisions of the charter is conclusive upon us all whether we have accepted the duty of judging or of prosecuting under it, as well as upon the defendants, who can point to no other law which gives them a right to be heard at all. My able and experienced colleagues believe, as I do, that it will contribute to the expedition and clarity of this trial if I expound briefly the application of the legal philosophy of the charter to the facts I have recited. be contended that the prisoners on trial are entitled to have it applied to their conduct only most charitably if at all. Of course in clarifying it in one paragraph many questions of application must be left unsolved. It may be said that this is new law, not authoritatively declared at the time they did the acts it condemns, and that this declaration of the law has taken them by surprise. is the law; they really are surprised that there is any such thing as law.
These defendants did not rely on any law at all. Their program ignored and defied all law. That this is so will appear from many acts and statements, of which I cite but a few. I have already called your attention to the Fuehrer's remark before invading Poland that "The Victor is never asked whether he spoke the truth." In his speech to all military commanders on November 23, 1939, he reminded them that at the moment Germany had a pact with Russia, but declared, "Agreements are to be kept only as long as they serve a certain purpose." Later on in the same speech he announced, "A violation of the neutrality of Holland and Belgium will be of no importance." A Top Secret document, entitled "Warfare as a Problem of Organization", dispatched by the Chief of the High Command to all Commanders on April 19, 1938, declared that "the normal rules of war towards neutrals must be considered to apply on the basis whether operation of rules will create greater advantages or disadvantages for belligerents." And from the files of the German Navy Staff, we have a "Memorandum on Intensified Naval War," dated October 15, 1939, which begins by stating adesire to comply with International Law, "However," it continues, "if decisive successes are expected from any measure considered as a war necessity, it must be carried through even if it is not in agreement with international law," International Law, natural law, German law, any law at all was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do. That men may be protected in relying upon the law at the time they act is the reason we find law of retrospective operation unjust. But these men cannot bring themselves within the reason of the rule which in some systems of jurisprudence prohibits ex post facto laws. They cannot show that they ever relied upon International Law in any state or paid it the slightest regard. wax crimes contained in the Charter, I have outlined to you the systematic course of conduct toward civilian populations and combat forces which violates international conventions to which Germany was a party. Of the criminal nature of these acts at least, the defendants had, as we shall show, clear knowledge.
Accordingly, they took pains to conceal their violations. It will appear that the defendants Keitel amd Jodl were informed by official legal advisors that the orders to brand Russian prisoners of war, to shackle British prisoners of war, and to execute commando prisoners were clear violations of International Law, Nevertheless, these orders were put into effect. The same is true of orders issued for the assassination of General Giraud and General Weygand, which failed to be executed only because of a ruse on the part of Admiral Canaris, who was himself later executed for his part in the plot to take Hitler's life on July 20, 1944. humanity. Chief among these are mass killings of countless human beings in cold blood. Does it take these men by surprise that murder is treated as a crime? the crime of plotting and waging wars of aggression and wars of violation of nine treaties to which Germany was a party. There was a time, in fact I think the time of the first World War, when it could not have been said that war inciting or war making was a crime in law, however reprehensible in morals. for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding fire arms to bare knuckles, made it a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate war. The age of imperialistic expansion during the Eighteenth and Nineteenth Centuries added the foul doctrine, contrary to the teachings of early Christian and International Law scholars such as Gretius, that all wars are to be regarded as legitimate wars.
The sum of these two doctrines was for a time to give war-making a complete immunity from accountability to law. Plain people, with their earthy common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunity. Statesmen and international lawyers at first cautiously responded by adopting rules of warfare designed to make the conduct of war more civilized. The effort was to set legal limits to the violence that could be done to civilian populations and to combatants as well. ever, that the law's condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war, but also the waging in any way of uncivilized wars - wars of aggression. The world's statesmen again went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920's did outlaw aggressive war. and that unjust wars are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy and Japan, in common with practically all nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. This pact altered the legal status of a war of aggression. As Mr Stimson, the United States Sectretary of State put it in 1932, such a war of aggression "is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing * * *By that very act, we have made legal precedents and have given the legal profession the task of reexamining many of its codes and treaties."
International Disputes, signed by the representatives of forty-eight governments, declared that " a war of aggression constitues * * * an international crime." The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that " war of aggression constitues an international crime against the human species," meaning of this evolution in the legal thought of the world, is not a defense or a mitigation. If anything, it aggrevates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. Indeed, by their own law -- had they heeded any law -- these principles were binding on these defendants. Article 4 of the Weimar Constitution provided that "The generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich." Can there be any doubt that the outlawry of aggressive war was one of the "generally accepted principles of international law" in 1939? are inherently criminal. War inevitably is a course of killings, assualts, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave warmakers subject to judgment by the usually accepted principles of the law of crimes.
bind us all, does contain new law I still do not shrink from demanding its strict application by this tribunal. The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives. Charter. But International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accented customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthend International Law. International Law is not capable of development by the normal processes of legislation, for there is no continuing international authority. Innovations and revisions in International Law are brought about by the actions of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the Common Law, through decisions reached from time to time in adapting settled principles to new situations. The fact is that when the law evolves by the case method, as did the Common Law and as International Law must do if it is to advance at all, it advances at the expense of these who wrongly guessed the law and learned too late their error. The law, so far as International Law can be decreed, had been clearly pronounced when these acts took place. Hence we are not disturbed by the lack of judicial precedent for the inquiry we propose to conduct. of crimes, set out in the Charter, whose perpetrators this Tribunal is convened to judge and punish fittingly.
The standards for war crimes and crimes against humanity are to familiar to need comment. There are, however, certain novel problems in applying other precepts of the Charter which I should call to your attention.
or wage a war of aggression, or a war in violation of international treaties, agreements, and assurances, or to conspire or participate in a common plan to do so is a crime. to define a war of aggression. Abstractly, the subject is full of difficulty and all kinds of troublesome hypothetical cases can be conjured up. It is a subject which, if the defense should be permitted to go afield beyond the very narrow charge in the Indictment, would prolong the trial and involve us in insoluble political issues. But so far as the question can properly be involved in this case, the issue is one of no novelty and is one on which legal opinion has well crystalized. on this subject is the Convention for the Definition of Aggression signed at London on July 3, 1933 by Roumania, Estonia, Latvia, Poland, Turkey, the Soviet Union, Persia and Afghanistan. The subject has also been considered by international committees and by commentators whose views are entitled to the greatest respect. It had been little discussed prior to the First World War but has received much attention as International Law has evolved its outlawry of aggressive war. In the light of these materials of International Law, and so far as relevant to the evidence in this case, I suggest that an "aggressor" is generally held to be that state which is the first to commit any of the following actions:
(1) Declaration of war upon another State:
(2) Invasion by its armed forces, with or without another State:
(3) Attack by its land, naval, or air forces, with tory, vessels or aircraft of another State:
and (4) The provision of support to armed bands formed in And I further suggest that it is the general view that no political, military, economic or other considerations shall serve as an excuse , or justification for such aggressive actions; but of course the exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not of course constitute a war of aggression.
of a conspiracy to provoke and wage an aggressive war is prepared and presented. By this test each of the series of wars begun by these Nazi leaders was unambiguously aggressive. we bear in mind the difference between our charge that this war was one of aggression and a position that Germany had no grievances. We are not inquiring into the conditions which contributed to causing this war. They are for history to unravel. It is no part of our task to vindicate the European status quo as of 1933, or as of any other date. The United States does not desire to enter into discussion of the complicated pre-war currents of European politics, and it hopes that this trial will not be protracted by their consideration. The remote causations avowed are too insincere and inconsistent, too complicated and doctrinaire to be the subject of profitable inquiry in this trial, A familiar example is to be found in the "Lebensraum" slogan, which summarized the contention that Germany needed more living space as a justification for expansion. At the same time that the Nazis were demanding more space for the German people, they were demanding more German people to occupy space. Every known means to increase the birth rate, legitimate and illegitimate, was utilized. "Lebensraum" represented a vicious circle of demand -- from neighbors more space, and from Germans more progeny. We need not investigate the verity of doctrines which led to constantly expanding circles of aggression. It is the plot and tha act of aggression which we charge to be crimes.
however objectionable it finds the status quo, aggressive warfare is not a legal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods -- persuasion, propaganda, economic competition, diplomacy - were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbors in order to effectuate a foreign policy which they know could not be accomplished by measures short of war. And that is as far as we propose or need to inquire, because that is as far as we accused. part of those who commit acts defined as crimes, or who ineite others to do so, or who join a common plan with other persons, groups or organizations to bring about their commission. The principle of individual responsibility for piracy and brigandage, which have long been recognized as crime punishable under International Law, is old and well established. That is what illegal warfare is. This principle of personal liability is a necessary as well as a logical one if International Law is to render real help to the maintenance of peace. An International Law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our Constitution was that the laws of the Confederation, which operated only on constituent states, were found ineffective to maintain order among them. The only answer to recalcitrance was impotence or war.
Only sanctions which roach individuals can peacefully and effectively be enforced. Hence, the principal of the criminality of aggressive was is implemented by the Charter with the principal of personal responsibility. poration, commits a crime is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of a personal immunity. criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by theorders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of its statesmen. It cannot tolerate so vast an area of legal irresponsibility.
Even the German Military Code provides,and I quote:
"If the execution of a miliatry order in the responsibility therefor.
However, the obeying sub ordinate will share the punishment of the participant:
(1) if he has exceeded the order given to him, or (2)
gression." (Reichsgesetzblatt 1926 No.37, p.278,Art.47) which one commits an act should be disregarded in judging its legal effect. A conscripted private on a firing squad cannot be expected to hold an inquest on the validity of the execution.
The Charter implies common sense limits to liability just as it places common sense limits upon immunity. But none of these men before you acted in minor parts. Each of then was entrusted with broad discretion and exercised great power and know; the purpose of the acts they were committing. Their responsibility is correspondingly great and may not be shifted to that fictional being, "the State", which can not be produced for trial, can not testify, and can not be sentenced. responsibility is recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which the defendant has become a party. I need not discuss the familiar principles of such liability, Every day in the court, of countries associated in this prosecution, men are convicted for acts that they did not personally commit but for which they were held responsible because of membership in illegal combinations or plans or conspiracies. are certain political and police organizations which the evidence will show to have been instruments of cohesion in planning and executing the crimes I have detailed. Perhaps the worst of the movement were the Leadership Corps of the NSDAP, the Schultzstaffel or "SS", and the Sturmabteilungen or "SA", and the subsidiary formations which these include. These were the Nazi leadership, espionage, and policing groups. They were the real government, above and outside of any law. Also accused as organizations are the Reich Cabinet and the Secret State Police, or Gestapo, which were fixtures of the Government but animated solely by the Nazi Party. was done in the SS, membership in all these militarized organizations was voluntary. The police organizations were recruited from ardent partisans who enlisted blindly to do the work the leaders planned.
The Reich Cabinet was the governmental facade for Nazi Party Govermnet and in its members legal as well as actual responibility was vested for the entire program. Collectively they were responsible for the program in general, individually they were responsible for particular segments of it. The finding which we ask you to make, that those are criminal organizations, will subject members to punishment to be hereafter determined by appropriate tribunals, unless some personal defense - such as becoming a member under duress, under threat to person, to family, or inducement by false representation, or the like can be established. Every member will have a chance to be heard in the subsequent forum on his personal relation to the organization, but your finding in this trial will conclusively establish the criminal character of the organization as a whole. High Command and the General Staff of the German Armed Forces. We recognize that to plan warfare is the business of professional soldiers in every country. But it is one thing to plan strategic moves in the event war comes, and it is another thing to plot and intrigue to bring on that war. We will prove the leaders of the German General Staff and of the High Command to have boon guilty of just that. Military men are not before you because they have served their country. They are here because they mastered it, and along with those others, drove it to war. They are not here because they lost the war but because they started one. Politicians may have thought of them as soldiers, but soldiers know they were politicians. We ask that the General Staff and the High Command, as defined in this Indictment, be condemmed as a criminal group whose existence and tradition constitute a standing menace to the peace of the world. and will not stand alone in punishment. Your verdict of "guilty" against those organizations will render prima facie guilty, as nearly as we can learn, many thousands of members now in custody of United States forces and of other Armies.
criminal by the standards I have outlined, is the responsibility committed by the Charter to this Tribunal. It is the first court ever to undertake the difficult task of overcoming the confusion of many tongues and the conflicting concepts of just procedure among divers systems of law, so as to reach a common judgment. The tasks of all of us are such as to make heavy demands on patience and good will. Although the need for prompt action has admittedly resulted in imperfect work on the part of the prosecution, four great nations bring you their hurriedly assembled contributions of evidence. What remains undiscovered we can only guess. We could, with witnesses' testimony, prolong the recitals of crime for years - but to what avail? We shall rest the case when we have offered what seems convincing and adequate proof of the crimes charged without unnecessary cumulation of evidence. We doubt very much whether it will be seriously denied that the crimes I have outlined took place. The effort will undoubtedly be to mitigate or escape personal responsibility. States is perhaps in a position to be the most dispassionate, for, having sustained the least injury, it is perhaps the least animated by vengeance. Our American cities have not been bombed by day or night, by humans, and by robots. It is not our temples that have been laid to ruins. Our countrymen have not had their homes destroyed over their heads. The menace of Nazi aggression, except to those in actual service, has seemed less personal and immediate to us than to European peoples. But while the United States would not be first in rancer, it is not second in determination that the forces of law and order be made equal to the task of dealing with such international lawlessness as I have recited here. across the Atlantic, drained its resources, and burdened itself with debt to help defeat Germany, But the real hope and faith that has sustained the American people in these great efforts was that victory for ourselves and our Allies would lay the basis for an ordered international relationship in Europe and would end the centuries of strife on this embattled continent.
in the belief that it might be confined to a purely European affair. In the United States, we have tried to build an economy without armament, a system of government without militarism, and a society where men are not regimented for war. This purpose, we know now, can never be realized if the world periodically is to be embroiled in war. The United States cannot, generation after generation, throw its youth or its resources onto the battlefields of Europe to redress the lack of balance between Germany's strength and that of her enemies, and to keep the battles from our shores. hopes of other nations, can never be fulfilled if those nations are involved in a war every generation so vast and devastating as to crush the generation that fights and burden the generation that follows, Experience has shown that wars are no longer local. All modern wars become world wars eventually. And none of the big nations at least can stay out. If we cannot stay out of wars, our only hope is to prevent wars. to contend that in itself your decision under this Charter can prevent future wars. Judicial action always comes after the event. Wars are started only on the theory and in the confidence that they can be won. Personal punishment, to be suffered only in the event the war is lost, will probably not be sufficient deterent to prevent a war where the warmakers feel the chances of defeat to be negligible. inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggessors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to law.
This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against the rights of their neighbors. by considering the law or your judgment in isolation. This trial is part of the great effort to make the peace more secure. One step in this direction is the United Nations organization, which may take joint political action to prevent war if possible, and joint military action to insure that any nation which starts a war will lose it. This Charter and this trial, implementing the Kellogg-Briand Pact, constitute another step in the same direction - juridical action of a kind to ensure that those who start a war will pay for ir personally. dividuals, it is not the triumph of either group alone that is committed to your judgment. Above all personalities there are anonymous and impersonal forces whose conflict makes up much of human history. It is yours to throw the trength of the law back of either the one or the ether of these forces for at least another generation. What are the real forces that are contending before you? defendants represent, the forces that would advantage and delight in their acquittal, the forces with which they have identified themselves and whose crimes they have committed, are; the darkest and most sinister forces in society - dictatorship and oppression, malevolence and passion, militarism and lawlessness. By their fruits we best know them. Their acts as we shall recount them before you, have bathed the world in blood and set civilization back a century. They have subjected their European neighbors to every outrage and torture, every spoliation and deprivation that insolence, cruelty, and greed could inflict.
They have brought the German people to the lowest pitch of wretchedness, from which they can entertain no hope of early deliverance. They have stirred hatred and melted domestic violence on every continent. There are the things that stand in the dock shoulder to shoulder with these prisoners.
The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators. have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst crimes. The refuge of the defendants can be only their hope that International Law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocence in law. We challenge that proposition,' to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of International Law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and womwn of good will in all countries may have "leave to live by no man's leave , underneath the law".
THE PRESIDENT: The tribunal will now adjourn until 10 o'clock tomorrow morning.
(Whereupon at 1700 hours the Tribunal adjourned, to reconvine at 1000 hours the following day.)
THE PRESIDENT: Before the Chief Prosecutor for the United States proceeds to present the evidence on Count 1, the Tribunal wishes me to announce the decision on the application made on behalf of the Defendant Julius Streicher by his counsel that his condition should be examined. It has been examined by three medical experts on behalf of the Tribunal and their report has been submitted to and considered by the Tribunal; and it is as follows:
"1. The Defendant Julius Streicher is same.
"2. The Defendant Julius Streicher is fit to appear before the Tribunal, and to present his defense.
"3. It being the unanimous conclusion of the examiners that Julius Streicher is sane, he is for that reason capable of understanding the nature and policy of his acts during the period of time covered by the indictment." trial against Julius Streicher will, therefore, proceed. of counsel for Bormann, whom the Tribunal have decided to try in his absence in pursuance of Article 12 of the Charter, Counsel for Bormann have made a motion that the trial against him should be postponed, but in view of the fact that the provisions of the Charter and the Tribunal's rules of procedure have been strictly carried out in the notices which have been given, and the fact that counsel for Bormann will have ample time before they are called upon to present defense on his behalf, the motion is denied.
evidence on Count 1.
COLONEL STOREY: May it please the Tribunal: As the first order of business concerning the evidence, it shall be my purpose to outline the method of capturing, assembling, processing and authenticating documents to be presented in evidence by the United States. I shall also describe and illustrate the plan of presenting documents and briefs relating to the United State's Case in Chief. were attached to each Army and subordinate organization specialized military personnel whose duties were to capture and preserve enemy information in the form of documents, records, reports and other files. The Germans kept accurate and voluminous records. They were found in Army headquarters, government buildings and elsewhere. During the later stages of the war, particularly, such documents were found in salt mines, buried in the ground, behind false walls and many other places believed secure by the Germans, For example, the personal correspondence and diaries of Defendant Rosenberg, including his Nazi Party correspondence, were found behind a false wall in an old castle in Eastern Bavaria, The records of the OKL, or Lutfwaffe -of which the Defendant, Goering, was Commander-in-Chief -- equivalent to the Headquarters of the Air Staff of our Army Air Forces of the United States, were found in various places in the Bavarian Alps Most of such Luftwaffe records were assembled and processed by the Army at Berchtesgaden. placed the materials under guard and later assembled them in temporary Document Centers, Many times the records were so voluminous that they were hauled by fleets of Army trucks to document centers. Finally, as the territory seized was made secure, Army zones were established and each Army established a fixed document center to which were transported the assembled documents and records. Later this material was indexed and cataloged, which was a slow process.