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Architects of Genocide
The Victorious Allies Put Hitler's Henchmen in the Defendant's Box at Nüremberg
Dawn came early to Reims, France, on the morning of May 7, 1945. This was not nature's dawn, but then the darkness which it ended was not the brief and pretty peace of nature's night. The darkness was a maelstrom made of men, bent on Holocaust and war. As the dawn finally came, the light of Europe's liberation from National Socialism illuminated the deeds of those evil men, who now faced judgment for having turned much of the world on a perverted Axis of persecution, the darkest point of which was Nazi Germany.
At Reims, France, at 2:41 A.M., May 7, 1945, General Alfred Jodl, chief of the Operations Staff of the German High Command, signed the instrument of unconditional surrender of all German land, sea, and air forces.
The newborn peace found more than 30 million dead, many of them civilians and Allied prisoners of war who endured a crimson march of displacement, internment, enslavement, deprivation, involuntary labor, quasimedical experimentation, and a myriad of other tortures, before their demise.
Genocide, the wholesale slaughter of the Jews wherever they could be found, was to be the legacy of Hitler's Third Reich. The entire industrial might of a modern Western nation had been subverted, harnessed, to create an industry of death. German companies submitted bids, hoping to win lucrative contracts to build ovens in which to burn Jews, to build chambers in which to gas Jews, and the right to slave labor, supplied by the Jews and captured Slavs. It was clear to the victors that something new was necessary, to assign blame for the terrible war and its very modern atrocities. They decided that there were to be war crimes trials, something that had never been done before. Rather than dispense summary judgment and execute the Nazi leadership, the rule of law would be reestablished in Germany, after twelve lawless years of Nazi rule.
The bringing to justice of those still alive and responsible at the highest level of Nazi authority for these perfidious acts was part of the unfinished business of World War II, which the unconditional surrender of Germany made possible but did not itself accomplish. Bringing that grave and arduous task to a conclusion became the job of the International Military Tribunal at Nüremberg, Germany, which heard and decided the Trial of the Major War Criminals of the European Axis between November 20, 1945, and September 30, 1946. It is no wonder, then, that the chief counsel for the United States at the Nüremberg trial, justice Robert H. Jackson, declared that "Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events....This trial has a scope that is utterly beyond anything that has ever been attempted that I know of in judicial history."
Just as V-E Day made good the Allied promise of unconditional surrender, so the Nüremberg trial was the culmination of Allied declarations of intention to bring to justice the major figures in the European Axis for their acts of aggression and the atrocities committed by their minions during the Second World War. On October 25, 1941 -- even before the entry of the United States into the war -- President Roosevelt and Prime Minister Churchill made simultaneous statements warning Axis leaders that their "crimes" would not go unpunished.
In order to gather evidence against such suspected war criminals, fifteen nations, including the United States and Britain (but not the Soviet Union), formed the United Nations War Crimes Commission, which first convened in London on October 26, 1943. Shortly thereafter, on November 1, 1943, the leaders of the United States, Britain, and the Soviet Union issued the Moscow Declaration, which called for the following:
[A]t the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the atrocities, massacres, and executions, will be sent back to the countries where their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free government which will be erected therein...[but this policy] is without prejudice to the case of German criminals whose offenses have no particular geographical localization, and who will be punished by joint decision of the Governments of the Allies. (Emphasis added.)
It was this latter category of alleged war criminals which formed the caseload of the International Military Tribunal at Nüremberg, and which gave to Robert Jackson the greatest litigative challenge of his career.
In a memorandum to President Roosevelt, dated January 22, 1945, the secretaries of state and war and the attorney general recommended "ways and means for carrying out the policy regarding the trial and punishment of Nazi criminals," as follows:
After Germany's unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantage of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn over these criminals, and, in any event, only a few individuals could be reached in this way.
We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the Judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.
The three cabinet officers further recommended that "the trial of the prime leaders [be] by an international military commission or military court, established by Executive Agreement of the heads of State of the interested United Nations." Such a court, the officers added, could consist of persons appointed by the "Big Four" powers of Britain, France, the United States, and the Soviet Union, and by other Allied countries.
The cabinet officers also suggested that the prosecution of the major Nazi leaders be directed by "a full-time executive group" composed of lead counsel from the same Big Four powers.
At first, the cabinet officers' call for a war crimes tribunal met with less enthusiasm abroad than at home. In an aide-mèmoire to the U.S. administration dated April 23, 1945, the British government held "that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war." Consequently, London argued "that execution without trial is the preferable course."
The Honorable Robert Jackson, associate justice of the United States Supreme Court, disagreed. In a speech prepared for delivery to the American Society of International Law on April 13, 1945 (the day after President Roosevelt's death), Jackson stated that "I am not so troubled as some seem to be over the problems of jurisdiction of war criminals or of finding existing and recognized law by which standards of guilt may be determined." However, Jackson also cautioned that "if you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict."
Thusly armed, Jackson set about forming a staff of attorneys for the coming war crimes litigation. Among the deputy prosecutors selected by Jackson were U.S. Army Gen. Telford Taylor, who later served as chief of counsel for War Crimes at the second round of trials held at Nüremberg before American judges between 1946 and 1949, and Thomas Dodd, who later served as a United States senator from Connecticut. He also opened an office in London, where he would meet with British, French, and Soviet representatives on the constitution and composition of the upcoming war crimes tribunal and its proceedings.
Jackson was not only America's chief prosecutor at Nüremberg, but also the president's representative at the Big Four talks in London during June-August 1945, where the rules of engagement for the International Military Tribunal would be written. Thus, Jackson possessed a power few prosecutors before or since him would have: to create the court before which he would appear, and to shape the substantive and procedural law which that court would apply to the cases he would present to it.
In giving shape to the Nüremberg trial, however, Jackson did not exercise absolute authority. Rather, he was obliged to work compromises in London with representatives of Britain, France, and the Soviet Union, each with its own separate legal tradition. In particular, Jackson attempted in London to reconcile the Anglo-American and Continental systems of jurisprudence. For example, Jackson and his London interlocutors had to fashion an indictment of those to be tried before the tribunal. In doing so, Jackson admitted that he "would not know how to proceed with a trial [as in Continental countries] in which all of the evidence had been included in the indictment. I would not see anything left for a trial, and, for myself, I would not know what to do in open court." In the end, Article 16 of the Charter of the International Military Tribunal, drafted as a compromise by Jackson and company at London, provided that "the Indictment shall include full particulars specifying in detail the charges against the Defendants."
Furthermore, Article 15(a) of the charter required the chief Allied prosecutors to undertake the "investigation, collection, and production before or at the Trial of all necessary evidence" (emphasis added). Arguing in favor of a more Continental approach, including an expedited form of trial practice and of a less rigid separation of the judicial and prosecutorial functions, was the Soviet representative, General Nikititchenko: "[T]he Soviet Delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case."
For his part, Jackson responded that the tribunal's "judges will have to inquire into the evidence and reach an independent decision....That is the reason why, at the very beginning, the position of the United States was that there must be trials, rather than political executions...(1) have no sympathy with these men [i.e., the likely defendants], but, if we are going to have a trial, then it must be an actual trial."
On August 8, 1945, Jackson was able to negotiate and obtain the Big Four's signatures on a Charter of the International Military Tribunal (IMT), an international executive agreement which provided for an independent panel of four judges (one each to be appointed by the American, British, French, and Soviet governments) responsible for drawing up its own rules of procedure, and empowered to impose convictions and sentences on war crimes defendants only upon the approval of at least three of its members. Furthermore, the charter which Jackson negotiated guaranteed to defendants the rights to detailed notice of the charges against them, to the assistance of counsel, to cross-examination of prosecution witnesses, to presentation of a defense, and to a full translation of court proceedings.
In return, Jackson agreed with his negotiating partners that the proceedings of the tribunal "need not be encumbered with the legalisms of Anglo-Saxon law." Article 19 of the charter stated: "The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to have probative value." Also, Article 18 required the tribunal to "confine the trial strictly to an expeditious hearing of the issues raised by the charges...."
On the subject of charges, Jackson helped in defining the following acts as crimes within the Jurisdiction of the tribunal for which individual responsibility could be found:
(a) Crimes Against Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor members of the civilian population in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:
(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
The charter's definition of war crimes was largely compatible with longstanding prohibitions in United States and international law, including Francis Lieber's Instructions for the Government of Armies of the United States in the Field, promulgated as General Orders No. 100 by President Abraham Lincoln on April 24, 1863, and the Hague Conventions of 1899 and 1907 Respecting the Laws and Customs of War on Land. However, the inclusion of crimes against peace among the charter's litany of actionable offenses was a bolder, more novel stroke by Jackson and the U.S. administration to, in the words of Telford Taylor, "establish the initiation of aggressive war as a crime under universally applicable international law." Also, the separate category accorded to crimes against humanity gave heightened legal attention and importance to the concept of "genocide" -- a concept newly named by a member of Jackson's Nüremberg staff -- the extermination of Jews and other minority groups under Nazi rule. The deputy prosecutor in question was Raphael Lemkin, who in later years lobbied intensively for U.S. ratification of the United Nations Genocide Convention.
Also on the subject of charges, Article 9 of the charter authorized the tribunal that a group or organization of which an individual defendant had been a member (e.g., the SS) "was a criminal organization." Article 10 in turn permitted any signatory state to the charter to bring individuals to trial in separate proceedings on charges that they had been members of such a criminal organization. "In any such case[s] the criminal nature of the group or organization is considered proved and shall not be questioned." Jackson pressed hard for the enactment of these provisions, because they "constitute[d] the means through which...a large number of people can be reached with a small number of long trials -- perhaps one main trial. The difficulty in our case [i.e., that of the United States] is that we have in the neighborhood of perhaps 200,000 prisoners. We don't want to have 200,000 trials."
On the subject of defenses, Jackson and the other Allied representatives prevented those at the top and those at the bottom of the Nazi chain of command from escaping legal responsibility for the criminal orders they gave or the ones they followed:
Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigation punishment.
Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
In his report to President Truman dated October 7, 1946, Jackson correctly concluded that the Charter of the IMT "made explicit and unambiguous what was theretofore...implicating International Law" -- that the planning and waging of aggressive war and the mass dislocating and killing of racial, religious, and ethnic minorities are crimes whose perpetrators, high and low, individual and organizational, will be held accountable for before the bar of justice. To Jackson, the charter was more than the rules of a particular court: "It is a basic charter in the international law of the future."
On August 29, 1945, Jackson and the other Allied prosecutors announced the indictment of twenty-four persons for trial before the IMT. The defendants included:
Hermann Goering, Reichmarschal of the German Air Force, chief of War Economy, minister-president of Prussia, and, from 1939 until April 23, 1945, Adolf Hitler's designated successor.
Rudolf Hess, the person to whom Hitler dictated his venomous political testament, Mein Kampf ("My Struggle"), and Nazi party chairman, who in May 1941 had parachuted into Scotland (where he was interned as a British prisoner of state for the duration of World War 11) in a madcap effort to negotiate peace with King George VI.
Joachim von Ribbentrop, the Nazi German foreign minister who negotiated Japan's adherence to the European Axis and who collaborated in the identification, deportation, and extermination of European Jewry.
Wilhelm Keitel, Hitler's closest military adviser, head of the High Command of the German Armed Forces, who issued orders for the wartime execution of Soviet commissars and of non-German civilians who acted in opposition to Nazi rule.
Ernst Kaltenbrunner, head of the Reich Security Main Office of the SS, and in that regard, overseer of the German Gestapo (secret state police).
Alfred Rosenberg, Reich minister of Eastern Occupied Territories and principal Nazi party ideologist.
Hans Frank, Hitler's main legal adviser and his governor over much of Poland.
Wilhelm Frick, author of the Nüremberg Laws of 1935 which dispossessed German Jews, Nazi minister of the Interior, and Reichsprotector of Bohemia and Moravia (now the Czech Republic).
Julius Streicher, self-proclaimed "Jew-Baiter Number One," publisher of the anti-Semitic Nazi newspaper Der Stuertner ("The Storm"), and principal organizer of the 1935 Nüremberg Rally at which Hitler announced his new laws against the Jews.
Walter Funk, Nazi minister of Economic Affairs and president of the Reichsbank which helped finance German wartime aggression and the Final Solution of the Jewish Question.
Hjalmar Horace Greeley Schacht, high-ranking prewar Reich economic adviser who later joined the German resistance to Hitler.
Karl Doenitz, grand admiral of the German Navy, Hitler loyalist, and acting German head of state from April 30, 1945 (the date of Hitler's suicide) to May 22, 1945 (the date of Doenitz's arrest by Allied authorities).
Erich Raeder, German Admiral Doenitz's predecessor as naval commander in chief.
Baldur von Schirach, head of the Hitler Youth and Wartime Gauleiter (Nazi leader) of Vienna, Austria, whose paternal grandfather had served as a major in the U.S. Army during the American Civil War and as an honorary pallbearer at Abraham Lincoln's funeral.
Fritz Sauckel, Nazi party leader and governor of Thuringia, Germany, and Reich plenipotentiary for the mobilization of labor, including slave labor.
Alfred Jodl, chief of the Operations Staff of the German High Command.
Martin Bormann, Hitler's private secretary and head of the chancellery of the Nazi party, who was missing at the time of the Nüremberg trial and so was prosecuted there in absentia.
Franz von Papen, who preceded Hitler as German chancellor and who helped engineer Hitler's appointment as chancellor in January 1933.
Artur Seyss-Inquart, SS general, Reich governor of Austria, and Reich commissioner of the German-occupied Netherlands.
Albert Speer, a Hitler confidant and wartime German minister for Armaments and Munitions.
Konstantin von Neurath, von Ribbentrop's predecessor as Nazi foreign minister.
Hans Fritzsche, Nazi newscaster and second-ranking official under Josef Goebbels in the Nazi Propaganda Ministry.
Two other persons were also indicted: Robert Ley, founder and head of the Nazi German Labor Front and anti-Semitic agitator; and Gustav Krupp, dean of the German arms industry which supplied Hitler with the means for his war of aggression. However, Ley committed suicide in his Nuremberg cell on October 25, 1945, and Krupp was found unable to stand trial for health reasons by the IMT. By a three-to-one vote, the tribunal rejected Jackson's November 1945 request to substitute Gustav's son, Alfried Krupp, as a defendant. (Alfried Krupp was an SS member who had managed his family's armaments industry since his father's first stroke in 1941, and who had participated in the use of slave labor to achieve war production aims.) Only the Soviet judge voted to grant Jackson's motion.
The resulting proceedings before the Tribunal at Nüremberg were an enormous exercise, as reported by Jackson himself:
The trial began on November 20, 1945, and occupied 216 days of trial time. Thirty-three witnesses were called and examined for the prosecution. Sixty-one witnesses and 19 defendants testified for the defense; 143 additional witnesses gave testimony by interrogatories for the defense. The proceedings were conducted and recorded in four languages -- English, German, French, and Russian -- and daily transcripts in the language of his choice was provided for each prosecuting staff and all counsel for defendants. The English transcript of the proceedings covers over 17,000 pages.
In preparation for the trial, over 100,000 captured German documents were screened or examined and about 10,000 were selected for intensive examination as having probable evidentiary value. Of these, about 4,000 were translated into four languages and used, in whole or in part, in the trial as exhibits.
By far the most damaging evidence introduced against the defendants at Nüremberg were the "documents of their own making, the authenticity of which has not been challenged except in one of two cases." Jackson, his fellow prosecutors, and their staffs, therefore deserve great credit for their meticulous preparation of the paper trail which led the majority of the defendants from the dock to the gallows or prison.
It is therefore unfair and unfortunate that Jackson's performance at Nüremberg has been criticized, disproportionately so, for his March 1946 cross-examination of Hermann Goering. The expectations placed on Jackson for that examination were unrealistically high. For example, the alternate British judge at Nüremberg, Sir Norman Birkett, asserted that "It will be a duel to the death between the representative of all that is worthwhile in civilization and the last important surviving protagonist of all that was evil." Judged by such hyperbole, Jackson's plodding and somewhat long-winded manner of interrogation was deemed a failure in the face of Goering's confident and quick-witted style of response. At one point during his examination of Goering, Jackson's frustration with the witness, exacerbated by his fatigue from months of litigation and by his sense of public disappointment in his confrontational skills, caused him to dissolve into confusion as he asked, "Now, was the leadership principle supported by and adopted by you [Goering] in Germany because you believed that no people are capable of self-government, or that you believed that some may be, but not the German people: or for that matter whether some of us are capable of using our own system but it should not be used in Germany." In reply, Goering arrogantly but effectively stated that although he did not understand the question, he would try to answer it anyway. Goering was not to get away with murder, but he at least succeeded in getting Jackson's goat.
Nevertheless, Jackson and his fellow Nüremberg prosecutors were largely successful in their courtroom efforts. In its judgment of September 30, 1946, the International Military Tribunal found nineteen of the twenty-two defendants guilty on one or more of the counts of the indictment. Five defendants -- Goering, von Ribbentrop, Keitel, Rosenberg, and Jodl -- were convicted on all four counts of "a common plan or conspiracy," crimes against peace, war crimes, and crimes against humanity. Those five defendants, and the also criminally convicted Kaltenbrunner, Frank, Frick, Streicher, Sauckel, Bormann, and Seyss-Inquart, were sentenced to death. The remaining criminally convicted defendants received sentences ranging from fifteen years to life imprisonment. Only three Nüremberg defendants -- Schacht, von Papen, and Fritasche -- were wholly acquitted. The tribunal's Soviet judge, Nikitchenko, dissented from these acquittals and also argued for a death sentence for Hess. Furthermore, the tribunal found four Nazi organizations to be criminal in character: the leadership corps of the Nazi party; the SS; the SID, or Security Service of the SS; and the Gestapo. In the end, Jackson achieved the goal he and the U.S. government had set for the Nüremberg proceedings: a fair trial, with culpability apportioned to individuals and groups based only on the evidence provided to an independent tribunal.
Jackson's closing argument to the tribunal of July 26, 1946, was the first of four final speeches for the prosecution. Jackson in his argument focused on count one of the indictment and the evidence of a common plan or conspiracy. The British lead prosecutor, Lord Shawcross, then argued for convictions for crimes against peace under count two of the indictment. The French and Soviet prosecutors then spoke as to counts three and four -- war crimes against humanity.
In his closing argument, Jackson was clearly in his element. As one of his Nuremberg colleagues, Telford Taylor, noted: "Jackson had shaken off the malaise contracted in his encounter with Goering. He was most comfortable and skilled beyond his fellows, in the preparation and presentation of courtroom arguments. At the lectern he was the picture of confidence."
Jackson rose to the occasion of his argument and spoke as the advocate for civilization against those who had sought and almost achieved the conquest of the world.
An associate justice of the United States Supreme Court doesn't get to try cases; those days are long gone by the time an attorney makes his way to the most prestigious position in the American legal system -- unless that attorney happens to be Robert Houghtwout Jackson. Appointed to the Supreme Court in 1941 by President Franklin D. Roosevelt, Jackson was granted a leave of absence in 1945 to participate in the prosecution of Nazi war criminals. Jackson was to head the U.S. delegation and serve as the lead prosecutor.
The path that led Jackson to Nüremberg began in 1892, in Spring Creek, Pennsylvania. He received his legal training at Albany Law School, in Albany, New York. After graduating and passing the bar, he practiced law in Jamestown, New York, until 1934, when he was appointed general counsel for the U.S. Bureau of Internal Revenue in 1934.
Jackson prospered in Washington, D.C., and was tapped by FDR in 1936 to serve as assistant attorney general of the United States, where he distinguished himself by his skillful prosecutions of major U.S. corporations charged with violating antitrust laws. Promoted in 1938, he served as solicitor general of the United States for two years. In 1940 Jackson headed the justice Department after he was chosen to become U.S. attorney general. In 1941, FDR appointed him to the Supreme Court. He was also FDR's frequent fishing and poker-playing companion.
Four years after his appointment to the bench, Jackson's service was interrupted when President Harry S. Truman sent word to Jackson that his trial expertise was needed in Germany, asking him to serve as American chief counsel for the prosecution in the trials at Nüremberg. On May 2, 1945, Truman issued Executive Order 9547, appointing the fifty-three-year-old Jackson "as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal." He accepted; and on May 3, 1945, Jackson took the reins of what would prove to be one of the most significant trials in the history of humanity.
Following the Nüremberg trials, Jackson returned to the United States and his place on the Supreme Court. His writings include The Case Against the Nazi War Criminals (1946) and The Nürnberg Case (1947).
He remained a sitting (if sometimes absent) justice until his death on October 9, 1954.
Jackson's summation at Nüremberg ranks among the finest arguments ever delivered; if ever there was a blueprint for a prosecution close, this is it. There are so many outstanding aspects of this argument it is difficult to know where to begin. First and foremost, Jackson recognized his role in this extraordinary trial. He had to take the vast scope of the Nazis' atrocities and give it a contextual framework in order to allow his jury, made up of the members of the IMT, to deal with the sheer enormity of the deeds. Next, he had to strike a clear and compelling central theme, one which would faithfully serve him through the argument and more importantly, strike a resounding chord with his jury. Third, he had to separate the wheat from the chaff, clear the trial of the peripheral material brought by the defense, and keep the jurors focused on the significant facts and relevant issues. Finally, Jackson had to organize the evidence to assist the jurors in dealing with the huge amount of evidence that was introduced.
It is difficult for the mind to come to grips with the Holocaust. The sheer enormity of the crimes is so beyond ordinary human experience that there is no context in which to begin evaluating the defendants' misdeeds, assess blame, and then move on to assign punishment. One of Jackson's main tasks was to put the crimes of the Nazi leadership into historical perspective. Very early in his masterful close he sets about the job: "No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade."
In this passage and several others early in the close, Jackson captures the vast scope of events and thus begins the process of allowing the tribunal -- sitting as jury -- to place these crimes into a context where they might more readily be able to make their evaluations.
Jackson clearly establishes his central theme, "It is their overt acts which we charge to be crimes," very early and ties the balance of his close to the theme. Throughout this fairly lengthy argument, Jackson returns to a simple conspiracy theory, one supported by the Nazis' overt acts. Again and again, Jackson pounds home that the defendants are being tried not for the reprehensible beliefs they held, but for the reprehensible deeds they had done.
Jackson recognized that there is a dynamic in all trials whereby one side will attempt to keep the trial focused on clearly defined issues. This side -- here the prosecution -- will struggle to keep peripheral issues from coming center stage and somehow obfuscating what they perceive to be relevant concerns of the trial. In stark contrast, the opposing side will find it to their advantage to bring in matter not always central to the case. This time-honored tactic of attempting to shift the focus of the trial to a more agreeable footing was undertaken by the defense. However, early in his summation, Jackson squarely and forcefully discounts the defense attempt and zeroes in on the main issue: "But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for possession of obnoxious ideas....It is not their thoughts, it is their overt acts which we charge to be crimes..." Jackson brushed aside the peripheral issues the defense attempted to interject into the trial and focused the jury on the only relevant issue, that of a conspiracy. Once focused on the conspiracy and the overt acts establishing it, all else is surplusage. Jackson told the jury: "I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full and put before you only the bold outlines of a case that is impressive in its simplicity...I must leave it to experts to comb the evidence and write volumes on their specialties, while I picture in broad strokes the defenses whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, 'splash at a ten-league canvas with brushes of comet's hair.'"
The prosecutor reaps a bitter harvest if the jury does not understand its function. It is the prosecution that drives the criminal trial; the prosecution must make its case clear before the jury. Confusion results in hung juries, or even acquittals. The prosecution must therefore be at pains to keep the law and the facts as clear as possible. Jackson, recognizing his obligation, told his multinational jury: "The strength of the case against these defendants under the conspiracy count, which it is the duty of the United States to argue, is in its simplicity. It involves but three ultimate inquiries: first, have the acts defined by the charter as crimes been committed; second, were they committed pursuant to a common plan or conspiracy; third, are these defendants among those who are morally responsible?" Having clearly established the law that the jury will use, Jackson then spent the balance of his argument laying out the overt acts that proved the conspiracy.
Jackson recognized that it is difficult for any jury to retain mountains of information. There are times when the jurors are so overburdened with facts and details they lose the ability to retain the most meaningful material. The Nüremberg trial presented such a problem. There was so much testimony that the jurors' ability to retain the important evidence was severely strained. A lawyer who can help organize the evidence into manageable chunks has done a tremendous service to the jury and, more importantly, to his client. The most efficient and effective tool in this regard is a simple list, which allows for meaningful compilation of material. Jackson employed a list, one that consisted of the five groups of overt acts which made up the conspiracy. Under each of the five headings he was able to bunch a number of events without having to fear that he was overburdening his audience to the point where he would lose them. And in one deft moment near the end of his close, Jackson summed up the defendants and the key role each had played in the just-ended war:
These men in this dock, on the face of the record, were not strangers to this program of crime, nor was their connection with it remote or obscure. We find them in the very heart of it. The positions they held show that we have chosen defendants of self-evident responsibility. They are the very top surviving authorities in their respective fields and in the Nazi state.
No one lives who, at least until the very last moments of the war, outranked Göring in position, power, and influence.
No soldier stood above Keitel and Jodl, and no sailor above Raeder and Dönitz.
Who can be responsible for the duplicitous diplomacy if not the Foreign Ministers, von Neurath and [von] Ribbentrop, and the diplomatic handy man, von Papen?
Who should be answerable for the oppressive administration of occupied countries if Gauleiters, protectors, governors, and commissars such as Frank, Seyss-Inquart, Frick, von Schirach, von Neurath, and Rosenberg are not?
Where shall we look for those who mobilized the economy for total war if we overlook Schacht, and Speer, and Funk? Who was the master of the great slaving enterprise if it was not Sauckel? Where shall we find the hand that ran the concentration camps if it is not the hand of Kaltenbrunner?
And who whipped up the hates and fears of the public, and manipulated the party organizations to incite these crimes, if not Hess, von Schirach, Fritzsche, Bormann, and the unspeakable Julius Streicher?
The list of defendants is made up of men who played indispensable and reciprocal parts in this tragedy.
Jackson had left the jury with a clear picture of who each defendant was, and what each had done to merit a guilty verdict. Finally, justice would be done, reborn out of the ashes of war, in the courtroom at Nüremberg.
Delivered by Robert H. Jackson
Nüremberg, Germany, July 26, 1946
Mr. President and Members of the Tribunal:
An advocate can be confronted with few more formidable tasks than to select his closing arguments where there is great disparity between his appropriate time and his available material. In eight months -- a short time as state trials go -- we have introduced evidence which embraces as vast and varied a panorama of events as ever has been compressed within the framework of a litigation. It is impossible in summation to do more than outline with bold strokes the vitals of this trial's mad and melancholy record, which will live as the historical text of the twentieth century's shame and depravity.
It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be "progress." The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first.
These two-score years in this twentieth century will be recorded in the book of years as one of the most bloody in all annals. Two world wars have left a legacy of dead which number more than all the armies engaged in any war that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilization.
I shall not labor the law of this case. The position of the United States was explained in my opening statement. My distinguished colleague, the attorney general of Great Britain, will reply on behalf of all the chief prosecutors to the defendants' legal attack. At this stage of the proceedings, I shall rest upon the law of these crimes as laid down in the charter. The defendants, who except for the charter would have no right to be heard at all, now ask that the legal basis of this trial be nullified. This tribunal, of course, is given no power to set aside or to modify the Agreement Between the Four Powers, to which eighteen other nations have adhered. The terms of the charter are conclusive upon every party to these proceedings.
Of one thing we may be sure. The future will never have to ask, with misgiving: "What could the Nazis have said in their favor?" History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man.
But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The prosecution's case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case by one after another of the defendants that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubts of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation.
But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilization of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of international law had it not been utilized to goose-step the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge, and intent.
We charge unlawful aggression but we are not trying the motives, hopes, or frustrations which may have led Germany to resort to aggressive war as an instrument of policy. The law, unlike politics, does not concern itself with the good or evil in the status quo, nor with the merits of grievances against it. It merely requires that the status quo be not attacked by violent means and that policies be not advanced by war. We may admit that overlapping ethnological and cultural groups, economic barriers, and conflicting national ambitions created in the 1930s, as they will continue to create, grave problems for Germany as well as for the other peoples of Europe. We may admit too that the world had failed to provide political or legal remedies which would be honorable and acceptable alternatives to war. We do not underwrite either the ethics or the wisdom of any country, including my own, in the face of these problems. But we do say that it is now, as it was for sometime prior to 1939, illegal and criminal for Germany or any other nation to redress grievances or seek expansion by resort to aggressive war.
Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the counts charged against him in the indictment. Any result that the calm and critical judgment of posterity would pronounce unjust would not be a victory for any of the countries associated in this prosecution. But in summation, we now have before us the tested evidences of criminality and have heard the flimsy excuses and paltry evasions of the defendants. The suspended judgment with which we opened this case is no longer appropriate. The time has come for final judgment and if the case I present seems hard and uncompromising, it is because the evidence makes it so.
I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full and put before you only the bold outlines of a case that is impressive in its simplicity. True, its thousands of documents and more thousands of pages of testimony deal with an epoch, and cover a continent, and touch almost every branch of human endeavor. They illuminate specialties, such as diplomacy, naval development and warfare, land warfare, the genesis of air warfare, the politics of the Nazi rise to power, the finance and economics of totalitarian war, sociology, penology, mass psychology, and mass pathology. I must leave it to experts to comb the evidence and write volumes on their specialties, while I picture in broad strokes the offenses whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, "splash at a ten-league canvas with brushes of comet's hair."
The strength of the case against these defendants under the conspiracy count, which it is the duty of the United States to argue, is in its simplicity. It involves but three ultimate inquiries: first, have the acts defined by the charter as crimes been committed; second, were they committed pursuant to a common plan or conspiracy; third, are these defendants among those who are criminally responsible?
The charge requires examination of a criminal policy, not of a multitude of isolated, unplanned, or disputed crimes. The substantive crimes upon which we rely, either as goals of a common plan or as means for its accomplishment, are admitted. The pillars which uphold the conspiracy charge may be found in five groups of overt acts, whose character and magnitude are important considerations in appraising the proof of conspiracy.
The Nazi party seized control of the German state in 1933. "Seizure of power" is a characterization used by defendants and defense witnesses, and so apt that it has passed into both history and everyday speech.
The Nazi junta in the early days lived in constant fear of overthrow. Göring, in 1934, pointed out that its enemies were legion and said: "Therefore the concentration camps have been created, where we have first confined thousands of Communists and Social Democrat functionaries."
In 1933, Göring forecast the whole program of purposeful cruelty and oppression when he publicly announced: "Whoever in the future raises a hand against a representative of the National Socialist movement or of the state, must know that he will lose his life in a very short while."
New political crimes were created to this end, It was made a treason, punishable with death, to organize or support a political party other than the Nazi party. Circulating a false or exaggerated statement, or one which would harm the state or even the party, was made a crime. Laws were enacted of such ambiguity that they could be used to punish almost any innocent act. It was, for example, made a crime to provoke "any act contrary to the public welfare."
The doctrine of punishment by analogy was introduced to enable conviction for acts which no statute forbade. Minister of justice Görtner explained that National Socialism considered every violation of the goals of life which the community set up for itself to be a wrong per se, and that the act could be punished even though it was not contrary to existing "formal" law.
The Gestapo and the SD were instrumentalities of an espionage system which penetrated public and private life....
With all administrative offices in Nazi control and with the Reichstag reduced to impotence, the Judiciary remained the last obstacle to this reign of terror. But its independence was soon overcome and it was reorganized to dispense a venal justice. Judges were ousted for political or racial reasons and were spied upon and put under pressure to join the Nazi party.
The result was the removal of all peaceable means either to resist or to change the government. Having sneaked through the portals of power, the Nazis slammed the gate in the face of all others who might also aspire to enter. Since the law was what the Nazis said it was, every form of opposition was rooted out, and every dissenting voice throttled. Germany was in the clutch of a police state, which used the fear of the concentration camp as a means to enforce nonresistance. The party was the state, the state was the party, and terror by day and death by night were the policy of both.
From the moment the Nazis seized power, they set about by feverish but stealthy efforts, in defiance of the Versailles treaty, to arm for war. In 1933 they found an air force.
By 1939, they had twenty-one squadrons, consisting of 240 echelons or about 2,400 first-line planes, together with trainers and transports. In 1933 they found an army of three infantry and three cavalry divisions. By 1939 they had raised and equipped an army of fifty-one divisions, four of which were fully motorized and four of which were Panzer divisions. In 1933, they found a navy of one cruiser and six light cruisers. By 1939, they had built a navy of four battleships, one aircraft carrier, six cruisers, twenty-two destroyers, and fifty-four submarines. They had also built up in that period an armament industry as efficient as that of any country in the world.
These new weapons were put to use, commencing in September 1939, in a series of undeclared wars against nations with which Germany had arbitration and nonaggression treaties, and in violation of repeated assurances. On September 1, 1939, this rearmed Germany attacked Poland. The following April witnessed the invasion and occupation of Denmark and Norway, and May saw the overrunning of Belgium, the Netherlands, and Luxembourg. Another spring found Yugoslavia and Greece under attack, and in June 1941 came the invasion of Soviet Russia. Then Japan, which Germany had embraced as a partner, struck without warning at Pearl Harbor in December 1941 and four days later Germany declared war on the United States.
We need not trouble ourselves about the many abstract difficulties that can be conjured up about what constitutes aggression in doubtful cases. I shall show you, in discussing the conspiracy, that by any test ever put forward by any responsible authority, by all the canons of plain sense, these were unlawful wars of aggression in breach of treaties and in violation of assurances.
It is unnecessary to labor this point on the facts. Göring asserts that the Rules of Land Warfare were obsolete, that no nation could fight a total war within their limits. He testified that the Nazis would have denounced the conventions to which Germany was a party, but that General Jodl wanted captured German soldiers to continue to benefit from their observance by the Allies.
It was, however, against the Soviet people and Soviet prisoners that Teutonic fury knew no bounds, in spite of a warning by Admiral Canaris that the treatment was in violation of international law.
We need not, therefore, for purposes of the conspiracy count, recite the revolting details of starving, beating, murdering, freezing, and mass extermination admittedly used against the eastern soldiery. Also, we may take as established or admitted that the lawless conduct such as shooting British and American airmen, mistreatment of western prisoners of war, forcing French prisoners of war into German war work, and other deliberate violations of the Hague and Geneva Conventions, did occur, and in obedience to highest levels of authority.
The defendant Sauckel, plenipotentiary general for the Utilization of Labor, is authority for the statement that "out of five million foreign workers who arrived in Germany, not even 200,000 came voluntarily." It was officially reported to defendant Rosenberg that in his territory "recruiting methods were used which probably have their origin in the blackest period of the slave trade." Sauckel himself reported that male and female agents went hunting for men, got them drunk, and "shanghaied" them to Germany. These captives were shipped in trains without heat, food, or sanitary facilities. The dead were thrown out at stations, and the newborn were thrown out the windows of moving trains.
Sauckel ordered that "all the men must be fed, sheltered, and treated in such a way as to exploit them to the highest possible extent at the lowest conceivable degree of expenditure." About two million of these were employed directly in the manufacture of armaments and munitions. The director of the Krupp locomotive factory in Essen complained to the company that Russian forced laborers were so underfed that they were too weakened to do their work, and the Krupp doctor confirmed their pitiable condition. Soviet workers were put in camps under Gestapo guards, who were allowed to punish disobedience by confinement in a concentration camp or by hanging on the spot.
Populations of occupied countries were otherwise exploited and oppressed unmercifully. Terrorism was the order of the day. Civilians were arrested without charges, committed without counsel, executed without hearing. Villages were destroyed, the male inhabitants shot or sent to concentration camps, the women sent to forced labor, and the children scattered abroad. The extent of the slaughter in Poland alone was indicated by Frank, who reported: "If I wanted to have a poster put up for every seven Poles who were shot, the forests of Poland would not suffice for producing the paper for such posters."
International law at all times before and during this war spoke with precision and authority respecting the protection due civilians of an occupied country, and the slave trade and plunder of occupied countries were at all times flagrantly unlawful.
The Nazi movement will be of evil memory in history because of its persecution of the Jews, the most far-flung and terrible racial persecution of all time. Although the Nazi party neither invented nor monopolized anti-Semitism, its leaders from the very beginning embraced it, incited it, and exploited it. They used it as "the psychological spark that ignites the mob." After the seizure of power, it became an official state policy. The persecution began in a series of discriminatory laws eliminating the Jews from the civil service, the professions, and economic life. As it became more intense it included segregation of Jews in ghettos and exile. Riots were organized by party leaders to loot Jewish business places and to burn synagogues. Jewish property was confiscated and a collective fine of a billion marks was imposed upon German Jewry. The program progressed in fury and irresponsibility to the "final solution." This consisted of sending all Jews who were fit to work to concentration camps as slave laborers, and all who were not fit, which included children under twelve and people over fifty, as well as any others judged unfit by an SS doctor, to concentration camps for extermination.
Adolf Eichmann, the sinister figure who had charge of the extermination program, has estimated that the anti-Jewish activities resulted in the killing of six million Jews. Of these, four million were killed in extermination institutions, and two million were killed by Einsatzgruppen, mobile units of the Security Police and SD, which pursued Jews in the ghettos and in their homes and slaughtered them by gas wagons, by mass shooting in antitank ditches, and by every device which Nazi ingenuity could conceive. So thorough and uncompromising was this program that the Jews of Europe as a race no longer exist, thus fulfilling the diabolic "prophecy" of Adolf Hitler at the beginning of the war.
Of course, any such program must reckon with the opposition of the Christian church. This was recognized from the very beginning. Defendant Bormann wrote all Gauleiters in 1941 that "National Socialism and Christian concepts are irreconcilable," and that the people must be separated from the churches and the influence of the churches totally removed. Defendant Rosenberg even wrote dreary treatises advocating a new and weird Nazi religion.
The Gestapo appointed "church specialists" who were instructed that the ultimate aim was "destruction of the confessional churches." The record is full of specific instances of the persecution of clergymen, the confiscation of church property, interference with religious publications, disruption of religious education, and suppression of religious organizations.
The chief instrumentality for persecution and extermination was the concentration camp, sired by defendant Göring and nurtured under the overall authority of defendants Frick and Kaltenbrunner.
The horrors of these iniquitous places have been vividly disclosed by documents and testified to by witnesses. The tribunal must be satiated with ghastly verbal and pictorial portrayals. From your records it is clear that the concentration camps were the first and worst weapon of oppression used by the National Socialist state, and that they were the primary means utilized for the persecution of the Christian church and the extermination of the Jewish race. This has been admitted to you by some of the defendants from the witness stand. In the words of defendant Frank: "A thousand years will pass and this guilt of Germany will still not be erased."
These, then, were the five great substantive crimes of the Nazi regime. Their commission, which cannot be denied, stands admitted....
I pass now to the inquiry [as to] whether these groups of criminal acts were integrated in a common plan or conspiracy.
The prosecution submits that these five categories of premeditated crimes were not separate and independent phenomena but that all were committed pursuant to a common plan or conspiracy. The defense admits that these classes of crimes were committed but denies that they are connected one with another as parts of a single program.
The central crime in this pattern of crime, the kingpin which holds them all together, is the plot for aggressive war. The chief reason for international cognizance of these crimes lies in this fact. Have we established the plan or conspiracy to make aggressive war?
Certain admitted or clearly proven facts help answer that question. First is the fact that such war of aggression did take place. Second, it is admitted that from the moment the Nazis came to power, every one of them and every one of the defendants worked like beavers to prepare for some war....
The plans of Adolf Hitler for aggression were just as secret as Mein Kampf, of which over six million copies were published in Germany. He not only openly advocated overthrowing the Treaty of Versailles, but made demands which went far beyond a mere rectification of its alleged injustices. He avowed an intention to attack neighboring states and seize their lands, which he said would have to be won with "the power of a triumphant sword." Here, for every German to hearken to, were the "ancestral voices prophesying war."
Göring has testified in this courtroom that at his first meeting with Hitler, long before the seizure of power: "I noted that Hitler had a definite view of the impotency of protest and, as a second point, that he was of the opinion that Germany should be freed of the peace of Versailles....We did not say we shall have to have a war and defeat our enemies; this was the aim and the methods had to be adapted to the political situation."
When asked if this goal were to be accomplished by war if necessary, Göring did not deny that eventuality but evaded a direct answer by saying: "We did not even debate about those things at that time." He went on to say that the aim to overthrow the Treaty of Versailles was open and notorious and that "every German in my opinion was for its modification, and there was no doubt that this was a strong inducement for joining the party." Thus, there can be no possible excuse for any person who aided Hitler to get absolute power over the German people, or took a part in his regime, to fail to know the nature of the demands he would make on Germany's neighbors.
Immediately after the seizure of power, the Nazis went to work to implement these aggressive intentions by preparing for war. They first enlisted German industrialists in a secret rearmament program. Twenty days after the seizure of power, Schacht was host to Hitler, Göring, and some twenty leading industrialists. Among them were Krupp von Bohlen of the great Krupp armament works and representatives of I.G. Farben and other Ruhr heavy industries. Hitler and Göring explained their program to the industrialists, who became so enthusiastic that they set about to raise three million Reichsmarks to strengthen and confirm the Nazi party in power. Two months later Krupp was working to bring a reorganized association of German industry into agreement with the political aims of the Nazi government. Krupp later boasted of the success in keeping the German war industries secretly alive and in readiness despite the disarmament clauses of the Versailles treaty, and recalled the industrialists' enthusiastic acceptance of "the great intentions of the führer in the rearmament period of 1933 to '39."
The spirit of the whole Nazi administration was summed up by Göring at a meeting of the Council of Ministers, which included Schacht, on May 27, 1936, when he said, "All measures are to be considered from the standpoint of an assured waging of war."
As early as November 5, 1937, the plan to attack had begun to take definiteness as to time and victim. In a meeting which included defendants Raeder, Göring, and von Neurath, Hitler stated the cynical objective: "The question for Germany is where the greatest possible conquest could be made at the lowest possible cost."
Six months later, emboldened by the bloodless Austrian conquest, Hitler, in a secret directive to Keitel...stated his "unalterable decision to smash Czechoslovakia by military action in the near future." On the same day, Jodl noted in his diary that the fürer had stated his final decision to destroy Czechoslovakia soon and had initiated military preparations all along the line. By April the plan had been perfected to attack Czechoslovakia "with lightning-swift action as the result of an 'incident.'
All along the line, preparations became more definite for a war of expansion, on the assumption that it would result in worldwide conflict.
By May 1939, the Nazi preparations had ripened to the point that Hitler confided to defendants Göring, Raeder, Keitel, and others his readiness "to attack Poland at the first suitable opportunity," even though he recognized that "further successes cannot be attained without the shedding of blood."
While a credulous world slumbered, snugly blanketed with perfidious assurances of peaceful intentions, the Nazis prepared not merely as before for a war, but now for the war. The defendants Göring, Keitel, Raeder, Frick, and Funk, with others, met as the Reich Defense Council in June 1939. The minutes, authenticated by Göring, are revealing evidence of the way in which each step of Nazi planning dovetailed with every other. These five key defendants, three months before the first Panzer unit had knifed into Poland, were laying plans for "employment of the population in wartime," and had gone so far as to classify industry for priority in labor supply "after five million servicemen had been called up." They decided upon measures to avoid "confusion when mobilization takes place," and declared a purpose "to gain and maintain the lead in the decisive initial weeks of a war." They then planned to use in production prisoners of war, criminal prisoners, and concentration camp inmates. They then decided on "compulsory work for women in wartime."
Here also comes to the surface the link between war labor and concentration camps, a manpower source that was increasingly used and with increasing cruelty. An agreement between Himmler and Minister of justice Thierack in 1942 provided for "the delivery of antisocial elements from the execution of their sentence to the Reichsfürer SS to be worked to death." An SS directive provided that bedridden prisoners be drafted for work to be performed in bed. The Gestapo ordered 45,000 Jews arrested to increase the "recruitment of manpower into the concentration camps." One hundred thousand Jews were brought from Hungary to augment the camps' manpower. On the initiative of the defendant Dönitz, concentration camp labor was used in the construction of submarines. Concentration camps were thus geared into war production on the one hand, and into the administration of justice and the political aims of the Nazis on the other.
The use of prisoner-of-war labor as here planned also grew with German needs. At a time when every German soldier was needed at the front and forces were not available at home, Russian prisoners of war were forced to man anti-aircraft guns against Allied planes. Field Marshal Milch reflected the Nazi merriment at this flagrant violation of international law, saying, "This is an amusing thing, that the Russians must work the guns." The orders for the treatment of Soviet prisoners of war were so ruthless that Admiral Canaris, pointing out that they would "result in arbitrary mistreatments and killings," protested against them as breaches of international law. The reply of Keitel was unambiguous: "The objections arise from the military conception of chivalrous warfare! This is the destruction of an ideology! Therefore I approve and back the measures."
Other crimes in the conduct of warfare were planned with equal thoroughness as a means of insuring the victory of German arms. In October 1938, almost a year before the start of the war, the large-scale violation of the established rules of warfare was contemplated as a policy, and the Supreme Command circulated a most secret list of devious explanations to be given by the propaganda minister in such cases. Even before this time, commanders of the armed forces were instructed to employ any means of warfare so long as it facilitated victory. After the war was in progress the orders increased in savagery. A typical Keitel order, demanding use of the "most brutal means," provided that: "It is the duty of the troops to use all means without restriction, even against women and children, so long as it insures success."
The German naval forces were no more immune from the infection than the land forces. Raeder ordered violations of the accepted rules of warfare whenever necessary to gain strategic successes. Dönitz urged his submarine crews not to rescue survivors of torpedoed enemy ships in order to cripple merchant shipping of the Allied nations by decimating their crews.
Thus, the war crimes against Allied forces and the crimes against humanity committed in occupied territories are incontestably part of the program of making the war because, in the German calculations, they were indispensable to its hope of success.
Similarly, the whole group of prewar crimes, including the persecutions within Germany, fall into place around the plan for aggressive war like stones in a finely wrought mosaic. Nowhere is the whole catalogue of crimes of Nazi oppression and terrorism within Germany so well integrated with the crime of war as in that strange mixture of wind and wisdom which makes up the testimony of Hermann Göring. In describing the aims of the Nazi program before the seizure of power, Goring said: "The first question was to achieve and establish a different political structure for Germany which would enable Germany to obtain against the Dictate [of Versailles], and not only a protest, but an objection of such a nature that it would actually be considered."
From Göring's cross-examination we learn how necessarily the whole program of crime followed. Because they considered a strong state necessary to get rid of the Versailles treaty, they adopted the Führerprinzip. Having seized power, the Nazis thought it necessary to protect it by abolishing parliamentary government and suppressing all organized opposition from political parties. This was reflected in the philosophy of Göring that the opera was more important than the Reichstag....In order to eliminate incorrigible opponents, it was necessary to establish concentration camps and to resort to the device of protective custody. Protective custody, Göring testified, meant that: "People were arrested and taken into protective custody who had committed no crime but who one might expect, if they remained in freedom, would do all sorts of things to damage the German state."
The same purpose was dominant in the persecution of the Jews. In the beginning, fanaticism and political opportunism played a principal part, for anti-Semitism and its allied scapegoat mythology were a vehicle on which the Nazis rode to power. It was for this reason that the filthy Streicher and the blasphemous Rosenberg were welcomed to a place at party rallies and made leaders and officials of the state or party. But the Nazis soon regarded the Jews as foremost amongst the opposition to the police state with which they planned to put forward their plans of military aggression. Fear of their pacifism and their opposition to strident nationalism was given as the reason that the Jews had to be driven from the political and economic life of Germany. Accordingly, they were transported like cattle to the concentration camps, where they were utilized as a source of forced labor for war purposes.
A glance over the dock will show that, despite quarrels among themselves, each defendant played a part which fitted in with every other, and that all advanced the common plan. It contradicts experience that men of such diverse backgrounds and talents should so forward each other's aims by coincidence.
The large and varied role of Göring was half militarist and half gangster. He stuck a pudgy finger in every pie. He used his SA musclemen to help bring the gang into power. In order to entrench that power, he contrived to have the Reichstag burned, established the Gestapo, and created the concentration camps. He was equally adept at massacring opponents and at framing scandals to get rid of stubborn generals. He built up the Luftwaffe and hurled it at his defenseless neighbors....He was, next to Hitler, the man who tied the activities of all the defendants together in a common effort.
The parts played by the other defendants, although less comprehensive and less spectacular than that of the Reichsmarshal, were nevertheless integral and necessary contributions to the joint undertaking, without any one of which the success of the common enterprise would have been in jeopardy. There are many specific deeds of which these men have been proven guilty. No purpose would be served -- nor indeed is time available -- to review all the crimes which the evidence has charged up to their names. Nevertheless, in viewing the conspiracy as a whole and as an operating mechanism, it may be well to recall briefly the outstanding services which each of the men in the dock rendered to the common cause.
The zealot Hess, before succumbing to wanderlust, was the engineer tending the party machinery, passing orders and propaganda down to the Leadership Corps, supervising every aspect of party activities, and maintaining the organization as a loyal and ready instrument of power. When apprehensions abroad threatened the success of the Nazi scheme for conquest, it was the duplicitous von Ribbentrop, the salesman of deception, who was detailed to pour wine on the troubled waters of suspicion by preaching the gospel of limited and peaceful intentions. Keitel, weak and willing tool, delivered the armed forces, the instrument of aggression, over to the party and directed them in executing its felonious designs.
Kaltenbrunner, the grand inquisitor, took up the bloody mantle of Heydrich to stifle opposition and terrorize compliance, and buttressed the power of National Socialism on a foundation of guiltless corpses. It was Rosenberg, the intellectual high priest of the "master race," who provided the doctrine of hatred which gave the impetus for the annihilation of Jewry, and who put his infidel theories into practice against the eastern occupied territories. His woolly philosophy also added boredom to the long list of Nazi atrocities. The fanatical Frank, who solidified Nazi control by establishing the new order of authority without law, so that the will of the party was the only test of legality, proceeded to export his lawlessness to Poland, which he governed with the lash of Caesar and whose population he reduced to sorrowing remnants. Frick, the ruthless organizer, helped the party to seize power, supervised the police agencies to insure that it stayed in power, and chained the economy of Bohemia and Moravia to the German war machine.
Streicher, the venomous vulgarian, manufactured and distributed obscene racial libels which incited the populace to accept and assist the progressively savage operations of "race purification." As minister of Economics, Funk accelerated the pace of rearmament, and as Reichsbank president banked for the SS the gold teeth fillings of concentration camp victims -- probably the most ghoulish collateral in banking history. It was Schacht, the facade of starched respectability, who in the early days provided the window dressing, the bait for the hesitant, and whose wizardry later made it possible for Hitler to finance the colossal rearmament program, and to do it secretly.
Dönitz, Hitler's legatee of defeat, promoted the success of the Nazi aggressions by instructing his pack of submarine killers to conduct warfare at sea with the illegal ferocity of the jungle. Raeder, the political admiral, stealthily built up the German Navy in defiance of the Versailles treaty, and then put it to use in a series of aggressions which he had taken a large part in planning. Von Schirach, poisoner of a generation, initiated the German youth in Nazi doctrine, trained them in legions for service in the SS and Wehrmacht, and delivered them up to the party as fanatic, unquestioning executors of its will.
Sauchel, the greatest and cruelest slaver since the pharaohs of Egypt, produced desperately needed manpower by driving foreign peoples into the land of bondage on a scale unknown even in the ancient days of tyranny in the kingdom of the Nile. Jodl, betrayer of the traditions of his profession, led the Wehrmacht in violating its own code of military honor in order to carry out the barbarous aims of Nazi policy. Von Papen, pious agent of an infidel regime, held the stirrup while Hitler vaulted into the saddle, lubricated the Austrian annexation, and devoted his diplomatic cunning to the service of Nazi objectives abroad.
Seyss-Inquart, spearhead of the Austrian fifth column, took over the government of his own country only to make a present of it to Hitler, and then, moving north, brought terror and oppression to the Netherlands and pillaged its economy for the benefit of the German juggernaut. Von Neurath, the old-school diplomat, who cast the pearls of his experience before Nazis, guided Nazi diplomacy in the early years, soothed the fears of prospective victims, and as Reich protector of Bohemia and Moravia, strengthened the German position for the coming attack on Poland. Speer, as minister of Armaments and War Production, joined in planning and executing the program to dragoon prisoners of war and foreign workers into German war industries, which waxed in output while the laborers waned in starvation. Fritzsche, radio propaganda chief, by manipulation of the truth goaded German public opinion into frenzied support of the regime and anesthetized the independent judgment of the population so that they did without question their masters' bidding. And Bormann, who has not accepted our invitation to this reunion, sat at the throttle of the vast and powerful engine of the party, guiding it in the ruthless execution of Nazi policies, from the scourging of the Christian church to the lynching of captive Allied airmen.
The activities of all these defendants, despite their varied backgrounds and talents, were joined with the efforts of other conspirators not now in the dock, who played still other essential roles. They blend together into one consistent and militant pattern animated by a common objective to reshape the map of Europe by force of arms. Some of these defendants were ardent members of the Nazi movement from its birth. Others, less fanatical, joined the common enterprise later, after successes had made participation attractive by the promise of rewards. This group of latter-day converts remedied a crucial defect in the ranks of the original true believers, for as Dr. Seimers has pointed out in his summation: "There were no specialists among the National Socialists for the particular tasks. Most of the National Socialist collaborators did not previously follow a trade requiring technical education." It was the fatal weakness of the early Nazi band that it lacked technical competence. It could not from among its own ranks make up a government capable of carrying out all the projects necessary to realize its aims. Therein lies the special crime and betrayal of men like Schacht and von Neurath, Speer and von Papen, Raeder and Dönitz, Keitel and Jodl. It is doubtful whether the Nazi master plan could have succeeded without their specialized intelligence which they so willingly put at its command. They did so with knowledge of its announced aims and methods, and continued their services after practice had confirmed the direction in which they were tending. Their superiority to the average run of Nazi mediocrity is not their excuse. It is their condemnation.
The dominant fact which stands out from all the thousands of pages of the record of this trial is that the central crime of the whole group of Nazi crimes -- the attack on the peace of the world -- was clearly and deliberately planned. The beginning of these wars of aggression was not an unprepared and spontaneous springing to arms by a population excited by some current indignation. A week before the invasion of Poland, Hitler told his military commanders: "I shall give a propagandist cause for starting war -- never mind whether it be plausible or not. The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the right is what matters, but victory." The propagandist incident was duly provided by dressing concentration camp inmates in Polish uniforms, in order to create the appearance of a Polish attack on a German frontier radio station. The plan to occupy Belgium, Holland, and Luxembourg first appeared as early as August 1938 in connection with the plan for attack on Czechoslovakia. The intention to attack became a program in May 1939, when Hitler told his commanders that: "The Dutch and Belgian air bases must be occupied by armed forces. Declarations of neutrality must be ignored." Thus, the follow-up wars were planned before the first was launched. These were the most carefully plotted wars in all history. Scarcely a step in their terrifying succession and progress failed to move according to the master blueprint or the subsidiary schedules and timetables until long after the crimes of aggression were consummated.
Nor were the war crimes and the crimes against humanity unplanned, isolated, or spontaneous offenses. Aside from our undeniable evidence of their plotting, it is sufficient to ask whether six million people could be separated from the population of several nations on the basis of their blood and birth, could be destroyed and their bodies disposed of, except that the operation fitted into the general scheme of government. Could the enslavement of five millions of laborers, their impressment into service, their transportation to Germany, their allocation to work where they would be most useful, their maintenance -- if slow starvation can be called maintenance -- and their guarding have been accomplished if it did not fit into the common plan? Could hundreds of concentration camps located throughout Germany, built to accommodate hundreds of thousands of victims, and each requiring labor and materials for construction, manpower to operate and supervise, and close gearing into the economy -- could such efforts have been expended under German autocracy if they had not suited the plan?
Has the Teutonic passion for organization become famous for its toleration of nonconforming activity? Each part of the plan fitted into every other. The slave labor program meshed with the needs of industry and agriculture, and these in turn synchronized with the military machine. The elaborate propaganda apparatus geared with the program to dominate the people and incite them to a war their sons would have to fight. The armament industries were fed by the concentration camps. The concentration camps were fed by the Gestapo.
The Gestapo was fed by the spy system of the Nazi party. Nothing was permitted under the Nazi iron rule that was not in accordance with the program. Everything of consequence that took place in this regimented society was but a manifestation of a premeditated and unfolding purpose to secure the Nazi state a place in the sun by casting all others into darkness.
The defendants meet this overwhelming case, some by admitting a limited responsibility, some by putting the blame on others, and some by taking the position, in effect, that while there have been enormous crimes there are no criminals. Time will not permit me to examine each individual and peculiar defense, but there are certain lines of defense common to so many cases that they deserve some consideration.
Counsel for many of the defendants seek to dismiss the conspiracy or common-planning charge on the ground that the pattern of the Nazi plan does not fit the concept of conspiracy applicable in German law to the plotting of a highway robbery or a burglary. Their concept of conspiracy is in the terms of a stealthy meeting in the dead of night, in a secluded hideout, in which a group of felons plot every detail of a specific crime. The charter forestalls resort to such parochial and narrow concepts of conspiracy taken from local law by using the additional and nontechnical term, "common plan." Omitting entirely the alternative term of "conspiracy," the charter reads that "leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan to commit" any of the described crimes "are responsible for all acts performed by any persons in execution of such plan."
The charter concept of a common plan really represents the conspiracy principle in an international context. A common plan or conspiracy to seize the machinery of a state, to commit crimes against the peace of the world, to blot a race out of existence, to enslave millions, and to subjugate and loot whole nations cannot be thought of in the same terms as the plotting of petty crimes, although the same underlying principles are applicable. Little gangsters may plan which will carry a pistol and which a stiletto, who will approach a victim from the front and who from behind, and where they will waylay him. But in planning a war, the pistol becomes a Wehrmacht, the stiletto a Luftwaffe. Where to strike is not a choice of dark alleys, but a matter of world geography. The operation involves the manipulation of public opinion, the law of the state, the police power, industry, and finance. The baits and bluffs must be translated into a nation's foreign policy. Likewise, the degree of stealth which points to a guilty purpose in a conspiracy will depend upon its object. The clandestine preparations of a state against international society, although camouflaged to those abroad, might be quite open and notorious among its own people. But stealth is not an essential ingredient of such planning.
The defendants contend, however, that there could be no conspiracy involving aggressive war because: 1) none of the Nazis wanted war; 2) rearmament was only intended to provide the strength to make Germany's voice heard in the family of nations; and 3) the wars were not in fact aggressive wars but were defensive against a "Bolshevik menace."
When we analyze the argument that the Nazis did not want war it comes down, in substance, to this: "The record looks bad indeed -- objectively -- but when you consider the state of my mind -- I subjectively hated war. I knew the horrors of war. I wanted peace." I am not so sure of this. I am even less willing to accept Göring's description of the general staff as pacifist. However, it will not injure our case to admit that as an abstract proposition none of these defendants liked war. But they wanted things which they knew they could not get without war. They wanted their neighbors' lands and goods. Their philosophy seems to be that if the neighbors would not acquiesce, then they are the aggressors and are to blame for the war. The fact is, however, that war never became terrible to the Nazis until it came home to them, until it exposed their deceptive assurances to the German people that German cities, like the ruined one in which we meet, would be invulnerable. From then on war was terrible.
But again the defendants claim: "To be sure, we were building guns. But not to shoot. They were only to give us weight in negotiating." At its best, this argument amounts to a contention that the military forces were intended for blackmail, not for battle. The threat of military invasion which forced the Austrian Anschluss, the threats which preceded Munich, and Göring's threat to bomb the beautiful city of Prague if the president of Czechoslovakia did not consent to the protectorate, are examples of what the defendants have in mind when they talk of arming to back negotiation.
Did these defendants then intend to withdraw German demands, or was Germany to enforce them and manipulate propaganda so as to place the blame for the war on the nation so unreasonable as to resist? Events have answered that question, and documents such as Admiral Carls's memorandum, quoted earlier, leave no doubt that the events occurred as anticipated.
But some of the defendants argue that the wars were not aggressive and were only intended to protect Germany against some eventual danger from the "menace of communism," which was something of an obsession with many Nazis.
At the outset this argument of self-defense falls because it completely ignores this damning combination of facts clearly established in the record; first, the enormous and rapid German preparations for war; second, the repeatedly avowed intentions of the German leaders to attack, which I have previously cited; and third, the fact that a series of wars occurred in which German forces struck the first blows, without warning, across the borders of other nations.
Even if it could be shown -- which it cannot be -- that the Russian war was really defensive, such is demonstrably not the case with those wars which preceded it.
It may also be pointed out that even those who would have you believe that Germany was menaced by communism also compete with each other in describing their opposition to the disastrous Russian venture. Is it reasonable that they would have opposed that war if it were undertaken in good faith self-defense?
The frivolous character of the self-defense theory on the facts is that it sought to compensate, as advocates often do, by resort to a theory of law. Dr. Jahrreiss, in his scholarly argument for the defense, rightly points out that no treaty provision and no principle of law denied Germany, as a sovereign nation, the right of self-defense. He follows with the assertion, for which there is authority in classic international law, that: "...Every state is alone judge of whether in a given case it is waging a war of selfdefense." It is not necessary to examine the validity of an abstract principle which does not apply to the facts of our case. I do not doubt that if a nation arrived at a judgment that it must resort to war in self-defense, because of conditions affording reasonable grounds for such an honest judgment, any tribunal would accord it great and perhaps conclusive weight, even if later events proved that judgment mistaken.
But the facts in this case call for no such deference to honest judgnient because no such judgment was even pretended, much less honestly made.
In all the documents which disclose the planning and rationalization of these attacks, not one sentence has been or can be cited to show a good faith fear of attack. It may be that statesmen of other nations lacked the courage forthrightly and fully to disarm. Perhaps they suspected the secret rearmament of Germany. But if they hesitated to abandon arms, they did not hesitate to neglect them. Germany well knew that her former enemies had allowed their armaments to fall into decay, so little did they contemplate another war. Germany faced a Europe that not only was unwilling to attack, but was too weak and pacifist even adequately to defend, and went to the very verge of dishonor, if not beyond, to buy its peace. The minutes we have shown you of the Nazis' secret conclaves identify no potential attacker. They bristle with the spirit of aggression and not of defense. They contemplate always territorial expansion, not the maintenance of territorial integrity.
If these defendants may now cynically plead self-defense, although no good faith need of self-defense was asserted or contemplated by any responsible leader at the time, it reduces nonaggression treaties to a legal absurdity. They become only additional instruments of deception in the hands of the aggressor, and traps for well-meaning nations. If there be in nonaggression pacts an implied condition that each nation may make a bona fide judgment as to the necessity for self-defense against imminent, threatened attack, they certainly cannot be invoked to shelter those who never made any such judgment at all.
In opening this case, I ventured to predict that there would be no serious denial that the crimes charged were committed, and that the issue would concern the responsibility of particular defendants. The defendants have fulfilled that prophecy. Generally, they do not deny that these things happened, but it is contended that they "just happened," and that they were not the result of a common plan or conspiracy.
One of the chief reasons the defendants say there was no conspiracy is the argument that conspiracy was impossible with a dictator. The argument runs that they all had to obey Hitler's orders, which had the force of law in the German state, and hence obedience cannot be made the basis of a criminal charge. In this way it is explained that while there have been wholesale killings, there have been no murderers.
This argument is an effort to evade Article 8 of the charter, which provides that the order of the government or of a superior shall not free a defendant from responsibility but can only be considered in mitigation.
Like much of the defense counsel's abstract arguments, the contention that the absolute power of Hitler precluded a conspiracy crumbles in face of the facts of record. The Führerprinzip of absolutism was itself a part of the common plan, as Göring has pointed out. The defendants may have become slaves of a dictator, but he was their dictator. To make him such was, as Göring has testified, the object of the Nazi movement from the beginning. Every Nazi took this oath: "I pledge eternal allegiance to Adolf Hitler. I pledge unconditional obedience to him and the führers appointed by him." Moreover, they forced everybody else in their power to take it. This oath was illegal under German law, which made it criminal to become a member of an organization in which obedience to "unknown superiors or unconditional obedience to known superiors is pledged." These men destroyed free government in Germany and now plead to be excused from responsibility because they became slaves. They are in the position of the fictional boy who murdered his father and mother and then pleaded for leniency because he was an orphan.
What these men have overlooked is that Adolf Hitler's acts are their acts. It was these men among millions of others, and it was these men leading millions of others, who built up Adolf Hitler and vested in his psychopathic personality not only innumerable lesser decisions but the supreme issue of war or peace. They intoxicated him with power and adulation. They fed his hates and aroused his fears. They put a loaded gun in his eager hands. It was left to Hitler to pull the trigger, and when he did they all at that time approved. His guilt stands admitted, by some defendants reluctantly, by some vindictively. But his guilt is the guilt of the whole dock, and of every man in it.
But it is urged that these defendants could not be in agreement on a common plan or in a conspiracy because they were fighting among themselves or belonged to different factions or cliques. Of course, it is not necessary that men should agree on everything in order to agree on enough things to make them liable for a criminal conspiracy. Unquestionably there were conspiracies within the conspiracy, and intrigues and rivalries and battles for power. Schacht and Göring disagree, but over which of them should control the economy, not over whether the economy should be regimented for war. Göring claims to have departed from the plan because through Dahlerus he conducted some negotiations with men of influence in England just before the Polish war. But it is perfectly clear that this was not an effort to prevent aggression against Poland but to make that aggression successful and safe by obtaining English neutrality. Rosenberg and Göring may have had some differences as to how stolen art should be distributed but they had none about how it should be stolen. Jodl and Goebbels may have disagreed about whether to denounce the Geneva Convention, but they never disagreed about violating it. And so it goes through the whole long and sordid story. Nowhere do we find an instance where any one of the defendants stood up against the rest and said: "This thing is wrong and I will not go along with it." Wherever they differed, their differences were as to method of disputes over jurisdiction, but always within the framework of the common plan.
Some of the defendants also contend that in any event, there was no conspiracy to commit war crimes against humanity because cabinet members never met with the military to plan these acts. But these crimes were only the inevitable and incidental results of the plan to commit the aggression for Lebensraum purposes....This was Lebensraum on its seamy side. Could men of their practical intelligence expect to get neighboring lands free from the claims of their tenants without committing crimes against humanity?
The last stand of each defendant is that even if there was a conspiracy, he was not in it. It is therefore important in examining their attempts at avoidance of responsibility to know, first of all, just what it is that a conspiracy charge comprehends and punishes.
In conspiracy we do not punish one man for another man's crime. We seek to punish each for his own crime of joining a common criminal plan in which others also participated. The measure of the criminality of the plan and therefore of the guilt of each participant is, of course, the sum total of crimes committed by all in executing the plan. But the gist of the offense is participation in the formulation or execution of the plan. These are rules which every society has found necessary in order to reach men, like these defendants, who never get blood on their own hands but who lay plans that result in the shedding of blood. All over Germany today, in every zone of occupation, little men who carried out these criminal policies under orders are being convicted and punished. It would present a vast and unforgivable caricature of justice if the men who planned these policies and directed these little men should escape all penalty.
These men in this dock, on the face of the record, were not strangers to this program of crime, nor was their connection with it remote or obscure. We find them in the very heart of it. The positions they held show that we have chosen defendants of self-evident responsibility. They are the very top surviving authorities in their respective fields and in the Nazi state. No one lives who, at least until the very last moments of the war, outranked Göring in position, power, and influence. No soldier stood above Keitel and Jodl, and no sailor above Raeder and Dönitz. Who can be responsible for the duplicitous diplomacy if not the foreign ministers, von Neurath and [von] Ribbentrop, and the diplomatic handy man, von Papen? Who should be answerable for the oppressive administration of occupied countries if Gauleiters, protectors, governors, and commissars such as Frank, Seyss-Inquart, Frick, von Schirach, von Neurath, and Rosenberg are not? Where shall we look for those who mobilized the economy for total war if we overlook Schacht, and Speer, and Funk? Who was the master of the great slaving enterprise if it was not Sauckel? Where shall we find the hand that ran the concentration camps if it is not the hand of Kaltenbrunner? And who whipped up the hates and fears of the public, and manipulated the party organizations to incite these crimes, if not Hess, von Schirach, Fritzsche, Bormann, and the unspeakable Julius Streicher? The list of defendants is made up of men who played indispensable and reciprocal parts in this tragedy. The photographs and films show them again and again together on important occasions. The documents show them agreed on policies and on methods, and all working aggressively for the expansion of Germany by force of arms.
Each of these men made a real contribution to the Nazi plan. Every man had a key part. Deprive the Nazi regime of the functions performed by a Schacht, a Sauckel, a von Papen, or a Göring, and you have a different regime. Look down the rows of fallen men and picture them as the photographic and documentary evidence shows them to have been in their days of power. Is there one whose work did not substantially advance the conspiracy along its bloody path toward its bloody goal? Can we assume that the great effort of these men's lives was directed toward ends they never suspected?
To escape the implications of their positions and the inference of guilt from their activities, the defendants are almost unanimous in one defense. The refrain is heard time and again: these men were without authority, without knowledge, without influence, indeed without importance. Funk summed up the general self-abasement of the dock in his plaintive lament that, "I always, so to speak, came up to the door. But I was not permitted to enter."
In the testimony of each defendant, at some point there was reached the familiar blank wall: nobody knew anything about what was going on. Time after time we have heard the chorus from the dock: "I only heard about these things here for the first time."
These men saw no evil, spoke none, and none was uttered in their presence. This claim might sound very plausible if made by one defendant. But when we put all their stories together, the impression which emerges of the Third Reich, which was to last a thousand years, is ludicrous. If we combine only the stories from the front bench, this is the ridiculous composite picture of Hitler's government that emerges. It was composed of:
A number-two man who knew nothing of the excesses of the Gestapo which he created, and never suspected the Jewish extermination program although he was the signer of over a score of decrees which instituted the persecutions of that race;
A number-three man who was merely an innocent middleman transmitting Hitler's orders without even reading them, like a postman or delivery boy;
A foreign minister who knew little of foreign affairs and nothing of foreign policy;
A field marshal who issued orders to the armed forces but had no idea of the results they would have in practice;
A security chief who was of the impression that the policing functions of his Gestapo and SD were somewhat on the order of directing traffic;
A party philosopher who was interested in historical research, and had no idea of the violence which his philosophy was inciting in the twentieth century;
A governor general of Poland who reigned but did not rule;
A Gauleiter of Franconia whose occupation was to pour forth filthy writings about the Jews, but who had no idea that anybody would read them;
A minister of the Interior who knew not even what went on in the interior of his own office, much less the interior of his own department, and nothing at all about the interior of Germany;
A Reichsbank president who was totally ignorant of what went in and out of the vaults of his bank;
And a plenipotentiary for the War Economy who secretly marshaled the entire economy for armament, but had no idea it had anything to do with war.
This may seem like a fantastic exaggeration, but this is what you would in actuality be obliged to conclude if you were to acquit these defendants.
They do protest too much. They deny knowing what was common knowledge. They deny knowing plans and programs that were as public as Mein Kampf and the party program. They deny even knowing the contents of documents they received and acted upon.
These defendants, unable to deny that they were the men in the very top ranks of power, and unable to deny that the crimes I have outlined actually happened, know that their own denials are incredible unless they can suggest someone who is guilty.
The defendants have been unanimous, when pressed, in shifting the blame on the other men, sometimes on one and sometimes on another. But the names they have repeatedly picked are Hitler, Himmler, Heydrich, Goebbels, and Bormann. All of these are dead or missing. No matter how hard we have pressed the defendants on the stand, they have never pointed the finger at a living man as guilty. It is a temptation to ponder the wondrous workings of a fate which has left only the guilty dead and only the innocent alive. It is almost too remarkable.
The chief villain on whom blame is placed -- some of the defendants vie with each other in producing appropriate epithets -- is Hitler. He is the man at whom nearly every defendant has pointed an accusing finger.
I shall not dissent from this consensus, nor do I deny that all these dead or missing men shared the guilt. In crimes so reprehensible that degrees of guilt have lost their significance, they may have played the most evil parts. But their guilt cannot exculpate the defendants. Hitler did not carry all responsibility to the grave with him. All the guilt is not wrapped in Himmler's shroud. It was these dead whom these living chose to be their partners in this great conspiratorial brotherhood, and the crimes that they did together they must pay for one by one.
It may well be said that Hitler's final crime was against the land that he had ruled, he was a mad messiah who started the war without cause and prolonged it without reason. If he could not rule he cared not what happened to Germany. As Fritzsche has told us from the stand, Hitler tried to use the defeat of Germany for the self-destruction of the German people. He continued the fight when he knew it could not be won, and continuance meant only ruin.
But let me for a moment turn devil's advocate. I admit that Hitler was the chief villain. But for the defendants to put all blame on him is neither manly nor true. We know that even the head of a state has the same limits to his senses and to the hours of his day as do lesser men. He must rely on others to be his eyes and cars as to most that goes on in a great empire. Other legs must run his errands; other hands must execute his plans. On whom did Hitler rely for such things more than upon these men in the dock? Who led him to believe he had an invincible air armada if not Göring? Who kept disagreeable facts from him? Did not Göring forbid Field Marshal Milch to warn Hitler that in his opinion Germany was not equal to the war upon Russia? Did not Göring, according to Speer, relieve General Galland of his air force command for speaking of the weaknesses and bungling of the air force? Who led Hitler, utterly untraveled himself, to believe in the indecision and timidity of democratic peoples if not von Ribbentrop, von Neurath, and von Papen? Who fed his illusion of German invincibility if not Keitel, Jodl, Raeder and Dönitz? Who kept his hatred of the Jews inflamed more than Streicher and Rosenberg? Who would Hitler say deceived him about conditions in concentration camps if not Kaltenbrunner, even as he would deceive us? These men had access to Hitler, and often could control the information that reached him and on which he must base his policy and his orders. They were the Praetorian Guard, and while they were under Caesar's orders, Caesar was always in their hands.
If these dead men could take the witness stand and answer what has been said against them, we might have a less distorted picture of the parts played by these defendants. Imagine the stir that would occur in the dock if it should behold Adolf Hitler advancing to the witness box, or Himmler with an armful of dossiers, or Goebbels, or Bormann with the reports of his party spies, or the murdered Röhm or Canaris. The ghoulish defense that the world is entitled to retribution only from the cadavers, is an argument worthy of the crimes at which it is directed.
We have presented to this tribunal an affirmative case based on incriminating documents which are sufficient, if unexplained, to require a finding of guilt on count one against each defendant. In the final analysis, the only question is whether the defendants' own testimony is to be credited as against the documents and other evidence of their guilt. What, then, is their testimony worth?
The fact is that the Nazi habit of economizing in the use of truth pulls the foundations out from under their own defenses. Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. Von Ribbentrop admits the use of the "diplomatic lie." Keitel advised that the facts of rearmament be kept secret so that they could be denied at Geneva. Raeder deceived about rebuilding the German Navy in violation of Versailles. Göring urged [von] Ribbentrop to tell a "legal lie" to the British Foreign Office about the Anschluss, and in so doing only marshaled him the way he was going. Göring gave his word of honor to the Czechs and proceeded to break it. Even Speer proposed to deceive the French into revealing the specially trained among their prisoners.
Nor is the direct lie the only means of falsehood. They all speak with a Nazi doubletalk with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms, "final solution" of the Jewish problem was a phrase which meant extermination; "special treatment" of prisoners of war meant killing; "protective custody" meant concentration camp; "duty labor" meant slave labor; and an order to "take a firm attitude" or "take positive measures" meant to act with unrestrained savagery. Before we accept their word at what seems to be its face, we must always look for hidden meanings. Göring assured us, on his oath, that the Reich Defense Council never met "as such." When we produced the stenographic minutes of a meeting at which he presided and did most of the talking, he reminded us of the "as such" and explained this was not a meeting of the Council "as such" because other persons were present. Göring denies "threatening" Czechoslovakia -- he only told President Hácha that he would "hate to bomb the beautiful city of Prague."
Besides outright false statements and doubletalk, there are also other circumventions of truth in the nature of fantastic explanations and absurd professions. Streicher has solemnly maintained that his only thought with respect to the Jews was to resettle them on the island of Madagascar. His reason for destroying synagogues, he blandly said, was only because they were architecturally offensive. Rosenberg was stated by his counsel to have always had in mind a "chivalrous solution" to the Jewish problem. When it was necessary to remove Schuschnigg after the Anschluss, von Ribbentrop would have had us believe that the Austrian chancellor was resting at a "villa." It was left to cross-examination to reveal that the "villa" was Buchenwald concentration camp. The record is full of other examples of dissimulations and evasions. Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justification: "I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth."
This was the philosophy of the National Socialists. When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue the habits of a lifetime in this dock? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same now.
It is against such a background that these defendants now ask this tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: "Say I slew them not." And the queen replied, "Then say they were not slain. But dead they are...." If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime.
Copyright © 1998 by Michael S Lief, Benjamin Bycel, and Harry Cadwell
Chapter 1 Architects of Genocide 13
The Victorious Allies Put Hitler's Henchmen in the Defendant's Box at Nüremberg
Chapter 2 Darrow in the Docket 59
In a Time Of Labor Unrest, America's Greatest Litigator and Friend of the Workingman Fights for His Professional Life
Chapter 3 Disorder in the Court 103
The Trial of the Chicago Seven Pits the Establishment Against the Woodstock Generation
Chapter 4 Death by Plutonium 119
Fallout from Karen Silkwood's Death Brings the Nuclear Industry to Its Knees
Chapter 5 Leopold and Loeb 159
"Spare Them, for They Know All Too well What They Do"
Chapter 6 A Man's World No More 211
Clara Shortridge Foltz Sends Shockwaves Throuqh the Turn-of-the-Century Legal Establishment When She Becomes the First Woman to Do Battle in California's Courts
Chapter 7 Peace, Love, and Murder 223
Manson Family Mastermind Sentenced to Die for Followers' Murderous Rampage
Chapter 8 Justice Delayed but Not Denied 289
Three Trials and Thirty Years Later, Medgar Evers's Assassin Pays the Piper
Chapter 9 Coke, Lies, and Videotape 305
The Delorian Defense Team Convinces Jurors They Can't Trust Their Eyes -- Or the Feds
Chapter 10 Baseball, Hot Dogs, Apple Pie, and My Lai 345
A Generation After Nüremburg, Home-Grown War Criminals Claim They WEre Just Following Orders When They Murdered and Entire Village
Posted May 9, 2009
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With the forces of unparalleled rhetorical tact and great attention to detail, these authors execute a few prominent trials' closing arguments that proved at the least adequate for leaning the judge or jury exactly where the presented attorney(s) desired. The writers definitely have a skill for organizing keynote circumstances to set up the arguments and depicting the value of their content, but at times, the reader may feel like he is not getting quite the entire picture, and the deficit of opposing arguments -excluding the last case- perhaps takes away the most significant virtue of an argument: dominion over opposition.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.
Posted April 16, 2010
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