The Nizkor Project: Remembering the Holocaust (Shoah)

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Then came the war of 1914. Imperial Germany waged the first
World War with a brutality perhaps less systematic and
frenzied than that of the National Socialist Reich, but just
as deliberate. The deportation of workers, looting of public
and private property, the taking and killing of hostages,
the demoralisation of the occupied territories constituted,
in 1914 as in 1939, the political methods of German warfare.

The Treaty of Versailles was based on The Hague Convention
in order to establish the suppression of War Crimes. Under
the title "Sanctions," Charter VII, of the Treaty of
Versailles discusses criminal responsibility incurred in the
launching and waging of the conflict, which was then the
Great War. Article 227 accused William of Hohenzollern,
previously Emperor of Germany, of a supreme offence against
international morality and against the sacred character of
treaties. Article 228 acknowledged the right of the Allied
and Associated Powers to bring persons guilty of acts
contrary to the laws and customs of war before military
tribunals.

Article 229 provided that criminals whose acts were not of
precise geographical location were to be referred to the
inter-allied jurisdiction. The

                                                  [Page 370]

provisions of the Treaty of Versailles were repeated in the
conventions which were signed in 1919 and 1920 with the
powers allied with Germany, in particular in the Treaty of
Saint-Germain and in that of Neuilly. That is how the idea
of War Crime was affirmed in International Law. The peace
treaties of 1919 not only defined the concept of
infringement; they formulated the terms of its suppression.
The defendants were aware of this, just as they were aware
of the warnings of the Governments of the United Nations.
They no doubt hoped that the repetition of the factual
circumstances which hampered the punishment of the criminals
in 1914 would permit them to escape their just punishment.
Their presence before this Tribunal is the symbol of the
constant progress which International Law is making in spite
of all obstacles.

International Law had given a still more precise definition
of the term "War Crime." This definition was formulated by
the Commission which the preliminary peace conference
appointed on 25th January, 1919, to disentangle the various
responsibilities incurred in the course of the war. The
report of the Commission of Fifteen of 29th March, 1919,
constitutes the historical basis of Article 227 and
following of the Treaty of Versailles. The Commission of
Fifteen based its investigation of criminal responsibilities
on an analysis of the crimes liable to involve them.

A material element enters into the juridical settlement of
any infraction. Its definition is, therefore, the more
precise as it includes an enumeration of the facts which it
encompasses. That is why the Commission of Fifteen set up a
list of War Crimes. This list includes 32 infractions. These
are  particularly:

   Murders, massacres, systematic terrorism.
   Killing of hostages.
   Torture of civilians.
   Burying of civilians in inhuman conditions.
   Forced labour of civilians in connection with military
   operations of the enemy.
   Usurpation of sovereignty during the occupation of
   occupied territories.
   Forced conscription of soldiers among the inhabitants of
   the occupied territories.
   Attempts to denationalise the inhabitants of occupied
   territories.
   Looting.
   Confiscation of property.
   Imposition of collective fines.
   Wilful devastation and destruction of property.
   Violation of other rules concerning the Red Cross.
   Ill-treatment of wounded and prisoners of war.
   Use of prisoners of war for unauthorised work.

This list, which already includes the grievances against the
defendants enumerated in the Indictment and from which we
have just quoted a few facts, is significant because the War
Crimes which it encompasses all present a composite
character. They are crimes against both International Law
and national law. Some of these crimes constitute attacks on
the fundamental liberties and constitutional rights of
peoples and of individuals; they consist in the violation of
public guarantees which are recognised by the constitutional
Charter of the Nations whose territories were occupied;
violation of the principles of liberty, equality and
fraternity which France proclaimed in 1789 and which the
civilised States guarantee in perpetuity. These War Crimes
are violations of public national law, since they represent
a systematic refusal of acknowledgement of all respective
rights of both occupying and occupied Power; but they also
may be analysed as violations of public national law, since
they mean forcibly transforming the constitutional
institutions of the occupied territories and the juridical
statute of their inhabitants.

                                                  [Page 371]

More numerous are crimes which constitute attacks on the
integrity of the physical person and of property.

They are allied with war law regulations and include
violations of International Law and customs.

But the international conventions, it should be remarked,
determine the elements constituting an infraction more than
they actually establish that infraction itself. The latter
existed before in all national legislatures; it was to some
extent a part of the juridical inheritance common to all
nations; Governments agreed to affirm its international
character and to define its contents. International Penal -
Law is thus superimposed on national law, which preserves
its repressive basis because the War Crime remains, after
all, a crime of Common Law. National penal law gives the
definition of this. All the acts referred to in Article 6 of
the Charter of 8th August, 1945, all the facts encompassed
by the Third Count of the Indictment of 18th October, 1945,
correspond to the infractions of Common Law provided for and
punished by national penal legislation. The killing of
prisoners of war, of hostages, and of inhabitants of
occupied territories falls, in French law, under Article 295
and following of the Penal Code, which define murder and
assassination. The mistreatment to which the Indictment
refers would come under the heading of bodily injuries
caused intentionally or through negligence, which are
defined by Article 309 and following. Deportation is
analysed, independently of the murders which accompany it,
as arbitrary restraint, which is defined by Articles 341 and
344. Pillage of public and private property and imposition
of collective fines are penalised by Article 221 and the
following of Military Code of Justice. Article 434 of the
Penal Code punishes voluntary destruction, and the
deportation of civilian workers may be compared with the
forced conscription provided for by Article 92. The oath of
allegiance is equivalent to the exaction of a false oath in
Article 366, and the Germanisation of occupied territories
may be applied to a number of crimes, the most obvious of
which is forced incorporation in the Wehrmacht in violation
of Article 92. The same equivalents can be found in all
modem legislative systems and particularly in German law.

The crimes against persons and property, of which the
defendants are guilty, are provided for by all national
laws. They present an international character because they
were committed in several different countries; from this
there arises a problem of jurisdiction of competency which
the Charter of 8th August, 1945, has solved as we have
previously explained; but this leaves intact the rule of
definition.

A crime of Common Law, the War Crime, is, nevertheless, not
an ordinary infraction; it has a character peculiarly
intrinsic - it is a crime committed on the occasion or under
the pretext of war. It must be punished because, even in
time of war, attacks on the integrity of the physical person
and of property are crimes if they are not justified by the
laws and customs of war. The soldier who on the battlefield
kills an enemy combatant commits a crime, but this crime is
justified by the law of war. International Law, therefore,
intervenes in the definition of a War Crime, not in order to
give it its essential qualification but in order to fix its
outer limits. In other words, every infraction committed on
the occasion or under the pretext of hostilities is criminal
unless justified by the laws and customs of war.
International Law applies the national theory of legitimate
defence which is common to all codes of criminal law. The
combatant is engaged in legitimate defence on the
battlefield; his homicidal action is therefore covered by a
justifying fact. But if this justifying fact is taken away
the infraction, whether ordinary crime or War Crime remains
such in its entirety. To establish the justifying fact, the
criminal action must be necessary and proportional to the
threat to which it responds. The

                                                  [Page 372]

defendants, against whom justice is demanded of you, can
plead no such justification.

Nor can they escape their responsibility by arguing that
they were not the physical authors of the crimes. The War
Crime involves two responsibilities, distinct and
complementary, that of the physical author and that of the
instigator. There is nothing heterodox in this conception.
It is the faithful representation of the criminal theory of
complicity through instructions. The responsibility of the
accomplice, whether independent or complementary to that of
the principal author, is incontestable. The defendants bear
the entire responsibility for the crimes which were
committed upon their instructions or under their control.

Finally, they cannot be justified by the pretext that an
order from above was given by Hitler to the defendants. The
theory of the justifying fact of an order from above has, in
national law, definite fixed limits; it does not cover the
execution of orders whose illegality is manifest. German
law, moreover, assigns only a limited rule to the concept of
justification by orders from above. Article 47 of the German
Military Code of Justice of 1940, although maintaining in
principle that a criminal order from a superior removes the
responsibility of the agent, punishes the latter as an
accomplice when be exceeded the orders received or when he
acted with knowledge of the criminal character of the act
which had been ordered. Goebbels once made this juridical
concept the theme of his propaganda. On 28th May, 1944, he
wrote in an article in the "Volkischer Beobachter" which was
submitted to you by the American Prosecution, an article
intended to justify the murder of Allied pilots by German
mobs:

   "The pilots cannot validly claim that as soldiers they
   obeyed orders. No law of war provides that a soldier
   will remain unpunished for a hateful crime by referring
   to the orders of his superior, if their orders are in
   striking opposition to all human ethics, to all
   international customs in the conduct of war."

Orders from a superior do not exonerate the agent of a
manifest crime from responsibility. Any other solution
would, moreover, be unacceptable, for it would testify to
the impotence of all repressive policy.

All the more reason why orders from above cannot be the
justifying fact for the crimes of the defendants. Sir
Hartley Shawcross told you with eloquence that the accused
cannot claim that the Crime against Peace was the doing of
Hitler alone and that they limited themselves to
transmitting the general directives. War Crimes may be
compared to the will for aggression; they are the common
work of the defendants; the defendants bear a joint
responsibility for the criminal policy which resulted from
the National Socialist doctrine.

The responsibility for German war criminality, because it
constituted a systematic policy, planned and prepared before
the opening of hostilities, and perpetrated without
interruption from 1940 to 1945, rests with all the
defendants, political or military leaders, high officials of
National Socialist Germany, and leaders of the Nazi Party.

Nevertheless, some among them appear more directly
responsible for the acts taken as a whole, particularly
those facts connected with the French charges, that is to
say, crimes committed in the Western occupied territories or
against the nationals of those countries. We shall cite:

The defendant Goering as Director of the Four Year Plan and
President of the Cabinet of Ministers for Reich Defence, the
defendant Ribbentrop in his capacity as Minister of Foreign
Affairs in charge of the administration of occupied
countries, the defendant Frick in his capacity as Director
of the Central Office for occupied territories, the
defendant Funk in his capacity as Minister of Reich Economy,

                                                  [Page 372]

the defendant Keitel, inasmuch as he had command over the
occupation armies, the defendant Jodl, associated in all the
responsibilities of the preceding defendant, the defendant
Seyss-Inquart in his capacity as Reich Commissar for the
occupied Dutch territory from 13th May, 1940, to the end of
the hostilities.

We will examine more particularly among these defendants, or
among others, those responsible for each category of acts,
it being understood that this enumeration is in no wise
restrictive.

The defendant Sauckel bears the chief responsibility for
compulsory labour in its various forms. As Plenipotentiary
for Labour, he carried out the intensive recruiting of
workers by every possible means. He is in particular the
signer of the decree of 22nd August, 1942, which constitutes
the charter for compulsory labour in all occupied countries.
He worked in liaison with the defendant Speer, Chief of the
Todt Organisation, as General Plenipotentiary for Armament
in the office of the Four Year Plan, as well as with the
defendant Funk, Minister of Reich Economy, and with the
defendant Goering, Chief of the Four Year Plan.

The defendant Goering participated directly in economic
looting in the same capacity. He appears to have often
sought and derived a personal profit from it. The defendant
Ribbentrop in his capacity as Minister of Foreign Affairs
was no stranger to these acts. The defendant Rosenberg,
organiser and Chief of the "Einsatzstab Rosenberg," is
particularly guilty of the looting of works of art in the
occupied countries.

The chief responsibility for the murders of hostages lies
with the defendant Keitel, the drafter notably of the
general order of 16th September, 1941, with his assistant
the defendant Jodl, and with the defendant Goering who
agreed to the order in question.

The defendant Kaltenbrunner, Himmler's direct associate and
chief of all the foreign police and security offices, is
directly responsible for the monstrous devices to which the
Gestapo had recourse in all occupied countries, devices
which are only the continuation of the methods originated in
the Gestapo by its founder in Prussia, the defendant
Goering.

The defendant Kaltenbrunner is likewise directly responsible
for the crimes committed in deportation. Moreover, he
visited these camps of deportation, as will be proved by the
French delegation in the case of the Mauthausen Camp. The
defendant Goering knew of and gave his approval to the
medical experiments made on prisoners. The defendant Sauckel
forced prisoners by every possible means to work under
conditions which were often inhuman, for the German war
production.

The defendant Keitel and his assistant the defendant Jodl
are responsible for treatment contrary to the laws of war
inflicted upon war prisoners, for murders and killings to
which they were subjected, as well as for handing over great
numbers of them to the Gestapo. The defendant Goering shares
their responsibility for the execution of Allied aviators
and soldiers belonging to the Commando groups. The defendant
Sauckel directed the work of war prisoners for the German
war production in violation of International Law.

The defendant Keitel and the defendant Kaltenbrunner share
the chief responsibility for the terrorist actions carried
out jointly by the German Army and the police forces in the
various occupied countries and notably in France against the
Resistance, as well as for the devastations and massacres
carried out against the civilian population of several
French Departments. The defendant Jodl shares in this
responsibility, most particularly through his initial order,
"Fight Against Partisan Bands," dated 6th May, 1945, which
provides for "collective measures against the inhabitants of
entire villages." These blows against mankind are the result
of racialist theories of which the defendant Hess,

                                                  [Page 374]

the defendant Rosenberg, and the defendant Streicher are
among the instigators or propagandists. The defendant Hess
participated notably in the elaboration of this subject,
which is found in "Mein Kampf."

The defendant Rosenberg, one of the principal theorists of
racial doctrine, exercised the function of special delegate
for the spiritual and ideological training of the Nazi
Party. The defendant Streicher showed himself to be one of
the most violent anti-Semitic agitators. In the execution of
the policy of Germanisation and Nazification responsibility
is shared between the Ministry of Foreign Affairs, that is
to say, the defendant Ribbentrop, the General Staff, i.e.,
the defendants Keitel and Jodl, and the Central Office for
all the occupied territories, i.e., the defendant Frick.

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