Archive/File: imt/tgmwc/tgmwc-05/tgmwc-05-48.01 Last-Modified: 1999/10/05 [Page 336] FORTY-EIGHTH DAY FRIDAY, 1ST FEBRUARY, 1946 MARSHAL OF THE COURT: May it please the Court, I desire to announce that defendants Kaltenbrunner and Seyss-Inquart will be absent from this morning's session on account of illness. M. DUBOST: I have now completed my presentation of facts. This presentation has consisted of a dry enumeration of crimes, atrocities, extortions of all sorts, which I deliberately presented to you without any embellishments of oratory, for the facts alone have a profound and sufficient eloquence. They are, so it seems to me, definitely established and I do not believe that either the defence or history, even German history, will be able to set aside their essential aspects, though they will, no doubt, be exposed to criticism. Our evidence was hastily collected, in a ruined country, whose every means of communication had been destroyed by an enemy in flight, in a country where each individual was more concerned with preparation for the future than looking back upon the past, even to exact vengeance, for the future is the life of our children, and the past is but death and destruction. For the whole of France, for each country in the West, the demands of daily life, the difficulty of preparing for a better future once again give full meaning to the words of the Scriptures, "Sinite mortuos sepelire mortuos" ("Let the dead bury their dead"); and that is why in spite of all our efforts, all our endeavours, to prepare the work of justice which France and universal conscience demand, we were not able to be more thorough. That is why errors of detail may have slipped into our work, but the corrections which time and the defence will effect can be but mere accessories. They will not eliminate the fact that millions of men have been deported, starved, exhausted through labour and privations before being butchered. Corrections may affect circumstances of time, and sometimes of place - they will not change the essential facts even if a few details are modified. But these facts having been established in their general aspect, it remains for us to complete our task by giving them juridical significance, by analysing them with reference to the law of which they constitute a violation, and by making clear the inculpations, - in other words, by fixing the responsibilities of each defendant in respect to that law. What law shall we apply? Taken one by one and separated from the systematic policy which conceived, willed, and ordered them as a means of achieving domination through terror, and beyond that as a means of extermination pure and simple, these facts constitute crimes against common law as much as violations of the laws and usages of war and of International Law. All of them could therefore be defined separately as a violation of an International Convention and of a penal provision of one or another of our established domestic laws. All, rather, could be qualified as a violation of a rule of common law which has emerged from each of our own domestic laws, as shown by M. de Menthon in his address; of that common law which, in the last analysis, was designated by him as being the foundation, the root of international customs, and which, beyond the Charter itself, is and remains the one and only guide of your decisions. But it is right to know that this common law springs from our elementary laws and, like them punishes in principle actual misdeeds. Now, all the defendants remained physically divorced from each of the criminal acts which [Page 337] in the ubiquity of their power they multiplied throughout the world. It was their will which commanded; but, as Mr. Justice Jackson recalled, they never reddened their own hands with blood of their victims. Therefore, if we refer exclusively to our positive jurisprudence, and specifically to French domestic laws the defendants could not, in any case, be considered as principal authors, but merely as accomplices who have provoked the act through abuse of authority or of power. All of that is indeed, a contradiction of the conception which each person in our countries holds of the guilt of the major war criminals. To solve the problem thus would be to narrow singularly the field of responsibility of each of the defendants. This responsibility would appear merely accessory, where, in fact it is the principal responsibility; it would appear fragmentary, whereas to be truly fixed it must be presented at one single time, in the whole of their thoughts, intentions and acts as chiefs of the Nazi government which conceived, willed, ordered or tolerated the development of that systematic policy of terror and extermination, of which each fact, taken separately is but a single aspect; merely a constituent element. Thus a simple reference to common law does not bring us close enough to reality. If it does not omit as such, any of the facts to which guilt attaches, it, does leave aside the psychological factor and does not give us a complete conception of the guilt of the accused in a single formula embracing all the reality. That is because common law expresses a certain status of common morality, which is accepted by civilised nations as law for the relations of citizens, between them. Profoundly imbued with the concept of individualism this common law is not adequate to meet the exigencies of collective life which international morality must govern. Furthermore, this common jurisprudence which is the foundation of our tradition, has become static in a Cartesian sense, whereas our custom remains enriched by all the dynamism of International Penal Law. The Charter has not fixed the manner in which we are to qualify in a juridical sense the facts which I have presented before you. In creating your Tribunal the authors of the Charter limited themselves to establishing the limits of your jurisdiction: War Crimes, Crimes against Humanity, Crimes against Peace; and even then they did not give an exhaustive definition of each of these crimes. Will the Tribunal refer on this point to Article 6, paragraphs B and C of the Charter of the Tribunal. This article merely gives an indicative enumeration. That is because the authors of the Charter bore in mind that Penal International Law is still only in the first phase of the birth of a custom, in which law is developed by reaction to the deed, and where the judge intervenes only to save the criminals from individual vengeance, or where law is applied by the judge alone and the penalty pronounced according to his sole judgement. Thus, the authors of the Charter abstained from giving us a fixed method of qualification, by reference to common law, or, on the contrary, to custom. They did not say to you: "You will take one by one the criminal facts submitted to you, and each fact taken separately shall be isolated from the others to be defined by reference to a stipulation of any one domestic law or to a synthesis of internal law, yielding thus a common law." Nor did they say to you: "You will take these scattered criminal facts, you will group them together to make of them one single crime of which the definition respecting in a general sense the rules of common law, will be essentially determined by the sole intention or purpose sought, without attempting to seek, by analogy, any precedents in the different domestic laws which only apply, moreover, to an entirely different subject." The authors of the Charter have left you free, entirely free within the limits of custom, and consequently we ourselves within the same limitations, are free [Page 338] to propose to you such qualification as appear to us to come closest to the reality of facts in their relation to the general principles of law, and the broad rules of morality which may seem to us to be such as to meet best the demands of human conscience expressed by international public opinion duly enlightened on Hitlerian atrocities, which will, in fact, remain within the limits of international penal custom. This custom is indeed still in a formulative stage, but if this trial is without precedent, the problems that are being examined in this court have arisen before, and the jurists who preceded us have already given them solutions. These solutions constitute precedents, and, as such, they constitute the first elements of your custom. In their memorandum to the Commission on the Responsibility of the Authors of the War and on Sanctions at the Peace Conference of 1919-20 the French jurists headed by M. Larnaude and M. Lapradelle wrote: "Criminal law could not foresee that through a singular defiance of the essential laws of humanity, of civilisation, and of honour, an army, by virtue of the instructions of its sovereign, could systematically lend itself to the perpetration of acts, such as the enemy has not shrunk from, in order to achieve success and victory. Therefore, domestic criminal law has never before been able to make provisions for the repression of such acts. And still one must, in the interpretation of every law, cling to the intention of the law maker. If, in certain cases considered particularly propitious, one might succeed in apprehending individuals bearing responsibility of whom the Emperor could be considered an accomplice, one would only succeed, and not without difficulty, in narrowing the field of his responsibility by limiting it to a few precise cases. It is a very restricted approach to the problem of William II, to diminish it and reduce it to the proportions of a criminal or a court-martial case. The justice which an anxious world awaits would not be satisfied if the German Emperor were judged only as an accomplice or even as the author of a common law crime. His actions as Chief of State must be considered in conformity with their true juridical character." But except for minor details all of this is indeed implicitly contained in the last paragraph of Article 6 of the Tribunal: 'Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes "Crimes against Peace, War Crimes, Crimes against Humanity -" are responsible for all acts performed by any persons in execution of such plan. Fundamentally, all this is in strict conformity with the primordial German concept of " Fuehrertum ", which places all responsibility on the leader and those who are with the leader, from the very start. Thus we can, by coming as close as possible to reality, by applying the Charter of 8 August and Article 6 of the Charter of your Tribunal, by respecting the rules of common law defined by the chief of our delegation, M. de Menthon, and by following international custom, which is sketched in the field of penal law, require of your Tribunal to declare that: all the defendants are guilty of having, in their role as the Chief Hitlerian leaders of the German people, conceived, willed, ordained or merely tolerated by their silence that assassinations or other inhuman acts should be systematically committed; that violent treatment should be systematically imposed on prisoners of war or civilians; and that devastations without justification should be systematically employed as a deliberate instrument for the accomplishment of their purpose of dominating Europe and the world through terrorism, and exterminating entire populations, in order to enlarge the living-space of the German people. More specifically, we ask you to declare Goering, Keitel and Jodl guilty of [Page 339] having taken part in the execution of this plan by ordering the seizure and the execution of hostages in violation of Article 50 of the Hague Convention which prohibits collective sanctions and reprisals. We ask you to find Keitel, Jodl, Kaltenbrunner, Seyss- Inquart, Bormann and Ribbentrop guilty of having taken part in the execution of this plan. 1. By ordering the assassination by terrorists of innocent civilians. 2. By ordering execution without trial and torture to death of members of the Resistance. 3. By ordering devastations without justification. To declare Goering, Keitel, Jodl, Speer and Sauckel guilty of having taken part in the execution of this plan by jeopardising the health and the lives of prisoners of war, notably by submitting them to privations and harsh treatment, and by exposing them, or by attempting to expose them without necessity, to bombings or other risks of war. To declare Goering, Keitel, Jodl, Kaltenbrunner and Bormann guilty of having taken part in the execution of this plan, by personally ordering or by provoking the formulation of orders leading to assassinations of terrorists or the lynching by the population of certain combatants; more specifically of airmen and members of commando groups as well as the terroristic assassination or slow extermination of certain categories of prisoners of war. To declare Keitel guilty of having taken part in the execution of this plan by prescribing the deportation of innocent civilians and by applying to some of them the "N.N." (Nacht und Nebel) regime which marked them for extermination. To declare Jodl guilty of having taken part in the execution of this plan by ordering the arrest, with a view to deportation, of the Jews of Denmark. To declare Frank, Rosenberg, Streicher, von Schirach, Sauckel, Frick and Hess guilty of having taken part in the execution of this plan, by justifying the extermination of Jews or by working out a statute with a view to their extermination. To declare Goering guilty of having taken part in the execution of this plan: 1. By creating concentration camps and by placing them under the control of the State Police for the purpose of ridding National Socialism of any opposition. 2. By tolerating and then by approving fatal physiological experiments on the effect of cold, and increasing or decreasing pressure; which experiments were carried out with material provided by the Luftwaffe and controlled by Prof. Rascher, medical officer of the Luftwaffe, detailed to the concentration camp of Dachau for that purpose, on healthy deportees who were involuntary subjects for the said experiments with which he (Goering) as chief associated himself. 3. By utilising a large number of internees in exhausting work under inhuman conditions in the armament factories of the Luftwaffe. To find Speer guilty of having taken part in the execution of this plan by employing a large number of internees in exhausting work under inhuman conditions in the armament factories. To find Bormann guilty of having taken part in the execution of this plan by participating in the extermination of internees in concentration camps. With regard to Donitz, Raeder, von Papen, Neurath, Fritsche, Schacht and Funk, we associate ourselves with the conclusions of our British and American colleagues. And in connection with the acts above defined, we ask you further, in accordance with the stipulation of Article 9 of the Charter of your Tribunal, to find the OKW and the OKH guilty of the execution of this plan by having ordered and participated in the deportation of innocent civilians from the occupied countries in the West. [Page 340] To find the OKW, the OKH and the OKL guilty of the execution of this plan by participating in the setting-up of the doctrine of hostages as a means to terrorise, and by prescribing the seizure and execution of hostages in the countries of the West, by reducing to a degrading level the material living conditions of prisoners of war, by depriving the latter of the guarantees granted them by international custom and by positive International Law, by ordering or by tolerating the employment of prisoners of war in dangerous work or in work directly connected with military operations, by ordering the execution of escaped prisoners or prisoners attempting to escape, and numerous groups of commandos, and by giving the SS and SD directives for the extermination of airmen. To find the OKL guilty of having participated in the execution of this plan: 1. By employing a large number of internees in concentration camps for exhaustive labour under inhuman conditions in the armament factories of the Luftwaffe. 2. By participating in fatal physiological experiments on the effect of cold, and increasing or decreasing pressure, which experiments were carried out for the benefit of the Luftwaffe and conducted by Dr. Rascher, medical officer of the Luftwaffe, attached to the concentration camp at Dachau. To find the SS and SD guilty of the execution of this plan by having deported and participated in the deportation of innocent civilians from the occupied countries in the West and by having tortured them and exterminated them by every means in concentration camps. To find the SA, the SS, the SD, and the Gestapo guilty of the execution of this plan by having given direct orders for the execution or the deportation, with a view to their slow extermination, of members of commando groups, airmen, escaped prisoners, those who refused to accept forced labour, or those who were rebellious to the Nazi order ; by forbidding any repression of acts of lynching committed by the German population on airmen brought down. To find the SS, the SD and the Gestapo guilty of having tortured, and of having executed without trial members of the Resistance. To find the same organisations, and, in addition, the OKW, and the OKH, in collusion with the SS, the SD, and the Gestapo, guilty of having committed or ordered massacres and devastations without justification. To find the Gestapo guilty of having participated in the execution of this plan by the deportation of innocent civilians from the countries of the West and by the tortures and assassinations which were inflicted on them. To find the government of the Reich (Reichsregierung) and the Leadership Corps of the National Socialist Party guilty of having, for the purpose of dominating Europe and the world, conceived, prepared and participated in the systematic extermination of innocent civilians from the occupied countries of the West through their deportation and their assassination in concentration camps. To find the Leadership Corps of the National Socialist Party and the government of the Reich guilty of having, for the purpose of dominating Europe and the world through terrorism, systematically conceived and provoked tortures, summary executions, massacres and devastation without cause, as described above. To find the Government of the Reich and the Leadership Corps of the Nazi Party guilty of having for the purpose of dominating Europe and the World, conceived, prepared and participated in the extermination of combatants who had surrendered, and in the demoralisation, extensive exploitation and extermination, of prisoners of war. Such are the juridical qualifications of the facts which I have the honour of [Page 341] submitting to you. But a few lessons emerge from these facts. May the Tribunal permit me to state them in conclusion. For hundreds of years, humanity has renounced the deportation of the vanquished, their enslavement and their annihilation through misery, through hunger, steel and fire. It is because a message of brotherhood had been given to the world, and the world could not entirely forget this message even in the midst of the horrors of war. From generation to generation we observed an upward effort ever since this message of peace had been given. We were confident that it was without any thought of going back that man had taken the road to moral progress which formed a part of the common heritage of civilised nations. All nations equally revered good faith in relations among individuals. All of them had come to accept good faith as the law of their mutual relationship. International morality was little by little emerging and international relationship, like that between individuals, was more and more falling in line with the three precepts of the classical Roman jurists, " honeste vivere, alterurn non lacdere, sum ouique tribuere." (Live honourably, inflict no harm on another, give each his due). Every civilised nation had been impregnated with a common humanism, the growth of a long tradition, Christian and liberal. Based on this common heritage and achieved at the price of hard experience, each nation, enlightened by the well conceived interests of man, had understood, or was coming to understand, that in public as in private affairs, loyalty, moderation and mutual aid were golden rules which none could transgress indefinitely and with impunity. The defeat, the catastrophe which has fallen upon Germany, confirm us in this thought and give only more meaning and more clarity to the solemn warning addressed to the American people by President Roosevelt in his address of 27 May 1940: "Although our Navy, our guns and our planes are the first line of defence, it is certain that at the back of all that there is the spirit and the morality of a free people which give to their material defence power, support and efficiency... " And in this struggle, the echoes of which are still rumbling in our ears, it was indeed those who could rest their strength upon law, nourish their force with justice, who succeeded. But because we have followed step by step the development of the criminal madness of the defendants and the consequences of that madness throughout these last years, we must conclude that the patrimony of man, of which we are the heirs, is frail indeed; that all kinds of regressions are possible and that we must with care watch over this heritage. There is not a nation which, ill educated, badly led by evil masters, would not in the long run revert to the barbarity of the early ages. This German people, whose military virtue we recognise, whose poets and musicians we love, whose concentration on work we admire, and who has given examples of probity in the most noble works of the spirit; this German people, which came rather late to civilisation, beginning only with the seventh century, had slowly raised itself to the ranks of nations possessing the oldest culture. The contributions to modern or contemporary thought seemed to prove that this conquest of the spirit was final - Kant, Goethe, and Johann Sebastian Bach belong to humanity just as much as Calvin, Dante or Shakespeare; nevertheless, we behold the fact that millions of innocent men have been exterminated on the very soil of this people, by men of this people, in execution of a common plan conceived by their leaders, and that this people made not a single effort to revolt. This is what this people has come to because it had scorned the virtues of political freedom, of civic equality, of human fraternity. This is what it has come to, because it forgot that all men are born free and equal before the law; [Page 342] that the essential action of a State has for its purpose the deeper and deeper penetration of a respect for spiritual liberty and fraternal solidarity in social relations and in international institutions. It allows itself to be robbed of its conscience and its very soul. Evil masters came who awakened its primitive passions and made possible the atrocities which I have described to you. In truth, the crime of these men is that they caused the German people to retrogress twelve centuries. Their crime is that they conceived and achieved, as an instrument of government, a policy of terrorism toward the whole of the subjugated nations and toward their own people; their crime is that they pursued as an end in itself a policy of extermination of entire categories of innocent citizens. That alone would suffice to determine capital punishment. Still, the French prosecution, represented by M. Faure, intends to present proof of a still greater crime, the crime of attempting to obliterate from the world certain ideas which are called liberty, independence, security of nations, which are also called faith in the given word and respect for the human person, the crime of having attempted to kill the very soul, the spirit of France and other occupied nations in the West. We consider that to be the gravest crime committed by these men, the gravest because it is written in the Scriptures, Matthew, XII, 31-32: "All manner of sin and blasphemy shall be forgiven unto men, but the blasphemy unto the Spirit shall not be forgiven unto men. Whosoever speakest against the Spirit shall not be forgiven, neither in this world, nor in the world to come. For the tree is known by its fruit. Race of vipers, how could ye speak good words when ye are evil ...."
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