The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [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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