The Nizkor Project: Remembering the Holocaust (Shoah)

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The Geneva Protocol of 1924 for the Pacific Settlement of
International Disputes, signed by the representatives of
forty-eight governments, declared that "a war of aggression
constitutes . an international crime." The Eighth Assembly
of the League of Nations in 1927, on unanimous resolution of
the representatives forty-eight member nations, including
Germany, declared that a war of aggression constitutes an
international crime. At the Sixth Pan-American Conference of
1928, the twenty-one American Republics unanimously adopted
a resolution stating that "war of aggression constitutes an
international crime against the human species."

A failure of these Nazis to heed, or to understand the force
and meaning of this evolution in the legal thought of the
world, is not a defence or a mitigation. If anything, it
aggravates their offence and makes it the more mandatory
that the law they have flouted be vindicated by juridical
application to their lawless conduct. Indeed, by their own
law - had they heeded any law - these principle were binding
on these defendants. Article 4 of the Weimar Constitution
provided that " The generally accepted rules of
International Law are to be considered as binding integral
parts of the law of the German Reich." (2050-PS.) Can there
be any that the outlawry of aggressive war was one of the
"generally accepted rules of International Law" in 1939?

Any resort to war - to any kind of a war - is a resort to
means that are inherently criminal. War inevitably is a
course of killings, assaults, deprivations of liberty, and
destruction of property. An honestly defensive war is, of
course, legal and saves those lawfully conducting it from
criminality. But inherently criminal acts cannot be defended
by showing that those who committed them were engaged

                                                   [Page 81]

of in a war, when war itself is illegal. The very minimum
legal consequence of the treaties making aggressive wars
illegal is to strip those who incite or wage them of every
defence the law ever gave, and to leave war-makers subject
to judgement by the usually accepted principles of the law
of crimes.

But if it be thought that the Charter, whose declarations
concededly bind us all, does contain new Law I still do not
shrink from demanding its strict application by this
Tribunal. The rule of law in the world, flouted by the
lawlessness incited by these defendants, had to be restored
at the cost to my country of over a million casualties, not
to mention those of other nations. I cannot subscribe to the
perverted reasoning that society may advance and strengthen
the rule of law by the expenditure of morally innocent
lives, but that progress in the law may never be made at the
price of morally guilty lives.

It is true, of course, that we have no judicial precedent
for the Charter. But International Law is more than a
scholarly collection of abstract and immutable principles.
It is an outgrowth of treaties and agreements between
nations and of accepted customs. Yet every custom has its
origin in some single act, and every  agreement has to be
initiated by the action of some State. Unless we are
prepared to abandon every principle of growth for
International Law, we cannot deny that our own day has the
right to institute customs and to conclude agreements that
will themselves become sources of a newer and strengthened
International Law. International Law is not capable of
development by the normal processes of legislation, for
there is no continuing international legislative authority.
Innovations and revisions in International Law are brought
about by the action of governments such as those I have
cited, designed to meet a change in circumstances, It grows,
as did the Common Law, through decisions reached from time
to time in adapting settled principles new situations. The
fact is that when the law evolves by the case method, as did
the Common Law and as International Law must do if they are
to advance at all, it advances at the expense of those who
wrongly guessed the law and learned too late their error.
The law, as far as International Law can be decreed, had
been clearly pronounced when these acts took place. Hence we
are not disturbed by the lack of judicial precedent for the
inquiry it is proposed to conduct.

The events I have earlier recited clearly fall within the
standards of crimes, set out in the Charter, whose
perpetrators this Tribunal is convened to judge and to
punish fittingly. The standards for War Crimes and Crimes
against Humanity are too familiar to need comment. There
are, however, certain novel problems in applying other
precepts of the Charter which I should call to your
attention.

A basic provision of the Charter is that to plan, prepare,
initiate, or wage a war of aggression, or a war in violation
of international treaties, agreements, and assurances, or to
conspire or participate in a common plan to do so, is a
crime.

It is perhaps a weakness in this Charter that it fails
itself to define a war of aggression. Abstractly, the
subject is full of difficult and all kinds of troublesome
hypothetical cases can be conjured up. It is a subject
which, if the defence should be permitted to go afield
beyond the very narrow charge ion the Indictment, would
prolong the trial and involve the Tribunal in insoluble
political issues. But so far as the question can property be
involved in this case, the issue is one of no novelty and is
one on which legal opinion has well crystallised.

One of the most authoritative sources of International Law
on this subject is the Convention for the Definition of
Aggression signed at London on 3rd July, 1933, by Roumania,
Estonia, Latvia, Poland, Turkey, the Soviet Union, Persia
and Afghanistan. The subject has also been considered by
international committees and by commentators whose views are
entitled to the greatest respect. It had been little
discussed prior to the First World War but has received much
attention as International Law has evolved its outlawry of
aggressive war. In the light of these materials of
International Law, and so far as relevant to the evidence

                                                   [Page 82]

in this case, I suggest that an "aggressor " is generally
held to be that state which is the first to commit any of
the following actions:

   (1) Declaration of war upon another State;
   (2) Invasion by its armed forces, with or without a
   declaration of war, of the territory of another State;
   (3) Attack by its land, naval, or air forces, with or
   without a declaration of war, on the territory, vessels
   or aircraft of another State; and
   (4) Provision of support to armed bands formed in the
   territory of another State, or refusal, notwithstanding
   the request of the invaded State, to take in its own
   territory, all the measures in its power to deprive
   those bands of all assistance or protection.

And I further suggest that it is the general view that no
political, military, economic or other considerations shall
serve as an excuse or justification for such actions but
exercise of the right of legitimate self-defence - that is
to say, resistance to an act of aggression, or action to
assist a State which has been subjected to aggression, shall
not constitute a war of aggression.

It is upon such an understanding of the law that our
evidence of a conspiracy to provoke and wage an aggressive
war is prepared and presented. By this test each of the
series of wars begun by these Nazi leaders was unambiguously
aggressive.

It is important to the duration and scope of this trial that
we bear in mind the difference between our charge that this
war was one of aggression and a position that Germany had no
grievances. We are not inquiring into the conditions which
contributed to causing this war. They are for history to
unravel. It is no part of our task to vindicate the European
status quo as of 1933, or as of any other date. The United
States does not desire to enter into discussion of the
complicated pre-war currents of European politics, and it
hopes this trial will not be protracted by their
consideration. The remote causations avowed are too
insincere and inconsistent, too complicated and doctrinaire
to be the subject of profitable inquiry in this trial. A
familiar example is to be found in the "Lebensraum" slogan,
which summarised the contention that Germany needed more
living space as a justification for expansion. At the same
time that the Nazis were demanding more space for the German
people, they were demanding more German people to occupy
space. Every known means to increase the birth rate,
legitimate and illegitimate, was utilised. "Lebensraum"
represented a vicious circle of demand-from neighbours more
space, and from Germans more progeny. We need not
investigate the verity of doctrines which led to constantly
expanding circles of aggression. It is the plot and the act
of aggression which we charge to be crimes.

Our position is that whatever grievances a nation may have,
however objectionable it finds the status quo, aggressive
warfare is not a legal means for settling those grievances
or for altering those conditions. It may be that the Germany
of the 1920's and 1930's faced desperate problems, problems
that would have warranted the boldest measures short of war.
All other methods - persuasion, propaganda, economic
competition, diplomacy-were open to an aggrieved country,
but aggressive warfare was outlawed. These defendants did
make aggressive war, a war in violation of treaties. They
did attack and invade their neighbours in order to
effectuate a foreign policy which they knew could not be
accomplished by measures short of war. And that is as far as
we accuse or propose to inquire.

The Charter also recognises individual responsibility on the
part of those who commit acts defined as crimes, or who
incite others to do so, or who join a common plan with other
persons, groups or organisations to bring about their
commission.

The principle of individual responsibility for piracy and
brigandage, which have long been recognised as crimes
punishable under International Law, is old and well
established. That is what illegal warfare is. This principle
of personal

                                                   [Page 83]

liability is a necessary as well as a logical one if
International Law is to render real help to the maintenance
of peace. An International Law which operates only on States
can be enforced only by war because the most practicable
method of coercing a State is warfare. Those familiar with
American history know that one of the compelling reasons for
adoption of our Constitution was that the laws of the
Confederation, which operated only on constituent States,
were found in-effective to maintain order among them. The
only answer to recalcitrance was impotence or war. Only
sanctions which reach individuals can peacefully and
effectively be enforced. Hence, the principle of the
criminality of aggressive is implemented by the Charter with
the principle of personal responsibility.

Of course, the idea that a State, any more than a
corporation, commits crimes, is a fiction. Crimes always are
committed only by persons. While it is quite proper to
employ the fiction of responsibility of a State or
corporation for the purpose of imposing a collective
liability, it is quite intolerable to let such a legalism
become the basis of personal immunity.

The Charter recognises that one who has committed criminal
acts may not take refuge in superior orders nor in the
doctrine that his crimes were acts of States. These twin
principles, working together, have heretofore resulted in
immunity for practically everyone concerned in the really
great crimes against peace and mankind. Those in lower ranks
were protected against liability by the orders of their
superiors. The superiors were protected because their orders
were called acts of State. Under the Charter, no defence
based on either of these doctrines can be entertained.
Modern civilisation puts unlimited weapons of destruction in
the hands of men. It cannot tolerate so vast an area of
legal irresponsibility.

Even the German Military Code provides that:-

    "If the execution of a military order in the course of
    duty violates the criminal law, then the superior
    officer giving the order will bear the sole
    responsibility therefor. However, the obeying
    subordinate will share the punishment of the
    participant: (1) if he has exceeded the order given to
    him, or (2) if it was within his knowledge that the
    order of his superior officer concerned an act by which
    it was intended to commit a civil or military crime or
    transgression." (Reichsgesetzblatt, 1926, No. 37, P.
    278, Art. 47-)

Of course, we do not argue that the circumstances under
which one commits an act should be disregarded in judging
its legal effect. A conscripted private on a firing squad
cannot expect to hold an inquest on the validity of the
execution. The Charter implies common sense limits to
liability, just as it places common sense limits upon
immunity. But none of these men before you acted in minor
parts. Each of them was entrusted with broad discretion and
exercised great power. Their responsibility is
correspondingly great and may not be shifted to that
fictional being, "the State," which cannot be produced for
trial, cannot testify, and cannot be sentenced.

The Charter also recognises a vicarious liability, which
responsibility is recognised by most modern systems of law,
for acts committed by others in carrying out a common plan
or conspiracy to which the defendant has become a party. I
need not discuss the familiar principles of such liability.
Every day in the courts of countries associated in this
prosecution, men are convicted for acts that they did not
personally commit, but for which they were held responsible
of membership in illegal combinations or plans or
conspiracies.

Accused before this Tribunal as criminal organisations, are
certain political  police organisations which the evidence
will show to have been instruments of cohesion in planning
and executing the crimes I have detailed. Perhaps the worst
of the movement were the Leadership Corps of the N.S.D.A.P.,
the Schutz-stappeln or "S.S.," and the Sturmabteilung or
"S.A.," and the subsidiary formations which these include.
These were the Nazi Party leadership, espionage, and
policing groups. They were the real government, above and
outside of any law. Also accused as organisations are the
Reich Cabinet and the Secret Police,

                                                   [Page 84]
                                                            
or Gestapo, which were fixtures of the Government but
animated solely by the Party.

Except for a late period when some compulsory recruiting was
done in the S.S. membership in all these militarised
organisations was voluntary. The police organisations were
recruited from ardent partisans who enlisted blindly to do
the dirty work the leaders planned. The Reich Cabinet was
the governmental fa‡ade for Nazi Party Government and in its
members legal as well as actual responsibility was vested
for the programme. Collectively they were responsible for
the programme in general, individually they were especially
reponsible for segments of it. The finding which we will ask
you to make, that these are criminal organisations, will
subject members to punishment to be hereafter determined by
appropriate tribunals, unless some personal defence - such
as becoming a member under threat to person or to family, or
inducement by false respresentation, or the like be
established. Every member will have a chance to be heard in
the subsequent forum on his personal relation to the
organisation, but your finding in this trial will
conclusively establuish the criminal character of the
organisation as a whole.

We have also accused as criminal organisations the High
Command and the General Staff of the German Armed Forces. We
recognise that to plan warfare is the business of
professional soldiers in all countries. But it is one thing
to plan strategic moves in the event of war coming, and it
is another thing to plot and intrigue to bring on that war.
We will prove the leaders of the German General Staff and of
the High Command to have been guilty of just that. Military
men are not before you because they served their country.
They are here because they mastered it, and along with
others, drove it to war. They are not here because they lost
the war, but because they started it. Politicians may have
thought of them as soldiers, but soldiers know they were
politicians. We ask that the General Staff and the High
Command, as defined in the Indictment, be condemned as a
criminal group whose existence and tradition constitute a
standing menace to the peace of the world.

These individual defendants did not stand alone in crime and
will not stand alone in punishment. Your verdict of "guilty"
against these organisations will render prima facie, as
nearly as we can learn, thousands upon thousands of members
now in custody of the United States and of other Armies.

To apply the sanctions of the law to those whose conduct is
found criminal by the standards I have outlined, is the
responsibility committed to this Tribunal. It is the first
court ever to undertake the difficult task of overcoming the
confusion of many tongues the conflicting concepts of just
procedure among divers systems of law, so as to reach a
common judgement. The tasks of all of us are such as to make
heavy demands on patience and good will. Although the need
for prompt action has admittedly resulted in imperfect work
on the part of the prosecution, our great nations bring you
their hurriedly assembled contributions of evidence. What
remains undiscovered we can only guess. We could, with
testimony, prolong the recitals of crime for years - but to
what avail? We shall rest the case when we have offered what
seems convincing and adequate proof of the crimes charged
without unnecessary cumulation of evidence. We doubt very
much whether it will be seriously denied that the crimes I
have outlined took place. The effort will undoubtedly be to
mitigate or escape personal responsibility.

Among the nations which unite in accusing these defendants,
the United States is perhaps in a position to be the most
dispassionate, for having sustained the least injury, it is
perhaps the least animated by vengeance. Our American cities
have not been bombed by day and by night, by humans, and by
robots. It is not our temples that have been laid in ruins.
Our countrymen have not had their homes destroyed over their
heads. The menace of Nazi aggression, except to those in
actual service, has seemed less personal and immediate to us
than to European peoples. But while the United States is not
first in rancour, it is not

                                                   [Page 85]

second in determination that the forces of law and order be
made equal to the task of dealing with such international
lawlessness as I have recited here.

Twice in my lifetime, the United States has sent its Young
manhood across the Atlantic, drained its resources, and
burdened itself with debt to help defeat Germany. But the
real hope and faith that has sustained the American people
in these great efforts was that victory for ourselves and
our Allies would lay the basis for an ordered international
relationship in Europe and would end the centuries of strife
on this embattled continent.

Twice we have held back in the early stages of European
conflict in the belief that it might be confined to a purely
European affair. In the United States, we have tried to
build an economy without armament, a system of government
without militarism, and a society where men are not
regimented for war. This purpose, we know, now, can never be
realised if the world periodically is to be embroiled in
war. The United States cannot, generation after generation,
throw its youth or its resources on to the battlefields of
Europe to redress the lack of balance between Germany's
strength and that of her enemies, and to keep the battles
from our shores.

The American dream of a peace and plenty economy, as well as
the hopes of other nations, can never be fulfilled if these
nations are involved in a war every generation, so vast and
devastating as to crush the generation that fights and but
burden the generation that follows. Experience has shown
that wars are no longer local. All modem wars become world
wars eventually. And none of the big nations at least can
stay out. If we cannot stay out of wars, our only hope is to
prevent wars.

I am too well aware of the weaknesses of juridical action
alone to contend that in itself your decision under this
Charter can prevent future wars. Judicial action always
comes after the event. Wars are started only on the theory
and in the confidence that they can be won. Personal
punishment, to be suffered only in the event the war is
lost, will probably not be a sufficient deterrent to prevent
a war where the warmers feel the chances of defeat to be
negligible.

But the ultimate step in avoiding periodic wars, which are
inevitable in a system of international lawlessness, is to
make statesmen responsible to law. And let me make clear
that while this law is first applied against German
aggressors, the law includes, and if it is to serve a useful
purpose it must condemn, aggression by any other nations,
including those which sit here now in judgement. We are able
to do away with domestic tyranny and violence and aggression
by those in power against the rights of their own people
only when we make all men answerable to the law. This trial
represents mankind's desperate effort to apply the
discipline of the law to statesmen who have used, their
powers of state to attack the foundations of the world's
peace, and to commit aggressions against the rights of their
neighbours.

The usefulness of this effort to do justice is not to be
measured by considering the law or your judgement in
isolation. This trial is part of the great effort to make
the peace more secure. One step in this direction is the
United Nations Organisation, which may take joint political
action to prevent war if possible, and joint military action
to insure that any nation which starts a war will lose it.
This Charter and this trial, implementing the Kellogg-Briand
Pact, constitute another step in the same direction-
juridical action of a kind to ensure that those who start a
war will pay for it personally.

While the defendants and the prosecutors stand before you as
individuals, it is not the triumph of either group alone
that is committed to your judgement. Above all personalities
there are anonymous and impersonal forces whose conflict
makes up much of human history. It is yours to throw the
strength of the law behind either the one or the other of
these forces for at least another generation. What are the
forces that are contending before you?

No charity can disguise the fact that the forces which these
defendants represent,

                                                   [Page 86]

the forces that would advantage and delight in their
acquittal, are the darkest and most sinister forces in
society-dictatorship and oppression, malevolence and
passion, militarism and lawlessness. By their fruits we best
know them. Their acts have bathed the world in blood and set
civilisation back a century. They have subjected their
European neighbours to every outrage and torture, every
spoliation and deprivation that insolence, cruelty, and
greed could inflict. They have brought the German people to
the lowest pitch of wretchedness, from which they can
entertain no hope of early deliverance. They have stirred
hatreds and incited domestic violence on every continent.
There are the things that stand in the dock shoulder to
shoulder with these prisoners.

The real complaining party at your bar is Civilisation. In
all our countries it is still a struggling and imperfect
thing. It does not plead that the United States, or any
other country, has been blameless of the conditions which
made the German people easy victims to the blandishments and
intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggression and
crimes I have recited, it points to the weariness of flesh,
the exhaustion of resources, and the destruction of all that
was beautiful or useful in so much of the world, and to
greater potentialities for destruction in the days to come.
It is not necessary among the ruins of this ancient and
beautiful city with untold members of its civilian
inhabitants still buried in its rubble, to argue the
proposition that to start or wage an aggressive war has the
moral qualities of the worst of crimes. The refuge of the
defendants can be only their hope that International Law
will lag so far behind the moral sense of mankind that
conduct which is crime in the moral sense must be regarded
as innocent in law.

Civilisation asks whether law is so laggard as to be utterly
helpless to deal with crimes of this magnitude by criminals
of this order of importance. It does not expect that you can
make war impossible. It does expect that your juridical
action will put the forces of International Law, its
prospects, its prohibitions and, most of all, its sanctions,
on the side of peace, so that men and women of good will, in
all countries, may have "leave to live by no man's leave,
underneath the law."

THE PRESIDENT: The Tribunal will now adjourn until 10
o'clock tomorrow morning.

(The Tribunal adjourned to 22nd November, 1945, at 10.00
hours.)

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