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                           of the
               International Military Tribunal
                           For The
             Trial of German Major War Criminals

               His Majesty's Stationery Office

                                                   [Page 42]
In the previous recital of the facts relating to aggressive
war, it is clear that planning and preparation had been
carried out in the most systematic way at every stage of the

Planning and preparation are essential to the making of war.
In the opinion of the Tribunal aggressive war is a crime
under international law. The Charter defines this offense as
planning, preparation, initiation, or waging of a war of
aggression "or participation in a Common Plan or Conspiracy
for the accomplishment ..of the foregoing". The Indictment
follows this distinction. Count One charges the Common Plan
or Conspiracy. Count Two charges the planning and waging of
war. The same evidence has been introduced to support both
Counts. We shall therefore discuss both Counts together, as
they are in substance the same. The defendants have been
charged under both Counts, and their guilt under each Count
must be determined.

The "Common Plan or Conspiracy" charged in the Indictment
covers twenty-five years, from the formation of the Nazi
Party in 1919 to the end of the war in 1945. The Party is
spoken of as "the instrument of cohesion among the
Defendants" for carrying out the purposes of the conspiracy
the overthrowing of the Treaty of Versailles, acquiring
territory lost by Germany in the last war and "Lebensraum"
in Europe, by the use, if necessary, of armed force, of
aggressive war. The "seizure of power" by the Nazis, the use
of terror, the destruction of trade unions, the attack on
Christian teaching and on churches, the persecution of Jews,
the regimentation of youth  all these are said to be steps
deliberately taken to carry out the common plan. It found
expression, so it is alleged, in secret rearmament, the
withdrawal by Germany from the Disarmament Conference and
the League of Nations, universal military service, and
seizure of the Rhineland. Finally, according to the
Indictment, aggressive action was planned and carried out
against Austria and Czechoslovakia in 1936-1938, followed by
the planning and waging of war against Poland; and,
successively, against 10 other countries.

The Prosecution says, in effect, that any significant
participation in the affairs of the Nazi Party or Government
is evidence of a participation in a conspiracy that is in
itself criminal. Conspiracy is not defined in the Charter.
But in the opinion of the Tribunal the conspiracy must be
clearly outlined in its criminal purpose. It must not be too
far removed from the time of decision and of action. The
planning, to be criminal, must not rest merely on the
declarations of a party program. such as are found in the 25
points of the Nazi Party, announced in 1920, or the
political affirmations expressed in Mein Kampf in later
years. The Tribunal must examine whether a concrete plan to
wage war existed, and determine the participants in that
concrete plan.

It is not necessary to decide whether a single master
conspiracy between the defendants has been established by
the evidence. The seizure of power by the Nazi Party, and
the subsequent domination by the Nazi State of all spheres
of economic and social life must of course be remembered
when the later plans for waging war are examined. That plans
were made to wage war, as early as 5th November, 1937, and
probably before that, is apparent. And thereafter, such
preparations continued in many directions, and against the
peace of many countries. Indeed the threat of war  and war
itself if necessary  was an integral part of the Nazi
policy. But the evidence establishes with certainty the
existence of many separate plans rather than a single
conspiracy embracing them all. That Germany was rapidly
moving to complete dictatorship from the moment that the
Nazis seized power, and progressively in the direction of
war, has been overwhelmingly shown in the ordered sequence
of aggressive acts and wars already set out in this

In the opinion of the Tribunal, the evidence establishes the
common planning to prepare and wage war by certain of the
defendants. It is immaterial to consider whether a single
conspiracy to the extent and over the time set out in the
Indictment has been conclusively proved. Continued planning,
with aggressive war as the objective, has been established
beyond doubt. The truth of the situation was well stated by
Paul Schmidt, official interpreter of the German Foreign
Office, as follows:

"The general objectives of the Nazi leadership were apparent
from the start, namely the domination of the European
Continent, to be achieved first by the incorporation of all
German speaking groups in the Reich, and secondly, by
territorial expansion under the slogan "Lebensraum". The
execution of these basic objectives, however, seemed to be
characterized by improvisation. Each succeeding step was
apparently carried out as each new situation arose, but all
consistent with the ultimate objectives mentioned above."

The argument that such common planning cannot exist where
there is complete dictatorship is unsound. A plan in the
execution of which a number of persons participate is still
a plan, even though conceived by only one of them; and those
who execute the plan do not avoid responsibility by showing
that they acted under the direction of the man who conceived
it. Hitler could not make aggressive war by himself. He had
to have the co-operation of statesmen, military leaders,
diplomats, and business men. When they, with knowledge of
his aims, gave him their co-operation, they made themselves
parties to the plan he had initiated. They are not to be
deemed innocent because Hitler made use of them, if they
knew what they were doing. That they were assigned to their
tasks by a dictator does not absolve them from
responsibility for their acts. The relation of leader and
follower does not preclude responsibility here any more than
it does in the comparable tyranny of organized domestic

Count One, however, charges not only the conspiracy to
commit aggressive war, but also to commit War crimes and
Crimes against Humanity. But the Charter does not define as
a separate crime any conspiracy except the one to commit
acts of aggressive war. Article G of the Charter provides:

     "Leaders, organizers, instigators, and accomplices
     participating in the formulation or execution of a
     Common Plan or Conspiracy to commit any of the
     foregoing crimes are responsible for all acts
     performed by any persons in execution of such

In the opinion of the Tribunal these words do not add a new
and separate crime to those already listed. The words are
designed to establish the responsibility of persons
participating in a common plan. The Tribunal will therefore
disregard the charges in Count One that the defendants
conspired to commit war crimes and crimes against humanity,
and will consider only the common plan to prepare, initiate,
and wage aggressive war.

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