The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 382]

HUNDRED AND EIGHTY-SEVENTH DAY

FRIDAY, 26th JULY, 1946

THE PRESIDENT: I call on the Chief Prosecutor of the United
States of America.

THE MARSHAL: May it please the Tribunal, the defendant Hess
is absent.

[NB. See appendix for Notes.]

JUSTICE JACKSON: Mr. President and members of the Tribunal:

An advocate can be confronted with few more formidable tasks
than to select his closing arguments where there is great
disparity between his appropriate time and his available
material. In eight months - a short time as State trials go
- we have introduced evidence which embraces as vast and
varied a panorama of events as has ever been compressed
within the framework of a litigation. It is impossible in
summation to do more than outline with bold strokes the
vitals of this trial's sad and melancholy record, which will
live as the historical text of the twentieth century's shame
and depravity.

It is common to think of our own time as standing at the
apex of civilisation, from which the deficiencies of
preceding ages may patronisingly be viewed in the light of
what is assumed to be "progress". The reality is that in the
long perspective of history the present century will not
hold an admirable position, unless its second half is to
redeem its first. These two-score years in this twentieth
century will be recorded in the book of years as some of the
most bloody in all annals. Two world wars have left a legacy
of dead which number more than all the armies engaged in any
war that made ancient or medieval history. No half-century
ever witnessed slaughter on such a scale, such cruelties and
inhumanities, such wholesale deportations of peoples into
slavery, such annihilations of minorities. The terror of
Torquemada pales before the Nazi Inquisition. These deeds
are the overshadowing historical facts by which generations
to come will remember this decade. If we cannot eliminate
the causes and prevent the repetition of these barbaric
events, it is not an irresponsible prophecy to say that this
twentieth century may yet succeed in bringing the doom of
civilisation.

Goaded by these facts, we were moved to redress the blight
on the record of our era. The defendants complain that our
pace is too fast. In drawing the Charter of this Tribunal,
we thought we were recording an accomplished advance in
International Law. But they say that we have outrun our
times, that we have anticipated an advance that should be,
but has not yet been made. The Agreement of London, whether
it originates or merely records, at all events marks a
transition in International Law which roughly corresponds to
that in the evolution of local law when men ceased to punish
crime by "hue and cry" and began to let reason and inquiry
govern punishment. The society of nations has emerged from
the primitive "hue and cry", the law of "catch and kill". It
seeks to apply sanctions to enforce International Law, but
to guide their application by evidence, law, and reason
instead of outcry. The defendants denounce the law under
which their accounting is asked. Their dislike for the law
which condemns them is not original. It has been remarked
before that:

  "No thief e'er felt the halter draw with good opinion of
  the law."

                                                  [Page 383]

I shall not labour the law of this case. The position of the
United States was explained in my opening statement. My
distinguished colleague, the Attorney-General of Great
Britain, will reply on behalf of all the Chief Prosecutors
to the defendants' legal attack. At this stage of the
proceedings, I shall rest upon the law of these crimes as
laid down in the Charter. The defendants, who except for the
Charter would have no right to be heard at all, now ask that
the legal basis of this trial be nullified. This Tribunal,
of course, is given no power to set aside or modify the
Agreement between the Four Powers, to which eighteen other
nations have adhered. The terms of the Charter are
conclusive upon every party to these proceedings.

In interpreting the Charter, however, we should not overlook
the unique and emergent character of this body as an
International Military Tribunal. It is no part of the
constitutional mechanism of internal justice of any of the
signatory nations. Germany has unconditionally surrendered,
but no peace treaty has been signed or agreed upon. The
Allies are still technically in a state of war with Germany,
although the enemy's political and military institutions
have collapsed. As a Military Tribunal, this Tribunal is a
continuation of the war effort of the Allied nations. As an
International Tribunal, it is not bound by the procedural
and substantive refinements of our respective judicial or
constitutional systems, nor will its rulings introduce
precedents into any country's internal system of civil
justice. As an International Military Tribunal, it rises
above the provincial and transient, and seeks guidance not
only from International Law but also from the basic
principles of jurisprudence, which are assumptions of
civilisation and which long have found embodiment in the
codes of all nations.

Of one thing we may be sure. The future will never have to
ask, with misgiving, what could the Nazis have said in their
favour. History will know that whatever could be said, they
were allowed to say. They have been given the kind of a
trial which they, in the days of their pomp and power, never
gave to any man.

But fairness is not weakness. The extraordinary fairness of
these hearings is an attribute of our strength. The
prosecution's case, at its close, seemed inherently
unassailable because it rested so heavily on German
documents of unquestioned authenticity. But it was the weeks
upon weeks of pecking at this case, by one after another of
the defendants, that has demonstrated its true strength. The
fact is that the testimony of the defendants has removed any
doubt of guilt which, because of the extraordinary nature
and magnitude of these crimes, may have existed before they
spoke. They have helped to write their own judgement of
condemnation.

But justice in this case has nothing to do with some of the
arguments put forth by the defendants or their counsel. We
have not previously and we need not now discuss the merits
of all their obscure and tortuous philosophy. We are not
trying them for the possession of obnoxious ideas. It is
their right, if they choose, to renounce the Hebraic
heritage in the civilisation of which Germany was once a
part. Nor is it our affair that they repudiated the Hellenic
influence as well. The intellectual bankruptcy and moral
perversion of the Nazi regime might have been no concern of
International Law had it not been utilised to goose-step the
Herrenvolk across international frontiers. It is not their
thoughts, it is their overt acts which we charge to be
crimes. Their creed and teachings are important only as
evidence of motive, purpose, knowledge and intent.

We charge unlawful aggression but we are not trying the
motives, hopes, or frustrations which may have led Germany
to resort to aggressive war as an instrument of policy. The
law, unlike politics, does not concern itself with the good
or evil in the status quo, nor with the merits of the
grievances against it. It merely requires that the status
quo be not attacked by violent means and that policies be
not advanced by war. We may admit that overlapping
ethnological and cultural groups, economic barriers, and
conflicting national ambitions created in the 1930's, as
they will continue to create, grave problems for Germany as
well

                                                  [Page 384]

as for the other peoples of Europe. We may admit too that
the world had failed to provide political or legal remedies
which would be honourable and acceptable alternatives to
war. We do not underwrite either the ethics or the wisdom of
any country, including my own, in the face of these
problems. But we do say that it is now, as it was for some
time prior to 1939, illegal and criminal for Germany or any
other nation to redress grievances or seek expansion by
resort to aggressive war.

Let me emphasize one cardinal point. The United States has
no interest which would be advanced by the conviction of any
defendant if we have not proved him guilty on at least one
of the counts charged against him in the Indictment. Any
result that the calm and critical judgement of posterity
would pronounce unjust would not be a victory for any of the
countries associated in this prosecution. But in summation
we now have before us the tested evidences of criminality
and have heard the flimsy excuses and paltry evasions, of
the defendants. The suspended judgement with which we opened
this case is no longer appropriate. The time has come for
final judgement, and if the case I present seems hard and
uncompromising, it is because the evidence makes it so.

I perhaps can do no better service than to try to lift this
case out of the morass of detail with which the record is
full, and put before you only the bold outlines of a case
that is impressive in its simplicity. True, its thousands of
documents and more thousands of pages of testimony deal with
an epoch and cover a continent, and touch almost every
branch of human endeavour. They illuminate specialities,
such as diplomacy, naval development and warfare, land
warfare, the genesis of air warfare, the politics of the
Nazi rise to power, the finance and economics of
totalitarian war, sociology, penology, mass psychology, and
mass pathology. I must leave it to experts to comb the
evidence and write volumes on their specialities, while I
picture in broad strokes the offences whose acceptance as
lawful would threaten the continuity of civilisation. I
must, as Kipling put it, "splash at a ten-league canvas with
brushes of camel's hair".

THE CRIMES OF THE NAZI REGIME

The strength of the case against these defendants under the
conspiracy count, which it is the duty of the United States
to argue, lies in its simplicity. It involves but three
ultimate inquiries: First, have the acts defined by the
Charter as crimes been committed; second, were they
committed pursuant to a common plan or conspiracy; third,
are these defendants among those who are criminally
responsible?

The charge requires examination of a criminal policy, not of
a multitude of isolated, unplanned, or disputed crimes. The
substantive crimes upon which we rely, either as goals of a
common plan or as means for its accomplishment, are
admitted. The pillars which uphold the conspiracy charge may
be found in five groups of overt acts, whose character and
magnitude are important considerations in appraising the
proof of conspiracy.

1. THE SEIZURE OF POWER AND SUBJUGATION OF GERMANY TO A
POLICE STATE

The Nazi Party seized control of the German State in 1933.
"Seizure of power" is a characterisation used by defendants
and defence witnesses, and so apt that it has passed into
both history and everyday speech. (1.)

The Nazi junta in the early days lived in constant fear of
overthrow. Goering, in 1934, pointed out that its enemies
were legion, and said:

  "Therefore, the concentration camps have been created,
  where we have first confined thousands of Communists and
  Social Democrat functionaries." (2.)

                                                  [Page 385]

In 1933 Goering forecast the whole programme of purposeful
cruelty and oppression when he publicly announced:

  "Whoever in the future raises a hand against a
  representative of the National Socialist movement or of
  the State must know that he will lose his life in a very
  short while." (3.)

New political crimes were created to this end. It was made a
treason, punishable with death, to organize or support a
political party other than the Nazi Party. (4.) Circulating
a false or exaggerated statement, or one which would harm
the State or even the Party, was made a crime. (5.) Laws
were enacted of such ambiguity that they could be used to
punish almost any innocent act. It was, for example, made a
crime to provoke "any act contrary to the public welfare".
(6.)

The doctrine of punishment by analogy was introduced to
enable conviction for acts which no statute forbade. (7.)
Minister of Justice Guertner explained that National
Socialism considered every violation of the goals of life
which the community set up for itself to be a wrong per se,
and that the acts could be punished even though it was not
contrary to existing "formal law". (8.)

The Gestapo and the SD were instrumentalities of an
espionage system which penetrated public and private life.
(9.) Goering controlled a personal wiretapping unit. (10.)
All privacy of communication was abolished. (11.) Party
Blockleiter appointed over every 50 householders spied
continuously on all within their ken. (12.)

Upon the strength of this spying individuals were dragged
off to "protective custody" and to concentration camps
without legal proceedings of any kind (13.) and without
statement of any reason therefore. (14.) The partisan
political police were exempted from effective legal
responsibility for their acts. (15.)

With all administrative offices in Nazi control and with the
Reichstag reduced to impotence, the judiciary remained the
last obstacle to this reign of terror. (16.) But its
independence was soon overcome and it was reorganised to
dispense a venal justice. (17.) Judges were ousted for
political or racial reasons and were spied upon and put
under pressure to join the Nazi Party. (18.) After the
Supreme Court had acquitted three of the four men whom the
Nazis accused of setting the Reichstag on fire, its
jurisdiction over treason cases was transferred to a newly
established "People's Court" consisting of two judges and
five Party officials. (19.) The German film of this
"People's Court" in operation, which the showed in this
chamber, revealed its presiding judge pouring partisan abuse
on speechless defendants. (20.) Special courts were created
to try political crimes, only Party members were appointed
judges (21.), and "Judges' letters" instructed the puppet
judges as to the "general lines" they must follow. (22.)

The result was the removal of all peaceable means either to
resist or to change the Government. Having sneaked through
the portals of power, the Nazis slammed the gate in the face
of all others who might also aspire to enter. Since the law
was what the Nazis said it was, every form of opposition was
rooted out and every dissenting voice throttled. Germany was
in the clutch of a police State, which used the fear of the
concentration camp as a means to enforce non-resistance. The
Party was the State, the State was the Party, and terror by
day and death by night were the policy of both.

2. THE PREPARATION AND WAGING OF WARS OF AGGRESSION

From the moment the Nazis seized power, they set about with
feverish but stealthy efforts, in defiance of the Versailles
Treaty, to arm for war. In 1933 they found no air force. By
1939 they had 21 squadrons, consisting of 240 echelons or
about 2,400 first-line planes, together with trainers and
transports. In 1933 they found an army of 3 infantry and 3
cavalry divisions. By 1939 they had raised and equipped an
army of 51 divisions, 4 of which were fully motorized and 4
of which were panzer divisions. In 1933 they found a navy of
one cruiser and six light cruisers. By 1939 they had built a
navy of 4 battleships,

                                                  [Page 386]

1 aircraft carrier, 6 cruisers, 22 destroyers, and 54
submarines. They had also built up in that period an
armament industry as efficient as that of any country in the
world. (23.)

These new weapons were put to use, commencing in September,
1939, in a series of undeclared wars against nations with
which Germany had arbitration and non-aggression treaties,
and in violation of repeated assurances. (24.)

On 1st September, 1939, this rearmed Germany attacked
Poland. The following April witnessed the invasion and
occupation of Denmark and Norway, and May saw the
overrunning of Belgium, the Netherlands, and Luxembourg.
Another spring saw Yugoslavia and Greece under attack, and
in June, 1941, came the invasion of Soviet Russia. Then
Japan, which Germany had embraced as a partner, struck
without warning at Pearl Harbour in December, 1941, and four
days later Germany declared war on the United States.

We need not trouble ourselves about the many abstract
difficulties that can be conjured up about what constitutes
aggression in doubtful cases. I shall show you, in
discussing the conspiracy, that by any test ever put forward
by any responsible authority, by all the canons of plain
common sense, these were unlawful wars of aggression in
breach of treaties and in violation of assurances.

3. WARFARE IN DISREGARD OF INTERNATIONAL LAW

It is unnecessary to labour this point on the facts. Goering
asserts that the Rules of Land Warfare were obsolete, that
no nation could fight a total war within their limits. (25.)
He testified that the Nazis would have denounced the
Conventions to which Germany was a party, but that General
Jodl wanted captured German soldiers to continue to benefit
from. their observance by the Allies. (26.)

It was, however, against the Soviet people and Soviet
prisoners that Teutonic fury knew no bounds, in spite of a
warning by Admiral Canaris that the treatment was in
violation of International Law. (27.)

We need not, therefore, for the purposes of the conspiracy
count, recite the revolting details of starving, beating,
murdering, freezing, and mass extermination admittedly used
against the Eastern soldiery. Also, we may take as
established or admitted that the lawless conduct such as
shooting British and American airmen, mistreatment of
Western prisoners of war, forcing French prisoners of war
into German war work, and other deliberate violations of the
Hague and Geneva Conventions, did occur, and in obedience to
highest levels of authority. (28.)


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