The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Seventh Day: Friday, 26th July, 1946
(Part 12 of 12)


[Page 431]

So the crime against the Jews, in so far as it is a crime against humanity and not a war crime as well, is one which we indict because of its close association with the crime against the peace. That it is, of course, a very important qualification on the Indictment of the crimes against humanity is not always appreciated by those who have questioned the exercise of this jurisdiction. But subject to that qualification we have thought it right to deal with matters which the criminal law of all countries would normally stigmatise as crimes. Murder, extermination, enslavement, persecution on political, racial or economic grounds. These things done against belligerent nationals or, for that matter, done against German nationals in belligerent occupied territory would be ordinary war crimes the prosecution of which would form no novelty. Done against others they would be crimes against national law except in so far as German law, departing from all the canons of civilised procedure, may have authorized them to be done by the State or by persons acting on behalf of the State. Although so to do does not in any way place those defendants in greater jeopardy than they would otherwise be, the nations adhering to the Charter of this Tribunal have felt it proper and necessary in the interest of civilisation to say that these things even if done in accordance with the laws of the German State, as created and ruled by these men and their ringleader, were, when committed with the

[Page 432]

intention of affecting the international community - that is in connection with the other crimes charged - not mere matters of domestic concern but crimes against the Law of Nations: I do not minimise the significance for the future of the political and jurisprudential doctrine which is here implied. Normally International Law concedes that it is for the State to decide how it shall treat its own nationals; it is a matter of domestic jurisdiction. And although the Social and Economic Council of the United Nations Organization is seeking to formulate a charter of the Rights of Man, the Covenant of the League of Nations and the Charter of the United Nations Organization does recognize that general position. Yet International Law has in the past made some claim that there is a limit to the omnipotence of the State and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the State tramples upon his rights in a manner which outrages the conscience of mankind. Grotius, the founder of International Law, had some notion of that principle when - at a time when the distinction between the just and the unjust war was more clearly accepted than was the case in the nineteenth century - he described as just a war undertaken for the purpose of defending the subjects of a foreign State from injuries inflicted by their ruler. He affirmed, with reference to atrocities committed by tyrants against their subjects, that intervention is justified for "the right of social connection is not cut off in such a case". The same idea was expressed by John Westlake, the most distinguished of British international lawyers, when he said:
"It is idle to argue in such cases that the duty of neighbouring peoples is to look quietly on. Laws are made for men and not creatures of the imagination, and they must not create or tolerate for them situations which are beyond endurance."
The same view was acted upon by the European Powers which in time past intervened in order to protect the Christian subjects of Turkey against cruel persecution. The fact is that the right of humanitarian intervention by war is not a novelty in International Law - can intervention by judicial process then be illegal? The Charter of this Tribunal embodies a beneficent principle - much more limited than some would like it to be - and it gives warning for the future. I say, and repeat again, gives warning for the future to dictators and tyrants: masquerading as a State that if, in order to strengthen or further their crimes against the community of nations, they debase the sanctity of man in their own country they act at their peril for they affront the International Law of mankind.

As for the criticism which is made of retroactive law, that it makes that criminal which men did not know to be wrong when they committed it - what application can that have here? You will not disregard it even if these defendants time after time disregarded the countless warnings that were given by foreign States and foreign statesmen on the course which was being pursued by Germany before the war. No doubt these men counted on victory, their whole policy was based on the notion of success, they little thought that they would be brought to account. But can any one of them be heard to say that if he knew about these things at all he did not know them to be wrongs crying out to high heaven for vengeance.

Let me deal with what they did to prisoners of war, for this alone, the clearest crime of all, demands their conviction and will for all time stain the record of German arms.

On 8th September, 1941, final regulations for the treatment of Soviet prisoners of war in all prisoner-of-war camps were issued signed by General Reinecke, the head of the Prisoners- of-War Department of the High Command. They were the result of agreement with the SS and read as follows:

"The Bolshevist soldier has therefore lost all claim to treatment as an honourable opponent in accordance with the Geneva Convention .... The order for ruthless and energetic action must be given at the slightest indication of

[Page 433]

insubordination, especially in the case of Bolshevist fanatics. Insubordination, active or passive resistance must be broken immediately by force of arms (bayonets, butts and firearms) ... anyone carrying out the order who does not use his weapons or does so with insufficient energy is punishable ... prisoners of war attempting to escape are to be fired on without previous challenge. No warning shot must ever be fired ... the use of arms against prisoners of war is, as a rule, legal ... camp police must be formed of suitable Soviet prisoners of war in the camp ... within the wire fence the camp police may be armed with sticks, whips or other similar weapons to enable them to carry out their duties effectively."
The regulations go on to order the segregation of civilians and politically undesirable prisoners of war taken during the eastern campaign. After prescribing the importance for the armed forces of ridding themselves of all those elements among the prisoners of war which could be considered as the driving forces of Bolshevism, emphasis is placed on the need for special measures, free from bureaucratic administrative influences, and accordingly their transfer to the Security Police and the SD is given as the way to reach the "appointed goal".

That Keitel, who is directly responsible for this order, was issuing it with full knowledge of its implications is made clear by the memorandum of Admiral Canaris dated 15th September, 1941, protesting against it, and correctly stating the legal position, as follows:

"The Geneva Convention for the treatment of prisoners of war is not binding in the relationship between Germany and the USSR. Therefore only the principles of General International Law on the treatment of prisoners of war apply. Since the eighteenth century these have gradually been established along the lines that war captivity is neither revenge nor punishment but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. This principle was developed in accordance with the view held by all armies that it is contrary to military tradition to kill or injure helpless people .... The decrees for the treatment of Soviet prisoners of war enclosed are based on a fundamentally different viewpoint."
Canaris went on to point out the shocking nature of the orders for use of arms by guards and for equipping the camp police with clubs and whips. On this memorandum, as you were reminded this morning, Keitel noted:
"The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore, I approve and back the measures. K."
Any possible doubt that Keitel knew that the transfer to the Security Police and SD was intended to mean liquidation can hardly survive study of that document. Canaris writes of the screening, as it is called, of the undesirables:
"The decision over their fate is effected by the action detachments of the Security Police and the SD,"
on which Keitel, underlining Security Police, comments "very efficient" whilst on the further criticism by Canaris that the principles of their decision are unknown to the Wehrmacht authorities, Keitel comments, "not at all".

The parallel instruction to the Security Police and SD recites the agreement with the High Command, and after enjoining the closest co-operation between the members of the police teams and the commandants of the camps and listing those to be handed over, it reads:

"Executions must not be held in the camp. If the camps in the Government General are located in the immediate vicinity of the border the prisoners are to be taken, if at all possible, to former Soviet Russian territory for special treatment."
It is not necessary to remind you of the volume of evidence with regard to the numbers of Soviet and Polish prisoners in concentration camps. Their treatment

[Page 434]

needs no further reminder than the report by the Commandant of Gross Rosen concentration camp who on 23rd October, 1941, reports the shooting of twenty Russian prisoners between five and six o'clock that day, and Muller's circular from the same file, which states:
"The commandants of the concentration camps are complaining that five to ten per cent of the Soviet Russians destined for execution are arriving in the camps dead or half-dead. Therefore the impression has arisen that the Stalags are getting rid of such prisoners in this way.

It was particularly noted that when marching, for example from the railroad station to the camp, a rather large number of P.O.W.s collapsed on the way from exhaustion, either dead or half-dead, and had to be picked up by a truck following the convoy.

It cannot be prevented that the German people take notice of these occurrences."

Did any of these defendants take notice of these occurrences that could not be hidden from the German people?

I go on:

"Even if the transportation to the camps is generally taken care of by the Wehrmacht, the population will still attribute this situation to the SS. In order to prevent, if possible, similar occurrences in the future, I therefore order that, effective from today on, Soviet Russians declared definitely suspect and obviously marked by death (for example with typhus) and who therefore would not be able to withstand the exertions of even a short march on foot, shall in the future, as a matter of basic principle, be excluded from the transport to the concentration camp, and executed.

I request that the leaders of the Einsatz Kommandos be correspondingly informed of this decision without delay."

On 2nd March, 1944, the Chief of the Sipo and SD forwarded to his various branch offices a further order of the OKW for the treatment of prisoners recaptured after attempted escape. With the exception of British and Americans, who were to be returned to the camps, the others were to be sent to Mauthausen and to be dealt with under operation "Kugel" which, as the Tribunal will remember, involved immediate shooting. Inquiries by relatives, other prisoners, the Protecting Power and the International Red Cross were to be dealt with in such a way that the fate of these men, soldiers whose only crime had been to do their duty, should be for ever hidden.

It was shortly after the issue of the "Kugel" order that 80 British officers of the R.A.F. made an attempt to escape from Stalag Luft III at Sagan. The defendants directly connected with this matter have not denied that the shooting of fifty of these officers was deliberate murder and was the result of a decision at the highest level. There can be no question that Goering, Keitel and probably Ribbentrop participated in this decision and that Jodl and Kaltenbrunner and, even if he did not actually participate, Ribbentrop, were all aware of it at the time.

Goering's participation is a matter of inevitable inference from the following three facts:

First: The order was given by Hitler.

Second: Westhoff, of the Prisoner-of-War Organization of the OKW, says he was informed by Keitel that Goring had blamed him for the escape at the meeting at which the order was decided upon.

Third: In Goering's own Ministry, which was responsible for the treatment of R.A.F. prisoners of war, Walde heard of the order on 28th March at the meeting of executives and told General Grosch Grosch informed Foerster, who went straight to Milch, Goering's Chief of Staff, and returned to inform Grosch that Milch had been told, and had made the necessary notes.

You will say whether you do not consider the denials of Goring and Milch to be mere perjury.

[Page 435]

Keitel admits that Hitler ordered transfer to the SD and that he "was afraid" they might be shot. He told his officers Gravenitz and Westhoff:
"We must set an example. They will be shot - probably some have been shot already."
And when Gravenitz protested he replied: "I don't care a damn."

On this evidence of his own officers, surely his complicity is clear in this matter.

Jodl said that when Himmler was reporting the escape he was in the next room telephoning; he heard a very loud discussion, and on going to the curtain to hear what it was, he learned that there had been an escape from Sagan. It is incredible in these circumstances that even if he did not take part in the decision he did not at any rate know of it from Keitel immediately after the meeting. And knowing of it, he carried on playing his part in the conspiracy.

As to Kaltenbrunner's guilt the meeting at which Walde was informed of the decision was with Muller and Nebe, Kaltenbrunner's subordinates. Schellenberg's evidence of the discussion between Nebe, Muller and Kaltenbrunner about this time on the subject of an International Red Cross inquiry about fifty English or American prisoners of war is conclusive. We heard Kaltenbrunner providing his subordinates with the answer to be given to this inconvenient inquiry, and one cannot doubt his full knowledge of this matter. The reply sent to the Protecting Power and the International Red Cross by Ribbentrop is now admitted on all hands to have been a pack of lies. Is it to be believed that he also was not a party to the decision?

That any of these men would have been prepared to take such a decision themselves or to comply with it if taken by Hitler is, we submit, clear from the correspondence providing for the lynching or shooting of what were called terror flyers. These documents show that neither Keitel nor Jodl had any scruples in the matter, while both Goering and Ribbentrop agreed to the draft order.

You will remember the meetings which preceded that correspondence - first a meeting between Goring, Ribbentrop and Himmler at which it was agreed to modify "the original suggestion made by the Reich Foreign Minister, who wished to include every type of terror attack on the German civilian population as justifying action", and which concluded that "lynch law would have to be the rule".

At the subsequent meeting between Warlimont and Kaltenbrunner it was agreed that "those aviators who escaped lynch law would, in accordance with a procedure to be devised, be handed over to the SD for special treatment".

Finally Keitel's note on the file:

"I am against legal procedure. It does not work out."
Similar evidence is provided when we consider the attitude taken up in February, 1945, when Hitler wished to renounce the Geneva Convention. Donitz advised that "it would be better to carry out measures considered necessary without warning and at all costs to save face with the outside world" - a decision with which Jodl and Ribbentrop's representative agreed. Their defence that this was merely a technical measure, and that they did not in fact intend any concrete action, is disposed of by Jodl's memorandum on the whole question:
"Just as it was wrong in 1914 that we ourselves solemnly declared war on all the States which for a long time had wanted to wage war against us, and through this took the whole guilt of the war on our shoulders before the outside world, and just as it was wrong to admit that the necessary passage through Belgium in 1914 was our own fault, so it would be wrong now to repudiate openly the obligations of International Law which we accepted, and thereby to stand again as the guilty party before the whole world."
After this remarkable statement he added that there was nothing to prevent them in fact from sinking an English hospital ship as a reprisal and then expressing regret that it was a mistake ....

Would this be a convenient place?

[Page 436]

THE PRESIDENT: Yes, Mr. Attorney. Would it be convenient to you to sit at 9.45 in the morning? The Tribunal anticipates in these circumstances we might be able to finish at one o'clock or shortly afterwards. In any event, we would sit on in order to finish.

SIR HARTLEY SHAWCROSS: I think I would be very much obliged if the Court would do that.

(The Tribunal adjourned until 27th July, 1946, at 0945 hours.)

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