It has already been adjudicated by a competent tribunal that Germany under its Nazi rulers started an aggressive war. The bombing of Berlin, Dresden, Hamburg, Cologne and other German cities followed the bombing of London, Coventry, Rotterdam, Warsaw and other Allied cities; the bombing of German cities succeeded, in point of time, the acts discussed here. But even if it were
assumed for the purpose of illustration that the Allies bombed German cities without Germans having bombed Allied cities, there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.
A city is bombed for tactical purposes: communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purposes of impeding the military. In those operations it inevitably happens that non-military persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to those same railway tracks, entering those houses abutting thereon, dragging out the men, women and children and shooting them.
It was argued in behalf of the defendants that there was no moral distinction between shooting civilians with rifles and killing them by means of atomic bombs. There is no doubt that the invention of the atomic bomb has added a preoccupation and worry to the human race, but the atomic bomb, when used, was not aimed at non-combatants. Like any other aerial bomb employed during the war, it was dropped to overcome military resistance.
Thus, as grave a military action as is an air bombardment, whether with the usual bombs or by atomic bomb, the one and only purpose of the bombing is to effect the surrender of the bombed nation. The people of that nation, through their representatives, may surrender and, with the surrender, the bombing ceases, the killing is ended. Furthermore, a city is assured of not being bombed by the law-abiding belligerent if it is declared an open city. With the Jews it was entirely different. Even if the nation surrendered they still were killed as individuals.
It has not been shown throughout this entire trial that the killing of the Jews as Jews in any way subdued or abated the
military force of the enemy, it was not demonstrated how mass killings and indiscriminate slaughter helped or was designed to help in shortening or winning the war for Germany. The annihilation of defenceless persons considered as "inferior" in Russia would have had no effect on the military issue of the war. In fact, so mad were those who inaugurated this policy that they could not see that the massacre of the Jews in many instances actually hindered their own efforts. We have seen in the record that occasionally German officials tried to save Jews from extinction so that they could be forced to work for the German war effort. This would have been another war crime but at least it would not have been so immediately disastrous for the victims.
The Einsatzgruppen were out to kill "inferiors" and, first of all, the Jews. But in the documentation of the war crimes trials since the end of the war, no explanation appears as to why, from the viewpoint of the Nazis, the Jew had to die. In fact, most of the defendants in all these proceedings have expressed a great regard for the Jew. They assert they have admired him, befriended him, and to have deplored the atrocities committed against him. It would seem they were ready to help him in very way except to save him from being killed.
The Einsatzgruppen were told at Pretzsch that "the Jews" supported Bolshevism, but there is no evidence that every Jew had espoused Bolshevism, although, even if this were true, killing him for his political belief would still be murder. As the einsatzkommandos entered new cities and towns and villages they did not even know where to look for the Jews. Each einsatzkommando was equipped with several interpreters, but it became evident throughout the trial that these invading forces did not carry sufficient linguistic talent to cope with the different languages of the States, provinces and localities through which they moved. There can be no doubt that because of the celerity with which the order was executed countless non-Jews were killed on the supposition that they were Jews. Frequently the only test applied to determine Judaism was that of phsiognomy.
One either justifies the Fuehrer-Order or one does not. On supports the killing of the Jews or denounces it. If the massacres are admitted to be unsupportable and if the defendants assert that their participation was the result of physical and moral duress, the issue is clear and it becomes only a question of determining how effective and oppressive was the force exerted to compel the reluctant killer. If, however, the defendants claim that the killing of the Jews was justified, but this claim does not commend itself to human reason and does not meet the requirements of law, then it is inevitable that the defendants committed a crime.
It is the privilege of the defendant to put forth mutually exclusive defences, and it is the duty of the court to consider them all. But it is evident that the insistence on the part of the defendants that the massacres were justified because the Jews constituted an immediate danger to Germany inevitably weakens the argument that they acted only under duress exerted on them personally; and in turn, the "personal duress" argument enfeebles the "danger to Germany" argument. In two or three instances an attempt was made to show that the Jews in Russia held a high percentage of official positions, a percentage disproportionate to the size of the Jewish population. This was the most common theory utilized in Germany for the oppression and persecution of the Jews. By adducing the same excuse here the defendants involved acknowledged they were putting into physical effect in Russia an antipathy and prejudice already entertained in Germany against the Jewish race. There is no duty and certainly no right on the part of the defendants to go into Russia to equalize the official positions according to the proportion between Jews and non-Jews.
Defense Counsel Dr. Mayer admitted that the Fuehrer-Order violated the recognized laws and customs of war, but urged that Russia was not entitled to protection under international law. Apart from the fact that Russia was a party to the Hague Convention on Land Warfare -- in fact, the Hague conference of 1899
was initiated by Russia -- the International Military Tribunal pointed out that the rules of the Hague Regulations have become declaratory of the Common Law of War. It further disposed of the objection by quoting approvingly from the memorandum issued by the German Admiral Canaris on September 15, 1941, in which he declared that is is contrary to military tradition, regardless of treaty or lack of treaty --
"To kill or injure helpless people."
Dr, Mayer also said, taking the same line as Dr. Maurach:
"If this war was not an unjustified war of aggression, but a justified preventive war, then, on the basis of my explanations in the Trial Brief on the subject of the ideology, aims and practice of the USSR, to which I refer, the question arises, in how far the German Reich found itself, in this war against the USSR, in a genuine state of national emergency, and whether this justified the orders given by Hitler."
If Dr. Mayer means this, he collides head-on with a res judicata. The International Military Tribunal, after studying countless documents and hearing numerous direct witnesses of and participants in the event itself, declared:
"The plans for the economic exploitation of the USSR, for the removal of masses of population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on the 22nd June without warning of any kind, and without the shadow of legal excuse. It was plain aggression."
The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self defense, is untenable as being opposed to all facts, all logic and all law.
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 72 - 76 (original mimeographed copy)