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that "services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation" and that "they shall be in proportion to the resources of the country and of such a nature as not to involve the population in the obligation of taking part in the operations of war against the country." With these simple and categorical provisions we have to contrast the staggering dimensions of the operation which the defendant Sauckel directed and in which other defendants participated, the ruthlessness with which peaceful citizens were torn from their families, surroundings and employment, the manner in which they were transported, the treatment which they received on arrival, the conditions in which they worked and died in thousands and tens of thousands, and the kind of work which they were compelled to perform as direct helpers in the production of arms, munitions, and other instruments of war against their own country, and against their own people. How can all that be reconciled with the law?
It seems to have been suggested that the prohibition of the Law of Nations had in some way become obsolete in the face of the modern development of totalitarian war requiring the vastest possible use and exploitation of the material and labor resources of the occupied territory. I confess I do not understand how the extent of the activities a belligerent imposes on himself, the size of the effort he needs to make in order to avoid defeat, can enlarge his rights against peaceful noncombatants or enable him to brush aside the rules of war. We cannot make these post factum repeals of accepted International Law in favour of the law breakers.
Now is there a shadow of a right to invoke any material change in conditions as a justification for their crimes at sea-crimes which cost the lives of thirty thousand British seamen alone. We need not base our case here solely on the mere violation of the customary rules of warfare as embodied in the London Protocols of 1930 and 1936, fully subscribed to as they were by Germany and prohibiting sinking without warning, or even with warning if proper provision had not been made for the safety of passengers and crew. We need not concern ourselves with the niceties of argument whether the practice of arming merchantmen affects the position.
Nor need we take time to examine the astonishing proposition that the sinking of neutral shipping was legalized by the process of making a paper order excluding such ships not from some definite war zone over which Germany exercised control but from vast areas of the seven seas. For there is one matter at least about which nobody questions the law.
If you are satisfied that orders were given that survivors should not be rescued, that steps should be taken to prevent the shipwrecked from surviving, for the use of such weapons that there could be no question of survivors, you will have no doubt that what was done was contrary to law. It is no answer that to allow noncombatants to survive entailed greater risk to the attackers. The murderer is not excused because he says that it was necessary to kill the victim he had violated lest he should subsequently identify him.
So also in regard to the orders for the execution of Commandos. New methods of warfare, new forms of attack, do not in themselves repeal existing established rules of law. The sanctity of the life of the soldier in uniform, who surrenders after the accomplishment of his mission and who committed no war crime prior to his capture, is and I ask you to say, must remain an absolute principle of International Law. Those who, for whatever motive, trample upon it in disregard of law, in disregard of humanity, in disregard of chivalry, must pay the penalty when at last the law is vindicated.
I shall not examine this matter further or detail the other types of war crimes charged in the Indictment. For that these matters, various in their kind or method, were crimes under established law is not in doubt. The Tribunal will be concerned only to affirm the law and to decide upon the measure of these Prisoners involvement in its breach.
Crimes Against Humanity: The Legal Position
Let me, however, before I turn to questions of fact refer to the Fourth Count of the Indictment, the crimes against humanity. It is convenient, I think, to deal with these matters together for, insofar as they were committed during the war, to some extent they overlap and in any case they are interconnected. The war crimes were in their very enormity crimes against humanity. The crimes against humanity were writ larger still. Moreover, the crimes against humanity with which this Tribunal has jurisdiction to deal are limited to this extent—they must be crimes the commission of which was in some way connected with, in anticipation of or in furtherance of the crimes against the peace or the war crimes stricto sensu with which the Defendants are indicted. That is the qualification which Article 6 (c) of the Charter introduces. The considerations which apply here are, however, different to those affecting the other classes of offense, the crime against Peace or the ordinary war crime. You have to be satisfied not only that what was done was a crime against humanity but also that it was not purely a domestic matter but that directly or
indirectly it was associated with crimes against other nations or other nationals, in that, for instance, it was undertaken in order to strengthen the Nazi Party in carrying out its policy of domination by aggression, or to remove elements such as political opponents, the aged, the Jews, the existence of which would have hindered the carrying out of the total war policy.
Pursuing that for a moment the racial policy against the Jews was as I have said simply one facet of the Herrenvolk doctrine. In "Mein Kampf," Hitler had said that the most decisive factor in the German collapse in 1918 was "the failure to recognize * * * the racial problem and the Jewish menace." The attack on the Jews was at once a secret weapon- an enduring fifth column weapon to split and weaken the democracies and a device for unifying the Germany people for war. Himmler made it clear in his speech on October 4, 1943, that the treatment meted out to German Jews was closely connected with the war policy. He said:
"For we know how difficult we should have made it for our
selves if *** we still had Jews today in every town as secret saboteurs, agitators, and trouble mongers."
So the crime against the Jews, insofar as it is a crime against humanity and not a war crime, is one which we indict because of its association with the crime against the peace. That it is of course a very important qualification, and is not always appreciated by these 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 stigmatize 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 municipal law except insofar as German law, departing from all the canons of civilized 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 civilization to say that those 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 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 minimize 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 19th 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 neighboring 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 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 disregard it, the countless warnings that were given by foreign states and foreign statesmen on the counts which was being
pursued by Germany before the War. No doubt these men counted on victory and 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?
Facts: Treatment of Prisoners of War
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 the 8th of 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 (1519-PS, GB 525):
"The Bolshevist soldier has therefore lost all claim to treatment as an honorable opponent in accordance with the Geneva Convention * ** The order for ruthless and energetic action must be given at the slightest indication of 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 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 (EC-338, USSR 356):