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I consider fully proved the charges against the defendants to the effect that in 1933 when the Hitlerites seized the power in Germany they created a plan or conspiracy including the perpetration of crimes against peace, war crimes and crimes against humanity. The legal proceedings have fully proved the crimes against peace perpetrated by the defendants which consists in planning, preparing, initiating and waging aggressive wars, in violation of international treaties, agreements and assurances.
The facts here speak for themselves; wars which involved innumerable victims and destructions; wars, the aggressive nature of which has been undoubtedly established. The guilt of the defendants in having committed crimes against peace has been fully proved. The charge of perpetrating war crimes, in waging war by methods contrary to the laws and customs of war, have been fully proved. Neither the defendants themselves, nor their counsel, could contest the very facts of their having committed these crimes.
All that they could say to this was that the defendants themselves had not committed these atrocities, the extermination of people, “murder vans” and concentration camps; they had not destroyed the Jews with their own hands, and had not even known about such particular facts. But that such facts existed the defendants themselves do not deny. The defendants admit these facts. This is indeed fruitless method of defense! Certainly, the defendants occupying high leading posts in Hitler's Germany were in no need of shooting, hanging, smothering, freezing live people themselves, by way of experiment. Their subordinates did that according to their instructions; henchmen did, so to say, the dirty work whilst the defendants only had to give orders which were unwaveringly obeyed. Therefore, the attempts of the defendants to deny their connection with the henchmen, to separate themselves from them, were hopeless. This connection is evident and indisputable. If the Commandant of Auschwitz, Rudolph Hess, pulled out the golden teeth of the dead, we may say that the Reichsminister, Walter Funk, opened special safes in the cellars of the Reichsbank to keep these golden teeth.
If the subordinates of Kaltenbrunner exterminated people in "murder vans", the vans themselves were built at the works of Sauer, Daimler and Wenz, which were subordinated to the defendant Speer. If the prisoners of war were destroyed by professional henchmen of the unit “Toten Kopf” (Death Head Unit) and by the guards of the camp, the orders to exterminate were signed by Fieldmarshal of the German Army, Keitel. That is to say, the defendants appointed the terms of extermination, the date and issued the orders to create a special technique of murder, explained the reasons for the right of the master races to exterminate "inferior races."
For every murder, for every drop of innocent blood shed by Hitler's henchmen the defendants are responsible, for between them and the direct perpetrators of the crimes, murder, torture, there is a difference only in rank and scope of action; these were direct henchmen, and these are the principal henchmen, the chiefs of the henchmen, henchmen of a higher grade. They are far more dangerous than those trained in the spirit of hatred towards humanity and wild fanaticism, whom they now repudiate in order to save themselves.
The criminality of the defendants in the perpetration of war crimes, has been fully proved; that they initiated a system of exterminating war prisoners, peaceful inhabitants, women, old men and children; it is their fault, that wherever the German soldier stepped, there lay heaps of murdered and tortured people, ruins and places left barren by fire, land desecrated and soaked with blood. The crimes committed against humanity have been completely proved. We cannot omit the crimes committed by the defendants in Germany during their domination: the extermination of all those who expressed their discontent in any way with the Nazi regime; slave labor and extermination of people in concentration camps, mass extermination of Jews, and the same slave labor and extermination of people in the occupied territories. All this has been proved and the charges are irrefutable. What means of defense have the counsels used? What kind of proofs and arguments could they give to refute the charges?
The arguments of the defendants may be divided into two main groups. First, a number of witnesses summoned by the defense counsel. These witnesses had to extenuate the guilt of the defendants with their evidence, to diminish the part taken by them in committing the crimes, rehabilitating them by all means.
These witnesses themselves were in most cases defendants in other trials.
How can we speak about the objectivity and authenticity of the evidence given by the witnesses of the defense, if the innocence of the defendant Funk should be confirmed by his deputy and accomplice, a member of the SS since 1931, Heller, bearing the rank of Gruppenfuehrer SS; if the criminal Rainer, member of the Fascist Party since 1930, and Gauleiter of Salzburg, and then of Kaernten was summoned to give evidence on behalf of Seyss-Inquart?
Those so-called witnesses, such as for instance Buehler—the right hand of the defendant Frank and accomplice to all his crimes, or Bohle, one of the principal leaders of the spying activi
ties of the Hitlerites abroad and chief of the foreign section of the Fascist Party, came here in order to commit a perjury to try to protect their former "bosses" and to save their own lives.
Nevertheless most of the "witnesses” for the defense during the cross-examination, became witnesses for the Prosecution. They were themselves convicted by the "mute witnesses”-documents mostly German; they themselves were forced to expose those whom they had intended to protect.
Another means used by the defense consisted of the legal arguments and considerations.
Some Legal Aspects of the Trial The accusation in the present trial is based on an enormous quantity of irrefutable facts and strongly established on the principles of law and justice. Therefore, already in the opening
. speeches for the Prosecution, so much attention had been paid to the legal aspect of the responsibility of the defendants.
In the speeches of the defense a number of legal questions were again raised:
Of the importance of the principle "Nulla crimen sine lege." b. Of the importance of the order.
Of the responsibility of the State and individuals. d. Of the concept of conspiracy.
In this connection I consider it necessary to return again to some legal questions in order to answer to the attempts of the defense to confuse the simple and clear statements and to transform legal argument into a kind of smoke-screen in an effort to conceal from the Tribunal the gruesome reality of the Fascist crimes.
A. PRINCIPLE “NULLA CRIMEN SINE LEGE" The defense attempted to deny the accusation by proving that at the time when the defendants were perpetrating the offenses incriminating them, the latter had not been foreseen by the existing laws to be crimes, and therefore the defendants bear no criminal responsibility for them.
I could simply refer to the principle “Nulla Crimen Sine Lege”, as the Charter of International Military Tribunal, which is an immutable law, and which provides that this Tribunal "shall have the power to try and punish persons, who, acting in the interest of European Axis countries, whether as individuals or as members of organization" committed any of the crimes enumerated in Article 6 of the Charter.
Therefore from the legal point of view, sentence can be pronounced and carried out without requiring the deeds incriminating to the defendants to have been foreseen by the criminal law at the time of their perpetration. Nevertheless, it is without doubt that the deeds of the defendants at the time when they were being committed were criminal acts from the point of view of the existing criminal law.
The principles of criminal law contained in the Charter of International Military Tribunal are the expression of the principles contained in a number of international agreements enumerated in my opening statement of 8 February 1946 and in the criminal law of all civilized countries.
The law of all civilized countries imposes criminal responsibility for murder, torture, violence, plunder, and so on. The fact that those crimes have been initiated by the defendants on a scale surpassing human imagination and bearing the marks of unheard of sadistic cruelty, does not of course exclude, but on the contrary, increases many times the responsibility of the defendants.
If the defendants had committed the crimes on the territory and in respect of the citizens of any country, according to the Declaration of the Heads of the Governments of USSR, Great Britain and United States of America, published on 2 November 1943, and in full agreement with the universally accepted principles of criminal law, they would have been tried in that country and according to its laws.
This Declaration set forth that "the German officers, soldiers and members of the Nazi Party who were responsible for the above-mentioned cruelties, murders and executions, or who voluntarily took part in those, would be deported to the countries, where those gruesome crimes had been committed, in order to be tried and punished according to the law of those liberated countries and free governments which would be established there."
Nevertheless, the defendants are war criminals "whose offenses have no particular geographical location” (Article 1 of the Agreement of the Four Powers of the 8 August 1945), and, therefore, the International Military Tribunal, acting in accordance with the Charter, is competent to try their crimes. The Counsel for the defendant Hess took the liberty to assert that there can be no doubt that the crimes against peace, as they are stated in Article 6, Paragraph 2, of the Charter, do not exist.
It is not necessary to make any reference here to the international agreements.
They are charged with deeds which civilized humanity long ago recognized as criminal.
B. EXECUTION OF AN ORDER Some of the defendants in their statements before the Tribunal attempted to present themselves as poor dwarfs, blind and obedient executors of another's will—the will of Hitler.
In the search for a legal basis for this attitude, the Defense Counsel Jahrreiss spoke at length about Hitler's order. In the opinion of Counsel Jahrreiss Hitler's order was quite different from the order of any other leader; Hitler's order was an act “legally immutable". Therefore, Counsel Jahrreiss asserts that: "Whatever the Charter understands by the orders which it rejects, as a factor excluding criminal responsibility, is it possible to take the same attitude towards an order of Hitler? Could this order be considered as an order in the meaning of the Charter ?”'
The right to interpret law is an irrefutable right of all lawyers, including the Defense Counsels. Nevertheless, it is uncomprehensible what logical or other methods were guiding his assertion that the provisions of the Charter specially elaborated for the trial of major war criminals of the Fascist Germany, did not indeed aim at the very conditions of the activity of these criminals.
What orders then, issued by whom and in what country, are contemplated by the Charter of the Tribunal ?
It is, on the contrary, indisputable that the authors of the Charter were fully aware of the specific conditions existing in Hitlerite Germany, were thoroughly familiar, by means of the material of the Kharkov and other trials, with the attempts of the defendants to hide themselves behind Hitler's orders, and it is for this very reason that they made a special provision to the effect that the execution of an obviously criminal order does not free from criminal responsibility.
C. RESPONSIBILITY OF COUNTRIES AND INDIVIDUALS We think that the very authors of this attempt to hide a large group of ministers, Gauleiters and war commanders behind Hitler's back, became to a certain extent, doubtful of the convincing power of such a defensive maneuver, and a new line of defense was set up to assist this maneuver.
"If the German Reich began an attack in spite of the stillexistent non-aggression pact”—said the counsel Jahrreiss, “then Germany committed an international offense and must answer for it according to the principles of international law
the Reich alone, but not an individual person."
We cannot, in the first place, omit to notice that the above point of view is not exactly new: even before the beginning of the official defense at this trial, certain unofficial defenders of war criminals willingly propagated the version to the effect that it was the German government and the German nation, who were to bear responsibility for the criminal aggression and war crimes and not individual persons.
When the subject of international law, i.e. a state, violates the principles of international law, this entails certain consequences