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wanted their neighbors' lands and goods. Their philosophy seems to be that if the neighbors would not acquiesce, then they are the aggressors and are to blame for the war. The fact is, however, that war never became terrible to the Nazis until it came home to them, until it exposed their deceptive assurances to the German people that German cities, like the ruined one in which we meet, would be invulnerable. From then on war was terrible. But again the defendants claim, "To be sure we were building
But not to shoot. They were only to give us weight in negotiating.” At its best this argument amounts to a contention that the military forces were intended for blackmail, not for battle. The threat of military invasion which forced the Austrian Anschluss, the threats which preceded Munich, and Goering's threat to bomb the beautiful city of Prague if the President of Czechoslovakia did not consent to the Protectorate,133 are ex
are examples of what the defendants have in mind when they talk of arm. ing to back negotiation.
But from the very nature of German demands, the day was bound to come when some country would refuse to buy its peace, would refuse to pay Dane-geld,-“For the end of that game is oppression and shame,
And the nation that plays it is lost." Did these defendants then intend to withdraw German demands, or was Germany to enforce them and manipulate propaganda so as to place the blame for the war on the nation so unreasonable as to resist? Events have answered that question, and documents such as Admiral Carl's memorandum, earlier quoted,131 leave no doubt that the events occurred as anticipated.
But some of the defendants argue that the wars were not aggressive and were only intended to protect Germany against some eventual danger from the "menace of Communism,” which was something of an obsession with many Nazis.
At the outset this argument of self-defense fails because it completely ignores this damning combination of facts clearly established in the record: first, the enormous and rapid German preparations for war; second, the repeatedly avowed intentions of the German leaders to attack, which I have previously cited; and third, the fact that a series of wars occurred in which German forces struck the first blows, without warning, across the borders of other nations.
Even if it could be shown—which it cannot be—that the Russian war was really defensive, such is demonstrably not the case with those wars which preceded it.
It may also be pointed out that even those who would have you
believe that Germany was menaced by Communism also compete with each other in describing their position to the disastrous Russian venture. 135 Is it reasonable that they would have opposed that war if it were undertaken in good faith self-defense?
The frivolous character of the self-defense theory on the facts it is sought to compensate, as advocates often do, by resort to a theory of law. Dr. Jahrreiss, in his scholarly argument for the defense, rightly points out that no treaty provision and no principle of law denied Germany, as a sovereign nation, the right of self-defense. He follows with the assertion, for which there is authority in classic International Law, that
every state is alone judge of whether in a given case it is waging a war of self-defense.” 136 It is not necessary to examine the validity of an abstract principle which does not apply to the facts of our case. I do not doubt that if a nation arrived at a judgment that it must resort to war in self-defense, because of conditions affording reasonable grounds for such an honest judgment, any Tribunal would accord it great and perhaps conclusive weight, even if later events proved that judgment mistaken.
But the facts in this case call for no such deference to honest judgment because no such judgment was even pretended, much less honestly made.
In all the documents which disclose the planning and rationalization of these attacks, not one sentence has been or can be cited to show a good faith fear of attack. It may be that statesmen of other nations lacked the courage forthrightly and full to disarm. Perhaps they suspected the secret rearmament of Germany. But if they hesitated to abandon arms, they did not hesitate to neglect them. Germany well knew that her former enemies had allowed their armaments to fall into decay, so little did they contemplate another war. Germany faced a Europe that not only was unwilling to attack, but was too weak and pacifist even adequately to defend, and went to the very verge of dishonor, if not beyond, to buy its peace. The minutes we have shown you of the Nazis' secret conclaves identify no potential attacker. They bristle with the spirit of aggression and not of defense. They contemplate always territorial expansion, not the maintenance of territorial integrity.
Minister of War von Blomberg, in his 1937 directive prescribing general principles for the preparation for war of the armed forces, has given the lie to these feeble claims of self-defense. He stated at that time:
“The general political situation justifies the supposition that
Germany need not consider an attack on any side. Grounds for this are, in addition to the lack of desire for war in almost all nations, particularly the Western Powers, the deficiencies in the preparedness for war in a number of states and of Rus
sia in particular." Nevertheless, he recommended
“a continuous preparedness for war in order to (a) counterattack at any time, and (b) to enable the military exploitation of politically favorable opportunities should they occur.” 137
If these defendants may now cynically plead self-defense, although no good faith need of self-defense was asserted or contemplated by any responsible leader at the time, it reduces nonaggression treaties to a legal absurdity. They become only additional instruments of deception in the hands of the aggressor, and traps for well-meaning nations. If there be in non-aggression pacts an implied condition that each nation may make a bona fide judgment as to the necessity for self-defense against imminent threatened attack, they certainly cannot be invoked to shelter those who never made any such judgment at all.
In opening this case I ventured to predict that there would be no serious denial that the crimes charged were committed, and that the issue would concern the responsibility of particular defendants. The defendants have fulfilled that prophecy. Generally, they do not deny that these things happened, but it is contended that they “just happened,” and that they were not the result of a common plan or conspiracy.
One of the chief reasons the defendants say there was no conspiracy is the argument that conspiracy was impossible with a dictator.138 The argument runs that they all had to obey Hitler's orders, which had the force of law in the German State, and hence obedience cannot be made the basis of a criminal charge. In this way it is explained that while there have been wholesale killings, there have been no murderers.
This argument is an effort to evade Article 8 of the Charter, which provides that the order of the government or of a superior shall not free a defendant from responsibility but can only be considered in mitigation. This provision of the Charter corresponds with the justice and with the realities of the situaton, as indicated in defendant Speer's description of what he considered to be the common responsibility of the leaders of the German nation:
with reference to utterly decisive matters, there is total responsibility. There must be total responsibility insofar as a person is one of the leaders, because who else could assume
responsibility for the development of events, if not the immediate associates who work with and around the head of the state ?" 139
And again he told the Tribunal:
it is impossible after the catastrophe to evade this total responsibility. If the war had been won, the leaders would also have assumed total responsibility.” 140
Like much of defense counsel's abstract arguments, the contention that the absolute power of Hitler precluded a conspiracy crumbles in face of the facts of record. The Fuehrerprinzip of absolutism was itself a part of the common plan, as Goering has pointed out.141 The defendants may have become slaves of a dictator, but he was their dictator. To make him such was, as Goering has testified, the object of the Nazi movement from the beginning. Every Nazi took this oath:
"I pledge eternal allegiance to Adolf Hitler. I pledge unconditional obedience to him and the fuehrers appointed by
Moreover, they forced everybody else in their power to take it. This oath was illegal under German law, which made it criminal to become a member of an organization in which obedience to "unknown superiors or unconditional obedience to known superiors is pledged.” 143 These men destroyed free government in Germany and now plead to be excused from responsibility because they became slaves. They are in the position of the fictional boy who murdered his father and mother and then pleaded for leniency because he was an orphan.
What these men have overlooked is that Adolf Hitler's acts are their acts. It was these men among millions of others, and it was these men leading millions of others, who built up Adolf Hitler and vested in his psychopathic personality not only innumerable lesser decisions but the supreme issue of war or peace.
They intoxicated him with power and adulation. They fed his hates and aroused his fears. They put a loaded gun in his eager hands. It was left to Hitler to pull the trigger, and when he did they all at that time approved. His guilt stands admitted, by some defendants reluctantly, by some vindictively. But his guilt is the guilt of the whole dock, and of every man in it.
But it is urged that these defendants could not be in agreement on a common plan or in a conspiracy because they were fighting among themselves or belonged to different factions or cliques. Of course, it is not necessary that men should agree on everything in order to agree on enough things to make them
liable for a criminal conspiracy. Unquestionably there were conspiracies within the conspiracy, and intrigues and rivalries and battles for power. Schacht and Goering disagreed, but over which of them should control the economy, not over whether the economy should be regimented for war.144 Goering claims to have departed from the plan because through Dahlerus he conducted some negotiations with men of influence in England just before the Polish war. But it is perfectly clear that this was not an effort to prevent aggression against Poland but to make that aggression successful and safe by obtaining English neutrality.145 Rosenberg and Goering may have had some differences as to how stolen art should be distributed but they had none about how it should be stolen. Jodl and Goebbels may have disagreed about whether to denounce the Geneva Convention, but they never disagreed about violating it. And so it goes through the whole long and sordid story. Nowhere do we find an instance where any one of the defendants stood up against the rest and said, This thing is wrong and I will not go along with it. Wherever they differed, their differences were as to method or disputes over jurisdiction, but always within the framework of the common plan.
Some of the defendants also contend that in any event there was no conspiracy to commit war crimes or crimes against humanity because cabinet members never met with the military to plan these acts. But these crimes were only the inevitable and incidental results of the plan to commit the aggression for Lebensraum purposes. Hitler stated, at a conference with his commanders, that
“The main objective in Poland is the destruction of the enemy and not the reaching of a certain geographical line." 146 Frank picked up the tune and suggested that when their usefu)ness was exhausted,
* then, for all I care mincemeat can be made of the Poles and Ukrainians and all the others who run around here— it
does not matter what happens.” 147 Reichscommissar Koch in the Ukraine echoed the refrain:
“I will draw the very last out of this country. I did not come to spread bliss * This was Lebensraum on its seamy side. Could men of their practical intelligence expect to get neighboring lands free from the claims of their tenants without committing crimes against humanity?
The last stand of each defendant is that even if there was a conspiracy, he was not in it. It is therefore important in exam