It does appear, however, that various laws authorizing acts which were criminal under the Charter were circulated among the members of the Reich Cabinet and issued under its authority signed by the members whose departments were concerned. This does not, however, prove that the Reich Cabinet, after 1937, ever really acted as an organization.

As to the second reason, it is clear that those members of the Reich Cabinet who have been guilty of crimes should be brought to trial; and a number of them are now on trial before the Tribunal. It is estimated that there are 48 members of the group, that 8 of these are dead and 17 are now on trial, leaving only 23 at the most, as to whom the declaration could have any importance. Any others who are guilty should also be brought to trial; but nothing would be accomplished to expedite or facilitate their trials by declaring the Reich Cabinet to be a criminal organization. Where an organization with a large membership is used for such purposes, a declaration obviates the necessity of inquiring as to its criminal character in the later trial of members who are accused of participating through membership in its criminal purposes and thus saves much time and trouble. There is no such advantage in the case of a small group like the Reich Cabinet.

(F) GENERAL STAFF AND HIGH COMMAND

The prosecution has also asked that the General Staff and High Command of the German armed forces be declared a criminal organization. The Tribunal believes that no declaration of criminality should be made with respect to the General Staff and High Command. The number of persons charged, while larger than that of the Reich Cabinet, is still so small that individual trials of these officers would accomplish the purpose here sought better than a declaration such as is requested. But a more compelling reason is that in the opinion of the Tribunal the General Staff and High Command is neither an "organization" nor a "group" within the meaning of those terms as used in Article 9 of the Charter.

Some comment on the nature of this alleged group is requisite. According to the indictment and evidence before the Tribunal, it consists of approximately 130 officers, living and dead, who at any time during the period from February 1938, when Hitler reorganized the armed forces, and May 1945, when Germany surrendered, held. certain positions in the military hierarchy. These men were highranking officers in the three armed services: OKH-army, OKM— navy, and OKL-air force. Above them was the over-all armed forces authority, OKW-high command of the German armed forces with Hitler as the supreme commander. The officers in the OKW, including defendant Keitel as chief of the high command, were in a sense Hitler's personal staff. In the larger sense they coordinated and

directed the three services, with particular emphasis on the functions of planning and operations.

The individual officers in this alleged group were, at one time or another, in one of four categories: (1) Commanders in chief of one of the three services; (2) chief of staff of one of the three services; (3) "Oberbefehlshabers," the field commanders in chief of one of the three services, which of course comprised by far the largest number of these persons; or (4) an OKW officer, of which there were three, defendants Keitel and Jodl, and the latter's deputy chief, Warlimont. This is the meaning of the indictment in its use of the term "General Staff and High Command."

The prosecution has here drawn the line. The prosecution does not indict the next level of the military hierarchy consisting of commanders of army corps, and equivalent ranks in the navy and air force, nor the level below, the division commanders or their equivalent in the other branches. And the staff officers of the four staff commands of OKW, OKH, OKM, and OKL are not included, nor are the trained specialists who were customarily called General Staff officers.

In effect, then, those indicted as members are military leaders of the Reich of the highest rank. No serious effort was made to assert that they composed an "organization" in the sense of Article 9. The assertion is rather that they were a "group," which is a wider and more embracing term than "organization."

The Tribunal does not so find. According to the evidence, their planning at staff level, the constant conferences between staff officers and field commanders, their operational technique in the field and at headquarters was much the same as that of the armies, navies, and air forces of all other countries. The over-all effort of OKW at coordination and direction could be matched by a similar, though not identical form of organization in other military forces, such as the AngloAmerican Combined Chiefs of Staff.

To derive from this pattern of their activities the existence of an association or group does not, in the opinion of the Tribunal, logically follow. On such a theory the top commanders of every other nation are just such an association rather than what they actually are, an aggregation of military men, a number of individuals who happen at a given period of time to hold the high-ranking military positions.

Much of the evidence and the argument has centered around the question of whether membership in these organizations was or was not voluntary; in this case, it seems to the Tribunal to be quite beside the point. For this alleged criminal organization has one characteristic, a controlling one, which sharply distinguishes it from the other five indicted. When an individual became a member of the SS for instance, he did so, voluntarily or otherwise, but certainly with the knowledge that he was joining something. In the case of the General Staff and

High Command, however, he could not know he was joining a group or organization for such organization did not exist except in the charge of the indictment. He knew only that he had achieved a certain high rank in one of the three services, and could not be conscious of the fact that he was becoming a member of anything so tangible as a "group," as that word is commonly used. His relations with his brother officers in his own branch of the service and his association with those of the other two branches were, in general, like those of other services all over the world.

The Tribunal therefore does not declare the General Staff and High Command to be a criminal organization.

Although the Tribunal is of the opinion that the term "group" in Article 9 must mean something more than this collection of military officers, it has heard much evidence as to the participation of these officers in planning and waging aggressive war, and in committing war crimes and crimes against humanity. This evidence is, as to many of them, clear and convincing.

They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow Nazis would have been academic and sterile. Although they were not a group falling within the words of the Charter, they were certainly a ruthless military caste. The contemporary German militarism flourished briefly with its recent ally, National Socialism, as well as or better than it had in the generations of the past.

Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler's brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said.

Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should not escape punishment.

VIII. THE ACCUSED INDIVIDUALS

Article 20 of the Charter provides that the judgment of the Tribunal as to the guilt or innocence of any defendant shall give the reasons on which it is based.

The Tribunal will now state those reasons in declaring its judgment on such guilt or innocence.

107

GOERING

Goering is indicted on all four counts. The evidence shows that after Hitler he was the most prominent man in the Nazi regime. He was commander in chief of the Luftwaffe, plenipotentiary for the 4-year plan, and had tremendous influence with Hitler, at least until 1943, when their relationship deteriorated, ending in his arrest in 1945. He testified that Hitler kept him informed of all important military and political problems.

Crimes against peace. From the moment he joined the party in 1922 and took command of the street-fighting organization, the SA, Goering was the adviser, the active agent of Hitler, and one of the prime leaders of the Nazi movement. As Hitler's political deputy he was largely instrumental in bringing the National Socialists to power in 1933, and was charged with consolidating this power and expanding German armed might. He developed the Gestapo, and created the first concentration camps, relinquishing them to Himmler in 1934, conducted the Roehm purge in that year, and engineered the sordid proceedings which resulted in the removal of von Blomberg and von Fritsch from the army. In 1936 he became plenipotentiary for the 4-year plan, and in theory and in practice was the economic dictator of the Reich. Shortly after the pact of Munich, he announced that he would embark on a five-fold expansion of the Luftwaffe, and speed rearmament with emphasis on offensive weapons.

Goering was one of the five important leaders present at the Hossbach Conference of 5 November 1937, and he attended the other important conferences already discussed in this judgment. In the Austrian Anschluss he was, indeed, the central figure, the ringleader. He said in Court: "I must take 100-percent responsibility I even overruled objections by the Fuehrer and brought everything to its final development." In the seizure of the Sudetenland he played his role as Luftwaffe chief by planning an air offensive which proved unnecessary, and his role as a politician by lulling the Czechs with false promises of friendship. The night before the invasion of Czechoslovakia and the absorption of Bohemia and Moravia, at a conference with Hitler and President Hacha he threatened to bomb Prague if Hacha did not submit. This threat he admitted in his testimony.

Goering attended the Reich Chancellery meeting of 23 May 1939, when Hitler told his military leaders "there is, therefore, no question of sparing Poland," and was present at the Obersalzburg briefing of 22 August 1939. And the evidence shows he was active in the diplomatic maneuvers which followed. With Hitler's connivance he used the Swedish businessman, Dahlerus, as a go-between to the British, as described by Dahlerus to this Tribunal, to try to prevent the British Government from keeping its guarantee to the Poles.

He commanded the Luftwaffe in the attack on Poland and throughout the aggressive wars which followed.

Even if he opposed Hitler's plans against Norway and the Soviet Union, as he alleged, it is clear that he did so only for strategic reasons; once Hitler had decided the issue, he followed him without hesitation. He made it clear in his testimony that these differences were never ideological or legal. He was "in a rage" about the invasion of Norway, but only because he had not received sufficient warning to prepare the Luftwaffe offensive. He admitted he approved of the attack: "My attitude was perfectly positive." He was active in preparing and executing the Yugoslavian and Greek campaigns, and testified that "Plan Marita," the attack on Greece, had been prepared long beforehand. The Soviet Union he regarded as the "most threatening menace to Germany," but said there was no immediate military necessity for the attack. Indeed, his only objection to the war of aggression against the USSR was its timing; he wished for strategic reasons to delay until Britain was conquered. He testified: "My point of view was decided by political and military reasons only."

After his own admissions to this Tribunal, from the positions which he held, the conferences he attended, and the public words he uttered, there can remain no doubt that Goering was the moving force for aggressive war second only to Hitler. He was the planner and prime mover in the military and diplomatic preparation for war which Germany pursued.

X War crimes and crimes against humanity. The record is filled with Goering's admissions of his complicity in the use of slave labor. "We did use this labor for security reasons so that they would not be active in their own country and would not work against us. On the other hand, they served to help in the economic war." And again: "Workers were forced to come to the Reich. That is something I have not denied." The man who spoke these words was Plenipotentiary for the 4-year plan charged with the recruitment and allocation of manpower. As Luftwaffe Commander in Chief he demanded from Himmler more slave laborers for his underground aircraft factories: "That I requested inmates of concentration camps for the armament of the Luftwaffe is correct and it is to be taken as a matter of course."

As Plenipotentiary, Goering signed a directive concerning the treatment of Polish workers in Germany and implemented it by regulations of the SD, including "special treatment." He issued directives to use Soviet and French prisoners of war in the armament industry; he spoke of seizing Poles and Dutch and making them prisoners of war if necessary, and using them for work. He agrees Russian prisoners of war were used to man antiaircraft batteries.

As Plenipotentiary, Goering was the active authority in the spoliation of conquered territory. He made plans for the spoliation of