"In accordance with the opinion of the Fuehrer's deputy I started from the point of view that the Pole is less susceptible to the infliction of ordinary punishment . . . Under these new kinds of punishment, prisoners are to be lodged outside prisons in camps and are to be forced to do heavy and heaviest labor. The introduction of corporal punishment which the deputy of the Fuehrer has brought up for discussion has not been included in the draft. I cannot agree to this type of punishment . . The procedure for enforcing prosecution has been abrogated, for it seemed intolerable that Poles or Jews should be able to instigate a public indictment. Poles and Jews have also been deprived of the right to prosecute in their own names or join the public prosecution in an action . . . From the very beginning it was intended to intensify special treatment in case of need. When this necessity became actual a supplementary decree was issued to which the Fuehrer's deputy refers to in his letter . . ." (GB–268, R–96). Thus, there can be no doubt that Hess together with the other major war criminals is guilty of crimes against humanity.

Taking into consideration that among political leaders of Hitlerite Germany Hess was third in significance and played a decisive role in the crimes of the Nazi regime, I consider the only justified sentence in his case can be death.

V. INCORRECT JUDGMENT WITH REGARD TO THE REICH CABINET

The prosecution has posed before the Tribunal the question of declaring the Reich Cabinet a criminal organization. The verdict rejects the claim of the prosecution, unfoundedly refusing to declare the Hitler Government a criminal organization.

With such a decision I cannot agree.

The Tribunal considers it proven that the Hitlerites have comitted innumerable and monstrous crimes.

The Tribunal also considers it proven that these crimes were as a rule committed intentionally and on an organized scale, according to previously prepared plans and directives ("Plan Barbarossa," "Night and Fog," "Bullet,” etc.).

The Tribunal has declared criminal several of the Nazi mass organizations founded for the realization and putting into practice the plans of the Hitler Government.

In view of this it appears particularly untenable and rationally incorrect to refuse to declare the Reich Cabinet, the directing organ of the State with a direct and active role in the working out of the criminal enterprises, a criminal organization. The members of this directing staff had great power, each headed an appropriate government agency, each participated in preparing and realizing the Nazi program.

In confirmation it is deemed proper to cite several facts:

(1) Immediately after the Nazi accession to power-on the 24th of `March 1933-there was a law passed entitled "The Law of Defense of the People and the State" whereby the Reich Cabinet, besides the Reichstag, was empowered to enact new laws.

On the 26 of May 1933, the Reich Government issued a decree ordering the confiscation of the property of all Communist organizations and on the 14th of June, the same year, it also confiscated the property of the Social Democrat organizations. On the 1st of December 1933, the Reich Government issued the law "Ensuring Party and State Unity."

Following through its program of liquidating democratic institutions, in 1934 the Government passed a law of the "Reconstruction of the Reich" whereby democratic elections were abolished for both central and local representative bodies. The Reichstag thereby became an institution without functional meaning (Transcript, afternoon session, November 22, 1945).

By the law of 7 April 1933 and others, all Reich Government employees, including judges, ever noted for any anti-Nazi tendencies or ever having belonged to leftist organizations, as well as all Jews, were to be removed from the Government service and replaced by Nazis. In accordance with the "Basic Positions of the German Law on Government Employees" of the 26th of January 1937, "the inner harmony of the official and the Nazi party is a necessary presupposition of his appointment to his post government employees must be the executors of the will of the National Socialist State, directed by the NSDAP" (Defense Exhibit No. 28).

On the 1st of May 1934, there was created the Ministry of Education instructed to train students in the spirit of militarism, of racial hatred, and in terms of reality thoroughly falsified by Nazi ideology (PS-2078).

Free trade unions were abolished, their property confiscated, and the majority of the leaders jailed.

To suppress even a semblance of resistance the Government created the Gestapo and the concentration camps. Without any trial or even a concrete charge hundreds of thousands of persons were arrested and then done away with merely on a suspicion of an anti-Nazi tendency.

There were issued the so-called Nurnberg laws against the Jews. Hess and Frick, both members of the Reich Government, implemented these by additional decrees.

It was the activity of the Reich Cabinet that brought on the war which took millions of human lives and caused inestimable damage in property and in suffering borne by the many nations.

On the 4th of February 1938, Hitler organized the Secret Council of Ministers, defining its activity as follows: "To aid me by advice on problems of foreign policies I am creating this secret council" (Reichs-' gesetzblatt 1938, part I, p. 112; PS-2031). The foreign policy of the Hitler Government was the policy of aggression. For this reason the members of the secret council should be held responsible for this policy. There were attempts in court to represent the secret council as a fictitious organization, never actually functioning. This however, is an inadmissible position. It is sufficient to recall Rosenberg's letter to Hitler where the former insistently tried to be appointed member of the secret council of ministers-to appreciate fully the significance of the council.

Even more important practically in conducting aggressive warfare was the Reich Defense Council headed by Hitler and Goering. The following were members of the Defense Council, as is well known: Hess, Frick, Funk, Keitel, Raeder, Lammers (PS-2194; PS-2018).

Goering characterized the function of the defense council and its role in war preparations as follows, during the court session of 23 June 1939: "The defense council of the Reich was the deciding Reich organ on all questions concerning preparation for war" (PS-3787, USA-782).

At the same time Goering emphasized the fact that "the meetings of the defense council always took place for the purpose of making the most important decisions." From the minutes of these meetings, submitted as evidence by the prosecution, it is quite clear that the council made very important decisions indeed. The minutes also show that other cabinet ministers sometimes took part in the meetings of the Defense Council alongside the members of the council when war enterprises and war preparedness were discussed.

For example, the following Cabinet Ministers took part in the meeting of 23 June 1939: Of Labor, of Food and Agriculture, of Finance, of Communication and a number of others, while the minutes of the meeting were sent to all the members of the Cabinet (USA-782).

The verdict of the Tribunal justly points out certain peculiarities of the Hitler Government as the directing organ of the state, namely: the absence of regular cabinet meetings, the occasional issuance of laws by the individual ministers having unusual independence of action, the tremendous personal power of Hitler himself. These peculiarities do not refute but on the contrary further confirm the conclusion that the Hitler Government is not an ordinary rank and file Cabinet but a criminal organization.

Certainly Hitler had an unusual measure of personal power but this in no way frees of responsibility the members of his cabinet who were his convinced followers and the actual executors of his program until and when the day of reckoning arrived.

I consider that there is every reason to declare the Hitler Government a criminal organization.

VI. INCORRECT JUDGMENT WITH REGARD TO THE GENERAL STAFF AND THE OKW

The verdict incorrectly rejects the accusation of criminal activity directed against the General Staff and the OKW.

The rejection of the accusation of criminal activity of the General Staff and of the OKW contradicts both the actual situation and the evidence submitted in the course of the trial.

It has been established beyond doubt that the Leadership Corps of the armed forces of Nazi Germany together with the SS-Party machine, represented the most important agency in preparing and realizing the Nazi aggressive and man-hating program. This was constantly and forcefully reiterated by the Hitlerites themselves in their official bulletins meant for the officer personnel of the armed forces. In the Nazi Party Bulletin called "Politics and the officer in the III. Reich" it is quite clearly stated that the Nazi regime is founded on "two pillars: the Party and the Armed Forces. Both are forms of expression of the same philosophy of life," "the tasks before the party and the armed forces are in an organic relationship to each other and each bears the same responsibility ... both these agencies depend on each other's success or failure" (PS-4060, USA-928).

This organic interrelationship between the Nazi Party and the SS on the one hand and the Nazi Armed Forces on the other hand, was particularly evident among the upper circles of military hierarchy which the indictment groups together under the concept of criminal organization-that is, among the members of the General Staff and the OKW.

The very selection of members of the Supreme Command of the army in Nazi Germany was based on the criteria of their loyalty to the regime and their readiness not only to pursue aggressive militaristic policies but also to fulfill such special directives as related to treatment meted out to prisoners of war and to the civilian populations of occupied territories.

The leaders of the German Armed Forces were not merely officers who reached certain levels of the military hierarchy. They represented, first of all, a closely knit group which was entrusted with the most secret plans of the Nazi leadership. Evidence submitted to the Tribunal has fully confirmed the contention that the military leaders of Germany justified this trust completely and that they were the convinced followers and ardent executors of Hitler's plans.

It is not accidental that at the head of the air force stood the "second man" of the Nazi Reich, namely Goering; that the com

mander in chief of the Navy was Doenitz, subsequently designated by Hitler to be the latter's successor; that the command of the ground forces was concentrated in the hands of Keitel, who signed the major part of the decrees concerning the execution of the prisoners of war and of the civilians in occupied territories.

Thus the comparisons made with the organization of the supreme commands in Allied countries cannot be considered valid. In a democratic country, not one self-respecting military expert would agree to prepare plans for mass reprisals and merciless killings of prisoners of war side by side with plans of the purely military and strategic character.

Meanwhile it is precisely such matters that occupied the Supreme Command of the General Staff and the OKW in Nazi Germany. The commission by them of the heaviest crimes against peace, of the war crimes, and of the crimes against humanity is not denied but is particularly emphasized in the verdict of the Tribunal. And yet the commission of these crimes has not brought the logical conclusion. The verdict states:

"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 .

And subsequently:

"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 ever had the misfortune to know. This must be said."

All these assertions in the verdict are correct and are based on numerous and reliable depositions. It remains only incomprehensible why "these hundred or so higher officers" who have caused the world and their own country so much suffering should not be acknowledged a criminal organization.

The verdict advances the following reasons for the decision, reasons quite contradictory to the facts:

(a) That the crimes were committed by representatives of the General Staff and of the OKW as private individuals and not as members of a criminal conspiracy.