(b) That the General Staff and the OKW were merely weapons in the hands of the conspirators and interpreters or executors of the conspirators' will.

Considerable evidence disputes such conclusions.

(1) The leading representatives of the general staff and of the OKW, along with a small circle of the higher Hitlerite officials, were called upon by the conspirators to participate in the development and the realization of the plans of aggression, not as passive functionaries, but as active participants in the conspiracy against peace and humanity.

Without their advice and active cooperation, Hitler could not have solved these problems.

In the majority of cases their opinion was decisive. It is impossible to imagine how the aggressive plans of Hitler's Germany could have been realized had it not been for the full support given him by the leading staff members of the armed forces.

Least of all did Hitler conceal his criminal plans and motivations from the leaders of the High Command.

For instance, while preparing for the attack on Poland, as early as 29 May 1939, at a conference with the high military commanders of the new Reich Chancellory, he stated:

"For us the matter consists of the expansion of 'Lebensraum' to the east."

"Thus the question of sparing Poland cannot be considered, and instead, we have to consider the decision to attack Poland at the first opportunity" (L-79).

Long before the seizure of Czechoslovakia, in a directive of 30 May 1938, Hitler, addressing the representatives of the High Command, cynically stated:

"From the military and political point of view, the most favorable time is a lightning attack on the basis of some incident, by which Germany will have been strongly provoked and which will morally justify the military measures to at least part of the world opinion" (PS-388).

Prior to the invasion of Yugoslavia, in a directive dated 27 March 1941, addressing the representatives of the High Command, Hitler wrote:

"Even if Yugoslavia declares its loyalty, it must be considered an enemy and must, therefore, be smashed as soon as possible” (PS-1746).

While preparing for the invasion of USSR, Hitler invited the representatives of the General Staff and the OKW to help him work out

the related plans and directives not at all as simply the military experts.

In the instructions to apply propaganda in the region "Barbarossa," issued by the OKW in June 1941, it is pointed out that:

"For the time we should not have propaganda directed at the dismemberment of the Soviet Union" (USSR-477).

As early as 13 May 1941, OKW ordered the troops to use any terrorist measures against the civilian populations of the temporarily occupied regions of the Soviet Union.

And the same order read: "To confirm only such sentences as are in accordance with the political intentions of the High Command" (G-50).

(2) OKW and the General Staff issued the most brutal decrees and orders for relentless measures against the unarmed peaceful population and the prisoners of war.

In the "decree of special liability to punishment in the region 'Barbarossa' while preparing for the attack upon the Soviet Union," the OKW abolished beforehand the jurisdiction of the military courts, granting the right of repressions over the peaceful population to individual officers and soldiers.

It is particularly stated there that: "Crimes of hostile civilians are excluded from the jurisdiction of the court martials .. "" "Suspected elements must be immediately delivered to the officer. The latter will decide whether they should be shot..." "It is absolutely forbidden to hold suspects for the purpose of bringing them to trial." There are also provisions for "the most extreme measures, and, in particular, 'Measures for mass violence,' if circumstances do not permit the rapid detection of the guilty."

In the same decree of the OKW the guarantee of impunity was assured in advance to the military criminals from the service personnel of the German army. It states there as follows: "The bringing of suits of actions, committed by officials of the army and by the service personnel against hostile civilians is not obligatory even in cases where such actions at the same time constitute military crimes or offences

In the course of the war the high command consistently followed this policy, increasing its terroristic actions with regard to prisoners of war and the peaceful populations of occupied countries.

The OKW directive of 16 September 1941 states:

"At the same time, it must be borne in mind that a human life in the countries in question is frequently held to be of no account and that a warning example can be made only by measures of exceptional severity" (PS-389).

Addressing the commanders of the army groups on 23 July 1941, the OKW simply briefed them as follows: "It is not in the demand for

additional security detachments, but in the application of appropriate draconic measures that the commanding officers must use to keep order in the regions under their jurisdiction" (PS—459).

The OKW directive of 16 December 1941 states:

"The troops... have the right and are obliged to apply any measures whatsoever also against women and children if this contributes to success . . . (USSR-16).

Among the most brutal OKW directives concerning the treatment of prisoners of war one must consider the order entitled "Kugel" (Bullet). The reasons for resorting to capital punishment for pris oners of war were offenses, which according to international conventions, generally should not carry any punishment; (for example, escape from the camp).

Another order "Nacht und Nebel" states:

"Penalty for such offenses, consisting of loss of freedom and even a life sentence is a sign of weakness. Only death sentence or measures which entail ignorance of the fate of the guilty by local population will achieve real effectiveness" (L-90, USA224; Transcript, afternoon session 25 January 1946).

In the course of the present trial a great deal of evidence of application of the "Kugel" order has been submitted. One of the examples of this kind of crime is the murder of 50 officer-pilots. The fact that this crime was inspired by the High Command cannot be doubted.

OKW also distributed an order for the destruction of the "Commando" units. The original order was submitted to the court (PS498, USA-501). According to this order, officers and soldiers of the "Commando" units had to be shot, except in cases when they were to be questioned, after which they were shot in any case.

This order was unswervingly carried out by the commanding officers of army units. In June 1944 Rundstedt, the Commander in Chief of the German troops in the west, reported that Hitler's order in regard to "the treatment of the commando groups of the enemy is still being carried out" (PS-531, USA-550).

(3) The High Command, along with the SS and the police, is guilty of the most brutal police actions in the occupied regions.

The instructions relating to special regions, issued by OKW on 13 March 1941, contemplated the necessity of synchronizing the activities in occupied territories between the army command and the Reichsfuehrer of the SS. As is seen from the testimony of the chief of the third department of RSHA and who was concurrently chief of the Einsatzgruppe "D," Otto Ohlendorf, and of the chief of the VI department of RSHA, Walter Schellenberg, in accordance with OKW instructions there was an agreement made between the General Staff and the RSHA about the organization of special "operational groups"

of the security police and SD-"Einsatzgruppen," assigned to the appropriate army detachments.

Crimes committed by the Einsatzgruppen on the territory of the temporarily occupied regions are countless. The Einsatzgruppen were acting in close contact with the commanding officers of the appropriate army groups.

The following excerpt from the report of Einsatzgruppe “A” is extremely characteristic as evidence:

among our functions as the establishment of personal liaison with the commanding officer both at the front and in the rear. It must be pointed out that the relations with the army were of the best, in some cases very close, almost hearty, as, for instance, the commander of the tank group, Colonel-General Hoppner" (L-180).

(4) The representatives of the high command acted in all the echelons of the army as members of a criminal group.

The directives of the OKW and the General Staff, in spite of the manifest violations of international law and customs of warfare, not only did not provoke any protest on the part of the higher staff officers of the command of the various groups of the armies but were inflexibly applied and supplemented by still more cruel orders in the development of such directives.

In this connection it is characteristic to note the directive of Fieldmarshal von Reichenau, army group commander, addressed to his soldiers: "The soldier in the eastern territories is not only a warrior skilled in the art of warfare but a bearer of merciless national ideology." And elsewhere, calling for the extermination of the Jews, von Reichenau wrote: "Thus the soldier must be in full cognizance of the necessity for harsh and just revenge on those subhumans, the Jews" (USA-556).

As another example the order of Fieldmarshal von Mannstein addressed to his soldiers can be referred to. On the basis of the "political aims of the war" the Fieldmarshal cynically appealed to his soldiers to wage the war in violation of the "recognized laws of warfare in Europe" (USA-927).

Thus, in the course of the hearing of evidence it has been proven beyond all doubt that the General Staff and the High Command of the Hitlerite army comprised a highly dangerous criminal organization.

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I consider it my duty as a Judge to draw up my dissenting opinion concerning those important questions on which I disagree with the decision adopted by the members of the Tribunal.

Soviet Member IMT, Major General Jurisprudence.

1 October 1946.

[signed] I. T. NIKITCHENKO.

X

THE SENTENCES

In accordance with Article 27 of the Charter, the President of the International Military Tribunal, at its concluding session of 1 October 1946, pronounced sentence on the defendants convicted on the indictment:

Defendant Hermann Wilhelm Goering, on the counts of the indictment on which you have been convicted, the International Military Tribunal sentences you to death by hanging.

Defendant Rudolf Hess, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to imprisonment for life.

Defendant Joachim von Ribbentrop, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Wilhelm Keitel, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Ernst Kaltenbrunner, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Alfred Rosenberg, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Hans Frank, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Wilhelm Frick, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Julius Streicher, on the count of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.

Defendant Walter Funk, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to imprisonment for life.

Defendant Karl Doenitz, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to 10 years' imprisonment.

Defendant Erich Raeder, on the counts of the indictment on which . you have been convicted, the Tribunal sentences you to imprisonment for life.

Defendant Baldur von Schirach, on the count of the indictment on which you have been convicted, the Tribunal sentences you to 20 years' imprisonment.