Part 21
On 13 December he issued a directive concerning the operation “Marita,” the code name for the invasion of Greece, in which he stated:
“1. The result of the battles in Albania is not yet decisive. Because of a dangerous situation in Albania, it is doubly necessary that the British endeavor be foiled to create air bases under the protection of a Balkan front, which would be dangerous above all to Italy as to the Rumanian oilfields.
2. My plan therefore is (a) to form a slowly increasing task force in Southern Rumania within the next month, (b) after the setting in of favorable weather, probably in March, to send a task force for the occupation of the Aegean north coast by way of Bulgaria and if necessary to occupy the entire Greek mainland.”
On 20 January 1941, at a meeting between Hitler and Mussolini, at which the Defendants Von Ribbentrop, Keitel, Jodl, and others were present, Hitler stated:
“The massing of troops in Rumania serves a threefold purpose:
(a) An operation against Greece;
(b) Protection of Bulgaria against Russia and Turkey;
(c) Safeguarding the guarantee to Rumania . . . .
It is desirable that this deployment be completed without interference from the enemy. Therefore, disclose the game as late as possible. The tendency will be to cross the Danube at the last possible moment, and to line up for attack at the earliest possible moment.”
On 19 February 1941 an OKW directive regarding the operation “Marita” stated: “On 18 February the Führer made the following decision regarding the carrying out of Operation Marita: The following dates are envisaged: Commencement of building bridge, 28 February; crossing of the Danube, 2 March.”
On 3 March 1941, British troops landed in Greece to assist the Greeks to resist the Italians; and on 18 March, at a meeting between Hitler and the Defendant Raeder, at which the Defendants Keitel and Jodl were also present, the Defendant Raeder asked for confirmation that the “whole of Greece will have to be occupied, even in the event of a peaceful settlement,” to which Hitler replied, “The complete occupation is a prerequisite of any settlement.”
On 25 March, on the occasion of the adherence of Yugoslavia to the Tripartite Pact at a meeting in Vienna, the Defendant Von Ribbentrop, on behalf of the German Government, confirmed the determination of Germany to respect the sovereignty and territorial integrity of Yugoslavia at all times. On 26 March the Yugoslav Ministers, who had adhered to the Tripartite Pact, were removed from office by a _coup d’état_ in Belgrade on their return from Vienna, and the new Government repudiated the Pact. Thereupon on 27 March, at a conference in Berlin with the High Command at which the Defendants Göring, Keitel, and Jodl were present, and the Defendant Von Ribbentrop part of the time, Hitler stated that Yugoslavia was an uncertain factor in regard to the contemplated attack on Greece, and even more so with regard to the attack upon Russia which was to be conducted later on. Hitler announced that he was determined, without waiting for possible loyalty declarations of the new Government, to make all preparations in order to destroy Yugoslavia militarily and as a national unit. He stated that he would act with “unmerciful harshness.”
On 6 April German forces invaded Greece and Yugoslavia without warning, and Belgrade was bombed by the Luftwaffe. So swift was this particular invasion that there had not been time to establish any “incidents” as a usual preliminary, or to find and publish any adequate “political” explanations. As the attack was starting on 6 April, Hitler proclaimed to the German people that this attack was necessary because the British forces in Greece (who were helping the Greeks to defend themselves against the Italians) represented a British attempt to extend the war to the Balkans.
It is clear from this narrative that aggressive war against Greece and Yugoslavia had long been in contemplation, certainly as early as August of 1939. The fact that Great Britain had come to the assistance of the Greeks, and might thereafter be in a position to inflict great damage upon German interests was made the occasion for the occupation of both countries.
_The Aggressive War against the Union of Soviet Socialist Republics_
On 23 August 1939 Germany signed the non-aggression pact with the Union of Soviet Socialist Republics.
The evidence has shown unmistakably that the Soviet Union on their part conformed to the terms of this pact; indeed the German Government itself had been assured of this by the highest German sources. Thus, the German Ambassador in Moscow informed his Government that the Soviet Union would go to war only if attacked by Germany, and this statement is recorded in the German War Diary under the date of 6 June 1941.
Nevertheless, as early as the late summer of 1940, Germany began to make preparations for an attack on the U.S.S.R., in spite of the non-aggression pact. This operation was secretly planned under the code name “Case Barbarossa”, and the former Field Marshal Paulus testified that on 3 September 1940, when he joined the German General Staff, he continued developing “Case Barbarossa”, which was finally completed at the beginning of November 1940; and that even then, the German General Staff had no information that the Soviet Union was preparing for war.
On 18 December 1940 Hitler issued Directive No. 21, initialed by Keitel and Jodl, which called for the completion of all preparations connected with the realization of “Case Barbarossa” by 15 May 1941. This directive stated:
“The German armed forces must be prepared to crush Soviet Russia in a quick campaign before the end of the war against England . . . . Great caution has to be exercised that the intention of an attack will not be recognized.”
Before the directive of 18 December had been made, the Defendant Göring had informed General Thomas, chief of the Office of War Economy of the OKW, of the plan, and General Thomas made surveys of the economic possibilities of the U.S.S.R., including its raw materials, its power and transport system, and its capacity to produce arms.
In accordance with these surveys, an economic staff for the Eastern territories with many military-economic units (inspectorates, commandos, groups) was created under the supervision of the Defendant Göring. In conjunction with the military command, these units were to achieve the most complete and efficient economic exploitation of the occupied territories in the interest of Germany.
The framework of the future political and economic organization of the occupied territories was designed by the Defendant Rosenberg over a period of three months, after conferences with and assistance by the Defendants, Keitel, Jodl, Raeder, Funk, Göring, Von Ribbentrop, and Frick, or their representatives. It was made the subject of a most detailed report immediately after the invasion.
These plans outlined the destruction of the Soviet Union as an independent State, and its partition, the creation of so-called Reich Commissariats, and the conversion of Estonia, Latvia, Bielorussia, and other territories into German colonies.
At the same time Germany drew Hungary, Rumania, and Finland into the war against the U.S.S.R. In December 1940 Hungary agreed to participate on the promise of Germany that she should have certain territories at the expense of Yugoslavia.
In May 1941 a final agreement was concluded with Antonescu, the Prime Minister of Rumania, regarding the attack on the U.S.S.R., in which Germany promised to Rumania, Bessarabia, Northern Bukovina, and the right to occupy Soviet territory up to the Dnieper.
On 22 June 1941, without any declaration of war, Germany invaded Soviet territory in accordance with the plans so long made.
The evidence which has been given before this Tribunal proves that Germany had the design carefully thought out, to crush the U.S.S.R. as a political and military power, so that Germany might expand to the east according to her own desire. In _Mein Kampf_, Hitler had written: “If new territory were to be acquired in Europe, it must have been mainly at Russia’s cost, and once again the new German Empire should have set out on its march along the same road as was formerly trodden by the Teutonic Knights, this time to acquire soil for the German plough by means of the German sword and thus provide the Nation with its daily bread.” But there was a more immediate purpose, and in one of the memoranda of the OKW, that immediate purpose was stated to be to feed the German Armies from Soviet territory in the third year of the war, even if “as a result many millions of people will be starved to death if we take out of the country the things necessary for us.”
The final aims of the attack on the Soviet Union were formulated at a conference with Hitler on 16 July 1941, in which the Defendants Göring, Keitel, Rosenberg, and Bormann participated:
“There can be no talk of the creation of a military power west of the Urals, even if we should have to fight 100 years to achieve this . . . . All the Baltic regions must become part of the Reich. The Crimea and adjoining regions (north of the Crimea) must likewise be incorporated into the Reich. The region of the Volga as well as the Baku district must likewise be incorporated into the Reich. The Finns want Eastern Karelia. However, in view of the large deposits of nickel, the Kola peninsula must be ceded to Germany.”
It was contended for the defendants that the attack upon the U.S.S.R. was justified because the Soviet Union was contemplating an attack upon Germany, and making preparations to that end. It is impossible to believe that this view was ever honestly entertained.
The plans for the economic exploitation of the U.S.S.R., for the removal of masses of the population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on 22 June without warning of any kind, and without the shadow of legal excuse. It was plain aggression.
_War against the United States_
Four days after the attack launched by the Japanese on the United States fleet in Pearl Harbor on 7 December 1941, Germany declared war on the United States.
The Tripartite Pact between Germany, Italy, and Japan, had been signed on 27 September 1940, and from that date until the attack upon the U.S.S.R. the Defendant Von Ribbentrop, with other defendants, was endeavoring to induce Japan to attack British possessions in the Far East. This, it was thought, would hasten England’s defeat, and keep the United States out of the war.
The possibility of a direct attack on the United States was considered and discussed as a matter for the future. Major Von Falkenstein, the Luftwaffe liaison officer with the Operations Staff of the OKW, summarizing military problems which needed discussion in Berlin in October of 1940, spoke of the possibility “of the prosecution of the war against America at a later date.” It is clear, too, that the German policy of keeping America out of the war, if possible, did not prevent Germany promising support to Japan even against the United States. On 4 April 1941 Hitler told Matsuoka, the Japanese Foreign Minister, in the presence of the Defendant Von Ribbentrop, that Germany would “strike without delay” if a Japanese attack on Singapore should lead to war between Japan and the United States. The next day Von Ribbentrop himself urged Matsuoka to bring Japan into the war.
On 28 November 1941, 10 days before the attack on Pearl Harbor, Von Ribbentrop encouraged Japan, through her Ambassador in Berlin, to attack Great Britain and the United States, and stated that should Japan become engaged in a war with the United States, Germany would join the war immediately. A few days later, Japanese representatives told Germany and Italy that Japan was preparing to attack the United States, and asked for their support. Germany and Italy agreed to do this, although in the Tripartite Pact, Italy and Germany had undertaken to assist Japan only if she were attacked. When the assault on Pearl Harbor did take place, the Defendant Von Ribbentrop is reported to have been “overjoyed”, and later, at a ceremony in Berlin, when a German medal was awarded to Oshima, the Japanese Ambassador, Hitler indicated his approval of the tactics which the Japanese had adopted of negotiating with the United States as long as possible, and then striking hard without any declaration of war.
Although it is true that Hitler and his colleagues originally did not consider that a war with the United States would be beneficial to their interest, it is apparent that in the course of 1941 that view was revised, and Japan was given every encouragement to adopt a policy which would almost certainly bring the United States into the war. And when Japan attacked the United States fleet in Pearl Harbor and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.
_Violations of International Treaties_
The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against 12 nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also “wars in violation of international treaties, agreements, or assurances.”
These treaties are set out in Appendix C of the Indictment. Those of principal importance are the following.
_Hague Conventions_
In the 1899 Convention the signatory powers agreed: “before an appeal to arms . . . to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers.” A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, Article I contains this far more specific language: “The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war.” Germany was a party to these conventions.
_Versailles Treaty_
Breaches of certain provisions of the Versailles Treaty are also relied on by the Prosecution—Not to fortify the left bank of the Rhine (Articles 42-44); to “respect strictly the independence of Austria” (Article 80); renunciation of any rights in Memel (Article 99) and the Free City of Danzig (Article 100); the recognition of the independence of the Czechoslovak State; and the military, naval, and air clauses against German rearmament found in Part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set out in Appendix C. With regard to the Treaty of Versailles, the matters relied on are:
1. The violation of Articles 42 to 44 in respect of the demilitarized zone of the Rhineland;
2. The annexation of Austria on 13 March 1938, in violation of Article 80;
3. The incorporation of the district of Memel on 22 March 1939, in violation of Article 99;
4. The incorporation of the Free City of Danzig on 1 September 1939, in violation of Article 100;
5. The incorporation of the provinces of Bohemia and Moravia on 16 March 1939, in violation of Article 81;
6. The repudiation of the military, naval, and air clauses of the Treaty, in or about March of 1935.
On 21 May 1935 Germany announced that, whilst renouncing the disarmament clauses of the Treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. (With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.)
_Treaties of Mutual Guarantee, Arbitration, and Non-Aggression_
It is unnecessary to discuss in any detail the various treaties entered into by Germany with other Powers. Treaties of mutual guarantee were signed by Germany at Locarno in 1925, with Belgium, France, Great Britain, and Italy, assuring the maintenance of the territorial _status quo_. Arbitration treaties were also executed by Germany at Locarno with Czechoslovakia, Belgium, and Poland.
Article I of the latter treaty is typical, providing: “All disputes of every kind between Germany and Poland . . . which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision to an arbitral tribunal . . . .”
Conventions of Arbitration and Conciliation were entered into between Germany, the Netherlands, and Denmark in 1926; and between Germany and Luxembourg in 1929. Non-aggression treaties were executed by Germany with Denmark and Russia in 1939.
_Kellogg-Briand Pact_
The Pact of Paris was signed on 27 August 1928 by Germany, the United States, Belgium, France, Great Britain, Italy, Japan, Poland, and other countries; and subsequently by other Powers. The Tribunal has made full reference to the nature of this Pact and its legal effect in another part of this judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal this Pact was violated by Germany in all the cases of aggressive war charged in the Indictment. It is to be noted that on 26 January 1934 Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in which the use of force was outlawed for a period of 10 years.
The Tribunal does not find it necessary to consider any of the other treaties referred to in the Appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.
_The Law of the Charter_
The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal.
The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the Court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.
The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the Tribunal has heard full argument from the Prosecution and the Defense, and will express its view on the matter.
It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a pre-existing law. “_Nullum crimen sine lege, nulla poena sine lege._“ It was submitted that _ex post facto_ punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.
In the first place, it is to be observed that the maxim _nullum crimen sine lege_ is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.
This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27 August 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they were:
“Deeply sensible of their solemn duty to promote the welfare of mankind; persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples should be perpetuated . . . . all changes in their relations with one another should be sought only by pacific means . . . thus uniting civilised nations of the world in a common renunciation of war as an instrument of their national policy . . . .”
The first two articles are as follows:
“Article I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another.”
“Article II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”