THE SIGNIFICANCE OF THE NUREMBERG TRIALS TO THE ARMED FORCES*

Pre'lliously Unpublished Personal Obser'llations by the Chief Counsel for the, United States

BY MR. JusTicE RoBERT H. JAcKSON

The armed services are naturally concerned the case and treated as pertaining principally as to what we were driving at at Nuremberg, to military matters. If one were to deal with and as to the principle on which the leaders all the things that would be of particular in­ of the German armed services were called terest to you, it would require much more upon to pay a penalty for their acts. Mili" time, both in preparation and ih delivery, tary men throughout the world wanted to than I am able to give it, but I can give you know what it was that brought the German some general idea of the law which we sought military men to that somewhat unhappy posi- to establish and of the basis of· the judgment . tion. I propose to face that problem very against the servicemen who were condemned. frankly today and to discuss the effect of First of all, I think you should know that · this trial on the profession of arms. the idea of a trial of these German leaders It is very difficult to carve out of this case did not originate among theoreticians of the just those things which relate to the military legal profession. This plan originated in the men because they were a part of a large con­ War Department. This plan was pretty fully spiracy which involved the seizure of power developed in the War Department before I in Germany, the rearmament in defiance of was appointed. This plan was developed the Versailles Treaty, and during its early largely to implement the ideas and ideals of stages in secret, the raising and drilling of an Secretary Stimson who for many years had army concealed as a labor corps in violation advocated the outlawry of aggressive war, of that treaty, and a great many steps which and who probably knows more about that cannot be separated from the main stream of subject than any statesman in the United States-and I refer to him as a statesman because his career shows a more farsighted *A speech on the Nuremberg trials which was de­ livered by Mr. Jackson before a special group at the understanding of what was going on in the National War College, Washington, D. C., 6 Decem­ world than that of any man I know. And ber, 1946,. is printed here in complete form, without introduction, by special permission of Mr. Jackson and oftentimes I cited him as my authority and the Commandant of the Collzge. One of the principal sometimes didn't have much else, but I think points which Mr. Jackson seeks to ,clarify is the con~ siderable misunderstanding in military and naval circles I was weU fortified with him. as to the· exact objective of the prosecution. He offers When President Roosevelt went to Yalta proof that justice, in the form of hanging, was meted he took a memorandum which had been ap­ to Wdr crimind/s, and not military men who were only following superior orders. proved by Secretary Stimson, Secretary Stet- 3 4 MILITARY AFFAIRS Winter

tinius and the Attorney General, Mr. Bid­ of the law against the wars of aggression. dle. That was presented and discussed brief­ But he also has written, an~ I c9mtnend to ly, and I think very vaguely, at Yalta, and your attention when it is published, an article they referred it to the Foreign Ministers to for "Foreign Affairs." He is one of the few prepare some implementation. The Foreign men who has really studied the documents Ministers became engaged in other things, before he wrote. There has been a great and eventually it drifted until it was left deal of comment on the Nuremberg trial to me to negotiate agreement on behalf of written by people who didn't bother to read the United States at ~ondon. the documents. I don't mean to say that It might be well to quote w:1at Mr. Vish­ Secretary Stimson read all of the evidentiary insky said when he came to Nuremberg. He documents, but he examined with great care said in substance that "The reason WI?. were the agreement, the speeches and th~ judg· able to get an agreement was that it was left ment, and he followed the case from begin­ to lawyers instead of diplomats." Since Vish­ ning to end with a dose attention. insky was himself a diplomat as well as a He says this: "The great undertaking at lawyer I take it he was not referring dis­ Nuremberg can live and grow in meaning, paragingly to one of his own professions. however, only if its principles are rightly What he meant, and· what I think is true, understood and accepted. It is therefore dis­ is we were given an unusual measure of au­ turbing to find that its work is critici~ed and thority. The subj-ect was technical and a lit­ even challenged as lawless by many who tle troublesome, and they wished it onto us should know better. In the deep convict~on and let us go. We didn't have to debate the that this' trial deserves to be known and political questions which get involved some valued as a long step ahead on the only up­ way with these things in the councils of na­ ward road, I venture to set down· my general tions. Our conferences were private confer­ view of . its nature and accomplishments." ences: The press was not in to publish ru­ His conclusion is: "In the judgment of mors and stir up trouble as the press some­ Nuremberg there is affirmed the central prin­ times does in international affairs, and we ciple .of peace, that the man who makes or. ···"W&re~-.able-.·.t.o .. -werk- ·oot:...an~.agreemetit.-.w.hkh plans to make aggressive war is a criminal. reconciled four legal systems. Our own and A standard has been raised to which Amer­ that of the British were easy to reconcile; icans at 'least must repair, for it is only as our own and that of the French were not so thi; standard is accepted, supported, and easy; our own and that of the Soviet Union enforced that we can move onward to a world are quite different. But we adopted a sys­ of peace within the law." tem by which these German prisoners would You must recall that the United States be given a fair hearing, and if there was any found on its hands a considerable group of defense in the world for what they had .done, · prisoners, that these prisoners in the judg­ it could be heard. ment of the world were guilty of the most atrocious of crimes. They had started a war STIMSoN's INFLUENCE without cause, they had waged it without In so doing we were carrying out this plan, consideration either for their own code or which originated in the War. Department. any other law, and they had perpetrated all Secretary Stimson made important contribu­ manner of atrocities on civilians. We tried tions in the early stages of the development to glean from existing law and codify defi- 1946 JACKSON: NUREMBERG TRIALS

mtrons of the crimes we intended to prose­ are of course abstract, is the manner in which cute. The law which underlies the Nurem­ they were applied to leaders of the anned berg trial I will read to you. It had to be forces. Indicted individually before the tri­ quite general and as you will see a good deal bunal was Goering, who was, as you well_· had to be left to the discretion of the tri­ know, the builder and commander of the bunal. Luftwaffe; Keitel and Jodi from the Army; "(a) CRIMES AGAINST PEACE: namely, and 'Raeder and Donitz from the Navy. We planning, preparation, initiation or waging of a also asked that the General Staff as a group war of aggression, or a war in violation of inter­ be declared criminal. .In order to declare national treaties, agreements or assurances, or par­ any group criminal it was required under the ticipation in a common plan or conspiracy for the accomplishment of any of the foregoin,g; terms of the charter that some individuals representative of the group be convicted. In "(b) WAR CRIMES: namely, violations of other words, the group could only be de­ the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treat­ dared criminal provided we tried and heard ment or deportation to slave labor or for any and convicted a representati~e who could other purpose of civilian population of or in occu­ speak for that group. Keitel and Jodl and pied territory, murder, ill-treatment of prisoners Goering, of course, represented the General of war or persons on the seas, killing of hostages, Staff and High Command; Raeder, Donitz, plunder of public or private property, wanton de­ struction of cities, towns or villages, or devastation the Navy. not justified by military necessity; JuDGMENT UNPUBLISHED "(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, de­ It is unfortunate that the judgment has portation, and other inhumane acts committed not yet been published in the United States, against any civilian population, before or during because the recital of the judgment against the wat; or persecutions on political, racial or re­ ligious grounds in execution of or in connection these individuals really shows what they were with any crime within the jurisdiction of the Tri­ up to. This judgment is a very large docu­ bunal, whether or not in violation of domestic ment and I am not going to read it all, but law of the country where perpetrated. I do think that there. is no better way that "Leaders, organizers, instigators and accomplices you. can see exactly what differentiates the participating in the formulation or execution of a conduct of these men from soldierly conduct common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts per· than to see just what it was that was proved formed by any persons in execution of such plan. against them. From the beginning to the end "Article 7. The official position of defendants, of this case we made no contention that whether as Heads of State or responsible officials merely because a man was serving his coun- in Government Departments, shall not be con­ . try and the cause was not successful he should sidered as freeing them from responsibility or hanged or convicted. We recognized the mitigating punishment. · realities of these things. "Article 8. The fact that the Defendant acted pursuant to order of his Government or of a We were after the men who really pro­ superior shall not free him from responsibility, moted this war and caused all of this crime but may be considered in mitigation of punish­ and suffering. Among those men certainly ment if the Tribunal determine that justice so none was more of a leader in aU fields than requires!' Hermann Goering. He was the ·man who The real test of these definitions, which brought all of the groups together into the 6 MILITARY AFFAIRS Winter

Nazi conspiracy. In many ways I think he 'I must take 100% responsibility .... I even over­ was a much more influential and potent man ,ruled objections by the Fuehrer and brought every­ than Hitler himself. He was the focus thing to its final development.' In the seizure of the Sudetenland, he played his role as Luftwaffe ·around which many men rallied who would chief by planning an air offensive which proved not have rallied to Hitler, who after all was unnecessary, and his role as a politician py lulling a vague sort of demagogue and a mystic. the Czechs with false promises of friendship. Goering was a practical fellow and I shall The night before the invasion of Czechoslovakia . read to you what the Court found was proved and the absorption of Bohemia and Moravia, at a conference with Hitler and President Hacha he at the risk of being tedious. threatened to bomb Prague if Hacha did not sub­ "Goering is indicted on all four counts. The mit. This threat he admitted in his testimony." evidence shows that after Hitler he was the most prominent man in the Nazi Regime. He was And he admitted it was unnecessary from Commander-in-Chief of the Luftwaffe, Plenipo­ any military point of view. tentiary for the Four Year Plan, and· had tre­ mendous inRuence with Hitler, at least until1943 "Goering attended the Reich Chancellery meet­ when their relationship deteriorated, ending in his ing of 23 May 1939"-that, you know, is merely arrest in 1945." six months before the war began-"when Hitler ''He testified that Hitler kept him informed of told his military leaders 'there is, therefore, no question of sparing Poland,' and was present at all important military and political problems. the Obersalzburg briefing of 22 August 1939. "From the moment he joined the Party in 19;22 And the evidence shows he was active in the diplo­ and took command of the street fighting organi­ matic maneuvers which followed. With Hitler's zation, the SA. Goering was the adviser, the ac­ connivance, he used the Swedish businessman, tive agent of Hitler and one of the orime leaders Dahlerus, as a go-between to the British, as de­ of the Nazi movement. As Hitler's oolitical scribed by Dahlerus to this Tribunal, to try to deputv . he was largely instrumental in brin~ing prevent the British Government from keeping its the National Socialists to power in 1933, and was guarantee to the Poles. · charP.:ed with consolidating this power and ex­ panditt~ German armed mi~ht. He developed "He commanded 'the Luftwaffe in the , attack the Gestapo, and created the first concentration on Poland and through the aggressive war~ which camos, relinquishiM them to Himmler in 1934. followed. · conducted the Roehm purge in that year, and "Even if he opposed Hitler's plans against engineered the sordid proceedings which resulted Norway and the Soviet Union, as he alleged, it in the removal of von Blomberg and von Fritsch is clear that he did so only for strategic reasons; from the Army. In 1936 he became Plenipoten­ once Hitler had decided the issue, he followed tiary for the Four Year Plan. and in theory and him without hesitation. He made it clear in his in practice was the economic dictator of the Reich. testimony that these differences were never ideo­ Shortly after the Pact of Munich, he announced logical or legal. He was 'in ra.5e' about the in­ that he would embark on a five-fold exoansion vasion of Norway, but only because he had not of the Luftwaffe, and speed rearmament with em­ received sufficient warning to prepare the Luft­ phasis on offensive weapons. waffe offensive. He admitted he approved of the "Goering was one of the five important leaders attack: 'My attitude was perfectly positive.' He present at the Hoszbach Conhrence of 5 Novem­ . was active in preparing and executing the Yu~o­ ber 1937 and he attended th~ other important slavian and Greek campaigns, and testified that conferences already discussed in this Judgment." 'Plan Marita,' the attack on Greece, had been prepared long beforehand. The Soviet Union As I say, it is very hard to separate these he regarded as the. 'most threatening menace to particular things from the evidence of the Germany,' but said there was no immediate mili­ general conspiracy. tary necessity for. the attack. Indeed, his only objection to the war of aggression against the "In the Austrian Anschluss, he was indeed the USSR was its timing; he wished for strat·egic central figure, the ringleader. He said in Court: reasons to delay until Britain was conquered. He 1946 -JACKSON; NUREMBERG TRIALS 7

testified: 'My point of view was decided by politi­ the tnen in Germany who were opposed to cal and military reasons only.' their aggressive plans. It was all told in "After his own admissions to this Tribunal, from the positions which he held, the conferences great detail in the evidence. Some of it was he attended, and the public words he uttered, told by other military men; some of it was there can remain no doubt that Goering was the told by civilians; a good de~l was told by a moving force for aggressive war second only to former officer of the Gestapo. Von Blom­ Hitler. He was the planner and prime mover in the military and diplomatic preparation for war berg, Minister of War, was not in favor of which. Germany pursued." the extreme Nazi plans of aggression. He was in favor of rearming Germany so that I shall not go into a recital of the war Germany could cope with any possible en­ crimes and the crimes against humanity of emy, and he was moving in the direction of which Goering was guilty. You followed a moderate rearmament of Germany. those proceedings closely enough to know But when he failed to go along with all he was the prime mover of many of the per­ the pl~ns, the Nazi crowd, both military and secutions and of the war crimes. I will come civilian, planted in von Blomberg;s office a to a man who was less involved in the poli­ prostitute who proceeded to marry von Blom­ tics of the thing than was Goering. That is berg. That was the plan from the beginning. Keitel. Keitel was a subject of considerable controversy among the German military men. The wedding was a widely advertised event, He was described by various of them as a and Hitler attended. The Nazi papers pub­ "yes man," put into his position for the pur­ Jished the fact that Hitler was present at the pose of agreeing ~ith Hitler. Certainly he wedding and then they published her license always did finally agree with Hitler. He in­ as a licensed -prostitute. The pretense that itiated many of the steps which Hitler took. Hitler had thus been humiliated enabled He was described as a weak man by some of them to get rid of Von Blom~rg. An amus­ the other generals who were prisoners of ing sidelight was that after _it was testified war, who felt that he was promoted solely she was licensed in seven cities, she made a to serve the purposes of the Nazi regime. statement to the newspapers that she was not But the evidence showed-and if I h~ve time a prostitute in seven cities, that she was rarely I will point to some of his documents to in­ out of Berlin. dicate the. nature of the- evidence-that his Van Fritsch was another military man who activity went far beyond being a planner of did not sympathize with the Nazi plans and merely military steps necessary to protect who thought their plans were going to 'lead Germany's interest. to war. What did they do with him? They He was active in promoting the political charged him with being a homosexual and phases of aggression. He received the golden held a trial at which Goering presided, one party emblem from the Nazi Party, and he of the most farcical trials that could be was the beneficiary ·of the very foul moves imagined. They got rid of von Blomberg against ·von Blomberg and von Fritsch by and they got rid of von Fritsch, and every­ which this clique came into -power in the body on the outside knew when those mod­ German military hierarchy. erates were driven out and when men like Perhaps it would help if I explained first, Keitel and Jodi came to the fore it meant rather than later, how this group which ulti­ the Nazi plan for aggression was going to be mately conducted the war got rid of some of a success. It is against that background that 8 MILITARY AFFAIRS Winter you have to view the activities of Keitel and March that the destruction of Yugoslavia should take place with 'unmerciful harshness.' Jodi. "Keitel testified that he opposed the invasion THE CASE AGAINST KEITEL of the Soviet Union for military reasons, and also because it would constitute a violation of the I return to the judgment as to the specific Non-aggression Pact. Nevertheless he initiated findings on Wilhelm Keitel. 'Case Barbarossa,' signed by Hitler on 18 Decem­ ber 1940, and attended the OKW discussion with · "Keitel attended the Schuschnigg conference" Hitler on 3 February 1941. Keitel's supplement -this is in connection with the Austrian Anschluss of 13 March established the relationship between -"in February 1938- with two other generals. · the military and politica_l officers. He issued his Tlieir presence, he admitted, was a 'military dem­ timetable for the invasion on 6 June 1941, and onstration,' but since he had been appointed was present at the briefing of 14 June when the OKW Chief just one week before he had not generals gave their final reports before attack. known why he had be·en summoned. Hitler and He appointed Jodi and Warlimont as OKW rep­ Keitel then continued to put pressure on Austria resentatives to Rosenberg on matters concerning with false rumors, broadcasts and troop manoeu­ the Eastern Territories.'' vres. Keitel made the military and other arrange­ ments and Jodi's diary noted 'the effect is quick And the Rosenberg administration of the and strong.'· When Schuschnigg called his plebi­ Eastern Territories, in which Keitel w~s scite, Keitel that night briefed Hitler and his gen­ found to have had a part is elsewhere found erals, and Hitler issued 'Case Ottp' which Keitel to be one of the most atrocious chapters m initialed. human history. "On 21-April 1938 Hitb and Keitel consid­ ered making use of a possible 'incident,' such as "On June 16 he directed all army units to the assassination of the German Minister at carry out 'the economic directives issued by Goer­ Prague,. to preface the attack on Czechoslovakia. ing in the so-called 'Green Folder,' for the ex­ Keitel signed many directives and memoranda on ploitation of Russian territory, food and raw ma­ "FaJI Gruen,' including the directive of 30 May terials.'' containing Hitler's statement: 'It is my unalter­ able decision to smash Czechoslovakia by military The war crimes of ·which Keitel is con­ action in the near future.' After Munich, Keitel victed should be of interest. initialed Hitler's directive for the attack on "On 4 August 1942 Keitel issued a directive Czechoslovakia, and issued two supplements. The that paratroopers were. to be turned over to the second supplement said the attack should appear SD." to the outside world as 'merely an act of pacifica­ The judgment does not at this point go tion and not a warlike underta~ing.' The OKW on to say, but it elsewhere appears that this Chief attended Hitler's negotiations with Hacha when the latter surrendered. was equivalent to death. "Keitel was present on 23 May 1939 when "On 18 October Hitler issued the Commando Hitler announced his decision 'to attack Poland -Order which was carried out in several instanc·es. at the first suitable opportunity.' Hider had said After the landing in Normandy, Keitel reaffirmed on 23 May 1939 he would ignore the neutrality of the· order, and later extended it to Allied mis­ Belgium and the Netherlands, and Keitel signed sions fighting with partisans. He admits he did orders for these attacks on 15 October, 20 No­ not believ·e the order was legal but claims he vember:, and 28 November 1939. Orders postpon­ could not stop Hitler from decreeing it. ing this attack 17 times until spring 1940 all were "When on 8 September 1941, OKW issued its signed by Keitel or Jodi. ruthless regulations for the treatment of Soviet "Formal planning for attacking Greece and POW's, Canaris wrote to Keitel that under inter­ Yugoslavia h~d begun in, ;~ovember 1940. On national law the SO should have nothing to do 18 March 1941 Keitel heard Hider tell Raeder with this matter. On this memorandum in Kei­ complete occuf/~tion of Greece was a prerequisit~ tel's handwriting, dated 23 September and iri­ to settlement,' Mid~ also heard Hitler decree on 27 itialed by him, is the statement: 'The objections 1946 JACKSON: NUREMBERG TRIALS 9

arise from the military concept of chivalrous war­ was likely; otherwise they would be handed to the fare. This is the destruction of an ideology. Gestapo for transportation to Germany .. Therefore I approve and back the measures.' "Keitel directed that Russian POW's be used Keitel testified that he really agreed with Canaris in German war industry. On 8 September 1942 and argued with Hitler, but lost. The OKW he ordered French, Dutch and Belgian citizens to Chief directed the military authorities to coop­ work oq the construction of the Atlantic Wall. erate with the Einsatzstab Rosenberg in looting He was present on 4 January 1944 when Hitler cultural proper'ty' in occupied territories. directed Sauckel to obtain four million new work­ · "Lahousen testified that Keitel told him on 12 ers from occupied territories. September 1939, while aboard Hitler's headquar­ "In the face of these documents Keitel does not ters train, that the Polish intelligentsia, nobility deny his connection with these· acts. Rather, his and Jews were to be liquidated. On 20 October, defense relies on the fact that he is a soldier, and Hitler told Keitel the intelligentsia would be pre­ on the doctrine of 'superior orders,' prohibited vented from forming a ruling class, the standard by Article 8 of the Charter as a defense. of living would remain low, and Poland would "There is nothing in mitigation. Superior or­ be used only for labor forces. Keitel does not ders, even to a soldier, cannot be considered in remember the Lahousen conversation, but admits mitigation where crimes as shocking and exten­ there was such a policy· and that he had pro­ sive had been committed consciously, ruthlessly tested without effect to Hitler about it. and without military excuse or justification." "On 16 September 1941, Keitel ordered that Time hardly permit the reading of attacks on soldiers in the East should be met by will putting to death 50 to 100 Communists for one the judgment as against Jodl, Donitz and German soldier, with the comment that human Raeder, but it shows a similar course of con­ life was less than nothing in the East. On 1 duct. In each case the Tribuii;,tl took up and October he ordered military commanders always carefully considered every denial made by to have hostages to execute when German sol­ diers were attacked. When Terboven, the Reich any defendant either of this testimony Commissioner in Norway, wrote Hitler that Kei­ against him or of the documents. In some tel's suggestion that workmen's relatives be held few instances documents were claimed to be responsible for sabotage could work only if firing capable of a different interpretiltion and in squads ·~ere authoriz,ed, Keitel wrote on this mem­ orandum in the margin: 'Yes, that is the best.' only two or three instances were any of the "On 12 May 1941, five weeks before the in­ nearly 4,000 documents denied. These men vasion of the Soviet Union, the OKW urged were convicted, not on testimony by their upon Hitler a directive of the OKH that political enemies, they were convicted on their own commissars be liquidated by the Army. Keitel signatures. Keitel's own lawyer at the con­ admitted the directive was passed on to the field commanders. And on 13 May Keitel signed an clusion of the 'testimony and when he order that civilians suspected of offenses against summed up the case said to the Tribunal troops should be shot without trial, and that. prose­ and wrote in his brief; "It is possible to meet cution of German soldiers for offenses against some of the specific questions. It is impossi­ civilians was unnecessary. On 27 July all copies ble to shake the indictment as a whole!' of this directive were ordered destroyed without affecting its validity. Four days previously he had Jodl, kept a diary, a very dangerous prac­ signed another order that legal punishment was tice, and in it Jodi recited from time to time inadequate and troops should use terrorism. his participation in· various of these crimes. "On 7 December 1941, as already discussed in I shall not have time to review the evidence this opinion, the so-called 'Nacht und Nebel' de­ at length, but I would like to point out to cree, over Keitel's signature, provided that in you a few samples of these documents just occupied territories civilians who had been ac­ cused of crimes of resistance against the army of to show you the kind of evidence that was occupation would be. tried only if a death sentence used, because I think the concrete act which 10 MILITARY AFFAIRS Winter you bring forward against a man under an and Jodi was poiitical as well as military. indictment is more helpful in understanding As I have said, you have to interpret the spe­ the indictment than the abstractphraseology cific acts against the background by whiCh of lawyers, which sometimes isn't too intelli­ Keitel and Jodi got into power. The first gible even to lawyers. of the summary of the discussions between You will recall that against Keitel there Keitel and the Fuehrer on Czechoslovakia was a finding that in the aggressive action was this from Document 388-PS. toward Austria which did not result in war, "1. Strategic . surprise attack out of a clear he was active in its political as well as its sky without any cause or possibility of justifica­ military aspects. -Document 1775-PS, which tion has been turned down as result would be hostile world opinion which can lead to a critical was in evidence and on which the Tribunal situation.... acted is signed by Keitel. I will read the part "2. Action after a time of diplomatic clashes, of it that shows what he was advising the which gradually come to a crisis and lead to. war." Fuehrer. That was the one they adopted. "The OKW is asking the Fuehrer's decision, "3. Lightning-swift action as the result of an concerning the following' proposals: incident (e.g. assassination of German ambassa­ "Orders will be given immediately, after the dor in connection with an anti-German demon­ detailed numbers and letters have been released stration.)" by the Leader, for accomplishment." The proof was supplemented by oral testi­ One is unimportant. . mony to show that they planned that anti­ "2. Spread false, but quite credible news, which German rioting would be instigated includ­ may lead to tht conclusion of military prepara­ tions against Austria." ing assassinating their own ambassador to · give the provocation necessary for the war. He described the method by which the Keitel then revised the plan, improved on it false news should be spread. In connection somewhat, and· sent another draft to the with this Jodi's diary showed that according Fuehrer. In the revised estimate of the possi­ to Jodi's entry of February 11 of 1938 bilities he said: "Invasion. without suitable Schuschnigg was being put "under heaviest obvious cause" is turned down therefore. political and military pressure." "Rather will the action be initiated either: "In the afternoon Gen·eral K. asks Admiral C "a. After a peridd of increasing diplomatic and myself to come to his apartment: He tells clashes and tension, which is coupled with mili­ us that the Fuehrer's order is to the effect that tary preparations and is made use of to push military pressure by shamming military action the war guilt onto the enemy. Even such a period should be kept up until the 15th." for tension preceding the war however will termi­ You recall the proposal came from Keitel nate in sudden military action on our part, which himself. must come with all possible surprise· as to time and extent, or "Proposals for these deceptive maneuvers are "b. By lightning-swift action· as a result of drafted and submitted to the Fuehrer tele­ by ·a serious incident, through which Germany is phone for approval." . provoked in an unbearable way and for which at And he recites the effect of them on Aus­ least part of the world opinion will grant the tria. moral justification of military action. "b. Is militarily and politically the more fa­ PLANS TO PROVOKE CAUSE FOR INVADING vorable." CzEcHOSLOVAKIA Then Jodi signed the following memoran­ When aggressive action came against dum on the Czechoslovakia incident pro­ Czechoslovakia the participation of Keitel posal: 1946 JACKSON: NUREMBERG TRIALS ll

"Ope~ation ( Aktion) Gruen will be set in mo­ So far as war crimes are concerned, there tion by means of an 'incident' in Czechoslovakia was very little effort made to contend that which will give Germany provocation for· mili­ tary intervention. The fixing of the exact time Germany lived up to the laws of war. In for this incident is of the utmost importance. fact, Goering testified in substance no~ only "It must come at a time when weather condi­ that they didn't, but that they didn't expect tions are favorable for our superior air forces to to. It is a matter which I think calls for go into action and at an hour which will enable authentic news of it to reach us on the afternoon serious consideration on the part. of the of X minus 1." · . United States. I will read only an extract When they got ready for the aggressive from Goering's testimony which shows you war against Poland, Keitel made his own the attitude that the high Nazi command memorandum, Document 795-PS, in which took on the rules of warfare. Goering testi­ he recited that he conferred with the Fuehrer fied: and the Fuehrer had informed him that "The Hague Convention was for land war­ they "were to furnish Heydrich with Polish fare. When I scanned it over on the eve of the uniforms." Following the oral evidence Polish campaign I was reading the articles and I through, Keitel furnished Heydrich, who was sorry I had not studied them much sooner. If I had done so, I woufd have told the Fuehrer was the head of the Gestapo, with the Po- that with these rules as they had been put down .lish uniforms. They dressed up some Polish paragraph by paragraph a modern war 'could not concentration q.mp people in Polish uni­ be waged, but that in a modern war with its forms and had the Polish concentration camp technical improvements the stipulations of 1906 inmates make an attack ori. a Genpan radio and 1907 would have to be changed in order to have a new type of warfare." station, and that was the incident which pro­ vided the propaganda to show that Germany I am not so sure that Goering isn't right was provoked to war. about it, and I am going t.o ventu.re· outside . It is that sort of specific thing, which of my role to suggest that the subject needs proved what these men were up to was not serious consideration on the part of the the mere planning of war on a military basis. United States. Certain countries are parties Keitel and Jodl, Raeder and Donitz had all to these various agreements in reference to become partl of the Nazi effort to make a the rules of land warfare, the treatment of war where none existed before, to induce de­ prisoners and the like; some countries are cisions to go to war and to create the fight .. not. There is little doubt, I suppose, that if Time will not permit going into detail as to we were to have a war in which we should be all of the evidence, of course. The War Dec on the opposite side of England, for example, partment is publishing in eight volumes the prisoners of war would be treated pretty documents which were used in evidence. It much as they are now, because that is the is a long task to summarize it,. of course, I temper of the people. But if we were to be­ hope that a more adequate job of summariz­ come involved in a war with certain other ing what was proved against military char­ nations, our men taken prisoners by them acters will be done by someone better able would not be .treated according to the stand­ than I am to do it. I am only giving you ards of these conventions, first, because they a preview of what might be done if some­ are not required to, not being parties to these body who knew the military point of view conventions; second, because their standards much better than I do could go about this of living are such if they tried to treat our task. prisoners of war as we treat prisoners of war, 12 MILITARY AFFAIRS Winter

I suppose their public op1mon wouldn't saying, "This awful war! Oh, this terrible stand for it. The rules would require them war!" I stood it about as long as I could, to treat the prisoners of war much better and finally said, "Ribbentrop, when did this than their own people lived, and we could war begin to impress you as an awful war?" not expect them to do it-nor would they I thought he would at least smile, but he submit to inspection by a supervising power. was as solemn as an owl. There wasn't a I think it is a serious question whether we spark of humor about him, and he said in all should not reconsider the provisions of these seriousness, "I will tell you. It was when I agreements in the light of modern conditions · heard the Americans had landed in Africa." to determine just where we might stan!i _in That is what impresses them as awful event another war breaks upon mankind. about the war, and it was not an awful war We may depend upon it that some of the in any of its aspects up until it began to go potential enemies of the United States would wrong for them. not be governed by these agreements. I think In prosecuting them on the charge of ag­ it is a serious question whether these rules gressive war-making there has never been the should be allowed to stand in their present slightest thought that we wanted to or were conditions in the fac~ of the challenge which making criminal the ordinary work of plan­ Goering throws out, and Goering is not the ning a nation's defense. t have no doubt only man who has that same view of the im­ that there are plans as to what would be possibility of waging total war within these done by the United States in almost every obsolete rules. eventuality that could be conceived. I hope there ar~ such plans. If there are not such NAzis REALIZE HoRRORS plans, I would think somebody has been oF WAR Too LATE guilty of negligence. That natioos may The attitude of the Nazi in Germany to­ find themselves engaged in wars, of course, ward the war simply isn't the same as the is a contingency which everybody _has to attitude even of the toughest of Americans reckon with .. That it is the business of the or the toughest of the other western peoples. professional soldier to be ready to protect They simply do not see in the sort of things his country we take for granted. That it is they did the same wrong that we would see his business to embroil his country in a war in them. They haven't the same standard we cannot admit, and that is the essence of of treatment of each other. They saw noth­ the charge against these German defendants. ing very horrible about the war until it hit They not only planned, but they incited them. a nation to· war. Our position .I think was One· of the most illuminating things that made fairly plain through the trial. The happened in Nuremberg was a little cross­ judgment as to the charges against the Gen­ examination of Ribbentrop before the trial eral Staff I think were read to you yesterday, began. He sent me a letter which looked to and I will not go into them again. The me as though it had been written for propa­ position we took, and which was the position ganda purposes eventually, and I called him of the United States, was stated in my open­ in to have a stenographic report of a few ing address, and copies of that are available. questions about it in order to deflate it in case In it the case against all the different ele­ it should ever be published for such purposes. ments among the defendants was brought In the course of the interrogation he kept together, against the businessmen, the finan- 1946 JACKSON: NUREMBERG TRIALS 13

ciers, the politicians, the military men. The "The Charter recognizes that one who has com­ whole group is there treated together and the mitted criminal acts may not take refuge in su­ perior orders nor in the doctrine that his crimes case on the. facts together with the legal were acts of states. These twin principles work­ propositions on which we were proceeding ing together hav·e heretofore resulted in immunity more completely set forth than in my closing for practically ·everyone concerned in the really address. As against the military men this great crimes against peace and mankind. Those was the position which the United States in lower ranks were protected against liability took officially at the opening and adhered to by the orders of th·eir superiors. The superiors were protected because their orders were called throughout the trial: acts of state. Under the Charter, no defense "We have also accused as criminal organiza­ based on either of these doctrines can be enter­ tions the High Command and the General Staff tained. Modern civilization puts unlimit;d weap­ of the German Armed Forces. We recognize that ons of destruction in the hands of men. It can­ to. plan warfare is the business of professional sol­ not tolerate so vast an area of legal irresponsi­ diers in every coun~ry. But it i~ one thing to bility. plan strategic moves in the event war comes, and "Even the Germail. Military Code provides that: it is another thing to plot and intrigue to bring 'If the execution of a military order in the on that war. We wil1 prove the le~ders of the cours~ of duty violates the criminal law, then the German General Staff and of the High Command superior officer giving the order will bear the sole to have been guilty of just that. .Military men responsibility therefor. However, the obeying __ are not before you because they served their coun­ subordinate will shar·e the punishment of the par- . try. They are here because they mastered it, ticipant: ( 1) if he has exceeded the order given along with these others, and drove it to war. They to him, or (2) if it was within his knowledge that are not here because they lost the war but because the order of his superior officer concerned an act they started it. Politicians may have thought by which it was intended to commit a civil or of them as soldiers, but soldiers know they were military crim-e or transgression.' politicians. We ask that the General ·Staff and "Of course, we do not argue that the circum­ the High Command, as defined in the Indictment, stances under which one commits an act should be condemned as a criminal group whose existence be disregarded in judging its legal effect. A con­ and tradition constitute a standing menace to the scripted private on a firing squad cannot expect peace of the world." to hold an inquest on the validity of the execution. The Charter implies common sense limits upon DEFENSE OF SUPERIOR ORDERS immunity. But none of these men before you acted in minor parts. Each of them: was en­ A ·good deal has been said about the de­ trusted with broad discretion and exercised great fense of superior orders because that is the power. Their responsibility· is correspondingly position taken by all of the military men. great, and may not be shifted to that fictional You will note that we didn't proceed against being, 'the State,' which cannot be produced for 'trial, canot testify, and cannot be sentenced.'' men who we're far down in the chain of com­ mand. I think the defense of superior or­ There have been objections, too, that we ders would be recognized, of course, in many, were proceeding against men for aggressive many circumstances. It can hardly be recog­ acts without a sufficient definition of aggres­ nized when you are dealing with the superiors sion. It is true that the Charter did not de­ themselves, men on the level of these, of the fine aggression. The reason it did not define General Staff. 'But on the defense of su­ aggression is that it is a very difficult thing perior orders I will show you the position to define and it wasn't necessary for the pur­ which the United States took, again quot­ poses of this case. On behalf of the four ing from the opening which also was the powers at the opening, I took the posttlon opening on behalf of all four powers: that there was definition sufficient for the 14 MILITARY AFFAIRS Winter

purposes for that trial, in other sources of Tribunal said it could not convict the Gen­ international law and in common usage of eral Staff as a criminal organization, it went the terms. And we cited the Litvinov Agree- · oil to say of the General Staff: ment by which Russia undertook not to ag­ • "Although the Tribunal is of the opinion that gress against Estonia, Latvia, Turkey and the term 'group' . . .. must mean something more Afghanistan. The definition is a good one than this" General Staff was shown to be, "it has and the application is not difficult. Quoting heard much evidence as to the participation of again from my opening statement: these officers in planning and waging aggressive war, and in committing war crimes and crimes "An 'aggressor' is generally held to be that against humanity. This evidence is, as to many state ~hich is the first to commit any of the fol­ of them, clear and convincing. lowing actions: ' "They have been responsible in .farge· measure (1) Declaration of war upon another State; for the miseries and suffering that have fallen on millions of men, women and children. They have (2) Invasion by its armed forces, with or been a . disgrace to the ho~orable profession of without a declaration of war, of the territory of arms. Without their military guidance the ag­ another State; gressive ambitions of Hitler and his fellow Naz.is (3) Attack by its land, naval, or air .forces, would have been academi!= and sterile. Although with or without a declaration of war, on the ter· they were not a group falling within the words ritory, vessels, or aircraft of another State; of the Charter, they were certainly a ruthless military caste. The contemporary German mili­ "And I further suggest that it is the general tarism Rourished brieRy with its recent ally, Na­ view. that no political, military, economic, or other tional Socialism, as well as or better than had considerations shall serve as an excuse or justifica­ it in the generations of the past. tion for such . actions; but exercise of the right of legitimate self-defense, that is to say, resistance "Many of these men have made a mockery of which is to an act of aggression, or action to as­ the soldier's oath of obedience to military orders. sist a state which has been subjected to ag~ression, When it suits their defense they say they had to shall not constitute a war of aggression." obey; when confronted with Hitler's. brutal crimes, which are shown to have been within their gen­ There is an instructive document which I eral knowledge, they say they disobeyed. trust will be made available in printed form "The truth is they actively. participated in all at some time. It is the argument made by these crimes, or sat silent and acquiescent, w"it­ nessing the commission of crimes on a scale larger General Telford Taylor for the conviction and more shocking than the world has ever had of the German General Staff and High Com­ the misfortune to know. This must be said. mand as a "Group" or "organization." The "Where the facts warrant it, these men should conviction of the General Staff, as you know, be brought to trial so that those among them who failed because it was held not to be a suffi­ are guilty of these crimes should not escape pun­ ishment." ciently cohesive group to warrant a declara­ tion of criminality as a group. The argu­ WEHRMACHT BETTER THAN ss ment made by General Taylor, will show clearly that there was no purpose to brand It is fair to say, by and large, that the the General Staff as criminal except as the · Wehrmacht was a far more decent organiza­ General Staff had departed from the normal tion than the more Nazified military forma­ course of military planning and had entered tions. There is nothing in the history of into the political effort to bring on the war. modern warfare that has ever come to my There was no purpose here to convict or attention that compares with the conduct of brand as criminal the entire profession of the SS and the purely Nazi formations. I arms. It is very significant that while the think the worst of the military men who were 1946 JACKSON: NUREMBERG TRIALS 15

brought up in the old military tradition, it not that fallen enemies may be killed-that

would not be unfair to say, were better than is old-the precedent is that they shall not r the best of the Nazis, the purely Nazi for­ be killed without proof of crime and fair mations. I know that there is great admira­ hearings. tion in many circles for the military pro­ The trial was not an effort wholesale to ficiency of the German General Staff, but condemn men because they fought for their these men who came into power by throwing country. It was an effort to determine the men of the Von Blomberg and Von whether they w~re guilty of crime and to Fritsch type otit, and forcing others into re­ hear every argument they could make in tirement certainly didn't. rept:esent the best support of their conduct. I think it is ex­ even in the German military tradition. tending them a decency, extending an op­ I am frank to say it always annoys me portunity which hasn't been customary to gready to hear the American or the British extend before. You will see that the Tri­ or the French military profession compared bunal in several instances, particularly with to the' German of World War II when I the naval officers, weighed their arguments know the record of what the German has and gave them weight, and gave them sent­ done. A great many people have said, "Well, ences proportionate to the lesser degree guilt you have set up a rule that means that if we they found. lose a war we can be tried." That is true, Instead of fearing the fact that you might gentlemen. If you lose a war I think you have a trial if you lose. a war-and I hope will be lucky even to be tried. These men to God you never will-I think the military have had what they never gave anybody profession ought to feel grateful that here­ else; they have had a chance to be heard, after if this precedent is followed men will 1 and the judgment shows that the Tribunal not be shot merely because they have lost a has considered most carefully every argument war; they will be brought in, given an op­ they can make for their individual innocence, portunity· to expla;in 'their relations and posi­ that is, the- opportunity was given to them tions, and at least before they are executed . which was never given to men in their posi­ will have had an opportunity to be heard. tions before. The precedent we have set is That is something in advance of the art.