Nuremberg Trial Transcripts

CENTER FOR HUMAN RIGHTS & GENOCIDE STUDIES COLLECTIONS

NUREMBERG TRIAL TRANSCRIPTS | Nazi Occupation of Norway

Closing Statement of the High Command Case

10 Aug. 48-M-BK-1 & 2-1-Arminger (Int. Weber)
Court V, Case 12

THE MARSHAL: The Honorable, the Judges of Military Tribunal V.

Military Tribunal V is now in session. God save the United States of America and this Honorable Tribunal.

There will be order in the Court.

THE PRESIDENT: Mr. Marshal, are all the defendants present this morning?

THE MARSHAL: May it please Your Honors, all the defendants are present in the Courtroom with the exception of defendants Hollidt and Sperrle, who are absent, due to illness.

THE PRESIDENT: The orders hereto fore made with respect to the absence of these defendants, these orders will be continued in force.

Are there any other matters of course?

If not, then the Tribunal understands that we are ready for the argument of the prosecution in this case. The prosecution may proceed with its argument.

BRIGADIER GENERAL TAYLOR: Mr. President, Members of the Tribunal--

THE PRESIDENT: General Taylor.

BRIGADIER GENERAL TAYLOR: In summing up at the conclusion of this long and profoundly important trial, the prosecution is anxious to observe the utmost economy of words and means. The burdens which this trial has imposed, on the Tribunal and counsel for the prosecution and defense alike, have been very heavy. The record of the testimony is lengthy, and the documentary exhibits are voluminous; the analysis of the entire record is formidable undertaking. On the part of the prosecution,

9505

10 Aug. 48-M-BK-1 & 2-2-Arminger (Int. Weber)
Court V, Case 12

we intend to embody our detailed analysis of the record, and our summation of the evidence as it relates to each defendant, in the briefs which we will file. It is our plan to file briefs with respect to each defendant covering the charges under Counts Two and Three of the Indictment, and over-all brief under Count One of the Indictment, and in this brief to include a summation of the evidence under Count One relating to each defendant.

In this oral summation, accordingly, we do not propose to deal exhaustively with each charge of the Indictment nor with each defendant. To undertake a full and detailed exposition of this sort would, we think, prolong this statement unnecessarily and needlessly duplicate much of what will appear in our briefs. Today we propose only to deal, as compactly as possible, with some of the more salient features of this trial and to endeavor to achieve a synthesis and emphasis which will be helpful to the Tribunal in striking a final balance.

Several defenses which have been urged in this case are common to nearly all of the trials which have been held in Nurnberg [sic]. For the most part, these defenses have been argued on numerous occasions by both prosecution and defense, and have been determined and re-determined in a succession of judgments. With these defenses, we do not propose to deal at length again on this occasion. For example, counsel for the defendant Leeb, in his opening statement, challenged the entire concept of the crime against peace as invalid on the basis that it is ex post facto law.¹ As to this argument, the prosecution finds itself quite unable and, indeed, feels it quite unnecessary, to add anything to what it has urged on numerous prior occasions or to what has been set forth

1. Opening Statement of Dr. Hans Laternser, p. 30.

9506

10 Aug. 48-M-BK-1 & 2-3-Arminger (Int. Weber)
Court V, Case 12

in the judgment of the International Military Tribunal and the judgments of Military Tribunals III and VI in the Farben case and the Krupp case. Likewise, it has been repeatedly suggested that the so-called defense of "superior orders" is a complete bar to the prosecution of these defendants. This argument, also, has been extensively briefed and argued in all the previous Nurnberg [sic] trials, and has been discussed and rejected in the judgments. We will have considerable to say concerning the extent to which this plea should be given weight by way of mitigation, but we do not propose to deal with it again as a defense. On such matters, we will content ourselves by submitting appendices to the Court containing references to or quotations from the relevant portions of previous judgments.

We will deal first with the charges in Counts One and Four of the Indictment relating to the crime against peace, which the International Military Tribunal described as ¹ "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole". Similarly, Presiding Judge Anderson, in his concurring opinion in the Krupp case, declared ² "that aggressive war is the supreme crime and no penalty is too severe for those who are responsible for it". And Judge Wilkins, in his special concurring opinion in the same case, stated: ³

"The accusation to have committed a crime against peace is the gravest that can be raised against any individual. It transcends any other crime, as far as regards the sinister character of the

1. Vol. I, Trial of the Major War Criminals, p. 186

2. Concurring Opinion of Judge Anderson, in United States v. Alfried Krupp (Case No. 10), p. 1-2.

3. Special Concurring Opinion of Judge Wilkins, in United States v. Alfried Krupp (Case No. 10), p. 38.

9507

10 Aug.-48-M-BK-1 & 2-4-Arminger (Int. Weber)
Court V, Case 12

criminal intent, the amount, magnitude and duration of harm and evil which it necessarily involves and the disregard for the sufferings of persons and entire nation, including the wrongdoer's own fellow-citizens and own country."

The general principles to be applied in determining the built [sic] or innocence of the individual defendants in this case are principles well-known and generally accepted in the penal law systems of civilized nations generally. The most elementary and basic prinicple is that original guilt always requires two elements - action and state of mind. Both are essential. The fact that a man thinks, desires, or concludes is not in itself criminal, no matter how vicious or depraved these thoughts, desires, or conclusions may be. Nor is an act, standing alone, ordinarily to be judged criminal, regardless of the actor's concomitant state of mind or knowledge.

That this basic principle is applicable in the field of international penal law, just as in domestic penal law, is abundantly apparent from the judgment of the International Military Tribunal and the judgments in the Farben and Krupp cases. Thus, with respect to the necessary element of "action" or "participation", in the case before the IMT the defendant Kaltenbrunner was acquitted of the charge of planning and preparing aggressive war because the evidence against him was not thought to "show his direct participation in any plan to wage such a war."¹ The defendant von Shirach was acquitted of the same charge because "it does not appear....that he participated in the planning or preparation of any of the wars of aggression."² And the defendant Schacht was acquitted of part of the charge of conspiracy to wage aggressive war because "his partipation

1. Vol. I, Trial of the Major War Criminals, p. 291.

2. Idem, p. 318

9508

Aug. 10-48-M-BK-1 & 2-5-Arminger (Int. Weber)
Court V, Case 12

in the occupation of Austria and the Sudetenland....was on such a limited basis that it does not amount to participation in the common plan."¹ With respect to the requirement of "knowledge", or "state of mind, we find that the defendant Streicher was acquitted by the IMT because "there is no evidence to prove that he had knowledge' of Hitler's plans.² The same is true of the defendants Fritzsche (for lack of showing "that he was informed of the decisions taken")³ and Bormann (for lack of showing "that Bormann knew of Hitler's plans to prepare, initiate, or wage aggressive wars").⁴ And, apart from Austria and the Sudetenland, the acquittal of Schact was also expressly based on lack of knowledge:

"The case against Schacht, therefore, depends on the inference that Schacht did in fact know of the Nazi aggressive plans....The Tribunal has...come to the conclusion that this necessary inference has not been established beyond a reasonable doubt."

The Krupp and Farben judgements follow the IMT decision in importing into international penal law, with respect to crimes against peace, this dual requirement of participation and knowledge. Thus, in the Farben judgment, the IMT decision is construed as supporting a finding of guilt "only where the evidence of both knowledge and active participation was conclusive".⁶ Judge Anderson, in his concurring opinion in the Krupp judgment, expressed

1. Vol. I, Trial of the Major War Criminals, p. 309.

2. Idem, p. 302.

3. Idem, p. 338.

4. Idem, p. 339.

5. Idem, p. 310.

6. United States v. Krauch (Case No. 6), p. 29

7. Concurring Opinion of Judge Anderson, United States v. Alfried Krupp (Case No. 10), p. 47.

9509

Aug. 10-48-M-BK-1 & 2-6-Arminger (Int. Weber)
Court V, Case 12

"The requisite knowledge, I think, can be shown either by direct or circumstantial evidence...Such knowledge being shown, it must be further established that the accused participated in the plan...."

Judge Wilkins' opinion is to the same effect.¹ He said:

"The principles of criminal liability applicable with respect to the Crime Against Peace are the same elementary and basic principles applicable generally with respect to other crimes. The basic principle is that criminal guilt requires two essential elements, namely, action constituting a participation in the crime, and criminal intent."

The observance of these principles is especially important in connection with the charge of aggressive war. The concept of the crime against peace is of grave import to the world and every nation in it, and we must insure that the doctrine is neither extended beyond the bounds of reason, justice, and common sense, nor contracted into a meaningless legal stereotype. The elementary legal requirement that both participation and knowledge be clearly established is the best safeguard against killing off the concept of the crime against peace either by dropsy or malnutrition. It will benefit no one, least of all the prosecution, to urge a definition of the crime against peace which would sweep within its purview thousands of more or less ordinary mean and women. The prosecution would be the last to suggest a rule which would incriminate the ordinary soldier whose participation in those gigantic ventures was infinitesimal, or anyone who lacked the intelligence or opportunity to realize the aggressive character of the wars of conquest launched by the Third Reich.

But by the same token we must not adopt a standard which would exculpate those whose participation and knowledge are clearly established. It is both unnecessary and impossible, and indeed it would be presumptuous, to attempt any ultimate

1. Special Concurring Opinion of Judge Wilkins, United States v. Alfried Krupp (Case No. 10), pp. 38-39.

9510

10-Aug.-48-M-BK-1 & 2-7-Arminger (Int. Weber)
Court V, Case 12

detailed statement of what must be shown by way of participation and knowledge in order to establish guilt on the charge of committing crimes against peace. It is the very essence of "customary" or "common" law, such as international penal law is, to bring about the refinement and perfection of legal concepts in application case by case. As to the requirement of "participation", we suggest that it is necessary to establish substantial activity in a responsible capacity, directly connected with building up the power of a country to wage war, or with the actual waging of war. As to "state of mind", we believe that there must be showing of knowledge that military power would be used to carry out a policy of conquest by war or threat of war. When we speak of "knowledge", we mean knowledge based on information of such amount and kind as must have brought conviction to a man in the position and circumstances of the defendant. We submit that these standards are as precise as general standards in the law can ever be, and that they are conservative in their scope.

We have stressed these legal requirements because we believe them fundamental to a wise and just application of the concept of crimes against peace. We think that the evidence in this case fully meets these requirements, and is more than adequate to establish guilt beyond a reasonable doubt. And it will greatly aggravate the risks to which civilization stands exposed - grave indeed as they are now - if this concept is withered at the roots, by the exoneration of those who are truly guilty of this terrible crime.

I come now to Count One and Count Four of the Indictment in this case each of which embodies a charge of the commission of crimes against peace as defined in Par. 1 (a) of Article II of Control Council Law No. 10. Count One charges

9511

10-Aug.-48-M-BK-1 & 2-7-Arminger (Int. Weber)
Court V, Case 12

the initiation of invasions and wars of aggression in violation of international law, including the planning, preparation, initiation, or waging of wars of aggression or wars in violation of international agreements. Count Four charges the defendants with participating in a common plan or conspiracy for the accomplishment of the matters charged in Count One. Count One of the Indictment in this case corresponds, in general, to Count Two of the Indictment before the International Military Tribunal; Count Four of the Indictment in this case corresponds to Count One of the Indictment before the IMT. Count One of of the Indictment in this case corresponds to Count One of the Indictments in the Krupp and Farben cases, and Count Four of this Indictment corresponds to Count Four in the Krupp case and Count Five in the Farben case. The relation - involving both differences and similarities - between the charge of planning of waging aggressive wars on the one hand, and conspiracy to that end on the other hand, has been discussed or touched on in the IMT, Krupp and Farben judgments, in numerous arguments before the Nurnberg Tribunals, and in many speeches and articles concerning the Nurnberg trials.

The classical definition of conspiracy at English common law is that it is a confederation to effect an unlawful object, or to effect a lawful object by unlawful means.¹

Within the scope of this definition, conspiracy is little more than an elaboration of the of the law of attempts, in cases where the conspiracy was unsuccessful in attaining its object, or of the law of principals and accessories and accomplices, if the conspiracy succeeded in attaining an unlawful object. Within this sphere, the law of conspiracy

1. Vol. II, Wharton's Criminal Law, (12th Ed.), p. 1853, and cases there are cited.

9512

10-Aug.-48-M-BK-1 & 2-9-Arminger (Int. Weber)
Court V, Case 12

is, in essence, merely another manifestation of the problem, common to all legal systems, of how closely or in what way an individual must be connected with a crime in order to render him criminally responsible.

It should be noted that the mention of "conspiracy" in Paragraph 1 (a) of Article II of Control Council Law No. 10 is not the only provision of Law No. 10 dealing with this question of the degree of connection with crime. Paragraph 2 of Article II is solely concerned with this same question and declares that a person is to be deemed guilty if he was a "principal" or an "accessory", or was connected with the crime in certain other specific respects. This paragraph does not employ the word "conspiracy", but its scope is, we suggest, at least as broad as that of the doctrine of conspiracy.

In dealing with the charge of conspiracy in Count Four of this Indictment, therefore, we are dealing only with the question of what degree of connection with the crime against peace a defendant must be shown to have had in order to render him criminally liable. In this field, Anglo-Saxon jurisprudence uses the terminology of principals and accessories, accomplices and confederates, conspiracies and attempts. In other judicial systems, these words and other words are used. There are some differences between the various systems, but the basic purpose of these concepts is common to all systems.

The distinctions and subtleties which have been woven around the concepts of attempt, necessary, and conspirator in Anglo-Saxon law are somewhat refined and surely there is much overlapping, as has been pointed out in a leading text on Anglo-Saxon criminal law.¹ Judge Anderson, in his

1. Vol. II, Warton's Criminal Law (12th Ed.), p. 1861.

9513

10-Aug.-48-M-BK-1 & 2-10 Arminger (Int. Weber)
Court V, Case 12

concurring opinion in the Krupp case, observed that:¹

"Conspiracies differ from attempts only in that in the former it is not necessary that the act of the accused shall approach as near to the consummation of the criminal objective as in the latter and in conspiracy, as distinguished from attempt, two or more persons are necessarily involved."

Where, as in this case, many more than two persons are involved and the criminal objective was actually consummated, the distinction between criminal guilt as a conspirator, or as a principal, accessory, or confederate, becomes well-night imperceptible.

Is there, then, any real distinction between the charges in Counts One and Four of this Indictment? Judge Anderson has expressed the view that the offense of "conspiracy" is identical with the offense of "planning, preparation, or initiation" of aggressive war, but that "waging" is a distinct offense. As he put it:²

"As already pointed out, the IMT seems to have regarded the 'planning, preparation, initiation and waging' of aggressive wars as constituting two separate offenses, one consisting of the acts of 'planning, preparation and initiation', and the other of 'waging' aggressive war. To repeat, the offense of planning, preparation and initiation of aggressive wars is, in practical effect, the same as the conspiracy."

Very likely Judge Anderson was led to this conclusion by the circumstance that the IMT acquitted the defendant Doenitz of conspiracy to wage aggressive wars, and expressly found that he did not plan, prepare, or initiate such wars, but nonetheless convicted him of wagon aggressive wars.³ And, at first glance, one might find further support for Judge Anderson's conclusion in the following language from the IMT judgment:⁴

1. Concurring opinion of Judge Anderson in United States v. Alfried Krupp (Case No. 10), p. 36

2. Idem, p. 57.

3. Vol. I, Trial of the Major War Criminals, p. 310.

4. Idem, p. 224.

9514

10-Aug.-48-M-BK-1 & 2-11 Arminger (Int. Weber)
Court V, Case 12

"Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offense as planning, preparation, initiation, or waging of a war of aggression ' or participation in a Common Plan or Conspiracy for the accomplishment....of the foregoing.' The Indictment follows this distinction. Count One charges the Common Plan or Conspiracy. Count Two charges the planning and waging of war. The same evidence has been introduced to support both Counts. We shall therefore discuss both Counts together, as they are in substance the same. The defendants have been charged under both Counts, and their guilt under each Count must be determined."

Indeed, this language on its face seems to go even further than the Doenitz decision, and to remove the distinction between the charge of conspiracy and the charge of "waging" aggressive war.

But, despite the language quoted above, when it came to determining the guilt or innocence of the individual defendants, the IMT came to very different conclusions under Count One of that Indictment - charging conspiracy - than it did under Count Two, which charged with the planning, preparation, initiation and waging of aggressive wars. Eight defendants were convicted under Count ONe, charge for conspiracy, and fourteen were acquitted. Twelve defendants were convicted under Count Two. What a judgment actually stands for is to be determined much more by what it finally holds than by two or three sentences taken from an opinion 170 pages long. And the actual holdings of the IMT judgment show that the IMT treated the charge of conspiracy very differently from the charge of planning and waging aggressive war. Nor do the actual holdings conform any better to Judge Anderson's conclusion that "waging" is to be treated separately, but that "planning, preparing, and initiation of aggressive wars" is, in practical effect, the same as the conspiracy.

9515

10 Aug.-48-M-BK-1 & 2-12-Arminger (Int. Weber)
COURT V, Case 12

This is clearly shown by the decision with respect to the defendant Funk, who was acquitted on the charge of conspiract, but was nevertheless convicted on the charge of planning and preparing aggressive war. The judgment with respect to Funk stated that:

"Funk....took office as Minister of Economics and as Plenipotentiary for War Economy in early 1938, and as President of Reichsbank in January 1939......

Funk became active in the economic field after the Nazi plans to wage aggressive war had been clearly defined.....On 30 May 1939, the Under Secretary of the Ministry of Economics attended a meeting at which detailed plans were made for the financing of war.

On 25 August 1939, Funk wrote a letter to Hitler expressing his gratitude that he was able to participate in such world shaking events; that his plans for the 'financing of the war', for the control of wage and price conditions and for the strengthening of the Reichsbank had been completed; and that he had inconspicuously transferred into gold all foreign exchange resources available to Germany. on 14 October 1939, after the war had begun, he made a speech in which he stated that the economic and financial departments of Germany, working under the Four Year Plan, had been engaged in the secret economic preparation for war for over a year.

Funk participated in the economic planning which preceded the attack on the USSR. His deputy held daily conferences with Rosenberg on the economic problems which would arise in the occupation of Soviet territory. Funk himself participated in planning for the printing of ruble notes in Germany prior to the attack, to serve as occupation currency in the USSR. After the attack he made a speech in which he described plans for aggressive war....He did, however, participate in the economic preparation for certain of the aggressive wars, notably those against Poland and the Soviet Union, but his guilt can be adequately dealt with under Count Two of the Indictment."

The Tribunal, the IMT, proceeded to acquit Funk of the charge of conspiracy embodied in Count One, but convicted

1. Vol. I, Trial of the Major War Criminals, p. 304-305.

9516

10 Aug.-48-M-BK-1 & 2-13-Arminger (Int. Weber)
Court V, Case 12

him under Count Two, and the quotation above shows that it was for planning and preparing aggressive wars. Thus, we submit, clearly establishes that the IMT regarded the evidence against Funk as insufficient to convict him on the charge of conspiracy but sufficient to convict him on the charge of planning and preparing aggressive war, and this decision is therefore inconsistent with Judge Anderson's view that "planning, preparation and initiation of aggressive wars is, in practical effect, the same as the conspiracy". To the same effect is the IMT judgment on Funk with respect to the defendant Frick.¹

The reason why the IMT construed the concept of "conspiracy" more narrowly than the concept of "planning, preparing, initiating and waging" is clear, I think, if we keep in mind that in these proceedings we are applying international penal law, and that we must not approach these problems solely from the standpoint of any single judicial system. During the last century, continental jurists have regarded the concept of conspiracy as somewhat dangerous and, on the whole, unnecessary in view of the broadening of the concept of attempts. Thus, "conspiracy (Komplott), as a distinct offense, was stricken from the revised codes of many of the German states during the 19th century".² Many French jurists also look upon the doctrine of conspiracy with disfavor. The French member of the IMT, Professor Donne-dieu de Vabres, has stated:.³

"The general notion of conspiracy is peculiar to British law. The indictment includes in this term

1. Vol. I, Trial of the Major War Criminals, p. 299-300.

2. Vol. II, Wharton's Criminal Law (12th Ed.), p. 1861.

3. Donnedieu de Vabres, Le Process de Nuremberg, unpublished lecture, spring of 1945, to the Associations des Etudes Internationales et Criminologiques.

9517

10 Aug.-48-M-BK-1 & 2-14-Arminger (Int. Weber)
Court V, Case 12

the entire Hitlerian enterprise leading to the seizure of power and to aggressive war.....

The danger of such incrimination is to open the door to despotism. The charge of conspiracy is the favorite weapon of tyranny."

9518

10 August 48 -M-SW-3-1-Goldberg (Weber)

Court 5, Case 12

The above considerations, we suggest fully explain why the IMT applied the concept of "conspiracy" in international penal law much more narrowly than the concept of "planning, preparing, initiating and waging". Under the IMT holdings, it appears that, in order to be guilty of conspiracy, the defendant must have occupied a more prominent role, or have been in closer contact with the Chief of State, than is necessary in the case of "planning, preparing, initiating and waging". Thus, in the case of the defendant Funk, the IMT found that he was "not one of the leading figures in originating the nazi plans for aggressive war."¹ And with respect to the defendant Frick, who was also acquitted of conspiracy but convicted of "planning, preparing, initiating, and waging", the IMT stated:²

The evidence does not show that he participated in any of the conferences at which Hitler outlined his aggressive intentions. Consequently the Tribunal takes the view that Frick was not a member of the common plan or conspiracy to wage aggressive war as defined in this Judgment.

It is too soon to tell what place the doctrine of conspiracy will eventually occupy in international penal jurisprudence. In the IMT judgment, the views of the continental jurists prevailed. mr. Henry L. Stimson criticized the IMT judgment on precisely this ground:³

If there is a weakness in the Tribunal's findings, I believe it lies in its very limited construction of the legal concept of conspiracy. That only eight of the 22 defendants should have been found guilty on the count of conspiracy to commit various crimes involved in the indictment seems to me surprising. I believe that the Tribunal would have been justified in a broader construction of the law of conspiracy....

In his opinion on the Krupp case, Judge Anderson came to a contrary conclusion:⁴

No less authority than mr. Henry L. Stimson, one of the greatest American statesmen and lawyers, has regretted that the IMT gave a restricted construction to the provisions of the London Charter relating to the crime of conspiracy, but with due deference to all concerned, I have felt bound to disagree.

1. Vol. I, Trial of the Major War Criminals, p. 305

2. Idem., p. 299.

3. Henry L. Stimson, "The Nuremberg Trial: Landmark in Law, Vol 25 "foreign Affairs" No. 2 (January 1947), p. 187.

4. Concurring Opinion of Judge Anderson in United States v. Alfried Krupp (Case No. 10), p. 72.