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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,

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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.

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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.

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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

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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.

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"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.

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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

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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.

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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.

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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.

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"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.

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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.

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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.

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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."

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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.

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In the present case, at least as to most of the defendants, the distinction drawn by the IMT between "conspiracy" and "planning, preparing, initiating, andwaging [sic]" is, we believe, academic, for most of the defendants attended one or more of the Hitler conferences which Funk and Frick did not attend.  As is apparent from the IMT judgment, attendance at these conferences, or other opportunity to learn at first hand of Hitler's intentions, was the test generally utilized by the IMT to determine whether an individual defendant was guilty of conspiracy.  Consequently, most of these defendant would fall within the more limited concept of conspiracy adopted by the IMT and Judge Anderson.

Before leaving the subject of conspiracy, a special word should be added with respect to the invations of Austria and Czechoslovakia.  In the indictment before the IMT, these invasions were charged as criminal aggressive acts committed in the course of the conspiracy denounded [sic] in Count One, but were not charged as elements of "planning, preparing, initating, and waging" in Count Two.  Consequently, although seven of the eight defendants ¹ convicted of conspiracy were convicted in part on the basis of the invasions of Austria and Czechslovakia, none of the convictions under Count Two were or could have been based on the Austrian or Czechoslovakian invasions.  Thus, although the defendant Kaltenbrunnen was found to have been connected with the invasion of Austria, the IMT pointed out that "the Anschluss, although it was an aggressive act, is not charged as an aggressive war", ²  and the same observation was in the case of Schacht.³

In the present case, however, the invasions of Austria and Czechoslovakia are not only charged as components of the conspiracy under Count Four of this indictment, but also as invasions and aggressive acts under Count One.  And the Imt found that the seizures of Austria and Czechoslovakia were "invasions" and "acts of aggression"⁴ and expressly held that the occupation of Austria was a "crime within the jurisdiction

1.  All but Rosenberg.

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

3.  Idem., p. 309.

4.  Idem., pp. 192, 194, and 198.

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of the Tribunal".¹  Consequently, whereas the IMT was obliged under the indictment before it to treat the invasions of Austria and Czechoslovakia only under the charge of "conspiracy", no such necessity exists under the indictment in this case.

C.  The Responsibility of Military Leaders for Crimes Against Peace.

MR. NIEDERMAN:  Throughout the proceedings before this Tribunal and before the IMT, the defense has contended that the military leaders, by virtue of the very nature of their profession, are not susceptible to prosecution for crimes against peace and war crimes.  The reasoning in support of this position has been stated in various ways.  Sometimes it takes the form of the argument that the doctrine of superior orders is a complete defense to the prosecution of a military leader.  Before the IMT, Dr. Laternser declared that the German military leaders were being prosecuted because they served their country as soldiers, and argued that a military man "is not allowed to decide for himself whether the cause for which he fights is good or bad", and that it is "his duty to obey and to ask no questions.²  Counsel for Leeb took the same position before this Tribunal.³  In this respect, counsel went further than the defendant Leeb himself, who agreed that the acts of a soldier, as of anyone else, must be limited by his own "human conscience", and that a soldier is underno [sic] duty to commit crime.⁴

This argument of military immunity, which would reduce military men to a sort of sub-human status as men incapable of exercising moral judgment on their own behalf--no more answerable to the laws of God and man than animals and small children--has, fortunately, found no acceptance in international penal law.  The same arguments were made on behalf of defendants Keitel, Jodl, Doenitz, and Raeder before

1.  Vol. I, Trial of the major War Criminals, p. 318.

2.  Plea before the IMT by Dr. Hans Laternser, p. 3.

3.  Opening Statement of Dr. Laternser, p. 41.

4.  Testimony of Fieldmarshal Leeb before the Commission of the IMT, pp. 1615-16.

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the IMT and were unqualifying rejected.  Keitel, Jodl, Doenitz, and Raeder were all found guilty of crimes against peace, in addition to war crimes and crimes against humanity.  Before the Nurnberg Military Tribunals established under Control Council Law No. 10, military leaders were held answerable under the laws of war and convicted of war crimes by Tribunal V in the so-called "hostage" case (United States v. List, et al., (Case No. 7), as well as in the Medical case and the Milch case.¹  The responsibility of military leaders for crimes against peace has not been involved in any of the previous trials under Law No. 10, but both the Farben and Krupp judgments indicate quite clearly that the military leaders are answerable, just as is anyone else, if there [sic] guilt is established by the evidence.  Thus, in the judgment of Tribunal VI acquitting the Farben defendants on the charge of crimes against peace, the Tribunal stated:²

The defendants now before us were neither high public officials in the civil government nor high military officers.  Their participation was that of followers and not leaders.

And Judge Anderson, in his concurring opinion dismissing the charges of aggressive warfare against the Krupp defendants, stressed that the defendants in that case "were private citizens and noncombatants", and that none of them had any "control over the conduct of the war or over any of the armed forces; nor were any of them parties to the plans pursuant to which the wars were waged".³

If these remarks are dicta, the judgment of the IMT is not.  The decisions as to Keitel, Jodl, Doenitz and Raeder categorically and unequivocally establish that military leaders, just as other men, are bound by the obligations of international law and can be prosecuted for violations thereof, whether the charge be the commission of crimes against peace or of crimes against the laws and customs of war.  Indeed, the IMT went much farther, and squarely expressed the view that many military leaders

1.  United States v. Karl Brandt, et al., (Case No. 1); United States v. Erhardt Milch (Case No. 2).

2.  United States v. Carl Krauch, et al., (Case No. 6); p. 63.

3.  Concurring opinion of Judge Anderson in United States v. Alfried Krupp, et al., (Case No. 10), p. 65.

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other than the four whom it convicted as individuals, must also have been guilty of crimes against peace and war crimes.  The IMT declined to render a declaration of criminality against the General Staff and Hi Command on the ground that it was not an "organization" or "group" within the meaning of that word as used in the London Charter, but in so doing the IMT declared:¹

Although the Tribunal is of the opinion that the term "group" in Article 9 must mean something more than this collection of military officers, it has heard much evidence as to the participation of the officers in planning and waging aggressive war, and in committing War Crimes and Crimes against Humanity.  This evidence is, as to many of them, clear and convincing.

******

Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should escape punishment.

We may take it as established, then that the guilt or innocence of these defendants under Counts One and Four of the indictment is to be determined on the basis of the same principles as are applicable in the case of other defendants charged with the planning and waging of aggressive war.  We come back once again to the two necessary elements of act and state of mind.  In order to establish their guilt, it must be shown that they carried on substantial activity in a responsible capacity in connection with the planning or waging of war.  It must be shown that they carried on such activity with the knowledge that the military power would be used, or was being used, to carry out a policy of conquest by means of aggressive wars or the threat of aggressive wars.

In order to determine whether the element of "participation" has been sufficiently established against any given defendant, it is necessary to establish the position or positions which be occupied at the time the aggressive wars were being planned and waged, and the nature and scope of the authority, responsibility, and duty which attached to his position or positions.  In this connection, we suggest, the defendants rank is but one factor to be considered among numerous others.  To be sure, it is

1.  Vol. I, Trial of the Major War Criminal, pp. 278-79.

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Court 5, Case 12

ordinarily true that a General discharges more important and responsible functions than a Major, that he is in a better position to influence the course of events, and that he is likely to have better access to information.  But this is by no means universally true.  A young staff officer of relatively junior rank at OKW or OKH, for instance, might well have much better information and far more actual influence in planning operations than a very much more senior officer in a routine training or administrative position.  In the field, the Chief of Staff of an Army or Army Group would ordinarily have responsibilities and information of far broader scope than the commander of a division, though the latter might well be of a senior rank.  In short, the matter of rank should not be altogether overlooked, but it should not be given more weight than the circumstances in any given case warrant.

Similarly, as a general and abstract proposition of international penal law, we can not gauge the question of participation solely by the size of the formation which an officer commands.  In wars between the major military powers the commander of a battalion, regiment, brigade or even division may not loom very large.  But in wars between the small countries, a battalion or even a company may be the strategic equivalent of a division.  Analogously, the role of the German military leaders in the conquest of Denmark is not to be lightly pushed aside merely because the Danish army was small and therefore very few German troops had to be employed to effect the conquest of Denmark.

In short, in determining such questions as the degree of "participation", or whether the information available, to a man must have been sufficient to bring conviction to his mind, we must apply the standards of reasonable man to the circumstances in watch case as they appear from the evidence.

D.  The Evidence Relied Upon by the IMT: Keitel, Jodl, Raeder and Doenitz.

Before turning to the evidence with respect to the defendants in this case, it will be profitable to look once more at the opinion of the IMT.  By examining the judgments of the IMT against the military

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defendants in that case -- Keitel, Jodl, Raeder and Doenitz -- we may ascertain what facts and circumstances were held to constitute the necessary evidence with respect to participation and knowledge in order to support the verdict of guilty which was rendered as to all four of those defendants.  

There was, of course, a fifth military defendant tried by the IMT -- Hermann Goering, who was the Commander-in-chief of the Luftwaffe.  Goering, however, was not a career soldier, and his offices and responsibilities under the Third Reich were of so varied a nature that his inclusion with Keitel, Jodl, TRaeder, and Doenitz would not be illuminating.  We may note, however, that the IMT, in finding him guilty of crimes against peace, stressed the role which the Luftwaffe played in the subjugation of Czechoslovakia, Goering's meetings with Hitler and the other military leaders on 23 May 1939 and 22 August 1939 which preceded the attack on Poland, his participation in planning the invasion of Norway, and his status as Commander-in-Chief of the Luftwaffe in all the aggressive wars.

Keitel, as Chief of the OKW, had no command authority over the three branches of the Wehrmacht, but was in effect the Chief of Hitler's own military staff, which assisted and advised the Fuehrer in the preparation of his directives and coordinated the operations of the Army, Navy, and Air Force.¹  Keitel was held to have been connected with all the invasions and aggressive wars involved in the IMT case.  With respect to Austria, Keitel -- together with Reichenau and the defendant Sperrle -- attended the conference with Schuschnigg in February 1938, in order to make a "military demonstration".  When Schuschnigg called for a plebiscite on the question of Austrian independence, Keitel participated in the improvised military arrangements for the march into Austria.  During the ensuing months, Keitel signed or initialed many of the OKW directives and memoranda in the so-called

1.  Vol. I, Trial of the Major War Criminals, p. 288*89.

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Court V, Case XII

"Fall Gruen", the plan for the military destruction of Czechoslovakia.  After Munich, he initialed other directives for the conquest of the remainder of Czechoslovakia.  Keitel was present at the conference with Hitler on 23 May 1939, when the Fuehrer announced his intention "of attacking Poland at the the first suitable opportunity", and signed or initialed various of the directives in connection with "Fall Weiss", the plan for the military destruction of Poland.  The plane for the invasion of Norway and Denmark were originated by the German Navy, and were finally completed by the special inter-service staff under Keitel's supervision.  Keitel signed various directives for the attack in the West, in violation of the neutrality of Belgium, HOlland, and Luxembourg.  He initialed many directives in "Fall Barbarossa", the plan for the military destruction of the U.S.S.R., and attended Hitler's conference with the military leaders on 14 June 1941, just before the attack.

Jodl was Section Chief in the OKW in charge of operational planning.¹  The evidence relied upon by the IMT to support his conviction in general parallels the evidence against Keitel.  Jodl, however, was assigned to a minor troop command from September 1938 to September 1939, and accordingly was not found to have been involved in the occupation of Bohemia and Moravia or the attack against Poland.  He participated in improvising the plans for the invasion of Austria, and initialed many of the directives and memoranda in "Fall Gruen".  He played a part in planning the invasion Norway and Denmark and the attack in the West, and continued his planning activities in connection with the invasions of Greece, Yugoslavia, and the Soviet Union.  He was present at the conference between Hitler and the military leaders on 14 June 1941, just before the Russian campaign.

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10 August-M-LU-4-3-Goldberg (Int. Weber)
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Raeder was the Commander-in-Chief of the German Navy from 1928 to 1943.¹  In support of his conviction on the charge of crimes against peace, the IMT found him responsible for re-armament of the German Navy in violation of the Treaty of Versailles.  He was present along with Goering, on Fritsch, and others, at the conference in November 1937 at which Hitler outline [sic] his plans for the eventual occupation of Austria and Czechoslovakia, and received various of the directives in connection with "Fall Gruen".  He likewise received directives in connection with the attack against Poland, and directed the supporting activities of the navy i connection therewith; he was present at the meetings with Hitler in May and August 1939 at which Hitler announced his intentions.  ON the suggestion of a subordinate, Raeder initiated the idea of invading Norway, and his staff participated through the OKW in developing the plans for the attack on Denmark and Norway.  He received many directives in connection with the wars against Greece, Yugoslavia, and the Soviet Union, and the German Navy lent minor support to these operations.

Doenitz was acquitted on the charge of conspiracy, and his conviction under Count Two of the indictment before the IMT was based on much narrower grounds than in the case of the other three military defendants.²  He was a Rear Admiral in command of the submarine arm of the German Navy when war broke out, but rose rapidly and succeeded as Commander-in-Chief of the Navy in 1943.  He was not present at any of the conferences where Hitler's decision [sic] were announced.  He was convicted of waging aggressive war apparently upon the basis that the U-boat arm was the most important part of the German fleet, and that he received sufficient advance information in order to coordinate submarine operations with the other activities of the Wehrmacht. With respect of the invasion of Norway and Denmark, the IMT

1.  Vol. 1, Trial of the Major War Criminals, pp. 315*16

2.  Vol. 1, Trial of the Major War Criminals, pp. 206, and 310-311.

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10 August-M-LU-4-4-Goldberg (Int. Weber)
Court V, Case XII

emphasized that Doenitz made out the operational orders for the supporting U-boats in March 1940, five weeks in advance of the actual attack.

E. The General Scope of the Evidence Against the Defendants in the Present Case.

If we apply the principles which have been set forth above to the present case, it will appear that the evidence is abundant and more than sufficient to establish and requisite degree of participation and knowledge on the part of these defendants.  Furthermore, in the case of most of the defendants, the evidence is very parallel to and quite as strong as the evidence relied upon by the IMT in convicting Keitel, Jodl, and Raeder.  As to one or two of the defendants -- such as the defendant von Roques -- where the evidence under Counts One and Four fall short of this standard, the proof is nonetheless as strong as or stronger than the proof on the basis of which Doenitz was convicted by the IMT of waging aggressive war.

In terms of the nature of "participation" it will be observed that the thirteen defendants should be divided into two more or less distinct groups.  Four of the defendants -- Schneiwind, Reinecke, Warlimont and Lehmann -- were lending staff officers whose activities were carried on at the very highest levels, the OKW and the OKH.  To borrow a phrase from American military vocabulary, we would say that these four defendants functioned "at War Department level".  The importance of Schneiwind's position position as chief of the Marinekommandoamt and Chief of Staff of the SKL, where he was in charge of all matters pertaining to operations and intelligence, meeds no emphasis.  During the years from 1938 to 1941, when the invasions and aggressive wars were planned and launched, Schniewind's role in planning and guiding the operations of the German Navy as a whole was second only to that of Raeder himself.  With Raeder, he attended three of the four conferences stressed by the IMT at which Hitler outline [sic] his plans, so heavily relied

9528

10 August-M-LU-4-5-Goldberg (Int. Weber)
Court V, Case XII

upon by the IMT in finding Keitel, Jodl, and Raeder guilty of conspiracy to wage aggressive war.  He was active in the invasion of Norway and Denmark, in which the Navy played a major role.  He received the same directives which Raeder received in connection with the wars in which the German Navy played a smaller part.

During the same period, Reinecke and Lehmann were the chiefs of important departments of the OKW.  They were not directly concerned with operations, and did not attend the major meetings which Hitler held with the military leaders, but each within his own sphere -- law, prisoners of war affairs, and other important fields -- was called upon to plan for coming operations, and to issue appropriate directives during the course of the wars and for the occupation of enemy territory.  Thus, in advance of the Russian campaign, Lehmann participated in preparing and distributing the "Commissar Order", and Reinecke made plans for the screening and handling of Russian prisoners of war.  

The defendant Warlimont was fully informed of all operational intentions, and participated actively in the preparation of operational plans, but his activities transcended purely operational matters, and it is safe to say that no defendant in the dock was connected in such a multiplicity of ways with the planning and waging of aggressive war as was Warlimont.  He is a prime example of the fact that the importance of a military leader's activities and the information at his disposal can not be determined merely by his rank.

The other nine defendants were all top level field commanders.  The defendant Sperrle, from the outbreak of the war to August 1944, commanded an Air Fleet (luftflotte), the Air Force equivalent of an

9529

10 August-M-LU-4-6-Goldberg (Int. Weber)
Court V, Case XII

Army Group.  He transferred to the Luftwaffe at about the time of the denunciation of the arms limitation of the Treaty of Versailles in 1935, and, as Commander of the Condor Legion in Spain, commanded the revived air arm of the Wehrmacht in its first combat test.  Sperrle, together with Keitel and Reichenau, participated in the "military demonstration" at the Schuschnigg conference, and Sperrle commanded the Air Force which would have been used for the conquest of Czechoslovakia pursuant to "Fall Gruen".  As Commander of the German Air Forces in the West, Sperrle participated in numerous high-level planning conferences and in the preparation and execution of the invasion of the Low Countries and France.

Of the other eight defendants, all except Roques were top flight Army field commanders who, during the course of the war, commanded Army Groups or Armies.  The overall plans of campaign for Germany's aggressive wars were laid down in directives from OKW and OKH, and their practical application in the field was developed by the Army Group and Army commanders pursuant to these directives, and in consultation with the Commander-in-Chief of the Army and his Chief of Staff.  As is clearly shown by the Halder Diary and a mass of other evidence, the leading figures in the final development of these plans were the Commanders-in-Chief of the Army, von Brauchitssch, and his Chief of Staff, Halder.  During the period from 1938 to June 1941, when the invasions and aggressive wars were being planned and launched, all of these defendants except Reinhardt and Roques were, at one time or another, Commanders-in-Chief or Chiefs of Staff of Armies or Army Groups.  Until the end of 1941, the defendant Leeb, von Rundstedt, and von Bock were the only three Army Group commanders.  The defendant Kuechler, from the very beginning, was the Commander-in-Chief of an Army, and he succeeded Leeb, upon the latter's retirement, as the Commander-in-Chief of an Army Group.  The defendant   

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10 August-M-LU-4-7-Goldberg (Int. Weber)

Court V-Case XII

Hoth was a Corps Commander during the Polish and Western campaigns, but commanded a Panzer Group, the tactical equivalent of an Army, when the Russian invasion was launched.  The defendant Salmuth was the Chief of Staff of an Army Group until May 1941, when he became a Corps Commander.  The defendant Hollidt was the Chief of Staff of an Army until the conclusion of the Polish campaign, at which time he became a Divisional Commander, and succeeded Hoth as the Commander of a Panzer Group a few months after the launching of the Russian invasion.  The defendants Roques and Woehler are charged under Count One only with respect to the aggressive war against the Soviet Union; Woehler was at this time the Chief of Staff of an Army, and Roques was the Commander of an Army Group Rear Area, with the status of a Corps Commander.  Of these defendants, Leeb, Kuschler, Hoth, and Salmuth attended several of

9531

9532

9533

9534

9535

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10 Aug.-M-MW-5-6 (Int.Weber)

COURT V, CASE XII

concentrated on research into family archives and vacations in the mountains, who merely, "took an interest in these preparations", will not withstand a moment's reflection in the light of the record.  Leeb and Halder both testified that Leeb took no part in the military planning on the projected attack, ¹ but the documents in "Fall Gruen" and the testimony of Leeb and Halder on cross-examination show that a special staff was formed in the summer of 1938 to work out the plan of operations for the Czech attack in the sector of the Twelfth Army.  Leeb was, according to his service record, available for service in that very area at that very time, and the special staff was called "Working Staff Leeb".  Halder testified that "Working Staff Leeb" was similar to "Working Staff Rundstedt" which was formed the following year to plan the attack on Poland.²  A memorandum of 23 May 1939 concerning the formation of "Working Staff Rundstedt" states:³  "The 'Working Staff Rundstedt' consists for the beginning--similar to the "Working Staff Leeb' in Munich in 1938--only of three persons."  In 1939 the three persons were Rundstedt, Manstein, and Blumentritt.  Working Staff Leeb was composed of Leeb, Manstein, and Blumenttritt; Manstein was Leeb's Chief of Staff in the Twelfth Army, and Blumentritt was the operations officer.  Manstein, as Leeb's Chief of Staff, attended a meeting of all the Chiefs of Staff with HItler at the Obersalzberg on 10 August 1939 at which the likelihood of intervention by the western powers, and the weaknesses of the so-called "West Wall", flared up sensationally.⁴  Leeb himself testified that, during the August and September, he "continued to participate in the working out of the preparations of the Twelfth Army."⁵

1.  Tr. pp. 2077 and 2436.

2.  Halder, Tr. pp. 2082*83.

3.  388-PS, Pros. Exh. 1048, Bk, XII, p. 69.

4.  1780-PS, Pros. Exh. 1034, Bk. XI, p. 17

5.  Tr. p. 2300.

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10 Aug-M-TB-6-1-Sampson (Weber)

As a result of the Munich Agreement, it was unnecessary to carry out "Fall Gruen".  Leeb led his Army into the Sudetenland and remained there until approximately the middle of October,¹ when he left active duty.  On the 11th of that month, the OKW asked all Army headquarters, including Leeb's, to report "what reinforcements are necessary in the present situation in order to break all Czech resistance in Bohemia and Moravia?"²

Leeb's testimony concerning the outbreak of the war in September 1939 is equally evasive and meretricious.  He stated that he was "in retirement" and "did not participate at all"; that, "as a complete surprise to me", he was called to the meeting with HItler on the Obersalzberg on 22 August 1939; and that from Hitler's remarks he gathered only "the impression that the situation was somewhat similar to the situation which prevailed before the invasion of the Sudetenland and…..that there would be no war".  He says that he based his conclusion upon Hitler's announcement of the non-aggression pact about to concluded with Russia, upon Hitler's "100% assurance" that France and England would not intervene, and Hitler's statement that negotiations with Poland would continue.  He further testified that he commanded Army Group C, with the mission of defending the western front of Germany.³

It is, of course, quite preposterous to imagine that Leeb would have been given such a critical assignment--command of the entire western front--without opportunity being afforded to him to acquaint himself with the forces at his disposal, their equipment and their resources for defense in 

1.  Tr. p. 2444.

2.  388PS, Pros. Exh. 2048, Bk XII, p. 103

3.  Tr. pp. 9301-04.

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10 Aug-M-TB-6-2-Sampson (Weber)

Court V, Case X II

general.  And, once again, the testimony of the defense witness Halder is quite sufficient to demonstrate this absurdity.  Halder testified that an attack from the west had to be anticipated as a strong possibility in the event of a German attack on Poland, that the assignment of protecting Germany's western frontier was given to Leeb, and must have known by then "that the possibility of a military operation in the west existed and was being anticipated and that it was his duty in such a case to protect the West with a minimum of forces".¹  The vital nature of Leeb's role in the West is set forth in a directive for the conduct of the war issued on 31 August 1939, which stated: ²

The Army will hold the Siegried Line (West Wall) and will make preparations to prevent its encirclement in the North by the Western Powers invading Belgium or Dutch territory.  If French forces should enter Luxembourg, the frontier bridges may be blown up.

Leeb's "impression" of Hitler's remarks on the Obersalzberg is equally implausible.  the non-aggression pact with Russia made it more likely, not less likely, that HItler would press home his advantage ruthlessly.  Hitler did indicate a hope that England and France would not intervene, but he gave no "100% assurance", and in fact made it quite clear that he would carry through with his plan for the destruction of Poland regardless of what the western powers might do.  So far from expressing any belief that negotiations with Poland would lead to a satisfactory solution, he told the generals: ³

Poland is in a position in which I wanted her…I am only afraid that at the last moment some schweinehund will make a proposal for mediation.

1.  Tr. p. 2094.

2.  C*1266, Pros. Exh. 1099, Bk. XIII, p. 207.

3.  798-PS, Pros. Exh. 1101, Bk XIII, p. 215.

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10 Aug-M-TB-6-3-Sampson (Weber)

Hitler also made clear his aggressive intentions against the Western powers, and his cynical contempt for any rudiment of morality in international relations: ¹

It was clear to me that a conflict with Poland had to come sooner or later.  I had already made this decision in the spring, by I thought that I would first turn against the West in a few years, and only afterwards against the East.  But the sequence cannot be fixed.  One cannot close one's eyes even before a threatening situation.  I wanted to establish an acceptable relationship with Poland in order to fight first against the West.  But this plan which was agreeable to me, could not be executed, since essential points have changed.

Everybody shall have to make a point of it that we were determined from the beginning to fight the Western Powers. Struggle for life of death…..A long period of peace would not do us any good….Destruction of Poland in the foreground….Even if war should break out in the West, the destruction of POland shall be the primary objective….I shall give a propagandistic cause for starting the war,--never mind whether it is plausible or not.  The victor shall not be asked, later on, whether we told the truth or not.  In starting and making a war, not the Right is what matters, but Victory…..Have no pity.  Brutal attitude….Complete destruction of Poland is the military aim….

1.  Idem., p. 213; 1014-PS, Pros. Exh. 1102, Bk XIII, p. 217.

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10 Aug-M-TB-6-4-Sampson (Weber)

Court V, Case XII

Conviction that the German Wehrmacht is up the requirements.  The start shall be ordered, probably by Saturday morning.

As the IMT found, these records of what Hitler said to Leeb and the other generals show that the final decision for Poland's destruction was reached shortly before 22 August 1939, that a conflict between Germany and the west was unavoidable in the long run, and that although hitler hoped to be able to avoid a simultaneous conflict with Great Britain and France, he fully realized that there was a risk of this happening but it was a risk which he was willing to take.¹

In the last analysis, the best that can be made out of Leeb's story is that he believed that, if Poland yielded to German demands, there would have been no war: "If the Polish Corridor question would have been solved in a manner tolerable for us, then no war would have resulted".²  Halder put it in much the same fashion; according to him the preparations for the invasion of Poland "represented a military means of pressure in order to support his political aims".³  But even Halder admitted that the generals "had some reason to believe that Hitler's intentions were aggressive",⁴ and, in any event, the hope that Poland might succumb to the threat of force without actual fighting is no excuse.  This was held by the IMT very squarely with respect to the defendant Raeder:⁵

The defendant Raeder testified that neither he, nor von Fritsch, nor von Blomberg, believed that Hitler actually meant war, a conviction which the 

1.  Vol. 1, Trial of the Major War Criminals, p. 202.

2.  Tr. p. 2448.

3.  Halder, Tr. p. 2090-91.

4.  Tr. p. 2448.

5.  Vol. I, Trial of the Major War Criminals, p. 191*192.

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10 Aug-M-TB-6-5-Sampson (Weber)

defendant Raeder claims that he held up to 22 August 1939.  The basis of this conviction was his hope that Hitler would obtain a "political solution" of Germany's problems.  But all that this means, when examined, is the belief that Germany's position would be so good, and Germany's armed might so overwhelming that the territory desired could be obtained without fighting for it.  It must be remembered too that Hitler's declared intention with regard to Austria was actually carried out within little over four months from the date of the meeting, and within less than a year the first portion of Czechoslovakia was absorbed, and Bohemia and Moravia a few months later.  If any doubts has existed in the minds of any of his hearers in November 1937, after March 1939 there could no longer be any question that Hitler was in deadly earnest in his decision to resort to war.

In this connection, it is interesting to note that Leeb in his direct testimony did not discuss eht [sic] occupation of Bohemia and Moravia in March 1939; when asked on cross-examination whether he did not regard the events of March 1939 as a breach of the Munich Pact, he replied that he "lived in retirement at that time and kept away from all politics, therefore I did not ponder this question".  THis from a man who had himself led the march intuit he Sudetenland, who was subject to recall in the event of war saw one of Germany's greatest military leaders, and who professes to be deeply interested in questions of morality.

A final word should be said with respect to the fact that Leeb's forces were deployed along the western frontier, and were not engaged on Polish territory.  His counsel has laid

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10 Aug-M-TB-6-6-Sampson (Weber)

Court V, Case X II

great stress upon this circumstance,¹ but in fact it does not touch the issues.  Leeb knew at this time that the attack upon Poland was aggressive,² and it is obvious that Rundstedt and B[e]ck could not have attacked in Poland without Leeb's holding action in the West.  In this respect, Leeb's position was exactly analagous [sic] to that of a bank robber who stands guard at the door to fend of interference by the police while his confederates rob the bank.  It is well settled that such a person is criminally liable as a principal; as has been stated in a leading text in a leading text on criminal law:³

No matter how wide may be the separation of confederates, if they are all engaged in a common plan for the execution of a felony, and all take their parts in the furtherance of a common design, all are liable as principals.

Furthermore, Leeb's position in the West was, fundamentally, no different form that of Doenitz.  German submarine warfare was almost exclusively directed against England and France, and played no part or, at most a very insignificant part, in the fighting with Poland, but this did not prevent the IMT from convicting Doenitz of committing crimes against peace at the very outset of the war:⁴

"Submarine warfare which began immediately upon the outbreak of war, was fully coordinated with the other branches of the Wehrmacht.  It is clear that his U-boats, few in number at the time, were fully prepared to wage war."

The evidence with respect to Leeb's responsibility for the aggressive wars in the West in the spring of 1940 is, if anything, even more conclusive than in the case of 

1.  Opening statement of Dr. Laternser, pp. 33-34.

2.  Tr. p. 2449.

3.  Vol. I, Wharten's Criminal Law (12th Ed.), p. 341.

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

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[....]

10 Aug-M-TB-6-8-Sampson (Weber)

Court V, Case XII

be stinted at the weak spots on both sides of Saarbrueken.  Fuehrer interjected here that his desire to have the main battle position on the commanding ridges on the southern bank of the Saar river was frustrated only by the out-break of the war.

c)  Diversionary attack "Gelb".  Here the assertion is made that diversionary attacks must not be initiated on the Rhine front because of the subsequent attack at the Upper Rhine.  Closing of Swiss border is discussed.

Owing to coal shipments to Italy, the border cannot be closed before the actual start of the attack.....

2)  Generaloberst on Witzleben talks on Operation "Gelb."  Report is accepted without discussion.  In the subsequent discussion on construction of fortifications, the Fuehrer lays great stress on Artillery emplacements…..

3)  Gen. Dollmann speaks briefly on situation at Seventh Army, stressing its deficiencies.  Outlines three crossing operations within Operation "Gelb"….

4)  After that, the Fuehrer speaks about the general situation…..

In short, Leeb participated at the highest level in the planning of aggressive war in the west, and was one of the three chief executors of the aggressive plans.  There is no issue as to knowledge; Leeb admits that he knew of Hitler's aggressive intentions, ¹ and he attended the meeting between Hitler and the military leaders on 23 November 1939 at which Hitler declared:²

I shall attack France and England at the most

1.  Tr. p. 2311-12

2.  Vol. I, Trial of the Major War Criminals, p. 210.

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10 Aug-M-TB-6-9-Sampson (Weber)

favorable and quickest moment.  Breach of the neutrality of Belgium and Holland is meaningless.  No one will question that when we have won.

Leeb has put forth two defenses.  The first is that he joined with the other German generals in opposing Hitler's plan to attack in the west immediately after the Polish campaign in the fall of 1939.  That is quite true, and the record contains a memorandum which Leeb submitted to Brauchitsch in October 1939 urging that it would be wiser for Germany to pursue a waiting policy, and pointing out he undesirable political repercussions which a violation of the neutrality of Holland, Belgium, and Luxembourg would entail.  But all of this is no defense whatsoever.  The aggressive wars in the West were in fact planned, prepared, and waged, and Leeb did in fact knowingly participate.  Before the IMT, the defendants Keitel and Raeder both raised a similar "defense of opposition" but the IMT rightly disallowed it.  Indeed, in a deeper sense Leeb's memorandum to Brauchitsch aggravates his guilt, for it shows that he clearly realized that a violation of the neutrality of Holland, Belgium, and Luxembourg would be looked upon with horror by all neutral states.

In the case of Holland, Belgium, and Luxembourg, Leeb makes the further defense that his troops did not invade those countries, since his entire campaign was fought in France.  This contention, analgous [sic] to the contention that Leeb's troops were never actually on Polish soil, is also stressed by his counsel.  The answer, of course, is the same in the case of the contention about Poland.  Leeb well knew that the entire design and plan of campaign in the West was to overrun the Low Countries and smash the French and British armies.  He confederated with B[e]ck, Rundstadt and others, and is just as 

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10 Aug-M-TB-6-10-Sampson (Weber)

liable for the criminal attacks on Belgium and Holland as are B[e]ck and Rundstedt themselves:

In such cases of confederacy, all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design.

THE PRESIDENT: At this time the Tribunal will be in recess for fifteen minutes.

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10 August 1948-M-ED-8-1-Arminger (Schaeffer)

COURT V, CASE XII

THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: You may proceed, Mr. Rapp.

MR RAPP:  If the Court please, Leeb's criminal responsibility for the invasion of the Soviet Union need not detain us long; the evidence is overwhelming and his attempts at explanation are quite unconvincing.  Once again, he commanded one of the three Army Groups involved in the attack, and led his forces north from East Prussia to Leningrad.  The record is replete with evidence of his leading role in planning and executing the invasion, and will be set forth in detail in our briefs.  Leeb defended his participation on the ground that he was mentally opposed to the attacks, but there is no evidence that his "opposition" ever took any overt form and, in any event, for reasons already stated, his mental reservations do not constitute a defense.  Leeb's only other defense is related to the question of knowledge.  He attended the conference between the military leaders and Hitler in March 1941 when Hitler announced his definite intention to attack Russia, and, according to Leeb, the burden of Hitler's argument was that Russia was about to attack Germany, and that in self-defense Germany would have to launch a so-called "preventative war".¹

The argument that the German attack on the Soviet Union was launched in "self-defense" was also raised before the IMT, and was rightly rejected.  Since the time of the IMT judgment, additional evidence presented in this case has abundantly reinforced the IMT's conclusion.  It clearly appears, from the Halder Diary and other documents, that Hitler decided to attack Russia for two primary reasons: firstly, in accordance with his long-cherished objective, expounded in Mein Kampf and in his speeches, to win "lebensraum" in the East and exploit the natural resources of the Soviet Union, such as grains and oil.  Secondly, Hitler was reluctant to undertake military

1.  Tr. p. 2328.

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operations across the channel against England, and concluded that England was holding out and refusing to make peace largely in the hope that Russia would come to her assistance.  The attack against Russia, was, in Hitler's mind, in large part a means to bring England to her knees.  As early as July 1940, Halder quoted Hitler to the effect that "With Russia smashed, Britain's last hope would be gone.  Germany then would be master of Europe and the Balkans."¹  Leeb's testimony that Hitler represented the war against the Soviet Union as a "preventative war" finds absolutely no basis in the record.  Leeb and the other Army Group and Army Commander-in-Chief were present at the meeting with Hitler on 14 June 1941, shortly before the Russian campaign was launched, and Halder summarized Hitler's discourse as follows:²

"After lunch, comprehensive political speech by Fuehrer, in which he gives the reasons for his intention to attack Russia and develops his calculations that Russia's disintegration will induce Britain to give up the struggle."

The other goal of destroying the Russian state and exploiting the resources of the Soviet Union was also clearly revealed to Leeb and the other military leaders.  At the meeting of 30 March 1941, relied on by Leeb, HItler did not say anything about a preventative war, but on the contrary made clear the far-reaching objectives of the Russian campaign.  Leeb and the other generals were expressly told at this meeting that the destruction of the State and the extermination of the intelligensia was part of their task. As Halder put it in his Diary:³ "Our goal's in Russia: crush armed forces, break up state…..The individual troop commanders must know the issues at state.  Thye must be leaders in the fight."  The organization and objectives of the elaborate German machinery for the economic exploitation of Soviet territory, set up under Rosenberg's leadership, were also well known to the military leaders.

1.  NOKW 3140, Pros. Exh. 1359, Bk XIX, p. 22.

2.  Idem., p. 37.

3.  NOKW 3140, Pros. Exh. 1359, Bk XIX, pp. 31, 33.

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COURT V, CASE XII

There is not a shred of evidence in the contemporary documents to support Leeb's defense that the Soviet campaign was represented to the German generals as a "preventative war".  As the IMT found:¹

"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 plan aggression."

Mr. Dobss will continue:

MR. DOBBS:

In turning from Leeb to Schniewind, we not only turn from the Army to the Navy, but also from the highest level of planning and execution in the field to planning and execution at "Navy Department level".  Schniewind became Chief of a bureau in the OKM in October 1937, and was fully informed concerning the navel rearmament.  He became Chief of Staff of the Naval War Staff about the time of Munich, was generally informed concerning "Fall Gruen", and received the directs issued in anticipation of the occupation of Bohemia and Moravia.²  But the principal charges against Schniewind under the indictment relate to the aggressive wars against Poland, the Western powers and the Low Countries, Yugoslavia and Greece, the Soviet Union and, in particular, Denmark and Norway.  The evidence Schiewind parallels very closely the evidence which led to the conviction of Raeder by the IMT.

In convicting Raeder of the commission of crimes against peace in connection with the outbreak of war with Poland, France, and the United Kingdom, the IMT stated:³  "Raeder received…..the directives of 'Fall Weiss' beginning with that of 3 April 1939; the letter directed the Navy

1.  Vo. I, Trial of the Major War Criminals, p. 215.

2.  Tr. pp. 4940-41.

3.  Vol. I, Trial of the Major War Criminals, p. 315.

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