V. Incorrect Judgment with regard to the Reich Cabinet

The Prosecution has posed before the Tribunal the question of declaring the Reich Cabinet a criminal organization. The verdict rejects the claim of the Prosecution, unfoundedly refusing to declare the Hitler Government a criminal organization.

With such a decision I cannot agree.

The Tribunal considers it proven that the Hitlerites have committed innumerable and monstrous crimes.

The Tribunal also considers it proven that these crimes were as a rule committed intentionally and on an organized scale, according to previously prepared plans and directives (“Plan Barbarossa”, “Night and Fog”, “Bullet”, etc.).

The Tribunal has declared criminal several of the Nazi mass organizations founded for the realization and putting into practice the plans of the Hitler Government.

In view of this it appears particularly untenable and rationally incorrect to refuse to declare the Reich Cabinet the directing organ of the State with a direct and active role in the working out of the criminal enterprises, a criminal organization. The members of this directing staff had great power, each headed an appropriate Government agency, each participated in preparing and realizing the Nazi program.

In confirmation it is deemed proper to cite several facts:

1. Immediately after the Nazi accession to power—on 24 March 1933—there was a law passed entitled “The Law of Defense of the People and the State” whereby the Reich Cabinet, besides the Reichstag, was empowered to enact new laws.

On 26 May 1933 the Reich Government issued a decree ordering the confiscation of the property of all Communist organizations and on 14 June, the same year, it also confiscated the property of the Social Democrat organizations. On 1 December 1933 the Reich Government issued the law “Ensuring Party and State Unity”.

Following through its program of liquidating democratic institutions, in 1934 the Government passed a law of the “Reconstruction of the Reich” whereby democratic elections were abolished for both central and local representative bodies. The Reichstag thereby became an institution without functional meaning. (Transcript, Afternoon Session, 22 November 1945)

By the law of 7 April 1933 and others, all Reich Government employees, including judges, ever noted for any anti-Nazi tendencies or ever having belonged to leftist organizations, as well as all Jews, were to be removed from the Government service and replaced by Nazis. In accordance with the “Basic Positions of the German Law on Government Employees” of 26 January 1937, “the inner harmony of the official and the Nazi Party is a necessary presupposition of his appointment to his post . . . . Government employees must be the executors of the will of the National Socialist State, directed by the NSDAP.” (Defense Document Number 28)

On 1 May 1934 there was created the Ministry of Education instructed to train students in the spirit of militarism, of racial hatred, and in terms of reality thoroughly falsified by Nazi ideology (PS-2078).

Free trade unions were abolished, their property confiscated, and the majority of the leaders jailed.

To suppress even a semblance of resistance the Government created the Gestapo and the concentration camps. Without any trial or even a concrete charge hundreds of thousands of persons were arrested and then done away with merely on a suspicion of an anti-Nazi tendency.

There were issued the so-called “Nuremberg Laws” against the Jews. Hess and Frick, both members of the Reich Government, implemented these by additional decrees.

It was the activity of the Reich Cabinet that brought on the war which took millions of human lives and caused inestimable damage in property and in suffering borne by the many Nations.

On 4 February 1938, Hitler organized the Secret Council of Ministers defining its activity as follows: “To aid me by advice on problems of foreign policies I am creating this Secret Council” (Reichsgesetzblatt, 1938, Part I, p. 112, PS-2031). The foreign policy of the Hitler Government was the policy of aggression. For this reason the members of the Secret Council should be held responsible for this policy. There were attempts in Court to represent the Secret Council as a fictitious organization, never actually functioning. This however is an inadmissible position. It is sufficient to recall Rosenberg’s letter to Hitler where the former insistently tried to be appointed member of the Secret Council of Ministers—to appreciate fully the significance of the Council.

Even more important practically in conducting aggressive warfare was the Reich Defense Council headed by Hitler and Göring. The following were members of the Defense Council, as is well known: Hess, Frick, Funk, Keitel, Raeder, Lammers (PS-2194; PS-2018).

Göring characterized the function of the Defense Council and its role in war preparations as follows, during the Court session of 23 June 1939: “The Defense Council of the Reich was the deciding Reich organ on all questions concerning preparation for war“ (PS-3787, USA-782).

At the same time Göring emphasized the fact that “the meeting of the Defense Council always took place for the purpose of making the most important decisions”. From the minutes of these meetings, submitted as evidence by the Prosecution, it is quite clear that the Council made very important decisions indeed. The minutes also show that other Cabinet Ministers sometimes took part in the meetings of the Defense Council alongside the members of the Council when war enterprises and war preparedness were discussed.

For example, the following Cabinet Ministers took part in the meeting of 23 June 1939: of Labor, of Food and Agriculture, of Finance, of Communication, and a number of others, while the minutes of the meeting were sent to all the members of the Cabinet (USA-782).

The verdict of the Tribunal justly points out certain peculiarities of the Hitler Government as the directing organ of the State, namely: the absence of regular cabinet meetings, the occasional issuance of laws by the individual Ministers having unusual independence of action, the tremendous personal power of Hitler himself. These peculiarities do not refute but on the contrary further confirm the conclusion that the Hitler Government is not an ordinary rank and file cabinet but a criminal organization.

Certainly Hitler had an unusual measure of personal power but this in no way frees of responsibility the members of his Cabinet who were his convinced followers and the actual executors of his program until and when the day of reckoning arrived.

I consider that there is every reason to declare the Hitler Government a criminal organization.

VI. Incorrect Judgment with regard to the General Staff
and the OKW

The verdict incorrectly rejects the accusation of criminal activity directed against the General Staff and the OKW.

The rejection of the accusation of criminal activity of the General Staff and of the OKW contradicts both the actual situation and the evidence submitted in the course of the Trial.

It has been established beyond doubt that the Leadership Corps of the Armed Forces of Nazi Germany, together with the SS-Party machine, represented the most important agency in preparing and realizing the Nazi aggressive and man-hating program. This was constantly and forcefully reiterated by the Hitlerites themselves in their official bulletins meant for the officer personnel of the armed forces. In the Nazi Party bulletin called “Politics and the Officer in the III Reich” it is quite clearly stated that the Nazi regime is founded on

“. . . two pillars: the Party and the Armed Forces. Both are forms of expression of the same philosophy of life . . . the tasks before the Party and the Armed Forces are in an organic relationship to each other and each bears the same responsibility . . . both these agencies depend on each other’s success or failure.” (PS-4060, USA-928)

This organic inter-relationship between the Nazi Party and the SS on the one hand and the Nazi Armed Forces on the other hand, was particularly evident among the upper circles of military hierarchy which the Indictment groups together under the concept of criminal organization—that is, among the members of the General Staff and the OKW.

The very selection of members of the Supreme Command of the Army in Nazi Germany was based on the criteria of their loyalty to the regime and their readiness not to pursue aggressive militaristic policies but also to fulfill such special directives as related to treatment meted out to prisoners of war and to the civilian populations of occupied territories.

The leaders of the German Armed Forces were not merely officers who reached certain levels of the military hierarchy. They represented, first of all, a closely-knit group which was entrusted with the most secret plans of the Nazi leadership. Evidence submitted to the Tribunal has fully confirmed the contention that the military leaders of Germany justified this trust completely and that they were the convinced followers and ardent executors of Hitler’s plans.

It is not accidental that at the head of the Air Force stood the “second man” of the Nazi Reich, namely Göring; that the Commander-in-Chief of the Navy was Dönitz, subsequently designated by Hitler to be the latter’s successor; that the command of the Ground Forces was concentrated in the hands of Keitel who signed the major part of the decrees concerning the execution of the prisoners of war and of the civilians in occupied territories.

Thus the comparisons made with the organization of the supreme commands in Allied countries cannot be considered valid. In a democratic country, not one self-respecting military expert would agree to prepare plans for mass reprisals and merciless killings of prisoners of war side by side with plans of a purely military and strategic character.

Meanwhile it is precisely such matters that occupied the supreme command of the General Staff and of the OKW in Nazi Germany. The commission by them of the heaviest Crimes against Peace, of the War Crimes, and of the Crimes against Humanity is not denied but is particularly emphasized in the verdict of the Tribunal. And yet the commission of these crimes has not brought the logical conclusion.

The verdict states: “They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow Nazis would have been academic and sterile . . . .”

And subsequently:

“Many of these men have made a mockery of the soldier’s oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler’s brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world ever had the misfortune to know. This must be said.”

All these assertions in the verdict are correct and are based on numerous and reliable depositions. It remains only incomprehensible why “these hundred or so higher officers” who have caused the world and their own country so much suffering should not be acknowledged a criminal organization.

The verdict advances the following reasons for the decision, reasons quite contradictory to the facts:

a) That the crimes were committed by representatives of the General Staff and of the OKW as private individuals and not as members of a criminal conspiracy.

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

Considerable evidence disputes such conclusions.

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

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

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

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

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

“For us the matter consists of the expansion of ‘Lebensraum’ to the East. Thus the question of sparing Poland cannot be considered, and, instead, we have to consider the decision to attack Poland at the first opportunity.” (L-79)

Long before the seizure of Czechoslovakia, in a directive of 30 May 1938, Hitler, addressing the representatives of the High Command, cynically stated: “From the military and political point of view, the most favorable time is a lightning attack on the basis of some incident, by which Germany will have been strongly provoked and which will morally justify the military measures to at least part of the world opinion” (PS-388).

Prior to the invasion of Yugoslavia, in a directive dated 27 March 1941, addressing the representatives of the High Command, Hitler wrote: “Even if Yugoslavia declares its loyalty, it must be considered an enemy and must, therefore, be smashed as soon as possible” (PS-1746).

While preparing for the invasion of the U.S.S.R., Hitler invited the representatives of the General Staff and the OKW to help him work out the related plans and directives not at all as simply the military experts.

In the instructions to apply propaganda in the region “Barbarossa”, issued by the OKW in June 1941, it is pointed out that: “For the time we should not have propaganda directed at the dismemberment of the Soviet Union” (USSR-477).

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

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

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

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

It is particularly stated there that:

“Crimes of hostile civilians are excluded from the jurisdiction of the courts martial, . . . Suspected elements must be immediately delivered to the officer. The latter will decide whether they should be shot . . . it is absolutely forbidden to hold suspects for the purpose of bringing them to trial.”

There are also provisions for “the most extreme measures, and, in particular, ‘measures for mass violence’, if circumstances do not permit the rapid detection of the guilty.”

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

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

The OKW directive of 16 September 1941, states: “At the same time, it must be borne in mind that a human life in the countries in question is frequently held to be of no account and that a warning example can be made only by measures of exceptional severity” (PS-389).

Addressing the commanders of the army groups on 23 July 1941, the OKW simply briefed them as follows: “It is not in the demand for additional security detachments, but in the application of appropriate draconic measures that the commanding officers must use to keep order in the regions under their jurisdiction” (PS-459).

The OKW directive of 16 December 1941, states: “The troops . . . have the right and are obliged to apply . . . any measures whatsoever also against women and children if this contributes to success . . . .” (USSR-16).

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

Another order, “Nacht und Nebel”, states:

“Penalty for such offenses, consisting of loss of freedom and even a life sentence is a sign of weakness. Only death sentence or measures which entail ignorance of the fate of the guilty by local population will achieve real effectiveness.” (L-90, USA-224; Transcript, Afternoon Session, 25 January 1946)

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

OKW also distributed an order for the destruction of the “commando” units. The original order was submitted to the Court (PS-498, USA-501). According to this order officers and soldiers of the “commando” units had to be shot, except in cases when they were to be questioned, after which they were shot in any case.

These orders were unswervingly carried out by the commanding officers of Army units. In June 1944 Rundstedt, the Commander-in-Chief of the German troops in the West, reported that Hitler’s order in regard to “the treatment of the ‘commando’ groups of the enemy is still being carried out” (PS-531, USA-550).

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

The instructions relating to special regions, issued by OKW on 13 March 1941, contemplated the necessity of synchronizing the activities in occupied territories between the army command and the Reichsführer of the SS. As is seen from the testimony of the chief of the 3d Department of RSHA and who was concurrently chief of the Einsatzgruppe “D”, Otto Ohlendorf, and of the chief of the VI Department of RSHA, Walter Schellenberg, in accordance with OKW instructions there was an agreement made between the General Staff and the RSHA about the organization of special “operational groups” of the Security Police and SD—“Einsatzgruppen”, assigned to the appropriate army detachments.

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

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

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

4. The representatives of the High Command acted in all the echelons of the army, as members of a criminal group.

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

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

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

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

* * * *

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

Soviet Member, International Military Tribunal,
Major General Jurisprudence.
/s/I. T. Nikitchenko

1 October 1946