When Militaries Become Accessories and Instruments of War Crimes: Robert Jackson’s Closing Argument at Nuremberg for Our Time

Friends of Padre Steve’s World,

Tonight I am continuing on with my series on Supreme Court Justice Robert Jackson’s closing arguments while serving as the Chief American Prosecutor at the Major War Crimes Trials at Nuremberg. These crimes are not without relevance today, thus it is important for us to revisit them, for as I noted yesterday, quoting Yehuda Bauer, the Holocaust did not deviate from human norms.

For me it is a difficult subject, for I served in and supported a war that by any standard of legal and moral judgement would have met the criteria that we prosecuted the Nazis for in 1945. I should have known better because I had studied the Nazi crimes and had been the student of a professor who served as an interrogator and interpreter during the Nuremberg War Crimes Trials. But in the moment of hysteria after the attacks of September 11th 2001 and my belief in the integrity of Secretary of State Colin Powell, I allowed my good sense to be persuaded that an act of aggressive war that resulted in war crimes, and might even include crimes against humanity was perfectly legal.

I went to Iraq in 2007 and 2008. I worked with advisors to Iraqi Army, Border Troops, Police, Port of Entry, and Provincial Reconstruction Teams In Al Anbar Province. I came back from Iraq a very different man. I saw the lies. I came to love and appreciate the Iraqis and what they had suffered under both Saddam Hussein and our invasion and occupation. I can still see the maimed bodies, the destroyed cities and hamlets, the crippled children, as well as the wounded Marines in my mind. I pray and hope that the Iraqis that I served alongside did not become victims of ISIS after I left the country.

I am haunted by it to this day, and I no longer trust the supposedly good intentions of the American government, and in the age of Donald Trump fear for our nation and the world. A year ago the American Border Patrol fired CS gas, a riot control agent that is banned for use in combat across the international border into Mexico at unarmed Central American refugees, many of whom were women and children. The reason was that they “felt endangered” because some in the sea of refugees threw rocks across the border at the border control officers, who were dressed in body armor and Kevlar helmets with face masks. Rocks were going to do nothing to them.

While this was not war, there is a principle and law of war that American law enforcement officers frequently violate, the principle of proportionality. I’m sorry, but firing CA gas at unarmed refugees on the opposite side of the border for throwing rocks is not proportional. They had not breached the border and were also facing Mexican Federal Police. I have to wonder what is next. After that President Trump says that he has authorized U. S. Military personnel to use deadly force against rock throwers, and his former Chief of Staff, retired Marine Corps General John Kelly issued a “cabinet order” something never heard of before, allowing U. S. Military personnel to engage refugees believed to be endangering Border Control agents, in what appears to be a direct violation of Posse Comitatus. Add to those issues the use of drone strikes, by the Bush, Obama, and Trump Administrations, both DOD and CIA, against often insignificant targets that that more often than not have many women and children in them, and finally the pardoning of convicted war criminals by President Trump, and firing the only administration who stood in his way, Secretary of the Navy Richard Spencer.

But I digress. When I read these accounts my mind is taken back to the subject of war crimes, and based on my expertise and study of the crimes of the Nazis, not to mention the Japanese in the Second World War, I automatically default to those settings.

So, I will stop with my words and go back to those of Robert Jackson at Nuremberg, because they are so pertinent today.

Until tomorrow,

Peace,

Padre Steve+

Immediately after the seizure of power the Nazis went to work to implement these aggressive intentions by preparing for war. They first enlisted German industrialists in a secret rearmament programme. Twenty days after the seizure of power Schacht was host to Hitler, Goering and some twenty leading industrialists. Among them were Krupp von Bohlen of the great Krupp armament works and representatives of I. G. Farben and other Ruhr heavy industries. Hitler and Goering explained their programme to the industrialists, who became so enthusiastic that they set about to raise three million Reichsmarks to strengthen and confirm the Nazi Party in power. Two months later Krupp was working to bring a reorganised association of German industry into agreement with the political aims of the Nazi Government. Krupp later boasted of the success in keeping the German war industries secretly alive and in readiness despite the disarmament clauses of the Versailles Treaty, and recalled the industrialists’ enthusiastic acceptance of “the great intentions of the Fuehrer in the rearmament period of 1933-1939”.

Some two months after Schacht had sponsored his first meeting to gain the support of the industrialists, the Nazis moved to harness industrial labour to their aggressive plans. In April, 1933, Hitler ordered Dr. Ley “to take over the trade unions”, numbering some 6 million members. By Party directive Ley seized the unions, their property and their funds. Union leaders, taken into “protective custody” by the SS and SA, were put into concentration camps. The free labour unions were then replaced by a Nazi organization known as the German Labour Front, with Dr. Ley at its head. It was expanded until it controlled over 23 million members. Collective bargaining was eliminated, the voice of labour could no longer be heard as to working conditions, and the labour contract was prescribed by “trustees of labour” appointed by Hitler. The war purpose of this labour programme was clearly acknowledged by Robert Ley five days after war broke out, when he declared in a speech that:

“We National Socialists have monopolised all resources and all our energies during the past seven years so as to be able to be equipped for the supreme effort of battle.”

The Nazis also proceeded at once to adapt the Government to the needs of war. In April, 1933, the Cabinet formed a Defence Council, the working committee of which met frequently thereafter. In the meeting of 22nd May, 1933, at which defendant Keitel presided, the members were instructed that:

“No document must be lost since otherwise the enemy propaganda would make use of it. Matters communicated orally cannot be proven; they can be denied by us in Geneva.”

In February, 1934 -and, your Honours, dates in this connection are important -with defendant Jodl present, the Council planned a mobilization calendar and mobilization order for some 240,000 industrial plants. Again it was agreed that nothing should be in writing so that “the military purpose may not be traceable”.

On 21st May, 1935, the top secret Reich Defence Law was enacted. Defendant Schacht was appointed Plenipotentiary General for War Economy with the task of secretly preparing all economic forces for war and, in the event of mobilization, of financing the war.

Schacht’s secret efforts were supplemented

in October, 1936, by the appointment of defendant Goering as Commissioner of the Four-Year Plan, with the duty of putting the entire economy in a state of readiness for war within four years.

A secret programme for the accumulation of the raw materials and foreign credits necessary for extensive rearmament was also set on foot immediately upon seizure of power. In September of 1934, the Minister of Economics was already complaining that:

“The task of stock-piling is being hampered by the lack of foreign currency; the need for secrecy and camouflage also is a retarding influence.”

Foreign currency controls were at once established. Financing was delegated to the wizard Schacht, who conjured up the MEFO bill to serve the dual objectives of tapping the short-term money market for rearmament purposes while concealing the amount of these expenditures.

The spirit of the whole Nazi administration was summed up by Goering at a meeting of the Council of Ministers, which included Schacht, on 27th May, 1936, when he said: “All measures are to be considered from the standpoint of an assured waging of war.” The General Staff, of course, also had to be enlisted in the war plan. Most of the generals, attracted by the prospect of rebuilding their armies, became willing accomplices. The Minister of War von Blomberg and the Chief of Staff General von Fritsch, however, were not cordial to the increasingly belligerent policy of the Hitler regime, and by vicious and obscene plotting they were discredited and removed in January, 1938. Thereupon, Hitler assumed for himself supreme command of the armed forces and the positions of von Blomberg and of von Fritsch were filled by others who became, as Blomberg said of Keitel, “a willing tool in Hitler’s hands for every one of his decisions”. The generals did not confine their participation to merely military matters. They participated in all major diplomatic and political manoeuvres, such as the Obersalzberg meeting where Hitler, flanked by Keitel and other top generals, issued his virtual ultimatum to Schuschnigg.

As early as 5th November, 1937, the plan to attack had begun to take definiteness as to time and victim. In a meeting which included the defendants Raeder, Goering and von Neurath, Hitler stated the cynical objective:

“The question for Germany is where the greatest possible conquest could be made at the lowest possible cost.”

He discussed various plans for the invasion of Austria and Czechoslovakia, indicating clearly that he was thinking of these territories not as ends in themselves, but as means for further conquest. He pointed out that considerable military and political assistance could be afforded by possession of these lands, and discussed the possibility of constituting from them new armies up to a strength of about 12 divisions. The aim he stated boldly and baldly as the acquisition of additional living-space in Europe, and recognized that “The German question can be solved only by way of force.” Six months later, emboldened by the bloodless Austrian conquest, Hitler, in a secret directive to Keitel, stated his “unalterable decision to smash Czechoslovakia by military action in the near future”.

On the same day, Jodl noted in his diary that the Fuehrer had stated his final decision to destroy Czechoslovakia soon and had initiated military preparations all along the line. By April the plan had been perfected to attack Czechoslovakia “with lightning swift action as the result of an ‘incident’”.

All along the line preparations became more definite for a war of expansion, on the assumption that it would result in a world-wide conflict. In September, 1938, Admiral Carls officially commented on a “Draft Study of Naval Warfare against England”:

“There is full agreement with the main theme of the study.

1. If, according to the Fuehrer’s decision, Germany is to acquire a position as a world power, she needs not only sufficient colonial possessions but also secure naval communications and secure access to the ocean.

2. Both requirements can only be fulfilled in opposition to Anglo-French interests and will limit their positions as world powers. It is unlikely that they can be achieved by peaceful means. The decision to make Germany a world power therefore forces upon us the necessity of making the corresponding preparations for war.

3. War against England means at the same time war against the Empire, against France, probably against Russia as well, and a large number of countries overseas; in fact, against one-third to one-half of the whole world.

It can only be justified and have a chance of success if it is prepared economically as well as politically and militarily and waged with the aim of conquering for Germany an outlet to the ocean.”

This Tribunal knows what categorical assurances were given to an alarmed world after the Anschluss, after Munich, after the occupation of Bohemia and Moravia, that German ambitions were realised and that Hitler had “no further territorial demands to make in Europe.” The record of this trial shows that those promises were calculated deceptions and that those high in the bloody brotherhood of Nazidom knew it.

As early as 15th April, 1938, Goering pointed out to Mussolini and Ciano that the possession of those territories would make possible an attack on Poland. Ribbentrop’s Ministry wrote on 26th August, 1938:

“After the liquidation of the Czechoslovakian question, it will be generally assumed that Poland will be next in turn.”

Hitler, after the Polish invasion, boasted that it was the Austrian and Czechoslovakian triumphs by which “the basis for the action against Poland was laid”. Goering suited the act to the purpose and gave immediate instructions to exploit, for the further strengthening of the German war potential, first the Sudetenland, and then the whole Protectorate.

By May of 1939 the Nazi preparations had ripened to the point that Hitler confided to the defendants Goering, Raeder, Keitel, and others, his readiness “to attack Poland at the first suitable opportunity”, even though he recognized that “further successes cannot be attained without the shedding of blood”. The larcenous motives behind this decision he made plain in words that echoed the covetous theme of Mein Kampf:

“Circumstances must be adapted to aims. This is impossible without invasion of foreign States or attacks upon foreign property. Living-space in proportion to the magnitude of the State is the basis of all power -further successes cannot be attained without expanding our living-space in the East ….”

While a credulous world slumbered, snugly blanketed with perfidious assurances of peaceful intentions, the Nazis prepared not as before for a war but now for the war. The defendants Goering, Keitel, Raeder, Frick and Funk, with others, met as the Reich Defence Council in June of 1939. The minutes, authenticated by Goering, are revealing evidence of the way in which each step of Nazi planning dovetailed with every other. These five key defendants, three months before the first panzer unit had knifed into Poland, were laying plans for “employment of the population in wartime”, and had gone so far as to classify industry for priority in labour supply after “five million servicemen had been called up”. They decided upon measures to avoid “confusion when mobilization takes place”, and declared a purpose “to gain and maintain the lead in the decisive initial weeks of war”. They then planned to use in production prisoners of war, criminal prisoners, and concentration camp inmates. They then decided on “compulsory work for women in war time”. They had already passed on applications from 1,172,000 specialist workmen for classification as indispensable, and had approved 727,000 of them. They boasted that orders to workers to report for duty “are ready and tied up in bundles at the labour offices”. And they resolved to increase the industrial manpower supply by bringing into Germany “hundreds of thousands of workers” from the Protectorate to be “housed together in hutments”.

It is the minutes of this significant conclave of many key defendants which disclose how the plan to start the war was coupled with the plan to wage the war through the use of illegal sources of labour to maintain production. Hitler, in announcing his plan to attack Poland, had already foreshadowed the slave labour programme as one of its corollaries when he cryptically pointed out to the defendants Goering, Raeder, Keitel, and others that the Polish population “will be available as a source of labour”. This was part of the plan made good by Frank, who as Governor-General notified Goering, that he would supply “at least one million male and female agricultural and industrial workers to the Reich”, and by Sauckel, whose impressments throughout occupied territory aggregated numbers equal to the total population of some of the smaller nations of Europe.

Here also comes to the surface the link between war labour and concentration camps, a manpower source that was increasingly used and with increasing cruelty. An agreement between Himmler and the Minister of Justice, Thierack, in 1942 provided for “the delivery of anti-social elements from the execution of their sentence to the Reichsfuehrer SS to be worked to death”. An SS directive provided that bedridden prisoners be drafted for work to be performed in bed. The Gestapo ordered 46,000 Jews arrested to increase the “recruitment of manpower into the concentration camps”. One hundred thousand Jews were brought from Hungary to augment the camps’ manpower. On the initiative of the defendant Donitz concentration camp labour was used in the construction of submarines. Concentration camps were thus geared into war production on the one hand, and into the administration of justice and the political aims of the Nazis on the other. The use of prisoner-of-war labour, as then planned in that meeting, also grew with German needs. At a time when every German soldier was needed at the front and forces were not available at home, Russian prisoners of war were forced to man anti-aircraft guns against Allied planes. Field-Marshal Milch reflected the Nazi merriment at this flagrant violation of International Law, saying: “… This is an amusing thing, that the Russians must work the guns.”

The orders for the treatment of Soviet prisoners of war were so ruthless that Admiral Canaris, pointing out that they would “result in arbitrary mistreatments and killing”, protested to the OKW against them as breaches of International Law. The reply of Keitel was unambiguous. He said:

“The objections arise from the military conception of chivalrous warfare! This is the destruction of an ideology! Therefore I approve and back the measures”.

The Geneva Convention would have been thrown overboard openly, except that Jodl objected because he wanted the benefits of Allied observance of it while it was not being allowed to hamper the Germans in any way.

Field Marshal Wilhelm Keitel

Other crimes in the conduct of warfare were planned with equal thoroughness as a means of ensuring victory of German arms: In October, 1938, almost a year before the start of the war, the large-scale violation of the established rules of warfare was contemplated as a policy, and the Supreme Command circulated a most secret list of devious explanations to be given by the Propaganda Minister in such cases. Even before this time commanders of the armed forces were instructed to employ any methods of warfare so long as they facilitated victory. During the progress of the war the orders increased in savagery. A typical Keitel order, demanding the use of the “most brutal means”, provided that .

“… It is the duty of the troops to use all means without restriction, even against women and children, so long as they ensure success.”

The German naval forces were no more immune from the infection than the land forces. Raeder ordered violations of the accepted rules of warfare wherever necessary to gain strategic successes. Donitz urged his submarine crews not to rescue survivors of torpedoed enemy ships, in order to cripple merchant shipping of the Allied Nations by decimating their crews.

Thus, the WAR CRIMES against Allied forces and the CRIMES AGAINST HUMANITY committed in occupied territories are incontestably part of the programme for making the war because, in the German calculations, they were indispensable to its hope of success.

Similarly, the whole group of pre-war crimes, including the persecutions within Germany, fall into place around the plan for aggressive war like stones in a finely wrought mosaic. Nowhere is the whole catalogue of crimes of Nazi oppression and terrorism within Germany so well integrated with the crime of war as in that strange mixture of wind and wisdom which makes up the testimony of Hermann Goering. In describing the aims of the Nazi programme before the seizure of power, Goering stated that the first question was to achieve and establish a different political structure for Germany, which would enable Germany to object against the Dictate (of Versailles), and to make not only a protest, but an objection of such a nature that it would actually be considered.

With these purposes, Goering, admitted that the plan was made to overthrow the Weimar Republic, to seize power, and to carry out the Nazi programme by whatever means were necessary, whether legal or illegal.

From Goering’s cross-examination we learn how necessarily the whole programme of crime followed. Because they considered a strong State necessary to get rid of the Versailles Treaty, they adopted the Fuehrerprinzip. Having seized power, the Nazis thought it necessary to protect it by abolishing parliamentary government, and suppressing all organized opposition from political parties. This was reflected in the philosophy of Goering that the opera was more important than the Reichstag. Even the “opposition of each individual was not tolerated unless it was a matter of unimportance”. To insure the suppression of opposition a secret police force was necessary. In order to eliminate incorrigible opponents, it was necessary to establish concentration camps and to resort to the device of protective custody. Protective custody, Goering, testified, meant that:

“People were arrested arid taken into protective custody who had not yet committed any crime but who could be expected to do so if they remained free.”

The same war purpose was dominant in the persecution of the Jews. In the beginning, fanaticism and political opportunism played a principal part, for anti-Semitism and its allied scapegoat, mythology, were the vehicle on which the Nazis rode to power. It was for this reason that the filthy Streicher and the blasphemous Rosenberg were welcomed at Party rallies and made leaders and officials of the State or Party. But the Nazis soon regarded the Jews as foremost amongst the opposition to the police State with which they schemed to put forward their plans of military aggression. Fear of their pacifism and their opposition to strident nationalism was given as the reason that the Jews had to be driven from the political and economic life of Germany. Accordingly, they were transported like cattle to the concentration camps, where they were utilised as a source of forced labour for war purposes.

At a meeting held on 12th November, 1938, two days after the violent anti-Jewish pogroms instigated by Goebbels and carried out by the Party Leadership Corps and the SA, the programme for the elimination of Jews from the German economy was mapped out by Goering, Funk, Heydrich, Goebbels, and the other top Nazis. The measures adopted included confinement of the Jews in ghettoes, cutting off their food supply, “aryanizing” their shops, and restricting their freedom of movement. Here another purpose behind the Jewish persecutions crept in, for it was the wholesale confiscation of their property which helped to finance German rearmament. Although Schacht’s plan to use foreign money to ransom the entire race within Germany was not adopted, the Jews were stripped to the point where Goering was able to advise the Reich Defence Council that the critical situation of the Reich exchequer, due to rearmament, had been relieved “through the billion Reichsmark fine imposed on Jewry, and through profits accrued to the Reich in the aryanization of Jewish enterprises”.

A glance over the dock will show that, despite quarrels among themselves, each defendant played a part which fitted in with every other, and that all advanced the Common Plan. It contradicts experience that men of such diverse backgrounds and talents should so forward each other’s aims by coincidence. The large and varied role of Goering was half militarist and half gangster. He stuck his pudgy finger in every pie. He used his SA bullies to help bring the gang into power. In order to entrench that power he contrived to have the Reichstag burned, established the Gestapo, and created the concentration camps. He was equally adept at massacring opponents and at framing scandals to get rid of stubborn generals. He built up the Luftwaffe and hurled it at his defenceless neighbours. He was among the foremost in harrying Jews out of the land. By mobilising the total economic resources of Germany he made possible the waging of the war which he had taken a large part in planning. He was, next to Hitler, the man who tied the activities of all the defendants together in a common effort.

The parts played by the other, defendants, although less comprehensive and less spectacular than that of the Reichsmarschall, were nevertheless integral and necessary contributions to the joint undertaking, without any one of which the success of the common enterprise would have been in jeopardy. There are many specific deeds of which these men have been proven guilty. No purpose would be served -nor indeed is time available -to review all the crimes which the evidence has charged against their names. Nevertheless, in viewing the conspiracy as a whole and as an operating mechanism, it may be well to recall briefly the outstanding services which each of the men in the dock rendered to the common cause.

To be continued…