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THE MARSHAL: May it please the Tribunal, the defendant Hess is absent.

[NB. See appendix for Notes.]

JUSTICE JACKSON: Mr. President and members of the Tribunal:

An advocate can be confronted with few more formidable tasks than to select his closing arguments where there is great disparity between his appropriate time and his available material. In eight months - a short time as State trials go - we have introduced evidence which embraces as vast and varied a panorama of events as has ever been compressed within the framework of a litigation. It is impossible in summation to do more than outline with bold strokes the vitals of this trial's sad and melancholy record, which will live as the historical text of the twentieth century's shame and depravity.

It is common to think of our own time as standing at the apex of civilisation, from which the deficiencies of preceding ages may patronisingly be viewed in the light of what is assumed to be "progress". The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first. These two-score years in this twentieth century will be recorded in the book of years as some of the most bloody in all annals. Two world wars have left a legacy of dead which number more than all the armies engaged in any war that made ancient or medieval history. No half-century ever witnessed slaughter on such a scale, such cruelties and inhumanities, such wholesale deportations of peoples into slavery, such annihilations of minorities. The terror of Torquemada pales before the Nazi Inquisition. These deeds are the overshadowing historical facts by which generations to come will remember this decade. If we cannot eliminate the causes and prevent the repetition of these barbaric events, it is not an irresponsible prophecy to say that this twentieth century may yet succeed in bringing the doom of civilisation.

Goaded by these facts, we were moved to redress the blight on the record of our era. The defendants complain that our pace is too fast. In drawing the Charter of this Tribunal, we thought we were recording an accomplished advance in International Law. But they say that we have outrun our times, that we have anticipated an advance that should be, but has not yet been made. The Agreement of London, whether it originates or merely records, at all events marks a transition in International Law which roughly corresponds to that in the evolution of local law when men ceased to punish crime by "hue and cry" and began to let reason and inquiry govern punishment. The society of nations has emerged from the primitive "hue and cry", the law of "catch and kill". It seeks to apply sanctions to enforce International Law, but to guide their application by evidence, law, and reason instead of outcry. The defendants denounce the law under which their accounting is asked. Their dislike for the law which condemns them is not original. It has been remarked before that:

"No thief e'er felt the halter draw with good opinion of the law."

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In interpreting the Charter, however, we should not overlook the unique and emergent character of this body as an International Military Tribunal. It is no part of the constitutional mechanism of internal justice of any of the signatory nations. Germany has unconditionally surrendered, but no peace treaty has been signed or agreed upon. The Allies are still technically in a state of war with Germany, although the enemy's political and military institutions have collapsed. As a Military Tribunal, this Tribunal is a continuation of the war effort of the Allied nations. As an International Tribunal, it is not bound by the procedural and substantive refinements of our respective judicial or constitutional systems, nor will its rulings introduce precedents into any country's internal system of civil justice. As an International Military Tribunal, it rises above the provincial and transient, and seeks guidance not only from International Law but also from the basic principles of jurisprudence, which are assumptions of civilisation and which long have found embodiment in the codes of all nations.

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favour. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The prosecution's case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped to write their own judgement of condemnation.

But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for the possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilisation of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of International Law had it not been utilised to goose-step the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge and intent.

We charge unlawful aggression but we are not trying the motives, hopes, or frustrations which may have led Germany to resort to aggressive war as an instrument of policy. The law, unlike politics, does not concern itself with the good or evil in the status quo, nor with the merits of the grievances against it. It merely requires that the status quo be not attacked by violent means and that policies be not advanced by war. We may admit that overlapping ethnological and cultural groups, economic barriers, and conflicting national ambitions created in the 1930's, as they will continue to create, grave problems for Germany as well

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Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the counts charged against him in the Indictment. Any result that the calm and critical judgement of posterity would pronounce unjust would not be a victory for any of the countries associated in this prosecution. But in summation we now have before us the tested evidences of criminality and have heard the flimsy excuses and paltry evasions, of the defendants. The suspended judgement with which we opened this case is no longer appropriate. The time has come for final judgement, and if the case I present seems hard and uncompromising, it is because the evidence makes it so.

I perhaps can do no better service than to try to lift this case out of the morass of detail with which the record is full, and put before you only the bold outlines of a case that is impressive in its simplicity. True, its thousands of documents and more thousands of pages of testimony deal with an epoch and cover a continent, and touch almost every branch of human endeavour. They illuminate specialities, such as diplomacy, naval development and warfare, land warfare, the genesis of air warfare, the politics of the Nazi rise to power, the finance and economics of totalitarian war, sociology, penology, mass psychology, and mass pathology. I must leave it to experts to comb the evidence and write volumes on their specialities, while I picture in broad strokes the offences whose acceptance as lawful would threaten the continuity of civilisation. I must, as Kipling put it, "splash at a ten-league canvas with brushes of camel's hair".

THE CRIMES OF THE NAZI REGIME

The charge requires examination of a criminal policy, not of a multitude of isolated, unplanned, or disputed crimes. The substantive crimes upon which we rely, either as goals of a common plan or as means for its accomplishment, are admitted. The pillars which uphold the conspiracy charge may be found in five groups of overt acts, whose character and magnitude are important considerations in appraising the proof of conspiracy.

1. THE SEIZURE OF POWER AND SUBJUGATION OF GERMANY TO A POLICE STATE

The Nazi Party seized control of the German State in 1933. "Seizure of power" is a characterisation used by defendants and defence witnesses, and so apt that it has passed into both history and everyday speech. (1.) The Nazi junta in the early days lived in constant fear of overthrow. Goering, in 1934, pointed out that its enemies were legion, and said:

"Therefore, the concentration camps have been created, where we have first confined thousands of Communists and Social Democrat functionaries." (2.)

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"Whoever in the future raises a hand against a representative of the National Socialist movement or of the State must know that he will lose his life in a very short while." (3.)

The doctrine of punishment by analogy was introduced to enable conviction for acts which no statute forbade. (7.) Minister of Justice Guertner explained that National Socialism considered every violation of the goals of life which the community set up for itself to be a wrong per se, and that the acts could be punished even though it was not contrary to existing "formal law". (8.)

The Gestapo and the SD were instrumentalities of an espionage system which penetrated public and private life. (9.) Goering controlled a personal wiretapping unit. (10.) All privacy of communication was abolished. (11.) Party Blockleiter appointed over every 50 householders spied continuously on all within their ken. (12.)

Upon the strength of this spying individuals were dragged off to "protective custody" and to concentration camps without legal proceedings of any kind (13.) and without statement of any reason therefore. (14.) The partisan political police were exempted from effective legal responsibility for their acts. (15.)

With all administrative offices in Nazi control and with the Reichstag reduced to impotence, the judiciary remained the last obstacle to this reign of terror. (16.) But its independence was soon overcome and it was reorganised to dispense a venal justice. (17.) Judges were ousted for political or racial reasons and were spied upon and put under pressure to join the Nazi Party. (18.) After the Supreme Court had acquitted three of the four men whom the Nazis accused of setting the Reichstag on fire, its jurisdiction over treason cases was transferred to a newly established "People's Court" consisting of two judges and five Party officials. (19.) The German film of this "People's Court" in operation, which the showed in this chamber, revealed its presiding judge pouring partisan abuse on speechless defendants. (20.) Special courts were created to try political crimes, only Party members were appointed judges (21.), and "Judges' letters" instructed the puppet judges as to the "general lines" they must follow. (22.)

The result was the removal of all peaceable means either to resist or to change the Government. Having sneaked through the portals of power, the Nazis slammed the gate in the face of all others who might also aspire to enter. Since the law was what the Nazis said it was, every form of opposition was rooted out and every dissenting voice throttled. Germany was in the clutch of a police State, which used the fear of the concentration camp as a means to enforce non-resistance. The Party was the State, the State was the Party, and terror by day and death by night were the policy of both.

2. THE PREPARATION AND WAGING OF WARS OF AGGRESSION

From the moment the Nazis seized power, they set about with feverish but stealthy efforts, in defiance of the Versailles Treaty, to arm for war. In 1933 they found no air force. By 1939 they had 21 squadrons, consisting of 240 echelons or about 2,400 first-line planes, together with trainers and transports. In 1933 they found an army of 3 infantry and 3 cavalry divisions. By 1939 they had raised and equipped an army of 51 divisions, 4 of which were fully motorized and 4 of which were panzer divisions. In 1933 they found a navy of one cruiser and six light cruisers. By 1939 they had built a navy of 4 battleships,

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These new weapons were put to use, commencing in September, 1939, in a series of undeclared wars against nations with which Germany had arbitration and non-aggression treaties, and in violation of repeated assurances. (24.)

On 1st September, 1939, this rearmed Germany attacked Poland. The following April witnessed the invasion and occupation of Denmark and Norway, and May saw the overrunning of Belgium, the Netherlands, and Luxembourg. Another spring saw Yugoslavia and Greece under attack, and in June, 1941, came the invasion of Soviet Russia. Then Japan, which Germany had embraced as a partner, struck without warning at Pearl Harbour in December, 1941, and four days later Germany declared war on the United States.

We need not trouble ourselves about the many abstract difficulties that can be conjured up about what constitutes aggression in doubtful cases. I shall show you, in discussing the conspiracy, that by any test ever put forward by any responsible authority, by all the canons of plain common sense, these were unlawful wars of aggression in breach of treaties and in violation of assurances.

3. WARFARE IN DISREGARD OF INTERNATIONAL LAW

It is unnecessary to labour this point on the facts. Goering asserts that the Rules of Land Warfare were obsolete, that no nation could fight a total war within their limits. (25.) He testified that the Nazis would have denounced the Conventions to which Germany was a party, but that General Jodl wanted captured German soldiers to continue to benefit from. their observance by the Allies. (26.)

It was, however, against the Soviet people and Soviet prisoners that Teutonic fury knew no bounds, in spite of a warning by Admiral Canaris that the treatment was in violation of International Law. (27.)

We need not, therefore, for the purposes of the conspiracy count, recite the revolting details of starving, beating, murdering, freezing, and mass extermination admittedly used against the Eastern soldiery. Also, we may take as established or admitted that the lawless conduct such as shooting British and American airmen, mistreatment of Western prisoners of war, forcing French prisoners of war into German war work, and other deliberate violations of the Hague and Geneva Conventions, did occur, and in obedience to highest levels of authority. (28.)

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