"The fact that the Defendant acted
pursuant to order of his Government or of a superior shall not free
him from responsibility, but may be considered in mitigation of
punishment."
The provisions of this article are in conformity with
the law of all nations. That a soldier was ordered to kill or torture
in violation of the international law of war has never been
recognized as a defense to such acts of brutality, though, as the
Charter here provides, the order may be urged in mitigation of the
punishment. The true test, which is found in varying degrees in the
criminal law of most nations, is not the existence of the order, but
whether moral choice was in fact possible.
The Law as to the Common Plan or
Conspiracy
In the previous recital of the facts relating to
aggressive war, it is clear that planning and preparation had been
carried out in the most systematic way at every stage of the History.
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.
The "Common Plan or Conspiracy" charged in the
Indictment covers 25 years, from the formation of the Nazi Party in
1919 to the end of the war in 1945. The Party is spoken of as
"the instrument of cohesion among the Defendants" for
carrying out the purposes of the conspiracy — the overthrowing
of the Treaty of Versailles, acquiring territory lost by Germany in
the last war and "Lebensraum" in Europe, by the use, if
necessary, of armed force, of aggressive war. The "seizure of
power" by the Nazis, the use of terror, the destruction of trade
unions, the attack on Christian teaching and on churches, the
persecution of Jews, the regimentation of youth — all these are
said to be steps deliberately taken to carry out the common plan. It
found expression, so it is alleged, in secret rearmament, the
withdrawal by Germany from the Disarmament Conference and the League
of Nations, universal military service, and seizure of the Rhineland.
Finally, according to the Indictment, aggressive action was planned
and carried out against Austria and Czechoslovakia in 1936-1938,
followed by the