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"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
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