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limitation on criminal responsibility that would not include, on
principle, the private soldier on the battlefield, the farmer who increased his
production of foodstuffs to sustain the armed forces, or the housewife who
conserved fats for the making of munitions. Under such a construction the
entire manpower of Germany could, at the uncontrolled discretion of the
indicting authorities, be held to answer for waging wars of aggression. That
would, indeed, result in the possibility of mass punishments.
There is
another aspect of this problem that may not be overlooked. It was urged before
the IMT that international law had theretofore concerned itself with the
actions of sovereign states and that to apply the Charter to individuals would
amount to the application of ex post facto law. After observing that the
offenses with which it was concerned had long been regarded as criminal by
civilized peoples, the High Tribunal said: “Crimes against international
law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be
enforced.” The extension of punishment for crimes against peace by the IMT
to the leaders of the Nazi military and government was, therefore, a logical
step. The acts of a government and its military power are determined by the
individuals who are in control and who fix the policies that result in those
acts. To say that the government of Germany was guilty of waging aggressive war
but not the men who were in fact the government and whose minds conceived the
plan and perfected its execution would be an absurdity. The IMT, having
accepted the principle that the individual could be punished, then proceeded to
the more difficult task of deciding which of the defendants before it were
responsible in fact.
In this case we are faced with the problem of
determining the guilt or innocence with respect to the waging of aggressive war
on the part of men of industry who were not makers of policy but who supported
their government during its period of rearmament and who continued to serve
that government in the waging of war, the initiation of which has been
established as an act of aggression committed against a neighboring nation.
Hitler launched his war against Poland on 1 September 1939. The following day
France and Britain declared war on Germany. The IMT did not determine whether
the latter were waged as aggressive wars on the part of Germany. Neither must
we determine that question in this case. We seek only the answer to the
ultimate question: Are the defendants guilty of crimes against peace by waging
aggressive war or wars? Of necessity, the great majority of the population of
Germany supported the waging of war in some degree. They contributed to
Germany’s power to resist, as well as to attack. Some reasonable standard
must, therefore, be found by which to measure the degree of participation
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