Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-173.03
Last-Modified: 2000/09/15

DR. HORN, Continued:

I should particularly like to point out that the procedure
laid down in these treaties in case of non-settlement by the
League of Nations Council came to an end when at the time of
the Western Pact the four participating great Powers had, or
- as was the case for Germany - were to have permanent
seats. The withdrawal of Italy and Germany from this
political body deeply affected the political basis upon
which the settlement treaties were based. Moreover, the
grouping of the Powers had shifted so much that a part of
the Locarno great Powers, viz., Great Britain and France,
had in the year 1939, through agreements with Poland,
already taken up sides in advance in case of a possible
conflict.

Concerning the treaties of arbitration and conciliation with
Denmark and the Netherlands of 1926, may I be allowed to
point out that the procedure provided therein could not be
applied at all, as there were no conflicts between Germany
and the aforesaid countries; quite to the contrary, Germany
took steps which were aimed at the enemy belligerents, whom
it wanted to anticipate in the occupation of these
countries.

The prosecution mentions, moreover, a number of assurances
given by Hitler to countries with which Germany subsequently
waged war. Since Herr von Ribbentrop did not give such
assurances in person, but since they were given by the
Fuehrer, his participation could form a point of argument
only if he had given advice to Hitler in this respect. No
evidence has been produced to sustain such

                                                  [Page 163]

a suggestion. A large part of these so-called assurances is
contained in speeches made by Hitler before a German public,
either in mass meetings or at the Reichstag. It is doubtful
indeed whether such declarations, addressed in the first
place to the German public, could have any binding results
in the field of International Law.

Whereas up to now I have spoken about the actions that led
to the outbreak of the war and its spread, I shall now
proceed to the second large complex of the Indictment, which
deals with crimes committed during the war.

The Charter, in Article 6b, declares violations of the laws
or customs of war to be punishable. This conception is
illustrated by a number of examples such as deportation,
shooting of hostages, etc. But these examples do not limit
this conception. We are therefore obliged - in the same way
as with Article 6a - to propose to the Tribunal a
qualification which it can use as a basis for its decisions.

I agree in this conception with the procedure proposed by
the French prosecution. They declared that they would be
free to qualify definitions of punishable offences which had
not been fully defined by the Charter.

What is good for the prosecution is good for the defence.

The use of the expression "Laws and Usages of War", as well
as the enumeration of examples, forces one to believe that
the Charter aims at violations of the classical jus in
bello. I therefore qualify war crimes as offences against
prescriptive law established between belligerents by
agreement, or binding and recognized generally without
special agreement. The several cases which come under the
collective conception of war crimes must, therefore, each be
examined as to whether they are to be regarded as such
according to the traditional rules applying to armed
conflicts between States. Whereas, in general, classical
International Law holds responsible the State as a unit
only, there always existed in the usage of war the exception
that also acting individuals were liable to be held
responsible. How far this responsibility of the individual
person can be followed by criminal proceedings after the war
has been the subject of many discussions. It can be
ascertained that the prevailing practice of States is that
the belligerent who has been injured by a war crime may
also, after the war, call the offender to account. If
several States which have fought shoulder to shoulder in the
war form a common court against the war criminals of the
conquered adversary, this court has the collective
competency of all the States that form the court or have
joined its charter.

When speaking of the liability of individuals to be punished
for crimes committed during the war against the adversary
who thereafter sits in judgement upon him, one thinks in the
first place of former members of the combating forces.
Already at Versailles there were difficulties in answering
the question as to what extent military chiefs were to be
made responsible. The idea of having a Minister of a
department (Ressortminister) held responsible under criminal
law has so far never emerged. Also in Versailles the War
Criminals Committee was occupied with the question of making
non-military personalities responsible from only a political
point of view. This committee discriminated clearly between
war criminals, who were to be judged by the allied court,
and the guilt with regard to the outbreak of war, for the
examination and judging of which a special political
international court was to be established.

The customary conception is, therefore, that a Minister
(Ressortminister) cannot be held responsible for violations
of the jus in bello. The prosecution can be successful in
this only by going the roundabout way via a conspiracy. If
we follow the interpretation given to this conception, the
Foreign Minister of the Reich would, for example, have to be
responsible for the destruction of the village of Ouradour.
He would have to uphold actions which have nothing in the
least to do with the Reich's foreign policy, and are merely
isolated actions by some office or other.

As the hearing of evidence has shown, the Reich Foreign
Minister was not only not competent for the conduct of war,
but had in fact not the slightest possibility of influencing
military measures as far as either curbing  or furthering
them was concerned.

                                                  [Page 164]

If one wished to regard the various departmental Ministers
(Fachminister) as a community of conspirators also with
regard to war crimes, it would have to be proved that the
military offices, competent to conduct the war, acted in
agreement with the Ministers or at least after having given
them the necessary information.

The condensing of military authorities and Ministers into a
unity of purpose, directed towards the perpetration of such
criminal acts, abominated by all decent people, is an
artificial subsequent construction by the prosecution. The
unity, which did not exist at the time when it is supposed
to have been effective, has but now been drawn up as a
conception. The facts are now subsequently to fit the
conception. It is obvious that criminal proceedings cannot
be built up on such a method.

Herr von Ribbentrop cannot therefore be punished without
discrimination for all war crimes committed during the war
by Germans. Such a responsibility for the results would be
absolutely grotesque. He could rather only be held
responsible for individual acts if he himself participated
in certain concrete individual actions.

Herr von Ribbentrop is accused by the prosecution that,
according to testimony of General Lahousen, he issued
"directives" to Admiral Canaris to have Ukrainian villages
set afire, and to beat to death the Jews living there.
First, I wish to establish the fact that even a Foreign
Minister cannot issue directives of any sort to a military
agency. Furthermore, it would have been wholly nonsensical
to issue such directives for setting afire Ukrainian
villages. Ukrainians supported the German fight against the
Poles. Thus, hardly anyone will believe that Herr von
Ribbentrop at that time advised the destruction of his own
ally. My client further insists categorically that not one
word was mentioned about the beating to death of Jews in
that particular, conference, especially so as in this
connection no reason for it existed.

I beg the Tribunal to base their decision regarding charges
of war crimes and crimes against humanity raised against
Herr von Ribbentrop, on the general attitude of the accused
with respect to questions of humanity. As was proved beyond
doubt by the evidence, Herr von Ribbentrop saved the lives
of 10,000 allied prisoners of war through vigorous, personal
intervention. As I will further show, within the framework
of the conspiracy, he was instrumental in the unshackling of
British prisoners of war and he used his influence for the
observance of the rules of the Geneva Convention. He was
opposed to the branding of Russian prisoners of war. These
are examples upon which the Tribunal may base their decision
with respect to questions of humanity. This may also be an
appropriate gauge for the rest of the behaviour of the
accused, as concerns questions of humanity in problems where
he was not actively involved.

Furthermore, his attitude in the question of the treatment
of terror flyers is charged as a war crime to Herr von
Ribbentrop.

My client, as well as the defendant Goering deny that the
conference at Schloss Klessheim, mentioned in Document 735-
PS, ever took place. I should like to emphasize that General
Warlimont, who made these notes, did not personally
participate in the conference. Furthermore, the expression
of opinion attributed to Herr von Ribbentrop, according to
the document, stands in contradiction to his usual demeanour
in this question. State Secretary Steengracht deposed here
that Herr von Ribbentrop, after the publication of the
notorious article about lynch justice in the Reich, at once
vigorously protested against it.

Further evidence concerning the problem of terror flyers,
through examination of the witnesses Colonel-General Jodl
and Field-Marshal Keitel, proves that not only the Foreign
Office but Herr von Ribbentrop personally had pledged
themselves in principle to uphold the Geneva Convention, and
that Herr von Ribbentrop together with other leading
personalities took pains to assure the retention of at least
the basic human principles, even approaching Hitler at his
most ruthless periods. In spite of all that happened, the
fact that in consequence of these steps the Geneva
Convention was not renounced must be called a success.
Hereby it must never be overlooked that especially in cases
of terror flyers, where so-called

                                                  [Page 165]

terror attacks in the form of air bombardments were
involved, if there was an indiscriminate attack upon cities
without attacking only military and armament objectives,
such attacks then undeniably constituted a war crime in
themselves. It must be taken into account in the reaction
throughout Germany towards the conduct of the air warfare of
the Western Powers that, according to established and
traditional conceptions in armed conflict between nations,
attack on the civilian population is prohibited. This
thought is not only expressed in the Hague Convention
concerning land warfare but constitutes a stipulation by
contract of general International Law, binding for all,
which is valid not only in the theatre of operations on
land. Acknowledging this, the Hague rules of air warfare,
although permitting air attacks on military objectives in
undefended cities, do not permit the bombing of the
dwellings of the civilian population. Although the Hague
rules were not ratified, they were in practice followed by
all belligerents, and acknowledged as common law.

These measures became especially acute after complete air
superiority had been achieved by the Allies and the
resulting constant low-level attacks on the civilian
population took place. These particular events led for the
first time to the discussion whether, in the face of a
warfare which was undeniably violating International Law, it
was still of any use to uphold the Geneva Convention in its
substance. These considerations and corresponding
reflections led to the drafting of documents which have
become the object of evidence in the proceedings and which
constituted - as shown by the evidence - drafts but not
decisions on this question. They can, therefore, not form
the basis of a judgement, as surely a State is entitled to
have the opinion of appropriate authorities expressed on
this question.

With the permission of the Tribunal I have presented the
role of Herr von Ribbentrop before the war, at its outbreak,
and throughout its duration.

Beyond this the prosecution holds all defendants responsible
for every crime presented here. The idea of a conspiracy is
being used as a basis of this joint liability.

If the logical inferences were to be drawn from this
extravagant accusation, then each defence counsel would have
to deal with all the details presented by the prosecution.
The obvious impossibility of taking up so much of the
Tribunal's time shows how questionable the basis of the
accusation is.

Therefore I have to confine myself to examining the
participation in the conspiracy only from the viewpoint of
the actual and legal position of the Foreign Minister in the
Third Reich.

Conspiracy in the sense of the Charter and of the Indictment
means a sort or form of participation in a punishable act.
This kind of offence was until now unknown to German and
continental legal conception. It existed only in Anglo-Saxon
law. In this legal sphere, by conspiracy participation in a
punishable act is understood which requires, as the smallest
characteristic, an agreement to commit a crime.

A further prerequisite is that the mutual plan causes the
perpetration of a definite punishable offence.

The Charter proceeds from this form of participation in a
crime in declaring punishable all offences stated in Article
6, assuming the existence of a conspiracy or a common plan,
as a special form of participation in these crimes. The
Charter then stipulates, in Article 6a, another special form
of conspiracy declaring punishable the participation in a
common plan or conspiracy to carry out aggressive wars or
war violating international treaties.

Under the conception "common plan", the Charter and the
Indictment obviously understand something that reaches
beyond the sphere of conspiracy. Mr. Justice Jackson himself
admitted that the application of the conspiracy as an
offence, according to Anglo-Saxon law, was exceeded and a
conception created which is not yet juridically
determinable.

                                                  [Page 166]

Both forms of conspiracy constitute a liability for all acts
committed by any one person carrying out both these forms of
conspiracy.

The Indictment uses piracy as an example in order to make
the participants in this alleged conspiracy appear as a
whole. The conspirators are all on board a pirate ship
which, contrary to the law and justice of all nations,
engages in robbery and therefore is outlawed. Anyone who
punishes the crew helps to restore justice.

At first glance this picture appears somewhat apropos.
However, on closer inspection, it becomes obvious that it is
only a matter of a catchword which tries to compare the
community of the ship's crew, united with the ship for
better or  worse, to the dissimilar complicated conditions
of a modern State organization.

The ships of all nations are, according to established,
commonly recognized and uncontested conceptions, authorized
to combat piracy on the high seas upon encountering a
pirate: The criminal law of almost all nations knows
explicit regulations for combating piracy. The peculiarity
of this offence, unlike other acts punishable in every
country, whether committed against native or foreign
citizens - for example white slave traffic acts,
counterfeiting of coins, and so forth - lies in the fact
that  the jurisdiction is carried out on the high seas.
Therefore, the mistaken idea may arise that a crime in the
sphere of International Law is concerned. This however, is
not the case. Piracy is a common offence, the prosecution of
which is, by International Law, permitted not only in
territorial waters but also on the high seas belonging to
all nations. The basis for this conception was laid in the
United States in the beginning of the last century by
decisions given by Chief Justice Marshal.

The acts with which Herr von Ribbentrop is charged were
committed at a time during which the German Reich and its
opponents confronted one another first in peace and then in
war, on the stage of international relations. An example
taken from the sphere of common criminal law as practised
inside a country is not suitable to convey a plastic
representation of a conspiracy of an entire State apparatus.
Besides, the arrow hits the archer himself. In the first
place, the idea of the State which, according to the
conception of traditional International Law, is the only
bearer of rights and duties, is being destroyed so that the
persons standing behind it and acting on its behalf may
separately be made liable to criminal prosecution. As
usually only few persons acted directly as participants in
the acts charged, the multitude of these people is then
again compressed into an artificial entity, in order to hold
them also responsible for those acts which were not
committed by them.

Here the criticism of the jurist must come in. According to
our conception of law and also the conception of law of all
civilised nations, the criminal responsibility is bound to
basic rules showing but few divergences. Thus, according to
continental law only such persons can be held responsible
for a punishable act who deliberately or through negligence
contribute to a definite act. According unanimous agreement
the perpetrator, therefore, must know the plan to which he
allegedly contributed, foresee the acts committed in
executing it and approve of them.

Participation in the form of conspiracy was until now known
as an offence only to a limited legal circle. Therefore, it
is familiar only in part to the legal systems of those
nations who are conducting or have joined in the present
proceedings. It was completely unknown to the German
conception of law and, therefore, to Herr von Ribbentrop at
the time of his political activity.

This form of complicity marks a much wider range of actions
as criminal than Herr von Ribbentrop could have anticipated
at the time of his activities in the field of foreign
policy.

But even if this form of complicity is assumed as a basis
for legal findings according to the Charter, neither the
official position as Reich Foreign Minister held by Herr von
Ribbentrop, nor the individual acts committed by him in this
capacity, can make him appear as a member of a conspiracy.

                                                  [Page 167]

The case of von Ribbentrop shows in particular how, through
the introduction of the concept of conspiracy,
responsibilities become interlocked which, taking into
account the official position and authority as well as the
personal attitude of the individual conspirators, have
nothing whatever to do with each other.

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