Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-173.04
Last-Modified: 2000/09/15

DR. HORN, Continued:

The prosecution, however, in order to achieve its aim,
compresses into an artificial and subsequently created unity
a number of actions and individuals, chosen at random, which
have nothing at all to do with each other. If one followed
the Charter and the Indictment, the result - wholly alien to
any actual and legal thought - would be that Herr von
Ribbentrop, while personally and actually completely
eliminated from any influence over the occupied eastern
territories, as thoroughly proved by the evidence, would
have to bear the responsibility for all war crimes and
crimes against humanity committed there, whereas, for
instance, the defendant Streicher, although he headed his
own special department, would be answerable for the foreign
policy.

If one confirms the existence of a conspiracy to commit war
crimes and crimes against humanity it would practically
result in making for example Herr von Ribbentrop and the
Foreign Office responsible for such crimes, whereas evidence
has shown that this very office always tried to observe the
rules of warfare, according to International Law, and to
adhere to the Geneva Convention even when this involved a
severe struggle with Hitler.

The conspiracy to commit war crimes and crimes against
humanity can only refer to actual offences against rules of
war, either individual actions, as, for example, the
execution of escaped British Air Force officers, or certain
measures incompatible with the accepted rules, of war. In
any case, the unity of conspirators must relate to a
specific act or to specific groups of acts of the same
nature. It is impossible to hold a defendant responsible for
actions not approved by him, or which he has tried to
prevent.

THE PRESIDENT: The Tribunal will recess now.

(A recess was taken.)

DR. HORN: With the permission of the Tribunal, I shall
continue on Page 79 of my final plea.

The point of view just mentioned applies particularly to
Herr von Ribbentrop. Not only did the military conduct of
war not belong to his department, but he was, as was proved
by evidence, expressly excluded from it by repeated orders
of Hitler. His department was only affected by war crimes in
so far as they led to negotiations with foreign Powers.
Moreover, the fact, for instance, that after the terrible
air raid on Dresden the execution of over 10,000 allied
prisoners of war was prevented through Herr von Ribbentrop's
intervention with Hitler proves that, when informed of
imminent war crimes, he did what was in his power and within
his sphere of influence. These arguments and the result of
evidence show how unjust it would be to share the point of
view held by the prosecution, i.e., to hold a Foreign
Minister with limited authority responsible for war crimes
and crimes against humanity, the more so as it has been
conclusively proved that he was excluded from any influence
on the conduct of war.

With the Tribunal's permission, I shall now deal with the
alleged conspiracy for the planning and preparation of
aggressive wars and the violation of treaties. Within the
framework of such a conspiracy, the defendant is apparently
to be held responsible in his capacity as Minister for
Foreign Affairs and the office formerly held by him in the
diplomatic service.

This kind of conspiracy apparently deals with any act or
plan which has any connection with war, its preparation,
outbreak and course. As individual acts within this enormous
range are irrelevant themselves as regards criminality, and
until now have never been conceived from the point of view
of criminality under "Outbreak of War", this kind of
conspiracy does not contain any facts so far known by any
system of criminal law in the world.

                                                  [Page 168]

Therefore, I can only investigate this complex from the
point of view of von Ribbentrop's ministerial position and
his relation to the German Reich which waged the various
wars.

Herr von Ribbentrop, from the 4th of February, 1938, held
the position of a Minister for Foreign Affairs of the German
Reich. As shown by the evidence, Herr von Ribbentrop was
called to his office at a time when the actual leadership of
foreign policy had already passed to Hitler in his double
capacity of Reich Chancellor and head of the State. I have
submitted as a document Hitler's speech of 19th July, 1940,
held at the Kroll opera house, in which he emphasized that
Herr von Ribbentrop had had to handle foreign policy for
years according to Hitler's political directives. Herr von
Ribbentrop, therefore, did not possess the position of a
Minister, as understood in modern political constitutions.
As shown in the above-mentioned speech, he did not possess
it either in fact or in law. This is shown by an examination
of the public law of the Third Reich.

According to constitutional law, as it has developed in
modern States in the course of the nineteenth and in the
beginning of the twentieth century, the department of the
Minister for Foreign Affairs belongs to the executive
departments. The Minister for Foreign Affairs has to share
with the Prime Minister the responsibility of conducting
foreign policy. This involves in a parliamentary democracy
responsibility to the representatives of the people; in a
monarchical or presidential constitution responsibility to
the head of the State. The asserting of this responsibility
is actually of political importance only, and results in the
resignation of a Minister from his office when he no longer
enjoys the confidence of Parliament or of the head of the
State. Most constitutions make provisions for the indictment
of a Minister by the representatives of the people in case
of violation of official duties. But even when convicted by
a constitutional court in some kind of criminal proceedings,
the Minister is not punished but his conduct is merely
declared to have been wrong.

Both possibilities to call ministers to account were
provided by the German constitution of the Weimar Republic.
The indicting of a Minister was however, never put into
practice.

The constitutional law of the Third Reich brought a complete
change in these matters. A short time after Hitler had come
to power Parliament was asked, with reference to existing
internal difficulties, to give its consent to an "Enabling
Act" (Ermachtigungsgesetz). The German people and its
representatives expected at the time that this authorisation
was to be used temporarily and merely for the removal of
actual distress. This law became, however, the foundation of
a complete transformation of the constitution.

The possibility of parliamentary responsibility no longer
existed. It changed into responsibility towards the Fuehrer
and Reich Chancellor, in whose person the, authority
relinquished by Parliament now rested. Now there remained
but one responsibility: that towards the head of the State.
Starting from this parliamentary authorisation all functions
deriving from the authority of the State concentrated more
and more in Hitler personally. The traditional division of
power, the result of more than a century-old struggle for
constitutional rights by the fusion of all means of power,
became an empty shell and thereby obsolete. Full powers were
concentrated in the hands of the Fuehrer, who on his side
made use of them separately through his plenipotentiaries.
The constitutional jurisprudence of the Third Reich
designated this as change from the real to the functional
division of power.

The individual Minister, after this change had taken place,
did not act any longer on his own responsibility but only on
the order he had received from the head of the State. What
applied to the individual also applied to the former Reich
Cabinet. It had no longer any influence on State leadership
but was a collective term for various branches of
administration technically separated. As the political tasks
no longer existed with which normally the Ministers as a
group - that is, the Cabinet - had to deal, the tasks of the
Council of Ministers were automatically

                                                  [Page 169]

settled by the very weight of the facts themselves.
Therefore, as the hearing of witnesses has shown, it never
met during von Ribbentrop's term of office.

Even the designation "Minister" did not signify any longer
the head of a government department (Reichsressort) but
became a mere title expressing a rank.

The result of this reform was that the Minister for Foreign
Affairs also no longer had the right to determine the
outline of foreign policy. Evidence has shown this fact also
in the form of speeches and utterances of Hitler, in which
he, e.g., after the occupation of the Rhineland and the
Anschluss of Austria, said that he had brought about these,
as he called them, "great decisions" against the will of his
advisers through his own resolve, referring to his
responsibility towards the German people and to history.
Seen from the point of view of constitutional law, this
means that no Minister had any possibility of preventing the
decisions. Neither had he constitutionally any authority to
examine the legality of the Fuehrer's decisions. For,
because of the just-mentioned concentration of all functions
of State power in Hitler's person, it followed that he
possessed both legislative and executive authority. Any form
of the Legislation Act was no longer provided for in the
Third Reich. Also there was no measure by which one could
draw conclusions from the Fuehrer's decisions, whether he
acted in his capacity as law giver or as head of the
executive authority. The conception of material law, which
in Germany as in all continental States was well established
up to the assumption of power (Machtubemahme), completely
lost its meaning; also individual directives were given in
the form of laws.

In all constitutions the authorities whose task it is to
apply laws are not allowed to examine their purport. This is
so even for jurisdiction - how much more for administrative
authorities. The application of a law that was made in the
regular way, provided for by the constitution, must not be
refused by any office of the State. Examination even by
courts of law is limited to the question of determining
whether the rule laid down by the constitution has been
followed. This is also the case in Great Britain and the
United States, where decrees issued by the executive
authorities may be subject to examination with regard to
their content but not laws passed by Parliament.

In the constitution of the Third Reich there was only one
authority for all expressions of the will of the State: the
Fuehrer. Often it could not be perceived in which capacity
he acted owing to the destruction of the concept of
constitutional law. The doctrine of the constitutional law
of the Third Reich, therefore, was debased to a theology of
revelations of the Fuehrer. The old discriminations ceased
to exist in the thought of the Ministers. The only question
that could arise in the constitutional law of the Third
Reich was whether the will of the Fuehrer was expressed in
such a concrete way as to reflect the will of the State.

This constitutional practice was unmistakably the result of
having transferred the pseudo-military way of thinking to
the sphere of politics. The conceptions of obedience and
discipline were transferred to a sphere to which they did
not belong.

In connection with the elimination of the traditional
division of power one fact must be pointed out which is just
as characteristic for this despotia sui generis as it speaks
against the existence of a conspiracy or a common plan.

The evidence given shows no kind of advisory council or any
organ of control over the head of the State. Neither the
Cabinet nor the Reich Defence Council, nor any other
advisory committee, had any influence on Hitler's decisions.
The key documents and the statements of witnesses show only
monologues by Hitler before an ever-increasing audience. All
that has the appearance of a council is in reality only one
for the reception of orders. The evidence presented has
definitely shown that efforts to influence Hitler at the
most led to reactions that could not be calculated.

Herr von Ribbentrop and several of the other defendants,
without doubt, had considerable power in their own spheres
which did not interest Hitler. They

                                                  [Page 170]

were, however, completely denied participation in the great
decisions on war or peace, armistice, peace offers, etc.

In the position of Foreign Minister, as held by Herr von
Ribbentrop, an independent personality was not tolerated.
Herr von Ribbentrop was aware of this, as State Secretary
von Steengracht has testified here. He stated that Hitler,
at the most, had use for a Secretary for Foreign Affairs but
not for a Minister for Foreign Affairs.

This development in the practice of constitution and
government can hardly be reconciled with the thought of a
common plan and conspiracy. The conspiracy demands, as we
have seen, a unanimity or agreement in aims in which the
participants form their will freely. The political practice
of the Third Reich only knew acclamation.

So far, my examinations have been based on the norms of
actual criminal law as laid down in Article 6. I should not
like to close my statement without drawing the Tribunal's
attention to the relation between politics and law.

The essence of politics is and remains, in the life of
sovereign States, the defence of the interests of one's own
people. In order not to let this interpretation of politics
degenerate into unscrupulousness, international life has
established the principle of the settlement of interests,
and diplomacy as representative of this principle. It is
diplomacy which has had an essential influence in
establishing the principles of international relations and,
therefore, of International Law. The imperfection of
International Law is caused by the coexistence of many
countries with equal rights. Its heel of Achilles was the
lack of any superior authority which would have been in a
position to ensure the existence of legal order in the same
way as the authority of a State is able to do within its own
frontiers. Therefore, at all times, the unrestrained display
of forces has played a very great part in the international
sphere. Statesmen are in duty bound to take care of their
own people's interests. If their politics are a failure, the
countries they act for have to bear the consequences. They,
themselves, are judged by the judgement of history. But in a
legal sense they were responsible only to their own State
for acts with which their State was charged from abroad as
infringing International Law. The foreign country injured by
the action in question could not indict the acting
individual. The barrier erected by International Law,
respectful of national sovereignty, between the acting
individual and foreign Powers was only removed in the case
of war crimes, whereof I have spoken.

At any rate, at the beginning of World War II such was the
conception of International Law which, despite all attempts
to the contrary, could not be shaken.

The French Chief Prosecutor gave as a reason for the
indictment of leading men of the late regime the fact that a
German government, which might have been able to take legal
proceedings in these cases, no longer existed.

With the greatest esteem for this polished argument, it
cannot remain hidden to a critical observer that such sharp
logic is subject to false conclusions.

Any organized resistance headed by a national government
came to an end when the German Wehrmacht was utterly
defeated and the whole of the German territory occupied by
the Allies. The four principal victorious Powers, which form
this Tribunal, acquired by their might a legal right
recognized by International Law to decide the fate of German
national territory. They could have divided Germany up. But
they chose another way. In the Berlin Declaration of 5th
June, 1945, they assumed "supreme authority within Germany,
including all the powers possessed by the German Government,
the High Command of the Army, and any State, municipal or
local government authority." But this was all. The
declaration expressly emphasized that the transfer of the
said authority did not mean the annexation of Germany.

The exercise of the claimed rights was transferred to the
Control Commission, composed of the Commanders-in-Chief of
the four occupation zones.

Since the Berlin Declaration, Germany has been in a
transitory state, which is still continuing at present. At
the Potsdam conference held in July, 19 45, the four

                                                  [Page 171]

Powers came, among themselves, to further agreements, of
which we were informed by the communique of 2nd August,
1945. The Potsdam "Agreement for the establishing of a
Council of Foreign Ministers" transfers to the said council
the preparation of a peace settlement, which is to be
accepted by a German government "when a government suitable
for this purpose has been organized". A second agreement
provides regulations concerning Germany under allied
control.

That wording makes it clear that Germany is to remain a
national State, that it is being placed under Allied control
and that the establishment of a German government is
proposed. This government is thereupon to accept peace
conditions. This involves a government which is in a
position to enter into commitments towards foreign Powers as
a partner qualified in International Law.

The victors have accordingly chosen to exercise the right of
decision given to them by conquest in such a way that the
German State will not be destroyed. During the transition
period they themselves exercise the functions of the
temporarily non-existing German Government. We are,
therefore, entitled to take the Potsdam Declaration as the
basis for the legal review of Germany's position.

The German State, accordingly, has not been annihilated. It
would therefore be wrong, juridically speaking, and we would
incur the reproach of lack of historical understanding, if
we considered that State as a new one, the direction of
which is envisaged under its own government. Germany, is
burdened with obligations which arose from her past. This is
possible only if the State upon whose behaviour the
obligation was based, and who one day must answer for it, is
regarded as the same legal body.

Though the German State, at the moment, is not in a position
to act according to International Law through its own
organs, it has not vanished from the sphere of the
international legal order.

Home ·  Site Map ·  What's New? ·  Search Nizkor