The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Third Day: Monday, 8th July, 1946
(Part 3 of 12)

[Page 162]

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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