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 4 of 12)

[Page 167]

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, 1945, 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.

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