Afternoon Session
DR. STAHMER: I come now to the summary.
In reviewing the personality and life of the Defendant Göring, the following points must be considered for the appreciation of his actions:
Provided at home with a good educational background and training in character, he was moulded decisively as a young officer and combat airman during the first World War, in which he proved his outstanding worth, receiving the highest award for bravery, the decoration Pour le Mérite. He experienced the collapse of the German war effort as a consequence of, as he saw it, German treachery from within.
After the rule of the Kaiser had been overthrown, the German people wanted to give themselves a new constitution on a democratic basis and then hoped to be able to work their way up again by industry and perseverance. In this, the confidence in the far-sightedness of the victor powers of that time, and especially in the 14 points of Wilson, played a great part. But when the Treaty of Versailles utterly frustrated these hopes, the Weimar democracy fell into a serious crisis from which it was not to recover. This, together with the subsequent world economic crisis, formed the undeniable prerequisite for the fact that Hitler was able to seize power.
First, the “fight against Versailles” made his rise as a Party leader possible. Göring, as a witness, described how he agreed with Hitler at their first meeting that nothing could be achieved by written protests.
The powerlessness of the German democracy had by then become apparent to the entire world. Göring like Hitler was convinced that Germany inevitably must become a victim of Bolshevism unless it was possible to muster against it sufficient defensive strength by the re-establishment of German self-confidence at home. That Germany was also forced to take a firm stand against the Versailles powers was a matter of course. In this Hitler unquestioningly seized upon the fact that Germany belonged to the West—culturally, economically, and also politically. He believed that the Bolshevist danger, which in the first place was directed against Germany, would ultimately also threaten the Western countries. Therefore he was of the opinion that he would be able gradually to gain their recognition and support if he took up the ideological struggle against the East.
From this basic attitude alone is it possible to explain his entire policy until the actual collapse. One may rightly condemn it today as having been a failure from the outset, but one cannot ignore the fact that initially certain things in the development clearly seemed to justify it. And this explains how Hitler succeeded in making an ever-increasing part of the Germans his followers.
Göring firmly believed that salvation could come only through Hitler. He recognized in him the born national leader who knew how to influence and to guide the masses and whose hypnotic willpower shrank before no obstacle. He realized that under a democratic constitution only such a man of demoniacal demagogic talent was able to prevail. And therefore he joined him.
Because Göring was a true and honest German, inspired only by love for the fatherland, he did not even think of using Hitler only as a tool for his own advancement. On the contrary, he took it upon himself from the beginning to recognize in him the man who alone decides, in other words, the Führer, and to be satisfied with a subordinate role. Therefore the famous Air Force captain and holder of the order Pour le Mérite did not hesitate to swear the oath of allegiance to the then still unknown Hitler, an oath which was to hold good for the rest of his life and actually did so. It is tragic that a struggle such as that led by Göring and Hitler could be so completely misunderstood as to be considered from the very outset as a conspiracy for the purpose of committing crimes.
His aim was at first directed towards freeing Germany from the shackles of the Treaty of Versailles. It is true that the Weimar Government had made repeated attempts to be released from the most onerous obligations of this treaty. However, Germany was not successful in her endeavors for a revision. No progress was made by negotiating. Did not international law appear to be only an instrument in the hands of the victors of Versailles to keep Germany down permanently? Was it not still true in the world that might came before right and that the Germans would achieve something only if they had the courage to shake their fists?
Such considerations appear absolutely understandable from the situation of that time. To construe from them a proof for the conspiracy alleged by the Prosecution would mean a complete misunderstanding of the facts. Actually, the development after 1933 seemed at first to prove Hitler completely right. He easily achieved with his methods much more than—if given voluntarily—would have kept the Weimar Government in power.
From the willingness of the foreign countries not only to conclude treaties with Hitler—such as the Naval Agreement of 1935 and the Munich Pact of September 1938—but also to participate to the end in the Party rallies, the German people could only conclude that Hitler had chosen the correct road for reaching international understanding. This impression and this judgment were absolutely correct until the fall of 1938. Had Hitler afterwards observed loyally the Munich Agreement, then he would probably have stayed the arguments for the “stop” policy which was initiated against him. Not only would peace have been maintained, but Hitler could also have harvested the fruits of his domestic and foreign policy pursued until then and recognized by all powers.
Basically, the argument today centers only on the question of whether the developments since then and their catastrophic consequences should be charged solely to him or to others. All Germans who followed Hitler at any time and in any way are accused. For the prosecutors maintain—above all those who put no trust in him from the outset and who denied the legitimacy of his government from the beginning—“It was to be foreseen that he would end as he did!” Therefore, everyone who supported him at any time and in any way also shares in the guilt.
To this accusation it must be objected that retrospectively it invests the sad results with an inevitability which would destroy all belief not only in freedom, but also in the wisdom of man. Of course Hitler himself did not desire the end as it came. He often enough announced at the beginning that he was not out for the laurels of war but that he would like to devote the rest of his life to peaceful constructive work. From a truly objective point of view, one can reproach him only for not having limited his aims when he could no longer believe in their achievement by peaceful and humane means.
If by such means only those are to be understood which renounce force of any kind, then there would have been no need for him to go his own way and seek a new solution. A certain play with force, as long as it did not get out of hand, will, therefore, have to be conceded to him. Where it got out of hand can only be determined, for lack of other proof, by the results which he actually caused with his policy. He certainly did not foresee and intend the bad results. However, it must be considered his fault that he did not accept the lesson of his failures but allowed himself to be goaded to still greater extremes. But how much of this guilt can and may be charged also to his followers?
Whoever did not reject Hitler’s methods, and thereby him personally, from the very beginning as illegitimate, found it difficult to recognize where the political aims set by Hitler ceased to provide justified reasons for his measures, and where beyond that the policy became a crime. The dividing line in this respect was from the standpoint of the purely German legal conception probably considerably different from that of other nations or even the world. For the latter, for example, were hardly interested in the maintenance of the Weimar constitution and the basic rights granted by it to the individual German. Its violation, therefore, up to the second World War has never caused other states to intervene with the German Government. On the other hand, once the war had broken out, the Germans were forced to put German interests above their sympathy for members of other, especially enemy, states. Each believed himself to be doing enough if he took care in his sphere to see that unnecessary harshness was avoided. To revolt against orders from the highest German authority would not only have been completely senseless and hopeless, but, until shortly before the bitter end, it would also have been a violation of German legality and thereby a punishable offense. Reproaches for failure to revolt can, therefore, be made only if the breach of formal legality, without consideration of the immediate practical effect and only for the sake of the principle—which is the attitude of a revolutionary—could be defined as a legal obligation.
The consequences of such a conception are so far from the point that they cannot be considered seriously at all, because hitherto existing international law was primarily based on the principle of unlimited sovereignty of the states. No country has been willing to submit vital and decisive questions to the judgment of others, no matter to how great a majority or to however independent a tribunal. And now every individual citizen of such a sovereign state was to have had not only the right but even the duty toward the other nations or humanity to rebel against the legal system of his own country because it violated the rights of man and humanity? Such an imposition, made retroactively, pronounces its own sentence. It would place the autonomy of the individual above state sovereignty. Thereby the power of the individual person would not only be immeasurably overestimated, but this would also necessarily lead to the breaking of the last ties of traditional order, to anarchy.
To this way of thinking Göring virtually represents the exact opposite pole. Just as others went to war in order to fight against war as such, he became a revolutionary in order to restore honor to the concept of loyalty. Thus, having once cast his lot with the Führer, he stood by him when he had already lost the latter’s confidence, in fact, even after he had been sentenced to death by Hitler. He remained loyal until today, in spite of everything, by excusing Hitler again and again. To many this may appear incomprehensible, and many may see in it a sign more of weakness than of strength. But this loyalty reveals his whole personality. Göring has occasionally been described as a late Renaissance type; and there is something in that. Although of high intelligence, he allowed himself to be guided in his actions less by reason than by the dictates of his warm heart.
Such a man expresses himself of necessity in a way that is primarily subjective. He does not look upon the people surrounding him and upon others impassionately as factors to be reckoned with; but he feels, above all, what effect they have on him and how they challenge his approval or disapproval so that he finally makes his personal reaction to them the basis for his over-all judgment.
But still, as can be seen from the statements of Generaloberstabsrichter Dr. Lehmann, he always endeavored to be just and to lend an ear to sensible arguments. He always kept himself free from doctrinal prejudices. As a soldier, he always endeavored to do the right thing in each case. His decisions on points of law as well as his social interest, which General Bodenschatz testified to among other things, show his earnest moral sense of responsibility. His attitude toward all criminal acts directed against the honor of women are proof of his chivalry. But in all this he is not guided by a dogma but by his spontaneous common sense, ergo not by intellect, but by life. From actual life he derives his ideas and the values which determine his actions.
Therefore the Führer and the oath of loyalty he had taken to him meant everything to him and were the substance of his life. Ambassador Henderson had judged Göring correctly, when he wrote about him:
“He was the perfect servant of his master, and I have never seen greater loyalty and devotion than he maintains toward Hitler. He was recognized as the second power in the country, and always gave me to understand that he was Hitler’s natural successor as leader. Men in secondary places often tend to emphasize their own importance. In all the open discussions in which I engaged with Göring, he never spoke of himself or the great part which he had played in the Nazi revolution; Hitler had done everything, all confidence was confidence in Hitler, every decision was Hitler’s and he himself was nothing.”
This judgment still applies today. But his loyalty became his disaster. For him a world had gone to rack and ruin. He certainly recognized many a mistake of the past, but he did not show the repentance which many would have liked to see in him. He thereby remains loyal to himself as well. And this completes the picture of his character.
In a period still threatened by chaos, in which men are again searching for a firm foundation for life, the positive value of such loyalty should not be ignored.
THE PRESIDENT: Dr. Seidl, I understand that you have not had your speech translated into any of the languages. Is that so?
DR. SEIDL: Mr. President, I told the General Secretary yesterday the reasons which made it impossible to have the speech translated. However, I have given the Language Division the text in German; and I was told that the German text would be a big help in carrying out the translation as quickly and as accurately as possible.
THE PRESIDENT: Well, the Tribunal has already pointed out to you, many days ago, that it is very inconvenient to them not to have a copy of the speech before them. If you propose to make a speech, they will do the best they can to appreciate it. It makes it very much more difficult and very much more inconvenient not to have the speech translated.
DR. SEIDL: I shall see to it that the translation is made as quickly as possible for the case of the Defendant Frank.
THE PRESIDENT: Very well; go on.
DR. SEIDL: Mr. President, Gentlemen of the Tribunal, when in 1918 the German Army, after more than 4 years of heroic struggle, laid down arms, this was done in confidence of the assurances repeatedly given by President Wilson in 1918. In his speech before Congress on 8 January 1918, the President of the United States of America, in 14 points, had demanded among other things...
THE PRESIDENT: [Interposing.] Dr. Seidl, the Tribunal has already intimated, as you must know, that the question of the 14 points and the question of the justice of the Treaty of Versailles is irrelevant. They do not propose to listen to it. You have been told that before, and many documents have been rejected which dealt with this subject.
DR. SEIDL: Mr. President, I do not intend to comment on the question of whether the Versailles Treaty is just or not. The point is this: The Prosecution have submitted the Versailles Treaty in evidence. They made the Versailles Treaty the main point of the Indictment especially as concerns Count One of the Indictment.
My investigation aims at the following: First, was the Versailles Treaty formed legally? Second...
THE PRESIDENT: I spoke only of the injustice of the Versailles Treaty. But it is even more irrelevant to question whether the Versailles Treaty is a legal document or not. We do not propose to listen to your contending that the Versailles Treaty is not a legal document. There are plenty of matters which are of material moment for your client which you have to discuss before us, but that is not one of them.
DR. SEIDL: Mr. President, I cannot leave the Tribunal ignorant of the fact that the Versailles Treaty and its consequences, especially the causal relationship with the seizure of power by National Socialism, form a considerable part of my speech and it will be...
THE PRESIDENT: Dr. Seidl, I have told you that the Tribunal will not listen to your contending either that the Versailles Treaty was not a legal document or that it was in any way unjust. On those topics we do not propose to hear you.
DR. SEIDL: Then I must construe the attitude of the Tribunal to mean that I will not be permitted to speak of the consequences of the Versailles Treaty, and particularly about the connection which these consequences had with the rise of the National Socialist Party and with the seizure of power by Adolf Hitler and the co-defendants.
THE PRESIDENT: Look. The Versailles Treaty is, of course, a historical fact; and the Tribunal cannot prevent you from referring to it as a historical fact. But as to its justice or as to its being a legal treaty, the treaty which Germany signed, you will not be heard.
As you have not laid your speech before us, we do not know what you are going to say. But we will not listen to that sort of argument.
DR. SEIDL: Then I shall begin on Page 6 of the German manuscript, with the second paragraph.
Thus the struggle for the revision of the peace “Dictate” of Versailles began at the moment when it was signed. In the program of the National Socialist Labor Party of Adolf Hitler, this struggle against the Versailles peace “Dictate” and for its revision assumed a place far surpassing all other demands and considerations. It was the leading thought by which the whole inner-political activity of the Party was guided and which, after the seizure of power, was to form the basis for all foreign political considerations and decisions.
One of the first fellow-fighters of Adolf Hitler was the Defendant Rudolf Hess. Like Hitler, he was also a front-line soldier in the first World War. As a volunteer he joined at the outbreak of the war, and he had risen to the rank of infantry lieutenant when he was wounded in Romania. Incapacitated for the infantry through this wound, he enlisted in the Air Corps.
After the armistice, he fought with various volunteer corps. But in 1919, after the conclusion of the Versailles Peace Treaty, he had to recognize that the victors did not really desire a peace based on justice and a corresponding adjustment of interests. As could be expected, the terms of the Peace Treaty of Versailles, and especially the burden of the reparations on the already seriously affected German economy, had to have...
THE PRESIDENT: Dr. Seidl, it may be difficult for you to cut out of your speech the various references to the topics which I have referred to; but you must kindly try to do it. For if you continue to refer to the topics to which I have referred, namely the justice or the legality of the Treaty of Versailles, the Tribunal will have to stop your speech and go on with some of the other defendants.
DR. SEIDL: Mr. President, the subject I was just dealing with was not a question of justice or legality but a question of the consequences and referred to the investigation of the causal connection. If the Prosecution, in weeks of presenting evidence, showed how the rise of the National Socialist Party came about and how the numbers of its mandates increased...
THE PRESIDENT: Dr. Seidl, those are all facts which the Prosecution is perfectly entitled to prove. What you are now referring to is an argument that certain clauses of the Versailles Treaty were unjust. And that is an argument which the Tribunal is not prepared to listen to. It is not a statement of fact; it is an argument.
DR. SEIDL: Of course, it is an argument...
THE PRESIDENT: I have said that it is an argument we are not going to listen to. If you do not understand what I mean, you will have to stop continuing your speech. Do you understand that?
DR. SEIDL: Page 8, then, if you please.
When in 1925 the Party was founded anew, Rudolf Hess was once more one of the first...
It is impossible, Mr. President, to continue my speech, because all the following statements are concerned with the question: What did the Defendant Hess do up to the seizure of power? And I must say and have said that the mainspring of his activity within the Party and the German people consisted in achieving a revision of the Versailles Treaty and its most unbearable terms. This is the very question of the whole National Socialist movement up to 1933.
THE PRESIDENT: If you confine yourself to statements of fact as to what the Defendant Hess did, there will be no objection to it at all. But as I said, if you make arguments that the Treaty of Versailles is illegal or unjust, the Tribunal will not hear you.
DR. SEIDL: I shall continue, and I ask you, Mr. President, since I do not know the exact limits which I may not transgress, to interrupt me if I should again touch upon a subject which in the opinion of the Tribunal refers to the justice of the Versailles Treaty and...
THE PRESIDENT: Dr. Seidl, you know perfectly well the limits which have been laid down by the Tribunal many weeks ago as to the question of the justice or the injustice of the Treaty of Versailles. There has been a great number of documents rejected on the ground that they dealt with the justice or the injustice of the Treaty of Versailles, and you must have known that perfectly well.
DR. SEIDL: Then I ask the Tribunal to tell me whether I am permitted to make statements to the effect that the economic deterioration, especially the great unemployment, resulted from the reparations clauses of the Versailles Treaty and the refusal of the victorious powers of 1919 to change this reparations policy.
THE PRESIDENT: You may certainly state what the condition of Germany was. That is a matter of fact.
DR. SEIDL: Then I shall again begin on Page 8.
When in 1925 the Party was founded anew...
THE PRESIDENT: Dr. Seidl, the Tribunal is perfectly familiar with this type of argument; I mean, we are not going to lose sight of the argument. We know all about the argument; we do not want to hear it. We think it is entirely irrelevant.
Can’t you go on to other passages of your speech which are important for the Defendant Hess? As I have said, there are a great many matters of which evidence has been given by the Prosecution and which have been answered by the Defense; and upon those matters we desire to hear you.
DR. SEIDL: I shall then begin on Page 10, with the second paragraph.
If, therefore, the National Socialist Party achieved a great victory in the Reichstag elections of 14 September 1930, and entered the new Reichstag with no less than 107 delegates, then that is at least due to the economic crisis of the time, to the great unemployment and so directly to the reparations stipulations, contrary to all economic reason, of the Versailles Treaty and the refusal of the victorious powers, in spite of urgent warnings, to agree to a revision. It is true...
THE PRESIDENT: [Interposing.] Dr. Seidl, you know that is again an argumentative statement, that the Treaty of Versailles was unfair and that the victorious powers had failed to recognize the essential justice of Germany’s case or something of that sort. If you can’t adjust your speech to what I have laid down, we shall have to ask you to recast the whole speech.
DR. SEIDL: Then I shall turn to Page 11, second paragraph. No, I shall turn to Page 12.
When the German people, in compliance with the Peace Treaty of Versailles, had disarmed, it had a right to expect that the victorious powers would also...
THE PRESIDENT: [Interposing.] One moment, Dr. Seidl, as you don’t appear to be capable of recasting your speech as you go along to accord to the Tribunal’s ruling, the Tribunal will not hear you further at this stage. It will go on with the next defendant’s case. You will then have the opportunity of recasting your speech, and you will submit your speech for translation before it is presented, and I would explain that this is the reason why the Tribunal does not propose to hear you upon these matters. They are irrelevant to the issues that the Tribunal has to try. If they were in any way relevant to the charges which are made against the defendants in the Indictment, the Tribunal would of course hear them; but they are, in the considered opinion of the Tribunal, in no way relevant to the charges upon which the defendants are being tried and therefore the Tribunal do not propose to hear them. The justice of the Treaty of Versailles has nothing to do with whether or not the war which was made by Germany was aggressive. It has nothing to do with the war crimes with which the defendants are charged, and therefore, it is irrelevant and for that reason we don’t propose to hear it. Now, as I say, as you are unable apparently to recast your speech, you will be given an opportunity of recasting it in private; and you will then submit it for translation and you can then deliver it. And now we will go on with the case against the Defendant Ribbentrop. Dr. Horn, you are ready to go on, are you?
DR. HORN: Mr. President, I have just heard that the translations are being brought up. Perhaps I may wait until the translation gets here?
THE PRESIDENT: I think you might go on. We can hear what you say and take it down.
DR. HORN: Mr. President, Gentlemen of the Tribunal: “All great upheavals in the history of the world, and especially of modern Europe, have at the same time been wars and revolutions.”[[A]]
[A] Halévy
We are in the midst of such an upheaval. It is by no means concluded as yet. To select isolated events in order to submit them to a judicial appraisal is not only almost impossible but entails the danger of a premature judgment. Let us make no mistake about it; we are not judging here a local crisis the causes of which are limited to a certain part of Europe. We have to form a judgment about a catastrophe which touches upon the deepest roots of our civilization.
The Prosecution has laid down strict measures in judging certain national and international events. Germany is greatly interested in the development of law and justice if its general application leads to an improvement of international morals. This Tribunal has the high task not only of passing judgment on certain defendants, disclosing the causes of the present catastrophe, but at the same time of creating norms which are expected to be adopted universally. No law should be created that is only applied to the weak. Otherwise we would foster the danger that again all national efforts would be directed to develop more fully the power of resistance and thereby make war still more merciless than the one on which judgment is to be rendered here.
In taking these thoughts as a basis I beg to present to the Tribunal the case which I represent.
Herr Von Ribbentrop is being considered among the conspirators as the man mainly responsible for the foreign political and diplomatic side of an alleged conspiracy, which is supposed to have had as its goal the preparation and execution of aggressive wars. It is my primary task to determine, on the basis of the results of the evidence, when a case constitutes an attack in the meaning of international law and in which cases aggressive wars were waged.
The concept “aggressive war” is not exhausted in the proposed formal judicial definition by the American and British prosecutors but has, above all, a material basis.
Only the knowledge of these premises permits the adoption of an attitude which can serve as a basis for the decision of the Tribunal. I am, therefore, deferring the discussion of the problematic aspects of aggression and aggressive wars until, after having described the German foreign policy and Herr Von Ribbentrop’s role therein, I shall have submitted to the Tribunal the evidence for consideration.
As the Tribunal intends to consider the matter in the light of criminal law, I shall especially examine to what extent Herr Von Ribbentrop hindered or furthered the foreign political decisions during the time of his official activity.
Herr Von Ribbentrop’s first step into international politics and his first move in the international game of power was successfully accomplished when he concluded the Naval Agreement between Germany and England in 1935. The circumstances under which this treaty came into existence are as significant for the political problems of those years as they are characteristic for judging the personality of Von Ribbentrop and his further political development. This treaty—as is known in informed quarters—came about under exclusion of the official German diplomacy. The then German Ambassador in London, Von Hoesch, and the Wilhelmstrasse were very skeptical toward this project. Neither Hoesch nor the Wilhelmstrasse believed that England was inclined toward concluding such a treaty, which contradicted the terms of Part V of the Versailles Treaty as well as her previous attitude as displayed at the different disarmament conferences. Furthermore they did not believe that such an agreement could materialize a few weeks after the Council of the League of Nations had declared the restoration of German military sovereignty to be a breach of German obligations; and England, France, and Italy had met at Stresa in order to counteract this German step. And much less did they believe that a successful conclusion of such a far-reaching treaty, with its fundamental significance, could be achieved by an outsider like Herr Von Ribbentrop.
The consequences resulting from the conclusion of this treaty were as significant as they were far-reaching. Herr Von Ribbentrop, who came from the Party, rose greatly in Hitler’s esteem. In turn, however, the relationship between Herr Von Ribbentrop and the conservative diplomatic corps became more and more difficult. This nominal ambassador who had managed to acquire Hitler’s confidence was distrusted because his activity could not be controlled by the Foreign Office.
From the conclusion of the Naval Agreement onwards, Hitler began to see in Herr Von Ribbentrop the man who could help him in the fulfillment of his pet wish—and also, we may say, of that of the German people—to achieve a general political alliance with England. The inclination to realize these intentions had practical as well as ideal motives.
The practical motives can be condensed into the short statement that it is the misfortune of our nation and of all Europe that Germany and England were never able to understand each other, in spite of earnest attempts on the part of both countries during the last 50 years. The ideal motives were grounded in Hitler’s indisputable preference for many approved internal institutions of the British Empire.
Politically the Naval Agreement represented the first important break with the Versailles policy as sanctioned by England with the final approval by France. And thus the first actual and practical armament limitations were put in effect after many years of fruitless negotiations.
Simultaneously with all these factors a generally favorable political atmosphere was created. The Naval Agreement and its effects may also have been the reason for Hitler to appoint Herr Von Ribbentrop Ambassador to the Court of St. James the following year, after the death of Hoesch.
However surprisingly fast Herr Von Ribbentrop succeeded in concluding the Naval Agreement, in offering a general alliance to England he had not the slightest success. Was it the fault of Herr Von Ribbentrop’s diplomacy or the basic difference of interests?
Whoever is familiar with Anglo-Saxon psychology knows that it is not advisable to pester these people at once with proposals and requests. Germans, at first sight, may recognize many common traits in the British, but upon closer observation profound differences will be noted. Both nations have their roots in a different soil. Their spiritual heritages have different sources. The deeper the Germans and the British penetrate, the greater will appear the difference in their faith and their mentality. The deeper the British and the French penetrate into one another’s nature, the more they will find in common with each other. These harmonies between the British and the French were still further enhanced in the past 50 years through the affiliation of their political interests.
In the course of modern history England has always had the desire to ally herself with a continental military power and has sought and found the fulfillment of this interest, depending on the direction of British aims, sometimes in Vienna, sometimes in Berlin, and from the beginning of the 20th century in Paris. England’s interests, at the time of Herr Von Ribbentrop’s activity as Ambassador, did not demand a departure from this line. This was supported by the basic British attitude that Great Britain did not wish to commit herself on the continent. From the Thames the complications which lay dormant beneath the surface on the continent were clearly seen. Added to this was the fact that authoritative men in the Foreign Office were still thinking too much in terms of a policy conducted at the turn of the 19th and the beginning of the 20th century. This thinking was still, now as then, directed towards an alignment with France.
The voices of those who advocated closer contact with Germany were negligible, their political weight succumbed to that of the opposition. To this were added the difficulties which resulted for Herr Von Ribbentrop from Germany’s participation in the Non-Intervention Committee, which at that time met in London in order to keep the powers out of the Spanish civil war.
The Prosecution raised the question of how Herr Von Ribbentrop regarded German-British relations on his departure from London as Ambassador. The answer to this will best be furnished by Document TC-75, which contains the views of Herr Von Ribbentrop on the then prevailing foreign political situation of Germany and on the future possibilities of German-British relations.
In this, Herr Von Ribbentrop presupposes that Germany does not want to bind herself to the status quo in Central Europe. It is his conviction that the implementation of such foreign political aims will necessarily force Germany and England “into different camps.” For this reason he advises the formation of alliances, loose at first, with powers having similar interests (Italy and Japan). Through this policy he hopes to engage England at the danger points of her Empire and still to keep the door open for an understanding with Germany.
Herr Von Ribbentrop then deals with the question of Austria and the Sudetenland. According to his conviction at that time, England will not in either of these questions give her consent to a modification of the status quo, although she might be forced through the power of circumstances to tolerate a solution of these questions.
A change through collision with vital French interests of the status quo in the East will, however, always cause England to become an opponent of Germany in a conflict of such nature. Herr Von Ribbentrop held this conviction not only in 1938 when this document was penned; but, contrary to the assertions of the Prosecution, warned Hitler of this danger even before and at the outbreak of the second World War.
From this document it follows also that Herr Von Ribbentrop did not, as was asserted here, depict the British to Hitler as a degenerate nation, for he says in this document quite clearly that England would become a hard and keen opponent to the pursuance of German interests in the Mediterranean.
This conception of Germany’s foreign political situation at that time, as expressed in Document TC-75, evidently agreed with Hitler’s ideas inasmuch as in the course of the Fritsch crisis Herr Von Ribbentrop took over the Foreign Ministry in place of the resigning Herr Von Neurath.
According to Herr Von Ribbentrop’s testimony, Hitler asked him upon entering his office to assist him in solving four problems. These were the Austrian, the Sudeten German, the Memel, and the Danzig and Corridor questions. As shown by the evidence this was not a secret understanding which was arrived at by the two statesmen.
The Party program contains, in Point 3, the demand for revision of the peace treaties of 1919. In a number of speeches Hitler repeatedly pointed out the necessity of fulfilling these German demands. Reich Marshal Göring testified here that in November 1937 he explained to Lord Halifax the necessity of solving these questions and said that they were an integral part of German foreign politics. He also clearly expounded these goals to the French Minister Bonnet. Herr Von Ribbentrop therefore put his energy into the attainment of goals which were known and which beyond that resulted, of necessity, from the dynamic situation at that time prevailing in Central Europe due to the strengthening of the Reich.
How much or how little freedom of action Herr Von Ribbentrop had as a minister in the solution of these questions, I shall explain in connection with my statement on the participation in the conspiracy of which the defendant is accused. Only this much may be said here: That, as was proven by evidence, with the dismissal of Herr Von Neurath, the decisive authority in the field of foreign politics was also concentrated in Hitler’s hands. Herr von Neurath was the last Foreign Minister who under the regime of National Socialism at first retained a decisive influence on foreign politics as a Foreign Minister, which influence, however, due to the increasing power of the regime, he had to surrender more and more to Hitler’s aspirations towards totality.
In the selection of Herr Von Ribbentrop, a man of Hitler’s own liking became Foreign Minister. Outside of all formalities of state law and jurisdiction, every government without a doubt has a strong component in the purely personal relations among the rulers themselves. Seen from this point of view, it is necessary for the understanding of certain actions and of recent history to look into the relations between Hitler and Herr Von Ribbentrop.
Herr Von Ribbentrop, a well-to-do man of nationalist leanings, saw that Hitler and his Party strove for goals which corresponded with his own ideas and feelings. Herr Von Ribbentrop’s ideas about the foreign countries visited by him aroused Hitler’s interest. Hitler’s personality and political convictions developed in Herr Von Ribbentrop a form of loyalty, the final explanation of which one can perhaps find in the effects of the power of suggestion and hypnosis.
Let us not be oblivious to the fact that not only Herr Von Ribbentrop but also countless people within and beyond Germany’s borders fell victims to this power. What in this courtroom is to be considered by the standards of law, after all finds its final explanation only from the point of view of mass suggestion and psychology, to say nothing of the pathological forms of these phenomena. This task may be left to the sciences concerned.
As an attorney—and only as such do I have to evaluate the results of the evidence—I shall, with the permission of the Tribunal, after clarifying this aspect, present the role of Herr Von Ribbentrop within the alleged conspiracy for the plotting of wars and acts of aggression in violation of treaties.
Herr Von Ribbentrop had not been Foreign Minister for 10 days when he was called upon by Hitler to participate in the conference with the Austrian Chancellor and his Foreign Minister on 12 and 13 February 1938 in Berchtesgaden. Evidence presented in court has confirmed the fact that questions involving Austria especially were exclusively Hitler’s own concern. The then Ambassador Von Papen reported directly to the head of the State. Herr Von Ribbentrop had no influence whatever upon the activities of the Party in Austria nor in the Southeastern territory. My client alleges to have been informed only very rarely and not officially about its activities there.
The former Austrian Foreign Minister, Dr. Guido Schmidt, testified here that Herr Von Ribbentrop did not participate in the decisive conference between Hitler and Schuschnigg. During the other conferences he did not conduct himself in the Hitlerian “style” and created the impression on the witness of not being informed, which in a certain measure was due to his late activity in London and his only recent appointment as Foreign Minister. From this inoffensive conduct of Herr Von Ribbentrop the Prosecution have drawn the conclusion that it was a maneuver agreed upon between Hitler and himself. They insist upon seeing in Herr Von Ribbentrop’s conduct a typical sign of what they characterize as “double talk.” Must not the indisputable dates and facts with regard to Herr Von Ribbentrop, the impression of the witness Schmidt resulting therefrom, my portrayal of Ribbentrop’s position as Minister, his lack of information on the long-planned preparations with respect to Norway and Denmark, and other undeniably proven facts give cause to raise the question whether Herr Von Ribbentrop did not participate in decisions of foreign policy to a far lesser degree than is contended by the Prosecution?
In the question of the Anschluss, at any rate, he did not, as the evidence proves conclusively, play a decisive part. To him Austria was a country, mutilated by the Treaty of St. Germain, which on sound principles could hardly subsist and which once shared a common destiny in history with a greater Germany. The National Socialists were not the first to awaken Austria to the thought of a union with Germany. This thought had ripened in the German element of the Hapsburg monarchy since the revolution of 1848, which aimed at a democratic Greater Germany. After the downfall of the monarchy the Social Democrats continued to fight for it for ideological and material reasons. In fact, they saw in the Weimar state their spiritual offspring. The economic distress resulting from the destruction of the Danube area as an economic entity nurtured the thought of a union with the Reich, which was in a better economic position.
In this fertile soil the National Socialists were able to cultivate the Anschluss idea. In any event the prerequisites for an Anschluss with Germany were created when support for Austria by Italy ceased, due to the rapprochement of the latter toward Germany on account of the Abyssinian conflict. The further reasons that contributed to the Anschluss and its justification will be fully presented by my colleague Dr. Steinbauer.
Reich Marshal Göring testified here that the Anschluss in its close form, as laid down in the Law of 13 March 1938, Wiedervereinigungsgesetz, which was signed also by Herr Von Ribbentrop, did not originally even correspond with Hitler’s intentions, but was put through by him.
As a further violation of treaties with regard to the Austrian question the Prosecution quote the violation of Article 80 of the Treaty of Versailles and the corresponding article of the Treaty of St. Germain, as well as the violation of the treaty between Austria and Germany of 11 July 1936.
THE PRESIDENT: The translation came through to me, I think, as though you had said, “...the union did not even correspond with the intentions of Hitler, but was put through”—it should have been “by Göring himself.”
DR. HORN: Yes, I forgot that.
THE PRESIDENT: Go on.
DR. HORN: In justification of these violations one could point out that the articles concerned constituted a violation of the right of self-determination, on which the peace treaties were based. The outcome of the vote after the annexation at any rate clearly confirms the Austrian attitude of that time.
The clausula rebus sic stantibus could be considered as a further justification for the violation. One could refer to the statement of Under Secretary of State Butler in the House of Commons who, in reply to a question after the Anschluss, stated that England had given no special guarantee for the independence of Austria as laid down in the Treaty of St. Germain.
These legal evaluations would hardly do justice to the facts. Statute law always lags behind the ideal of justice. That does not only apply to domestic law but also to international law. Events show that if treaties fail to make provision for changes, time and events pass them by in order to rebuild them upon a new base. The question of whether the participation in such events can be legally evaluated must definitely be disputed. I shall refer later on to the general aspects of the adaption of the law to the strength of bare facts.
An Englishman once asserted the following: “We have to face the stubborn fact that Central Europe is populated by an almost solid block of 80 million people who are highly gifted, highly organized, and who are conscious of these achievements in the highest degree. The majority of these people have the strong and evidently incredible desire to be united in one state.”
The Anschluss of Austria and the nationalist theories of National Socialism had set in motion this artificially split-up block created by the peace treaties of 1919. No attentive observer could fail to notice the effect of the Anschluss upon the neighboring states.
It is not my intention to take up the time of the Tribunal with the particulars of the subsequent efforts by the various groups of Germans in the neighboring states for incorporation into the Reich. The facts which have now become history are only too well known. My task here is to examine whether these events are the results of a premeditated plan of one person or a group of persons, or whether not rather a long and artificially suppressed force was instrumental in accomplishing the objectives which were assigned to Herr Von Ribbentrop by Hitler at the time of his appointment.
The Anschluss of Austria was the signal for the Sudeten German Party to force the issue of an Anschluss now on their part too.
Herr Von Ribbentrop has been accused by the Prosecution of having, in his capacity as Foreign Minister, engaged in creating difficulties in collaboration with the Sudeten German Henlein. They further accuse him of having induced the Sudeten German Party to increase their demands step by step rather than enter the Czechoslovak Government and of thus having prevented a solution of the whole problem without making it appear that the German Government was setting the pace.
Document 3060-PS submitted by the Prosecution shows just the contrary. It is true that Herr Von Ribbentrop knew that the Anschluss efforts of the Sudeten Germans were encouraged by the Party. But he had no influence on this Party policy nor any thorough knowledge of it. Due to the difficulties which had arisen with the Czech Government on account of the separation efforts of the Sudeten Germans and their partly uncontrollable policy, Herr Von Ribbentrop considered it necessary to see to it that the realization of the Sudeten German aims was carried out within the limits of a responsible policy.
THE PRESIDENT: Dr. Horn, wouldn’t that be a convenient time to break off?
[A recess was taken.]
DR. HORN: The Munich Agreement brought a temporary calm in the situation with reference to foreign policy. The situation was again complicated only by Hitler’s invitation to Hacha to come to Berlin and by the events resulting from this visit. This step with its far-reaching importance came as a complete surprise to Herr Von Ribbentrop. Reich Marshal Göring has testified that after the Slovakian question had been settled Hitler had, in spite of all warnings, decided upon setting up the Protectorate of Bohemia and Moravia. On the basis of the available material it will be difficult to ascertain the final reasons for Hitler’s step. According to the testimony of the Defendant Göring they sprang from Hitler’s constant fear that through connections of the Czech officer corps with Russia another complication of the situation in the southeastern area might develop. This assumption and the resulting strategical and historical reasons may have induced Hitler to take this step of 13 March 1939, which came as a surprise to Herr Von Ribbentrop, too.
This step, which is only understandable by Hitler’s tendency towards surprise decisions, completely changed the German situation as to foreign policy. Herr Von Ribbentrop had warned Hitler at that time of the reaction by the Western Powers, and especially by England, which had to be expected as a result of this step.
And the consequences became immediately apparent in the Danzig and Corridor question which had been under discussion since October 1938. Whereas up to that time the Poles, by reason of the German policy since 1934 and due to the return of the Olsa territory to Poland, had not refused discussions about this problem, a reaction to the setting up of the Protectorate became apparent immediately at the end of March. England regarded the establishing of the Protectorate as a violation of the Munich Agreement and began consultations with a number of countries. At the same time Minister Beck, instead of coming to Berlin again, went to London and returned from there with the assurance that England would resist any change of the status quo in the East. This declaration was also made in the House of Commons after previous consultation with the French Government.
On 26 March 1939 the Polish Ambassador Lipski called at the Wilhelmstrasse and stated to Herr Von Ribbentrop that any continuation of the revision policy toward Poland, especially as far as a return of Danzig to the Reich was concerned, would mean war.
Thereby the Polish question had become a European question. Herr Von Ribbentrop told the Polish Ambassador at that time that Germany could not acquiesce to this decision. Only the reincorporation of Danzig and an extraterritorial corridor to East Prussia could bring a final solution.
I have submitted to the Tribunal, in the form of documentary evidence, a review of the Polish crisis which then developed. I can therefore assume that the actual course of events is known, including the incorporation of the Memelland which returned to the Reich through an agreement with Lithuania.
In order not to take up the time of the Tribunal unnecessarily, I shall confine myself to stating those facts which are apt to clarify the role of Herr Von Ribbentrop.
The Prosecution accuses Herr Von Ribbentrop of mollifying Poland by pretending friendly feelings toward her during the Sudeten crisis and the setting up of the Protectorate of Bohemia and Moravia. May I, in refutation of this assertion, point out that the relations between Germany and Poland since the agreement of 1934 were good and even friendly and that this attitude became, of course, even more favorable through the fact that Poland was indebted to German foreign policy for the acquisition of the Olsa territory.
She had, therefore, every reason to entertain friendly feelings toward Germany without it being necessary to be deceived by Herr Von Ribbentrop’s behavior. As the evidence has shown, Herr Von Ribbentrop continued this friendly policy towards Poland even after the dissolution of Czechoslovakia, since there was no reason to deviate from this attitude.
The Prosecution further accuses Herr Von Ribbentrop of having known that Hitler as early as the spring of 1939 was determined to wage war against Poland and that Danzig served only as pretext for this conflict. They deduce this from Documents USA-27 and USA-30. These are Hitler’s well-known speeches of 23 May and 22 August 1939. First of all I wish to point out that Herr Von Ribbentrop was not present at these conferences intended only for the military leaders.
A number of key documents have been discussed in detail here. I only wish to name the best known, such as the Hossbach Document, the two Schmundt Files, and the afore-mentioned speeches. Quite a number of statements about these documents have been submitted in evidence. People who knew Hitler well stated that they had become accustomed to his extravagant ideas expounded in sudden speeches, in which he often repeated himself, and that they did not take them seriously in view of his singularity.
It is possible to counter these documents with quite a number of speeches in which Hitler has asserted the contrary. Here, conversely, it might be pointed out that Hitler pursued some definite purpose with his utterances. That may be quite true. But it is just as true that even the few key documents which were submitted as proof of aggressive war contain so many contradictions, with regard to the aggressive intentions deduced from them, that at best a critic judging retrospectively could recognize such intentions. Besides, the contents of these documents, in accordance with the strict regulations for secrecy, became known only to those who took part in the conferences. This might explain why Herr Von Ribbentrop learned about them only here in the courtroom.
The guiding principles as to foreign policy which Hitler laid down for him at that time covered merely the reincorporation of Danzig and the establishment of an extraterritorial road through the Corridor, in order to open a direct land route to East Prussia.
As the Tribunal will remember, Hitler had told Herr Von Ribbentrop already at the time of his appointment as Foreign Minister that it was desirable to achieve these aims. This demand was just as much historically justified as some solution in the case of earlier incorporations of areas inhabited by Germans, which had become inevitable.
The statute of the purely German city of Danzig, which was created by the Treaty of Versailles in the course of the establishment of a Polish state, had always been the cause of friction between Germany and Poland. Poland had achieved this solution at Versailles through the argument that it needed an outlet to the sea. For the same reason the Corridor was established against all ethnological needs. Clemenceau in his memorandum already referred to this artificial creation as a source of danger, especially due to the fact that the peoples living in this area had been separated through long years of bitter enmity. It was not difficult to foresee that as a result of this fact the League of Nations and the International Court at The Hague were constantly going to be occupied with complaints about Polish violations of the agreement on minorities. The same cause gave rise to the large-scale confiscation of up to a million hectares of German estates and the expulsion of far more than a million Germans in the course of 20 years. Not without reason did Lord d’Abernon speak of the Danzig-Corridor problem as the “powder magazine of Europe.” When finally a solution of this question was sought under recognition of the Polish claim to the preservation of an outlet to the sea, such an endeavor appeared both sensible and historically justified.
The evidence has produced nothing to support the claim that this question served merely as a pretext, which Herr Von Ribbentrop could not but have known. It has produced no proof that Herr Von Ribbentrop was acquainted with those of Hitler’s aims which went far beyond these demands. Nor has it been proved that Herr Von Ribbentrop, as has been asserted by the Prosecution, before 1 September 1939, did all he possibly could to prevent peace with Poland, although he knew that a war with Poland would draw Great Britain and France into the conflict. The Prosecution base this statement on Document TC-73. This is a report by the Polish Ambassador to Berlin, Lipski, to his Foreign Minister. The document contains nothing whatsoever to substantiate this assertion.
Moreover, I do not believe that, according to the result of the evidence, Lipski can be valued as a particularly reliable witness. May I recall that it was Lipski who, during the decisive stage of the negotiations before the outbreak of the war, remarked that he had not the least cause to be interested in notes or propositions from the German side and that he knew the situation in Germany quite well after a period of 5½ years as Ambassador. He was convinced that in case of war riots would break out in Germany and that the Polish Army would march victoriously into Berlin.
According to the testimony of the witness Dahlerus it was none other than Lipski who, during the decisive discussion at the Polish Embassy, created the impression among the Swedes that Poland was sabotaging every possibility for negotiations.
Further results of the evidence also speak against the above allegations presented by the Prosecution, as for instance the fact that Herr Von Ribbentrop, after he had learned that the Polish-English guarantee pact had been signed, intervened with Hitler to cancel the order for the Armed Forces to march because a conflict with Poland would also, in his opinion, have drawn in the Western Powers. This opinion coincides with the conclusions to which Herr Von Ribbentrop had come in his review of the European situation and laid down in Document TC-75, which has already been mentioned.
Minister Schmidt has testified here that it was Herr Von Ribbentrop who, on 25 August 1939, after the Hitler-Henderson meeting, sent him to Sir Nevile Henderson with the verbal communiqué, presented as TC-72/69, in which the contents of Hitler’s proposals were summarized. At the same time Herr Von Ribbentrop adjured Henderson to submit Hitler’s proposals personally to the British Government for favorable consideration. According to the British Blue Book, Sir Nevile Henderson could not refrain from calling these and subsequent proposals exceptionally reasonable and sincere. They were not the customary Hitler proposals, but pure “League of Nations” proposals.
No one studying the negotiations of the subsequent fateful days can deny that everything was done on the German side at least to get negotiations under way on a workable basis. The opposite side did not let it come to that, because they were determined to take action this time. The good services of England ended with the breaking-off of all mediation without having been able to bring Poland to the conference table.
Herr Von Ribbentrop has been blamed for having practically defeated the purpose of the last decisive discussion with the British Ambassador, Henderson, by having read the German proposals to Poland so fast, contrary to all diplomatic custom and international courtesy, that Sir Nevile Henderson could not understand them and, hence, could not pass them on. The interpreter, Minister Schmidt, was present at this decisive discussion. He has testified here under oath that this statement is not true. One may consider Hitler’s order to acquaint Sir Nevile Henderson only with the substance of the memorandum as unwise. The fact is that not only did Herr Von Ribbentrop read the entire contents at a normal speed to the British Ambassador; but he also, by having the interpreter present, made it possible for Sir Nevile Henderson to become familiar with the entire contents and, moreover, to have explanations given on it. Besides, upon the initiative of Reich Marshal Göring, it was transmitted to the British Embassy during the same night by telephone to the Counsellor of the Embassy, Mr. Forbes. Thus the British Government should have been able to render the good services offered for opening negotiations based on positive proposals.
By reason of these facts here deposed, one must rightly doubt the truth of the allegation that the defendant had done everything to prevent peace with Poland.
At the beginning of my defense speech I stressed that legal considerations concerning aggressive war are not possible without knowledge of the circumstances leading to an armed conflict. Before I proceed to the legal aspects of the conflict with Poland, may I make some additional statements concerning the causes that led to the war.
The period between two World Wars is characterized by the conflicting reactions of those powers which were satisfied and those which were dissatisfied. It seems to be an inevitable law that after great war repercussions, the victorious states tend as far as possible toward the re-establishment of the prewar status and prewar mentality, whereas the vanquished are forced to find a way out of the consequences of their defeat by new means and methods. Thus after the Napoleonic wars there came about the Holy Alliance which under Metternich’s leadership, using legitimacy as an authorization, tried to ignore the effects of the French Revolution.
What the Holy Alliance did not achieve, the League of Nations equally failed to achieve.
Created in an atmosphere of fervent belief in human progress, it was quickly transformed into a tool of the satisfied states. Every effort to strengthen the League of Nations meant a new bulwark for the maintenance of the status quo. Under cover of the elegant diction of juridical formalities power politics continued. Besides, the obsession by the idea of sécurité soon deprived the newly-created body of any breath of freshness and life.
In this fashion, naturally, a solution of the problems created by the end of the first World War could never be found. In international relations a coalition of interests of the conservative powers content with the status quo and of the revolutionary powers trying to do away with it, became increasingly apparent. It could only be a question of time until under those circumstances the political initiative would pass to the dissatisfied powers. The formation of this front depended exclusively on the force of the revolutionary spirit which was crystallizing in opposition to the political self-complacency and hankering after the past. In this fertile soil grew the doctrines of National Socialism, Fascism, and Bolshevism, obscure in many parts of their programs, elastic and incoherent in others. Their power of attraction was based not so much on their programs but on the fact that they admittedly offered something new and that they did not exhort their followers to worship a political ideal that had failed in the past.
The economic crisis of the postwar period, the controversies about reparations and the occupation of the Ruhr, the inability of democratic governments to obtain anything for their distressed peoples from the other democracies, unavoidably led to a test of the doctrines which had not yet been tried out. The practical results of this revolution, as we experienced them in Germany after 1933, could, aside from the social program, consist only in abolishing the peace settlement of 1919, which constitutes a classical example of failure to understand the revolutionary character of a world crisis. For this revolution these tasks were not legal questions but doctrines, exactly as it had long become a doctrine of the satisfied states to maintain the status quo at all costs, even at the price of a new world war.
Only he who does not shut his eyes before these facts can judge the political crisis of the past decade.
Every revolution has but two possibilities; either it meets so little resistance that eventually conservative tendencies develop and an amalgamation with the old order is formed, or the antagonistic forces are so strong that finally the revolution breaks up through overstraining its own means and methods.
National Socialism went the second way, which began without bloodshed and partly with a remarkable leaning upon tradition. But this method, too, could not escape the inherent laws of history. The aims were too high for one generation, the revolutionary essence too strong. The initial successes were startling, but they also resulted in lack of criticism as to the methods and aims. The process of uniting all larger German groups in the Central European space would most probably have succeeded, if at the end—I am referring to the setting up of the Protectorate of Bohemia and Moravia and the pursuit of the Danzig-Corridor question—the revolutionary tempo and methods had not been overstrained by reason of previous successes. No person capable of sober judgment will dispute the need for a solution of the Danzig-Corridor question, delicate as it was.
The Prosecution may assert that in reality Danzig was but a pretext, but seen from the state of affairs in 1939 this can hardly be proved. But it is certain that the opposite side was concerned about other things than the maintenance of the status quo in the East. National Socialism, and with it, in its newly gained strength, the German Reich, had become such a danger in the eyes of the others that after Prague it was determined to make any further German advance a “test case,” wherever it should happen.
I have already said that the revolutionary protest in Central Europe was chiefly due to economic causes brought about by Versailles where a peace treaty was imposed on Germany of which it was well-known that its economic provisions could not be carried out by the vanquished.
THE PRESIDENT: Dr. Horn, the Tribunal thinks that sentence, at any rate, is objectionable on the ground that I have already stated.
DR. HORN: Mr. President, I did not mean to emphasize how the Versailles Treaty came about; I only wanted to stress certain necessary consequences which are generally known facts. But I have completed this part and have nothing further to say with reference to it.
THE PRESIDENT: Go on, Dr. Horn.
DR. HORN: Much has been said here about the slogan Lebensraum. I am convinced that this word would never have become a political program, if after the first World War Germany had been given the possibility of linking up with the world markets, instead of being strangled economically. By systematically cutting her off from all raw material bases of the world—all this for reasons of sécurité—the tendency towards autarchy, the inevitable way out from the barring from the world markets was fostered; and, at the same time, with the progressively deteriorating economic situation, the cry for Lebensraum could find receptive ears.
Thus, Stalin is right when he says:
“It would be erroneous to believe that the second World War came about accidentally or as a result from mistakes of one or the other of the statesmen, even though such mistakes were made without doubt. Actually the war came about as an inevitable result of the development of international economic and political forces based on modern monopolistic capitalism.”[[B]]
[B] Speech by Stalin on the eve of the Soviet elections in February 1946.
Professor Jahrreiss has already fully explained, in his basic arguments concerning the legal and the actual significance of the Kellogg Pact, that the meaning given to this project for the prevention of war by the Prosecution cannot be recognized by the Defense.[[C]]
[C] Mr. Justice Jackson is trying in this connection to invoke Article 4 of the Weimar Constitution of 1919. According to this, the universally recognized rules of international law are regarded as binding components of German Reich law. Owing to the differing legal appreciation of the Kellogg Pact on the part of the Great Powers the interpretation advanced by the Prosecution cannot be looked upon as German Reich law.
Cf. Reich Supreme Court Decisions in Litigation Procedures, Vol. 103, Page 276.
Anschütz: The Constitution of the German Reich (Die Verfassung des Deutschen Reiches); 10th ed., Page 58 et sequentes.
Even though war has been previously declared an international crime, especially at the 8th League of Nations Assembly of 1927, it became quite clear in preliminary conversations, as has been proved by documents already submitted to the Tribunal, that this declaration was not meant to make war a crime in the legal sense but that it was an expression of the wish to prevent future international catastrophes of the scale of the first World War. Moreover, neither the United States nor Russia participated in the League of Nations resolution of 1927.
All further plans for outlawing war during the period between the first and second World Wars remained mere drafts, as the British Prosecutor had to acknowledge in his significant argumentation, because practical politics could not follow these moral postulates.
All these experiments—and they are by no means few—clearly show that the problem of finding a definition lies in the difficulty of condensing a political process, dependent upon a host of components, into a legal concept which will cover all the varying cases occurring in practice. The failure to formulate a definition which could be used in international law has led to the fact that, instead of working out general standards and measures applicable in each case, the designation of the aggressor was left to the decision of an organ dominating all the contending parties. In such a way, the question of defining the aggressor became the question: “Quis judicavit?” that is, “Who shall designate the aggressor?” From this decision follows a new difficulty, namely, what is to be done against the aggressor?
Previous to the attempt of settling in a general way the concept of aggression and the sanctions against the aggressor, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory and anarchic situation, the United States, under Secretary of State Bryan...
THE PRESIDENT: [Interposing.] Isn’t this really arguing the same questions that Dr. Jahrreiss has already argued?
DR. HORN: Mr. President, I have tried to omit the matters set forth by Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly to the Kellogg Pact. I am only dealing with the questions pertaining to the legal aspect of wars of aggression.
THE PRESIDENT: Yes, but the Tribunal only granted the right to have an additional counsel deal with the general questions of law on the understanding that the other counsel were not going to deal with the same questions of law. Of course, you are not using the words of Dr. Jahrreiss—I should not expect you to do that—but you are arguing the very same topics.
DR. HORN: Mr. President, it had been agreed originally, as the professor as an expert had stated, that every counsel is entitled to take a different attitude toward the problem argued by him. Professor Jahrreiss concentrated chiefly on the Kellogg Pact and its consequences. I personally am turning my attention to aggressive war, and, as you, Mr. President, emphasized...
THE PRESIDENT: Just a moment. What is involved, then, is that the Tribunal is going to hear 20 arguments upon the general questions of law; and surely it can scarcely have been thought by defendants’ counsel that the Tribunal proposed to hear 20 arguments on the general questions of law and also hear Dr. Jahrreiss on it. The only purpose of hearing one counsel was to have the general questions of law dealt with by one counsel alone, and that the others should not speak upon it.
DR. HORN: Mr. President, may I emphasize once more...
THE PRESIDENT: Just a moment. The Tribunal will adjourn.
[A recess was taken.]
DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the Tribunal to accept a short explanation to the matter which has just taken up the attention of the Tribunal and which for most counsel is of general and fundamental importance. I should like to remind you of the fact that the suggestion and initiative to take up certain legal topics and have them dealt with by Professor Jahrreiss came from the Defense and that this suggestion was made for the sole reason of complying with the Tribunal’s wish to expedite the proceedings. I must earnestly request the Tribunal to protect us from letting this suggestion, made to and granted by the Tribunal at the time, become our own pitfall in that a resolution which has been made is interpreted too strictly. I do not have the resolution before me and I do not intend to deal with it and discuss it, but I should like to say this: Professor Jahrreiss did speak and was to speak on but two topics which, it is true, were of a general nature; that is, (a) the punishment of individuals for a war of aggression, in other words, nulla poena sine lege, and (b) the legal nature of the Führer decrees. Only these two problems were to be dealt with by Dr. Jahrreiss and these were the two topics that he actually did deal with. But besides that, these proceedings entail a series of legal problems which are of a general nature and more or less affect each of the defendants. I only recall to you the interpretation of the conspiracy charges, the various questions dealing with international law, the questions of hostages and forced labor, and the legal question concerning distress at sea through naval warfare, and other general questions. There are a host of general questions, and above all the matter on which my colleague, Dr. Horn, was stopped, concerning the question: “What is an aggressive war?” There exist fundamental differences between a military war of aggression, a political war of aggression, and a juridical war of aggression, et cetera, about which Dr. Jahrreiss did not say a single word, nor was he supposed to do so. And please—I trust you do not mind my saying so, but that is the way I understood Dr. Horn—that is really the basis of his argument.
I do not propose to argue and to refer to a resolution; but I ask the Tribunal not to put us in a most delicate situation, namely, that we, in order to expedite the proceedings by having Professor Jahrreiss deal with a number of legal questions, be put in a position for which we cannot take responsibility, in that we are prevented from dealing with certain questions which in our opinion are of decisive legal importance to the defendants and about which Jahrreiss himself did not speak at all.
Only a word or two more. I believe the Tribunal will agree with me that one can have an entirely different opinion on the subject with which Professor Jahrreiss has dealt. I do not have it; nor shall I contradict Dr. Jahrreiss. But from a purely theoretical point of view that might be possible. Should it happen, just because in such an important matter a speaker has dealt with this question, although in a sense which possibly one of the counsel considers entirely improper and harmful to his case, that that counsel is forced to keep silent on such a matter? That cannot have been the intention of the Tribunal. Well, all I wanted to say was this: This speech by Jahrreiss served the purpose of expediting the Trial. Well and good. But we ask—I think I may say “we”; I believe that none of my colleagues is of a different opinion—we ask that it should not be interpreted too formally; and if one of us for some good reason says, “I have to discuss this, it is important for this or that reason,” to give us that possibility wherever Jahrreiss has dealt with the subject in a sense which we do not approve, and not to prevent the discussion of some general legal question if it should be raised by any of the counsel.
THE PRESIDENT: The Tribunal has been considering this matter and they are fully aware, of course, of the difficulties which may possibly arise if there were differences of opinion among the defendants’ counsel upon questions which had been dealt with by Dr. Jahrreiss. They did anticipate when they made the order which specifies that Dr. Jahrreiss should speak on legal issues arising out of the Indictment and Charter which are common to all the defendants—those are the words of the order—that he would deal with all the issues which were common to all the defendants, and in the absence of some difference of opinion, that the other defendants would be prepared to adopt his argument; but the Tribunal think that the questions of law may be to some extent quite various and difficult and that the only rule which is possible for them to lay down at this stage is that there must be no real repetition by defendants’ counsel. The Tribunal apprehends that defendants’ counsel will see the necessity for such a rule as that. It cannot be in the interests of an expeditious trial that argument should be repeated over and over again, and this Tribunal desires to point out to the defendants’ counsel that such repetition upon general matters only tends to distract the attention of the Tribunal from the real defenses of the clients whom they represent, and therefore the Tribunal hopes that the defendants’ counsel will try to co-operate in this matter and confine such legal arguments as they think it right to present to the Tribunal to arguments which had not been addressed to the Tribunal by counsel who preceded them—either Dr. Jahrreiss or any other counsel. That is all that I need to say, I think, at this stage; and as it is now 5 o’clock the Tribunal will adjourn.