Morning Session
MARSHAL: May it please the Tribunal, Defendant Fritzsche is reported absent.
DR. HORN: With the permission of the High Tribunal I shall continue with my final presentation, beginning with Page 34. The English text page number corresponds with the German text page number.
Previous to the attempt to settle, in a general way, the concept of aggression and sanctions against aggressors, 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, took the initiative in a series of separate treaties in order to reach an agreement for periods of respite, which were meant to delay the outbreak of hostilities and to allow the passions to cool down.
The Covenant of the League of Nations took up this point of view but went one decisive step further by determining a procedure by which the League organs should determine the permissibility or nonpermissibility of war. The decision indicated whether war was permitted or not according to the Covenant. The aim of this regulated procedure was to hit the disturber of international order, who was not necessarily identical with the aggressor. The state which went to war in accordance with the decision of the League of Nations organs behaved in a lawful way, even when it undertook preliminary hostilities and thereby was the aggressor in the military sense.
It was therefore apparent that the distinction between aggressor and attacked was not adequate enough to guarantee a just settlement of international relations.
Although these Covenant regulations and the procedure based thereon showed that the relation of lawful to unlawful, permitted to prohibited, aggressor to attacked, was unsatisfactory, efforts were still made to brand as an aggressor anyone who offended against international order. As the essential decision miscarried owing to the difficulties just mentioned, there was an attempt to make out of this legal concept, which did not allow a concise definition, a political decision by those organs of the League of Nations which were qualified for maintaining international order. Such was the case in the draft of a mutual assistance agreement elaborated in 1923 by order of the League of Nations Assembly. The Geneva Protocol, which was meant to supplement the Covenant inadequacies concerning the question of the settlement of disputes, also transferred to the League of Nations Council the decision of determining who had violated the agreement and was therefore the aggressor.
All other attempts to outlaw war and settle conflicts, mentioned by the British Chief Prosecutor, have remained drafts, excepting the Kellogg Pact.
It can probably be put down to this fact that the idea of a legal definition of the aggressor was once more taken up at the Disarmament Conference. In this way the definition was established in the year 1933 by the committee for questions of security, presided over by the Greek, Politis, of the general Disarmament Conference committee. Owing to the failure of this conference, the definition was made the object of a series of separate treaties at the London conferences in the same year. The only great power participating was the Soviet Union, which had taken the initiative to obtain the definition at the disarmament conference. This definition has also been adopted by the United States Chief Prosecutor, who has based thereon the Indictment before this Tribunal for a Crime against Peace. This definition is no more than a proposal of the Prosecution within the limits of the Charter, which does not give further details about the concept of a war of aggression. It must be emphasized that Mr. Justice Jackson cannot invoke in this matter any universally acknowledged principle of international law.
The report of the 1933 commission did not become the object of a general treaty, as projected, but was merely agreed upon between a number of individual parties in agreements binding only those concerned. As a matter of fact, the only agreements were those between the Soviet Union and a number of states around her. No other great power accepted the definition. In particular, Great Britain kept aloof, notwithstanding the fact that the individual agreements mentioned were actually signed in London. At least the participation of the great powers would have been required for the constitution of a principle of international law of such far-reaching importance for the reorganization of international relations.
Quite apart from this legal consideration, the utterances of the British and the American Chief Prosecutors show that, as far as facts are concerned, the proposal is equally unsatisfactory. In the important question of Point 4 of the definition, the British Prosecution differs from the American. The old conflict of interests between mare liberum and mare clausum had led the Prosecution to the point that Sir Hartley Shawcross did not mention the naval blockade of the coasts and ports of a state as aggressive action.
The definition of 1933 may offer valuable characteristics for establishing the aggressor, but one does not get around the fact that a formal legal definition shows the impossibility of doing justice to all actual political cases.
With the attempt to set down a new regulation for creating order in the world in the Charter of the United Nations, one returned, having obviously recognized this truth, to the idea of a decision by an international organ without wanting to force its judgment into the inconvenient form of a rigid definition. The Charter of Peace of San Francisco says, in Chapter VII, Article 39:
“The Security Council shall determine the existence of any threat to world peace and security or breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security.”
In the year 1939 there was neither a recognized definition of the term aggressor nor an institution authorized to designate the aggressor.
The League of Nations as an instrument for the settlement of disputes had completely failed. This was expressed outwardly already by the fact that three great powers had left it. How little the mutilated League of Nations was taken notice of in international life, was shown by the attitude of the Soviet Union in the Finnish question. She did not take into consideration in any way the decision of the League of Nations with regard to this conflict but pursued her own interests in her dealings with Finland.
If now, after these statements, I make a proposal to the Court as to what should be understood by the concept of attack in Article 6(a) of the Charter, this qualification cannot be related to a definition recognized in international law. There is nothing left but adherence to the interpretation which the practice of states and the traditions of diplomacy are wont to give.
According to the conception prevailing in the year 1939, the outbreak of war, in whatever way it happened, was not legally appraised. The Kellogg Pact and the negotiations following it have not been able to abolish this fact, which was a result of centuries of development. This is deeply to be regretted, but one cannot ignore reality. The fact that this opinion, when war broke out, is in accordance with the conception of international law of the main participating powers that had signed the Charter, follows from the fact that men of international reputation in the field of international law were of the opinion that, should the Kellogg Pact and the system of collective security fail, the traditional legal conception as to war was still valid.[[D]]
[D] Oppenheim-Lauterpacht, International Law. 5th Edition. Page 154.
Should Herr Von Ribbentrop really have had the opinion in 1939 that his acts, measured by traditional diplomatic technique, would be considered as a crime punishable by international law?
I have already pointed out that generally, and therefore also by Herr Von Ribbentrop, the then existing frontier line in the East was considered untenable in the long run and therefore in need of adjustment. The Peace Conference at Versailles, by satisfying the Polish demands when this state was newly created, created problems which could not be solved by international co-operation in the time between the two World Wars. These frontiers could never be guaranteed within the framework of European pacts. A guarantee for the Eastern frontier created by Versailles could not be reached within the framework of the Locarno Treaties because of the opposing interests of the participating powers, whereas it was arrived at for the Western frontiers. All that was achieved after endless efforts was arbitration treaties, in connection with the Locarno system, between Germany and Poland and Germany and Czechoslovakia. They did not contain any guarantees for frontiers, but only a procedure for settling litigations. I shall deal with them when I come to the various violations of treaties of which Herr Von Ribbentrop is accused.
After Hitler had also expressed his distrust towards collective security by leaving the Disarmament Conference and the League of Nations, he went over to the system of bilateral treaties. In this connection, at the negotiations preparatory to the agreements between Germany and Poland of 1934, it was clearly stated that a solution of the problems between the two states should be found in the spirit of the treaty. We will not suppress here that only peaceful means were considered for this arbitration and a 10-year nonaggression pact was concluded. Whether Hitler believed honestly in the possibility of solving this problem or hoped to change the untenable situation in the East by means of evolution is of no importance for the forming of an opinion on Herr Von Ribbentrop’s behavior. He did not take any initiative in this step but found this agreement an existing political and legal fact.
The experience made in the adjustment of interests of states teaches that agreements are durable only when they correspond to political realities. If that is not the case, the force of facts oversteps, of itself, the original intention of the contracting parties. A great statesman of the nineteenth century has expressed this truth by saying, “The element of political interest is an indispensable foundation of written treaties.”
Thus, the Eastern question was not removed by the agreement of 1934 but continued to burden international relations. As shown by the evidence, it became more and more clear in the course of political evolution that sooner or later solutions of some kind had to be sought. Both the statute of the Free City of Danzig, which was in contradiction with ethnological, cultural, and economic facts, and the isolation of East Prussia through the creation of a corridor, had brought about causes for conflict, which a number of statesmen feared as far back as Versailles.
Taking into consideration such a state of affairs, the British Declaration of Guarantee to Poland of 21 March 1939, enlarged on 25 August 1939 into the Mutual Aid Agreement, sufficed in case of the appearance of a possibility of conflict with this country, to make the Poles averse, from the very start, to a sensible revision even on a modest scale.
This Declaration of Guarantee shows once more to how great an extent Great Britain, taking a sensible political view, drew conclusions from the decline of the collective security system and what little confidence she had in the practical results of the moral condemnation of war through the Kellogg Pact.
Herr Von Ribbentrop had, therefore, to draw the conclusion from the behavior of Great Britain that the attitude of the Polish Government, from which Germany was entitled to expect some concession, was bound to become rigidly inflexible. The developments during the following months proved this conclusion to be right.
The entry of the Soviet Union into the conflict shows, in particular, that the coming danger would develop within the compass of the traditional principles of politics and the realization by each state of its own interests. The Soviet Union, too, had in her turn left the ground of the collective security system. She looked at the approaching conflict from the viewpoint of Russian interests exclusively. In considering this state of affairs Herr Von Ribbentrop took pains at least to localize the threatening conflict, if it could not be avoided. He had every reason to hope for success in this endeavor, as both the powers mainly interested in Eastern Europe, the Soviet Union and Germany, concluded not only the Non-Aggression and Friendship Agreement previous to the outbreak of armed hostilities but simultaneously came to terms, by way of a secret agreement, concerning the future fate of the territory of Poland and the Baltic countries.
Nevertheless, the machinery of the mutual aid agreements was set going, and thereby the local Eastern European conflict became a world conflagration. If the Prosecution want to apply a legal standard to these happenings, they cannot do so without taking into consideration the Soviet Union from the point of view of partnership.
Through the participation of Great Britain and France, the conflict in Eastern Europe grew into a European one, inevitably followed by the universal war. The entry in the war of the powers mentioned took place according to the form provided by the Third Hague Convention concerning the opening of hostilities, that is, an ultimatum with a conditional declaration of war.
At the session of 19 March 1946, Mr. Justice Jackson, interpreting the Indictment, stressed the point that the extension of the war brought about by the Western Powers did not constitute a punishable aggression on the side of Germany. This interpretation is in keeping with his general argument concerning the concept of aggression. If he wished to carry this through quite consistently, he would logically have to declare Great Britain and France aggressors against Germany for having brought about the state of war by means of the ultimatum.
I believe I am in agreement with the Prosecution when I express the supposition that such a result would not meet with its approval. The Prosecution have presented their evidence in such a way as to enter into the political-historical background of the war. They have accordingly not been satisfied with relying on the formal legal definition or any single criterion thereof. They herewith confirm my conclusion, presented by me to the Court, that the definition proposed by the Prosecution is no suitable basis for the qualification of the indeterminable concept of aggression.
May I confirm, according to events at the outbreak of the war, the following:
The Kellogg Pact and the concept of aggression, the Prosecution’s pillars, do not sustain the Indictment. The Kellogg Pact had no legally conceived substance for states, much less for individuals. The attempt to put life into it afterwards by means of a formal concept of aggression was frustrated by political reality.
Herr Von Ribbentrop’s share in the extension of the conflict to Scandinavia was so small that it hardly can be laid to his charge as an individual action.
The interrogations of the witnesses Grossadmiral Raeder and Field Marshal Keitel have shown beyond doubt that as a matter of fact Herr Von Ribbentrop was informed of this operation for the first time only 36 hours in advance. His contribution was solely the elaboration of notes prescribed to him in content and form.
Concerning the actual facts, namely the imminent violation of Scandinavian neutrality by the Western Powers, he was limited to the information communicated to him. The evidence has shown, and I shall set forth later in legal argument, that he as Minister for Foreign Affairs was not competent to check this information and that he did not possess any actual means to do so. Presuming that this information was true, he could justly assume that the German Reich behaved in the intended action quite in accordance with international law. I leave more detailed argument concerning this point of law to my colleague, Dr. Siemers, well conversant with this point, whose client, Grossadmiral Raeder, had submitted to Hitler a large amount of enemy information and the proposal for a German occupation of Scandinavia.
In the case of Belgium and the Netherlands it has been proved by evidence that unlimited maintenance of the neutrality of the Belgian-Dutch territory by these countries themselves could not be guaranteed. Even previous to the war there existed between the General Staffs of the Western Powers and those of both neutral countries agreements and constant exchange of practical knowledge concerning tactics and occupation in case of a conflict with Germany. Detailed deployment plans and fortification systems built under supervision of officers detached for that purpose by the Western Powers were meant to prepare the reception of Allied forces. These projects included not only co-operation of the armies concerned, but also the assignment of certain civilian authorities to assist in the supply and the advance of the Allies.
Important about these preparations is the fact that they were made not only for the case of defense, but also for the offensive. For this reason Belgium and the Netherlands could not or would not defend themselves against British bomber formations continuously flying over them, with the immediate aim of destroying the Ruhr district, the Achilles heel of the German war industry. This area was also the main goal of the Allies for an offensive on land.
These intentions as well as most intensive preparations for offensive measures by the Western Powers had been ascertained beyond a doubt through sources of information. The grouping of the offensive forces showed that the Belgian-Dutch territory was included in the theater of operations. As has already been described in connection with preceding cases of conflict, such information was continuously passed on to Herr Von Ribbentrop by Hitler or his deputies. Here, too, Herr Von Ribbentrop had to rely upon the accuracy of this information without having the right or the duty of checking it. In that way he, too, became convinced that in order to avert a deadly danger, namely, an Allied thrust into the Ruhr district, preventive countermeasures were necessary. On the basis of these considerations, Luxembourg could not be spared because of the extensiveness of modern military operations.
In connection with this procedure the Prosecution accuses, among other things, German foreign policy and thereby Herr Von Ribbentrop, of having committed an invasion in contradiction to the Fifth Hague Treaty concerning the rights and duties of neutral powers and persons in case of war on land.
The Prosecution overlook that this treaty does not refer to drawing a neutral into a war between other powers but deals only with the rights and duties of neutrals and belligerents as long as a state of neutrality exists. The Prosecution have made the mistake of applying their, as I have shown, erroneous interpretation of the Kellogg Pact, to the pact which had been made 20 years earlier. There remains no doubt that at the time of the Second Hague Peace Conference the outbreak of war was a fact of historical value and not subject to any law. All treaties concerning laws of war, especially the Rules of Land Warfare and the Neutrality Pact for Land and Sea Warfare, rest upon the basis of an existing state of war, hence do not regulate the jus ad bellum, but the jus in bello. This fact disposes of the Prosecution’s references to the Fifth Hague Agreement in all cases of the expansion of war as concerns neutrals which have ratified this treaty.
It is, moreover, quite doubtful whether the Locarno Treaty can be referred to, as was done by the Prosecution, in connection with drawing Belgium into the war. With Germany’s resignation in 1935 the Locarno system had collapsed, as will be shown by the defense counsel of Baron von Neurath. All attempts to effect a new agreement which was to take its place were based on the fact that the actual situation created by Germany must be taken as the starting point for a new agreement. This is shown especially by the British and French plans for the intended new agreement. The attempt to create a new agreement was not successful. However, the thorough and wearisome negotiations show very distinctly that none of the signatories considered the Treaties of Locarno valid any longer. On the contrary, the Western Powers proceeded to consider among themselves the effects which their obligations of guaranteeing the Western borders still had after Germany’s withdrawal. Regardless of how one may judge Germany’s attitude of 1935, it remains to be stated that the pact system had become untenable thereby. Hence in 1940 German commitments to the Western Pact of 1925 no longer existed.
I shall on a later occasion discuss the existing arbitration treaties and treaties by agreement with Belgium, Poland, and Czechoslovakia in connection with the Locarno Treaty when discussing in general Germany’s obligation for a peaceful settlement of disputes.
As far as Luxembourg is concerned, not even the Prosecution referred to the neutralization of this country. Evidently they went on the assumption that Germany had been forced by the Treaty of Versailles to give up the rights given to her by the London Agreement of 1867.
When, on 24 March 1941, the Yugoslav Government joined the Tripartite Pact, Herr Von Ribbentrop could not, in the light of the available news, assume that a few days later a military intervention by Germany in the Balkans would be necessary for political reasons. This situation was caused by the forcible change of government in Belgrade. The reaction to the joining of the Tripartite Pact by the Stojadinovič Government resulted in a new political change in Yugoslavia under the leadership of Simovic, which aimed at close co-operation with the Western Powers, counter to the idea of the Tripartite Pact.
In view of this uncertain situation in the interior of Yugoslavia, which on account of the mobilization of the Yugoslav Army and their deployment on the German frontier became a danger for the Reich, Hitler suddenly decided on military operations in the Balkans. He made this decision without the knowledge of Herr Von Ribbentrop, with the idea of eliminating an imminent grave danger for his Italian ally.
The testimony of the witness Generaloberst Jodl has shown beyond a doubt that Herr Von Ribbentrop, after Hitler’s decision and after the Simovic Putsch, earnestly endeavored to be allowed to exhaust all diplomatic possibilities prior to the beginning of military operations. Generaloberst Jodl has confirmed here that Herr Von Ribbentrop’s endeavors were rejected in so rude a manner that, taking into consideration Hitler’s nature and the prevailing methods, any influence on him was practically out of the question.
In view of the fact that ever since 4 March 1941 strong British forces were pushing to the north from Southern Greece, a further localization of the Italian-Greek conflict was no longer possible. Although this war had begun in the autumn of 1940 against German wishes, Hitler, with a view to the general situation, certainly could not tolerate the imminent defeat of his Italian ally.
When Herr Von Ribbentrop on 23 August 1939 signed at Moscow the treaties between Germany and the Soviet Union, including the secret agreement concerning the partition of Poland and the surrender to Russia of the Baltic States, the sometimes very vehement ideological discussions between National Socialism and Bolshevism were for the time being eliminated from the international sphere as an element of danger. This system of treaties, which was supplemented in the course of the next month, had a favorable influence on the opinion concerning Hitler’s foreign policy held by large circles of the German people who were alarmed by the ideological contrasts.
Ever since Bismarck signed the treaty of benevolent neutrality with Russia there was a general conviction in Germany that the maintenance of friendly relations with Russia must always be the goal of our foreign policy. For the traditional reasons just mentioned, Herr Von Ribbentrop at that time considered these pacts a strong pillar of German foreign policy. Because of this opinion, in the winter of 1940 he invited the Foreign Commissar of the Soviet Union, Molotov, to visit Berlin to clear up problems which had arisen in the meantime. Unfortunately this second conference did not bring about the desired results.
Hitler became very much alarmed at the results of this conference and through secret information as to the future attitude of the Soviet Union toward Germany. Especially the attitude of Russia in the Baltic countries, as well as the Soviet march into Bessarabia and into Bukovina, were considered by Hitler as actions which were apt to endanger the German interests in the Baltic border states and in the Romanian oil district. He saw, furthermore, in the attitude of the Soviet Union the possibility of exercising influence on Bulgaria. He found his suspicions confirmed by the conclusion of the Friendship Pact with Yugoslavia on 5 April 1941, at a time when Yugoslavia, after a change of government, threatened to join the Western Powers.
In spite of these misgivings of Hitler’s, of which he frequently informed Herr Von Ribbentrop, the defendant tried to avoid tensions. The Tribunal has permitted me to submit an affidavit which confirms that Herr Von Ribbentrop, in December 1940 in detailed discussion, still tried to induce Hitler once more to give him authority to include Russia in the Tripartite Pact. This documentary evidence confirms that Herr Von Ribbentrop, after his conference, was justified in the opinion that he would succeed in this step with the approval of Hitler. Subsequently, however, Hitler returned again and again to his misgivings, which were strengthened by the information of his own secret service about military operations on the other side of the Eastern border. In the spring of 1941 Herr Von Ribbentrop tried to bring to Hitler, at Berchtesgaden, the German Ambassador in Moscow and one of his subordinates. Neither of the diplomats was admitted. This ended the attempts possible for Herr Von Ribbentrop within the scope of his position under the regime. Afterwards he also believed that he could no longer shut his eyes to the information which was brought to his knowledge.
As Generaloberst Jodl has testified, he and all the commanders who took part in the beginning of the Russian campaign were convinced that they had pushed right into the midst of an offensive concentration of troops. This is proved, among other things, by maps which were found covering the territory beyond the German-Russian line of interests. Is it really to be assumed that such conduct by the Soviet Union is in agreement with the Non-Aggression Pact?
Around that time the danger of a spreading of the European war into a world war began to loom more and more threateningly. The United States entered the arena of war under a neutrality law, by which they subjected themselves in advance to clearly defined rules in case of a future war. The mechanism of the neutrality law was set in motion by a proclamation of the President. It designated at the same time the danger zone within which American ships could not count upon the protection of their government.
This attitude at the beginning of the war confirms that the United States, the author of the Kellogg Pact, was not of the opinion that the traditional law of neutrality had in any way been modified by it.
The United States, however, during the course of the spreading and the aggravation of the European war, deviated more and more from the original line, without the German Reich furnishing any cause for conflict with them.
After the experiences of the first World War, German general opinion, and consequently that of Herr Von Ribbentrop, was that an intervention on the part of the United States should be prevented by all means. Since the “quarantine” speech of President Roosevelt in 1937 strong contrasts could, however, be noticed more and more in the ideological-political train of thought of the world’s public opinion. The situation was aggravated by the incidents of November 1938 in Germany, which were the reason for the recall of the Berlin Ambassador to Washington to report, from whence he did not return to his post.
If, in spite of that, the neutrality policy was further prepared by legislative acts and became effective at the beginning of the war, the German Foreign Office, and thus Herr Von Ribbentrop, could conclude that the existing differences of opinion as to the internal political development of the State would not change the neutral attitude of the United States. Considering this expectation, not only everything that could produce an unfavorable effect in the United States was avoided from the outbreak of the war; but we also quietly put up with quite a number of actions by the United States which were weakening Germany and which were incompatible with strict neutrality.
The world public was informed of the agreement on the political aims of neutral America and belligerent Great Britain when the leading men of the two states proclaimed in August 1941 the Atlantic Charter as the program for the new order of relations between the nations. It had a character obviously hostile to the Axis Powers and left them in no doubt that the United States espoused the cause of the other side.
There followed the incidents on the high seas which, as the evidence has shown, can be credited to the account of the material support of Great Britain by the United States.
By occupying Iceland and Greenland in the summer and autumn of 1941 the U.S.A. took over the protection of the most important line of communications of the then sorely struggling British Empire. This amounted to military intervention even before the outbreak of the officially declared war. The so-called “shooting order” of the President brought about a dangerous situation which might have resulted any day in the outbreak of armed conflict. Even several months before 11 December 1941, the United States took measures which were usually taken only during a war. The outbreak of the war was only a link in the chain of successive incidents, perhaps not even the most important. It was started by the Japanese attack on Pearl Harbor, which, as the evidence has shown, was neither instigated nor foreseen by Germany.
According to the formal definition of aggression, the declaration of war is one of the criteria for the determination of the aggressor. As I have already pointed out in connection with the spreading of the war in Europe, this criterion alone without the factual background is no positive proof for an act of aggression. As a reaction to the numerous violations of neutrality by the United States, which really represented actions of war, the German Reich would have been justified long before in replying on her part with military actions. Whether this right was exercised after the preceding announcement—that is, a declaration of war—or not is immaterial.
So far, I have thrown some light upon aggressive acts as enumerated by the Prosecution from the beginning of the Polish campaign to the entry into the war of the United States. It remains for me to take up a juridical position regarding the treaties concluded by Germany, which provided for a pacific settlement of political conflicts.
Herr Von Ribbentrop is charged not only with having been a party to aggressive acts, but also with failing in his duty to put into play the mechanism of the aforesaid treaties previous to an armed conflict. From the fact that the means for pacific settlement as provided by the treaties had not been used, the Prosecution draws the conclusion that these omissions can be attributed in a criminal sense to Herr Von Ribbentrop. This interpretation however would be erroneous from a legal aspect.
If we begin by sharing the Prosecution’s point of view, we shall see that even so the conclusions drawn by the Prosecution cannot be upheld. Assuming that an individual minister were criminally responsible for the nonfunctioning of a series of treaties, even the Prosecution would have to put the question whether the minister was actually in a position to obtain through his actions a result of any legal consequence. According to a principle embodied by nature into every system of criminal law on earth, a defendant is punishable for an omission only if he was actually in a position, and legally liable, to act. I shall demonstrate at length, within the compass of my arguments concerning the conspiracy, how small in fact Herr Von Ribbentrop’s possibilities of influence were. The decisive point at issue is the fact that he was not legally in a position to make any declarations to foreign powers binding the German Reich other than those he was empowered to by the head of the State. As head of the State, Hitler was the representative of the German Reich from the point of view of international law. He alone was in a position to make binding declarations to foreign powers. Any other persons could legally bind the German State only if authorized by the head of the State, unless the treaty in question explicitly provided otherwise.
It is a characteristic not only of the German Führer State that the Foreign Minister cannot independently enter into binding commitments toward foreign powers. Rather it is a general principle of international relations that only the organ empowered to represent the state is able to act for it. The difference between German conditions and those of democratic constitutions merely lies in the fact that in the former the Foreign Minister usually has a larger influence on the intentions of the head of the State. The defendant, therefore, could not have obtained any legitimate results if he had tried, against the Führer’s wish, to have recourse to the possibilities of a settlement of conflict as provided by the numerous treaties of arbitration and conciliation. No one but Hitler could have put in motion such a procedure. The defendant could have been in a position to do so by Hitler’s order only. He had not even the right to have his advice listened to if Hitler chose to ignore it.
These points of view apply for example to the following treaties enumerated by the Prosecution: The Convention for Peaceful Settlement of International Disputes of 1899 and 1907 and the Treaty of Arbitration of 1929 between Germany and Luxembourg. It should be mentioned, moreover, that these agreements by no means provided an obligatory settlement of political disputes.
As to treaties of arbitration and conciliation with Poland, Czechoslovakia, and Belgium, concluded in connection with the Locarno Treaty, the further point applies, quite apart from the legal argument just mentioned, that they and the Western pact form a political unit. Even externally, this is expressed in the fact that these agreements and the Locarno Pact are all of them annexed to the general final protocol of the powers participating in the Locarno Conference. The question could, therefore, be asked whether the conciliation treaties share the fate of the principal treaty, that is, the Western Pact.
I should particularly like to point out that the procedure laid down in these treaties ended in case of nonsettlement with the League of Nations Council, in which, at the time of the Western pact, the four participating great powers had, or—this applies to Germany—were to have, permanent seats. The withdrawal of Italy and Germany from this political body deeply affected the political basis upon which the settlement treaties were based. Moreover, the grouping of the powers had shifted so much that a part of the Locarno great powers, namely Great Britain and France, had in the year 1939, through agreements with Poland, already taken sides in advance in case of a possible conflict.
Concerning the treaties of arbitration and conciliation with Denmark and the Netherlands of 1926, may I be allowed to point out that the proceedings provided therein could not be applied at all, as there were no conflicts between Germany and aforesaid countries; quite to the contrary, Germany took steps which were aimed at the enemy belligerents she wished to anticipate in the occupation of these countries.
The Prosecution mentions, moreover, a number of assurances given by Hitler to countries with which Germany subsequently waged war. Since Herr Von Ribbentrop did not give such assurances in person, but rather the Führer, his participation could form a point of argument only if he had given advice to Hitler in this respect. No evidence has been produced to sustain such a suggestion. A large part of these so-called assurances is contained in speeches made by Hitler before the German public, either in mass meetings or at the Reichstag. It is doubtful indeed whether such declarations, addressed in the first place to the German public, could have any binding results in the field of international law.
Whereas up to now I have spoken about the actions that led to the outbreak of the war and its spread, I shall now proceed to the second large complex of the Indictment, which deals with crimes committed during the war.
The Charter, in Article 6(b), declares violations of the laws or customs of war to be punishable. This conception is illustrated by a number of examples such as deportation, shooting of hostages, et cetera. But these examples fail to complete this conception in full. We are therefore obliged, in the same way as with Article 6(a), to propose to the Court a qualification which it can use as a basis for its decisions.
My conception agrees with the procedure proposed by the French Prosecution. They have declared that they should be free to qualify definitions of punishable offenses not fully defined by the Charter. What is good for the Prosecution is good for the Defense.
The use of the expression “laws and usages of war,” as well as the enumeration of examples, forces one to believe that the Charter aims at violations of the classical jus in bello. I therefore qualify war crimes as offenses against binding law established between belligerents by agreement, or against binding and generally recognized prescriptive law. The individual facts which range under the collective conception of War Crimes, therefore, must each be examined as to whether they are to be regarded as such according to the traditional rules applying to armed conflicts between states. Whereas, in general, classical international law holds responsible the state as a unit only, there always existed in the usage of war the exception that also acting individuals were liable to be held responsible. How far this responsibility of the individual can be followed by criminal proceedings after the war has been the subject of many discussions. It can be ascertained that the prevailing practice of states is that the belligerent who has been injured by a war crime may also, after the war, call the offender to account. If several states, which have fought shoulder to shoulder in the war, form a common court against the war criminals of the conquered adversary, this court has the collective competency of all the states that form the court or have joined its charter.
When speaking of the liability of individuals to be punished for crimes committed during the war against the adversary, who thereafter sits in judgment upon him, one thinks in the first place of former members of the armed forces. Already at Versailles there were difficulties in answering the question as to what extent military chiefs were to be made responsible. The idea of having a minister of a department held responsible under criminal law has so far never emerged. In Versailles, too, the War Criminals Committee was occupied with the question of making nonmilitary personalities responsible from a purely political point of view. This committee discriminated clearly between war criminals, which were to be judged by the Allied court, and guilt with regard to the outbreak of war, for the examination and judging of which a special international political court was to be created.
The customary conception is therefore that a minister cannot be held responsible for violations of the jus in bello. The Prosecution can achieve this only by going the roundabout way via a conspiracy. If we follow the interpretation given to this conception, the Foreign Minister of the Reich would, for example, be responsible for the destruction of the village of Oradour. He would have to take responsibility for actions which have nothing in the least to do with the Reich’s foreign policy and are merely isolated actions by some office or other.
As the hearing of evidence has shown, the Reich Foreign Minister was not only not competent for the conduct of war, but had in fact not the slightest possibility of influencing military measures as far as either curbing or furthering them was concerned.
If one wished to regard the various cabinet ministers as a clique of conspirators also with regard to War Crimes, it would have to be proved that the military offices competent to conduct the war acted in agreement with the ministers or at least after having given them the necessary information.
The concentration of military authorities and ministers into a unity of purpose, directed toward the perpetration of such criminal acts abominated by all decent people, is an artificial subsequent construction of the Prosecution. The unity, which did not exist at the time when it is supposed to have been effective, has only now been drawn up as a conception. The facts are now subsequently to fit the conception. It is obvious that criminal proceedings cannot be built up on such a method.
Herr Von Ribbentrop cannot therefore be punished without discrimination for all war crimes committed during the war by the German side. Such a responsibility for the results would be absolutely grotesque. He could only be held responsible for individual acts if he himself participated in certain concrete individual actions.
Herr Von Ribbentrop is accused by the Prosecution, according to the testimony of General Lahousen, of having issued “directives” to Admiral Canaris to have Ukrainian villages set afire and to massacre the Jews living there. First I wish to establish the fact that even a Foreign Minister cannot issue directives of any sort to a military agency. Furthermore, it would have been wholly nonsensical to issue such directives for the setting afire of Ukrainian villages. Ukrainians supported the German fight against the Poles. Thus hardly anyone will believe that Herr Von Ribbentrop at that time advised the destruction of his own allies. My client further insists categorically that not one word was mentioned about the massacre of Jews in that particular conference, the less so, since there was no reason for it at all.
I beg the Tribunal to base their decision regarding charges of War Crimes and Crimes against Humanity raised against Herr Von Ribbentrop, on the general attitude of the accused with respect to questions of humanity. As was proved beyond doubt by the evidence, Herr Von Ribbentrop saved the lives of 10,000 Allied prisoners of war through vigorous personal intervention. As I will further show, within the framework of the conspiracy he was instrumental in the unfettering of British prisoners of war and he used his influence for the observance of the rules of the Geneva Convention. He was opposed to the branding of Russian prisoners of war. These are instances upon which the Tribunal may base their decision with respect to questions of humanity.
This may also be an appropriate gauge for the general behavior of the accused as concerns questions of humanity in problems where he was not actively involved.
Furthermore, his attitude in the question of the treatment of terrorist airmen is charged as a war crime to Herr Von Ribbentrop.
My client, as well as the Defendant Göring, deny that the conference at Schloss Klessheim mentioned in Document 735-PS ever took place. I should like to emphasize that General Warlimont, who made these notes, did not personally participate in the conference. Furthermore, the opinion allegedly voiced by Herr Von Ribbentrop, according to the document, stands in contradiction to his usual demeanor in this question. State Secretary Steengracht deposed here that Herr Von Ribbentrop, after the publication of the notorious article about lynch law in Das Reich, at once vigorously protested against it.
Further evidence concerning the problem of terrorist airmen, through examination of the witnesses Generaloberst Jodl and Field Marshal Keitel, proves that not only the Foreign Office but Herr Von Ribbentrop personally made every effort in principle to uphold the Geneva Convention and that Herr Von Ribbentrop together with other leading personalities took pains to assure the retention of at least the basic human principles, even approaching Hitler at times when he lost all control of himself. In spite of all that happened, the fact that in consequence of these steps the Geneva Convention was not renounced must be called a success. Especially with regard to terrorist airmen it must not be overlooked that terror attacks in the form of air bombardments undeniably constitute a war crime if they are undertaken indiscriminately on cities and not on military and armament objectives only. It must be taken into account in the reaction throughout Germany toward the conduct of the air warfare of the Western Powers that, according to established and traditional conceptions in armed conflict between nations, attacks on the civilian population are prohibited. This thought is not only expressed in the Hague Convention concerning land warfare but constitutes a binding stipulation of general international law, binding for all and not applicable to the theater of operations on land only. Acknowledging this, the Hague Rules of Air Warfare of 1923, although permitting air attacks on military objectives in undefended cities, do not permit the bombing of the dwellings of the civilian population. Although the Hague rules were not ratified, they were in practice followed by all belligerents and acknowledged as prescriptive law.
These measures became especially acute after complete air superiority had been achieved by the Allies and when the resulting constant low-level attacks on the civilian population took place. These particular events led for the first time to the discussion whether, in the face of a warfare which was undeniably violating international law, it was still of any use to uphold the Geneva Convention in its substance. These considerations and corresponding reflections led to the drafting of documents which have become the object of evidence in the proceedings and which constituted, as shown by the evidence, drafts but not decisions on this question. They can therefore not form the basis of a judgment, since surely a state is entitled to ask for the opinion of the competent authorities on this question.
With the permission of the Tribunal I have presented the role of Herr Von Ribbentrop before the war, at its outbreak, and through its duration.
Beyond this the Prosecution holds all defendants responsible for every crime presented here. The idea of a conspiracy is being used as a basis for this common liability. If the logical inferences were to be drawn from this unlimited accusation, then each defense counsel would have to deal with all the details presented by the Prosecution. The obvious impossibility of taking up so much of the Tribunal’s time shows how questionable the basis of the accusation is. Therefore I have to confine myself to examining the participation in the conspiracy only from the viewpoint of the actual and legal position of the Foreign Minister in the Third Reich.
Conspiracy in the sense of the Charter and of the Indictment means a sort or form of participation in a punishable act. This kind of offense was, until now, unknown to German and continental legal conception. It exists only in Anglo-Saxon law. In this realm of law by conspiracy is understood participation in a punishable act which requires, at the very least, a common intent to commit a crime. A further prerequisite is that the mutual plan leads to the perpetration of a definite punishable offense.
The Charter proceeds from this form of participation in a crime in declaring punishable all offenses stated in Paragraph 6, assuming the existence of a conspiracy or a common plan, as a special form of participation in these crimes. The Charter then stipulates, in Paragraph 6 (a), another special form of conspiracy declaring punishable the participation in a Common Plan or Conspiracy to carry out offensive wars or wars violating international treaties.
By the conception “common plan” the Charter and the Indictment obviously understand something that reaches beyond the sphere of conspiracy. Mr. Justice Jackson himself admitted that it went beyond the punishable facts of a conspiracy according to Anglo-Saxon law and thereby created a conception which is not yet juridically formulated. Both forms of conspiracy constitute a liability for all acts committed by any one person carrying out both these forms of conspiracy.
The Indictment uses piracy as an example in order to make the participants in this alleged conspiracy appear as a single body. The conspirators are all on board of a pirate ship which, contrary to the laws and justice of all nations, engages in robbery and therefore is outlawed. Anyone who punishes the crew helps to restore justice.
At first glance this picture appears somewhat à propos. However, on closer inspection, it becomes obvious that it is only a matter of a catchword which tries to compare the community of the ship’s crew, united with the ship for better or worse, to the dissimilar, complicated conditions of a modern state organization. The ships of all nations are, according to established, commonly recognized, and uncontested conception, authorized to combat piracy on the high seas upon encountering a pirate. The criminal law of almost all nations knows explicit regulations for combating piracy. The peculiarity of this offense in distinction from other acts punishable in every country, whether committed against native, or foreign citizens—for example white slave traffic acts, counterfeiting of coins, and so forth—lies in the fact that jurisdiction is carried out on the high seas. Therefore, the mistaken idea may arise that a crime in the sphere of international law is concerned. This, however, is not the case. Piracy is a common offense, the prosecution of which is, by international law, permitted not only in coastal waters but also on the high seas belonging to all nations. The basis for this conception was laid in the United States in the beginning of the last century by decisions given by Chief Justice Marshall.
The acts with which Herr Von Ribbentrop is charged were committed at a time during which the German Reich and its opponents confronted one another first in peace and then in war on the stage of international relations. An example taken from the sphere of common criminal law as practiced inside a country is not suitable to convey a plastic representation of a conspiracy of an entire state apparatus. In the first place, the idea of the state, which according to the conception of traditional international law is the only bearer of rights and duties, is systematically destroyed so that the persons standing behind it and acting on its behalf may separately be made liable to criminal prosecution. Since as a rule only a few persons acted directly as participants in the acts charged, the multitude of these people is then again compressed into an artificial whole, in order to hold them responsible also for those acts which were not committed by them.
Here the criticism of the jurist must start. According to our perception of law and that of all civilized nations, criminal responsibility is bound to basic rules showing but few divergences. Thus, according to continental law, only such persons can be held responsible for a punishable act who deliberately or through negligence contribute to a definite act. According to unanimous agreement the perpetrator, therefore, must know the plan to which he allegedly contributed, foresee the acts committed in executing it, and approve of them.
Participation in the form of conspiracy was until now known as an offense only to a limited legal circle. Therefore it is familiar only to that part of the legal systems which are represented by the nations who are conducting or have joined in the present proceedings. It was completely unknown to the German conception of law and, therefore, to Herr Von Ribbentrop at the time of his political activity. This form of complicity marks a much wider range of actions as criminal than Herr Von Ribbentrop could have anticipated at the time of his activities in the field of foreign policy.
But even if this form of complicity is assumed as a basis for legal findings according to the Charter, neither the official position as Reich Foreign Minister held by Herr Von Ribbentrop nor the individual acts committed by him in this capacity can make him appear as a member of a conspiracy.
The case of Von Ribbentrop shows in particular how, through the introduction of the concept of a conspiracy, responsibilities become interlocked which, taking into account the official position and authority as well as the personal attitude of the individual conspirators, have nothing whatever to do with each other.
The Prosecution, however, in order to achieve its aim, compresses into a subsequently fabricated unity a number of actions and individuals, chosen at random, which have nothing at all to do with one another. 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 refer only to actual offenses 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.
I think the Prosecution will agree that there simply cannot exist any conspiracy to commit crimes against the usages and customs of war. This concept is so controversial and is so undetermined in the practice of the states and in the theory of international law that individual acts, which in the course of a war may be considered as war crimes, could not form a part of the plans of the conspirators. It must also be considered that the development of means and methods of war modified also the contents of the concept of war crimes. Therefore there can be only a conspiracy to commit specific or similar war crimes. Not every one of the so-called conspirators can be held responsible for each and every action which an objective judgment must define afterwards as a war crime. Particularly, it would not meet the purpose of chastising the guilty if the defendants were to be punished according to the general and artificial concept of conspiracy even for such war crimes which they tried to prevent with all their efforts.
PRESIDENT: The Tribunal will recess now.
[A recess was taken.]
DR. HORN: With 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 have nothing to do with 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 insofar 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 to do 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, that is, 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 Court’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 offices 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 the 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. Therefore I can investigate this complex only 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 4 February 1938, held the position of a Minister of Foreign Affairs of the German Reich. As shown by the evidence, Herr Von Ribbentrop was called to his office on 4 February 1938 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 19 July 1940 delivered 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 hold the position of a minister as understood by modern political constitutions. As shown in the above-mentioned speech, he did not hold 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 of 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. In a parliamentary democracy this involves responsibility towards the representatives of the people; in a monarchical or presidential constitution responsibility toward the head of the state. Such 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, through some kind of criminal procedure, 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 state 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. The German people and its representatives expected at the time that this authorization was to be used temporarily and merely for the removal of actual distress. This law became, however, the foundation of a complete readjustment of the constitution.
The possibility of parliamentary responsibility no longer existed. It changed into responsibility towards the Führer and Reich Chancellor, in whose person the authority relinquished by parliament now rested. Now there remained but one responsibility: that toward the head of the State. Starting from this parliamentary authorization, all functions deriving from the authority of the State were concentrated more and more in Hitler personally. The traditional division of power, the result of a struggle for constitutional rights lasting more than a century, became, by the fusion of all means of power, an empty shell and thereby obsolete. Full powers were concentrated in the hands of the Führer, who made use of them separately through his plenipotentiaries. The constitutional jurisprudence of the Third Reich designated this as change from the actual 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 constituted merely a collective term for various branches of the administration which were 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 settled by the very weight of the facts themselves. Therefore, as the hearing of witnesses has shown, it never met during Von Ribbentrop’s period of office.
Even the designation “minister” did not signify any longer the head of a government department 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, for instance after the occupation of the Rhineland and the Anschluss of Austria, he said that he had brought about these—as he called them—“great decisions” against the will of his advisers on his own resolve, referring to his responsibility toward 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 Führer’s decisions. For the above-mentioned concentration of all functions of state power in Hitler’s person, shows that he had both legislative and executive authority. Any pattern for the acts of legislation was no longer provided for in the Third Reich. Also there was no measure by which one could gauge from the tenor of the Führer’s decision whether he acted in his capacity as legislator 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, completely lost its meaning. Even 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 applies even to jurisdiction, and all the more so to the administrative authorities. The application of a law that was made in the regular way provided for by the constitution may not be refused by any office of the state. Examination even by courts of law is limited to the question of determining whether the way 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, but not laws passed by Parliament, may be subject to examination with regard to their content.
In the constitution of the Third Reich there was only one authority for all expressions of the will of the State—the Führer. Often it could not be perceived in what capacity he acted, owing to the destruction of the concept of constitutional law. The doctrine of constitutional law of the Third Reich therefore was debased to a theology of revelations of the Führer. The former discriminations no longer existed for the ministers. The only question that could arise in the constitutional law of the Third Reich was whether the will of the Führer 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 in which they were out of place.
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 Defense 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. Everything that has the appearance of a council is in reality a reunion for the receipt of orders. The evidence presented has definitely shown that efforts to influence Hitler at best led to unexpected reactions.
Herr Von Ribbentrop and several of the other defendants without doubt had considerable power in their own spheres, which did not interest Hitler. They were, however, completely denied participation in the great decisions on war or peace, armistice, peace offers, et cetera.
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 Steengracht has testified here. He stated that Hitler at the most had use for a secretary for foreign affairs but not for a Foreign Minister.
This development in the practice of constitution and government can hardly be reconciled with the thought of a Common Plan or Conspiracy. The conspiracy demands, as we have seen, a unanimity or correspondence in aims in which the participants form their will freely. The political practice of the Third Reich knew only 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 Court’s attention to the relation between politics and law.
The essence of politics is and remains, in the life of sovereign states, the defense 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 principles 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 confronting one another on a level of equal rights. Its weak spot was the lack of any superior authority which would have been in a position to insure the existence of legal order in the same way as the authority of a state is able to within its own borders. Therefore at all times the unrestrained display of force has been allowed a wider range 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 judgment of history. But in a legal sense they were responsible only to their own state for acts with which their state was charged by others 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 the second World War this conception was, despite all attempts to the contrary, the unshaken concept of international law.
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 Armed Forces were 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 the German national territory. They could have divided Germany up. But they chose another way. In the Berlin Declaration of 5 June 1945, they assumed “supreme authority within Germany, including all the powers possessed by the German Government, the High Command of the Armed Forces, and any state, municipal, or local government or authority.” But this was all. The declaration expressly emphasized that the transfer of the 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 provisional state which is still prevailing. At the Potsdam Conference held in July 1945 the four powers among themselves made further agreements, of which we were informed by the communiqué of 2 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 while under Allied control.
This 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 intended. This government is thereupon to accept peace conditions. This involves a government which is in a position to enter into commitments toward 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 a conjecture 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 as new that state 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 behavior 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 position to act according to international law through its own organs, it has not vanished from the sphere of the international legal order.
Thus, in view of the fact that M. de Menthon’s premise is untenable, his final deductions cannot be accepted. Therefore the jurisdiction of the victorious powers over German subjects with regard to their acts connected with politics cannot be based on current international law. Thus the Charter abandons the international legal code. Furthermore, it contradicts fundamental principles of criminal law. If the French prosecutor is of the opinion that the Tribunal exercises the penal authority of the German State, a state which according to his opinion does not exist at this time, then he must logically apply the sentence nullum crimen sine lege to the criminal law existing in Germany. An act could therefore be punishable only if at the time of its commission it was punishable according to the German law. This does not apply either to personal criminal responsibility for the violation of international treaties and assurances or to the participation in the Conspiracy or Common Plan.
In recognition of this, the Control Council for Germany in its Proclamation Number 3 has reinstituted in the system of German criminal law two constitutional principles from which the Hitler regime had deviated, namely, prohibition of retroaction and analogy.
The political criminal concepts of the Charter set a standard of new legal principles which must be considered as the embryo of a code of world law. Herr Von Ribbentrop, at the time when the incriminating events took place, lacked the apperception that there might be such a code of world law.
One can dispense with the necessity for ruling in advance that an act is criminal only in the very few cases where the cruelty of the act is so evident that there can be no doubt as to its deserving punishment. This could hold good for acts which were not punished in Germany during the last years solely in consequence of certain measures of the abnormal amorality of the Hitler regime.
I have heretofore presented the evidence from the point of view of valid international law and the Charter which you, Mr. President, in the session of 20 June 1946, again stressed as the basis for legal findings in these proceedings. Up to now, the code of international law has been unable to solve the problems which are to be decided here. On the basis of this inadequacy the second World War broke out.
The effects of this catastrophe, which this legal code could not prevent, cannot yet be perceived today. To prevent its recurrence in the future is the high aim of humanity, which forms the basis of the London Agreement of 8 August 1945. That this could not yet be achieved is shown with alarming certainty by the fact that, on the very day on which the Charter of this Court was proclaimed to the world as a new law, the war between the Soviet Union and Japan broke out. Its realization had been promised to the Allies by the Soviet Union 6 months prior to that. To justify it, it was pointed out, among other things, that Russia had to settle an old account with Japan. In other words, this typifies a case of an unprovoked attack.
I have illustrated that the attack and the attacker cannot be dealt with by a general definition covering every act of reality. The attacker can only be branded by a world authority. This supreme organ of mankind must possess not only an actual but also a moral authority. Universal trust must be put in its impartial judgment. It must be a tribunal standing high above the conflicting parties; before which these parties appear only as seekers of justice but may have no place in it as judges.
We live in a period of transition, from an old law under whose rule the ruins around us were created, to a new code of world law, which while taking shape, is not yet morally and effectively consolidated.
To judge and punish the acts which were committed by the former Foreign Minister, Herr Von Ribbentrop, his share in the happenings, the extent of his inadequacies, and his own personal guilt, is a difficult task almost beyond human strength in this period of decadence and revival.
THE PRESIDENT: We will call on Dr. Nelte, counsel for the Defendant Keitel.
DR. NELTE: “We must approach our task with so much inner deliberation and mental integrity that this Trial will later appear to posterity as the fulfillment of human longing for justice.”
These words of Justice Jackson in his opening speech for the Prosecution must be the guiding principle for all those who have been entrusted with the noble task of contributing to the search for truth in this Trial. That this truth cannot be absolute has already been stated by the Prosecutors Justice Jackson and M. Dubost. The purpose of the Indictment is not to determine the historical aspect, let alone the historical development of this short but so tragically important period, but instead to find out whether, and to what extent, the defendants sitting on this bench participated in the events which have affected the entire world by their consequences and which have brought such indescribable misery upon it, and not least upon the German people.
In this Trial the Prosecution once stated through one of their qualified spokesmen that it was their task to submit material that would incriminate the defendants and submit only such incriminating evidence. Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear their definitely one-sided standpoint in an Indictment which obliges the Defense to...
THE PRESIDENT: [Interposing.] I have already corrected this misstatement which you have made in your speech here, in dealing with one of the other speeches for the Defense. It is not the practice of the Prosecution to conceal any evidence which tends in favor of the accused.
DR. NELTE: I am afraid I cannot hear.
THE PRESIDENT: What I said was that I had already corrected the erroneous view, which is expressed in this paragraph in your speech, that it is the practice of the Prosecution to conceal anything they know which, may tend in favor of the accused.
DR. NELTE: Mr. President, on this very spot Mr. Justice Jackson stated, “We cannot serve two masters,” when he replied to the statement that according to German criminal law the Prosecution would also have to produce material in favor of the defendants. What I am stating here is not said in order to raise any type of accusation against the Prosecution. On the contrary, from the point of view for which they stood they have done everything that was possible. I merely wanted to clarify my point of view as defendant’s counsel and say why...
THE PRESIDENT: The only reason I interrupted you was because of the sentence in your speech, “They made clear their definitely one-sided standpoint.” In the second paragraph, the second sentence of that paragraph, you say,
“Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear”—that is, the Prosecution made clear—“their definitely one-sided standpoint in an Indictment...”
DR. NELTE: I said “one-sided”—that contrary to the governing principle of German criminal procedure, which is objective indictment, it has made clear its definitely one-sided standpoint of indictment which obliges the Defense to submit all circumstances and considerations which are indispensable for an objective administration of justice.
THE PRESIDENT: Go on. It may be a different translation.
DR. NELTE: For this purpose, it is first necessary to clarify certain concepts which are needed for the perception of responsibility and guilt. As far as concepts of international and constitutional law are concerned, they have been examined and presented by Professor Dr. Jahrreiss.
With regard to the sphere of the soldier I should like to make some fundamental statements. There have been repeated references here to the concepts of soldierly conduct, obedience, loyalty, performance of duty, and patriotism. It is my belief that all men recognize these concepts to be good. But it is permissible to say that not all of these concepts are unequivocal. Thus are opposed: “best soldierly conduct” and “militarism,” “natural obedience” and “contemptible blind subservience,” “the categorical imperative of the performance of duty” and “the exaggerated sense of responsibility,” “the deep love for one’s country” and “chauvinism.”
We see that all these concepts can run through the scale of good and evil. The origin and the essence of these concepts are everywhere the same, but the forms they take on through tradition and education and by the effects thereof vary greatly. However, if this is the case, who then should differentiate and decide whether the feeling is still in the realm of good or has already reached the sphere of evil?
We are all of us living in a world whose century-old striving has aimed at the creation of order. Order is certainly a relative concept, too, but it is everywhere the establishment of the relationship of human beings to each other which guarantees the best possible means of living peacefully side by side in view of the intrinsic character of each country.
This holds true both for the state and for the relationship between nations. Who should determine in this order what is right and what is wrong? The criterion for this might be, according to the traditional conception, only a constitutional, that is, a national one. The drawing closer of the nations by world traffic and general civilization resulted in the various national concepts becoming adjusted to each other in spite of many differences. It must be admitted that this process of adjustment suffered a harmful set-back through certain National Socialist doctrines and their methods. Nevertheless, the principle remains inviolable that the criterion of right or wrong must be a national one, if order is not to be dissolved. The only thing worth striving for is the adjustment of nations and national fundamental concepts to each other as is now being attempted through world organization.
Although the national criterion, that is, the national judgment of good and bad, right and wrong, had been well established in any case up to now, the concepts never have been deprived of their relativity, especially when national differences existed for other reasons. A convincing example of this is the opinion expressed about the resistance movement.
All countries extol what is considered to be the highest form of patriotism: When someone risks his life for his country under the utmost danger. However, according to the Hague Rules of Land Warfare such resistance movement is forbidden. We have here a clear example of the contrast between ethical and legal evaluation. This proves that there are no absolute concepts of good and bad or right and wrong and that beyond all written laws there are unwritten laws which acquit the culprit when he obeys those higher laws. Those higher laws, however, also depend on subjective and national, that is, collectively subjective considerations. If anybody believes something to be good or right, such faith may come into existence out of an actually higher law, a truly higher idea; but it may also grow out of misled faith, out of a false idea. Who would or who could judge whether a faith or an idea was or was not right? History teaches that usually the successful idea is recognized as right, to a certain extent because it is a divine judgment. I do not wish to decide whether that is always true. The question here, however, is whether the people whose guilt is to be judged acted in good faith, in accordance with such an idea and such a faith. If the ordeal has demonstrated this faith to be wrong, the question remains open whether the people could believe the idea to be good for comprehensible or explainable reasons.
This question constitutes the problem which concerns not only Defendant Keitel but also the entire German nation. According to the speech of the French Prosecution not only the defendants in this Trial are the really guilty ones, but the entire German nation. The extent and importance of this thesis are tremendous. Should the Tribunal—if only on the grounds for its decision—come to the conclusion that the entire German nation is guilty, every German for incalculable time will bear the brand of Cain which finally must lead to the destruction of this people and its dissolution.
It has been stated most authoritatively that there is no intention here of accusing the entire German people. Through unconditional surrender we are left entirely to the mercy of the victorious powers for better or worse. It was said, however, that the verdict of this Tribunal is to be just. Here in this Court it is not clemency or inclemency which are to be the guiding principle but justice. Justice does not mean mildness. A verdict, however, will only be just if it takes into consideration all the circumstances which underlie the actions and conduct of the defendants. There is no excuse for what has happened and for what forms the subject of this Indictment. I can only try to give an analysis.
The misery, the misfortune that has fallen on the entire human race is so great that words do not suffice to express it. The German people, especially after having learned the catastrophe that has befallen the nations in the West and East and the Jews, is shaken by horror and pity for the victims. The German nation knows what this misfortune means; for it is stricken as hardly any other nation is, not only in the military field but through the sinister consequences of air attacks, through the loss of millions of its youth in the field, through evacuations and escapes in ice and snow. We know, therefore, what it means to be in misery and to have to suffer. But while other nations are able to look upon all this misery and all this misfortune as a chapter of the past, and in the protection of constitutional order have the comforting hope of returning to an orderly existence and a happy future, there still rests upon this nation the gloom of despair. By affirming the guilt of the entire nation the verdict of this Tribunal would perpetuate this despair. The German people does not expect to be acquitted. It does not expect the cloak of Christian charity and oblivion to be spread over all that has happened. The German nation is ready to the last to take the consequences upon itself. It is willing to accept it as its fate and do everything to participate in removing the consequences. It hopes, however, that the soul and hearts of the rest of mankind will not be so hardened that the existing tension, in fact the existing hatred, between this nation and the rest of mankind will remain.
Your task, Your Honors, is a terribly hard one. We not only speak different languages, each of us feels with the soul of his own country. Much of what has happened in this country will seem incomprehensible to you. The feelings of the German people in its different categories are not your feelings. One of the most essential points, especially in the case of the soldier, seems to me the way of judging what freedom is felt to be. In this country, too, the ideal of freedom was proclaimed. All of us know that the most extreme form of freedom is anarchy. No state desires anarchy, because it means surrender of its own existence. If therefore, all countries agree that the absolute concept of freedom is never worth striving for and can never be sanctioned, there results, perforce, relativity of the concept of freedom. No concept has been so misused as the concept of freedom, and yet every political system proclaims freedom as the greatest of all blessings.
By that, I by no means wish to say that the concept of freedom as proclaimed by National Socialism was the right solution. What I do wish to say, however, is that National Socialism also knew the concept of freedom and made it clear to the people through propaganda that its conception of freedom was the right one. National Socialism was aided in this by the fact that under the effects of the Treaty of Versailles Germany could indeed make no claim to be really free. The limitations of its sovereignty were so pronounced and so evident that it was easy for National Socialism to proclaim the fight for the freedom of the fatherland.
As long as the fatherland is recognized in the world as the highest worldly possession, endeavors to keep this possession must be understood and will not be disapproved of even when it is an adversary who makes them. One may be of a different opinion as to the method which should be used for the realization of these endeavors and as to how freedom is to be attained. This, however, is not decided by the individual but by that person or those persons who hold the power in a state.
Every human being wants something to hold on to in life; he must have it if he is not to sink into anarchy. Public order at the side of moral order is a firm support and the foundation of his existence, and this gives him a feeling of security in his life and professional activities. It is the deep longing of all civilized men for order which finds its highest fulfillment in the institutions of the state. On the other hand, the citizen must have confidence that the state, that is, its official agencies, will safeguard law and order. In this respect it should not matter which party provides the guardians of its inviolable principles. That is just where the confidence of a nation as a whole expresses itself, namely, by leaving leadership to the prevailing majority. National Socialism undoubtedly aimed at and succeeded in rousing the belief in wide circles of the German people that its endeavors were supported by the majority of the people. It thereby procured for itself the alibi of legality.
Far from all political considerations, as all the generals and admirals have testified here, the leaders of the Armed Forces believed in the legitimacy of Hitler’s Government. It looked upon itself as the instrument of a legal government, as it did when the Kaiser, Ebert, and Von Hindenburg were Germany’s representatives.
Like all tendencies, all forms of expression of feeling, the feeling of patriotism and of a soldierly attitude bears in itself a tendency to become more radical and thereby to degenerate, if external circumstances create an actual basis for it. We have experienced the exaggeration of sound national ideas into national chauvinism, and we can observe retrospectively how the sound soldierly idea was exaggerated by influences foreign to its nature into the militaristic form of expression. All these developments are not desultory, which would make them easily recognizable and regulated. The driving forces are mostly not apparent to those whom they concern. They are like a poison which acts slowly and unnoticed and the effect of which results one day in a horrible eruption. It needs no special explanation that a component part of the soldierly and military person who is being geared to a possible war is ruggedness, and in its intensification it turns into brutality. One often finds on the part of famous—and not only German—war leaders the view that the brutal war is frequently the kindest if it leads to a quick ending. This, of course, is desired by every war leader. Once peaceful restraint is removed by war, all that remains is brutality. It reveals the causes of total war and the source of the terrible disaster which resulted from it.
The Defense has a difficult task in this Trial. The German people look to Nuremberg, disunited in themselves. Some are skeptical and partly hostile toward the Defense because they believe the Defense is favoring those whom they consider as war criminals and believe that the Defense wishes to prevent that just punishment be meted out to the defendants. Others say the Trial is just a show, at which the Defense Counsel act as dummies to give the Trial the appearance of a judicial procedure. Accordingly, in the view of these Germans we would make ourselves guilty of favoring the enemy.
We have no reason to justify our actions because by our participation at this Trial we are fulfilling a task in line with the precept of our calling, the importance of which needs no justification. It consists of co-ordinating our efforts in the interest of clarifying the truth—the importance and effects of which is today incalculable for our German people—of getting to the bottom of the causes and of answering the question as to how all this could have happened.
Only the clear recognition of the cause, the forces, and the people which brought about the disaster which has come over this world will create the possibility for the future of our people to find the way back again to the rest of the world.
The task of this Tribunal is not to search for the political, economic, and metaphysical reasons for this second World War and not even to examine the course of events in its entirety, but rather only to determine whether and what part these defendants played in that which the victor nations made the object of these proceedings.
The task of the Defense, within the framework of their co-operation in finding the truth, consists of examining which factual and legal points could be stated in favor of the defendants. It should be said here that with all the co-operation on the part of the Tribunal shown to the Defense in producing their evidence, the actual possibility of producing defense material for the defendants was limited. Justice Jackson said in his basic prosecuting speech...
THE PRESIDENT: You seem to be coming back to further attacks upon the way in which this case has been tried and that is not what you are here to do now. What you are here to do now is to present the case on behalf of the Defendant Keitel.
I see that further on here you go on to complain about alleged noncommunication to you of various documents and you refer to a discussion on the subject which took place as long ago as February of 1946. On that occasion I expressed the view on behalf of the Tribunal that the French Prosecution might properly show to you or give you the opportunity to look at their documents. From that day to this, that is to say from February until July, you have made no application to the Tribunal or made any complaint to the Tribunal that that has not been done; and now, in your final speech, you make this complaint that you have not been allowed to see the documents in spite of the fact that in February I expressed, on behalf of the Tribunal, the opinion that you might see such documents.
Well, it seems to me that it is a waste of time, a waste of our time now to make these complaints after all these months, apart from the fact that you have already spent time which has been involved in reading 11 pages of your speech without coming to anything which really affects the Defendant Keitel.
DR. NELTE: Mr. President, I believe that in February you told the Prosecution, according to the record, that they should place these documents at my disposal. The Prosecution, unfortunately, have not placed these documents at my disposal.
THE PRESIDENT: Why did you not come back to the Tribunal? You knew perfectly well that I had expressed my opinion on behalf of the Tribunal; and if there was anything to complain about, you had full access to the Tribunal from February until today. It seems to me that it is a frivolous complaint to come now.
DR. NELTE: I hope, Mr. President, that nevertheless the facts which I am putting to you in my manuscript will be considered by the Tribunal. You will notice that I shall refer to this matter at a later stage. On 1 February the session took place during which this affair came up, and on 11 February I went to the French Delegation.
THE PRESIDENT: That is what I have stated, Dr. Nelte. I have already pointed that out to you.
DR. NELTE: And the French Prosecution did not give it to me.
THE PRESIDENT: Why did you not come back to the Tribunal if you had any complaint to make? I have said—and I repeat—that I think to make a complaint now after not having made it for all these months is a frivolous complaint and an attempt to create prejudice, and I should be glad of your explanation.
DR. NELTE: Mr. President, it is merely an attempt to show you that I did not wish to raise a complaint about the Prosecution, recognizing as I did that the Prosecution did not want to help me. I have never been inclined to raise complaints about higher authorities, and I did not want to do it in this case either.
THE PRESIDENT: Dr. Nelte, I think that is a most unfair and a most improper thing for a responsible counsel to say. I think the mention of such a complaint is, as I have said, simply an effort on your part to create prejudice against the French Prosecution and against the fair conduct of this Trial.
DR. NELTE: Mr. President, in my view it was merely meant to show how difficult it was for us to find material in favor of our clients.
THE PRESIDENT: Well, perhaps you will try and get on to something that is really material for the Tribunal to consider.
DR. NELTE: May I ask you to turn to Page 15 where, under Figure 3, I am dealing with the documents.
The document governs the hearing of evidence before this Tribunal. Against that the witnesses remain in the background. More important is the examination of these documents to ascertain the possibility of their utilization and their probative value.
The Prosecution has submitted as evidence to a large extent official reports which are admitted according to Article 21 of the Charter. I intended to show with respect to a number of these documents the conditional value of such reports as evidence. But I shall limit myself to a few fundamental arguments in this connection, trusting that you, Your Honors, in examining this kind of evidence will take my statements into consideration.
These numerous official reports submitted contain factual statements which to a great extent are based on witnesses’ testimony. These testimonies are not always related in the form of protocols but as summarizing reports. I do not want to dispute that these testimonies of witnesses are made as deposed in the reports. However, I will not do injustice to any of the witnesses who are not known by the Tribunal and whose testimony is hard to verify for lack of a personal impression, when I say that it concerns mostly very subjective attestations. There are a number of documents in which this is clearly recognizable, and in fact stated, and even documents in which hatred finds its clear expression. I can understand the hatred of these hard-hit people. The suffering they had to endure was so great that one cannot expect impartiality from them. I may, however, say too that such personal feelings are not conducive to rendering the testimony of these sorely afflicted ones a suitable basis for finding the real truth. I am thinking of the form of oath so often heard here on the part of the witnesses: “Swear that you will tell without hatred or fear...” And these official reports often contain not only factual statements, but final conclusions and judgments. To this extent, the probative value of these official reports cannot be recognized. In part these judgments go so far that outside the sphere of those directly involved they level reproaches against authorities, that is, the OKW and Keitel, without it being possible to recognize from the document itself on what the conclusion drawn rests. As long as it is a question of the indictment of an individual like the Defendant Keitel, a document used in evidence must give a proof which yields concrete facts for responsibility or which at least reveals causal connection. Above all, it cannot suffice, in order to consider Keitel’s responsibility as proved, if in such reports crimes committed by soldiers and officers of the Army or of the Armed Forces are alleged in order to derive responsibility on the part of the Defendant Keitel from this fact alone, because he was the Chief of Staff of the OKW.
It must be added that in these reports military agencies have often been erroneously named and confused; for example, when the Defendant Keitel is spoken of as the “High Commander (Oberkommandierender) of the Wehrmacht,” which is called “OKW” instead of “OKH.” It is not always possible to decide to what extent it is a question of an erroneous conception on the part of the Prosecution or whether it comes from a translation which is not in accordance with the meaning.
In order to examine the responsibility of the Defendant Keitel, I wish to make clear to the Tribunal, in a manner which excludes any doubt, what the channels of command and competence were and to this end I have submitted two affidavits to the Court: a) “The Channels of Command in the East” (Document Book 2, Keitel-10); b) “The Development of the Situation in France 1940-1945 and the Military Authorities” (Document Book 2, Keitel-13). The latter affidavit has also been signed by the Codefendant Jodl. I refer to these affidavits and make them the contents of my argument without reading from them.
Finally I would like to direct the attention of the Tribunal toward other circumstances which may well impair the probative value of the documents which the Prosecution has submitted and you have accepted—for example, when documents do not bear any signatures, and it is impossible to decide whether it is a question of copies of documents which have actually been issued. As an example I will refer to Document 081-PS, which was submitted by the Prosecution for Keitel’s Indictment during the question of the treatment of prisoners of war. As far as its contents are concerned it is a fabulous document. Keitel does not remember ever having seen this report or ever having knowledge of the details contained in it. From all appearances one must consider this document as the draft of a report which was not issued, for:
a) it bears neither a signature nor an initial as is usual in copies,
b) if this letter had been sent out, it would have a blank journal number; and
c) the letter was not found at the addressee’s. In such cases mere knowledge of the addressee—in this case the Defendant Keitel—and the consequent deduction of his guilt in omitting to take measures to change conditions cannot be considered as proved.
I come to the Indictment against Field Marshal Keitel. I shall shorten the reading of Pages 19 to 21. The reading of the general Indictment and the special Indictment in the trial briefs can be omitted here since, with the exception of the Jewish problem and the persecution of the Church, there is no part of the Indictment which the Prosecution has not raised against the Defendant Keitel.
I should wish merely to point out that the original general Indictment holds Keitel responsible only for the period after 1938 and secondly, that at the beginning of the Indictment, Keitel is described as Chief of Army Command. According to the evidence submitted by the Prosecution, Keitel was also held responsible for the period after 1933, although the American, British, and French Prosecutions seem to have dropped the allegation that Keitel was Chief of Army Command. The Indictment of Field Marshal Keitel is split, therefore, between the periods 1933 to 1938—that is, 4 February 1938—and from 4 February 1938 until the end.
I shall now continue on Page 21, the last paragraph.
Herewith the defendant is not only indicted as a member of the conspiracy but is also accused of personally participating in all the crimes in the Indictment. The space which the Prosecution has devoted to the defendant in its statements corresponds with the comprehensive Indictments. The name of no other defendant has been mentioned so often by the Prosecution as that of the Defendant Keitel. Again and again we hear the words “Keitel’s order,” “Keitel’s decree,” and just as often “order of the OKW,” “directives of the OKW,” along with Keitel’s name as “Chief, OKW” after 4 February 1938.
From this is derived the very substance of the Indictment, namely, the position the Defendant Keitel occupied after 4 February 1938. But from it is also derived the scope of the justification. Here it is not a question of examining to what extent the defendant participated in the individual facts of the case, which in the long run arose from the so-called “Keitel orders” or “OKW instructions”; but what matters is the position he occupied—whether he took part and what part he took in the planning and execution of those orders and instructions, and finally and most important of all, whether his part in it was causal and culpable in the sense of the law which is to be applied here.
It seems to be of importance to stress from the outset several points of view which are important for the treatment of the case and for its judgment.
THE PRESIDENT: Would that be a convenient time to break off?