Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 17

by Various

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.