DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the

Tribunal to accept a short explanation to the matter which has just

taken up the attention of the Tribunal and which for most counsel is of

general and fundamental importance. I should like to remind you of the

fact that the suggestion and initiative to take up certain legal topics

and have them dealt with by Professor Jahrreiss came from the Defense

and that this suggestion was made for the sole reason of complying with

the Tribunal’s wish to expedite the proceedings. I must earnestly

request the Tribunal to protect us from letting this suggestion, made to

and granted by the Tribunal at the time, become our own pitfall in that

a resolution which has been made is interpreted too strictly. I do not

have the resolution before me and I do not intend to deal with it and

discuss it, but I should like to say this: Professor Jahrreiss did speak

and was to speak on but two topics which, it is true, were of a general

nature; that is, (a) the punishment of individuals for a war of

aggression, in other words, _nulla poena sine lege_, and (b) the legal

nature of the Führer decrees. Only these two problems were to be dealt

with by Dr. Jahrreiss and these were the two topics that he actually did

deal with. But besides that, these proceedings entail a series of legal

problems which are of a general nature and more or less affect each of

the defendants. I only recall to you the interpretation of the

conspiracy charges, the various questions dealing with international

law, the questions of hostages and forced labor, and the legal question

concerning distress at sea through naval warfare, and other general

questions. There are a host of general questions, and above all the

matter on which my colleague, Dr. Horn, was stopped, concerning the

question: “What is an aggressive war?” There exist fundamental

differences between a military war of aggression, a political war of

aggression, and a juridical war of aggression, _et cetera_, about which

Dr. Jahrreiss did not say a single word, nor was he supposed to do so.

And please—I trust you do not mind my saying so, but that is the way I

understood Dr. Horn—that is really the basis of his argument.

I do not propose to argue and to refer to a resolution; but I ask the

Tribunal not to put us in a most delicate situation, namely, that we, in

order to expedite the proceedings by having Professor Jahrreiss deal

with a number of legal questions, be put in a position for which we

cannot take responsibility, in that we are prevented from dealing with

certain questions which in our opinion are of decisive legal importance

to the defendants and about which Jahrreiss himself did not speak at

all.

Only a word or two more. I believe the Tribunal will agree with me that

one can have an entirely different opinion on the subject with which

Professor Jahrreiss has dealt. I do not have it; nor shall I contradict

Dr. Jahrreiss. But from a purely theoretical point of view that might be

possible. Should it happen, just because in such an important matter a

speaker has dealt with this question, although in a sense which possibly

one of the counsel considers entirely improper and harmful to his case,

that that counsel is forced to keep silent on such a matter? That cannot

have been the intention of the Tribunal. Well, all I wanted to say was

this: This speech by Jahrreiss served the purpose of expediting the

Trial. Well and good. But we ask—I think I may say “we”; I believe that

none of my colleagues is of a different opinion—we ask that it should

not be interpreted too formally; and if one of us for some good reason

says, “I have to discuss this, it is important for this or that reason,”

to give us that possibility wherever Jahrreiss has dealt with the

subject in a sense which we do not approve, and not to prevent the

discussion of some general legal question if it should be raised by any

of the counsel.

THE PRESIDENT: The Tribunal has been considering this matter and they

are fully aware, of course, of the difficulties which may possibly arise

if there were differences of opinion among the defendants’ counsel upon

questions which had been dealt with by Dr. Jahrreiss. They did

anticipate when they made the order which specifies that Dr. Jahrreiss

should speak on legal issues arising out of the Indictment and Charter

which are common to all the defendants—those are the words of the

order—that he would deal with all the issues which were common to all

the defendants, and in the absence of some difference of opinion, that

the other defendants would be prepared to adopt his argument; but the

Tribunal think that the questions of law may be to some extent quite

various and difficult and that the only rule which is possible for them

to lay down at this stage is that there must be no real repetition by

defendants’ counsel. The Tribunal apprehends that defendants’ counsel

will see the necessity for such a rule as that. It cannot be in the

interests of an expeditious trial that argument should be repeated over

and over again, and this Tribunal desires to point out to the

defendants’ counsel that such repetition upon general matters only tends

to distract the attention of the Tribunal from the real defenses of the

clients whom they represent, and therefore the Tribunal hopes that the

defendants’ counsel will try to co-operate in this matter and confine

such legal arguments as they think it right to present to the Tribunal

to arguments which had not been addressed to the Tribunal by counsel who

preceded them—either Dr. Jahrreiss or any other counsel. That is all

that I need to say, I think, at this stage; and as it is now 5 o’clock

the Tribunal will adjourn.

[_The Tribunal adjourned until 8 July 1946 at 1000 hours._]

ONE HUNDRED AND SEVENTY-THIRD DAY

Monday, 8 July 1946

_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.