Chapter XXVII: Book 1: , Mr. President (15)

Herr Von Ribbentrop has been accused by the Prosecution of having, in his capacity as Foreign Minister, engaged in creating difficulties in collaboration with the Sudeten German Henlein. They further accuse him of having induced the Sudeten German Party to increase their demands step by step rather than enter the Czechoslovak Government and of thus having prevented a solution of the whole problem without making it appear that the German Government was setting the pace.

Document 3060-PS submitted by the Prosecution shows just the contrary. It is true that Herr Von Ribbentrop knew that the Anschluss efforts of the Sudeten Germans were encouraged by the Party. But he had no influence on this Party policy nor any thorough knowledge of it. Due to the difficulties which had arisen with the Czech Government on account of the separation efforts of the Sudeten Germans and their partly uncontrollable policy, Herr Von Ribbentrop considered it necessary to see to it that the realization of the Sudeten German aims was carried out within the limits of a responsible policy.

THE PRESIDENT: Dr. Horn, wouldn’t that be a convenient time to break off?

[_A recess was taken._]

DR. HORN: The Munich Agreement brought a temporary calm in the situation with reference to foreign policy. The situation was again complicated only by Hitler’s invitation to Hacha to come to Berlin and by the events resulting from this visit. This step with its far-reaching importance came as a complete surprise to Herr Von Ribbentrop. Reich Marshal Göring has testified that after the Slovakian question had been settled Hitler had, in spite of all warnings, decided upon setting up the Protectorate of Bohemia and Moravia. On the basis of the available material it will be difficult to ascertain the final reasons for Hitler’s step. According to the testimony of the Defendant Göring they sprang from Hitler’s constant fear that through connections of the Czech officer corps with Russia another complication of the situation in the southeastern area might develop. This assumption and the resulting strategical and historical reasons may have induced Hitler to take this step of 13 March 1939, which came as a surprise to Herr Von Ribbentrop, too.

This step, which is only understandable by Hitler’s tendency towards surprise decisions, completely changed the German situation as to foreign policy. Herr Von Ribbentrop had warned Hitler at that time of the reaction by the Western Powers, and especially by England, which had to be expected as a result of this step.

And the consequences became immediately apparent in the Danzig and Corridor question which had been under discussion since October 1938. Whereas up to that time the Poles, by reason of the German policy since 1934 and due to the return of the Olsa territory to Poland, had not refused discussions about this problem, a reaction to the setting up of the Protectorate became apparent immediately at the end of March. England regarded the establishing of the Protectorate as a violation of the Munich Agreement and began consultations with a number of countries. At the same time Minister Beck, instead of coming to Berlin again, went to London and returned from there with the assurance that England would resist any change of the _status quo_ in the East. This declaration was also made in the House of Commons after previous consultation with the French Government.

On 26 March 1939 the Polish Ambassador Lipski called at the Wilhelmstrasse and stated to Herr Von Ribbentrop that any continuation of the revision policy toward Poland, especially as far as a return of Danzig to the Reich was concerned, would mean war.

Thereby the Polish question had become a European question. Herr Von Ribbentrop told the Polish Ambassador at that time that Germany could not acquiesce to this decision. Only the reincorporation of Danzig and an extraterritorial corridor to East Prussia could bring a final solution.

I have submitted to the Tribunal, in the form of documentary evidence, a review of the Polish crisis which then developed. I can therefore assume that the actual course of events is known, including the incorporation of the Memelland which returned to the Reich through an agreement with Lithuania.

In order not to take up the time of the Tribunal unnecessarily, I shall confine myself to stating those facts which are apt to clarify the role of Herr Von Ribbentrop.

The Prosecution accuses Herr Von Ribbentrop of mollifying Poland by pretending friendly feelings toward her during the Sudeten crisis and the setting up of the Protectorate of Bohemia and Moravia. May I, in refutation of this assertion, point out that the relations between Germany and Poland since the agreement of 1934 were good and even friendly and that this attitude became, of course, even more favorable through the fact that Poland was indebted to German foreign policy for the acquisition of the Olsa territory.

She had, therefore, every reason to entertain friendly feelings toward Germany without it being necessary to be deceived by Herr Von Ribbentrop’s behavior. As the evidence has shown, Herr Von Ribbentrop continued this friendly policy towards Poland even after the dissolution of Czechoslovakia, since there was no reason to deviate from this attitude.

The Prosecution further accuses Herr Von Ribbentrop of having known that Hitler as early as the spring of 1939 was determined to wage war against Poland and that Danzig served only as pretext for this conflict. They deduce this from Documents USA-27 and USA-30. These are Hitler’s well-known speeches of 23 May and 22 August 1939. First of all I wish to point out that Herr Von Ribbentrop was not present at these conferences intended only for the military leaders.

A number of key documents have been discussed in detail here. I only wish to name the best known, such as the Hossbach Document, the two Schmundt Files, and the afore-mentioned speeches. Quite a number of statements about these documents have been submitted in evidence. People who knew Hitler well stated that they had become accustomed to his extravagant ideas expounded in sudden speeches, in which he often repeated himself, and that they did not take them seriously in view of his singularity.

It is possible to counter these documents with quite a number of speeches in which Hitler has asserted the contrary. Here, conversely, it might be pointed out that Hitler pursued some definite purpose with his utterances. That may be quite true. But it is just as true that even the few key documents which were submitted as proof of aggressive war contain so many contradictions, with regard to the aggressive intentions deduced from them, that at best a critic judging retrospectively could recognize such intentions. Besides, the contents of these documents, in accordance with the strict regulations for secrecy, became known only to those who took part in the conferences. This might explain why Herr Von Ribbentrop learned about them only here in the courtroom.

The guiding principles as to foreign policy which Hitler laid down for him at that time covered merely the reincorporation of Danzig and the establishment of an extraterritorial road through the Corridor, in order to open a direct land route to East Prussia.

As the Tribunal will remember, Hitler had told Herr Von Ribbentrop already at the time of his appointment as Foreign Minister that it was desirable to achieve these aims. This demand was just as much historically justified as some solution in the case of earlier incorporations of areas inhabited by Germans, which had become inevitable.

The statute of the purely German city of Danzig, which was created by the Treaty of Versailles in the course of the establishment of a Polish state, had always been the cause of friction between Germany and Poland. Poland had achieved this solution at Versailles through the argument that it needed an outlet to the sea. For the same reason the Corridor was established against all ethnological needs. Clemenceau in his memorandum already referred to this artificial creation as a source of danger, especially due to the fact that the peoples living in this area had been separated through long years of bitter enmity. It was not difficult to foresee that as a result of this fact the League of Nations and the International Court at The Hague were constantly going to be occupied with complaints about Polish violations of the agreement on minorities. The same cause gave rise to the large-scale confiscation of up to a million hectares of German estates and the expulsion of far more than a million Germans in the course of 20 years. Not without reason did Lord d’Abernon speak of the Danzig-Corridor problem as the “powder magazine of Europe.” When finally a solution of this question was sought under recognition of the Polish claim to the preservation of an outlet to the sea, such an endeavor appeared both sensible and historically justified.

The evidence has produced nothing to support the claim that this question served merely as a pretext, which Herr Von Ribbentrop could not but have known. It has produced no proof that Herr Von Ribbentrop was acquainted with those of Hitler’s aims which went far beyond these demands. Nor has it been proved that Herr Von Ribbentrop, as has been asserted by the Prosecution, before 1 September 1939, did all he possibly could to prevent peace with Poland, although he knew that a war with Poland would draw Great Britain and France into the conflict. The Prosecution base this statement on Document TC-73. This is a report by the Polish Ambassador to Berlin, Lipski, to his Foreign Minister. The document contains nothing whatsoever to substantiate this assertion.

Moreover, I do not believe that, according to the result of the evidence, Lipski can be valued as a particularly reliable witness. May I recall that it was Lipski who, during the decisive stage of the negotiations before the outbreak of the war, remarked that he had not the least cause to be interested in notes or propositions from the German side and that he knew the situation in Germany quite well after a period of 5½ years as Ambassador. He was convinced that in case of war riots would break out in Germany and that the Polish Army would march victoriously into Berlin.

According to the testimony of the witness Dahlerus it was none other than Lipski who, during the decisive discussion at the Polish Embassy, created the impression among the Swedes that Poland was sabotaging every possibility for negotiations.

Further results of the evidence also speak against the above allegations presented by the Prosecution, as for instance the fact that Herr Von Ribbentrop, after he had learned that the Polish-English guarantee pact had been signed, intervened with Hitler to cancel the order for the Armed Forces to march because a conflict with Poland would also, in his opinion, have drawn in the Western Powers. This opinion coincides with the conclusions to which Herr Von Ribbentrop had come in his review of the European situation and laid down in Document TC-75, which has already been mentioned.

Minister Schmidt has testified here that it was Herr Von Ribbentrop who, on 25 August 1939, after the Hitler-Henderson meeting, sent him to Sir Nevile Henderson with the verbal communiqué, presented as TC-72/69, in which the contents of Hitler’s proposals were summarized. At the same time Herr Von Ribbentrop adjured Henderson to submit Hitler’s proposals personally to the British Government for favorable consideration. According to the _British Blue Book_, Sir Nevile Henderson could not refrain from calling these and subsequent proposals exceptionally reasonable and sincere. They were not the customary Hitler proposals, but pure “League of Nations” proposals.

No one studying the negotiations of the subsequent fateful days can deny that everything was done on the German side at least to get negotiations under way on a workable basis. The opposite side did not let it come to that, because they were determined to take action this time. The good services of England ended with the breaking-off of all mediation without having been able to bring Poland to the conference table.

Herr Von Ribbentrop has been blamed for having practically defeated the purpose of the last decisive discussion with the British Ambassador, Henderson, by having read the German proposals to Poland so fast, contrary to all diplomatic custom and international courtesy, that Sir Nevile Henderson could not understand them and, hence, could not pass them on. The interpreter, Minister Schmidt, was present at this decisive discussion. He has testified here under oath that this statement is not true. One may consider Hitler’s order to acquaint Sir Nevile Henderson only with the substance of the memorandum as unwise. The fact is that not only did Herr Von Ribbentrop read the entire contents at a normal speed to the British Ambassador; but he also, by having the interpreter present, made it possible for Sir Nevile Henderson to become familiar with the entire contents and, moreover, to have explanations given on it. Besides, upon the initiative of Reich Marshal Göring, it was transmitted to the British Embassy during the same night by telephone to the Counsellor of the Embassy, Mr. Forbes. Thus the British Government should have been able to render the good services offered for opening negotiations based on positive proposals.

By reason of these facts here deposed, one must rightly doubt the truth of the allegation that the defendant had done everything to prevent peace with Poland.

At the beginning of my defense speech I stressed that legal considerations concerning aggressive war are not possible without knowledge of the circumstances leading to an armed conflict. Before I proceed to the legal aspects of the conflict with Poland, may I make some additional statements concerning the causes that led to the war.

The period between two World Wars is characterized by the conflicting reactions of those powers which were satisfied and those which were dissatisfied. It seems to be an inevitable law that after great war repercussions, the victorious states tend as far as possible toward the re-establishment of the prewar status and prewar mentality, whereas the vanquished are forced to find a way out of the consequences of their defeat by new means and methods. Thus after the Napoleonic wars there came about the Holy Alliance which under Metternich’s leadership, using legitimacy as an authorization, tried to ignore the effects of the French Revolution.

What the Holy Alliance did not achieve, the League of Nations equally failed to achieve.

Created in an atmosphere of fervent belief in human progress, it was quickly transformed into a tool of the satisfied states. Every effort to strengthen the League of Nations meant a new bulwark for the maintenance of the _status quo_. Under cover of the elegant diction of juridical formalities power politics continued. Besides, the obsession by the idea of _sécurité_ soon deprived the newly-created body of any breath of freshness and life.

In this fashion, naturally, a solution of the problems created by the end of the first World War could never be found. In international relations a coalition of interests of the conservative powers content with the _status quo_ and of the revolutionary powers trying to do away with it, became increasingly apparent. It could only be a question of time until under those circumstances the political initiative would pass to the dissatisfied powers. The formation of this front depended exclusively on the force of the revolutionary spirit which was crystallizing in opposition to the political self-complacency and hankering after the past. In this fertile soil grew the doctrines of National Socialism, Fascism, and Bolshevism, obscure in many parts of their programs, elastic and incoherent in others. Their power of attraction was based not so much on their programs but on the fact that they admittedly offered something new and that they did not exhort their followers to worship a political ideal that had failed in the past.

The economic crisis of the postwar period, the controversies about reparations and the occupation of the Ruhr, the inability of democratic governments to obtain anything for their distressed peoples from the other democracies, unavoidably led to a test of the doctrines which had not yet been tried out. The practical results of this revolution, as we experienced them in Germany after 1933, could, aside from the social program, consist only in abolishing the peace settlement of 1919, which constitutes a classical example of failure to understand the revolutionary character of a world crisis. For this revolution these tasks were not legal questions but doctrines, exactly as it had long become a doctrine of the satisfied states to maintain the _status quo_ at all costs, even at the price of a new world war.

Only he who does not shut his eyes before these facts can judge the political crisis of the past decade.

Every revolution has but two possibilities; either it meets so little resistance that eventually conservative tendencies develop and an amalgamation with the old order is formed, or the antagonistic forces are so strong that finally the revolution breaks up through overstraining its own means and methods.

National Socialism went the second way, which began without bloodshed and partly with a remarkable leaning upon tradition. But this method, too, could not escape the inherent laws of history. The aims were too high for one generation, the revolutionary essence too strong. The initial successes were startling, but they also resulted in lack of criticism as to the methods and aims. The process of uniting all larger German groups in the Central European space would most probably have succeeded, if at the end—I am referring to the setting up of the Protectorate of Bohemia and Moravia and the pursuit of the Danzig-Corridor question—the revolutionary tempo and methods had not been overstrained by reason of previous successes. No person capable of sober judgment will dispute the need for a solution of the Danzig-Corridor question, delicate as it was.

The Prosecution may assert that in reality Danzig was but a pretext, but seen from the state of affairs in 1939 this can hardly be proved. But it is certain that the opposite side was concerned about other things than the maintenance of the _status quo_ in the East. National Socialism, and with it, in its newly gained strength, the German Reich, had become such a danger in the eyes of the others that after Prague it was determined to make any further German advance a “test case,” wherever it should happen.

I have already said that the revolutionary protest in Central Europe was chiefly due to economic causes brought about by Versailles where a peace treaty was imposed on Germany of which it was well-known that its economic provisions could not be carried out by the vanquished.

THE PRESIDENT: Dr. Horn, the Tribunal thinks that sentence, at any rate, is objectionable on the ground that I have already stated.

DR. HORN: Mr. President, I did not mean to emphasize how the Versailles Treaty came about; I only wanted to stress certain necessary consequences which are generally known facts. But I have completed this part and have nothing further to say with reference to it.

THE PRESIDENT: Go on, Dr. Horn.

DR. HORN: Much has been said here about the slogan Lebensraum. I am convinced that this word would never have become a political program, if after the first World War Germany had been given the possibility of linking up with the world markets, instead of being strangled economically. By systematically cutting her off from all raw material bases of the world—all this for reasons of _sécurité_—the tendency towards autarchy, the inevitable way out from the barring from the world markets was fostered; and, at the same time, with the progressively deteriorating economic situation, the cry for Lebensraum could find receptive ears.

Thus, Stalin is right when he says:

“It would be erroneous to believe that the second World War came
about accidentally or as a result from mistakes of one or the
other of the statesmen, even though such mistakes were made
without doubt. Actually the war came about as an inevitable
result of the development of international economic and
political forces based on modern monopolistic capitalism.”[B]

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[B] Speech by Stalin on the eve of the Soviet elections in February 1946.

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Professor Jahrreiss has already fully explained, in his basic arguments concerning the legal and the actual significance of the Kellogg Pact, that the meaning given to this project for the prevention of war by the Prosecution cannot be recognized by the Defense.[C]

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[C] Mr. Justice Jackson is trying in this connection to invoke Article 4 of the Weimar Constitution of 1919. According to this, the universally recognized rules of international law are regarded as binding components of German Reich law. Owing to the differing legal appreciation of the Kellogg Pact on the part of the Great Powers the interpretation advanced by the Prosecution cannot be looked upon as German Reich law.

Cf. _Reich Supreme Court Decisions in Litigation Procedures_, Vol. 103, Page 276.

Anschütz: _The Constitution of the German Reich_ (_Die Verfassung des Deutschen Reiches_); 10th ed., Page 58 et sequentes.

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Even though war has been previously declared an international crime, especially at the 8th League of Nations Assembly of 1927, it became quite clear in preliminary conversations, as has been proved by documents already submitted to the Tribunal, that this declaration was not meant to make war a crime in the legal sense but that it was an expression of the wish to prevent future international catastrophes of the scale of the first World War. Moreover, neither the United States nor Russia participated in the League of Nations resolution of 1927.

All further plans for outlawing war during the period between the first and second World Wars remained mere drafts, as the British Prosecutor had to acknowledge in his significant argumentation, because practical politics could not follow these moral postulates.

All these experiments—and they are by no means few—clearly show that the problem of finding a definition lies in the difficulty of condensing a political process, dependent upon a host of components, into a legal concept which will cover all the varying cases occurring in practice. The failure to formulate a definition which could be used in international law has led to the fact that, instead of working out general standards and measures applicable in each case, the designation of the aggressor was left to the decision of an organ dominating all the contending parties. In such a way, the question of defining the aggressor became the question: “_Quis judicavit?_” that is, “Who shall designate the aggressor?” From this decision follows a new difficulty, namely, what is to be done against the aggressor?

Previous to the attempt of settling in a general way the concept of aggression and the sanctions against the aggressor, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory and anarchic situation, the United States, under Secretary of State Bryan...

THE PRESIDENT: [_Interposing._] Isn’t this really arguing the same questions that Dr. Jahrreiss has already argued?

DR. HORN: Mr. President, I have tried to omit the matters set forth by Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly to the Kellogg Pact. I am only dealing with the questions pertaining to the legal aspect of wars of aggression.

THE PRESIDENT: Yes, but the Tribunal only granted the right to have an additional counsel deal with the general questions of law on the understanding that the other counsel were not going to deal with the same questions of law. Of course, you are not using the words of Dr. Jahrreiss—I should not expect you to do that—but you are arguing the very same topics.

DR. HORN: Mr. President, it had been agreed originally, as the professor as an expert had stated, that every counsel is entitled to take a different attitude toward the problem argued by him. Professor Jahrreiss concentrated chiefly on the Kellogg Pact and its consequences. I personally am turning my attention to aggressive war, and, as you, Mr. President, emphasized...

THE PRESIDENT: Just a moment. What is involved, then, is that the Tribunal is going to hear 20 arguments upon the general questions of law; and surely it can scarcely have been thought by defendants’ counsel that the Tribunal proposed to hear 20 arguments on the general questions of law and also hear Dr. Jahrreiss on it. The only purpose of hearing one counsel was to have the general questions of law dealt with by one counsel alone, and that the others should not speak upon it.

DR. HORN: Mr. President, may I emphasize once more...

THE PRESIDENT: Just a moment. The Tribunal will adjourn.

[_A recess was taken._]

DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the Tribunal to accept a short explanation to the matter which has just taken up the attention of the Tribunal and which for most counsel is of general and fundamental importance. I should like to remind you of the fact that the suggestion and initiative to take up certain legal topics and have them dealt with by Professor Jahrreiss came from the Defense and that this suggestion was made for the sole reason of complying with the Tribunal’s wish to expedite the proceedings. I must earnestly request the Tribunal to protect us from letting this suggestion, made to and granted by the Tribunal at the time, become our own pitfall in that a resolution which has been made is interpreted too strictly. I do not have the resolution before me and I do not intend to deal with it and discuss it, but I should like to say this: Professor Jahrreiss did speak and was to speak on but two topics which, it is true, were of a general nature; that is, (a) the punishment of individuals for a war of aggression, in other words, _nulla poena sine lege_, and (b) the legal nature of the Führer decrees. Only these two problems were to be dealt with by Dr. Jahrreiss and these were the two topics that he actually did deal with. But besides that, these proceedings entail a series of legal problems which are of a general nature and more or less affect each of the defendants. I only recall to you the interpretation of the conspiracy charges, the various questions dealing with international law, the questions of hostages and forced labor, and the legal question concerning distress at sea through naval warfare, and other general questions. There are a host of general questions, and above all the matter on which my colleague, Dr. Horn, was stopped, concerning the question: “What is an aggressive war?” There exist fundamental differences between a military war of aggression, a political war of aggression, and a juridical war of aggression, _et cetera_, about which Dr. Jahrreiss did not say a single word, nor was he supposed to do so. And please—I trust you do not mind my saying so, but that is the way I understood Dr. Horn—that is really the basis of his argument.

I do not propose to argue and to refer to a resolution; but I ask the Tribunal not to put us in a most delicate situation, namely, that we, in order to expedite the proceedings by having Professor Jahrreiss deal with a number of legal questions, be put in a position for which we cannot take responsibility, in that we are prevented from dealing with certain questions which in our opinion are of decisive legal importance to the defendants and about which Jahrreiss himself did not speak at all.

Only a word or two more. I believe the Tribunal will agree with me that one can have an entirely different opinion on the subject with which Professor Jahrreiss has dealt. I do not have it; nor shall I contradict Dr. Jahrreiss. But from a purely theoretical point of view that might be possible. Should it happen, just because in such an important matter a speaker has dealt with this question, although in a sense which possibly one of the counsel considers entirely improper and harmful to his case, that that counsel is forced to keep silent on such a matter? That cannot have been the intention of the Tribunal. Well, all I wanted to say was this: This speech by Jahrreiss served the purpose of expediting the Trial. Well and good. But we ask—I think I may say “we”; I believe that none of my colleagues is of a different opinion—we ask that it should not be interpreted too formally; and if one of us for some good reason says, “I have to discuss this, it is important for this or that reason,” to give us that possibility wherever Jahrreiss has dealt with the subject in a sense which we do not approve, and not to prevent the discussion of some general legal question if it should be raised by any of the counsel.

THE PRESIDENT: The Tribunal has been considering this matter and they are fully aware, of course, of the difficulties which may possibly arise if there were differences of opinion among the defendants’ counsel upon questions which had been dealt with by Dr. Jahrreiss. They did anticipate when they made the order which specifies that Dr. Jahrreiss should speak on legal issues arising out of the Indictment and Charter which are common to all the defendants—those are the words of the order—that he would deal with all the issues which were common to all the defendants, and in the absence of some difference of opinion, that the other defendants would be prepared to adopt his argument; but the Tribunal think that the questions of law may be to some extent quite various and difficult and that the only rule which is possible for them to lay down at this stage is that there must be no real repetition by defendants’ counsel. The Tribunal apprehends that defendants’ counsel will see the necessity for such a rule as that. It cannot be in the interests of an expeditious trial that argument should be repeated over and over again, and this Tribunal desires to point out to the defendants’ counsel that such repetition upon general matters only tends to distract the attention of the Tribunal from the real defenses of the clients whom they represent, and therefore the Tribunal hopes that the defendants’ counsel will try to co-operate in this matter and confine such legal arguments as they think it right to present to the Tribunal to arguments which had not been addressed to the Tribunal by counsel who preceded them—either Dr. Jahrreiss or any other counsel. That is all that I need to say, I think, at this stage; and as it is now 5 o’clock the Tribunal will adjourn.

[_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]

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[D] Oppenheim-Lauterpacht, International Law. 5th Edition. Page 154.

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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.