Chapter XXVIII: Book 1: , Mr. President (16)

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.”