The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 154]

MONDAY, 8th JULY, 1946

THE MARSHAL: May it please the Tribunal, defendant Fritzsche
is reported absent.

DR. HORN (on behalf of the defendant von Ribbentrop):

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, anarchic situation, the United States Under
Secretary of State, Bryan, took the initiative, in a series
of separate treaties, in attempting to reach an agreement
for periods of respite, which were meant to delay the
outbreak of hostilities, and to allow passions to cool.

The Covenant of the League of Nations took up this point of
view, but went one decisive step farther by determining a
procedure by which the League organs should determine the
permissibility or non-permissibility of war. The decision
indicated whether war was permitted or not according to the
Covenant. The aim of this regulated procedure was to
discover 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 thus was the
aggressor in the military sense.

It was therefore apparent that the distinction between
aggressor and attacked was not sufficient to guarantee a
just settlement of international relations.

Although these Covenant Regulations and the proceedings
based thereon showed that the comparison of lawful -
unlawful, permitted - prohibited, aggressor - attacked, did
not apply, it was still being tried to brand as an aggressor
anyone who offended against international order. As the
essential decision miscarried owing to the difficulties just
mentioned, attempts were made to evolve out of the
incomprehensible legal concept 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 the
year 1923 by order of the League of Nations Assembly. The
Geneva protocol, which was meant to supplement inadequacies
of the Covenant 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, except 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, guided 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 trace back the
definition to the disarmament conference. This

                                                  [Page 155]

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 by 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 it. No other great Power accepted the
definition. In particular, Great Britain kept aloof,
notwithstanding the fact that the separate 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 reorganisation of
international relations.

Quite apart from this legal consideration, the utterances of
the British and the American Chief Prosecutors show that
also as far as facts are concerned the proposal is
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 has 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

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 judgement into the painful position of a rigid
definition. The Charter of Peace of San Francisco says, in
Chapter VII, Art. 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 aggressor nor an institution authorized to designate
the aggressor.

The League of Nations as an institution for the settlement
of disputes had completely failed. This was expressed
outwardly by the fact that three great Powers had left it.
How little the body of the League of Nations was noticed in
international life was shown by the attitude of the Soviet
Union in the Finnish question. It did not take into
consideration in any way the decision of the League of
Nations regarding this conflict but pursued its own
interests in its dealings with Finland.

If now, after these statements, I make a proposal to the
Tribunal as to what should be understood by the word
"attack" in Article 6a of the Charter, this qualification
cannot be linked up with a definition recognized in
International Law. Rather, there is nothing left to do but
start off from the hypothesis which the practices of States
and the traditions of diplomacy usually connect with it.

According to the conception existing 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

                                                  [Page 156]

system of collective security fail, the traditional legal
conception as to war was still valid.

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 created problems by
satisfying the Polish demands when this State was newly
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 were arbitration treaties, connected with the
Locarno system, between Germany and Poland and Germany and
Czechoslovakia. They did not contain any guarantees for
frontiers but only procedure for settling disputes. 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 ten-year non-
aggression 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 forming an opinion on
Herr von Ribbentrop's behaviour. He did not take any
initiative in this step, but found this agreement an
existing political and legal fact.

The experience of settling international disputes 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 expressed this
truth by saying:

  "The element of political interest is an indispensable
  requisite 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 attempted. Both the statute of the
Free City of Danzig, which was in contradiction with
ethnological, cultural and economic facts, and the isolation
of Eastern 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
English declaration of guarantee to Poland of 6th April,
1939, enlarged on 25th 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
within moderate limits.

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 how small a confidence it had in the practical
results of the moral condemnation of war through the Kellogg

Herr von Ribbentrop had, therefore, to draw the conclusion
from the behaviour of Great Britain that the attitude of the
Polish Government, from which Germany

                                                  [Page 157]

was entitled to expect some concession, was bound to become
rigidly inflexible. The development 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 take place within
the compass of the usual principles of politics and the
sustaining 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 accordance with this state of affairs Herr
von Ribbentrop took pains at least to localise the
threatening conflict, if it could not be avoided. He had
every reason to hope for success in this endeavour, 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 at the same time they 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 one together with the prosecution wants to apply a
legalised standard to these facts, one cannot do so without
taking into consideration the Soviet Union from the point of
view of participation.

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, i.e., an ultimatum with a
conditional declaration of war.

At the session of 19th 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 a state of war by means of
the ultimatum.

I believe I am in harmony with the prosecution when I
express the supposition that such a result would not meet
with its approval. The prosecution has presented its
evidence in such a way that it enters into the political-
historical background of the war. It has accordingly not
been satisfied with relying on the formal legal definition
or any single criterion thereof. It accordingly confirms my
conclusion, presented by me to the Tribunal, that the
definition proposed by the prosecution is no suitable basis
for the qualification of the indeterminable concept of

May I confirm the events at the outbreak of the war:

The Kellogg Pact and the concept of aggression - the
prosecution's pillars do not sustain this. The Kellogg Pact
had no legally conceived contents, either for States and
even 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 a separate action.

The interrogations of the witnesses Admiral 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 thirty-six hours in advance. His
contribution was solely the elaboration of notes prescribed
to him in content and form.

Concerning the actual facts, viz., the directly 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

                                                  [Page 158]

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, Admiral Raeder, had submitted to Hitler
a large part 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 and Dutch territory by these
countries 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 a co-operation of
the armies concerned, but also the assistance of certain
civilian authorities to carry out the supplying and the
advance of the Allies.

Of importance relative to these preparations is the fact
that they were made not       only for the case of defence,
but also for the offensive. For this reason Belgium and the
Netherlands also could not or would not defend themselves
against British bomber formations continuously flying over
them, whose near aim was the destruction of 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.

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