The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/09/15

DR. HORN, Continued:

These intentions as well as the 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 theatre 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 counter-measures 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 others, the German foreign policy, and thereby Herr
von Ribbentrop, of having made plans for invasion in con
tradiction to the Fifth Hague Treaty concerning the rights
and duties of neutral powers and persons in case of war on

Here it was overlooked by the prosecution 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 neu
trals and belligerents as long as a state of neutrality
exists. The prosecution has made the mistake of applying its
erroneous interpretation of the Kellogg Pact, as I have
shown, to the pact which had been made twenty years earlier.
There remains no doubt that, at the time of the Second Hague
Peace Conference, the law did not recognize the outbreak of
war as an historical fact. 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
adbelluna, 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 who have ratified this treaty.

It is moreover, quite doubtful whether the Locarno Treaty
can be mentioned, as was done by the prosecution, in
connection with the drawing of Belgium into the war. With
Germany's withdrawal in 1935 the Locarno system had
collapsed, as will be shown by the defence counsel of
Freiherr von Neurath. All attempts to effect a new union
which was to take its place were guided by the fact that the
actual situation created by Germany must be taken as the
starting-point for a new

                                                  [Page 159]

agreement. This may be seen especially from the British and
French plans for the intended new agreement. The attempt to
create a new agreement was not successful. However, the
thorough and long-drawn-out 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 acrd 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 neutrality of this country. Evidently it
went on the assumption that Germany had been forced by the
Treaty of Versailles to give up rights given to her by the
London agreement of 1867.

When, on 25th 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 after, 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
Stojadinowitsch Government resulted in a new political
change in Yugoslavia under the leadership of Simovitsch,
which aimed at a 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 because of the mobilization of the Yugoslav
Army and their deployment on the German frontier became a
danger to 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 to his Italian ally.

The testimony of the witness Col.-General Jodl has shown
beyond doubt that Herr von Ribbentrop, after Hitler's
decision and after the Simovitsch Putsch, earnestly
endeavoured to be allowed to exhaust all diplomatic
possibilities prior to the beginning of military operations.
General Jodl has confirmed here that Herr von Ribbentrop's
endeavours 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

In view of the fact that ever since 4th March, 1941, strong
British forces were pushing to the North from southern
Greece, a further localisation of the Italo-Greek conflict
was no longer possible. This war had been started in the
autumn of 1940 against German wishes, but Hitler, with a
view to the general situation, certainly could not tolerate
the imminent defeat of his Italian ally.

When Herr von Ribbentrop on 23rd August signed at Moscow the
treaties between Germany and the Soviet Union, including the
secret agreement concerning the division of Poland and the
surrender to Russia of the Baltic states, the partly very
vehement ideological discussions between National Socialism
and Bolshevism was for the time being eliminated as an
element of danger from the international sphere. This system
of treaties, which was supplemented in the course of the
next month, had a favourable influence on the opinion
concerning Hitler's foreign policy held by large circles of
the German people who were alarmed at the ideological

Since the treaty of benevolent neutrality
(Ruckversicherungsvertrag) signed by Bismarck 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.

                                                  [Page 160]

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 because of secret information as to the
future attitude of the Soviet Union towards 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 Rumanian oil district. He furthermore saw
in the attitude of the U.S.S.R. the possibility of Bulgaria
being influenced. He could have considered as a confirmation
of his suspicions the conclusion of the Friendship Pact with
Yugoslavia, on 5th April, 1941, which occurred at a time
when Yugoslavia after a change of government threatened to
join the Western Powers.

In spite of these misgivings of Hitler, of which he
frequently informed Herr von Ribbentrop, the defendant tried
to avoid tension. The Tribunal has permitted me to submit an
affidavit which confirms that Herr von Ribbentrop still
tried in December, 1940, in an extensive discussion, to
induce Hitler to give him once more authority to include
Russia in the Tripartite Pact. This documentary evidence
confirms that Herr von Ribbentrop after his conference might
have been of the opinion that he would succeed in this step
through the consent of Hitler. Subsequently Hitler, however,
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, in Berchtesgaden, the then 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

As Col.-General Jodl has testified, he and all the
Commanders-in-Chief 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 by, among other things, maps which were found
covering the territory on that side of the German-Russian
line of interests. Can one really assume that such conduct
by the Soviet Union is in agreement with the Non-Aggression

About that time the danger of an expansion 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, while drawing up in advance fixed
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 the U.S.A.

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 U.S.A. should be
prevented by all means. Since the Quarantine Speech of
President Roosevelt, however, in 1937 strong contrasts could
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.

                                                  [Page 161]

If, in spite of that, the neutrality policy was further
prepared by legislative action 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 form of
the State would not change the neutral attitude of the
United States. Because of this expectation, not only
everything that could produce an unfavourable 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 were not in
accordance with strict neutrality.

The world public was informed of the agreement of 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 programme of
the new order of relationships between the nations. It had a
character obviously hostile to the Axis Powers and left them
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 communication from the then severely
struggling British Empire. This was a 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 result any day in the
outbreak of armed conflict. Even several months before the
11th 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 a chain of successive incidents,
perhaps not even the most important. It was caused by the
Japanese attack on Pearl Harbour, which, as the evidence has
shown, was neither instigated nor could have been 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 of 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 for a long time 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 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 that it was his duty to
have set in motion the mechanism of the aforesaid treaties
previous to 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 in a legal sense.

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. Even if a single minister were
to be made legally responsible for the non-functioning of a
series of treaties, the prosecution cannot but ask 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 in every system of criminal
law on earth, a defendant is punishable for an omission only
if he had actually been in a position,

                                                  [Page 162]

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 make 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 only 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 not a characteristic of the German Fuehrer State only
that the Foreign Minister cannot independently enter into
binding commitments towards foreign Powers. It is rather 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 Fuehrer'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 him.

These points of view apply for example to the following
treaties enumerated by the prosecution:

The Convention for Pacific 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

As to treaties of arbitration and conciliation with Poland,
Czechoslovakia and Belgium, concluded in connection with the
Locarno treaty, the additional 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 by 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, i.e., the
Western Pact.

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