Professor Jahrreiss has already thoroughly proven in his basic arguments concerning the legal and the actual signification of the Kellogg agreement that the Defense cannot attach to this war prevention program the meaning given to it by the Prosecution.
crime, especially at the 8th League of Nations assembly of 1927; however, at preliminary conversations - and the fact has been proven by documents already submitted to the Court - it was agreed upon that this declaration does not make war a crime in any legal sense, but it is rather the expression of a wish to prevent, for the future, international catastrophes on a world war I scale. Moreover, neither the U.S. nor the U.S.S.R. participated in the League of Nations resolution of 1927.
I and II, remained mere projects -- and the British prosecutor had to acknowledge this in the course of his significant argumentation -- because practical politics could not follow these moral postulates. the problem of definition lies in the difficulty of condensing a political event, depending upon a host of components, into a juridical concept susceptible of covering any of the many-shaped cases occurring in fact. The failure to formulate a definition which could be used in international law has led to the fact that, instead of working out universal characteristics to be used in every single case, the designation of the aggressor has been left to the decision of an organ superior to the contending parties. In such a way, the question of defining the aggressor became the question: "quis judicavit", i.e. "who designates the aggressor". From this decision follows a new difficulty: "what is to be done against the aggressor?" aggression and the sanctions against the aggressor, 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 -
THE PRESIDENT (Interposing): Isn't this really arguing the same questions that Dr. Jahrreiss has already argued?
DR. HORN: Mr. President, I have tried not to mention those matters set forth by Professor Jahrreiss. Professor Jahrreiss, in his explanation, concentrated on the Kellogg Pact. I shall try to confine myself to the legal concept 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 in the view 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; and, as the Professor showed in his expert opinion, every other counsel has the right to take an attitude quite different from the one he designated.
consequences. I am defining my attitude toward a ggressive war, and, as the President emphasized the other day -
THE PRESIDENT (Interposing): Just a moment. What is involved, then, is that the Tribunal is going to hear twenty arguments upon the general questions of law; and surely it can scarcely have been thought by defendants' counsel that the Tribunal proposed to hear twenty 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 (Interposing): Just a moment. The Tribunal will adjourn.
(A recess was taken.)
DR. DIX: My Lord, may I humbly ask the High Tribunal to give me permission to make just a rather short explanation to the matter which has just taken up the attention of the Tribunal? I should like to remind you of the fact that the initiative to take up certain legal themes and have them dealt with by Professor Jahrreiss, that is a matter which was suggested by the defense and at that time the defense in that way also wanted to follow the High Tribunal's suggestion of brevity and to save time. I should like to ask the High Tribunal to protect us from the fact that this suggestion which we at that time made to the High Tribunal and which was granted by the High Tribunal, not to be used against us, in that the resolution which was taken be interpreted rather broadly. 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 one thing. Professor Jahrreiss did speak and he wanted to speak and he wanted to confine himself to two topics whic, of course, were of a general nature. He spoke about, first, the individual punishable qualities of the aggressive war and the legal position of the Fuehrer decree. These two problems were to be dealt with by Dr. Jahrreiss and these were the two topics that he actually did deal with. problems of a legal nature, which are of a general nature and in a larger or a smaller scale concern each of the defendants, such as, I should like to remind you of the various questions of international law and the question of hostages and forced labor, and the question dealing with the naval fighting and other general questions, and, above all, the matter which my colleague, Dr. Horn,breached and on which problem he was stopped. There is the question: "What is an aggressive war?" There are large basic differences between a military aggression, a juridical aggression, or military aggression. Those are matters which Dr. Jahrreiss did not concern himself with at all and he was not to concern himself with these problems and Dr. Horn understood that this was the primary promise of his speech. I do not wish to arrive at any conclusions but I should like to ask the High Tribunal that the High Tribunal kindly do not put us into the rather questionable situation that we delegate a certain collection of questions and now, through that fact, be put into a situation which he really cannot be held responsible for, that question which we really feel we need to discuss, that we should be prevented from speaking about them -- matters about which Dr. Jahrreiss couldn't concern himself with.
And one more thought; it would be quite possible, and I believe that you gentlemen on the bench will agree with me; this is a purely theoretical matter -- would be quite possible that one would represent a view represented by Jahrreiss. Of course, I do not contradict Dr. Jahrreiss but I am speaking theoretically only. If the first speaker breached and dealt with a certain topic, would it therefore be impossible for any of the following defense counsel,be impossible for him, not for us to deal with this matter? Would he be forced to be silent on such a matter? It seems to me that that couldn't be the purpose of the High Tribunal's ruling; for purposes of brevity, that was the chief aim of Dr. Jahrreiss. I believe we are all of the same opinion. We ask that it should not be interpreted too formally and if someone in good faith says he had to deal with this matter for good reasons,that he be given the possibility to speak further on these subjects even though Dr. Jahrreiss has dealt with the matter; and I ask that he be permitted to speak, if he has that attitude, than try to stop him from speaking when it is a matter for legal consideration.
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 that 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 thinks that the questions of law may be to some extent very 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 cooperate 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 at this stage; and as it is now five o'clock the Tribunal will adjourn.
(The Tribunal adjourned until 8 July 1946, at 1000 hours) Official Transcript of the International
THE MARSHALL : May it please the Tribunal, Defendant Fritsche is reported absent.
DR. HORN : Dr. Horn, on behalf of the former Foreign Minister von Ribbentrop. presentation beginning with Page 35. The English text page number corresponds with the German text page number. aggression and the sanctions against the aggressor, 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, to agree upon delays of respite, which were meant to postpone an outbreak of hostilities, and to allow the passions to cool down. went one decisive step further by determining a procedure for establishing by League organs the permissibility or non-permissibility of war. The decision purported whether the war was permitted or not by the statute. The aim of this settled 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 resolutions of the League of Nations organs behaved in a lawful way, even when undertaking preliminary hostilities, amounting to an aggression in the military sense. attacked was not sufficient to secure an equitable settlement of international relations. pointed out that the antinomies lawful - unlawful, permitted - prohibited, aggressor - attacked did not apply, it was still being tried to brand the transgressor of international order through the concept of the aggressor.
As the material decision failed owing to the difficulties just mentioned, it was tried to make out of the indeterminable juridical concept a political decision of the League of Nations organs 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 the statute inadequacies concerning the question of conflict settlement, also transferred to the League of Nations council the decision of determining who had violated the agreement and was, therefore the aggressor, the British chief prosecutor have remained drafts, excepting the Kellogg Pact. 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 security questions, quided by the Greek Politis, of the general disarmament conference committee. object, in the same year, of a series of separate treaties, at the London conference. The only great power participating was the Soviet Union, which had taken the initiative of the definition at the disarmament conference. This definition has also been adopted by the United States chief prosecutor, who has based thereon the indictment for a crime against peace, before this Tribunal. This definition is no more than a proposal of the prosecution within the limits of the statute, which does not circumscribe the concept of a war aggression. It must be emphasized that Mr. Justice Jackson cannot invoke in this matter any universally acknowledged principle of international law. treaty, as projected, but was merely agreed upon between a number of individual parties in agreements binding only for the 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 an international law principle of such far-reaching importance for the reorganization of international relations.
American chief prosecutionshow that also as far as facts are concerned the proposition does not give much satisfaction. In the important question of point 4 of the definition, the British differs from the American. The old conflict of interests b etween mare liberum and mare clausum has led the prosecution to Sir Hartley Shawcross not mentioning the naval blockade of the coasts and ports of a state as aggressive action. establishing the aggressor, but one does not got around the fact that a formal juridical definition shows the impossibility of doing justice to all actual political cases. the world in the Charter of the United Nations one returned, evidently having recognized this truth, to the idea of a decision by an international institution, without wanting to squeeze its judgment in to the bed of Procrustes 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 security."
aggressor nor an institution authorized to designate the aggressor. had completely failed. This was expressed outwardly already by the part that three great powers had left it. How little the League of Nations-Torso was taken notice of 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 but followed in its dealings with Finland its own interests.
should be understood by the word "attack" in Article 6a of the Charter, this qualification cannot link up with a definition recognized in international law. We therefore must start off from the suppositions which the practices of states and the traditions of diplomacy are went to connect with it. of war, in whatever way it happened, was not valuated juridically.
to abolish this fact which was the result of a development of centuries. This is to be deeply regretted but one cannot go past reality.
That this opinion is in accordance with the conception of international law of the main participating powers that had signed the statute when war broke out 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. acts, measured by the tradition of diplomatic technique, would be valuated as crimes punishable by international law? Herr von Ribbentrop, the then existing frontier line in the East was considered not to be tenable in the long run and was, therefore, considered to be needing some adjustment. the Polish demands when this state was newly created, problems which could not be solved by international cooperation in the time during the two world wars. pacts. In the Locarno treaties a guarantee for the Eastern frontier created by Versailles could not be reached because of the opposing interests of the participating powers, whereas for the Western frontiers it was arrived at. All that was achieved after endless efforts were arbitration treaties, connected to the Locarno system, between Germany and Poland and Germany and Czechoslovakia. They did not contain any guarantees for frontiers but only methods for settling litigations. I shall deal with them when I come to the various violations of treaties which Herr von Ribbentrop is blamed for. security by leaving the Disarmament Conference and the League of Nations, he went over to the system of bilateral treaties. At the preparatory negotiations to the agreements between Poland and Germany of 1934 it was clearly stated, that between the two states a solution of the problems should be found in the sprit of the treaty. We will not suppress here that for this settlement but peaceful means were considered and a 10-year non-aggression pact was concluded. Whether to change the untenable situation in the East by means of evolution is of no Hitler believed honestly in the possibility of solving this problem or hoped importance for the forming of an opinion on Herr von Ribbentrop's behaviour.
He did not take any initiative in this step, but found this agreement as an existing political and juridical fact. 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. saying: "The element of political interest is an indispensable lining of written treaties." 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 Fre City of Danzig, which was in contradiction with ethnological, cultural and economical 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.
declaration to Poland of March 21, 1939, enlarged on August 25, 1939 into the mutual aid agreement, was susceptible, in case of the appearance of a possibility of conflict with this country, of making the Poles averse, from the first, to a sensible revision, even within a moderate frame. conclusions, taking a sensible political view, out of 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 Kellog-Pact.
Mr. von Ribbentrop, had, therefore, to draw the conclusion out of the behaviour 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 development during the following months proved this provision to be right. particular that the coming danger would take place within the compass of the usual principles of politics and the carrying through of the interests of one's own country. The Soviet Union, too, had on her side, left the ground of collective security system. She looked at the approaching conflict from the viewpoint of Russian interests exclusively. As things were, Mr. v Ribbentrop took pains to at least localize the threatening conflict, if it could not be avoided. He could rightly hope to succeed in this endeavour, as both powers primarily interested in Eastern Europe, the Soviet Union and Germany, concluded the non-aggression and friendship agreement previous to the outbreak of armed hostilities. 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. thereby the local Eastern European conflict became a world conflagration.
do so without taking into consideration the Soviet Union from the point of view of participation.
Britain and France, into a European one, necessarily followed by the universal conflict. The entry in the war of the powers mentioned took place according to the forms provided by the 3rd Hague Concention concerning opening of hostilities, i.e. an ultimatum with conditional declaration of war.
At the session of March 19th, 1946, Mr. Justice Jackson, interpreting the indictment, has stressed the point that the extension of the war brought about by the Western powers, did not constitude a punishable aggression on the side of Germany. This interpretation is in keeping with his general argumentation concerning the notion of aggression. Should he want to carry this through quite consistently, he would logically have to declare Great Britain and France aggressors of Germany for having brought about the state of war by means of the ultimatum.
I believe I am sharing the prosecution's viewpoint when I give voice to the supposition that such a result would not meet with the prosecution's approval. The prosecution has brought forward its evidence in such a way as to enter into the politically historical background of the war. It has accordingly not been satisfied with relying on the formal juridical definition or any single criteria thereof. the definition proposed by the prosecution is notsuitable base for the qualification of the indeterminable concept of aggression.
May I be allowed to summarize the events at the outbreak of the war:
Kellog Pact and aggression concept -- the prosecution's pillars do not support it. The Kellog Pact had no juridically expressible contents, neither for the countries not, and even much less, for an individual. The attempt to put life into it afterwards,by means of a formal concept of aggression, was frustrated by political reality.
Mr. von Ribbentrop's share in the extention of the conflict to Scandinavia was so small that it hardly can be put to his charge as a separate action. Marshal Keitel, have shown beyond doubt that, as a matter of fact, Mr. 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 contents and form.
Concerning the actual side, viz. the imminent violation of Scandinavian neutrality by the Western powers, he had to be content with the informations communicated to him. The evidence has shown, and I shall expose later on in juridical arguments, that he was, as Minister for Foreign Affairs, not compete to check those informations, and that he did not possess any actual means to do so. Presuming that these informations were true, he could justly assume that the German Reich behaved, in the intended action, quite according to international law. I leave more detailed argumentation concerning this point of law to my colleague, Dr. Siemers, well conversant with this point, whose client, Great Admiral Raeder, had submitted to Hitler a large part of enemy information and the proposal for a German occupation of Scandinavia. that an unrestrained maintenance of the neutrality of the Belgian-Dutch territory by these countries could not be guaranteed. Previous to the war, there already existed between the general staffs of the Western powers and those of both neutral countries agreements and currentexchanges of experiences concerning behaviour and occupation in case of a conflict with Germany. Detailed deployment plans and fortification systems built under supervision of detached officers of the Western powers were meant to prepare the reception of allied forces. These projects comprehended not only a cooperation of the armies concerned, but also the assistance of certain civilian authorities, for the purpose of carrying out supplying and 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 also could not or would not prevent it that British bomber formations continued to fly over them, whose near aim was the destruction of the Ruhr-district, the heel of Achilles of the German war industry. This area was also the main goal of the Allies in case of an offensive on land. sive measures by the Western Powers had been ascertained beyond a doubt by sources of information. The grouping of the offensive forces showed that the Belgian-Netherland territory was included in the theater of operations. As has already been described in connection with preceding cases of conflict such information was currently passed on to Herr von Ribbentrop by Hitler or his deputies. Here too Herr von Ribbentrop had to rely upon the accuracy of these informations without having the right and the duty of checking on them. In that way he, too, became convinced that in order to avert a deathly danger, namely an Allied thrust into the Ruhr-district, preventive counter-measures were necessary. On the basis of these considerations Luxembourg simply could not be spared because of the extensiveness of modern military operations. others the German Foreign Policy and thereby Herr von Ribbentrop, to have made plans to march in, in contradiction to the 5th Hague Convention concerning the rights and duties of neutral powers, and persons in case of war on land. vention does not have reference 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 the neutrality status exists. tation of the Kellog-Pact, as I have shown, to the pact which had been made 20 years earlier. There remains no doubt that, at the time of the 2nd Hague peace conference, the law did not evaluate the outbreak of war as a legal but only as a historical fact.
All conventions concerning laws of war, especially the Rules of Land Warfare and the Neutrality Pact for Land and Sea-Warfare, are built 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 5th Convention of the Hague in all cases of the spreading of the war to the neutral which have ratified this convention. mentioned, as it was done by the Prosecution, in connection with drawing Belgium into the war. With Germany's renunciation in 1935 the Locarno system had collapsed, as will be shown by the defense-counsel of Mr. 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 agreement. This may be see 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 held after Germany's withdrawal.
Regardless of howone may jidge Germany's attitude of 1935, it remain to be stated that with it the pact system had lost its validity. Hence in 1940 German commitments to the Western Pact of 1925 did no longer exist with Belgium, Poland and Czecheslovakia in connection with the LocarnoTreaty, when discussing in general Germany's obligation for a peaceful settlement of disputes. to the neutralisation of this country. Evidently it went on the assumption that Germany had been forced by the Treaty of Versailles to give up its rights given to her by the London agreement of 1867. te Pact, Herr von Ribbentrop could not in the light of the available news assume that a few days after the joining, a military intervention by Germany on 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 government Stojadinowitsch resulted in a new political change in Yugoslavia under the leadership of Simovitch, which aimed at a close cooperation with the Western Powers counter to the idea of the Tripartite Pact.
In view of this uncertain situation in the interior of Yugoslavia wh* because of the mobilisation of the Yugoslav army and their deployment on the German frontier became a danger for the Reich, Hitler suddenly decided on military operations on the Balkans. He made this decision without the knowledge of Herr von Ribbentrop, with the idea in mind to eliminate an imminent grave danger for the Italian ally.
The testimony of the witness Col. General Jodl has shown beyond a dou* that Herr von Ribbentrop after Hitler's decision and after the Simovitch Putsch, seriously endeavoured to be allowed to exhaust all diplomatic possibilities prior to the beginning of military operations. Colonel-General Jodl has confirmed there 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 Hitler was practically out of the question. to the North from southern Greece, made a further localization of the ItalyGreek conflict impossible, This war begun in the autumn of 1940 against German wishes, but Hitler could, with a view to the general situation, certainly not tolerate the imminent defeat of his Italian ally. ties between Germany and the Soviet Union, inducing a secret agreement concerning the Division of Poland and the surrender to Russia of the Baltic states, the ideological discussion in part, of an extraordinarily vehement nature, between National Socialism and Bolshevism, were, for the time being eliminated from the international sphere, where they formed elements of possible danger. This system of treaties, to be supplemented in the course of next month, had a favourable influence on the opinion concerning Hitler's foreign policy of large circles of the German people, which were alarmed by the ideological contrasts.
a general conviction in Germany that the maintenance of friendly relations with Russia must always be the goal of our foreign policy. dered these pacts a strong pillar of the German Foreign policy. Because of this opinion he invited in Winter 1940 the Foreign Commissar of the Soviet Union, Molotov, to Berlin to clear up problems which had arisen in the meantime. Unfortunately this conference did not bring the desired results. formation, as about 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 the Bukowina were considered by Hitler as actions which were apt to endanger the German interests in the Baltic provinces and in the Rumanian iol district. He furthermore saw in the attitude of the USSR the possibility of taking influence on Bulgaria. He could consider the Friendship Pact with Yugoslavia on 5 April 1941 as a confirmation of his suspicion, as it occurred at a time when Yugoslavia after a change of government, threatened to turn to the Western Powers. med Herr von Ribbentrop, the defendant tried to avoid the tensions. 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 for the inclusion of Rus* in the Tripartite Pact. This documentary evidence confirms that Herr von Ribbentrop after his conference, could 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 str* thened by the news of hiw own secret service about military operations on the other side of the Eastern border. In spring 1941 Herr von Ribbentrop tried to bring to Hitler in Berchtesgaden, the then Ambassador in Moscow and one of his subordinates. Both diplomats were not admitted. This ended the regime. He afterwards also believed that he could no longer shut his eyes to the information which was brought to his knowledge.
As Col. Gen. Jodl had 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 proven by, among other things, maps which were found and which covered the territory on this side of the German Russian line of interests. Can one really believe that this conduct of the Soviet Union is in agreement 8 July M LJG 4-1 with the Non Aggression P act?