dtufail/nuremberg-trials-corpus huggingface dataset:
DR. HORN: 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.
DR. HORN: 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.
DR. HORN: 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 Crimea 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.
DR. HORN: 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.
DR. HORN: 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." These words of Justice Jackson in his opening speech for the Prosecution must be the guiding principle for all those who have been entrusted with the noble task of contributing to the search for truth in this Trial. That this truth cannot be absolute has already been stated by the Prosecutors Justice Jackson and M. Dubost. The purpose of the Indictment is not to determine the historical aspect, let alone the historical development of this short but so tragically important period, but instead to find out whether, and to what extent, the defendants sitting on this bench participated in the events which have affected the entire world by their consequences and' which have brought such indescribable misery upon it' and not least upon the German people. In this Trial the Prosecution once stated through one of their qualified spokesmen that it was their task to submit material that would incriminate the defendants and submit only such incriminating evidence. Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear their definitely one-sided standpoint in an Indictment which obliges the Defense to...
THE PRESIDENT: [Interposing.] I have already corrected this misstatement which you have made in your speech here, in dealing with one of the other speeches for the Defense. It is not the practice of the Prosecution to conceal any evidence which tends in favor of the accused.
DR. NELTE: I am afraid I cannot hear.
THE PRESIDENT: What I said was that I had already corrected the erroneous view, which is expressed in this paragraph in your speech, that it is the practice of the Prosecution to conceal anything they know which may tend in favor of the accused.
DR. NELTE: Mr. President, on this very spot Mr. Justice Jackson stated, "We cannot serve two masters," when he replied to the statement that according to German criminal law the Prosecution would also have to produce material in favor of the defendants. What I am stating here is not said in order to raise any type of accusation against the Prosecution. On the contrary, from the point of view for which they stood they have done everything that was possible. I merely wanted to clarify my point of view as defendant's counsel and say why...
THE PRESIDENT: The only reason I interrupted you was because of the sentence in your speech, "They made clear their definitely one-sided standpoint." In the second paragraph, the second sentence of that paragraph, you say, "Thus, in contrast to the principle of objective accusation which dominates the German criminal proceedings, they made clear"-that is, the Prosecution made clear-"their definitely one-sided standpoint in an Indictment..."
DR. NELTE: I said "one-sided"-that contrary to the governing principle of German criminal procedure, which is objective indictment, it has made clear its definitely one-sided standpoint of indictment which obliges the Defense to submit all circumstances and considerations which are indispensable for an objective administration of justice.
THE PRESIDENT: Go on. It may be a different translation.
DR. NELTE: For this purpose, it is first necessary to clarify certain concepts which are needed for the perception of responsibility and guilt. As far as concepts of international and constitutional law are concerned, they have been examined and presented by Professor Dr. Jahrreiss. With regard to the sphere of the soldier I should like to make some fundamental statements. There have been repeated references here to the concepts of soldierly conduct, obedience, loyalty, performance of duty, and patriotism. It is my belief that all men recognize these concepts to be good. But it is permissible to say that not all of these concepts are unequivocal. Thus are opposed: "best soldierly conduct" and "militarism," "natural obedience" and "contemptible blind subservience," "the categorical imperative of the performance of duty" and "the exaggerated sense of responsibility," "the deep love for one's country" and "chauvinism." We see that all these concepts can run through the Scale of good and evil. The origin and the essence of these concepts are everywhere the same, but the forms they take on through tradition and education and by the effects thereof vary greatly. However, if this is the case, who then should differentiate and decide whether the feeling is still in the realm of good or has already reached the sphere of evil? We are all of us living in a world whose century-old striving has aimed at the creation of order. Order is certainly a relative concept, too, but it is everywhere the establishment of the relationship of human beings to each other which guarantees the best possible means of living peacefully side by side in view of the intrinsic character of each country. This holds true both for the state and for the relationship between nations. Who should determine in this order what is right and what is wrong? The criterion for this might be, according to the traditional conception, only a constitutional, that is, a national one.
DR. NELTE: The drawing closer of the nations by world traffic and general civilization resulted in the various national concepts becoming adjusted to each other in spite of many differences. It must be admitted that this process of adjustment suffered a harmful set-back through certain National Socialist doctrines and their methods. Nevertheless, the principle remains inviolable that the criterion of right or wrong must be a national one, if order is not to be dissolved. The only thing worth striving for is the adjustment of nations and national fundamental concepts to each other as is now being attempted through world organization. Although the national criterion, that is, the national judgment of good and bad, right and wrong, had been well established in any case up to now, the concepts never have been deprived of their relativity, especially when national differences existed for other reasons. A convincing example of this is the opinion expressed about the resistance movement. All countries extol what is considered to be the highest form of patriotism: When someone risks his life for his country under the utmost danger. However, according to the Hague Rules of Land Warfare such resistance movement is forbidden. We have here a clear example of the contrast between ethical and legal evaluation. This proves that there are no absolute concepts of good and bad or right and wrong and that beyond all written laws there are unwritten laws which acquit the culprit when he obeys those higher laws. Those higher laws, however, also depend on subjective and national, that is, collectively subjective considerations. If anybody believes something to be good or right, such faith may come into existence out of an actually higher law, a truly higher idea; but it may also grow out of misled faith, out of a false idea. Who would or who could judge whether a faith or an idea was or was not right? History teaches that usually the successful idea is recognized as right, to a certain extent because it is a divine judgment.
DR. NELTE: I do not wish to decide whether that is always true. The question here, however, is whether the people whose guilt is to be judged acted in good faith, in accordance with such an idea and such a faith. If the ordeal has demonstrated this faith to be wrong, the question remains open whether the people could believe the idea to be good for comprehensible or explainable reasons. This question constitutes the problem which concerns not only Defendant Keitel but also the entire German nation. According to the speech of the French Prosecution not only the defendants in this Trial are the really guilty ones, but the entire German nation. The extent and importance of this thesis are tremendous. Should the Tribunal-if only on the grounds for its decision-come to the conclusion that the entire German nation is guilty, every German for incalculable time will bear the brand of Cain which finally must lead to the destruction of this people and its dissolution. It has been stated most authoritatively that there is no intention here of accusing the entire German people. Through unconditional surrender we are left entirely to the mercy of the victorious powers for better or worse. It was said, however, that the verdict of this Tribunal is to be just. Here in this Court it is not clemency or inclemency which are to be the guiding principle but justice. Justice does not mean mildness. A verdict, however, will only be just if it takes into consideration all the circumstances which underlie the actions and conduct of the defendants. There is no excuse for what has happened and for what forms the subject of this Indictment. I can only try to give an analysis. The misery, the misfortune that has fallen on the entire human race is so great that words do not suffice to express it. The German people, especially after having learned the catastrophe that has befallen the nations in the West and East and the Jews, is shaken by horror and pity for the victims.
DR. NELTE: The German nation knows what this misfortune means; for it is stricken as hardly any other nation is, not only in the military field but through the sinister consequences of air attacks, through the loss of millions of its youth in the field, through evacuations and escapes in ice and snow. We know, therefore, what it means to be in misery and to have to suffer. But while other nations are able to look upon all this misery and all this misfortune as a chapter of the past, and in the protection of constitutional order have the comforting hope of returning to an orderly existence and a happy future, there still rests upon this nation the gloom of despair. By affirming the guilt of the entire nation the verdict of this Tribunal would perpetuate this despair. The German people does not expect to be acquitted. It does not expect the cloak of Christian charity and oblivion to be spread over all that has happened. The German nation is ready to the last to take the consequences upon itself. It is willing to accept it as its fate and do everything to participate in removing the consequences. It hopes, however, that the soul and hearts of the rest of mankind will not be so hardened that the existing tension, in fact the existing hatred, between this nation and the rest of mankind will remain. Your task, Your Honors, is a terribly hard one. We not only speak different languages, each of us feels with the soul of his own country. Much of what has happened in this country will seem incomprehensible to you. The feelings of the German people in its different categories are not your feelings. One of the most essential points, especially in the case of the soldier, seems to me the way of judging what freedom is felt to be. In this country, too, the ideal of freedom was proclaimed. All of us know that the most extreme form of freedom is anarchy. No state desires anarchy, because it means surrender of its own existence.
DR. NELTE: If therefore, all countries agree that the absolute concept of freedom is never worth striving for and can never be sanctioned, there results, perforce, relativity of the concept of freedom. No concept has been so misused as the concept of freedom, and yet every political system proclaims freedom as the greatest of all blessings. By that, I by no means wish to say that the concept of freedom as proclaimed by National Socialism was the right solution. What I do wish to say, however, is that National Socialism also knew the concept of freedom and made it clear to the people through propaganda that its conception of freedom was the right one. National Socialism was aided in this by the fact that under the effects of the Treaty of Versailles Germany could indeed make no claim to be really free. The limitations of its sovereignty were so pronounced and so evident that it was easy for National Socialism to proclaim the fight for the freedom of the fatherland. As long as the fatherland is recognized in the world as the highest worldly possession, endeavors to keep this possession must be understood and will not be disapproved of even when it is an adversary who makes them. One may be of a different opinion as to the method which should be used for the realization of these endeavors and as to how freedom is to be attained. This, however, is not decided by the individual but by that person or those persons who hold the power in a state. Every human being wants something to hold on to in life; he must have it if he is not to sink into anarchy. Public order at the side of moral order is a firm support and the foundation of his existence, and this gives him a feeling of security in his life and professional activities. It is the deep longing of all civilized men for order which finds its highest fulfillment in the institutions of the state. On the other hand, the citizen must have confidence that the state, that is, its official agencies, will safeguard law and order.
DR. NELTE: In this respect it should not matter which party provides the guardians of its inviolable principles. That is just where the confidence of a nation as a whole expresses itself, namely, by leaving leadership to the prevailing majority. National Socialism undoubtedly aimed at and succeeded in rousing the belief in wide circles of the German people that its endeavors were supported by the majority of the people. It thereby procured for itself the alibi of legality. Far from all political considerations, as all the generals and admirals have testified here, the leaders of the Armed Forces believed in the legitimacy of Hitler's Government. It looked upon itself as the instrument of a legal government, as it did when the Kaiser, Ebert, and Von Hindenburg were Germany's representatives. Like all tendencies, all forms of expression of feeling, the feeling of patriotism and of a soldierly attitude bears in itself a tendency to become more radical and thereby to degenerate, if external circumstances create an actual basis for it. We have experienced the exaggeration of sound national ideas into national chauvinism, and we can observe retrospectively how the sound soldierly idea was exaggerated by influences foreign to its nature into the militaristic form of expression. All these developments are not desultory, which would make them easily recognizable and regulated. The driving forces are mostly not apparent to those whom they concern. They are like a poison which acts slowly and unnoticed and the effect of which results one day in a horrible eruption. It needs no special explanation that a component part of the soldierly and military person who is being geared to a possible war is ruggedness, and in its intensification it turns into brutality. One often finds on the part of famous-and not only German- war leaders the view that the brutal war is frequently the kindest if it leads to a quick ending. This, of course, is desired by every war leader. Once peaceful restraint is removed by war, all that remains is brutality.