dtufail/nuremberg-trials-corpus huggingface dataset:
DR. HORN: 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 and anarchic situation, the United States, under Secretary of State Bryan, took the initiative in a series of separate treaties in order to reach an agreement for periods of respite, which were meant to delay the outbreak of hostilities and to allow the passions to cool down. The Covenant of the League of Nations took up this point of view but went one decisive step further by determining a procedure by which the League organs should determine the permissibility or nonpermissibility of war. The decision indicated whether war was permitted or not according to the Covenant. The aim of this regulated 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 decision. of the League of Nations organs behaved in a lawful way, even when it undertook preliminary hostilities and thereby was the aggressor in the military sense. It was therefore apparent that the distinction between aggressor and attacked was not adequate enough to guarantee a just settlement of international relations. Although these Covenant regulations and the procedure based thereon showed that the relation of lawful to unlawful, permitted to prohibited, aggressor to attacked, was unsatisfactory, efforts were still made to brand as an aggressor anyone who offended against international order.
DR. HORN: As the essential decision miscarried owing to the difficulties just mentioned, there was an attempt to make out of this legal concept, which did not allow a concise definition, 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 1923 by order of the League of Nations Assembly. The Geneva Protocol, which was meant to supplement the Covenant inadequacies 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, excepting 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, presided over 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 obtain the definition at the disarmament conference. This 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.
DR. HORN: The report of the 1933 commission did not become the object of a general treaty, as projected, but was merely agreed upon between 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 her. No other great power accepted the definition. In particular, Great Britain kept aloof, notwithstanding the fact that the individual 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 reorganization of international relations. Quite apart from this legal consideration, the utterances of the British and the American Chief Prosecutors show that, as far as facts are concerned, the proposal is equally 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 Liberian and mare clausum had led the Prosecution to the point that Sir Harley 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 cases. 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 judgment into the inconvenient form of a rigid definition.
DR. HORN: The Charter of Peace of San Francisco says, in Chapter VII, Article 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 term aggressor nor an institution authorized to designate the aggressor. The League of Nations as an instrument for the settlement of disputes had completely failed. This was expressed outwardly already by the fact that three great powers had left it. How little the mutilated League of Nations was taken notice of in international life, was shown by the attitude of the Soviet Union in the Finnish question. She did not take into consideration in any way the decision of the League of Nations with regard to this conflict but pursued her own interests in her dealings with Finland. If now, after these statements, I make a proposal to the Court as to what should be understood by the concept of attack in Article 6(a) of the Charter, this qualification cannot be related to a definition recognized in international law. There is nothing left but adherence to the interpretation which the practice of states and the traditions of diplomacy are wont to give. According to the conception prevailing 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.
DR. HORN: 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 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, by satisfying the Polish demands when this state was newly created, created problems which could not be solved by international cooperation 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 was arbitration treaties, in connection with the Locarno system, between Germany and Poland and Germany and Czechoslovakia. They did not contain any guarantees for frontiers, but only a procedure for settling litigations. 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.
DR. HORN: 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 10-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 the forming of an opinion on Herr Von Ribbentrop's behavior. He did not take any initiative in this step but found this agreement an existing political and legal fact. The experience made in the adjustment of interests of states 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 has expressed this truth * oppenheim-Lauterpacht, International Law. 5th Edition. Page 154. by saying, "The element of political interest is an indispensable foundation 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 sought. Both the statute of the Free City of Danzig, which was in contradiction with ethnological, cultural, and economic facts, and the isolation of East Prussia through the creation of a corridor, had brought about causes for conflict, which a number of statesmen feared as far back as Versailles.
DR. HORN: Taking into consideration such a state of affairs, the British Declaration of Guarantee to Poland of 21 March 1939, enlarged on 25 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 on a modest scale. 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 what little confidence she had in the practical results of the moral condemnation of war through the Kellogg Pact. Herr Von Ribbentrop had, therefore, to draw the conclusion from the behavior 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 developments 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 develop within the compass of the traditional principles of politics and the realization 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 considering this state of affairs Herr Von Ribbentrop took pains at least to localize the threatening conflict, if it could not be avoided. He had every reason to hope for success in this endeavor, 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 simultaneously 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.
DR. HORN: If the Prosecution want to apply a legal standard to these happenings, they cannot do so without taking into consideration the Soviet Union from the point of view of partnership. 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, that is, an ultimatum with a conditional declaration of war. At the session of 19 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 the state of war by means of the ultimatum. I believe I am in agreement with the Prosecution when I express the supposition that such a result would not meet with its approval. The Prosecution have presented their evidence in such a way as to enter into the political-historical background of the war. They have accordingly not been satisfied with relying on the formal legal definition or any single criterion thereof. They herewith confirm my conclusion, presented by me to the Court, that the definition proposed by the Prosecution is no suitable basis for the qualification of the indeterminable concept of aggression. May I confirm, according to events at the outbreak of the war, the following: The Kellogg Pact and the concept of aggression, the Prosecution's pillars, do not sustain the Indictment. The Kellogg Pact had no legally conceived substance for states, 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.
DR. HORN: 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 an individual action. The interrogations of the witnesses Grossadmiral 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 36 hours in advance. His contribution was solely the elaboration of notes prescribed it to him in content and form. Concerning the actual facts, namely the 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 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, Grossadmiral Raeder, had submitted to Hitler a large amount 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-Dutch territory by these countries themselves 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.
DR. HORN: These projects included not only co-operation of the armies concerned, but also the assignment of certain civilian authorities to assist in the supply and the 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 could not or would not defend themselves against British bomber formations continuously flying over them, with the immediate aim of destroying 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. These intentions as well as 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 theater 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 countermeasures 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 other things, German foreign policy and thereby Herr Von Ribbentrop, of having committed an invasion in contradiction to the Fifth Hague Treaty concerning the rights and duties of neutral powers and persons in case of war on land. The Prosecution overlook 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 neutrals and belligerents as long as a state of neutrality exists.
DR. HORN: The Prosecution have made the mistake of applying their, as I have shown, erroneous interpretation of the Kellogg Pact, to the pact which had been made 20 years earlier. There remains no doubt that at the time of the Second Hague Peace Conference the outbreak of war was a fact of historical value and not subject to any law. 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 ad bellum, but the jus in belle. This fact disposes of the Prosecution's references to the Fifth Hague Agreement in all cases of the expansion of war as concerns neutrals which have ratified this treaty. It is, moreover, quite doubtful whether the Locarno Treaty can be referred to, as was done by the Prosecution, in connection with drawing Belgium into the war. With Germany's resignation in 1935 the Locarno system had collapsed, as will be shown by the defense counsel of Baron von Neurath. All attempts to effect a new agreement which was to take its place were based on the fact that the actual situation created by Germany must be taken as the starting point for a new agreement. This is shown especially by the British and French plans for the intended new agreement. The attempt to create a new agreement was not successful. However, the thorough and wearisome 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.
DR. HORN: I shall on a later occasion discuss the existing arbitration treaties and 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 neutralization of this country. Evidently they went on the assumption that Germany had been forced by the Treaty of Versailles to give up the rights given to her by the London Agreement of 1867. When, on 24 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 later 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 Stojadinovic Government resulted in a new political change in Yugoslavia under the leadership of Simovic, which aimed at 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, which on account of the mobilization of the Yugoslav Army and their deployment on the German frontier became a danger for 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 for his Italian ally. The testimony of the witness Generaloberst Jodl has shown beyond a doubt that Herr Von Ribbentrop, after Hitler's decision and after the Simovic Putsch, earnestly endeavored to be allowed to exhaust all diplomatic possibilities prior to the beginning of military operations. Generaloberst Jodl has confirmed here that Herr Von Ribbentrop's endeavors 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 question.