The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. HORN, Continued:

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 crimen 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 and the common plan.

In recognition of this, the Control Council for Germany in
its Proclamation No. 3 has re-instituted in the system of
German criminal law two constitutional principles from which
the Hitler regime had deviated, namely: prohibition against
retroaction and analogy.

The political criminal concepts of the Charter set a
standard of new legal principles which must be considered as
the nucleus of a code of world law. Herr von Ribbentrop, at
the time 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 the valid International Law and the Charter which
you, Mr. President, in the session of 20th 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

                                                  [Page 172]

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 8th 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 Tribunal was proclaimed to the world as a
new law, the war between the Soviet Union and Japan broke
out. Its possibility had been predicted to the allies of the
Soviet Union six 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 defined by a general definition covering every act of
reality. The attacker can only be branded by a world
authority. This supreme organ of humanity must possess not
only an actual but also a moral authority. Universal trust
must be put in its impartial judgement. It must be an
Areopagus standing high above the conflicting parties,
before which these parties only appear as seekers of
justice, but may not have a place in it as judges.

We are 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 takes shape but is as yet not 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 progression and evolution.

THE PRESIDENT: We will call on Dr. Nelte, counsel for the
defendant Keitel.

DR. NELTE (counsel for the defendant Keitel):

  "We must summon such detachment and intellectual
  integrity to our task that this trial will commend itself
  to posterity as fulfilling humanity's aspirations to do

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 in the dock partook 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
its qualified spokesmen, that it was its 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, it made clear its definitely biased
standpoint in an Indictment which obliges the defence to -

THE PRESIDENT: I have already corrected this misstatement
which you have made in your speech here, in dealing with one
of the other speeches for the defence. It is not the
practice of the prosecution to conceal any evidence which
tends in favour 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 favour of the

                                                  [Page 173]

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
favour of the defendants. What I am stating here is not said
in order to raise any type of accusation against the
prosecution. To the contrary, from the point of view for
which it stood, it has 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, "It made clear its
definitely biased 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, it made clear" - that is, the prosecution,
  made clear - "its definitely biased 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 defence 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 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 proposed: "best soldierly
conduct" and "militarism", "natural obedience" and
"despicably blind obedience", "the categoric imperative of
the performance of duty" and "the exaggerated sense of
responsibility", "the deep love for the country" and

We see that all these concepts can run through the scale of
good and evil. The origin and the essence of these concepts
is everywhere the same, but the form they take on, through
tradition and education, and the effects they have vary

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 hitherto acquired knowledge, only a
constitutional, i.e., a national one. The drawing closer of
the nations by world traffic and general civilisation
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.

                                                  [Page 174]

If the national criterion, i.e., the national judgement of
good and bad, right and -wrong, had been well established in
any case up to now, the concepts would 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

All countries extol what is considered to be the highest
form of patriotism when someone risks his life for his
country. 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 above all
written laws there are unwritten laws which acquit the
culprit because he obeyed those higher laws. Those higher
laws, however, also depend on subjective and national -
i.e., collectively subjective - considerations. If men
believe something to be good or right, this faith may come
into existence out of an actually higher law, a truly higher
idea, but it may also grow out of a misled faith, out of a
false idea. Who wishes to or who is able to judge whether a
faith or an idea was or was not right? History has proved
that usually the successful idea is recognized as right, to
a certain extent because it is the judgement of God. 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 divine judgement has shown 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

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 at the mercy of
the victorious Powers. 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
principles, but justice. Justice does not mean leniency. 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 you an analysis. The
misery, the misfortune, that have fallen on the entire human
race is so great that words do not suffice to express it.
The German people, especially after learning the catastrophe
that has befallen the nations in the west and east including
the Jews, is shaken with horror and pity for the victims.
The German nation knows what this misfortune means; for it
is stricken as hardly any other nation, 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,  under 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 peoples do not expect to be acquitted. They do 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 souls and

                                                  [Page 175]

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 Honours, is a terribly hard one. We not only
speak different languages, but all of us feel with the soul
of our 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. 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 earthly possession, endeavours 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 endeavours 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, by 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 civilised men for order which finds its
highest fulfilment in the institutions of the State. On the
other hand, the citizen must have confidence that the State,
i.e., its official agencies, will safeguard law and order.
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 endeavours 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
Wehrmacht 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.

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