Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-173.02 Last-Modified: 2000/09/15 DR. HORN, Continued: These intentions as well as the most intensive preparations for offensive measures by the Western Powers had been ascertained beyond a doubt through sources of information. The grouping of the offensive forces showed that the Belgian- Dutch territory was included in the theatre of operations. As has already been described in connection with preceding cases of conflict, such information was continuously passed on to Herr von Ribbentrop by Hitler or his deputies. Here, too, Herr von Ribbentrop had to rely upon the accuracy of this information without having the right or the duty of checking it. In that way he, too, became convinced that in order to avert a deadly danger, namely, an Allied thrust into the Ruhr district, preventive counter-measures were necessary. On the basis of these considerations, Luxembourg could not be spared because of the extensiveness of modern military operations. In connection with this procedure the prosecution accuses, among others, the German foreign policy, and thereby Herr von Ribbentrop, of having made plans for invasion in con tradiction to the Fifth Hague Treaty concerning the rights and duties of neutral powers and persons in case of war on land. Here it was overlooked by the prosecution that this treaty does not refer to drawing a neutral into a war between other powers, but deals only with the rights and duties of neu trals and belligerents as long as a state of neutrality exists. The prosecution has made the mistake of applying its erroneous interpretation of the Kellogg Pact, as I have shown, to the pact which had been made twenty years earlier. There remains no doubt that, at the time of the Second Hague Peace Conference, the law did not recognize the outbreak of war as an historical fact. All treaties concerning laws of war, especially the Rules of Land Warfare and the Neutrality Pact for Land and Sea Warfare, rest upon the basis of an existing state of war, hence do not regulate the jus adbelluna, but the jus in bello. This fact disposes of the prosecution's references to the Fifth Hague Agreement in all cases of the expansion of war as concerns neutrals who have ratified this treaty. It is moreover, quite doubtful whether the Locarno Treaty can be mentioned, as was done by the prosecution, in connection with the drawing of Belgium into the war. With Germany's withdrawal in 1935 the Locarno system had collapsed, as will be shown by the defence counsel of Freiherr von Neurath. All attempts to effect a new union which was to take its place were guided by the fact that the actual situation created by Germany must be taken as the starting-point for a new [Page 159] agreement. This may be seen especially from the British and French plans for the intended new agreement. The attempt to create a new agreement was not successful. However, the thorough and long-drawn-out negotiations show very distinctly that none of the signatories considered the treaties of Locarno valid any longer. On the contrary, the Western Powers proceeded to consider among themselves the effects which their obligations of guaranteeing the Western borders still had after Germany's withdrawal. Regardless of how one may judge Germany's attitude of 1935, it remains to be stated that the pact system had become untenable thereby. Hence in 1940 German, commitments to the Western Pact of 1925 no longer existed. I shall on a later occasion discuss the existing arbitration treaties acrd treaties by agreement with Belgium, Poland and Czechoslovakia in connection with the Locarno Treaty, when discussing in general Germany's obligation for a peaceful settlement of disputes. As far as Luxembourg is concerned, not even the prosecution referred to the neutrality of this country. Evidently it went on the assumption that Germany had been forced by the Treaty of Versailles to give up rights given to her by the London agreement of 1867. When, on 25th March, 1941, the Yugoslav Government joined the Tripartite Pact, Herr von Ribbentrop could not, in the light of the available news, assume that a few days after, a military intervention by Germany in the Balkans would be necessary for political reasons. This situation was caused by the forcible change of government in Belgrade. The reaction to the joining of the Tripartite Pact by the Stojadinowitsch Government resulted in a new political change in Yugoslavia under the leadership of Simovitsch, which aimed at a close co-operation with the Western Powers, counter to the idea of the Tripartite Pact. In view of this uncertain situation in the interior of Yugoslavia which because of the mobilization of the Yugoslav Army and their deployment on the German frontier became a danger to the Reich, Hitler suddenly decided on military operations in the Balkans. He made this decision without the knowledge of Herr von Ribbentrop, with the idea of eliminating an imminent grave danger to his Italian ally. The testimony of the witness Col.-General Jodl has shown beyond doubt that Herr von Ribbentrop, after Hitler's decision and after the Simovitsch Putsch, earnestly endeavoured to be allowed to exhaust all diplomatic possibilities prior to the beginning of military operations. General Jodl has confirmed here that Herr von Ribbentrop's endeavours were rejected in so rude a manner that, taking into consideration Hitler's nature and the prevailing methods, any influence on him was practically out of the question. In view of the fact that ever since 4th March, 1941, strong British forces were pushing to the North from southern Greece, a further localisation of the Italo-Greek conflict was no longer possible. This war had been started in the autumn of 1940 against German wishes, but Hitler, with a view to the general situation, certainly could not tolerate the imminent defeat of his Italian ally. When Herr von Ribbentrop on 23rd August signed at Moscow the treaties between Germany and the Soviet Union, including the secret agreement concerning the division of Poland and the surrender to Russia of the Baltic states, the partly very vehement ideological discussions between National Socialism and Bolshevism was for the time being eliminated as an element of danger from the international sphere. This system of treaties, which was supplemented in the course of the next month, had a favourable influence on the opinion concerning Hitler's foreign policy held by large circles of the German people who were alarmed at the ideological contrasts. Since the treaty of benevolent neutrality (Ruckversicherungsvertrag) signed by Bismarck with Russia there was a general conviction in Germany that the maintenance of friendly relations with Russia must always be the goal of our foreign policy. [Page 160] For the traditional reasons just mentioned, Herr von Ribbentrop at that time considered these pacts a strong pillar of German foreign policy. Because of this opinion, in the winter of 1940 he invited the Foreign Commissar of the Soviet Union, Molotov, to visit Berlin to clear up problems which had arisen in the meantime. Unfortunately this second conference did not bring about the desired results. Hitler became very much alarmed at the results of this conference and because of secret information as to the future attitude of the Soviet Union towards Germany. Especially the attitude of Russia in the Baltic countries, as well as the Soviet march into Bessarabia and into Bukovina, were considered by Hitler as actions which were apt to endanger the German interests in the Baltic border States and in the Rumanian oil district. He furthermore saw in the attitude of the U.S.S.R. the possibility of Bulgaria being influenced. He could have considered as a confirmation of his suspicions the conclusion of the Friendship Pact with Yugoslavia, on 5th April, 1941, which occurred at a time when Yugoslavia after a change of government threatened to join the Western Powers. In spite of these misgivings of Hitler, of which he frequently informed Herr von Ribbentrop, the defendant tried to avoid tension. The Tribunal has permitted me to submit an affidavit which confirms that Herr von Ribbentrop still tried in December, 1940, in an extensive discussion, to induce Hitler to give him once more authority to include Russia in the Tripartite Pact. This documentary evidence confirms that Herr von Ribbentrop after his conference might have been of the opinion that he would succeed in this step through the consent of Hitler. Subsequently Hitler, however, returned again and again to his misgivings which were strengthened by the information of his own secret service about military operations on the other side of the eastern border. In the spring of 1941 Herr von Ribbentrop tried to bring to Hitler, in Berchtesgaden, the then Ambassador in Moscow and one of his subordinates. Neither of the diplomats was admitted. This ended the attempts possible for Herr von Ribbentrop within the scope of his position under the regime. Afterwards he also believed that he could no longer shut his eyes to the information which was brought to his knowledge. As Col.-General Jodl has testified, he and all the Commanders-in-Chief who took part in the beginning of the Russian campaign were convinced that they had pushed right into the midst of an offensive concentration of troops. This is proved by, among other things, maps which were found covering the territory on that side of the German-Russian line of interests. Can one really assume that such conduct by the Soviet Union is in agreement with the Non-Aggression Pact? About that time the danger of an expansion of the European war into a world war began to loom more and more threateningly. The United States entered the arena of war under a neutrality law, while drawing up in advance fixed rules in case of a future war. The mechanism of the neutrality law was set in motion by a proclamation of the President. It designated at the same time the danger zone within which American ships could not count upon the protection of their Government. This attitude at the beginning of the war confirms that the United States, the author of the Kellogg Pact, was not of the opinion that the traditional law of neutrality had in any way been modified by it. The United States, however, during the course of the spreading and the aggravation of the European war deviated more and more from the original line, without the German Reich furnishing any cause for conflict with the U.S.A. After the experiences of the First World War, German general opinion, and consequently that of Herr von Ribbentrop, was that an intervention on the part of the U.S.A. should be prevented by all means. Since the Quarantine Speech of President Roosevelt, however, in 1937 strong contrasts could be noticed more and more in the ideological-political train of thought of the world's public opinion. The situation was aggravated by the incidents of November, 1938, in Germany, which were the reason for the recall of the Berlin Ambassador to Washington to report, from whence he did not return to his post. [Page 161] If, in spite of that, the neutrality policy was further prepared by legislative action and became effective at the beginning of the war, the German Foreign Office, and thus Herr von Ribbentrop, could conclude that the existing differences of opinion as to the internal political form of the State would not change the neutral attitude of the United States. Because of this expectation, not only everything that could produce an unfavourable effect in the United States was avoided from the outbreak of the war, but we also quietly put up with quite a number of actions by the United States which were weakening Germany and were not in accordance with strict neutrality. The world public was informed of the agreement of the political aims of neutral America and belligerent Great Britain, when the leading men of the two States proclaimed in August, 1941, the Atlantic Charter as the programme of the new order of relationships between the nations. It had a character obviously hostile to the Axis Powers and left them no doubt that the United States espoused the cause of the other side. There followed the incidents on the high seas which, as the evidence has shown, can be credited to the account of the material support of Great Britain by the United States. By occupying Iceland and Greenland in the summer and autumn of 1941, the U.S.A. took over the protection of the most important line of communication from the then severely struggling British Empire. This was a military intervention even before the outbreak of the officially declared war. The so-called shooting order of the President brought about a dangerous situation which might result any day in the outbreak of armed conflict. Even several months before the 11th December, 1941, the United States took measures which were usually taken only during a war. The outbreak of the war was only a link in a chain of successive incidents, perhaps not even the most important. It was caused by the Japanese attack on Pearl Harbour, which, as the evidence has shown, was neither instigated nor could have been foreseen by Germany. According to the formal definition of aggression, the declaration of war is one of the criteria for the determination of the aggressor. As I have already pointed out in connection with the spreading of the war in Europe, this criterion alone without the factual background is no positive proof of an act of aggression. As a reaction to the numerous violations of neutrality by the United States, which really represented actions of war, the German Reich would have been justified for a long time in replying on her part with military actions. Whether this right was exercised after the preceding announcement - that is a declaration of war - or not is immaterial. So far, I have thrown some light upon aggressive acts, as enumerated by the prosecution, from the beginning of the Polish campaign to the entry into the war of the United States. It remains to take up a juridical position regarding the treaties concluded by Germany, which provided for a pacific settlement of political conflicts. Herr von Ribbentrop is charged not only with having been a party to aggressive acts, but also that it was his duty to have set in motion the mechanism of the aforesaid treaties previous to armed conflict. From the fact that the means for pacific settlement, as provided by the treaties, had not been used, the prosecution draws the conclusion that these omissions can be attributed, in a criminal sense, to Herr von Ribbentrop. This interpretation, however, would be erroneous in a legal sense. If we begin by sharing the prosecution's point of view, we shall see that even so the conclusions drawn by the prosecution cannot be upheld. Even if a single minister were to be made legally responsible for the non-functioning of a series of treaties, the prosecution cannot but ask whether the minister was actually in a position to obtain through his actions a result of any legal consequence. According to a principle embodied by nature in every system of criminal law on earth, a defendant is punishable for an omission only if he had actually been in a position, [Page 162] and legally liable, to act. I shall demonstrate at length, within the compass of my arguments concerning the conspiracy, how small in fact Herr von Ribbentrop's possibilities of influence were. The decisive point at issue is the fact that he was not legally in a position to make any declarations to foreign powers binding the German Reich other than those he was empowered to make by the head of the State. As head of the State, Hitler was the representative of the German Reich from the point of view of International Law. He only was in a position to make binding declarations to foreign Powers. Any other persons could legally bind the German State only if authorized by the head of the State, unless the treaty in question explicitly provided otherwise. It is not a characteristic of the German Fuehrer State only that the Foreign Minister cannot independently enter into binding commitments towards foreign Powers. It is rather a general principle of international relations that only the organ empowered to represent the State is able to act for it. The difference between German conditions and those of democratic constitutions merely lies in the fact that in the former the Foreign Minister usually has a larger influence on the intentions of the head of the State. The defendant, therefore, could not have obtained any legitimate results if he had tried, against the Fuehrer's wish, to have recourse to the possibilities of a settlement of conflict as provided by the numerous treaties of arbitration and conciliation. No one but Hitler could have put in motion such a procedure. The defendant could have been in a position to do so by Hitler's order only. He had not even the right to have his advice listened to if Hitler chose to ignore him. These points of view apply for example to the following treaties enumerated by the prosecution: The Convention for Pacific Settlement of International Disputes of 1899 and 1907, and the Treaty of Arbitration of 1929 between Germany and Luxembourg. It should be mentioned, moreover; that these agreements by no means provided an obligatory settlement of political disputes. As to treaties of arbitration and conciliation with Poland, Czechoslovakia and Belgium, concluded in connection with the Locarno treaty, the additional point applies - quite apart from the legal argument just mentioned - that they and the Western Pact form a political unit. Even externally, this is expressed by the fact that these agreements and the Locarno pact are all of them annexed to the general final protocol of the Powers participating in the Locarno conference. The question could, therefore, be asked whether the conciliation treaties share the fate of the principal treaty, i.e., the Western Pact.
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