Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-172.09 Last-Modified: 2000/09/15 DR. HORN, Continued: Herr von Ribbentrop has been blamed for having practically defeated the purpose of the last decisive discussion with the British Ambassador Henderson, by having read the German proposals to Poland so fast, contrary to all diplomatic custom and international courtesy, that Sir Nevile Henderson could not understand them, and, hence, could not pass them on. The interpreter, Ambassador Schmidt, was present at this decisive discussion. He has testified here, under oath, that this statement is not true. One may consider Hitler's order, to acquaint Sir Nevile Henderson only with the substance of the memorandum, as unwise. The fact is that not only did Herr von Ribbentrop read the entire contents at a normal speed to the British Ambassador, but he also, by having the interpreter present, made it possible for Sir Nevile Henderson to become familiar with the entire contents and, moreover, to have explanations given on it. Besides, upon the initiative of Reichsmarschall Goering it was transmitted to the British Embassy during the same night by dictation to Counsellor of the Embassy Forbes. Thus the British Government should have been able to render the good services offered for opening negotiations based on positive proposals. By reason of these facts here deposed, one must rightly doubt the truth of the allegation that the defendant did everything to prevent peace with Poland. At the beginning of my defence speech, I stressed that legal considerations concerning aggressive war are not possible without knowledge of the circumstances leading to an armed conflict. Before I proceed to the legal aspects of the conflict with Poland, may I make some additional statements concerning the causes that led to the war. [Page 150] The period between the two world wars is characterised by the mutual reactions of those Powers which were satisfied and those which were dissatisfied. It seems to be an inevitable law that after great war shocks, the victorious States tend as far as possible towards the re-establishment of the pre-war status and pre-war mentality, whereas the vanquished are forced to find a way out of the consequences of their defeat by new means and methods. Thus the Holy Alliance came about after the Napoleonic wars, which under Metternich's leadership, using legitimacy as an authorisation, tried to ignore the effects of the French Revolution. What the Holy Alliance did not achieve, the League of Nations did not achieve either. Created in an atmosphere of fervent belief in human progress, it was quickly transformed into a tool of the satisfied States. Every effort to "strengthen" the League of Nations meant a new bulwark to the maintenance of the status quo. Under the elegant diction of juridical formalities, power-politics continued. Besides, the obsession by the idea of securite soon deprived the newly created body of any breath of freshness and life. In this fashion, naturally, a solution of the problems created by the end of the First World War could never be found. In international relations, a coalition of interests of the conservative Powers on the one hand content with the status quo, and on the other hand of the revolutionary Powers trying to do away with it, became increasingly apparent. It could only be a question of time when under those circumstances the political initiative would pass to the dissatisfied Powers. The formation of this front depended exclusively on the force of the revolutionary spirit which was crystallising in opposition to the political self-complacency of the conservative elements clinging to the past and status quo. In this fertile soil grew the doctrines of National Socialism, Fascism and Bolshevism, obscure, elastic and incoherent in many parts of the programmes put forward. Their power of propaganda was based not so much on their programmes, but on the fact that they admittedly offered something new and that they did not exhort their followers to worship a political ideal that had failed in the past. The economic crisis of the post-war period, the controversies about reparations and the occupation of the Ruhr, the inability of democratic governments to attain anything for their distressed peoples from the other democracies, unavoidably led to a test of the doctrines which had not yet been tried out. The practical results of this revolution, as we experienced them in Germany after 1933, could, apart from the social programme, only consist in abolishing the peace settlement of 1919, which constitutes a classical example of the failure to understand the revolutionary character of a world crisis. For this revolution these tasks were not based on legal questions, but on doctrines, exactly as it had long become a doctrine of the satisfied States to maintain the status quo at all costs, even at the price of a new world war. Only he who does not shut his eyes before these facts can judge the political crisis of the past decade. Every revolution has but two possibilities; either it meets so little resistance that eventually conservative tendencies develop and an amalgamation with the old order is formed, or the antagonistic forces are so strong that finally the revolution breaks into pieces through overstraining its own means and methods. National Socialism went the second way, which began without bloodshed, and to some extent with a remarkable tendency towards tradition. But it too could not escape the inherent laws of history. The aims were too high for one generation, the revolutionary essence too strong. The initial successes were startling, but they also resulted in lack of criticism as to the methods and aims. The process of uniting all larger German groups in the Central European space would most probably have succeeded if, at the end - I am referring to the setting up of the Protectorate of Bohemia and Moravia, and the pursuit of the Danzig Corridor question - the revolutionary tempo and methods had not been excessive as a result [Page 151] of previous successes. No person capable of sober judgement will dispute the need for a solution of the Danzig Corridor question, delicate as it was. The prosecution may assert that, in reality, Danzig was but a pretext, but seen from the state of affairs in 1939, this can hardly be proved. But it is certain that the opposite side was concerned about other things than the maintenance of the status quo in the East. National Socialism, and with it in its newly gained strength, the German Reich, had become such a danger in the eyes of other States that, after Prague, it was determined to make any further German advance a "test case", wherever it should happen. I have already said that the revolutionary process in Central Europe was chiefly due to economic causes brought about by "Versailles" where a peace treaty was imposed on Germany, the economic provisions of which, as was well known, could not be carried out by the vanquished. THE PRESIDENT: Dr. Horn, the Tribunal thinks that sentence, at any rate, is objectionable on the ground that I have already stated. DR. HORN: Mr. President, I did not mean to emphasize how the Versailles Treaty came about; I only wanted to stress certain necessary consequences which are generally known facts. But I have completed this part and have nothing further to say with reference to it. THE PRESIDENT: Go on, Dr. Horn. DR. HORN: Much has been said here about the slogan "Lebensraum". I am convinced that this word would never have become a political programme if, after the First World War, Germany had been given the possibility of linking up with the world markets, instead of being strangled economically. By systematically cutting her off from all raw material sources of the world-all this for reasons of securite - the tendency towards autarchy, the inevitable way out from the barring from the world markets, was fostered; and, at the same time, with the progressively deteriorating economic situation, the cry for Lebensraum fell on receptive ears. Thus, Stalin is right when he says: "It would be erroneous to believe that the Second World War came about accidentally or as result of mistakes of one or the other of the statesmen, even though such mistakes were made without doubt. Actually, the war came about as an inevitable result of the development of international economic and political forces based on modern monopolistic capitalism." Professor Jahrreiss has already fully explained in his basic arguments concerning the legal and the actual significance of the Kellogg Pact that the meaning given to this project for the prevention of war by the prosecution cannot be recognized by the defence. Even though war had been previously declared an international crime, especially at the eighth League of Nations assembly of 1927, it became quite clear in preliminary conversations-as has been proved by documents already submitted to the Tribunal - that this declaration was not meant to make war a crime in the legal sense, but that it was an expression of the wish to prevent future international catastrophes on a World War I scale. Moreover, neither the U.S.A. nor the U.S.S.R. participated in the League of Nations resolution of 1927. All further plans for outlawing war, during the period between World Wars I and II, remained mere drafts - as the British Prosecutor had to acknowledge in his significant argumentation - because practical politics could not follow these moral postulates. All these experiments - and they are by no means few - clearly show that the problem of finding a definition lies in the difficulty of condensing a political process, dependent upon a host of components, into a legal concept which will cover all the varying cases occurring in practice. The failure to formulate a definition which could be used in International Law has led to the fact that, instead of working [Page 152] out general standards and measures, applicable in each case, the designation of the aggressor was left to the decision of an organ standing above all 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?" Previous to the attempt of settling in a general way the concept of 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): Is this not really arguing the same questions that Dr. Jahrreiss has already argued? DR. HORN: Mr. President, I have tried to omit the matters set forth by Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly to the Kellogg Pact. I am only dealing with the questions pertaining to the legal aspect 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 on the understanding 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, as the Professor as an expert had stated, that every counsel is entitled to take a different attitude toward the problem argued by him. Professor Jahrreiss concentrated chiefly on the Kellogg Pact and its consequences. I personally am turning my attention to aggressive war, and, as the President emphasized - 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 ask the Tribunal to accept a short explanation regarding the matter which has just taken up the attention of the Tribunal and which for most of counsel is of general and fundamental importance. I should like to remind you of the fact that the suggestion and initiative to take up certain legal topics and have them dealt with by Professor Jahrreiss came from the defence and that this suggestion was made for the sole reason of complying with the Tribunal's wish to expedite the proceedings. I must adjure the Tribunal to protect us from letting this suggestion, made to and granted by the Tribunal at the time, become our own pitfall in that a resolution which has been made may be interpreted too strictly. 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 just one thing. Professor Jahrreiss did speak and was to speak on but two topics which, it is true, were of a general nature, that is, (a) the punishment of individuals for a war of aggression, in other words: nulla poena sine lege, and (b) the legal nature of the Fuehrer decrees. Only these two problems were to be dealt with by Dr. Jahrreiss, and these were the two topics that he actually did deal with. But besides that, these proceedings entail a series of legal problems which are of a general nature and more or less affect each of the defendants. I only recall to you the interpretation [Page 153] of the conspiracy charges; the various questions dealing with International Law; the questions of hostages and forced labour, and the legal question concerning distress at sea through naval warfare and other questions. There are a host of general questions, and above all, the matter on which my colleague, Dr. Horn, was stopped, concerning the question: "What is an aggressive war?" There exist the fundamental differences between a military war of aggression, a political war of aggression, and a juridical war of aggression, etc., about which Dr. Jahrreiss did not say a single word, nor was he supposed to do so. And please - I trust you do not mind my saying so, but that is the way - I understood Dr. Horn; that is really the basis of his argument. I do not propose to argue and to refer to a resolution, but I ask the Tribunal not to put us in a situation which we can hardly account for; namely, that we, in order to expedite the proceedings by having Professor Jahrreiss deal with a number of legal questions, be put in a position for which we cannot take the responsibility, that is to say, that we cannot deal with certain questions which, in our opinion, are of decisive legal importance to the defendants and about which Jahrreiss himself did not speak at all. Only a word or two yet. I believe the Tribunal will agree with me that one can have an entirely different opinion on the subject with which Professor Jahrreiss has dealt. I do not have it; I also shall not contradict Dr. Jahrreiss. But from a purely theoretical point of view - should it be, just because in such an important matter a speaker had dealt with this question, but in a sense which possibly one of the counsel considers entirely improper and harmful to his case, that he is to be forced to keep silent on such a matter? That cannot have been the intention of the Tribunal. Well, all I wanted to say was this: This speech of Jahrreiss served the purpose of expediting the trial. Well and good. But we ask - I think I may say "we", I believe that no one of the Tribunal is of a different opinion - we ask that it should not be interpreted too formally and, if one of us for some good reason says: "I have to discuss this, it is important for this or that reason," to give us that possibility wherever Jahrreiss dealt with the subject in a sense of which we do not approve, and not to prevent the discussion of some general legal question if it should be raised by any of the counsel. 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 the 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 defences of the clients whom they represent, and therefore the Tribunal hopes that the defendants' counsel will try to co-operate 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, I think, at this stage; and as it is now five o'clock, the Tribunal will adjourn. (The Tribunal adjourned until 8th July, 1946, at 1000 hours.)
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