The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Third Day: Monday, 8th July, 1946
(Part 5 of 12)

[Page 171]

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 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 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 accused.

[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 "Chauvinism".

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 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 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 movement.

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 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 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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