The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 338]

THIRTY-SIXTH DAY

THURSDAY, 17TH JANUARY, 1946

THE PRESIDENT: I call upon the counsel for France.

M. FRANCOIS DE MENTHON: The conscience of the peoples, who
only yesterday were enslaved and tortured both in soul and
body, calls upon you to judge and to condemn the most
monstrous attempt at domination and barbarism of all times,
both in the persons of some of those who bear the chief
responsibility and in the collective groups and
organisations which were the essential instruments of their
crimes.

France, twice in thirty years invaded, in the course of wars
both of which were launched by German imperialism, bore
almost alone, in May and June, 1940, the weight of armaments
accumulated by Nazi Germany over a period of years in a
spirit of aggression. Although temporarily crushed by
superiority in numbers, material and preparation, my country
never gave up the battle for freedom and was at no time
absent from the field. The engagements undertaken and the
will for national independence would have sufficed to assure
France's support of General de Gaulle in the camp of the
democratic nations, but if our fight for freedom slowly took
the shape of a popular uprising, at the call of the men of
the Resistance belonging to all social classes, to all
creeds and to all political parties, it was not only
because, while our soil and our souls were crushed by the
Nazi invader, our people refused to submit to wretchedness
and slavery, but even more because they refused to accept
the Hitlerian dogmas which were in absolute contradiction to
their traditions, their aspirations and their human calling.

France, which was systematically plundered and ruined;
France, so many of whose sons were tortured and murdered in
the jails of the Gestapo or in concentration camps; France,
which was subjected to the still more horrible grip of
demoralisation and return to barbarism diabolically imposed
by Nazi Germany, asks of you, above all in the name of the
heroic martyrs of the Resistance who are among the greatest
heroes of our national legend, that justice be done.

France, so often in history the spokesman and the champion
of human liberty, of human values, of human progress,
through my voice to-day becomes also the interpreter of the
martyred peoples of Western Europe, Norway, Denmark, the
Netherlands, Belgium, Luxembourg, peoples more than all
others devoted to peace, peoples who are among the noblest
of humanity by reason of their aspirations and their worship
of the values of civilisation, peoples who have shared our
sufferings and have refused, like us, to give up liberty and
sacrifice their souls before the assault of Nazi barbarism.
France here becomes their interpreter to demand that justice
be done.

THE PRESIDENT: One moment, M. de Menthon, the Russian
translation is not coming through.... It is all right now.

M. DE MENTHON: The tortured peoples' craving for justice is
the basic foundation of France's appearance before your High
Tribunal. It is not the only one, nor perhaps the most
important one. More than toward the past, our eyes are
turned toward the future.

                                                  [Page 339]

We believe that there can be no lasting peace and no certain
progress for humanity, which still to-day is torn asunder,
suffering and anguished, except through the co-operation of
all peoples and through the progressive establishment of a
real international society.

Technical procedure and diplomatic arrangements will not
suffice. There can be no well-balanced and enduring nation
without a common consent in the essential rules of social
living, without a general standard of behaviour before the
claims of conscience, without the adherence of all citizens
to identical concepts of good and evil; there is no domestic
law which in defining and punishing criminal violations is
not founded on criteria of a moral order which are accepted
by all - in a word, without a common morality. There can be
no society of nations to-morrow without an international
morality, without a certain community of spiritual
civilisation, without an identical hierarchy of values;
International Law will be called upon to recognise and
guarantee the punishment of the gravest violations of the
universally accepted moral laws. This morality and this
International Criminal Law, indispensable for the final
establishment of peaceful co-operation and of progress on
lasting foundations, are inconceivable to us to-day after
the experience of past centuries and more especially of
these last years, after the incredible and awesome
sacrifices and the sufferings of men of all races and of all
nationalities unless they are built on the respect of the
human person, of every human person whosoever he may be, as
well as on the limitation of the sovereignty of States.

But in order that we may have the hope of founding
progressively an international society, through the free co-
operation of all peoples, on this morality and on this
International Law, it is necessary that, after having
premeditated, prepared and launched a war of aggression
which has caused the death of millions of men and the ruin
of a great number of nations, after having thereupon piled
up the most odious crimes in the course of the war years:
Nazi Germany shall be declared guilty and her rulers and
those chiefly responsible punished as such. Without this
sentence and without this punishment the nations would no
longer have any faith in justice. When you have declared
that crime is always crime, whether committed by a national
entity against other nations or by one individual against
another, you will thereby have affirmed that there is only
one standard of morality which applies to international
relations as well as to individual relationships, and that
on this morality are built prescriptions of law recognised
by the international community; you will then have truly
begun to establish an international justice.

This work of justice is equally indispensable for the future
of the German people. These people have been for many years
intoxicated by Nazism; certain of their eternal and deep-
seated aspirations, under this regime, have found a
monstrous expression; their entire responsibility is
involved, not only by their general acceptance but by the
effective participation of a great number of them in the
crimes committed. Their re-education is indispensable. This
represents a difficult enterprise and one of long duration.
The efforts which the free people will have to make in order
to reintegrate Germany in an international community cannot
succeed in the end if this re-education is not carried out
effectively. The initial condemnation of Nazi Germany by
your High Tribunal will be a first lesson for these people
and will constitute the best starting-point for the work of
the revision of values and of re-education which must be its
great concern during the coming years.

This is why France sees fit to ask the Tribunal to qualify
juridicially as crimes, both the war of aggression itself
and those acts in violation of the morality and of the laws
of all civilised countries which have been committed by
Germany in the conduct of the war, to impose the supreme
penalty on those who are chiefly responsible, and to declare
criminal the members of the various groups and organisations
which were the principal perpetrators of the crimes of Nazi
Germany.

                                                  [Page 340]

Your High Tribunal, established by the four nations
signatory to the agreement of 8th August, 1945, acting in
the interests of all the United Nations, is qualified to
mete out to Nazi Germany the justice of the free peoples,
the justice of liberated humanity.

The establishment by our four Governments of a Tribunal
competent to judge the crimes committed by those principally
responsible in Nazi Germany is based solidly on the
principles and usage of International Law. As an eminent
British jurist has recently reminded us, the practice and
the doctrine of International Law have always given to
belligerent States the right to punish enemy war criminals
who fall into their power. It is an incontestable rule of
International Law which no author has ever contested. It is
not, anew doctrine. It was born with the birth of
International Law. Francisco de Vittoria and Grotius laid
its foundations. The German authors of the seventeenth and
eighteenth centuries developed the doctrine.

Thus Johann Jacob Moser, a positivist writer of the
eighteenth century, said: "Enemy soldiers who act in
violation of International Law, should they fall into the
hands of their adversaries, are not to be treated as
prisoners of war. They can suffer the same fate as thieves
or murderers." The prosecutions which the United States,
Great Britain, the Union of Soviet Socialist Republics and
France are to-day carrying out against the men and the
organisations appearing before your High Tribunal under the
Indictment read in Berlin on 18th October, 1945, therefore
have an unimpeachable juridical foundation: the right,
universally recognised by international doctrine, of
bringing war criminals before a punitive jurisdiction.

This right is strengthened by legal considerations that are
perhaps even more irrefutable.

The principle of the territorial application of penal laws
gives to every State the right to punish crimes committed on
its territory. The application of the territorial principles
covers the violations of. International Law in territory
subject to military occupation; these violations are the
chief source of war crimes. But the crimes committed by the
defendants were not directed against any given State, in any
given occupied territory. The National Socialist
conspirators, against whom we ask that justice be done,
directed the policy of the Third Reich. All the States which
were occupied and temporarily enslaved by their Armed Forces
have been equally victims both of the illicit war which they
launched and of the methods used by them in the conduct of
this war.

There is therefore no single State which could legitimately
claim the privilege of trying these criminals. Only an
International Tribunal, emanating from the combined United
Nations, which were yesterday at war with Germany, can
rightly claim this privilege. That is why the declaration as
to enemy atrocities made at the end of the Moscow Conference
in October, 1943, had provided that the leaders of Nazi
Germany would, after the joint victory of the Allies, be
brought before an International Jurisdiction. There is,
therefore, nothing new from a juridical point of view in the
principle of justice which you are called upon to render.
Far from being merely an affirmation of power on the part of
the victors, your competence is founded on the recognition
by International Law of the territorial jurisdiction of
sovereign States.

The transfer by these States of their juridical power to an
International Court constitutes a notable progress in the
setting up of an inter-State punitive procedure. It does not
constitute any innovation in the legal foundation of the
justice which you are called upon to render.

The penal qualification of the facts may seem more open to
juridical objections. This horrible accumulation and maze of
Crimes against, Humanity both includes and goes beyond the
two more precise juridical notions of Crimes against Peace
and War Crimes. But I think - and I will revert later
separately to Crimes against Peace and War Crimes - that
this body of Crimes against

                                                  [Page 341]

Humanity constitutes, in the last analysis, nothing less
than the perpetration, for political ends and in a
systematic manner, of Common Law crimes such as theft,
looting, ill-treatment, enslavement, murders and
assassinations, crimes that are provided for and punishable
under the penal laws of all civilised States.

No general objection of a juridical nature, therefore,
appears to hamper your task of justice.

Moreover, the Nazi accused would have no ground to argue on
alleged lack of written texts to justify the penal
qualification that you will apply to their crimes.

The juridical doctrine of National Socialism admitted that
in domestic criminal law even the judge can and must
supplement the law. The written law no longer constituted
the Magna Carta of the delinquent. The judge could punish
when, in the absence of a provision for punishment, the
National Socialist sense of justice was gravely offended.

How could a judge under the Nazi regime supplement the law?

In his search for a semi-legal solution he acted in the
manner of a legislator. Proceeding from the firm basis of
the National Socialist programme, he sought the rule which
he would have proclaimed had he been a legislator. The
defendant Frank, in his speech at the Juristentag in 1936,
declared:

   "Say to yourself at each decision you have to make, how
   would the Fuehrer decide in my place? At each decision
   which you must make, ask yourself: Is this decision in
   accordance with the National Socialist conscience of the
   German people? Thus you will have a firm basis of
   conscience which will also bear for all time, in your
   own sphere of decisions, the authority of the Third
   Reich, based on the popular National Socialist unity and
   on the recognition of the will of the Fuehrer Adolf
   Hitler."

To those who to-morrow will render justice in the name of
human conscience the defendant Frank and his accomplices
would be ill advised to protest against a lack of written
texts with appropriate sanctions, especially as, in addition
to various international conventions, these texts, though
they be not codified in an inter-State penal code, exist in
the penal code of every civilised country.

Mr. Justice Jackson has given you the details of the various
phases and aspects of the National Socialist plot, its
planning and its development, from the first days of the
conspiracy of Hitler and his companions to rise to power, up
to the unleashing of innumerable crimes in a Europe almost
entirely at their mercy.

Sir Hartley Shawcross has enumerated the various breaches of
treaties, of agreements, of promises which were the prelude
to the many wars of aggression of which Germany was guilty.

I propose to-day to prove to you that all this organised and
vast criminality springs from what I may be allowed to call
a crime against the spirit, I mean a doctrine which, denying
all spiritual, rational and moral values by which the
nations have tried, for thousands of years, to improve human
conditions, aims to plunge humanity back into barbarism, no
longer the natural and spontaneous barbarism of primitive
nations, but a diabolical barbarism, conscious of itself and
utilising for its ends all material means put at the
disposal of mankind by contemporary science. This sin
against the spirit is the original sin of National Socialism
from which all crimes spring.

This monstrous doctrine is that of racialism: the German
race, composed in theory of Aryans, would be a fundamental
and natural concept. Germans as individuals do not exist and
cannot justify their existence, except in so far as they
belong to the race or Volkssturm, to the popular mass which
represents and amalgamates all Germans. Race is the matrix
of the German people; proceeding therefrom this people lives
and develops as an organism. The German may consider himself
only as a healthy and vigorous member of this body,
fulfilling within the collectivity a definite technical
function; his activity and his

                                                  [Page 342]


usefulness are the exact gauge and justification of his
liberty. This national body must be "moulded" to prepare it
for a permanent struggle.

The ideas and the bodily symbols of racialism are an
integral part of its political system; this is what is
called authoritative or dictatorial biology.

The expression "blood" which appears so often in the
writings of the Nazi theorists denotes this stream of real
life, of red sap which flows through the circulatory system
of every race and of all genuine culture as it flows through
the human body. To be Aryan is to feel this current passing
through oneself, this current which galvanises and vivifies
the whole nation. Blood is this region of spontaneous and
unconscious life which reveals to each individual the
tendencies of the race. The intellectual life must never, in
extolling itself, separate us from this elemental basis of
the sacred community. Let the individual go into himself and
he will receive by direct revelation "the commandments of
the blood." Dreams, rites and myths can lead to this
revelation. In other words, the modern German can and must
bear in himself the call of the old Germany and find again
its purity and its youthful
primitiveness.

The body and soul unity (Leibdeele, Einheit) of the
individual must not be disputed. One reads in the
"Nationalsozialistische Monatshefte" of September, 1938:

   "It is said that the body belongs to the State and the
   soul to the Church and to God. It is no longer so. The
   whole of the individual, body and soul, belongs to the
   Germanic nation and to the Germanic State."

National Socialism affirms, indeed, that the moral
conscience is the result of ortho-genetic evolution, the
consequence of the most simple physiological functions which
characterise the individuality of the body. Therefore, the
moral conscience is also subject to heredity and,
consequently, subject to the postulate and to the demands of
the race.

True, this pseudo-religion does not repudiate the means of
reason and of technical activity, but subordinates them
rigorously, brings them infallibly to the racial myth.

The individual has no value in himself and is important only
as an element of the race. This affirmation is logical if
one admits that not only physical and psychological
characteristics, but also opinions and tendencies are bound,
not to the individual but to the nation. Anyone whose
opinions differ from the official doctrine is asocial or
unhealthy. He is unhealthy because in the Nazi doctrine the
nation is equivalent to the race. Now, the characteristics
of the race are fixed. An exception in the formation from
the spiritual or moral point of view constitutes a
malformation in the same way as does a club-foot or a hare-
lip.

That is the totalitarian doctrine which reduces the
individual to non-existence save by the race and for the
race, without freedom of action or any definite aim; a
totalitarian doctrine which excludes every other concept,
every other aspiration or requirement save those connected
with the race, a totalitarian doctrine which eliminates from
the individual every other thought save that of the interest
of the race.

National Socialism ends in the absorption of the personality
of the citizen into that of the State and in the denial of
any intrinsic value of the human person.

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