The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/12/16

DR. SEIDL: May I perhaps reply briefly?

THE PRESIDENT: Then, Sir David, your proposition would be
that Dr. Seidl could not quote from any of these documents?

SIR DAVID MAXWELL FYFE: My Lord, certainly, yes, on my
premise that it is irrelevant matter, he could not.

THE PRESIDENT: Yes, they are not admissible.

SIR DAVID MAXWELL FYFE: They are not admissible.


SIR DAVID MAXWELL FYFE: My original suggestion was of
course, leaving over the discussion of whether they are
admissible until all the evidence had been filed, but if
that is not accepted, I submit bluntly, if I may use the
word with all respect, that they are not admissible.

THE PRESIDENT: Now, Dr. Seidl.

DR. SEIDL: May I reply briefly, Mr. President?


DR. SEIDL: It would indicate a complete alteration of
intentions if one were to assume that by the submission of
this document book I wanted to show whether or not the
Treaty of Versailles is an expression of statesmanly wisdom.
I am not concerned with that here.

The submission of this document is more to show whether
there is to be brought under discussion:

Firstly: Whether the opposite side at the conclusion of the
Treaty, in the preliminary negotiations - I call your,
attention to Wilson's Fourteen Points - was not guilty for
its part of a violation of the general Treaty obligations,
whether a culpa incontrahenda is not to be assumed here.

Secondly: The submission of the documents should show
whether the opposite side complied with the obligations
arising from the Treaty, in order to establish that is to
give the Tribunal the opportunity of establishing, in this
way, the legal inferences which Germany might draw from

Thirdly: The Treaty of Versailles and its violation by the
defendants forms the nucleus of Count One of the Indictment,
namely the conspiracy charged by the prosecution. The
prosecution, in replying to a question of the Tribunal as to
when the conspiracy may be said to have started, has said
that the date might be set as far back as 1921.

Fourthly: The prosecution has extensive ...

THE PRESIDENT: I have not the least idea what you meant by
the last point. I do not understand what you said in the
last point in the least.

DR. SEIDL: I wanted to say that for the beginning of the
conspiracy alleged by the prosecution, the Treaty of
Versailles played a decisive part, and that the origin of
this Treaty has to be put in some causative connection, at
least with the alleged conspiracy. Before there can be talk
of illegality and of guilt, the facts have to be established
which were causative for the conspiracy charged by the

Fourthly: The prosecution has submitted extensive evidence
on the development of the N.S.D.A.P. Numerous document books
were submitted to the Tribunal to show the growth in
membership, to demonstrate the increase in the Reichstag

                                                   [Page 63]

mandates. Now, if this evidence was relevant, it is my
assertion that these circumstances also, and the facts that
first enabled this rise of the Party at all, must be
relevant, if only from the viewpoint of causal connection.

THE PRESIDENT: Is it your contention that the opinion of a
journalist after the Treaty of Versailles was made, stating
that, in his opinion, the Treaty of Versailles was unjust to
Germany, would be admissible either for the interpretation
of the Treaty or for any other purpose with which this
Tribunal is concerned?

DR. SEIDL: Mr. President, I admit that of course the
particular opinion of a foreign journalist is not in itself
relevant, but I do assert that the opinion of Secretary of
State Lansing on the formation of the Treaty of Versailles
and its connection with the prior history of this Treaty
must be of some evidential relevance. What weight attaches
to his opinion is a question which cannot yet be established
at this point. This question can only be decided by the
Tribunal when the complete evidence has been submitted. I
should like to state further that the opinion of the
Chairman of the Committee of Foreign Affairs of the Senate
of the United States on the Treaty of Versailles, on its
formation, on effects within the framework of the conspiracy
alleged by the prosecution - which purportedly is contrary
chiefly to the Treaty of Versailles can prima facie have
value as evidence. The same thing applies to most of the
other statements quoted in this document book.

I would like to call attention to Gustav Cassel, to John
Maynard Keynes, the official financial adviser of the
British Government, and to a number of others.

THE PRESIDENT: It is your contention that because of the
provisions of the Versailles Treaty or because of an
infraction of those provisions by the signatory powers,
Germany was justified in making an aggressive war?

DR. SEIDL: I cannot answer that now definitely with
intelligence, so long as I have not heard the evidence of
the other defendants. I do assert, however, that in an
infraction of the Treaty of Versailles by the opposite side,
in certain circumstances Germany or the defendants could
find the right to re-arm, and that it is an infraction of
the Treaty of Versailles with which the defendants are
charged. As far as the right to an aggressive war is
concerned, I should not like to make any positive
statements, at least until such time as the Tribunal has
taken official notice of the affidavit of Ambassador Gauss.

THE PRESIDENT: One more question I should like to ask you:
Are you saying that the Fourteen Points which were laid down
by President Wilson are admissible evidence to construe the
written document of the Versailles Treaty?

DR. SEIDL: I do not say that the Fourteen Points of Wilson,
per se, are admissible evidence, I do assert, on the other
hand, that the connection between these Fourteen Points of
Wilson and the Treaty of Versailles and the contradiction
resulting therefrom are of causal significance for the
conspiracy alleged by the prosecution.

THE PRESIDENT: Then you are really saying that the
Versailles Treaty, in so far as it departed from the
Fourteen Points, was an unjust treaty?

DR. SEIDL: Mr. President, whether the treaty was just or not
is a point which I do not wish to prove with this document
at all. Whether the treaty was unjust or not is in my
opinion a fact which perhaps is beyond the scope of these
proceedings. I do assert, however, that the treaty, at least
in many of its terms, did not bring that which the
victorious States themselves expected of it.

THE PRESIDENT: Do you wish to add anything more, Dr. Seidl?

DR. SEIDL: Not at this point.

DR. DIX (counsel for the defendant Schacht) Since it is a
very fundamental question which has been raised now for
discussion by Sir David, and since the defence must always
calculate on the possibility that the Tribunal, even at.
this point may make a decision on the question of whether
and how far such documentary material as the one discussed
can be produced, I consider myself in duty bound to add to
the statements of my colleague, Dr. Seidl, with whom I agree
fully, just

                                                   [Page 64]

a few supplementary words. And I would like to reply to the
very precise question of your Lordship which starts, "Do you
consider it relevant ...?" I believe - and I will avoid any
repetition - that a very vital point as far as relevancy is
concerned has not been brought out yet, and that is the
subjective aspect; that is the relevancy of investigation of
evidence and fact regarding the subjective state of the
individual defendant, that is, of the facts is seen from

If, for example, one of the defendants committed an act
which was considered, purely objectively, a breach of the
Treaty of Versailles, then as far as criminal law is
concerned and looking at it from the subjective view, it is
of great significance whether in the opinion of reasonable,
just and educated men of all nations, he acted with an
attitude and with a viewpoint, which was not merely his
special viewpoint, but that of the most serious men of the
various nations and also of those nations which fought
against Germany in the years 1914-1918. In order not to be
too abstract, I should like to cite a concrete example:

A defendant favours rearmament, not for aggressive war, but
I will not touch this question. He considers rearmament
justified, either because the Treaty has not been kept by
the other side or because due to expressis verbis, to
treaties concluded or to confidential negotiations, it is to
be considered obsolete. In my opinion it is of decisive
relevancy whether this defendant in this opinion of his
which explains his action, is alone in all the world, or
whether the opinion which guides his action, is held by men
who are to be taken  seriously and who belonged to other
nations, even those which in the years 1914-1918 stood on
the other side and were his enemies.

The rearmament according to the prosecution, as I
understand, is not a "crime" as such but is merely used by
the prosecution as a charge for the proving of the crime of
having carried on an aggressive war. If now a defendant can
prove that he acted from clean and decent views, views which
as stated were held by such men of other nations as I have
described, and acted conscientiously both as regards
International Law and international morals and also as
regards the needs of his own country, then this material,
which contains opinions, literary statements, speeches, that
coincide with the views of the defendant in question is not
only of relevant, but of entirely decisive significance.
This viewpoint I ask the Tribunal to bear in mind, if it
desires to decide now the question of principle which Sir
David has just now raised for debate and which he had to
raise, as I fully recognise. But moreover I am also now in
the agreeable position of being able to agree with Sir David
in the practical solution. I too - and I am speaking now for
myself only - would prefer to have the decision on this
question postponed until the time suggested by Sir David. As
far as I am concerned I will accept the disadvantages which
Dr. Seidl is right in seeing because an advantage will
result if the Tribunal decides this question then, since it
will then have a much larger view on all questions and
distinctions which are important for the decision. And at
this point I am not at all in a position to treat
comprehensively, for I do not want to make any comprehensive
speech, but just to treat one aspect of this question of

DR. HORN (counsel for the defendant von Ribbentrop):

I should like to add a few remarks to those made by Dr. Dix.
I request the Tribunal -

THE PRESIDENT: The Tribunal would like to know how many of
the defence counsel think they are entitled to address them.
If Dr. Horn wishes to add a short argument, the Tribunal are
prepared to hear it, but they are not prepared to hear all
the defendant's counsel upon points such as this, at this
stage, and if any of the other defendants' counsel desires
to address them, they will decide now whether they will hear
any more or not.

It is understood, then, that Dr. Horn alone will address a
short argument to the Tribunal? If it is not, then the
Tribunal will decide whether it will hear any more argument
upon the subject.

DR. HORN: I cannot encroach on the rights of my colleagues
in this question,

                                                   [Page 65]

naturally, Mr. President. I should like personally only to
make a very brief statement on the legal points.

THE PRESIDENT: Well, you must consult your colleagues then.

DR. HORN: If you wish a decision on this question now, Mr.
President, I must ask my colleagues beforehand, of course.


DR. HORN: May I make first a preliminary remark, Mr.
President, to what has just been said to me by my
colleagues. Firstly, this decision has for the counsel for
the Organisations a very particular interest.

For myself personally I would like to make the following
remarks: The prosecution -

THE PRESIDENT: Dr. Horn, I asked you to consult the other
defendants' counsel and ascertain whether they were willing
that you should be heard, and you alone. That is the only
terms upon which I am prepared to hear you.

(Dr. Horn again consulted with his colleagues.)

DR. HORN: Yes, Mr. President, my colleagues are agreed that
I shall make the last statements on this point.

THE PRESIDENT: Very well. Go on.

DR. HORN: There is no doubt that the prosecution, as far as
vital questions are concerned, bases its case on infractions
of the Versailles Treaty. To these Treaty infractions, it is
absolutely necessary, in my opinion, to submit the facts
which allow the legality of this Treaty to be judged. There
is no doubt that this treaty was signed under duress. It is
recognised in International Law that such treaties from the
legal point of view have grave deficiencies and are
infamous. In my opinion we must be allowed to submit the
facts that serve to show the soundness of this assertion and
legal view point. A further question - and if I have
understood correctly this is Sir David's point - is that of
the polemic analysis of the legal, political, and economic
consequences of this treaty. I did not wish to make any
further statements on this point, but I would like to ask
that my first request be granted, that the legal documentary
facts be allowed which would permit a judgement on the legal
value of the Versailles Treaty.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, if I
might deal first with the argument which Dr. Dix has put
forward, as I understood his first main proposition, it was
this:That if a defendant has committed an act which is an
infraction of the treaty and can show that in the opinion of
reasonable and just and educated men in the States who were
the other parties to the treaty, the treaty was so bad that
an infraction was justifiable, that is a permissible

I submit that it is - with great respect to Dr. Dix - an
unsound argument, and baseless, from any principle either of
law or of materiality. Once it is admitted that there is a
treaty and that an infraction is made, and it follows from
the example that Dr. Dix was dealing with, that these are
the conceded facts, it is no answer to say that a number of
admirable people in the countries which were parties to the
treaty believed that its terms were wrong. The treaty is
there and the person who knowingly makes an infraction is
breaking the treaty, however strong is his support.

In his second point Dr. Dix moved to quite different
grounds. He said that this evidence might be relevant in the
special reference to the question of rearmament because it
might show that the treaty was considered obsolete. Now, it
is a rare but none the less existing doctrine of
International Law that treaties, usually minor treaties, can
be abrogated by the conduct of the contracting parties. I
would not contest that you cannot get examples of that,
although they are very rare and generally deal with minor
matters. But this evidence which is before the Tribunal at
the moment is not directed to that point at all. This is, in
the main, contemporary polemic evidence saying that certain
aspects of the treaty were bad, either as regards political
standards or economic standards. That is a totally

                                                   [Page 66]

different argument from the one which Dr. Dix admirably
adumbrated - which is one which if it came up would have to
be faced - that a treaty has become obsolete or that the
breaches have been condoned and that, therefore, the terms
have really ceased to exist.

My answer to that is that this evidence is not directed to
that point at all.

Now, if Dr. Dix will forgive me - and I am sure the fault
was mine - I did not quite appreciate what he termed his
subjective argument. But in so far as I did appreciate it,
there seems to be a very good answer - that if he seeks to
suggest that a defendant's guilt may be less because he,
that defendant, believed that the treaty was bad, that is
essentially a matter which can be judged by the Tribunal who
will hear that defendant and appreciate and evaluate his
point of view. It really does not help in deciding whether
the defendant Hess acted because he thought that the Treaty
of Versailles was a bad treaty, to know what the editor of
the "Observer," which is a Sunday paper in England,
expressed as his views some twenty years ago, or the
"Manchester Guardian" or indeed - with all respect to them -
what distinguished statesmen have said in writing their
reminiscences years after a matter occurred. The subjective
point is, this is my submission, an important point in
deciding on evidence. The subjective point can be answered
by the defendant himself, and the view of the defendant
which the Tribunal will receive.

Now, Dr. Horn has opened up a much wider question, and one
which I submit is entirely irrelevant and beyond the scope
of these proceedings.

He wishes the Tribunal to try whether the Treaty of
Versailles was signed under duress. Well, that, of course,
would involve the whole consideration of the government of
the German Republic, the position of the plenipotentiaries,
and the legal position of the persons who negotiated the

The answer to that is that this Tribunal is concerned with
certain quite clearly stated offences, fully particularised,
which occurred at the time that is stated in the Indictment;
and all the evidence that is given as to the actions of the
pre-Nazi German government, and indeed of the Nazi
government, shows that for years Versailles was accepted as
the legal and actual basis on which they must work, and
various different methods were adopted in order to try and
secure changes of the Treaty, and I need not go into with
the Tribunal the whole framework of the Locarno Treaties
recognising Versailles, which were signed in 1925, and which
were treated as existing and in operation by the Nazi
government itself.

With these actual facts, it would, in my submission, be
completely remote, irrelevant, and contrary to the terms of
the Charter, for this Tribunal to go into an inquiry as to
whether the Treaty of Versailles was signed under duress.

As I gathered, Dr. Horn was not so interested in the
economic clauses and their rightness or wrongness; but I
should respectfully remind the Tribunal that that is a
matter which is before it at the moment - that here we have,
as I have pointed out before, and I do not want to repeat
myself, a number of opinions expressed by people of varying
eminence and with varying degrees of responsibility at the
time that they expressed them. And while strongly
maintaining the position which I have endeavoured to express
with regard to the Treaty, I do equally impress my second
point: That to accept as matters of evidence statements
which in the main are made from a polemic standpoint, either
in answer to an attack or in an attack with a background of
the politics of the State in which they were made, is simply
a misuse of the term "evidence." That is not evidence of any
kind. They are matters of argument which an advocate may
adopt if the argument is a relevant one, but they should not
be received in evidence by the Tribunal for that reason.

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