Archive/File: imt/tgmwc/tgmwc-02/tgmwc-02-13.04 Last-Modified: 1999/09/12 THE PRESIDENT: Do you propose to call any oral witnesses? [Page 109] SIR DAVID MAXWELL FYFE: No, my Lord, no oral witnesses. If the Tribunal please, before I come to the first treaty I want to make three quotations to deal with a point which was mentioned in the speech of my learned friend, The Attorney General, yesterday. It might be thought from the melancholy story of broken treaties and violated assurances, which the Tribunal has already heard, that Hitler and the Nazi Government did not even profess it necessary or desirable to keep the pledged word. Outwardly, however, the professions were very different. With regard to treaties, on the 18th October, 1933, Hitler said, "Whatever we have signed we will fulfil to the best of our ability." The Tribunal will note the reservation, "Whatever we have signed." But, on the 21st May, 1935, Hitler said: "The German Government will scrupulously maintain every treaty voluntarily signed, even though it was concluded before their accession to power and office." On assurances Hitler was even more emphatic. In the same speech, the Reichstag Speech on 21st May, 1935, Hitler accepted assurances as being of equal obligation, and the world at that time could not know that that meant of no obligation at all. What he actually said was: "And when I now hear from the lips of a British statesman that such assurances are nothing, and that the only proof of sincerity is the signature appended to collective pacts, I must ask Mr. Eden to be good enough to remember that it is a question of an assurance in any case. It is sometimes much easier to sign treaties with the mental reservations that one will reconsider one's attitude at the decisive hour, than to declare before an entire nation and with full opportunity one's adherence to a policy which serves the course of peace because it rejects anything which leads to war." And then he proceeds with the illustration of his assurance to France. Never having seen the importance which Hitler wished the world to believe he attached to treaties, I shall ask the Tribunal, in my part of the case, to look at fifteen only of the treaties which he and the Nazis broke. The remainder of the sixty-nine broken treaties shown on the chart and occurring between 1933 and 1941 will be dealt with by my learned friends. There is one final point as to the position of a treaty in German law, as I understand it. The appearances of a treaty in the Reichsgesetzblatt makes it part of the statute law of Germany, and that is by no means an uninteresting aspect of the breaches which I shall put before the Tribunal. The first treaty to be dealt with is the Convention for the Pacific Settlement of International Disputes, signed at The Hague on the 29th July, 1899. I ask that the Tribunal take judicial notice of the Convention, and for convenience I hand in as Exhibit GB I the British Document, TC-1. The German reference is to the Reichsgesetzblatt for 1901, No. 44, Sections 401 to 404, and 482 and 483. The Tribunal will find the relevant charge in Appendix C as Charge 1. As the Attorney General said yesterday, these Hague Conventions are only the first gropings towards the rejection of the inevitability of war. They do not render the making of aggressive war a crime, but their milder terms were as readily broken as the more severe agreements. On the 19th July, 1899, Germany, Greece, Serbia and twenty- five other [Page 110] nations signed a convention. Germany ratified the convention on 4th September, 1900, Serbia on the 11th May, 1901, Greece on the 4th April, 1901. By Article 12 of the treaty between the Principal Allied and Associated Powers and the Serb-Croat-Slovene State, signed at St. Germaine-en-Laye on the 10th September, 1919, the new Kingdom succeeded to all the old Serbian treaties, and later, as the Tribunal know, changed its name to Yugoslavia. I think it is sufficient, unless the Tribunal otherwise wish, for me to read the first two articles only. "Article 1. With a view to obviating as far as possible recourse to force in the relations between States, the signatory powers agree to use their best efforts to ensure the pacific settlement of international differences. Article 2. In case of serious disagreement or conflict, before an appeal to arms the signatory powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers." After that the Convention deals with machinery, and I do not think, subject to any wish of the Tribunal, that it is necessary for me to deal with it in detail. The second treaty is the Convention for the Pacific Settlement of International Disputes, signed at The Hague on the 18th October, 1907. Again I ask the Tribunal to take judicial notice of this, and for convenience hand in as Exhibit GB 2 the Final Act of the Conference at The Hague, which contains British Documents TC-2, 3 and 4. The reference to this convention in German is to the Reichsgesetzblatt for 1910, Number 52, Sections 22 to 25, and the relevant charge in Charge 2. This Convention was signed at The Hague by forty-four nations, and it is in effect as to thirty-one nations, twenty-eight signatories, and three adherents. For our purpose it is in force as to the United States, Belgium, Czechoslovakia, Denmark, France, Germany, Luxembourg, Japan, Netherlands, Norway, Poland, and Russia. By the provisions of Article 91 it replaces the 1899 Convention as between the contracting powers. As Greece and Yugoslavia are parties to the 1899 Convention and not to that of 1907, the 1899 Convention is in effect with regard to them, and that explains the division of countries in Appendix C. Again I only desire that the Tribunal should look at the first two articles. "Article 1. With a view to obviating as far as possible recourse to force in the relations between States, the contracting powers agree to use their best efforts to ensure the pacific settlement of international differences." Then I do not think I need trouble to read Article 2. It is the same article as to mediation, and again, there are a number of machinery provisions. The third treaty is The Hague Convention relative to the opening of hostilities, signed at the same time. It is contained in the exhibit which I put in. Again I ask that judicial notice be taken of it. The British Document is TC- 3. The German reference is the Reichsgesetzblatt for 1910, Number 2, Sections 82 to 102, and the reference in Appendix C to Charge 3. This Convention applies to Germany, Poland, Norway, Denmark, Belgium, the Netherlands, Luxembourg, and Russia. It relates to a procedural step in notifying one's prospective opponent before opening hostilities against [Page 111] him. It appears to have had its immediate origin in the Russo-Japanese war, 1904, when Japan attacked Russia without any previous warning. It will be noted that it does not fix any particular lapse of time between the giving of notice and the commencement of hostilities, but it does seek to maintain an absolutely minimum standard of international decency before the outbreak of war. Again, if I might refer the Tribunal to the first article: "The contracting powers recognise that hostilities between them must not commence without a previous and explicit warning in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war." Then there are a number again of machinery provisions, with which I shall not trouble the Tribunal. The fourth treaty is the Hague Convention 5, respecting the rights and duties of neutral powers and persons in case of war on land, signed at the same time. That is British Document TC-4, and the German reference is Reichsgesetzblatt 1910, Number 2, Sections 168 and 176. Reference in Appendix C is to Charge 4. THE PRESIDENT: Is it necessary to give the German reference? If it is necessary for defendants' counsel, all right, but if not it need not be done. SIR DAVID MAXWELL FYFE: If I may omit them it will save some time. THE PRESIDENT: Yes. SIR DAVID MAXWELL FYFE: If any of the defendants' counsel want any specific reference perhaps they will be good enough to ask me. THE PRESIDENT. Yes. SIR DAVID MAXWELL FYFE: Germany was an original signatory to the Convention, and the Treaty is in force as a result of ratification or adherence between Germany and Norway, Denmark, Belgium, Luxembourg, the Netherlands, the U.S.S.R. and the United States. I call the attention of the Tribunal to the short contents of Article I: "The territory of neutral powers is inviolable." A point does arise, however, on this Convention. I want to make this clear at once. Under Article 20 the provisions of the present Convention do not apply except between the contracting powers, and then only if all the belligerents are parties to the Convention. As Great Britain and France entered the war within two days of the outbreak of the war between Germany and Poland, and one of these powers had not ratified the Convention, it is arguable that its provisions did not apply to the Second World War. I do not want the time of the Tribunal to be occupied by an argument on that point when there are so many more important treaties to be considered. Therefore, I do not press that as a charge of a breach of treaty. I merely call the attention of the Tribunal to the terms of Article I as showing the state of international opinion at that time and as an element in the aggressive character of the war which we are considering. THE PRESIDENT: Perhaps this would be a good time to break off. (A recess was taken.) SIR DAVID MAXWELL FYFE: As the Tribunal adjourned I had come to the fifth treaty, the Treaty of Peace between the Allied and Associated Powers and Germany, signed at Versailles the 28th June, 1919. I again ask the [Page 112] Tribunal to take judicial cognisance of this treaty, and I again hand in for convenience, Exhibit GB 3, which is a copy of the treaty, including British Documents TC-5 to TC-10 inclusive. The reference in Appendix C is to Charge 5. Before I deal with the relevant portions, may I explain very briefly the lay-out of the treaty. Part I contains the Covenant of the League of Nations, and Part II sets the boundaries of Germany in Europe. These boundaries are described in detail. Part II makes no provision for guaranteeing these boundaries. Part III, Articles 31 to 117, with which the Tribunal is concerned, contains the political clauses for Europe. In it, Germany guarantees certain territorial boundaries in Belgium, Luxembourg, Austria, Czechoslovakia, France, Poland, Memel, Danzig, etc. It might be convenient for the Tribunal to note, at the moment, the interweaving of this treaty with the next, which is the Treaty for the Restoration of Friendly Relations between the United States and Germany. Parts I, II and III of the Versailles Treaty are not included in the United States Treaty. Parts IV, V, VI, VIII, IX, X, XI, XII, XIV and XV are all repeated verbatim in the United States Treaty from the Treaty of Versailles. The Tribunal is concerned with Part V, the military, naval, and air clauses. Parts VII and XIII are not included in the United States Treaty. I do not think there is any reason to explain what the parts are, but if the Tribunal wishes to know about any specific part, I shall be very happy to explain it. The first part that the Tribunal is concerned with is that contained in the British Document TC-5, and which consists of Articles 42 to 44 dealing with, the Rhineland. These are very short, and repeated in the Locarno Treaty. Perhaps I had better read them once, so that the Tribunal will keep them in mind. "Article 42. Germany is forbidden to maintain or construct any fortifications either on the left bank of the Rhine or on the right bank 1 to the West of a line drawn 50 kilometres to the East of the Rhine. Article 43. In the area defined above, the maintenance and the assembly of armed forces, either permanently or temporarily, and military manoeuvres of any kind, as well as the upkeep of all permanent works for mobilisation, are in the same way forbidden. Article 44. In case Germany violates in any manner whatever the provisions of Articles 42 and 43, she shall be regarded as committing a hostile act against the powers signatory of the present treaty, and as calculated to disturb the peace of the world." I am not going to put in evidence, but I simply draw the Tribunal's attention to a document of which they can take judicial notice, as it has been published by the German State, the Memorandum Of 7th March, 1936, giving their account of the breach. The matters regarding the breach have been dealt with by my friend Mr. Alderman, and I do not propose to go over the ground again. The next part of the Treaty is in the British Document TC-6, dealing with Austria: "Article 80. Germany acknowledges and will respect strictly the [Page 113] independence of Austria within the frontiers which may be fixed in a treaty between that State and the principal allied and associated powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations." Again, in the same way, the proclamation of Hitler, dealing with Austria, the background of which has been dealt with by my friend Mr. Alderman, is attached as TC-47. I do not intend to read it because the Tribunal can again take judicial notice of the public proclamation. Next is Document TC-8, dealing with Memel. "Germany renounces, in favour of the principal allied and associated powers, all rights and title over the territories included between the Baltic, the North- eastern frontier of East Prussia as defined in Article 28 of Part II (Boundaries of Germany) of the present treaty, and the former frontier between Germany and Russia. Germany undertakes to accept the settlement made by principal allied and associated powers in regard to these territories, particularly in so far as concerns the nationality of inhabitants." I do not think that the Tribunal has had any reference to the formal document of incorporation of Memel, of which again the Tribunal can take judicial notice; and I put in, for convenience, a copy as GB 4. It is British Document TC- 53A, and it appears in our book. It is very short, so perhaps the Tribunal will bear with me while I read it: "The transfer Commissioner for the Memel territory, Gauleiter und Oberpresident Erich Koch, effected on 3rd April, 1939, during a conference at Memel, the final incorporation of the late Memel territory into the National Socialist Party Gau of East Prussia and into the State administration of the East Prussian Regierungsbezirk of Gumbinnen." Then, we next come to TC-9, which is the article relating to Danzig, Article 100, and I shall only read the first sentence, because the remainder consists of geographical boundaries: "Germany renounces, in favour of the principal allied and associated powers, all rights and title over the territory comprised within the following limits," and then the limits are set out and are described in a German map attached to the Treaty. Lieutenant-Colonel Griffith-Jones, who will deal with this part of the case, will formally prove the documents relating to the occupation of Danzig, and I shall not trouble the Tribunal with them now. If the Tribunal would go on to British Document TC-7 - that is Article 81, dealing with the Czechoslovak pledge. "Germany, in conformity with the action already taken by the allied and associated powers, recognises the complete independence of the Czechoslovak State, which will include the autonomous territory of the Ruthenians to the South of the Carpathians. Germany hereby recognises the frontiers of this State as determined by the principal allied and associated powers and other interested States."
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