Archive/File: imt/tgmwc/tgmwc-04/tgmwc-04-36.01 Last-Modified: 1999/09/30 [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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