The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/09/12

THE PRESIDENT: At some later stage, you will have all the
members

                                                  [Page 119]

furnished with a copy of this treaty between the United
States and Germany?

SIR DAVID MAXWELL FYFE: Oh, I thought it was only two that
were deficient.

THE PRESIDENT: No, I think the Soviet member and my
alternate, Mr. Justice Birkett, have the Austrian one. I
think I am the only one that has the German one. I am not
quite sure about the French member.

SIR DAVID MAXWELL FYFE: I am so sorry, my Lord. I will see
that the American Treaty is sent in.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL FYFE: It will be done at once, but so far
as reference is concerned, the Tribunal will appreciate that
the clauses are word for word the same as the Versailles
clauses. If they wish to refer to it in the meantime, it is
the same as the clauses in the Versailles Treaty. That will
not make any difference, my Lord, in procuring a copy of the
treaty.

I was dealing with the Treaty of Locarno, and it might be
convenient if I just reminded the Tribunal of the treaties
that were negotiated at Locarno, because they do all go
together and are to a certain extent mutually dependent.

At Locarno, Germany negotiated five treaties: (a) The Treaty
of Mutual Guarantee between Germany, Belgium, France, Great
Britain and Italy; (b) the Arbitration Convention between
Germany and France; (c) the Arbitration Convention between
Germany and Belgium; (d) the Arbitration Treaty between
Germany and Poland; and (e) an Arbitration Treaty between
Germany and Czechoslovakia.

Article 10 of the Treaty of Mutual Guarantee provided that
it should come into force as soon as ratifications were
deposited at Geneva in the archives of the League of
Nations, and as soon as Germany became a member of the
League of Nations. The ratifications were deposited on the
14th September, 1926, and Germany became a member of the
League of Nations.

The two arbitration conventions and the two arbitration
treaties which I mentioned provided that they should enter
into force under the same conditions as the Treaty of Mutual
Guarantee. That is Article 21 of the Arbitration Conventions
and Article 22 of the Arbitration Treaties.

The most important of the five agreements is the Treaty of
Mutual Guarantee. One of the purposes was to establish in
perpetuity the borders between Germany and Belgium and
Germany and France. It contains no provision for
denunciation or withdrawal therefrom, and provides that it
shall remain in force until the Council of the League of
Nations decides that the League of Nations ensures
sufficient protection to the parties to the Treaty - an
event which never happened - in which case the Treaty of
Mutual Guarantee shall expire one year later.

The general scheme of the Treaty of Mutual Guarantee is that
Article I provides that the parties guarantee three things:
the border between Germany and France, the border between
Germany and Belgium, and the demilitarisation of the
Rhineland.

Article 2 provides that Germany and France, and Germany and
Belgium agree that they will not attack or invade each
other, with certain inapplicable exceptions, and Article 3
provides that Germany and France, and Germany and Belgium
agree to settle all disputes between them by peaceful means.

The Tribunal will remember, because this point was made by
my friend, Mr. Alderman, that the first important violation
of the Treaty of Mutual

                                                  [Page 120]

Guarantee appears to have been the entry of German troops
into the Rhineland on 7th March, 1936. The day after France
and Belgium asked the League of Nations Council to consider
the question of the German reoccupation of the Rhineland and
the purported repudiation of the treaty, and on the 12th
March, after a protest from. the British Secretary for
Foreign Affairs, Belgium, France, Great Britain and Italy
recognised unanimously that the re-occupation was a
violation of this treaty, and on the 14th March, the League
Council duly and properly decided that it was not
permissible, and that the Rhineland clauses of the pact were
not voidable by Germany, because of the alleged violation by
France in the Franco-Soviet Mutual Assistance Pact.

That is the background to the treaty with the International
Organisations that were then in force, and if I might
suggest them to the Tribunal, without adding to the summary
which I have given, the relevant articles are 1, 2 and 3,
which I have mentioned, 4, which provides for the bringing
of violations before the Council of the League, as was done,
and 5 I ask the Tribunal to note, because it deals with the
clauses of the Versailles Treaty which I have already
mentioned. It says:

   "The provisions of Article 3 of the present Treaty are
   placed under the guarantee of the High Contracting
   Parties as provided by the following stipulations:
   
   If one of the Powers referred to in Article 3 refuses to
   submit a dispute to peaceful settlement or to comply
   with an arbitral or judicial decision and commits a
   violation of Article 2 of the present Treaty or a breach
   of Article 42 or 43 of the Treaty of Versailles, the
   provisions of Article 4 of the present Treaty shall
   apply."

That is the procedure of going to the League in the case of
a flagrant breach or of taking more stringent action.

I remind the Tribunal of this provision because of the
quotations from Hitler which I mentioned earlier, where he
said that the German Government would scrupulously maintain
their treaties voluntarily signed, even though they were
concluded before their accession to power; that includes the
Treaty of Versailles. No one has ever argued, for a moment,
to the best of my knowledge, that Stresemann was in any way
acting involuntarily when he signed the pact on behalf of
Germany, along with the other representatives. Germany
signed not only by Stresemann, but by Herr Hans Luther, so
that there you have a treaty freely entered into, which
repeats the violation provisions of the Versailles, and
binds Germany in that regard. I simply call the attention of
the Tribunal to Article 8, which deals with the preliminary
enforcement of the Treaty by the League, which perhaps I
should read because of the fact I told the Tribunal, that
all the other treaties had the same lasting qualities, the
same provision contained therein as the Treaty of Mutual
Guarantee:

   "Article 8
   
   The present Treaty shall be registered at the League of
   Nations in accordance with the Covenant of the League.
   It shall remain in force until the Council, acting on a
   request of one or other of the High Contracting Parties
   notified to the other signatory Powers three months in
   advance, and voting at least by a two-thirds majority,
   decides that the League of Nations ensures sufficient
   protection to the High Contracting Parties; the Treaty
   shall cease to have effect on the expiration of a period
   of one year from such decision."

                                                  [Page 121]

Thus, in signing this Treaty, the German representative
clearly placed the question of repudiation or violation of
the Treaty in the hands of others, as they were at the time,
of course, members of the League, and members in the Council
of the League; thus they then left the repudiation or
violations to the decision of the League.

Then the next Treaty I mention is the Arbitration Treaty
between Germany and Czechoslovakia, which was one of the
Locarno groups to which I already referred my remarks, but,
for convenience, I am quoting GB 14, which is British
Document TC-14. As a breach to this Treaty, as charged in
Charge 8, Appendix C, I mentioned the background of the
Treaty, and I shall not go into it again. I think a good
part that the Tribunal should look at is Article I, which is
the governing clause, and sets out the dispute in Document
TC-14:

   "All disputes of every kind between Germany and
   Czechoslovakia with regard to which the Parties are in
   conflict as to their respective rights, and which it may
   not be possible to settle amicably by the normal methods
   of diplomacy, shall be submitted for decision either to
   an arbitrary Tribunal, or to the Permanent Court of
   International justice as laid down hereafter. It is
   agreed that the disputes referred to above include, in
   particular, those mentioned in Article 13 of the
   Covenant of the League of Nations. This provision does
   not apply to disputes arising out of, or prior to the
   present Treaty and belonging to the past. Disputes for
   the settlement of which a special procedure is laid down
   in other conventions in force between the High
   Contracting Parties, shall be settled in conformity with
   the provisions of those Conventions."

Articles 2 to 21. This Treaty was registered with the
Secretariat in accordance with its Article 22. The second
sentence shows that the present Treaty was entered into and
the terms in force under the same conditions as the said
Treaty, which is the Treaty of Mutual Guarantee.

Now I think that is all I shall mention about this Treaty. I
think I am right in saying that my friend, Mr. Alderman,
referred to it. It is certainly the Treaty to which
President Benes unsuccessfully appealed during the crisis in
the autumn of 1938. Now the ninth Treaty, with which I
should deal, is not in this document book, and I merely put
it in formally, because my friend, Mr. Roberts, is dealing
with it, and will read the appropriate parts of it verbatim.
It will be enough to put in, as I first mentioned, the
Arbitration Convention between Germany and Belgium at
Locarno, of which I hand in a copy for the convenience of
the Tribunal, GB 15. This Arbitration Convention is made in
the same form, but I thought I would leave the essential
parts until the case concerned with Belgium, the Low
Countries and Luxembourg, which my friend, Mr. Roberts, will
present. I only ask the Tribunal to accept the foremost
document for the moment. And the same applies to the tenth
Treaty, which is mentioned in Charge 10 of Appendix C. That
is the Arbitration Treaty between Germany and Poland, of
which I ask the Tribunal to take judicial notice, and which
I hand in as GB 16. That again will be dealt with by my
friend, Colonel Griffith-Jones, when he is dealing with the
Polish case.

Now I can take the Tribunal straight to the matter which is
not a treaty, but is a solemn declaration, and that is TC-
18, which I now put in as Exhibit GB 17, and ask that the
Tribunal take judicial notice of, as the Declaration of

                                                  [Page 122]

the Assembly of the League of Nations. The importance is the
date, which was 24th September, 1927. The Tribunal may
remember that I asked them to take judicial notice of the
fact that Germany had become a member of the League of
Nations on 10th September, 1926, a year before.

The importance of this Declaration lies not only in its
effect on International Law, to which I will say my learned
friend referred, but in the fact that it was unanimously
adopted by the Assembly of the League of Nations, of which
Germany was a free, and I might say, an active member at the
time. I think that I will read TC-18, that is, if the
Tribunal will be good enough to look at the speech made by
M. Sokal, the Polish Rapporteur, and this is the translation
after the Rapporteur had dealt with the formalities.
Referring to the committee's declaration being unanimously
adopted, M. Sokal, the Rapporteur, said in the second
paragraph:

"The Committee was of opinion that, at the present juncture,
a solemn resolution passed by the Assembly, declaring that
wars of aggression must never be employed as a means of
settling disputes between States, and that such wars
constituted an International Crime, would have a salutary
effect on public opinion, and would help to create an
atmosphere favourable to the League's future work in the
matter of security and disarmament.

   While recognising that the draft resolution does not
   constitute a regular legal instrument, which would be
   adequate in itself and represent a concrete contribution
   towards security, the Third Committee unanimously agreed
   as to its great moral and educative value."

Then he asked the Assembly to adopt the draft resolution,
and I read simply the terms of the resolution, which shows
what so many nations, including Germany, had in mind at that
time; The Assembly, recognising the solidarity which unites
the community of nations, being inspired by a firm desire
for the maintenance of general peace, being convinced that a
war of aggression can never serve as a means of settling
international disputes, and is in consequence an
International Crime; considering that the solemn
renunciation of all wars of aggression would tend to create
an atmosphere of general confidence calculated to facilitate
the progress of the work undertaken with a view to
disarmament:

   Declares: 1. That all wars of aggression are and shall
   always be prohibited.
   
   2. That every pacific means must be employed to settle
   disputes of every description, which may arise between
   States.
   
   3. That the Assembly declares that the States Members of
   the League are under an obligation to conform to these
   principles."

The fact of the solemn renunciation of war was taken in the
form of a roll-call, and the President announced, you will
see, at the end of the extract:

   "All the delegations having pronounced in favour of the
   declaration submitted by the Third Committee, I declare
   it unanimously adopted."

THE TRIBUNAL (Mr. Biddle): What is the date of that?

SIR DAVID MAXWELL FYFE: 24th September, 1927. Germany joined
the League on 10th September, 1926.

The last general Treaty which I have to place before the
Tribunal is the Kellogg-Briand Pact. The Pact took effect in
1928; my learned friend the Attorney General in opening this
part of the case read it, and on coming to it fully I hand
in as Exhibit GB 18 the British Document TC-19, which is a

                                                  [Page 123]

copy of that Pact. I did not intend, unless the Tribunal
desires otherwise, to read it again, as the Attorney General
yesterday read it in full, and I leave the document before
the Tribunal in that form.

Now what remains for me to do is to place before the
Tribunal certain documents which Mr. Alderman mentioned in
the course of his address, and left to me. I am afraid I
have not placed them in special order, because they do not
relate to the Treaties, but to Mr. Alderman's address. The
first of these I hand in as Exhibit GB 19. This is British
Document TC-26, and comes just after that resolution of the
League of Nations, to which the Tribunal had just been
giving attention, TC-26. It is the assurance contained in
Hitler's speech on 21st May, 1935, and it is very short, and
unless the Tribunal has it in mind from Mr. Alderman's
speech, I should like to read it again - I am not sure that
it was read before - as follows:

   "Germany neither intends nor wishes to interfere in the
   domestic affairs of Austria, to annex Austria, or to
   attach that country to her. The German people and the
   German Government have, however, the very comprehensible
   desire, arising out of the simple feeling of solidarity
   due to a common national descent, that the right to self-
   determination should be guaranteed not only to foreign
   nations, but to the German people everywhere.
   
   I myself believe that no regime which is not anchored in
   the people, supported by the people, and desired by the
   people, can exist permanently."

The next Document which is TC-22, and which is on the next
page, I now hand in as Exhibit GB 20, and it is the official
copy of the official proclamation of the Agreement between
the German Government and the Government of the Federal
State of Austria, on 11th July, 1936, and I am almost
certain that Mr. Alderman did read this document, but I
refer the Tribunal to paragraph one of the agreement and to
what it essentially contains:

   "The German Government recognises the full sovereignty
   of the Federal State of Austria in the sense of the
   pronouncements of the German Leader and Chancellor of
   the 21St May, 1935."

That I hand in as GB 20. I now have three documents which
Mr. Alderman asked me to hand in with regard to
Czechoslovakia. The first is TC-27, which the Tribunal will
find two documents farther on from the one about agreement
with Austria, to which I have just been referring. That is
the German Assurance to Czechoslovakia, and what I am
handing in as GB 21, is the letter from M. Masaryk, T. G.
Masaryk's son, to Lord Halifax, dated the 12th March, 1938,
and again I think that if Mr. Alderman did not read this, he
certainly quoted the statement made by the defendant
Goering, which appears in the third paragraph. In the first
statement Field Marshal Goering used the expression "ich
gebe Ihnen mein Ehrenwort," which I understand means, "I
give you my word of honour," and, if you will look down
three paragraphs, after the defendant Goering had asked that
there would not be a mobilisation of the Czechoslovak Army,
the communication continues:

   "M. Masaryk was in a position to give him definite and
   binding assurances on this subject, and today spoke with
   Baron von Neurath" - the defendant von Neurath - "who,
   among other things, assured him on behalf of Herr
   Hitler, that 'Germany still considers herself bound by
   the German-Czechoslovak Arbitration Convention concluded
   at Locarno in

                                                  [Page 124]

October, 1925'." - So there I remind the Tribunal that in
1925 Herr Stresemann was speaking on behalf of Germany in an
agreement voluntarily concluded; had there been the
slightest doubt of that question, the defendant Neurath was
giving the assurance on behalf of Hitler that Germany still
considered herself bound by the German-Czechoslovak
Arbitration Convention on the 12th March, 1938, six months
before Dr. Benes made a hopeless appeal to it, before the
crisis in the autumn Of 1938. There is also the difficult
position of the Czechoslovakian Government, which is set out
in the last paragraph that M. Masaryk wrote, and which the
Tribunal may think is put with great force in this last
sentence:

   "They cannot however fail to view with great
   apprehension the sequel of events in Austria between the
   date of the bilateral agreement between Germany and
   Austria, on the 11th July, 1936, and yesterday, the 11th
   March, 1938."

To refrain from comment, I venture to say that is one of the
most pregnant sentences relating to this period.


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