The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
7th January to 19th January, 1946

Thirty-sixth Day: Thursday, January 17th, 1946
(Part 3 of 10)


[Page 347]

When it decided on 7th March, 1936, to denounce the Treaty of Locarno and to reoccupy at once the demilitarised Rhineland area, thereby violating Articles 42 and 43 of the Treaty of Versailles, the German Government alleged that in so doing it was replying to the pact concluded and signed on 2nd May, 1935, between France and the U.S.S.R., and ratified on 27th February, 1936, by the French Chamber of Deputies. It alleged that this pact was contrary to the Treaty of Locarno. This was a mere pretext which was taken seriously by nobody. The Nazi leaders wanted to start building the Siegfried Line as soon as possible in the demilitarised Rhineland area, in order to thwart a military intervention which France might attempt so as to assist her Eastern allies. The decision of 7th March, 1936, was the prelude to the aggressions directed against Austria, Czechoslovakia and Poland.

Internally, rearmament was achieved; thanks to a plan of economic and financial measures which affected every aspect of national life. The entire economic system was directed towards the preparation for war. The members of the Government proclaimed priority of armaments manufacture over all other branches of production. Policy took precedence before economics. The Fuehrer declared: "The people must be resigned for some time to having its butter, fats and meat rationed, in order that rearmament may proceed at the desired rate." The German people did not protest against this order. The State intervened to increase the production of substitute goods which would help to relieve the insufficiency of raw materials and would enable the Reich, in the event of war, to maintain the level of production necessary for the Army and Air Force, even if imports were to become difficult or impossible. The defendant Goering, in September, 1936, inspired the drawing up and directed the application of the Four Year Plan which put Germany's economic system on a war footing. The expenses entailed by this rearmament were assured, thanks to the new system of work treaties. The defendant Schacht, during the three and a half years he was at the head of the Reich Ministry of Economics, brought into being this financial machinery, and thereby played an outstanding role in military preparations, as he himself recalled, after he left the Ministry, in a speech that he made in November, 1938, at the Economic Council of the German Academy.

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Germany thus succeeded in three years' time in re-creating a great Army and in forming on the technical plane an organisation entirely devoted to future war. On the 5th November, 1937, when expounding his plan for home policy to his collaborators, Hitler was able to state that rearmament was almost completed.

(A recess was taken.)

M. FRANCOIS DE MENTHON: While Hitler's Government was giving to the Reich the economic and financial means for a war of aggression he was carrying on simultaneously the diplomatic preparation of that war by attempting to reassure the threatened nations during the period which was indispensable to him for rearmament, and by trying also to keep his eventual adversaries apart from one another.

In a speech on 17th May, 1933, Hitler, while asking for a revision of the Treaty of Versailles, declared that he had no intention of obtaining it by force. He stated that he admitted "the legitimate exigencies of all peoples" and he asserted that he did not want to "Germanise those who are not Germans." He wished to "respect the rights of other nationalities."

The German-Polish Non-Aggression Pact, concluded on 26th January, 1934, which was to reassure for a time the Warsaw Government and to lull it into a state of false security, was principally intended to bar French policy from any action. In a work published in 1939 entitled "Deutschlands Aussenpolitik 1933-39," an official writer, Professor Von Freytag-Loringhoven, wrote that the essential purpose of this pact was to paralyse the action of the Franco-Polish alliance and to "overthrow the entire French system."

On 26th May, 1935, ten days after denouncing the military clauses of the Treaty of Versailles, Germany started negotiations with Great Britain which were to result in the Naval Agreement of 18th June, 1935, negotiations which were intended to reassure British public opinion by showing, it that, while the Reich was desirous of becoming once more a great military Power, it was not thinking of reconstituting a powerful fleet.

Immediately following the plebiscite of 13th January, 1935, which decided the return of the Saar territory to the Reich, Hitler formally declared "that he would make no further territorial demands whatsoever on France."

He was to use the same tactics towards France until the end of 1938. On 6th December, 1938, Ribbentrop came to Paris to sign the Franco-German Declaration which agreed "the frontiers as definite" between the two countries and which stated that the two Governments were resolved, "under reservation of their particular relations with third Powers, to engage in mutual consultation in the event of questions of common interests which might show a risk of leading to international difficulties"; he was then still hoping, to quote the French Ambassador in Berlin, to "stabilise peace in the West in order to have a free hand in the East."

Did not Hitler make the same promises to Austria and Czechoslovakia? He signed on 11th July, 1936, an agreement with the Viennese Government, recognising the independence of Austria, an independence which he was to destroy 20 months later. By means of the Munich Agreement on 29th September, 1938, he promised subsequently to guarantee the integrity of the Czech territory - which territory he invaded less than six months later!

Nevertheless, as early as 5th November, 1937, in a secret conference held at the Reich Chancellery, Hitler had made known to his collaborators that the hour had struck for resolving by force the problem of the living-space required by Germany. The diplomatic situation was favourable to Germany. She had acquired a superiority of armaments which ran the risk of being only a temporary one. Action should be taken without further delay.

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Thereupon started the series of aggressions which have already been detailed before this Court. It has also been shown to you that these various aggressions have been made in violation of international treaties and of the principles of International Law. As a matter of fact, German propaganda did not challenge this at the time. It merely stated that those treaties and those principles "had lost any reality whatever with the passage of time." In other words, it simply denied the value of the word once pledged, and asserted that the principles which formed the basis of International Law had become obsolete. This is a reasoning which is in line with the National Socialist doctrines which, as we have seen, do not recognise any International Law, and state that any means is justifiable if it is of a nature to serve the interests of the German race.

However, it is worth while examining the various arguments which German propaganda made use of to justify the long- planned aggression.

Germany set forth, first of all, her vital interests. Could she not be excused for neglecting the rules of the rights of people when she was engaged in a struggle for the existence of her people? She needed economic expansion. She had the right and the duty to protect the German minorities abroad. She was obliged to ward off the encirclement which the Western Powers were directing against the Reich.

Economic expansion was one of the reasons which Hitler put forward, even to his direct associates, in the secret conferences he held in 1937 and 1939 in the Reich Chancellery. "Economic needs," he said, "are the basis of the policy of expansion of Italy and of Japan. They also guide Germany."

But would not Hitler's Germany have been able to seek satisfaction of these needs by peaceful means,? Did she think of obtaining new possibilities for her foreign commerce through commercial negotiations? Hitler did not stop at such solutions. To solve the German economic problems, he saw only one way - the acquisition of agricultural territories - undoubtedly because he was incapable of conceiving these problems under any other form than that of "war economy." If he affirmed the necessity of obtaining this "agricultural space" - to use his own phrase - it was because he saw therein the means of obtaining for the German population the food resources which would protect it against the consequences of a blockade.

The duty of protecting "the German minorities abroad" was the favourite theme which Germany's diplomacy made use of from 1937 to 1939. Obviously it could not serve as an excuse for the destruction of the Czechoslovakian State or for the establishment of the "German Protectorate of Bohemia- Moravia." The fate of the "Sudeten Germans," that of the "Danzig Germans" was the Leitmotiv of the German Press, of the Fuehrer's speeches and of the publications of Ribbentrop's propaganda. Now, is it necessary to recall that in the secret conference of 5th November, 1937, in which Hitler draws up for his associates the plan of action to be carried out against the Czechoslovakian State, he does not say one word about the "Sudeten Germans," and to recall that in the conference of 23rd May, 1939, he declares that Danzig is not the "principal point" of the German-Polish controversy? The "right of nationalities" was, therefore, in his mind only a propaganda method intended to mask the real design, which was the conquest of "living space."

The encirclement directed by the Western Powers against the Reich is the argument which Hitler used when, on 28th April, 1939, he denounced the Naval Agreement which he had concluded in 1935 with Great Britain. This thesis of encirclement occupied a great deal of space in the German White Book of 1939, relative to the origins of the war; but is it possible to speak of encirclement when Germany had, in May, 1939, obtained the alliance with Italy and when, on 23rd August, 1939, she concluded the German-Russian Pact, and can we forget that the diplomatic efforts of France and of Great Britain in respect to

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Greece, Roumania, Turkey, and Poland are subsequent both to the destruction of the Czechoslovakian State and to the, beginning of the German-Polish diplomatic conflict? Had not the British Prime Minister declared on 23rd March, 1939, before the House of Commons that British policy had only two aims: to prevent Germany from dominating Europe and "to oppose a method which, by the threat of force, obliged the weak States to renounce their independence"? What Hitler Germany called "encirclement" was simply a fence, belatedly built in an attempt to check measureless ambitions.

But German propaganda did not limit itself to this. Did we not see one of its spokesmen point to the contrast between the passivity of France and Great Britain in September, 1938, and the resistance which they showed in 1939 to the Hitler policy, wherefrom it was concluded that the peace would have been maintained if the Western Powers had exercised pressure on Poland to bring it to accept the German demands, as they had exercised pressure the previous year on Czechoslovakia? A strange argument, which is equivalent to saying that Germany would have been willing not to make war if all the Powers had yielded to her will. Is it an excuse for the perpetrators of these violations that France and Great Britain had, for a long time, opposed the violations of the rights of peoples by Germany merely by platonic protests?

Public opinion in France and Great Britain, deceived by Hitler's declarations, may have believed that the designs of National Socialism contemplated only the settlement of the fate of German minorities; it may have hoped that there was a limit to German ambitions; for, ignorant as they were of the secret plans of which we have proof to-day, France and Great Britain allowed Germany to rearm and reoccupy the Rhineland at the very moment when, according to the testimony of Ribbentrop, a military reaction on their part would, in March, 1936, have placed the Reich in a critical situation. They permitted the aggression of March and September, 1938, and it required the destruction of the Czechoslovakian State to make the scope of the German plans clear to the Allies. How can one be astonished that their attitude then changed, and they decided to resist the German plans? How could one still claim that the peace could have been "bought" in August, 1939, by concessions, since the German secret documents prove that Hitler was determined to attack Poland as early as May, 1939, and that he would have been "deeply disappointed" if she had yielded, and that he wished a general war?

In reality the war was implied by the coming to power of the National Socialists. Their doctrine inevitably led to it.

As Sir Hartley Shawcross forcefully brought out before your High Tribunal, a war of aggression is self-evidently a violation of International Law and, more particularly, a violation of the General Treaty for the Renouncement of War of 27th August, 1928, under the name of the Paris Pact, or the Briand-Kellogg Pact, of which Germany is one of the signatories. This Pact continues to constitute a part of International Law.

May I reread Article I of this Treaty?

"The High Contracting Parties solemnly declare, in the name of their respective peoples, that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their reciprocal relations."
Wars of aggression thus ceased, in 1928, to be lawful.

Sir Hartley Shawcross told you, with eloquence, that the Paris Pact, a new law of civilised nations, was the foundation of a better European order. The Paris Pact, which remains the fundamental charter of the law of war, indeed marks an essential step in the evolution of the relations between States. The Hague Convention had regulated the "law of the conduct of war." It had instituted the obligation of recourse to arbitration as a preliminary to any conflict. It had, essentially, established a distinction between acts, of war

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to which International Law and custom allow recourse and those which it prohibits. The Hague Convention did not even touch upon the principle of war which remained outside the legal sphere. This is, in fact, what is brought into being by the Paris Pact, which regulates "the right of declaration of war."

Since 1928 International Law of war has emerged from its framework of regulations. It has gone beyond the empiricism of The Hague Convention to qualify the legal foundation or recourse to force. Every war of aggression is illegal, and the men who bear the responsibility for bringing it about place themselves by their own will beyond the law.

What does this mean, if not that all acts, committed as a consequence of this aggression, for the carrying on of the struggle thus undertaken, will cease to have the juridical character of acts of war?

May I quote this well-known passage from Pascal?

"Why do you kill me? Do you not live on the other side of the water? My friend, if you lived on this side, I would be an assassin, and it would be unjust to kill you as I am doing, but since you live on the other side, I am an honourable man, and this is just."
Acts committed in the execution of a war are assaults on persons and goods which are themselves prohibited, but are sanctioned in all legislations. The state of war could make them legitimate only if the war itself was legitimate. Inasmuch as this is no longer the case, since the Briand- Kellogg Pact, these acts become purely and simply common law crimes. As Mr. Justice Jackson has already argued before you with irrefutable logic, any recourse to war is a recourse to means which are in themselves criminal.

This is the whole spirit of the Briand-Kellogg Pact. It was intended to deprive the States which accepted it of the right of having recourse, in their national interests, to a series of acts directed against the physical persons or against the properties of nationals of a foreign Power. Given this formal commitment, those who have ignored it have given the order to commit acts prohibited by the common law of civilised States, and here is involved no special rule of International Law like that which existed previously and which left the said acts of war untouched by any criminal qualifications.

A war perpetuated in violation of International Law no longer really possesses the juridical character of a war. It is truly an act of gangsterism, a systematically criminal undertaking.

This war, or this would-be war, is in itself not only a violation of International Law, but, indeed, a crime, since it signifies the outbreak of this systematically criminal enterprise.

Inasmuch as they could not legally have recourse to force, those who dictated it, and who were the very organs of the State bound by treaties, must be considered as the very source of the numerous assaults upon life and property that are severely punished by all penal law.

One cannot, of course, deduce, from the preceding, the individual responsibility of all the perpetrators of acts of violence. It is obvious that, in an organised modern State, responsibility is limited to those who act directly for the State, they alone being in a position to estimate the lawfulness of the orders given. They alone can be prosecuted and they must be prosecuted. International Law is so powerful that the prestige of the sovereignty of States cannot reduce it to impotence. It is not possible to maintain that crimes against International Law must escape repressive action because, on the one hand, the State is an entity to which one cannot impute criminal intention and upon which one cannot inflict punishment and, on the other, no individual can be held responsible for the acts of the State.

On the other hand, it cannot be objected that, despite the illegality of the principle of recourse to force by Germany, other States have admitted that war existed, and speak of the application of International Law in time of war. It

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must, in fact, be noted that, even in the case of civil war, the parties have often invoked these rules which, to a certain extent, canalise the use of force. This in no wise implies acquiescence in the principle of its use. Moreover, when Great Britain and France communicated to the League of Nations the fact that a state of war existed between them and Germany as on 3rd September, 1939, they also declared that, in committing an act of aggression against Poland, Germany had violated its obligations, assumed not only with regard to Poland but also with regard to the other signatories of the Paris Pact. From that moment on, Great Britain and France took cognisance, in some way, of the launching of an illegal war by Germany.

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