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As defined in paragraph (a) of Article 6 of the Nuremberg Charter, crimes against the peace were concerned either with, aggravation or participating in a conspiracy with the intention of perpetrating such acts of aggravation. As has been pointed out, premeditation had to be established.
This is roughly the way the indictment went, on this point: in the course of 1920, a number of not very respectable individuals, scattered all over Germany, arranged to meet at various places, principally in Munich, where they formed an association of malefactors whose purpose was to launch aggressive warfare against neighbouring states. Hitler became the head of this association in 1921. They must have been fairly astute, since they managed to give this association the baptismal name N.S.D.A.P. (National Sozialistische Deutsche Arbeiter Partei), and the appearance of a political party. They must have been fairly intelligent, too, since they understood that in order to launch aggressive warfare against neighbouring states, it had absolutely to be done in the name of Germany, which seemed to indicate that they must first seize power. Hence, the conspiracy against peace -- which in more modern and more diplomatic language would be called conspiracy against collective security -- was in addition found to be tied in with conspiracy against the internal security of a state. As for premeditation, that had been in the air for nearly twenty years. It must be conceded that rarely have criminals had so much time at their disposal, to take stock of their crime, and thus to become more guilty.
Taking things in chronological order, the Tribunal first had to pass judgement on the conditions under which the accused had seized, consolidated and maintained power, the methods used, particularly subversion by terrorism, the domestic doctrine that was applied, etc.
I would like to be clearly understood. I, too, condemn National Socialism, Fascism, Bolshevism, and in general all doctrines that, on the pretext of arousing a revolutionary spirit, preach insurrection and the seizure of power, by means of subversion by terrorism, doctrines to which, after success has been achieved in a blood bath, their followers are held fast by more or less open, and always ferocious, repression. But my purely philosophical censure is separated by a gulf from the condemnation of legal authority. I disapprove of their conception of life and their methods, but I also disapprove of the use of coercion against National Socialism, Bolshevism, Fascism, etc. to prevent them from expressing themselves, or to send them to the gallows, if by chance they lose the play-off in a tied match. In the name of that special liberty which belonged only to those who had won it, Saint Just [51] killed the French Revolution. Freedom belongs to everyone, even to those who fight against it. All these disoriented people are, furthermore, only the product of disoriented societies, whether it is a question of Spartacus or Hitler, Mussolini or Castro, Lenin or Franco. To call the one lot criminals and the other benefactors is only a political viewpoint, and will not stand up under examination. It is the same sociological problem for all, in that all are morally or philosophically culpable; they are all juridically innocent, which cannot be said of the social structures themselves, which are all morally, philosophically and juridically culpable. As long as there are societies which oppress, there will be rebels to resist with violence, and - alas! - many more rebels who are taken for revolutionaries, than there are true revolutionaries. Therefore, it is societies which must be attacked, not men. The guillotine, according to the wisdom of the ancients, can eliminate the criminal, but not the crime; nothing could be truer.
But these considerations are only subjective. In all objectivity it can rightly be claimed that among the judges one at least was not qualified to condemn the origins, ideas and methods of National Socialism, because his own origins, ideas and methods were in every point similar to those of National Socialism, and his place should have been on the bench of the accused, not that of the judges. And as for the others, they were hardly better qualified, since in their origins, ideas and methods they did not refuse to deal with that 'association of malefactors'; until 1939 its ambassadors and other emissaries were recognised and respected in all the capitals of the world and therefore in their own, and it had a place at Geneva in the League of Nations. It was even politely regretted when the 'association' departed slamming the door. And since then, what were they all busy with? Since when has International Law been entitled to sanction a government which a people, in one way or another, makes for itself, or to which it submits, beyond the right granted to the government of other peoples to recognise it or not, to maintain or not to maintain relations with it? Strictly speaking, one could understand if this had happened to the German people, because it is traditional for a victorious insurrection to massacre the representatives of the power it has overthrown or, the other way round, that the existing power massacres the leaders of an insurrection that failed. But for a Tribunal, international besides, not elected (except by force of arms and by itself), to declare itself qualified passes all understanding. So far as I know there never has been and never will be, I hope, any question of shouldering arms to free the Russians from Kruschev, the Cubans from Castro, or the Spaniards from Franco. We are no longer in the era of Metternich and the Congress of Vienna, and the Holy Alliance.
As for the seizure of power by subversion, the methods by which the accused were charged could not be compared with those employed by Kruschev in Hungary, Fidel Castro in Cuba, or [52] Franco in Spain. If it was actually a question of subversion by insurrectional violence up to November 8th, 1923 (the date of the Munich putsch that did not come off), from that date on the N.S.D.A.P. no longer considered taking over power except by constitutional and legal means. There is no question th@@@at its propaganda retained a certain violent character, that all the public meetings were conducted with the protection of its own police force (S.A. - Stürmabteilung, security service, then S.S. - Schutztaffel, elite security service), nor that these S.A. and S.S. were not armed to the teeth and had quick reflexes and a heavy hand. But it must also be taken into account that the actions of the N.S.D.A.P. were in response to the communists' threat to put a stop to the meetings with violence, and to achieve this by sending in elements just as heavily armed, just as quick in reflex and just as heavy-handed. On them, in addition, lay the responsibility for provocation.
With this exception, for which its adversaries were responsible, the N.S.D.A.P. pursued the conquest of power by those methods employed by all parties in all countries where party activity is free, that is, by means of elections. I do not deny that there was still a question of subversion. In my opinion, in all the democracies in the world, those who carry the elections are those who have the money, and are best able to- subvert public opinion through the written and spoken press, that is, the ones who can buy the greatest number of papers. This was not the case with the N.S.D.A.P. before 1930, and until then the election results were not brilliant. But, from 1930 on, once heavy industry had sided with them, everything changed, as can be seen by the German Reichstag election tables, 1924 to 1933 (compare the votes obtained by the N.S.D.A.P. with the number of unemployed at the time of voting):
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| May 4th, 1924 |
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| May 20th, 1926 |
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| September 14th, 1930 |
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| July 31st, 1932 |
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| November 6th, 1932 |
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| March 5th, 1933 |
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Heavy industry was just as worried by the mounting unemployment as the working class. Contemporary economists generally agree that when the percentage of unemployed exceeds 5% of the active population, there is a danger of social disorders. Precisely at the beginning of 1930 this margin of tolerance was not only reached but passed. Furthermore, the consequences of the Wall Street crash, which were beginning to be felt in Europe, gave a [53] disturbing indication that this rate was rising. Finally, after the fall of the German Mark, heavy industry attributed the collapse to the government parties, and registered their inability to correct the situation. In a word, they had no other card to play but National Socialism, and they played it, cautiously at first, behind the scenes, and then openly. That explains the reversal of the electoral trend after the ballot of September 14th, 1930.
In the second half of 1932, when the two dissolutions that brought about the balloting of July 31st and November 6th had shown that the possibility no longer existed of finding in the Reichstag a majority of the kind of the earlier parliamentary coalitions, the national parties (Centre Party and Catholic Bavarian party), whose leaders were respectively Hugenberg and von Papen, turned to the N.S.D.A.P. - the first just for a short time and the second for good. Thus it was that on January 30th., 1933, Hitler was appointed Reich Chancellor by old Marshal Hindenburg, then President of the Republic. (In similar circumstances, President Coty appointed General de Gaulle Prime Minister on June 30th, 1958). In the elections which took place the following March 5th, the Hitler-Papen tandem was triumphant: 288 seats for the first, 52 for the second, or a total of 340 out of the 648 seats of the Reichstag, thus an assured majority of 16 in the electoral body, 52% of the vote.
Up to this point everything took place in conformity with pure democratic tradition, as it is understood by democrats today.
If there was conspiracy the number of accomplices is impressive and it would be a mistake to think that they were all German. We know, as I have just said, that the accession to power of the N.S.D.A.P. was financially, and very substantially, assisted by German heavy industry. This aid came from the Central Propaganda Treasury, whose distributors were the banker Schroeder, and Hugenberg. Now, when the German Mark began to depreciate during the Weimar Republic, almost all the industries which contributed to that fund were subsidised by British or American banks or trust companies. For example, the American chemical consortium Dupont de Nemours, and the English trust Imperial Chemical Industry, subsidised I.G. Farben, with whom they shared the world explosives market, and the Dillon Bank of New York subsidised the Vereinigte Stahlwerke, a German steel trust. Others were subsidised by Morgan or Rockefeller, etc. Thus, the Pound and the Dollar were part of the conspiracy which brought Hitler to power. But no one has heard that the Dupont de Nemours, the Dillons, Morgans, Rockefellers, etc. were summoned to appear as accomplices before the Nuremberg Tribunal.
At the time when this conspiracy was directed against collective security, that 'association of malefactors' did not lack for political aid and abetment from outside; Britain in the matter of rearmament (naval agreement of June 18th, 1935), Russia in the matter of aggression (German-Soviet pact and the partition of [54] Poland), even France, if you take into consideration, a propos of Munich, the condemning of pre-war governments by post-war governments. But, for all that, there was no question of having them leave the judges' bench for that of the defendants.
Here we touch on the heart of the problem of crime against peace. This is described in Article 6, paragraph a. of the Indictment as follows:
The aims and purposes of the Nazi Party and of the defendants and divers other persons from time to time associated as leaders, members, supporters or adherents of the Nazi Party (hereinafter called collectively the "Nazi conspirators") were, or came to be, to accomplish the following by any means deemed opportune, including unlawful means, and contemplating ultimate resort to threat of force, force and aggressive war:
1. To abrogate and overthrow the Treaty of Versailles and its restrictions upon the miliary armament and activity of Germany;
2. To acquire the territories lost by Germany as the result of the World War of 1914-18 and other territories in Europe asserted by the Nazi conspirators to be occupied principally by so-called "racial Germans";
3. To acquire still further territories in continental Europe and elsewhere claimed by the Nazi conspirators to be required by the "racial Germans" as "Lebensraum "or living space . . .
The first point was aimed at Germany's secret rearmament from 1933 to 1935, after that carried on openly; her departure from the League of Nations on October 14th, 1933; the decision to build up a military air force, March 10th, 1935; compulsory military service restored on the 16th of the same month, with a peace-time strength fixed at 500,000 men; the re-occupation of the Rhineland on March 7th, 1936.
The second point was aimed principally at Silesia, divided up among the tiny artificial states created by the Treaties of Versailles and Saint Germain, the Danzig corridor, Teschen, Malmédy, etc. It might have included the Saar, too, if the Saar had not almost unanimously voted by plebiscite, on January 13th, 1935, to return to Germany.
As for the third point, which embraced all the territories conquered by the German armies in operations against Poland, Russia, Norway, Denmark, Luxembourg, Belgium, the Netherlands, Greece, Yugoslavia, etc., which should have been dealt with in peace treaties, once the war was over, it stated precisely how the responsibility for everything that had happened fell solely on Germany:
"(Their) aims and purposes were not fixed or static but evolved and expanded as they acquired progressively greater power and became able to make more effective application of threats of force and threats of aggressive war. When their expanding aims and purposes became finally so great as to provoke such strength of resistance as could be overthrown by armed force and aggressive [55] war, and not simply by the opportunistic methods theretofore used, such as fraud, deceit, threats, intimidation, fifth column activities, and propaganda, the Nazi conspirators deliberately planned, determined upon, and launched their aggressive wars and wars in violation of international treaties, agreements..."
The Tribunal acceded to these conclusions arrived at by the prosecution, and recorded them as justified in the judgement rendered (Volume 1, pp. 184 ff). It appeared clear to them, from the documents produced from the beginning, that there really had a conspiracy hatched by the Germans in 1920, with the intention of committing these crimes, of which they were accused, and that they had committed them deliberately and in full knowledge. The most important among these documents were: the programme of the N.S.D.A.P. made public in Munich on February 25th, 1920 (in 25 points, of which the first three were considered particularly incriminating); a number of extracts, out of context, from the speeches of Hitler to the Reichstag, in the Sportspalast, or in other public places; a number of the same person's talks to the General Staff, in particular that of November 5th, 1937 (Hossbach document, P.S. 386, original Volume XXXVII, pp. 546 and 556, and in French, Volume II, pp. 281-288), and on August 22nd, 1939, for which three contradictory documents existed. The two most contradictory were retained by the Tribunal (P.S. 798, Volume XXVI, pp. 338-344, and P.S. 1014, Volume XXVI, pp. 523-524).
And now I would like to call attention to something all these documents had in common: the distortions made of them which disappeared in the translations and which formed the basis - the distortions, not the texts themselves! - of the argument maintained by the Prosecution and upheld by the court.
For example, point 1 of the N.S.D.A.P. programme of February 20th, 1920, reads: "Wir forden den Zusammenschluss aller Deutschen auf Grund des Selbstbestimmungsrechtes der Voelker zu einen Gross-Deutschland." (We demand the union of all Germans on the basis of the right of self-determination of peoples into a Greater Germany.) Used at the trial, we find the following translation: "Nous demandons la réunion de tous les Allemands dans la 'Plus Grande Allemagne' en accord avec le principe du droit des peuples à disposer d'eux-mêmes." (We demand the reunion of all Germans into the "Greater Germany" in accordance with the principle of the right of self-determination of peoples.) One is obliged to see that by putting quotation marks around the words "Greater Germany" where none existed in the original a change which alters the meaning of the text has been made.
The same holds for point 3, where the original reads: "Wir forden Land und Boden (Kolonien) zur Ernaehrung unseres Volkes und Ansiedlung unseres Bevolkerungsüberschusses," (We demand land and soil (colonies) for the nourishment of our people and the settlement of our excess population).
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"Nous demandons de la terre et des territoires pour nourrir notre peuple et la possibilité d'employer à la colonisation l'excédent de notre population." (Volume II, p. 185). (We demand land and territories for the nourishment of our people, and the possibility to employ our excess population in colonisation). Here the suppression of the parentheses and the word between them shifted the main point of the article to second importance, namely the colonies.
The same thing again with the Hossbach document, a series of conjectures written in the hypothetical conditional mood, but translated as a series of statements in the present tense, from which it was deduced at Nuremberg that Hitler had already decided by November 5th, 1937, as head of the government, to resort to that war which he (according to the indictment), as head of the party, had decided on back in 1920, as the only way to resolve the German problem.
The Hossbach document was considered most accusatory because of this sentence: "La question allemande ne pourrait être résolue que par la force, laquelle ne va jamais sans risques." (The German problem may not be resolved except by force, which is always attended by risks) which was translated as "La question allemande ne PEUT être résolue, etc. " (The German problem can only be solved by, etc.) At the time all politicians everywhere, with a few exceptions, formed the same opinion, "the only way to stop Germany from realising her objectives is with force." This was an application of the famous Roman adage, Si vis pacem para bellum (If you wish for peace, prepare for war), which was and still is the rule all over the world, witness General de Gaulle's New Year Message to the French troops on January 1st, 1962. "Prepare yourselves," he said, "prepare yourselves for great warrior actions which may be imposed upon the nation, and her European allies. That the destiny of France is linked with her military power has never been more true." This is a good deal more specific than the words the Hossbach paper puts into Hitler's mouth as he addresses his military commanders. Should we conclude that if this war for which they are to be prepared could not be averted, and should end in another Nuremberg, the General would be hanged? And if one day war breaks out between the U.S.A. and Russia (a war which, like the war of 1939-45, could not fail at once to become a World War) will Kruschev's famous speech to the U.S. in 1961 be remembered when, striking at his desk with his shoe, he threatened the United States with complete destruction?
It should be further clearly stated that, the following year, when it became a question of translating into action the first of the eventualities hypothesised in the Hossbach document (Czechoslovakia), Keitel's directive determining the preparatory steps to be taken, specified on December 17th, 1938, "Externally it must be very clear that it is only a question of a peaceful action, and not of a military operation." (Not retained at Nuremberg by [57] the Prosecution or the court.)
We have an explanation of the interpretation of the text of the Hossbach document, given by W. L. Shirer -- unless it was given by the French translator, since it does not appear in the German edition -- in a footnote to p. 333 (p. 305, American edition) in his book The Rise and Fall of the Third Reich.
"Almost all the German records of the remarks of Hitler and of others in private talks were written down in the third person as indirect discourse, though frequently they abruptly slipped into direct, first-person discourse without any change of punctuation. This question posed a problem for American English.
"Because I wanted to preserve the accuracy of the original document and the exact wording used or recorded, I decided it was best to refrain from tampering with these accounts by rendering them into first-person direct discourse or by excluding them from within quotation marks. In the latter case it would have looked as though I were indulging in liberal paraphrasing when I was not.
"It is largely a matter in the German records of verb tenses being changed by the actual recorders from present to past and of changing the first-person pronoun to third-person. If this is borne in mind there will not be, I believe, any confusion. "
It was Hossbach, the recorder of the report, who used the wrong tense, as Mr. Shirer knows better than anyone else. The prosecutors and the judges knew it too. I think falsification could hardly be more ingenuously confessed. Thus, at least on this point, the defendants were condemned on the basis of what Hitler was supposed to have said, not on what he did say. If they knew that their report was in addition in no way official, that it was written down on the 10th of November 1937, five days later, from notes hastily taken on the 5th, that it was not read over by the person concerned, nor brought to anyone's attention (Volume XIV, p. 40) the historian and judge of the future will certainly be startled. And the same holds for the Schmundt document.
One last comment a propos of this document. On May 16th, 1946, Dr. Siemers, counsel for Admiral Raeder, cast a doubt on the authenticity of the document because it was not labelled "State Secret" (Volume XIV, p. 40). A written deposition was requested of the author, who had been located, but not his appearance in court; that would have been too dangerous. On the 18th of May, 1946, he said that he could not guarantee that the text presented to the Tribunal.was an exact copy of his notes (Volume XLII, pp. 228-230).
The case of documents P.S. 798 and 1014 is even more typical. On August 22nd, 1939, Hitler gave a talk to his military leaders which, it is very likely, no one was asked to type out. But, on November 26th, 1945, the Prosecution preserved three versions of the talk, all of which were claimed to be authentic (probably they had not been read) even though they were obviously in [58] contradiction to each other. Moreover, not one of them had been communicated to the Defence beforehand, as required by the Charter, although all three had been released to the press. At the end of the reading of the second version the Defence objected, arguing first that procedure had been violated, second that it was not possible to put in evidence two contradictory documents concerning the same event. The objection was overruled. However, the third version was dropped. And until May 16th, 1946, for nearly seven months, the Prosecution maintained its general thesis, leaning, to the applause of the international press, first on one version and then on the other. Each time the Defence naturally wanted to object, and each time it was cut short.
Finally on May 16th, 1946, Dr. Siemers, counsel for Raeder, who was implicated in both documents, became angry. He was not, however, being difficult since he was quite willing to have one document accepted, but not both. Nothing could be more logical.
The President saw that this time he would not desist. "What are your reasons?" he finally asked.
Dr. Siemers: "...this document (he was speaking of the more vulnerable, P.S. 1014) is nothing but two pieces of paper headed "Second Speech by the Führer, on 22 August, 1939." The original is without a heading, has no file number, no diary number, no stamp 'secret', no signature, no date... On all the documents which the Prosecutor has submitted, even in the case of minutes, you will find the date of the meeting, that of the drafting of the minutes, the place where the minutes were typed, the name of the person who typed them, a stamp 'secret', or some other. Furthermore, Hitler certainly talked for two and a half hours. I believe it is also generally known that Hitler spoke very fast. It is out of the question that the minutes could be only 1 and 1/2 pages long if they are to give the meaning and content of a speech which lasted 2 and 1/4 hours. Later, I will submit the original of document P.S. 798. I am not an expert on handwriting or typewriters, but it is plain to see that this document, which bears no signature and whose origin we do not know, was written on the same kind of paper and with the same typewriter." (Volume XIV, p. 51).
A long discussion began. It will suffice to give the argument of the Prosecution presented by Thomas J. Dodd, American Trial Counsel who, after having said that he would make an effort "to find out where this document came from, that all that he knew was that it had been captured in the German archives, and, as such, was to be admitted," concluded:
"...whether true or not, it is a question of weight. On my respectful submission, we cannot go into intrinsic comparisons in order to decide the admissibility of the document. We would have a great deal to do if we compared the documents in detail. It is a question we do not have to discuss." (Volume XIV, p. 53).
A last objection by the Defence, then the President: "Yes, very well. The request to strike out the minutes of document P.S. 1014 [59] is denied."
One document was as false as the other, and if the Tribunal had admitted it about the second, given what Dr. Siemers said, they would have had to admit it about the first. They did not fall into the trap. There was another reason for having the second document admitted, in spite of the flagrant contradiction, and that was that it contained three important sentences, not found in the first: "Destruction of Poland, main objective. Aim: elimination of vital forces, not an attempt to arrive at a certain line... close your hearts to pity, adopt a brutal attitude I am only afraid that at the last minute some swine will propose an arbitration plan."
In his anxiety, the falsifier had simply overdone it. Doubtless he had observed, when it was done, that he had been too modest in the first document and wanted to make up for it in the second. And in his zeal he did not notice that the second contradicted the first.
We would never finish if we tried to cite the distortions and the forgeries. We will see further on, in the chapter on "Crimes against Humanity", that M. Edgar Faure broke all records with the report, duly dated and signed (by someone dead, of course) of an anti-Jewish congress which took place at Krumheubel on April 3rd and 4th, 1944, and which was proved, before a full court on April 2nd, 1946 (Volume X, p. 420), never to have taken place'
I would like to add this concerning warped documents. One day when he was having a little vacation from the trial in Paris, a former friend, a journalist representing one of the big Paris newspapers at Nuremberg, told me how surprised he was at the attitude of the defendants. "It's funny," he said, "the texts are read to them in their own language, and naturally they understand them. Then when the arguments against them in the texts are taken up one by one, they act as if they no longer understood, and their counsels even more so. You say they do not understand... and I say. 'bosh'!"
Just reading these documents, which were not made public at the time, explains everything. If one spoke of them in Grande Allemagne and then argued Plus Grande Allemagne, or of Colonies to argue Silesia or Poland or the Ukraine, or if a text was read to them in the conditional tense and then arguments were drawn from it in the present, how could they understand?
This process of reading to the German defandants a text written in their mother tongue asking them to acknowledge it as authentic, then producing English, Russian and French translations which had nothing in common with the original, then taking from these translations arguments which were then re-translated into German, was not without, as I have said, a certain Machiavellianism. Many distortions of texts were corrected by the defendants or their counsel acting together -- in a way in flagrante dilecto -- but there were so many that inevitably several escaped them, and it was their bad luck that they were not the least important.
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Like war crimes, crimes of peace require that we go into the materiality
of the facts. Naturally, we will not go into detail any more than
we need to give the reader a general picture of the whole, just
enough to give him something to think about.
The Lion in the fable of La Fontaine, after he had been hunting with the Heifer, the Nanny and the Ewe, divided up the spoils into four parts and explained to them, if I recall correctly, that the first went to him because he was the King, the second because it was his share, the third because he was the strongest, and as to the fourth, he would at once throttle anyone making a claim to it. It did not occur to the writer of the fable to assemble a Court of Justice to condemn this marked breach of the laws and customs of hunting. If he had, he would have found some jurist Fox to claim that there was an infringement, that this infringement constituted one hunting crime, and surely not four. For the jurist Fox as for the defendant Lion, the fraudulent division into four parts of the spoils of the hunt, in this case the Deer, left one, the body of the crime, and also only one infringement (in this case the right of the strongest) analysed and redivised under only four explanatory headings.
To claim that this destruction of the Versailles Treaty, the rearmament of Germany, the acquisition of territories lost as a result of the First World War, and the acquisitions of others for expansion, coupled with the deliberate intention of making aggressive wars, added up to so many counts of indictment was perhaps an ingenious idea. If it had not been for the overcrowded and overcharged atmosphere in which the trial took place - that extraordinary proliferation of fish-wives, stocking knitters and the like who invaded that improvised court, and who fed the interest of the lowest and highest - even the least informed spectator would quickly have grasped that if crime existed, buried under this mass of headings, there was in reality only one, the destruction of the Versailles Treaty, or the right of the strongest of the fable.
To continue the analogy of the fable: imagine that the democratic Heifer, Nanny and Ewe, having been joined by a Jenny just for the sake of being represented, a Turkey because every farce has a fool, a Fox for the scenery, and a Wolf for the moral, have managed to catch the Lion in a snare, firmly tied to the ground, and that they put him to death little by little, taking care to prolong the spectacle, all of them gathering round every day so as to miss nothing -- we would have a League of Nations of animals, in which a Monkey all bedecked could well play the part of the mace-bearer, and the press could be represented by an old cackling hen. Imagine?.. this place in the concert of nations, this Lion in a snare -- did not the Treaty of Versailles want to condemn Germany to just about exactly that? One day, maggot-ridden and half dead, the Lion managed to break his leash, that is all. As in the world of La Fontaine, an English Rat, or an American, if not one of their interbreeding, came out of his hole [61] at the right moment and gnawed through the rope at just the right spot.
To return to the world of men, the question which presents itself is whether the German Lion had the right to break out of the snare, and this question on another level is that of the sacredness of treaties, especially peace treaties.
A treaty does not necessarily have to be the written expression of a relation of forces, e.g. a customs conventions, the European Common Market. In the case of the European Common Market it must be admitted that it was imposed on the Six by an outside danger that threatened all of them and that Germany, although deriving little advantage from this agreement, nonetheless was forced into it by the new situation in the world in which she found herself as a result of World War II, and because Britain's non-cooperation would be tantamount to her exclusion from the most important markets on the Continent. There are relations of forces that are purely economic. In the beginning they are all of this character, which they retain as long as the problems inherent in commerce and the conquest of markets can be solved peaceably, and merchants do not request the State to send soldiers to help them to keep what they have, or to acquire a market prohibited to them, or that they have lost in price competition. Contingent on these conditions, treaties which are made or dissolved peaceably are quite imaginable and, insofar as the interests involved are only of relative importance, they are fairly common. It is remarkable that on that score no jurist has thought of invoking the argument of Eternal Inviolability.
The same does not hold for peace treaties, since they are always the written expression of relations of military forces, in that there is always a conqueror who imposes his will on the vanquished, who in turn submits only with the knife at his throat. Ceaselessly and eternally denounced in the name of Ethics, the process has never been codified in the name of Law, in the sense of the limitation of the rights of the conqueror and the protection of the inalienable rights of the vanquished.
Until the beginning of this century, the tradition of ages has been that the superior interests of State were reasons enough for declaring war, and no moral or judicial justification was necessary. The savagery of the fighting was limited only by the stage of invention in the art of destruction at the time. One ransomed oneself or was ransomed at the discretion of the conqueror, depending on how the battle had turned out. White flags, truces, treaties... from the declaration of war to the conclusion of peace, everything unfolded according to a kind of code, honour handed down from chivalry. There was always a traitorous knight, who was of course always the enemy. After the signing of the peace, which ended the war, the adversaries separated according to convention, shook each other ceremoniously by the hand, the loser accepting the conditions of the victor, wrapping himself in [62] his dignity, and both promising to see each other again some day. The Franco-Prussian War of 1870-71 was declared and conducted, and peace was concluded in that style. And even though in the meantime many attempts had been made, especially at The Hague, to give war a code, drawn up by jurists and not by men of the sword, so, too, was the war of 1914-1918, at least in its preparation and declaration. Germany did nothing at Frankfurt to hinder the policy of revenge openly carried on by Poincaré -- unquestionably a war criminal in the terms of the Nuremberg Charter! -- but she took umbrage in an untraditional way, by threatening to reply with more of the same. And she declared herself ready, if necessary, to pick up the gauntlet which for many years had been daily thrown at her. The intangibility of treaties was not an article of Law, but an established fact which, in spite of international conventions, it was admitted on both sides could only last until wars changed it. Just as Poincaré proclaimed that the Frankfurt treaty was a disgrace for France, and that it should be destroyed by force of arms, so it was in Germany, where Bethmann-Hollweg allegedly called all the other treaties that bound them in Central and Balkan Europe, in Africa and the Near East, "scraps of paper." The phrase went around the world in the press and even in schools and universities. In reality, Bethmann-Hollweg had only said "a bit of paper." (Renouvin)
In order to decide whether these examples are exceptions which permit no generalisations, or on the contrary are case-types on which rules can be based, the reader can ask himself what public opinion today would think of jurists who proclaimed as sacrosanct the following: the treaty of Verdun (843, partition of Charlemagne's empire), the treaty of Cateau-Cambrésis (1559, end of the Italian wars, and the cleaning up of the unhappy after effects of the Hundred Years War, which had come to an end in 1453 without any treaty other than the Treaty of Troyes of 1429, from which the King of England derived the title of King of France, still part of the realm of England at the end of the past century), the treaty of Westphalia (1648, end of the Thirty Years War), the treaty of Vienna (1814-15, end of the Napoleonic Wars) etc. But, in fact, there is no middle way. If the inviolability of treaties is a law, all treaties are inviolable without exception, each treaty being the negation of the inviolability of the preceding one. It is a fact that while the jurists at Nuremberg were talking about the sacredness of treaties, they really had in mind a general rule for which the Treaty of Versailles served as the only basis and only application. But why Versailles rather than Frankfurt, or Frankfurt rather than Vienna or Verdun?
It is clear that the argument of the inviolability of the single Versailles Treaty is without moral, historic or legal grounds, that it rests solely on the chances of war, and that if the war had been won by the losers, things would be reversed and no fewer or less well qualified jurists would be upholding the opposite argument.
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On the other hand, it is fairly elastic, taking into account the fact that in the matter of monetary sanctions, the same judges did not consider the Treaty inviolable since, from 1919 to 1930, the considerable indemnities which Germany was sentenced to pay ranged, with their acquiescence, from 132 billion gold Marks (1) to a sum close to zero; and in its territorial clauses it was only in the case of Germany that it was inviolable, since today all those clauses have been annulled - with new and appreciable aggravations - to the profit of Russia.
I have already said that Britain, with the backing of the United States, never considered the military clauses inviolable, not even under Hitler (Naval Agreement of June 1935). As for Russia, until September 18th, 1934 when she was admitted to the League at Litvinov's request and on the recommendation of M. Yvon Delbos and M. Barthou, the Versailles Treaty was in Russian eyes a "dictate of hate and plunder" and the League itself a "League of Bandits." On April 17th, 1922, acting on this main idea, she even signed the Rapallo Treaty with Germany (completed by the first German-Soviet non-aggression pact, April 24th, 1926), the first act of her then foreign policy which was to gather into one bloc all the defeated countries of the war of 1914-1918 who were oppressed by the "dictate of the bandit conquerors." By which it can be seen that in the view of at least three of the judges at Nuremberg this elastic inviolability of the Treaty of Versailles was also in eclipse.
So, if I now conclude that no treaty can be considered sacred, I do not think I can be accused of saying so improperly. Up until Versailles, treaties were not inviolable because they were the expression of relations of force, which are not immutable. Each moment of history has its own possibility of an outburst of violence which sweeps away the treaty which a preceding outburst of violence has produced. It is a vicious circle. As with all vicious circles you cannot escape from it without breaking it, and perhaps now is the time to survey the attempts that have been made in this direction. And it will be seen that the Treaty of Versailles and the Nuremberg Trial have been placed in a quite curious and original context.
At the end of the 19th and beginning of the 20th centuries Intellectual circles were seized with a fit of conscience over war. This reached the workers and public opinion generally and caused the leading persons of nearly all countries to envisage a humanisation of war which would lead progressively to its being outlawed. The conventions adopted at the international conferences at The Hague in 1899 and 1907 should be viewed as materialisations of that fit of conscience. A paradox: it was not France that boasted [64] of having originated all the generous ideas, but Tsarist Russia which took the initiative in this movement in 1899; and in 1907, once again it was not France but the United States which took it up. France was busy preparing her revenge for Frankfurt, and she threw herself into that body and soul, while at the same time she participated in the conferences and the decisions made there. Another paradox: during all this period, as public opinion favoured these conferences more and more (27 participants in 1899, 44 in 1907), and specific measures putting a limitation on recourse to war which tended to eliminate or restrict its inhumanity were adopted in the texts, at the same time all the dangers increased, accumulated and ended by making war inevitable in 1914. Many worthy people thought at that time that the real aim in the minds of most of the participants of The Hague conference was to lay a false scent.
In short, there was fighting from August 2nd, 1914 until November 11th, 1918. The Peace Conference opened at Paris on January 19th, 1919 and on June 28th the treaty which put an official end to the war was signed at Versailles. In the memory of warriors such a humiliation had never been inflicted on the loser, and in the memory of jurists never was there such an infringement of the right of self-determination of people - except, of course, in 1945 and after. The military clauses alone were acceptable in that they recognised reciprocity. But for the rest, one cannot compare without a sense of amazement the 132 billion gold Marks, or the 165 billion gold francs (2) demanded of Germany in reparations, with the 5 billion in the same currency which Germany exacted from France at Frankfurt (and which brought forth screams from Thiers) nor the amputations of territory, the justifications for them, and what happened to them.
Right after the signing of the Versailles Treaty the victors found themselves in this situation. Having gone to war for "law and civilisation", in the spirit created by the Hague conferences, and against the "Might makes Right" formula attributed to Kaiser Wilhelm II and his Chancellor, Bethmann-Hollweg, they could do no better than themselves to apply the latter formula to a beaten Germany. And yet a unique opportunity existed after the war to break the vicious circle, which could not be done before, by ignoring the results achieved by force of arms and making a treaty with clauses to show that, in conformity with the war aims of the Allies, Right made Might. One has only to read the Fourteen Points to see that that is what President Wilson would have liked to see, and it was the only possible way to get out of the vicious circle. And what a lesson the Allies could have taught the world! Instead of that... but I do not wish to say that then the Treaty of Versailles would have been sacrosanct! The law of force having been forever excluded from international life, they had only to [65] modify it from time to time through the instrument of the Permanent Court of Justice instituted at The Hague in 1899, as required by the changing conditions in society, the structures of society being no more stable than the relationships of force.
The Preamble of the Treaty of Versailles, framed by the Pact of the League of Nations and inseparable from it, did contain an article - No. 19 - making provision for its revision in case it ever became decrepit. The many requests for revision which Germany presented from 1920 to 1939 were based on article 19 -- the Treaty was indeed decrepit, from the very hour that it was signed! It will be easily understood, I think, that no more could a treaty which was acceptable in feudal times (whether it was the expression of force or of general consent freely given) today serve to govern relations among the great modern nations, than could a treaty, even though accepted with universal consent in 1919, claim to control in its propositions what might become of the world, say, two hundred years later.
No. If treaties are not 'scraps of paper', neither can they ever be sets of unalterable rules in a world that is not unalterable. The only problem is that of their periodic revision and there are two alternatives. The periodic revision will be made by relations of force and by war, or by international conferences of the Hague type.
Once peace was restored it was thought at Geneva that, in the bosom of the League instituted by the Versailles Treaty, those conversations begun at The Hague could be resumed. They led to nothing, precisely because they took place in the presence of both relations of forces and general consent. On the one side there were the former Allies, victors armed to the teeth and therefore in a position to force acceptance of their most unrealistic stands; on the other there was Germany disarmed and without recourse, obliged to bend to the others' wishes like the Lion of La Fontaine in his snare, if a Rat had not opportunely come on the scene.
The situation was untenable, all the more so because it constituted a marked violation on the part of the victors of the Treaty of Versailles, of which the Preamble to the five sections of military articles said: "In view of making possible preparation for a limitation of armaments of all nations, Germany undertakes to observe strictly the military, naval and air clauses hereinafter stipulated. "
Germany having kept her promises and disarmed to the limit imposed by the Versailles Treaty, the victors no longer wished to keep theirs -- especially France, followed by the others not wishing to be disobliging or interfere with her interests. We have seen that Britain, at least until 1935, saw no objection.
The error -- not to call it worse -- of the prosecution and judges at Nuremberg was to claim the right to express opinions, as if the Treaty of Versailles had not been the expression of a relation of forces, as if those who drew up the articles had not been the first [66] to break them, as if in Germany the decision to destroy it had not been a reply to the violations initially committed by the victors.
This sort of reply is found in fact in all the phases of German rearmament, imputed to Germany as crimes by the Indictment.
1. October 14th, 1933. Germany leaves the League of Nations. For years Germany discharged the military clauses of the Treaty of Versailles; the Treaty of Locarno (October 16th, 1925) took legal cognisance of the fact, and Marshal Foch confirmed it in 1927 on his return from a tour of inspection in Germany. In spite of that, France refused to fulfil those same clauses incumbent on her and in spite of the objections of Britain and the United States. The League was powerless to bend France, but maintained its hostile attitude to Germany with regard to equality of rights. The disarmament conference came to grief on this problem. The MacDonald Plan for the limitation of armaments (abolition of all offensive weapons, bombers, tanks, heavy artillery etc.) was not accepted by France. On May 18th, 1933, President Roosevelt addressed the heads of state of 44 nations with a message which took up again the MacDonald Plan. On May 17th, Hitler gave a speech to the Reichstag which was an acceptance of the MacDonald Plan. France did not budge, the League was helpless to persuade her, did not even try and insisted on maintaining her stand to refuse equal rights to Germany, whose doctrine was that either France and the other nations keep to the engagements undertaken at Versailles and also disarm, or she would re-arm. When this point of view was not admitted, Germany slammed the door on the League on October 14th, 1933. On November 12th this decision to quit the League was approved by a plebiscite of 95% of the registered voters.
In the House of Commons on October 15th, Lloyd George put the responsibility on France with these words: "For years France has refused to keep her promise to disarm, and since Locarno she has not ceased to increase her armaments year after year." This added a violation of the spirit of Locarno to that of the Treaty of Versailles. And in his book La France a sauvé l'Europe, M. Paul Reynaud admits that this attitude on the part of France made her "seem responsible, in the eyes of the world, for the arms race, which was clearly leading to war." (Volume I, p. 294)
2. March 10th-16th, 1935, Germany builds a Military Force, restores compulsory Military Service and brings the Peace-Time strength of the German Army to 500,000. On the 6th of February 1934, the Doumergue government came to power in France. Barthou was the Minister for Foreign Affairs. One of his acts was to reverse the Locarno policy and substitute the encirclement of Germany for it, preparing the way for a rapprochement with Soviet Russia, which he later got admitted into the League of Nations on September 18th. In March 1935, public pronouncements leading to the Franco-Soviet Pact signed the following May 2nd, were in full flow. Stalin declared that France "was [67] entitled to bring her arms to the level of her security needs"; lengthening the term of military service in France, etc., was achieved. Taking cognisance of this breach of the Versailles and Locarno Treaties, Hitler officially repudiated all the military clauses of the Versailles Treaty, decided to create an air fleet and to restore compulsory military service. If the security of France called for action, so did that of Germany, encircled as it was.
It must be observed that while throwing the responsibility on to France - and rightly, that is indisputable - for a state of affairs that continually worsened, Britain (which at Nuremberg accused the Germans of violating the Treaty of Versailles) was at the same time not so very unforgiving, since she had concluded a naval agreement with Germany in June 1935 which notably increased Germany's naval tonnage, both surface and submarine, in comparison with that allowed at Versailles. The creation of an air. fleet, the re-establishment of compulsory military service, the increase of the standing military strength were imputed to Germany as crimes, but obviously not the naval re-armament which was, moreover, done without the assent of France. Britain would have to have been accused of complicity and Britain was one of the judges. There were State's pardons -- even at Nuremberg!
3. March 7th, 1936. Germany re-occupied "symbolically" the Demilitarised Rhineland. It was a marked infringement of the Treaty of Versailles. It was the logical outcome of what preceded and Germany's reply to the last act, the signing of the Franco-Soviet Pact on May 2nd, 1935. This pact was not ratified by the French parliament until February 27th, 1936. Hitler had expected a reversal. Contrary to his hopes, it was ratified by 353 votes to 164. On February 21st, Hitler had said to Bertrand de Jouvenel who had come to interview him for Paris-Midi:
"You see before you a Germany nine-tenths of whose people have confidence in their leader, and this leader says to you: Let us be friends. Yes, I know what all of you think. You say: Hitler makes declarations of peace to us, but is it in good faith? Is he .sincere? Consider! Would it not be ruinous for both our countries we were to tear each other to pieces again on the battlefield?
My personal efforts towards such a rapprochment will always continue, however. In fact, this more than deplorable pact would naturally create a new situation. You are letting yourselves be dragged into a diplomatic game with a power whose sole aim is to sow disorder among the great European nations, a disorder from which she will benefit.
There are in the lives of nations decisive occasions. Today France can, if she will, forever put an end to that 'German peril' which generations of your children learn to fear. You can remove the heavy burden which weighs on the history of France - the opportunity is given to all of you. If you do not seize it, think of your responsibility to your children."
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For fear that this might compromise the vote on which Hitler had
placed so much hope - there was little danger that it could --
the government intervened with the director of Paris-Midi
to the effect that the interview which was to have appeared on
the 23rd, only came out on February 28th, that is, the day after
the vote in Parliament. There was not long to wait for Hitler's
answer to the manoeuvre of the French government and the vote
of Parliament. On the 7th of March he re-occupied the Rhineland
with military forces.
And so it was with all the grievances enumerated against the defendants at Nuremberg in the Indictment, and sustained by the judgement. It was enough to cite those few examples to demonstrate that in the infernal arms race which led to the war, Germany -- even Hitler's Germany -- was not alone in bearing all responsibility. The judges played as great a part as the accused and, to be more precise, the initial responsibility was incumbent on France because she alone had prevented the Disarmament Conference from reaching conclusions, conclusions which she alone did not want.
It is often asked what was the reason for France's obstinacy in not desiring disarmament. The answer to this question is given in the Journal officiel de la République française of March 26th, 1938, which was addressed to the Ministry of National Economy - at the request of Senator Paul Laffont -- concerning the quantities of iron ore exported to Germany from France. since 1934, and obtained the following information:
"The amounts of iron ore (No. 204, customs' tariff) exported to Germany during 1934, 1935, 1936 and 1937, are recorded in the following table:
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One can estimate the loss M. Francois de Wendel and his associates in iron metallurgy, of Meurthe-et-Moselle, would have sustained if France had not furnished Germany the wherewithal for re-arming. To get an exact picture, compare the export figures for the year before Germany decided to re-arm (1934) and the year after (1935).
Jean Gautier-Boissière and Michel Alexandre, from whom I have borrowed this account, conclude: "It will be a consolation to those French soldiers who suffered wounds during the 1939-40 campaign to know that the projectiles that mutilated them were made out of the ore patriotically exported by M. Franqois de Wendel and his metallurgical associates of Meurthe-et-Moselle."
M. François de Wendel was a person of considerable influence in French politics between the two wars. On January 11th, 1923, in order to procure for him at a good price the Rhine [69] Westphalian coke indispensable for Lorraine iron, without forcing him to export, M. Poincaré had the Ruhr occupied, on the pretext that a delivery of telegraph poles made by Germany as part of her reparations was incomplete. When this scheme failed, rather than force him to pay the asked price for German coke, his friend Barthou, who saw eye to eye with him, did not hesitate to torpedo the Disarmament Conference in order to get a good customer, in the person of Germany, for his iron ore.
No one has heard it said that Mr. François de Wendel was cited by the judges at Nuremberg to appear as an accomplice.
Nor has that been heard about the Dupont de Nemours, the directors of the English Imperial Chemical Industry, the Dillon Bank, the Morgans, the Rockefellers etc. who made loans to the German industries, whose propaganda funds fed the N.S.D.A.P.
To complete the picture we must now return to an event in connection with breaches of the Treaty of Versailles called "Crimes against peace," in Part a. of Article 6, as interpreted by the Indictment: the Anglo-German Naval Agreement of June 1935, for which Britain could certainly have been accused of conspiracy with Nazism, since it was concluded with the Nazi government. On July 17th, 1937 this agreement was re-affirmed, in a sense favourable to Germany. Through this diplomatic instrument, both Britain and Germany increased their naval armament in flagrant violation of the preamble to the military articles of the Treaty of Versailles. France opposed it and the United States did not look favourably upon it, but they both made the best of it and turned a blind eye. As for Russia, she howled at the time that it was a preparation for anti-Soviet aggression. In 1945, the question of this violation, this 'crime against peace', was not brought up against Britain, and in order to avoid having to bring it up against Britain, Germany was granted pardon for the charge... Everything that Germany had done in matters of rearmament up until then was also deemed allowable, for as long as the honeymoon had lasted - until March 1939.
In passing, it may be of interest to examine the proposition that the political rupture between Germany and Britain was produced not in March 1939, but during 1936, and that the first step was taken not by the British, but by Hitler himself. Adherents to this proposition, the most brilliant of whom is the French polemicist, Pierre Fontaine (Les Secrets du pétrole, Paris, 1963) lean on the following:
1. From the day after the Russian Revolution (1917) which nationalised Caucasus oil, which was the property of Royal Dutch hell, founded by Deterding, the policy of the Foreign Office was directed towards its recovery, by diplomatic means at first. But about 1928, the Soviets having remained obdurate to all overtures, [70] the Foreign Office, inspired by Deterding, changed course and no longer envisaged this recovery except through war. At least that is what the adherents of this theory maintain. It was then that Deterding and Royal Dutch Shell are said to have subvented the National Socialist movement in Germany, whose leader, Hitler, they considered the only one capable of making a success of the operation.
2. In Mein Kampf, one reads (p. 705 of the first ed.): "If Germany wanted to reconquer territories in Europe this could only be done at Russia's expense... it is only with England covering the rear that a new Germanic migration could be undertaken... In Europe, in the near future, only two allies will be possible for Germany, England and Italy."
The parallelism of the views is striking to say the least. In 1936 Hitler suddenly felt that Britain was only making use of him to recover the Caucasus oil and that once this aim was achieved, she would change course and form new alliances in order to eliminate him. This feeling was inspired by the attitude of the British government towards the triumph of the Popular Front, which the communists put over in France in the legislative elections of May 1936. And from then on he rejected all British advances. All Deterding's efforts to get him to change his attitude were in vain. Royal Dutch Shell, in order to save at least the Rumanian oil, toyed with the idea of directing the policy of the Foreign Office towards an Anglo-Russian rapprochement. But Deterding, not in favour of this policy, resigned from his post of President and Director-General and retired in Germany. In 1939, on the day of his death, two German diplomats in full regalia put on his coffin an immense wreath of flowers, in Hitler's colours.
There is much that is true in this interpretation. The writer of this work thinks, nevertheless, that for the Foreign Office the period 1936 to 1939 was a period of expection and not of rupture for Britain, and that a definite rupture did not come until March 1939. Substantiation for this is to be found in the fact that British policy accommodated itself very well to all of Hitler's enterprises between 1936 and 1939 in defiance of the Versailles Treaty - that she even showed herself to be quite understanding. It is true that this period has not yet been thoroughly examined by historians and its exploration, as soon as it can be done, may well hold many surprises. It is apparently not to be doubted that through Deterding, Caucasus oil played a major role in British policy between the wars, the successes of Hitler in Germany and the unleashing of the Second World War.
In March 1939 Lord Halifax -- and therefore the British government -- discovered Poland and that was the end of the process of de facto revision of the Treaty of Versailles which had been, on the whole, fairly peaceful even if concerned with general rearmament. Hardly anything remained to be settled at that time except the German-Polish dispute over the Danzig corridor and [71] Silesia. Poland wanted the status quo; Germany, stressing the self-determination of the territories concerned and her right of access to East Prussia, was demanding an adjustment. Britain sided with Poland, which France had not ceased to defend since 1919, with the Anglo-Polish Guarantee Pact thereby strengthening the Franco-Polish Pact of the same name. Britain's attitude was later accounted for by the fact that if the German-Polish dispute had been peacefully settled, in conformity with the right of peoples to self-determination, Rumanian oil-exploited by British companies would have been considerably closer to Germany's grasp. In Rumania there was at the time a strong trend in favour of evicting the British companies. Germany supported the movement behind the scenes and the approach of German armies could only strengthen this movement, especially as Hungary was a friend of Germany. Taking all things into account, the argument is valid as an explanation of Britain's brusque counterblow. It even explains the Anglo-Russian rapprochement and the British military mission that joined the French military mission in Moscow... In March 1939 the British and French military missions communicated to their respective governments information that led them to think they could count on Russia's support in the event of a general European dispute. Thus the argument itself provided the answer that supported it. The whole matter can be summarised by saying that if until March 1939 Britain had looked with a benevolent and often approving eye on those revisions of the Treaty of Versailles made by Germany on her own prerogative, it was solely because she did not concede that the Franco-Russian Pact (1936) carried enough force to become a Franco-Anglo-Russian pact. In matters of foreign policy, as Napoleon tragically experienced, Russia has always been Britain's last resort as a means of ruling the continent. From the moment assurance was given by her agents that Russia would play the traditional game, there was no more reason to hesitate. But, Stalin was not Tsar Alexander and Hitler was not Napoleon.
We know the rest: August 23rd, 1939, German-Soviet Pact, partition of Poland and other gentlemen's agreements between Germany and Russia, which also had disputes to settle with Poland, the Baltic countries and the regions around the mouth of the Danube -- all post Versailles Treaty.
Since Russia acted in connivance with Germany on the partition of Poland she was obviously just as guilty. But not at all. On April 2nd, 1946, at Nuremberg, a piece of incredible buffoonery took place when General Rudenko, Russian Prosecutor, personally asked Ribbentrop this question:
General Rudenko: Do you consider that the attack on Poland was an act of aggression on the part of Germany? (Volume X, p. 443)
In vain did Dr. Seidl (counsel for Rudolf Hess) and Dr. Horn (Von Ribbentrop's counsel) attempt to demonsrate that this question could not be put in that form. Each time they were told [72] that it was not Russia but Germany in the dock. Through sheer persistence they were able, all the same, to bring out the reasons, which they found in the German-Soviet Pact and the component secret agreement, why they were asking that the question should not be so stated. (Testimony of the German Ambassador at Moscow, Dr. Friedrich Gaus: Volume X, pp. 14, 86, 325; Volume XI, pp. 611--612; Volume XII, p. 4 54; Volume XIV, pp. 299-301; Volume XV, p. 594, and testimony of von Weizsacker, Volume XIV, pp. 300-302, to cite only two.) But the German-Soviet Pact and the component secret agreement, whose provisions were only made public in this manner, were not put to Russia - of course!
For the edification of the reader the provisions contained in the documents cited above were, roughly (for naturally the Prosecution took every precaution to keep the German-Russian Pact and the Secret Agreement out of the hands of the Defence): in Poland, the line of demarcation between the two spheres of influence followed the Rysia, Bug, Narev and San Rivers; Germany disassociated herself from Latvia, Finland and Estonia, but laid claim to Lithuania; she further declared she had no other than economic interests in the Balkans, and later the Russians used this as an authorisation to demand military bases (especially in Bulgaria) which was, if not the cause, at last one of the reasons for Germany's entering into war with Russia on June 22nd, 1941. This shows that Russia held just as low an opinion of the Versailles Treaty and the right of peoples to self-determination as did Germany.
But the German-Soviet Pact and the secret agreement were not the only documents (and they were authentic!) which the judges at Nuremberg refused to consider. There was also the German White Book which the Defence tried to have admitted in connection with the invasion of Belgium, Norway and Greece, likewise laid to Germany's charge.
Here the Defence did not dispute Germany's guilt; it asked only that the conditions under which she had burdened her conscience with this crime be regarded. The German Government, the Defence claimed, had become convinced that if Germany had not invaded these territories the Allied Powers were themselves going to do so. The Government was informed by the agents of Admiral Canaris, whose information service probably rivalled M.1.5 or the F.B.I. At this point in its reasoning, the Defence declared that it was in a position to prove that the belief on Germany's part was justified. They reasoned thus: in June 1940, German troops found the archives of the Ministry of Foreign Affairs at Charité sur Loire (France) and in these archives documents, in particular a letter from General Gamelin to Daladier, and another from General Weygand to General Gamelin, and reports of Ministerial Councils or meetings of the French General Staff which established that the French and British had in readiness a plan for a landing at Narvik, the invasion of Belgium, the Ruhr, the destruction of [73] Rumania's oil and a landing at Salonika. The Defence, in short, wanted to show that Germany had succeeded where her adversaries had failed and that, for its part, it was a question only of a reaction of defence against planned aggression (3). Furthermore, in the case of Greece, no decision was to be taken until invading British troops arrived in Crete. The reasoning was not without merit. The documents selected from the archives of the French Ministry of Foreign Affairs and on which the argument rested had been collected into a White Book by the German Government in 1941, and it was this White Book that the Defence intended to produce.
The Defence plea was rejected at the insistence of Sir MaxwellFyfe (British Prosecutor), Dodd (American Prosecutor) and Dubost (French Prosecutor) on two grounds: first, that at the moment Germany made the decision to invade she had no proof that her conviction was justified; second, that no confidence could be had in a German document such as the White Book precisely because it was German (session of May 16th, 1946). Of course, a German document could not be pertinent unless it accused Germany.
These are the arguments of the kind of casuists that Loyola would have been proud of, which were advanced against taking the Treaty of Versailles into consideration and which were particularly and most pertinently refuted by Dr. Seidl (counsel for Rudolf Hess, who had probably been sent to Britain by Hitler himself for a last attempt at negotiation with the British) and Dr. Horn (counsel for von Ribbentrop). After some skirmishing during which they both marked numerous points, the unanimous argument of the Defence was summarised in this statement of Dr. Horn:
"There is no doubt that the Prosecution base their case on infractions of the Versailles Treaty. To these treaty infractions it is absolutely necessary, in my opinion, to examine the facts which allowed the legality of the treaty to be doubted. It is certain that it was signed under duress. International Law recognises that such treaties have grave deficiencies and considers them infamous.
"In my opinion we must be allowed to submit the facts that serve to show the soundness of this assertion and legal viewpoint.
"I do not wish to make any further statements on this point, but I ask that my first request be granted, that the documentary facts be allowed which would permit a judgement on the legal value of the Treaty of Versailles. " (Volume X, p. 94, 26th March, 1946)
Very solid.
Reply of Sir David Maxwell-Fyfe:
"In spite of all the respect due to Dr. Horn, I submit that it is [74] an unsound argument... Once it is admitted that there is a treaty and that an infraction is made, these are the conceded facts, and it is no answer to say that a number of admirable people have, in the signatory countries, believed that the terms of this were wrong. The treaty is there and the person who knowingly makes an infraction is breaking the treaty, regardless of the soundness of the arguments on which it is based..."
In saying that, Sir David Maxwell-Fyfe was surely not thinking of France, who violated the treaty by refusing to disarm, when it was acknowledged in 1927 that Germany had fulfilled the terms of the clauses relative to disarming, nor of Britain who violated it twice in May 1935 and July 1937, with the Anglo-German Naval Agreement. He was only the more at ease in continuing:
"It really does not help to know whether the defendant Hess acted in the belief that the Treaty of Versailles was bad, or to know what were the opinions of the Editor-in-Chief of the Observer, an English Sunday paper, or those of some number of the Manchester Guardian, twenty years ago, any more than it is useful to refer to what distinguished statesmen have written, regardless of the respect due them, about the event, years after it happened. " (Volume X, pp. 99).
Sir David Maxwell-Fyfe doubtless did not know that not only journalists and even statesmen had voiced views unfavourable to the Treaty of Versailles, but that there were countries which had refused to endorse it for the very reasons invoked by the Defence -- America, for example!
Decision of the Tribunal:
"The Tribunal (after a recess) rules that evidence to establish the injustice of the Treaty of Versailles, or its imposition by force, is inadmissible, and therefore rejects document Vol. 3 on behalf of the defendant Hess." (Volume X, p. 99, afternoon session).
It could not be otherwise. To admit in evidence this book of documents would have been to admit the possibility that France, Britain and Russia at least, had themselves violated the Treaty of Versailles, which would lead directly to their being challenged as judges, which was forbidden, as we have seen, in Article 3.
In the case of the partition of Poland between Germany and Russia, as of that of the successive invasions of Belgium, Norway and Greece, it was really basically the same problem of the competence of the Tribunal that was posed.
Evasion was the only argument the Prosecution could put in opposition to the Defence.
It was also the only one which it could not openly use.
And that is why all the arguments which the Prosecution invoked were at the same time so constrained, hampered, involved and so mediocre.
FOOTNOTES
1./ The various publications on the decisions of the Reparations Commission, instituted by the Treaty of Versailles, are not in agreement on this figure. Benoist-Méchin holds to the devision for 212 billion, in his Histoire de I'Armée allemande. The actual figure is 432 billion.
2./ To give an idea of the enormity: Germany's national wealth was then estimated at 260 billion gold Marks, and that of France at 250 billion gold francs.
3./ All of this has just been substantiated in France in Volume II of the Memoirs of M. Paul Reynaud, then President of the Council, recently Published with the title Envers et contre tous (May 1963) in which these documents and reports of the Ministerial Council are cited and commented upon in the terms and meaning used by the Defence before the Nuremberg Tribunal.
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