The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
December 3 to December 14, 1945

Thirteenth Day: Wednesday, 5th December, 1945
(Part 6 of 8)

[Page 118]

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

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

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

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

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


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

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

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

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

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

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

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

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

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

[Page 120]

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

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

"The provisions of Article 3 of the present Treaty are placed under the guarantee of the High Contracting Parties as provided by the following stipulations:

If one of the Powers referred to in Article 3 refuses to submit a dispute to peaceful settlement or to comply with an arbitral or judicial decision and commits a violation of Article 2 of the present Treaty or a breach of Article 42 or 43 of the Treaty of Versailles, the provisions of Article 4 of the present Treaty shall apply."

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

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

"Article 8

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

[Page 121]

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

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

"All disputes of every kind between Germany and Czechoslovakia with regard to which the Parties are in conflict as to their respective rights, and which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision either to an arbitrary Tribunal, or to the Permanent Court of International justice as laid down hereafter. It is agreed that the disputes referred to above include, in particular, those mentioned in Article 13 of the Covenant of the League of Nations. This provision does not apply to disputes arising out of, or prior to the present Treaty and belonging to the past. Disputes for the settlement of which a special procedure is laid down in other conventions in force between the High Contracting Parties, shall be settled in conformity with the provisions of those Conventions."
Articles 2 to 21. This Treaty was registered with the Secretariat in accordance with its Article 22. The second sentence shows that the present Treaty was entered into and the terms in force under the same conditions as the said Treaty, which is the Treaty of Mutual Guarantee.

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

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

[Page 122]

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

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

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

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

Then he asked the Assembly to adopt the draft resolution, and I read simply the terms of the resolution, which shows what so many nations, including Germany, had in mind at that time; The Assembly, recognising the solidarity which unites the community of nations, being inspired by a firm desire for the maintenance of general peace, being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an International Crime; considering that the solemn renunciation of all wars of aggression would tend to create an atmosphere of general confidence calculated to facilitate the progress of the work undertaken with a view to disarmament:
Declares: 1. That all wars of aggression are and shall always be prohibited.

2. That every pacific means must be employed to settle disputes of every description, which may arise between States.

3. That the Assembly declares that the States Members of the League are under an obligation to conform to these principles."

The fact of the solemn renunciation of war was taken in the form of a roll-call, and the President announced, you will see, at the end of the extract:
"All the delegations having pronounced in favour of the declaration submitted by the Third Committee, I declare it unanimously adopted."
THE TRIBUNAL (Mr. Biddle): What is the date of that?

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

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

[Page 123]

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

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

"Germany neither intends nor wishes to interfere in the domestic affairs of Austria, to annex Austria, or to attach that country to her. The German people and the German Government have, however, the very comprehensible desire, arising out of the simple feeling of solidarity due to a common national descent, that the right to self- determination should be guaranteed not only to foreign nations, but to the German people everywhere.

I myself believe that no regime which is not anchored in the people, supported by the people, and desired by the people, can exist permanently."

The next Document which is TC-22, and which is on the next page, I now hand in as Exhibit GB 20, and it is the official copy of the official proclamation of the Agreement between the German Government and the Government of the Federal State of Austria, on 11th July, 1936, and I am almost certain that Mr. Alderman did read this document, but I refer the Tribunal to paragraph one of the agreement and to what it essentially contains:
"The German Government recognises the full sovereignty of the Federal State of Austria in the sense of the pronouncements of the German Leader and Chancellor of the 21st May, 1935."
That I hand in as GB 20. I now have three documents which Mr. Alderman asked me to hand in with regard to Czechoslovakia. The first is TC-27, which the Tribunal will find two documents farther on from the one about agreement with Austria, to which I have just been referring. That is the German Assurance to Czechoslovakia, and what I am handing in as GB 21, is the letter from M. Masaryk, T. G. Masaryk's son, to Lord Halifax, dated the 12th March, 1938, and again I think that if Mr. Alderman did not read this, he certainly quoted the statement made by the defendant Goering, which appears in the third paragraph. In the first statement Field Marshal Goering used the expression "ich gebe Ihnen mein Ehrenwort," which I understand means, "I give you my word of honour," and, if you will look down three paragraphs, after the defendant Goering had asked that there would not be a mobilisation of the Czechoslovak Army, the communication continues:
"M. Masaryk was in a position to give him definite and binding assurances on this subject, and today spoke with Baron von Neurath" - the defendant von Neurath - "who, among other things, assured him on behalf of Herr Hitler, that 'Germany still considers herself bound by the German-Czechoslovak Arbitration Convention concluded at Locarno in

[Page 124]

October, 1925'." - So there I remind the Tribunal that in 1925 Herr Stresemann was speaking on behalf of Germany in an agreement voluntarily concluded; had there been the slightest doubt of that question, the defendant Neurath was giving the assurance on behalf of Hitler that Germany still considered herself bound by the German-Czechoslovak Arbitration Convention on the 12th March, 1938, six months before Dr. Benes made a hopeless appeal to it, before the crisis in the autumn of 1938.

There is also the difficult position of the Czechoslovakian Government, which is set out in the last paragraph that M. Masaryk wrote, and which the Tribunal may think is put with great force in this last sentence:

"They cannot however fail to view with great apprehension the sequel of events in Austria between the date of the bilateral agreement between Germany and Austria, on the 11th July, 1936, and yesterday, the 11th March, 1938."
To refrain from comment, I venture to say that is one of the most pregnant sentences relating to this period.

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