Archive/File: imt/tgmwc/tgmwc-02/tgmwc-02-13.04
Last-Modified: 1999/09/12

THE PRESIDENT: Do you propose to call any oral witnesses?

                                                  [Page 109]

SIR DAVID MAXWELL FYFE: No, my Lord, no oral witnesses.

If the Tribunal please, before I come to the first treaty I
want to make three quotations to deal with a point which was
mentioned in the speech of my learned friend, The Attorney
General, yesterday.

It might be thought from the melancholy story of broken
treaties and violated assurances, which the Tribunal has
already heard, that Hitler and the Nazi Government did not
even profess it necessary or desirable to keep the pledged
word. Outwardly, however, the professions were very
different. With regard to treaties, on the 18th October,
1933, Hitler said, "Whatever we have signed we will fulfil
to the best of our ability."

The Tribunal will note the reservation, "Whatever we have
signed."

But, on the 21st May, 1935, Hitler said:

"The German Government will scrupulously maintain every
treaty voluntarily signed, even though it was concluded
before their accession to power and office."

On assurances Hitler was even more emphatic. In the same
speech, the Reichstag Speech on 21st May, 1935, Hitler
accepted assurances as being of equal obligation, and the
world at that time could not know that that meant of no
obligation at all. What he actually said was:

    "And when I now hear from the lips of a British
    statesman that such assurances are nothing, and that
    the only proof of sincerity is the signature appended
    to collective pacts, I must ask Mr. Eden to be good
    enough to remember that it is a question of an
    assurance in any case. It is sometimes much easier to
    sign treaties with the mental reservations that one
    will reconsider one's attitude at the decisive hour,
    than to declare before an entire nation and with full
    opportunity one's adherence to a policy which serves
    the course of peace because it rejects anything which
    leads to war."

And then he proceeds with the illustration of his assurance
to France.

Never having seen the importance which Hitler wished the
world to believe he attached to treaties, I shall ask the
Tribunal, in my part of the case, to look at fifteen only of
the treaties which he and the Nazis broke. The remainder of
the sixty-nine broken treaties shown on the chart and
occurring between 1933 and 1941 will be dealt with by my
learned friends.

There is one final point as to the position of a treaty in
German law, as I understand it. The appearances of a treaty
in the Reichsgesetzblatt makes it part of the statute law of
Germany, and that is by no means an uninteresting aspect of
the breaches which I shall put before the Tribunal.

The first treaty to be dealt with is the Convention for the
Pacific Settlement of International Disputes, signed at The
Hague on the 29th July, 1899. I ask that the Tribunal take
judicial notice of the Convention, and for convenience I
hand in as Exhibit GB I the British Document, TC-1. The
German reference is to the Reichsgesetzblatt for 1901, No.
44, Sections 401 to 404, and 482 and 483. The Tribunal will
find the relevant charge in Appendix C as Charge 1.

As the Attorney General said yesterday, these Hague
Conventions are only the first gropings towards the
rejection of the inevitability of war. They do not render
the making of aggressive war a crime, but their milder terms
were as readily broken as the more severe agreements.

On the 19th July, 1899, Germany, Greece, Serbia and twenty-
five other

                                                  [Page 110]

nations signed a convention. Germany ratified the convention
on 4th September, 1900, Serbia on the 11th May, 1901, Greece
on the 4th April, 1901.

By Article 12 of the treaty between the Principal Allied and
Associated Powers and the Serb-Croat-Slovene State, signed
at St. Germaine-en-Laye on the 10th September, 1919, the new
Kingdom succeeded to all the old Serbian treaties, and
later, as the Tribunal know, changed its name to Yugoslavia.

I think it is sufficient, unless the Tribunal otherwise
wish, for me to read the first two articles only.

"Article 1. With a view to obviating as far as possible
recourse to force in the relations between States, the
signatory powers agree to use their best efforts to ensure
the pacific settlement of international differences.

Article 2. In case of serious disagreement or conflict,
before an appeal to arms the signatory powers agree to have
recourse, as far as circumstances allow, to the good offices
or mediation of one or more friendly powers."

After that the Convention deals with machinery, and I do not
think, subject to any wish of the Tribunal, that it is
necessary for me to deal with it in detail.

The second treaty is the Convention for the Pacific
Settlement of International Disputes, signed at The Hague on
the 18th October, 1907. Again I ask the Tribunal to take
judicial notice of this, and for convenience hand in as
Exhibit GB 2 the Final Act of the Conference at The Hague,
which contains British Documents TC-2, 3 and 4. The
reference to this convention in German is to the
Reichsgesetzblatt for 1910, Number 52, Sections 22 to 25,
and the relevant charge in Charge 2.

This Convention was signed at The Hague by forty-four
nations, and it is in effect as to thirty-one nations,
twenty-eight signatories, and three adherents. For our
purpose it is in force as to the United States, Belgium,
Czechoslovakia, Denmark, France, Germany, Luxembourg, Japan,
Netherlands, Norway, Poland, and Russia.

By the provisions of Article 91 it replaces the 1899
Convention as between the contracting powers. As Greece and
Yugoslavia are parties to the 1899 Convention and not to
that of 1907, the 1899 Convention is in effect with regard
to them, and that explains the division of countries in
Appendix C.

Again I only desire that the Tribunal should look at the
first two articles.

"Article 1. With a view to obviating as far as possible
recourse to force in the relations between States, the
contracting powers agree to use their best efforts to ensure
the pacific settlement of international differences."

Then I do not think I need trouble to read Article 2. It is
the same article as to mediation, and again, there are a
number of machinery provisions.

The third treaty is The Hague Convention relative to the
opening of hostilities, signed at the same time. It is
contained in the exhibit which I put in. Again I ask that
judicial notice be taken of it. The British Document is TC-
3. The German reference is the Reichsgesetzblatt for 1910,
Number 2, Sections 82 to 102, and the reference in Appendix
C to Charge 3.

This Convention applies to Germany, Poland, Norway, Denmark,
Belgium, the Netherlands, Luxembourg, and Russia. It relates
to a procedural step in notifying one's prospective opponent
before opening hostilities against

                                                  [Page 111]

him. It appears to have had its immediate origin in the
Russo-Japanese war, 1904, when Japan attacked Russia without
any previous warning. It will be noted that it does not fix
any particular lapse of time between the giving of notice
and the commencement of hostilities, but it does seek to
maintain an absolutely minimum standard of international
decency before the outbreak of war.

Again, if I might refer the Tribunal to the first article:
"The contracting powers recognise that hostilities between
them must not commence without a previous and explicit
warning in the form of either a declaration of war, giving
reasons, or an ultimatum with a conditional declaration of
war."

Then there are a number again of machinery provisions, with
which I shall not trouble the Tribunal.

The fourth treaty is the Hague Convention 5, respecting the
rights and duties of neutral powers and persons in case of
war on land, signed at the same time. That is British
Document TC-4, and the German reference is Reichsgesetzblatt
1910, Number 2, Sections 168 and 176. Reference in Appendix
C is to Charge 4.

THE PRESIDENT: Is it necessary to give the German reference?
If it is necessary for defendants' counsel, all right, but
if not it need not be done.

SIR DAVID MAXWELL FYFE: If I may omit them it will save some
time.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL FYFE: If any of the defendants' counsel
want any specific reference perhaps they will be good enough
to ask me.

THE PRESIDENT. Yes.

SIR DAVID MAXWELL FYFE: Germany was an original signatory to
the Convention, and the Treaty is in force as a result of
ratification or adherence between Germany and Norway,
Denmark, Belgium, Luxembourg, the Netherlands, the U.S.S.R.
and the United States.

I call the attention of the Tribunal to the short contents
of Article I:

"The territory of neutral powers is inviolable."

A point does arise, however, on this Convention. I want to
make this clear at once. Under Article 20 the provisions of
the present Convention do not apply except between the
contracting powers, and then only if all the belligerents
are parties to the Convention.

As Great Britain and France entered the war within two days
of the outbreak of the war between Germany and Poland, and
one of these powers had not ratified the Convention, it is
arguable that its provisions did not apply to the Second
World War.

I do not want the time of the Tribunal to be occupied by an
argument on that point when there are so many more important
treaties to be considered. Therefore, I do not press that as
a charge of a breach of treaty. I merely call the attention
of the Tribunal to the terms of Article I as showing the
state of international opinion at that time and as an
element in the aggressive character of the war which we are
considering.

THE PRESIDENT: Perhaps this would be a good time to break
off.

(A recess was taken.)

SIR DAVID MAXWELL FYFE: As the Tribunal adjourned I had come
to the fifth treaty, the Treaty of Peace between the Allied
and Associated Powers and Germany, signed at Versailles the
28th June, 1919. I again ask the

                                                  [Page 112]

Tribunal to take judicial cognisance of this treaty, and I
again hand in for convenience, Exhibit GB 3, which is a copy
of the treaty, including British Documents TC-5 to TC-10
inclusive. The reference in Appendix C is to Charge 5.

Before I deal with the relevant portions, may I explain very
briefly the lay-out of the treaty.

Part I contains the Covenant of the League of Nations, and
Part II sets the boundaries of Germany in Europe. These
boundaries are described in detail.

Part II makes no provision for guaranteeing these
boundaries.

Part III, Articles 31 to 117, with which the Tribunal is
concerned, contains the political clauses for Europe. In it,
Germany guarantees certain territorial boundaries in
Belgium, Luxembourg, Austria, Czechoslovakia, France,
Poland, Memel, Danzig, etc.

It might be convenient for the Tribunal to note, at the
moment, the interweaving of this treaty with the next, which
is the Treaty for the Restoration of Friendly Relations
between the United States and Germany.

Parts I, II and III of the Versailles Treaty are not
included in the United States Treaty. Parts IV, V, VI, VIII,
IX, X, XI, XII, XIV and XV are all repeated verbatim in the
United States Treaty from the Treaty of Versailles.

The Tribunal is concerned with Part V, the military, naval,
and air clauses. Parts VII and XIII are not included in the
United States Treaty.

I do not think there is any reason to explain what the parts
are, but if the Tribunal wishes to know about any specific
part, I shall be very happy to explain it.

The first part that the Tribunal is concerned with is that
contained in the British Document TC-5, and which consists
of Articles 42 to 44 dealing with, the Rhineland. These are
very short, and repeated in the Locarno Treaty. Perhaps I
had better read them once, so that the Tribunal will keep
them in mind.

    "Article 42. Germany is forbidden to maintain or
    construct any fortifications either on the left bank of
    the Rhine or on the right bank 1 to the West of a line
    drawn 50 kilometres to the East of the Rhine.
    
    Article 43. In the area defined above, the maintenance
    and the assembly of armed forces, either permanently or
    temporarily, and military manoeuvres of any kind, as
    well as the upkeep of all permanent works for
    mobilisation, are in the same way forbidden.
    
    Article 44. In case Germany violates in any manner
    whatever the provisions of Articles 42 and 43, she
    shall be regarded as committing a hostile act against
    the powers signatory of the present treaty, and as
    calculated to disturb the peace of the world."

I am not going to put in evidence, but I simply draw the
Tribunal's attention to a document of which they can take
judicial notice, as it has been published by the German
State, the Memorandum Of 7th March, 1936, giving their
account of the breach. The matters regarding the breach have
been dealt with by my friend Mr. Alderman, and I do not
propose to go over the ground again.

The next part of the Treaty is in the British Document TC-6,
dealing with Austria:

    "Article 80. Germany acknowledges and will respect
    strictly the

                                                  [Page 113]

    independence of Austria within the frontiers which may
    be fixed in a treaty between that State and the
    principal allied and associated powers; she agrees that
    this independence shall be inalienable, except with the
    consent of the Council of the League of Nations."

Again, in the same way, the proclamation of Hitler, dealing
with Austria, the background of which has been dealt with by
my friend Mr. Alderman, is attached as TC-47. I do not
intend to read it because the Tribunal can again take
judicial notice of the public proclamation.

Next is Document TC-8, dealing with Memel.

    "Germany renounces, in favour of the principal allied
    and associated powers, all rights and title over the
    territories included between the Baltic, the North-
    eastern frontier of East Prussia as defined in Article
    28 of Part II (Boundaries of Germany) of the present
    treaty, and the former frontier between Germany and
    Russia. Germany undertakes to accept the settlement
    made by principal allied and associated powers in
    regard to these territories, particularly in so far as
    concerns the nationality of inhabitants."

I do not think that the Tribunal has had any reference to
the formal document of incorporation of Memel, of which
again the Tribunal can take judicial notice; and I put in,
for convenience, a copy as GB 4. It is British Document TC-
53A, and it appears in our book. It is very short, so
perhaps the Tribunal will bear with me while I read it:

    "The transfer Commissioner for the Memel territory,
    Gauleiter und Oberpresident Erich Koch, effected on 3rd
    April, 1939, during a conference at Memel, the final
    incorporation of the late Memel territory into the
    National Socialist Party Gau of East Prussia and into
    the State administration of the East Prussian
    Regierungsbezirk of Gumbinnen."

Then, we next come to TC-9, which is the article relating to
Danzig, Article 100, and I shall only read the first
sentence, because the remainder consists of geographical
boundaries:

    "Germany renounces, in favour of the principal allied
    and associated powers, all rights and title over the
    territory comprised within the following limits," and
    then the limits are set out and are described in a
    German map attached to the Treaty.

Lieutenant-Colonel Griffith-Jones, who will deal with this
part of the case, will formally prove the documents relating
to the occupation of Danzig, and I shall not trouble the
Tribunal with them now.

If the Tribunal would go on to British Document TC-7 - that
is Article 81, dealing with the Czechoslovak pledge.

    "Germany, in conformity with the action already taken
    by the allied and associated powers, recognises the
    complete independence of the Czechoslovak State, which
    will include the autonomous territory of the Ruthenians
    to the South of the Carpathians. Germany hereby
    recognises the frontiers of this State as determined by
    the principal allied and associated powers and other
    interested States."

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