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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
23rd March to 3rd April, 1946

Ninety-First Day: Tuesday, 26th March, 1946
(Part 2 of 7)

[Page 62]

DR. SEIDL: May I perhaps reply briefly?

THE PRESIDENT: Then, Sir David, your proposition would be that Dr. Seidl could not quote from any of these documents?

SIR DAVID MAXWELL FYFE: My Lord, certainly, yes, on my premise that it is irrelevant matter, he could not.

THE PRESIDENT: Yes, they are not admissible.

SIR DAVID MAXWELL FYFE: They are not admissible.


SIR DAVID MAXWELL FYFE: My original suggestion was of course, leaving over the discussion of whether they are admissible until all the evidence had been filed, but if that is not accepted, I submit bluntly, if I may use the word with all respect, that they are not admissible.

THE PRESIDENT: Now, Dr. Seidl.

DR. SEIDL: May I reply briefly, Mr. President?


DR. SEIDL: It would indicate a complete alteration of intentions if one were to assume that by the submission of this document book I wanted to show whether or not the Treaty of Versailles is an expression of statesmanly wisdom. I am not concerned with that here.

The submission of this document is more to show whether there is to be brought under discussion:

Firstly: Whether the opposite side at the conclusion of the Treaty, in the preliminary negotiations - I call your, attention to Wilson's Fourteen Points - was not guilty for its part of a violation of the general Treaty obligations, whether a culpa incontrahenda is not to be assumed here.

Secondly: The submission of the documents should show whether the opposite side complied with the obligations arising from the Treaty, in order to establish that is to give the Tribunal the opportunity of establishing, in this way, the legal inferences which Germany might draw from this.

Thirdly: The Treaty of Versailles and its violation by the defendants forms the nucleus of Count One of the Indictment, namely the conspiracy charged by the prosecution. The prosecution, in replying to a question of the Tribunal as to when the conspiracy may be said to have started, has said that the date might be set as far back as 1921.

Fourthly: The prosecution has extensive ...

THE PRESIDENT: I have not the least idea what you meant by the last point. I do not understand what you said in the last point in the least.

DR. SEIDL: I wanted to say that for the beginning of the conspiracy alleged by the prosecution, the Treaty of Versailles played a decisive part, and that the origin of this Treaty has to be put in some causative connection, at least with the alleged conspiracy. Before there can be talk of illegality and of guilt, the facts have to be established which were causative for the conspiracy charged by the prosecution.

Fourthly: The prosecution has submitted extensive evidence on the development of the N.S.D.A.P. Numerous document books were submitted to the Tribunal to show the growth in membership, to demonstrate the increase in the Reichstag

[Page 63]

mandates. Now, if this evidence was relevant, it is my assertion that these circumstances also, and the facts that first enabled this rise of the Party at all, must be relevant, if only from the viewpoint of causal connection.

THE PRESIDENT: Is it your contention that the opinion of a journalist after the Treaty of Versailles was made, stating that, in his opinion, the Treaty of Versailles was unjust to Germany, would be admissible either for the interpretation of the Treaty or for any other purpose with which this Tribunal is concerned?

DR. SEIDL: Mr. President, I admit that of course the particular opinion of a foreign journalist is not in itself relevant, but I do assert that the opinion of Secretary of State Lansing on the formation of the Treaty of Versailles and its connection with the prior history of this Treaty must be of some evidential relevance. What weight attaches to his opinion is a question which cannot yet be established at this point. This question can only be decided by the Tribunal when the complete evidence has been submitted. I should like to state further that the opinion of the Chairman of the Committee of Foreign Affairs of the Senate of the United States on the Treaty of Versailles, on its formation, on effects within the framework of the conspiracy alleged by the prosecution - which purportedly is contrary chiefly to the Treaty of Versailles can prima facie have value as evidence. The same thing applies to most of the other statements quoted in this document book.

I would like to call attention to Gustav Cassel, to John Maynard Keynes, the official financial adviser of the British Government, and to a number of others.

THE PRESIDENT: It is your contention that because of the provisions of the Versailles Treaty or because of an infraction of those provisions by the signatory powers, Germany was justified in making an aggressive war?

DR. SEIDL: I cannot answer that now definitely with intelligence, so long as I have not heard the evidence of the other defendants. I do assert, however, that in an infraction of the Treaty of Versailles by the opposite side, in certain circumstances Germany or the defendants could find the right to re-arm, and that it is an infraction of the Treaty of Versailles with which the defendants are charged. As far as the right to an aggressive war is concerned, I should not like to make any positive statements, at least until such time as the Tribunal has taken official notice of the affidavit of Ambassador Gauss.

THE PRESIDENT: One more question I should like to ask you: Are you saying that the Fourteen Points which were laid down by President Wilson are admissible evidence to construe the written document of the Versailles Treaty?

DR. SEIDL: I do not say that the Fourteen Points of Wilson, per se, are admissible evidence, I do assert, on the other hand, that the connection between these Fourteen Points of Wilson and the Treaty of Versailles and the contradiction resulting therefrom are of causal significance for the conspiracy alleged by the prosecution.

THE PRESIDENT: Then you are really saying that the Versailles Treaty, in so far as it departed from the Fourteen Points, was an unjust treaty?

DR. SEIDL: Mr. President, whether the treaty was just or not is a point which I do not wish to prove with this document at all. Whether the treaty was unjust or not is in my opinion a fact which perhaps is beyond the scope of these proceedings. I do assert, however, that the treaty, at least in many of its terms, did not bring that which the victorious States themselves expected of it.

THE PRESIDENT: Do you wish to add anything more, Dr. Seidl?

DR. SEIDL: Not at this point.

DR. DIX (counsel for the defendant Schacht): Since it is a very fundamental question which has been raised now for discussion by Sir David, and since the defence must always calculate on the possibility that the Tribunal, even at. this point may make a decision on the question of whether and how far such documentary material as the one discussed can be produced, I consider myself in duty bound to add to the statements of my colleague, Dr. Seidl, with whom I agree fully, just

[Page 64]

a few supplementary words. And I would like to reply to the very precise question of your Lordship which starts, "Do you consider it relevant ...?" I believe - and I will avoid any repetition - that a very vital point as far as relevancy is concerned has not been brought out yet, and that is the subjective aspect; that is the relevancy of investigation of evidence and fact regarding the subjective state of the individual defendant, that is, of the facts is seen from within.

If, for example, one of the defendants committed an act which was considered, purely objectively, a breach of the Treaty of Versailles, then as far as criminal law is concerned and looking at it from the subjective view, it is of great significance whether in the opinion of reasonable, just and educated men of all nations, he acted with an attitude and with a viewpoint, which was not merely his special viewpoint, but that of the most serious men of the various nations and also of those nations which fought against Germany in the years 1914-1918. In order not to be too abstract, I should like to cite a concrete example:

A defendant favours rearmament, not for aggressive war, but I will not touch this question. He considers rearmament justified, either because the Treaty has not been kept by the other side or because due to expressis verbis, to treaties concluded or to confidential negotiations, it is to be considered obsolete. In my opinion it is of decisive relevancy whether this defendant in this opinion of his which explains his action, is alone in all the world, or whether the opinion which guides his action, is held by men who are to be taken seriously and who belonged to other nations, even those which in the years 1914-1918 stood on the other side and were his enemies.

The rearmament according to the prosecution, as I understand, is not a "crime" as such but is merely used by the prosecution as a charge for the proving of the crime of having carried on an aggressive war. If now a defendant can prove that he acted from clean and decent views, views which as stated were held by such men of other nations as I have described, and acted conscientiously both as regards International Law and international morals and also as regards the needs of his own country, then this material, which contains opinions, literary statements, speeches, that coincide with the views of the defendant in question is not only of relevant, but of entirely decisive significance. This viewpoint I ask the Tribunal to bear in mind, if it desires to decide now the question of principle which Sir David has just now raised for debate and which he had to raise, as I fully recognise. But moreover I am also now in the agreeable position of being able to agree with Sir David in the practical solution. I too - and I am speaking now for myself only - would prefer to have the decision on this question postponed until the time suggested by Sir David. As far as I am concerned I will accept the disadvantages which Dr. Seidl is right in seeing because an advantage will result if the Tribunal decides this question then, since it will then have a much larger view on all questions and distinctions which are important for the decision. And at this point I am not at all in a position to treat comprehensively, for I do not want to make any comprehensive speech, but just to treat one aspect of this question of evidence.

DR. HORN (counsel for the defendant von Ribbentrop):

I should like to add a few remarks to those made by Dr. Dix. I request the Tribunal -

THE PRESIDENT: The Tribunal would like to know how many of the defence counsel think they are entitled to address them. If Dr. Horn wishes to add a short argument, the Tribunal are prepared to hear it, but they are not prepared to hear all the defendant's counsel upon points such as this, at this stage, and if any of the other defendants' counsel desires to address them, they will decide now whether they will hear any more or not.

It is understood, then, that Dr. Horn alone will address a short argument to the Tribunal? If it is not, then the Tribunal will decide whether it will hear any more argument upon the subject.

DR. HORN: I cannot encroach on the rights of my colleagues in this question,

[Page 65]

naturally, Mr. President. I should like personally only to make a very brief statement on the legal points.

THE PRESIDENT: Well, you must consult your colleagues then.

DR. HORN: If you wish a decision on this question now, Mr. President, I must ask my colleagues beforehand, of course.


DR. HORN: May I make first a preliminary remark, Mr. President, to what has just been said to me by my colleagues. Firstly, this decision has for the counsel for the Organisations a very particular interest.

For myself personally I would like to make the following remarks: The prosecution -

THE PRESIDENT: Dr. Horn, I asked you to consult the other defendants' counsel and ascertain whether they were willing that you should be heard, and you alone. That is the only terms upon which I am prepared to hear you.

(Dr. Horn again consulted with his colleagues.)

DR. HORN: Yes, Mr. President, my colleagues are agreed that I shall make the last statements on this point.

THE PRESIDENT: Very well. Go on.

DR. HORN: There is no doubt that the prosecution, as far as vital questions are concerned, bases its case on infractions of the Versailles Treaty. To these Treaty infractions, it is absolutely necessary, in my opinion, to submit the facts which allow the legality of this Treaty to be judged. There is no doubt that this treaty was signed under duress. It is recognised in International Law that such treaties from the legal point of view have grave deficiencies and are infamous. In my opinion we must be allowed to submit the facts that serve to show the soundness of this assertion and legal view point. A further question - and if I have understood correctly this is Sir David's point - is that of the polemic analysis of the legal, political, and economic consequences of this treaty. I did not wish to make any further statements on this point, but I would like to ask that my first request be granted, that the legal documentary facts be allowed which would permit a judgement on the legal value of the Versailles Treaty.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, if I might deal first with the argument which Dr. Dix has put forward, as I understood his first main proposition, it was this:

That if a defendant has committed an act which is an infraction of the treaty and can show that in the opinion of reasonable and just and educated men in the States who were the other parties to the treaty, the treaty was so bad that an infraction was justifiable, that is a permissible argument.

I submit that it is - with great respect to Dr. Dix - an unsound argument, and baseless, from any principle either of law or of materiality. Once it is admitted that there is a treaty and that an infraction is made, and it follows from the example that Dr. Dix was dealing with, that these are the conceded facts, it is no answer to say that a number of admirable people in the countries which were parties to the treaty believed that its terms were wrong. The treaty is there and the person who knowingly makes an infraction is breaking the treaty, however strong is his support.

In his second point Dr. Dix moved to quite different grounds. He said that this evidence might be relevant in the special reference to the question of rearmament because it might show that the treaty was considered obsolete. Now, it is a rare but none the less existing doctrine of International Law that treaties, usually minor treaties, can be abrogated by the conduct of the contracting parties. I would not contest that you cannot get examples of that, although they are very rare and generally deal with minor matters. But this evidence which is before the Tribunal at the moment is not directed to that point at all. This is, in the main, contemporary polemic evidence saying that certain aspects of the treaty were bad, either as regards political standards or economic standards. That is a totally

[Page 66]

different argument from the one which Dr. Dix admirably adumbrated - which is one which if it came up would have to be faced - that a treaty has become obsolete or that the breaches have been condoned and that, therefore, the terms have really ceased to exist.

My answer to that is that this evidence is not directed to that point at all.

Now, if Dr. Dix will forgive me - and I am sure the fault was mine - I did not quite appreciate what he termed his subjective argument. But in so far as I did appreciate it, there seems to be a very good answer - that if he seeks to suggest that a defendant's guilt may be less because he, that defendant, believed that the treaty was bad, that is essentially a matter which can be judged by the Tribunal who will hear that defendant and appreciate and evaluate his point of view. It really does not help in deciding whether the defendant Hess acted because he thought that the Treaty of Versailles was a bad treaty, to know what the editor of the "Observer," which is a Sunday paper in England, expressed as his views some twenty years ago, or the "Manchester Guardian" or indeed - with all respect to them - what distinguished statesmen have said in writing their reminiscences years after a matter occurred. The subjective point is, this is my submission, an important point in deciding on evidence. The subjective point can be answered by the defendant himself, and the view of the defendant which the Tribunal will receive.

Now, Dr. Horn has opened up a much wider question, and one which I submit is entirely irrelevant and beyond the scope of these proceedings.

He wishes the Tribunal to try whether the Treaty of Versailles was signed under duress. Well, that, of course, would involve the whole consideration of the government of the German Republic, the position of the plenipotentiaries, and the legal position of the persons who negotiated the Treaty.

The answer to that is that this Tribunal is concerned with certain quite clearly stated offences, fully particularised, which occurred at the time that is stated in the Indictment; and all the evidence that is given as to the actions of the pre-Nazi German government, and indeed of the Nazi government, shows that for years Versailles was accepted as the legal and actual basis on which they must work, and various different methods were adopted in order to try and secure changes of the Treaty, and I need not go into with the Tribunal the whole framework of the Locarno Treaties recognising Versailles, which were signed in 1925, and which were treated as existing and in operation by the Nazi government itself.

With these actual facts, it would, in my submission, be completely remote, irrelevant, and contrary to the terms of the Charter, for this Tribunal to go into an inquiry as to whether the Treaty of Versailles was signed under duress.

As I gathered, Dr. Horn was not so interested in the economic clauses and their rightness or wrongness; but I should respectfully remind the Tribunal that that is a matter which is before it at the moment - that here we have, as I have pointed out before, and I do not want to repeat myself, a number of opinions expressed by people of varying eminence and with varying degrees of responsibility at the time that they expressed them. And while strongly maintaining the position which I have endeavoured to express with regard to the Treaty, I do equally impress my second point: That to accept as matters of evidence statements which in the main are made from a polemic standpoint, either in answer to an attack or in an attack with a background of the politics of the State in which they were made, is simply a misuse of the term "evidence." That is not evidence of any kind. They are matters of argument which an advocate may adopt if the argument is a relevant one, but they should not be received in evidence by the Tribunal for that reason.

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