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 1914-18. In order not to be too abstract, I should like to cite a concrete example: A defendant holds the opinion that he is entitled to rearmament not to aggressive war; I will not touch this question. He considers rearmament justified, either because the treaty has not been kept by the other side or because owing to expressis verbis, or to some action, it is to be considered obsolete. In my opinion it is of decisive relevancy whether this defendant with this point of view, 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 to those who in the years 1914-18 stood on the other side and were his enemies.
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 of men other nations as I have described, and acted conscientiously and with a clear conscience both as regards international law and international morals and also as regards the needs of his 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 recognize. Moreover I am ah now in the agreeable position of being able to agree with Sir David in the practical handling of this matter. I too-and I am speaking now for myself only-would prefer to have the (decision m 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 at that time, since it will then have a much larger view on all questions and shades which are important for the decision. And at this point I am not at all in a position to speak comprehensively about them, for I do not want to make any summarizing speech, but just to treat one aspect of this question of evidence.
DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop!) I should like to add a few remarks to those made by my colleague Dr. Dix. I request the Tribunal. ..
THE PRESIDENT: The Tribunal would like to know how many of the Defense Counsel think that 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 defendants' 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 they will hear any more argument upon the subject.
DR. HORN: I cannot encroach on the rights of my colleagues in this question, naturally, Mr. President. I should like personally to make only 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.
THE PRESIDENT: Certainly.
[There was a pause in the proceedings while the Defense conferred.]
DR. HORN: May I make first a preliminary remark, Mr. President, to what has just been said to me by my colleagues. Firstly, his decision has for the Counsel for the organizations 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.
[There was a pause in the proceedings while the Defense conferred.]
DR. HORN: Yes, Mr. President, my colleagues are agreed that L shall make the last statements on this point.
THE PRESIDENT: One moment-very well. Go on.
DR. HORN: There is no doubt that the Prosecution, as far as vital' questions are concerned, base their 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 recognized 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 viewpoint. 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 do 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 judgment 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 fads. 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 the question of rearmament because it might show that the treaty was considered obsolete. Now, it is a rare but nonetheless 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 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