[There was a pause in the proceedings while the Defense conferred.]
DR. HORN: Yes, Mr. President, my colleagues are agreed that I 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 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 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 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 insofar 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.