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to the provisions of the
constitution of the German Reich since Article 178, paragraph 2, second
sentence of that constitution, provides that: 'The provisions of the Peace
Treaty signed on 28 June 1919 in Versailles remain unaffected by the
Constitution.’ ” |
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Q. Now, Mr. Kaufman, perhaps I should make myself clear with
reference to the question I asked. Of course this is merely the opinion of one
individual as to it. My question was — without indicating that I have any
particular view about the matter — whether the prosecution shall insist
that the mere rearmament in violation of the Treaty alone, unconnected with any
acts of aggressive war, is a crime under international law. Now if you don't
care to answer that question now, don't do so. I am not asking it for the
purpose of getting the prosecution irrevocably committed. But it was just
running through my mind and in order to clarify the position on that —
A. Under international law, our answer would be, "Yes, it is." Because
it is undoubtedly a violation of the Versailles Treaty. Now, whether it would
be a crime of which this Court will take notice, under the regulations under
which we function, is another question.
Q. Well, yes. Assuming that
— without deciding or intimating a decision — the rearmament was
actually in violation of the Versailles Treaty, unless it be further shown that
it was for the purpose of waging not merely war but aggressive war, would that
be a crime under international law?
A. Well, my answer is, “Under
international law, yes.” May I explain that so as to make it clear? As I
said earlier, it is an argument we feel we don't have to stress, but we so face
it frankly. Rearmament, we assert and assert with confidence and we do not
think that will be denied, is actually a violation of the Treaty. Certainly to
the extent that rearmament was done by the German Government itself, there is
no doubt about the fact that it is a violation of the Treaty. Being a violation
of an international treaty, it is in violation of international law.
Q.
Yes, but is it a crime?
A. As to whether or not it is a crime, that has
to be answered as best we can, by the holding of the IMT that a violation of a
treaty can be a crime even though not specified as a crime in the treaty. For
instance, the Calabrinian [Kellogg-Briand] Pact specified that war shall not be
used as an instrument of international or national policy in conduct with other
nations —
Q. Well, we are probably putting the cart ahead of the
horse. I understand your position to be that your case doesn't depend on that
by any means? |
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