THE TRIBUNAL (Mr. Biddle): 1921? Now, was the conspiracy to wage
aggressive war begun on that date?
SIR DAVID MAXWELL-FYFE: Yes, it was begun in this way that Hitler had
said, “I have certain objects, one of them being to break the Treaty of
Versailles—which means also breaking the treaty of friendship with the
United States which has the same clauses—and I shall attain these
objects, if necessary by using force.” That was always one of the
beliefs and aims of the Party.
Now, if people agree to commit an illegal act, or a legal act by illegal
methods, that is, _ipso facto_, the committing of the offense of
conspiracy. Conspiracy is constituted by the agreement, not by the acts
carrying out the agreement. Therefore, in that way the conspiracy starts
in 1921. But, as Mr. Justice Jackson made clear in his opening and as I
have repeated this morning, the aims—and more particularly the methods
by which the conspirators sought to achieve these aims—grew and
acquired particular forms as the years went on. They appear to have
acquired the special form and to have decided on the method of breaking
the Treaty of Versailles in 1934 and bringing that to fruition in 1935.
I am not seeking to avoid answering the question of the learned American
Judge; but I am putting, in summary form, exactly what is stated in both
the statement of offense and the particulars of offense under Count One,
and I hope that I will not be thought to be avoiding the question. I am
not doing that. I am trying to put it in the clearest and most accurate
language.
THE TRIBUNAL (Mr. Biddle): Well, I wouldn’t ask you, were I clear about
the matter in my own mind, Sir David. Let me ask you a few more
questions.
The conspiracy to commit Crimes against Humanity—was that begun in
1921?
SIR DAVID MAXWELL-FYFE: To the extent that a general readiness was
adopted to use all methods, irrespective of the rights, safety, and
happiness of other people, it was commenced with the start of the Nazi
Party. Ruthlessness and disregard for the rights, and safety, and
happiness of others was a badge of the Nazi Party program, insofar as
the rights and happiness of others might interfere with their aims, from
the very start.
Again, the translation of that into practical methods developed as the
years went on, and in a period well before the war—Mr. Biddle will not
put it against me that I should remember exact documents in an answer
straight off the rule to his question, but well before the war—there
will be found again and again in the speeches of Hitler to his
associates that utter ruthlessness and disregard for non-German
populations should be employed. That is the foundation of the War Crimes
and Crimes against Humanity, and it was initiated and grew in the method
which I have stated.
THE TRIBUNAL (Mr. Biddle): Did you answer the President with respect to
the question of whether the conspirators joining later became
responsible? If that were true, then this defendant would be responsible
for acts running back to 1921.
SIR DAVID MAXWELL-FYFE: There are two legal conceptions which have to be
borne in mind in considering that point. I can only speak with knowledge
on the law of England, but I understand that the law of the United
States is very much the same.
In England there is a common law offense of conspiracy. There are also
certain statutory offenses, but there is a common law offense of
conspiracy. The gist of that offense is, as I have already stated,
entering into an agreement to commit an illegal act or a legal act by
illegal means. As far as a conviction for conspiracy per se is
concerned, there is no doubt about the law of England. If someone joins
a conspiracy at a late state, a conspiracy to do any illegal act, he can
be convicted of conspiracy to do that act however late he joins.
The usual analogy, with which I am sure the learned American Judge is
familiar, is that of a stage play. The fact that a character does not
come in until Act 3 does not mean that he is any the less carrying out
the design of the author of the play to present the whole picture which
the play embraces. It is a very useful analogy because it shows the
position. That is one aspect of the law, and on that there is no doubt
at all.
The other aspect of the law is as to how far those who act in consort to
commit a crime are responsible for each other’s acts, that is,
irrespective of the substantive offense of conspiracy. If one may take
an example—a highly fantastic one but I think it raises the
point—assume that you had a conspiracy on the part of road operators to
wreck railway trains, and a number of road operators agreed in December
to wreck a train on the 1st of January and to wreck a further train on
the 1st of February. Between the 1st of January and the 1st of February,
another road operator joins the conspiracy. I hope I have got rightly
the point in My Lord’s mind and in the mind of the learned American
Judge. Then there is, as far as I can see, some doubt as to whether that
road operator would be liable for a murder committed in the wrecking
that took place on the first of January.
I hope I have made my point clear. I am postulating someone who joins a
conspiracy on the 15th of January, after the first wrecking has been
carried out during which someone has been killed, and therefore those
who consorted with regard to the first wrecking are guilty of murder.
But as to the person who joins after that, there is some doubt as to
whether he acquires retroactive responsibility. In English law it would
appear to be at least doubtful—it certainly is arguable that in
American law he would, as I have been told the decision.
THE TRIBUNAL (Mr. Biddle): I think you have made that very clear, Sir
David, but what I am getting at is what the Prosecution claim in this
case.
SIR DAVID MAXWELL-FYFE: I am very sorry if I have been theoretical, but
it has been rather a difficult point, and I wanted to relate it to the
law with which I am most familiar.
With regard to the present case, the Prosecution say that the defendants
do become responsible for the consequences of acts done in pursuance of
the conspiracy. It is rather difficult to speak entirely in vacuo in the
matter; but if one may take, for example—again I speak from memory—the
Defendant Speer, who comes on the scene rather late, if my recollection
is right, he then becomes minister for production and armaments and
makes the demands for the slave labor which were fulfilled by the
Defendant Sauckel.
In the submission of the Prosecution, there would not be any difficulty
in convicting the Defendant Speer on all counts, assuming that the
Tribunal accepted the evidence of the Prosecution. By his actions, he
has conspired to commit a Crime against Peace; he has joined and entered
into the conspiracy to carry on aggressive war; he has taken part in the
waging of aggressive war by making the demands for the slave labor; he
has instigated a war crime, namely the ill-treatment of populations of
occupied countries; and also, by instigating and procuring the action of
the Defendant Sauckel, he has committed Crimes against Humanity in that
he has participated in actions which are condemned by the criminal law
of all civilized countries; and probably—I am speaking from memory
now—these actions have taken place in countries where it is arguable
whether they were strictly occupied countries after an invasion, as in
Czechoslovakia.
On the method in which our Indictment is drawn, there is no difficulty,
the Prosecution submit, in convicting a defendant who emerges in
evidence at a later date on each of the counts.
THE TRIBUNAL (Mr. Biddle): Just one more question and then I am through.
You understand I am asking these questions only in performance of what
we are doing to determine what witnesses should be called, and therefore
the year 1921 as the beginning of the conspiracy becomes a year
obviously not remote in time when we consider witnesses. Would that not
follow?
SIR DAVID MAXWELL-FYFE: A year not. . . ?
THE TRIBUNAL (Mr. Biddle): Not remote in time with relation to the
conspiracy.
SIR DAVID MAXWELL-FYFE: No, it is part of the particular Indictment.
DR. HORN: Mr. President, may I make some brief remarks in this
connection?
I have based myself on the general Indictment as regards the time of the
conspiracy. The general Indictment states simply and solely that the
definitive point of time which one can take as the start of the
conspiracy is any time before 8 May 1945.
The Chief Prosecutor of the United States, in his opening statement,
described the Party program, in the form in which it was framed in ’21
and revised, I believe, in ’25, and characterized it as legitimate and
unimpeachable—according to the German translation—insofar as these
aims were not to be attained by war.
Now, assuming that the Party leadership was to pursue these objectives
by war, it is, first of all, not clear with what point of view these
goals were set; and the Defense as well as the Prosecution must prove
that from this time on these aims were to be attained through war.
Furthermore, it can hardly be denied that only a very few people, and
perhaps only one person, had knowledge of war plans.
Now, as regards the various defendants, as well as my own client, the
times at which they came into contact with the Party are quite
different.
First, they were ordinary Party members, so they had consequently to
assume, as the Chief Prosecutor did, that the Party program of which
they had become adherents, was legally unimpeachable.
Now the question arises for the Defense, and above all, for conducting
the defense: When did the individual client enter the sphere in which it
was known that the aims were to be attained by war, aims which so far he
had considered legitimate and unimpeachable, that is, aims which
according to his previous assumption, were not to be pursued by recourse
to war? Had the Defendant Ribbentrop already entered the circle of
conspirators when in 1932 he contacted Party circles? Was he, as
Ambassador in London, already “in the know” and thereby a party to the
conspiracy; or did he only realize, at the time of the Hossbach
document, that the political aims of the Party were to be materialized
through war? Or when?
The Defense must be aware of the danger that the defendant will be
accused by the Prosecution that he joined the conspiracy the very
earliest moment he came in contact with the Party and its aims. In this
connection I can refer to the words just spoken by Sir David who said
that the foundation of the conspiracy was laid in 1921. I ask—or
rather—is it my task or my duty to prove through witnesses that my
client, for instance, up to 1939 was striving for peaceful relations in
order to refute that he then already planned or prepared wars or took a
decisive part in these plans and preparations?
From this point of view, I ask the Tribunal to weigh the applications
for the witnesses and subjects of evidence as set forth in my brief.
Furthermore, I expressly maintain that this discussion has not clarified
the question: When does the conspiracy start?
SIR DAVID MAXWELL-FYFE: My Lord, I don’t want to repeat any general
argument. My desire is that Dr. Horn should know what case Ribbentrop
has to meet, and I have already stated that, but I want to make it quite
clear.
According to the entry in _Das Archiv_ Ribbentrop entered the service of
the Nazi Party in 1930, and between 1930 and January 1933 was one of the
instruments and vehicles by which the accession of the Nazi Party to
power took place. That semi-official publication says that some meetings
between Hitler and Von Papen and the Nazis and representatives of
President Von Hindenburg took place in his house at Berlin-Dahlem. That
is the first point. It is quite clear and it is all set out in the
transcript.
The second stage is that he held certain offices between 1934 and 1936
that show that he was an important and rising Nazi politician and
negotiator in the realm of foreign affairs. In 1936 he justified the
action of Germany in breaking the Versailles Treaty. The defendant
justified it before the League of Nations. Therefore, he has to meet
that point.
In the same year he negotiated the Anticomintern Pact. He has to explain
that.
From that time onwards, there are a succession of German documents, all
referred to in the transcript for the 8th and 9th of January, which show
exactly the part this defendant played in 10 sets of aggression against
10 separate countries.
I respectfully submit to the Tribunal that that is a perfectly clear
case which this defendant has to meet. There is no doubt about it at
all.
I have already summarized the case on the War Crimes and Crimes against
Humanity. Again Dr. Horn will find it dealt with, with every document
mentioned, in the transcript for the 9th of January.
I respectfully submit that whatever else may be said, the particularity
and clarity of the case against the Defendant Ribbentrop is manifest.
DR. HORN: Mr. President, in my presentation of defense against the
charges lodged by Sir David Maxwell-Fyfe in his special plea for the
Prosecution, I have offered rebutting evidence in answer to these
charges. I have, however, not only to confine myself to refuting those
charges just mentioned, but I have—and thus I have to repeat what I
just said—to consider all these charges under the point of view of
conspiracy, as according to the submission of the Prosecution, the
Defendant Ribbentrop is party to this conspiracy; and the question
cannot be avoided: When did the conspiracy start? Taking the supposition
that my client took part in a conspiracy, this participation did not
start in 1930, as submitted by the Prosecution—I shall be able to
refute this—but only in 1932; but I should like to prove through
witnesses and otherwise that then and later he did not join in any
conspiracy.
THE PRESIDENT: Well now, perhaps you will get on with the documents
which you want.
SIR DAVID MAXWELL-FYFE: My Lord, with regard to the documents, I have
had the opportunity of discussing it informally with Dr. Horn; and I
understand that with regard to Documents 1 to 14, Dr. Horn really wants
these books as working books which he can read and use and, if
necessary, take extracts from to illustrate his argument and point at
that time. Now, that is a matter of course to which we make no objection
at all. I have consistently taken the view that there should be no
objection to any book for working purposes for the Defense.
What I do want to ask is this, that if Dr. Horn or any other Defense
Counsel wishes to use an extract from a book when it comes to presenting
his case, he will let us know what the extract is and, if necessary, for
what purpose he is going to use it. I say “if necessary” because in many
cases it will be quite apparent for what purpose, but in some cases it
may have special significance; and if they let us know, then any
question of relevance can be argued when the matter is produced in
court.
THE PRESIDENT: But that seems to me to be necessary in order that the
documents should be translated.
SIR DAVID MAXWELL-FYFE: Quite; yes.
THE PRESIDENT: I mean that the part of the book or part of the document
which Dr. Horn wants to use should be translated.
SIR DAVID MAXWELL-FYFE: But as far as providing the Defense with working
copies, any co-operation that the Prosecution can do in that way they
will gladly do. That is a matter on which we should be anxious to help.
The last five documents named fall into rather a different category. I
haven’t discussed these with Dr. Horn; but I respectfully submit—and it
is the united view of the Prosecution—that complete files of newspapers
will be difficult to justify as evidence before the Tribunal, but again,
if Dr. Horn wants them for matter of reference, then it just becomes a
question of possibility.
I am not sure with regard to these whether it is desired to use them or
whether it is merely desired to have them to refer to. I don’t know
anything about Number 19, the withdrawn number of the _Daily Telegraph_,
but I suppose the Secretariat can make inquiries about that from the
proprietors.
DR. HORN: The last item I should like to take up: Now that the Trial has
already progressed so far that I now require these documents in order to
be able to make use of them for rebutting evidence, may I ask that
copies of those newspapers—it is a matter of three or four newspapers,
which are bound in 1-month volumes—be made available to me as soon as
possible with the help of the Tribunal.
THE PRESIDENT: What do you say about the withdrawn number of the _Daily
Telegraph_? You haven’t yet indicated why it would be relevant.
DR. HORN: On the 30 or 31 of August 1939, an edition of the _Daily
Telegraph_ was withdrawn because it contained extensive details of the
contents of the memorandum which the then Reich Foreign Minister, Von
Ribbentrop, had read to the British Ambassador, Henderson, in Berlin. It
is asserted—also by the Prosecution—that Ribbentrop read this note to
Henderson so rapidly that the latter was unable to understand the
essential points. From the issue of the _Daily Telegraph_ of 31 August
1939, it will thus appear to what extent Ambassador Henderson was in a
position to understand Ribbentrop’s statements or the oral presentation
of that memorandum as Von Ribbentrop read it. I therefore ask that this
number of the _Daily Telegraph_ be procured, and I am convinced that the
Prosecution is able to obtain this issue by the means at their disposal
but not available to us.
SIR DAVID MAXWELL-FYFE: My Lord, this is the first time that I have
heard of this withdrawn copy apart. . .
THE PRESIDENT: The first time you have heard there was any copy
withdrawn?
SIR DAVID MAXWELL-FYFE: I have never heard it except from Dr. Horn that
there was a copy withdrawn, and I shall probably have to investigate the
matter.
I only want to say one thing, that of course Dr. Horn has just made one
point about the question between this defendant and Sir Nevile
Henderson. It is the case for the Defendant Göring, as expressed in Dr.
Stahmer’s interrogatories, that the Defendant Göring had caused the
contents of this memorandum to be given unofficially to Mr. Dahlerus
behind the Defendant Ribbentrop’s back. That is the case which he is
making in the interrogatories, so that it by no means follows that Sir
Nevile Henderson’s account of the interview was wrong, even if an
account of the document had come out.
I don’t want to make a point of the memory of Sir Nevile, but shall
investigate this matter, which I have just heard now for the first time.
DR. HORN: May I add for the fuller information of the Tribunal that the
Defendant Göring made the memorandum available to Ambassador Henderson
only at a considerably later date. It is, therefore, of decisive
importance when and whether Henderson acquired knowledge of this
memorandum and whether it happened in good time so that he could still
communicate it to the Polish Government within the proper time.
May I ask therefore for the procurement of this most important edition
of the _Daily Telegraph_.
THE PRESIDENT: Thank you, Dr. Horn.
We will continue with the evidence against the Defendant Keitel.
DR. NELTE: Mr. President, may I be allowed to make a remark preliminary
to the discussion about the evidence submitted for Defendant Keitel. I
hope the discussions about the various applications for evidence will
thereby be considerably shortened. From my written application you will
see that in respect to the majority of the witnesses one main subject of
evidence recurs again and again, namely, the position of Defendant
Keitel as Chief of the OKW and in his other official functions, his
personality, particularly, also his relations to Hitler, and the
clarification of the chain of command within the Armed Forces.
I shall present evidence that the idea of the public and the Prosecution
regarding the personality of the Defendant Keitel, his scope, and his
activities is incorrect. No name has been so frequently mentioned in the
course of this proceeding as that of the Defendant Keitel. Every
document which dealt in any way with military matters was identified
with the OKW, and the OKW, in turn with Keitel. The defendant believes,
and I think with some justification. . .
THE PRESIDENT: The Tribunal appreciates the general points which you
will probably want to argue on behalf of the Defendant Keitel when you
come to make your final speech, but it does not appear to the Tribunal
to be necessary that you should do so now.
DR. NELTE: I mention it only to make possible a comprehensive appraisal
of all witnesses offered for the presentation of evidence. I think Sir
David shares this opinion with me—he already discussed it with me on
Saturday—and it was my intention to expound in a preliminary way the
subject of evidence which otherwise had to be presented in five or six
different cases.
THE PRESIDENT: Do you mean, Dr. Nelte, that you will be able to deal
with all your witnesses in one series of observations?
Could you help us, Sir David?
SIR DAVID MAXWELL-FYFE: I think I can help.
Apart from the witnesses who are codefendants that are mentioned by Dr.
Nelte, whom of course the Tribunal has already provided, Dr. Nelte asks
for Field Marshal Von Blomberg, General Halder, General Warlimont, and
the Chief Staff Judge of the OKW, Dr. Lehmann. The Prosecution have no
objection to these witnesses, because they are called to deal with the
position of the Defendant Keitel as head of the OKW.
With regard to the witness Erbe, who is, I think, a civil servant called
on a specific point as to his position in the Committee for Reich
Defense. . .
THE PRESIDENT: Have the interrogatories already been granted?
SIR DAVID MAXWELL-FYFE: Yes; we have always said that interrogatories
would be sufficient and he should not be called as an oral witness.
Then with regard to the next witness, Roemer, whom Dr. Nelte wishes to
call to say that the decree for the branding of Soviet Russian prisoners
of war was announced by mistake and retracted at once on the order of
Keitel, that is obviously relevant to one matter in the case, and we
don’t object to that.
We don’t object to General Reinecke, who is called on various matters
relating to prisoners of war.
With regard to Mr. Romilly, so long as it is confined to interrogatories
which have been allowed, and he is not called orally, we have no
objection.
My friend, M. Champetier de Ribes, will have a word to say about
Ambassador Scapini. I have asked him to deal with that matter in French.
Then we come to two witnesses, Dr. Junod and Mr. Petersen. At the moment
the Prosecution cannot see how these witnesses are needed in addition to
General Reinecke. And of course they would object if the purpose of the
testimony is to show that the Soviet Union did not treat its prisoners
of war properly. If that is the purpose, they would object.
Then the calling of Dr. Lammers has been granted by the Tribunal.
Then finally, there are three witnesses who are all called in order to
show that at discussions between Hitler and the Defendant Keitel, two
stenographers had to be present. The Prosecution do not regard that as a
very vital part of the case, and if Dr. Nelte will produce an affidavit
from one of these gentlemen, then the Prosecution are not in a
position—and do not desire—to dispute the point. Frankly, if I may say
so, and with the greatest respect, we are not at all interested in that
point, and therefore will be content with an affidavit if produced.
If I might summarize—and I hope I am merely trying to help Dr.
Nelte—the only matters which, as far as the Prosecution are concerned,
require further discussion is the matter of what the French Delegation
will have to say about Ambassador Scapini, and my objection to Dr. Junod
and Mr. Petersen, and my suggestion as to an affidavit for the last
three witnesses. There is very little between us, if I may say so, with
respect to Dr. Nelte’s witnesses; on the whole they seem to the
Prosecution to be obviously relevant and in that case we make no
objection.
There is one rather sad fact with regard to the witness Blomberg, of
which I think Dr. Nelte has been informed. I understand that Field
Marshal Von Blomberg is very ill at the moment and cannot be brought
into court, so that I am sure, Dr. Nelte, the Defendant Keitel will be
the first to accept some method of getting his evidence which will not
necessitate that fact.
DR. NELTE: I thank Sir David for his kindness, by which my task has been
made easier.
I should like to state in addition that in respect to the witness, Dr.
Erbe, I shall put written questions. To the witness Petersen I have
already submitted written questions, and on the answers received depends
whether I shall call him in person. As to witness Junod, I believe I may
say that his examination is relevant because the Soviet Prosecution has
submitted that an offer to apply the Geneva Convention had been rejected
by Keitel. Dr. Junod is to be examined as a witness that, by order of
the OKW Department of Prisoners of War, he contacted the Soviet Union in
order to secure the application of the Geneva Convention but that this
could not be brought about. I believe that if only General Reinecke is
to be examined as a witness on this question, it could perhaps be
objected that he, as chief of the Department of Prisoners of War, cannot
give sufficient testimony. Neither can General Reinecke testify to what
Dr. Junod actually did. Consequently I ask that this witness be
approved. As far as the stenographers are concerned, I ask approval to
submit an affidavit.
As to Ambassador Scapini, I should merely like to point out that he was
the permanent representative of the French Vichy Government and that he
was particularly concerned with the question of caring for prisoners of
war in Germany. I believe that this is adequate reason for considering
him relevant. To be sure, I did not know his address, and hope that the
French Prosecution can help me in that regard.
M. AUGUSTE CHAMPETIER DE RIBES (Chief Prosecutor for the French
Republic): We see no objection to hearing the former Ambassador Scapini,
if his testimony can in our opinion have the slightest bearing on the
search for truth; but the very reasons which Dr. Nelte gives for the
calling of this witness seem to me to prove the complete absence of
relevance of this testimony. The former Ambassador Scapini, says the
honorable representative of the Defense, could point out and say that he
freely exercised his control in the prisoner-of-war camps and moreover
that these prisoners of war had a representative, but this we are quite
willing to grant to the Defense. It is perfectly true that Germany had
consented to allow the former Ambassador Scapini—who we know was
wounded in the war of 1914 and blinded—to visit the camps of prisoners
and hear the French prisoners of war though he could not see them.
But the question is not to find out whether the Germans had been willing
to allow a blind inspector to visit the camps. The only question
presented by the Indictment is whether, in spite of the visits of this
inspector and in spite of the presence of a special representative in
the camps, there did not occur in these camps acts contrary to the laws
of war.
On this point the former Ambassador Scapini could surely give no answer,
for obviously nothing happened in his presence. This is why the French
Prosecution considers that the testimony of the former Ambassador
Scapini would shed no light in this search for truth.
DR. NELTE: It was not known to me that Ambassador Scapini was blind. Not
he himself, but rather the delegation of which he was head, made regular
inspections of the prisoner-of-war camps for French soldiers. It is
certain that in prisoner-of-war camps things happened which violated the
Geneva Convention, but the question at issue here is that the Defendant
Keitel and the OKW, as the supreme authority, did—or at any rate, tried
to do—all that they, as highest authority, had to do.
The OKW had no command jurisdiction in the individual camps. It had only
to issue instructions as to how prisoners of war were to be treated and
had to permit the protecting powers to visit the camps.
THE PRESIDENT: Would interrogatories be satisfactory, supposing we
thought it proper to administer them to Mr. Scapini?
DR. NELTE: An interrogation in Nuremberg? Could Ambassador Scapini be
heard in Nuremberg?
THE PRESIDENT: I was asking whether interrogatories would be
satisfactory. I imagine Mr. Scapini is not in Nuremberg. Written
interrogatories, I mean, of course, where I have mentioned them.
DR. NELTE: I ask for a ruling on whether the written questions which I
first should like to put will be sufficient or whether another ruling
will be necessary. So I assume that first I shall interrogate Ambassador
Scapini in writing and on his answer it will depend whether. . .
THE PRESIDENT: Yes, in writing. Will that be satisfactory to you, M.
Champetier de Ribes?