dtufail/nuremberg-trials-corpus huggingface dataset:
DR KUBUSCHOK: When we consider briefly what Papen really did after taking over this mission to Ankara, and see that, as a result of his intervention in the spring of 1939, it was possible for Germany to exercise a moderating influence on Italy and for war to be avoided; and if we further consider that Papen succeeded later on in preventing the war from spreading to Turkey and the other southeastern countries, we can only say, in the light of events, that in taking over the mission against his personal feelings, he made the right decision. During the presentation of evidence we saw the extent of Papen's efforts to secure a peace through compromise as early as the year 1939. We must therefore his acceptance of the mission for this reason also-no matter what final success might crown his efforts, and even if there was only the smallest possibility of attaining the desired goal. Finally, his acceptance of such a position would be justified from the moral point of view if he had had even an infinitesimal success, as, for example, the rescue of 10,000 Jews from deportation to Poland which has been confirmed by Marchionini's affidavit. In this connection I want to discuss a misunderstanding which might arise from the judicial inquiry with reference to this affidavit. Marchionini points out in his affidavit that the lives of the Jews concerned were saved by Papen's intervention. On being interrogated Papen confirmed the correctness of the affidavit. This confirmation corresponds also to the facts. This does not mean, however, that the significance of that action, as recognized by Marchionini today, and mentioned for that reason in his affidavit, was recognized at the time. Papen knew, of course, that this deportation to Poland for an unknown purpose, and to an unknown destination, was an extremely serious matter. For that reason he intervened. Like Marchionini, he did not know what he now knows very clearly-namely, that the path of these people was destined to lead them not into deportation and hard labor, but sleight to the gas chambers.
DR KUBUSCHOK: Now I should like to refer to Document Papen-105, the questionnaire filled out by the last apostolic nuncio in Paris, Roncalli, who describes in detail from his own personal knowledge the steps Papen took in Church affairs and his attitude toward them. His Ankara activities have been described in detail by the witnesses Kroll and Baron von Lersner. They clearly indicate a unified peace policy, a peace policy which was independent of the military and political situations of the moment, and which laid stress on a peace through compromise even at the peak of the German victories. Rose and Kroll state that Papen was horrified by the outbreak of the Polish war, and that he condemned it from the first. How can this attitude and these activities be reconciled with the assertions of the Prosecution? Papen is supposed to have brought about the war in conspiracy with Hitler. The Prosecution believe they can deduce his guilt in this criminal act from his behavior years before the war. No facts have been submitted to show what might have turned the conspirator Papen into an advocate of peace. The Prosecution have rested their accusations on the insecure foundation of deduction and omitted examining whether their assertions were even remotely in accord with the whole personality of the defendant. In view of the nature of the Indictment, it is not enough to solve the problem by crediting him with a split personality and an opportunist attitude. The Indictment includes crimes of monstrous proportions. Such an Indictment must also take into consideration the personality of the accused. Participation in such conspiracy is only conceivable in the case of a man who identifies himself completely with the doctrines discussed in the proceedings under the name of "Nazism" and accepts their full implications. A conspirator, in the sense of the Indictment, can only be a man who has dedicated his whole life and personality to that aim. He must be a man no longer conscious of even the most elementary moral obligations.
DR KUBUSCHOK: A personality of this kind cannot be a temporary phenomenon; the predisposition to such a crime must be present in the character of the accused. In contrast to the distorted picture of Papen's character drawn by the Prosecution, his true personality has appeared very clearly in the course of these proceedings. We see a man whose origin and education are on traditional and conservative lines-a man of patriotic feeling, conscious of responsibility toward his country, and who for precisely these reasons is naturally considerate of his fellows. His personal ties with Germany's western neighbors and his knowledge of the world suffice in themselves to prevent him from looking at things from a one-sided point of view-according to his own patriotic wishes. He knows that life requires understanding and readiness to understand. He knows that international life, too, is built on sincerity and faith, and that one must stand by one's word. We have before us here a man who, on account of his deep religious feeling, the principle on which all his actions are based, must necessarily oppose the ideology of National Socialism. We have followed his political career and have seen that through all the periods of his activity he held fast to his basic political creed, which was built on these elements. In accordance with this fundamental principle and with full consciousness of his responsibilities, he did not evade any of the tasks assigned to him. And though at the end we witness the collapse of his hopes and the failure of his endeavors, this is no touchstone for the sincerity of his convictions. To arraign such a man at all under the charge of committing a crime in the sense of the facts established in the Charter was surely only possible on the basis of the simplifications which an Indictment on the count of conspiracy offers to the Prosecution from the legal point of view. Considering the facts in the case against Papen, even this interpretation must fail. The Prosecution have failed to prove that Papen, at any time, was involved in the alleged conspiracy.
DR KUBUSCHOK: The truth is opposed to this. In the evidence offered in refutation, facts are established which make it impossible to connect his person even remotely with the facts of the Indictment. The final conclusion is obvious: Franz von Papen is not guilty of the charge brought against him.
THE PRESIDENT: The Tribunal will adjourn. [A recess divas taken.]
THE PRESIDENT: I call on Dr. Flachsner, Counsel for the Defendant Speer.
DR. HANS FLACHSNER (Counsel for Defendant Speer): Mr. President, may it please the Tribunal: The Prosecution have charged the Defendant Speer with violations of all four points of the Indictment which essentially covered the stipulations of Articles 6(a) to (c). The French Prosecution, which substantiated more definitely the individual charges against the Defendant Speer, refrain from charging him with the violation of Article 6(a) of the Charter and demand only the application of Articles 6(b) and (c) against him. However, since the legal concept of conspiracy has frequently been dealt with during the oral proceedings by citing the person of the Defendant Speer as an example, and since it was asserted that the Defendant Speer also had made himself guilty within the meaning of Article 6(a) of the provisions of the Charter, details must be given by way of precaution. The defendant has, in addition, been charged with the planning, preparation, launching, or conduct of a war of aggression, or a war violating international treaties, although at the time when the defendant assumed the office of Minister of Armaments-which was only expanded to a Ministry for Armament and War Production 11,'~ years later-the German Reich was already at ever with all the countries to which it capitulated in May 1945. Thus, at the time the defendant took charge of government affairs, all the events mentioned under Article 6(a) had without exception taken place, and the Defendant Speer's activity did not alter the existing situation in the slightest degree. The defendant had done nothing at all to bring about this situation. His previous activity was that of an architect, who occupied himself exclusively with peacetime construction and did not contribute by his activity either to the preparation or the launching of a war violating international treaties. I refer to my document book, Page 19, Document 1435-PS.
DR. HANS FLACHSNER (Counsel for Defendant Speer): If the circumstances which Article 6(a) of the Charter materially and legally characterizes as criminal acts were applied to international law, and if the individual criminality of persons who bring about these conditions were generally recognized in international law, the Defendant Speer in my opinion could still not be held responsible for these conditions; for not the slightest evidence has been produced during the Trial thus far that Speer contributed in the least toward bringing about these conditions. In this connection we must consider that criminality of attitude requires that the person in question must have contributed in some way to bring about the circumstances which have been declared punishable, that is, he must have functioned as a cause of the result which was declared punishable. If, however, as in the case under consideration, the Defendant Speer entered the Government without having contributed anything at all to the so-called Crimes against Peace, he cannot be charged with criminal responsibility for this, even if such responsibility were applicable to other members of the Government. The Prosecution have asserted that by joining the Government the defendant had accepted, or rather approved of, the preceding Crimes against Peace. This is a concept taken from the field of civil law, and it cannot be applied to criminal law. Criminal law applies only to circumstances consisting of actions which serve to bring about the circumstances declared punishable. Nor is this altered by the introduction of the legal concept of conspiracy. In this connection reference may be made to Dr. Stahmer's detailed statement on conspiracy. The legal views set forth in that statement are also made the subject of my own statement. I refer to it, and to Professor Jahrreiss' statements, in order to avoid repetition. It can, therefore, be confirmed that the Defendant Speer cannot be charged with a so-called crime against peace.
DR. HANS FLACHSNER (Counsel for Defendant Speer): The personal interrogation of the defendant and the crossexamination regarding his activity in the Party have shown that Speer, by virtue of his position as an architect, exercised purely architectural and artistic functions even in the Party set-up. Speer was the Commissioner for Building in the Hess staff; it was a purely technical assignment and had nothing at all to do with any form of preparation for war. The Party, which strove to seize and influence all the vital functions of the people, had created the position of Commissioner for Building, to insure uniformity in Party buildings. In their building projects, the Gauleiter and the other Party offices could confer with this office, but they availed themselves of the opportunity only to a very limited extent.
THE PRESIDENT: Dr. Flachsner, the Tribunal think it might be appropriate, at some time convenient to you, if you were to deal with the question of the meaning of the words "waging of warfare of aggression" in Article 6 (a). I don't want to interrupt you to do it at this moment in your speech, but, at some time convenient to you the Tribunal would like you to give your interpretation of the words in Article 6 (a) "waging of a war of aggression."
DR.FLACHSNER: Yes, Mr. President. Perhaps I might return to this point later, Mr. President, when I have concluded this topic. Naturally, it was for purely artistic reasons that the Party took over responsibility for building. It strove to give its buildings a uniformly representative character. Considering the peculiar nature of the architectural feeling, it was natural that each architect should follow his own line in solving the problems put to him. The activity of the defendant as Commissioner for Building was, therefore, relatively restricted and of minor importance, since he did not even have an office of his own at his disposal. It would be erroneous to try to deduce therefrom any participation by the defendant in any Crimes against the Peace. The same is true of the defendant's other functions prior to and during the war up to his assumption of office as Minister. Although the defendant was given the ask of replanning the towns of Berlin and Nuremberg, this activity had nothing at all to do with Crimes against Peace. On the contrary, his activities must rather be regarded as hampering war preparations, as his task required large quantities of raw materials and equipment which might otherwise have been used directly or indirectly for rearmament. The construction projects assigned to Speer were, moreover, calculated and planned far ahead. They could only give Speer the impression that Hitler was counting on having a long period of peace. The defendant cannot, therefore, be said, prior to his assumption of office as Reich Minister, to have contributed directly or indirectly to the emergence of the events characterized by Article 6 (a) of the Charter as Crimes against Peace. The fact, too, that the defendant was a member of the Reichstag after 1941, cannot be quoted in support by the Prosecution because, as the Prosecution themselves pointed out, the Reichstag sank into complete insignificance under the totalitarian regime and became merely an institution which accepted and acclaimed the Fuhrer's decisions.
DR.FLACHSNER: Responsibility for war guilt is out of the question here, too; for no activity on the part of the Reichstag in connection with extending the war to the Soviet Union and the United States can be recognized. The French Prosecution, therefore, rightly refrained from charging the defendant with the violation of Article 6 (a) of the Charter. The Prosecution further charge the Defendant Speer with having participated in War Crimes committed during his term of office by forcibly transferring workers from the occupied countries to Germany, where they were employed for the purpose of warfare or of producing war materials. The following should be said in this connection. The Prosecution charge the defendant with violations of Article 52 of the Hague Convention on Land Warfare, which states that services may only be demanded of nationals of the occupied country to cover the requirements of the occupying forces, that they must be in proportion to the resources of the country, and that they must not oblige the persons concerned to take part in military actions against their native land. In Article 2, the Hague Convention on Land Warfare lays down that all countries participating in the Year in question must be signatories-general participation clause (Allbeteiligungsklausel). As the Soviet Union was not a signatory of the Convention on Land Warfare, the latter could apply to conditions created by the war against the Soviet Union only if the legal principles laid down in the convention were considered as universally valid in international law. We must start, therefore, from the principle that those areas belonging to signatories of the Hague Convention on Land Warfare must be judged on a different legal basis from areas belonging to nonsignatories of the treaty. In examining the question, we must first decide whether the deportation of laborers from territories occupied in wartime by an enemy power can be justified on the basis of Article 52 of the Hague Convention.
DR.FLACHSNER: Article 52 constitutes a limitation of Article 46 of the Hague Convention on Land Warfare, which lays down the principle that the population of occupied territories and their property are in general to be subjected to as little damage as the necessities of war will allow. Starting from this principle we must examine whether it involves the absolute prohibition of deportation for the purpose of securing labor for the essential war economy of a belligerent country. It must be remembered in this connection that the situation is altered if the deportation carried out by the occupying belligerent state is in accordance with agreements made with the government of the country occupied. The Prosecution have defended the view that such agreements are legally invalid because they were made under the pressure of the occupation and because the Government existing in France during the time of the occupation could not be considered as representing the French nation. The first point does not support the Prosecution's contention. The contents of treaties concluded under international law will always be influenced by the respective power of the contracting parties. In every peace treaty concluded between a victor and a vanquished state, this difference of power will be reflected in the 23 July contents. This is not, however, contrary to the nature of treatymaking. The second point, by virtue of which the Prosecution reject the plea of an agreement between the German Government and the French Government, then in power, relating to the assignment of labor, is equally ineffectual.. The so-called Vichy Government, then in power, was the only government existing in French territory; it was the lawful successor of the government in office before the occupation-and from the point of view of international law-by the fact that states which were at that time not yet involved in the war maintained diplomatic relations with it. It cannot.
DR.FLACHSNER: moreover, be assumed that the willingness shown by the French Government in this agreement to co-operate with the German Reich, which was then gaining military victories, ran counter to the real opinion of the French people. Reference can be made in this connection to Document R-124, Page 34 of my document book. Particular attention must be paid to the economic situation of occupied France at the time. After France's withdrawal from hostilities, the total blockade was extended to cover the whole of French territory in Europe, with the result that raw materials not produced in France were no longer obtainable, and production came to a standstill. Important sections of French production were, in this way, put out of action, and many workers deprived of the means of earning a living. In addition, the French Government did not pledge themselves unconditionally to send labor to Germany, but made this dependent on concessions such as the liberation of prisoners of war, et cetera. Whether, and in what measure, the hopes placed in the treaty by the French Government were actually fulfilled, is irrelevant in determining whether the treaties in question were authentic treaties or not. From the legal point of view, there is no doubt that these agreements have the character of treaties. From this point of view, there is no justification for the accusation made by the Prosecution that workers were taken from occupied French territory against their will and, therefore, illegally. No judgment of the legality of the measures relating to the workers from Belgium and Holland can be based on agreements such as those concluded between the German and French Government offices, since in those countries the Government had left the country, and consequently no political authority existed. The general secretaries remaining there could not be considered as representatives of the Government, and the decrees regulating the dispatch of workers to Germany were enacted by order of the Reich commissioners or the military commander. Dr.
DR.FLACHSNER: Steinbauer in his exposition on the Defendant Seyss-Inquart's activities in Holland has already explained in detail that particular rules must apply to those countries and to the dispatch of laborers from them. In order to avoid repetition, I refer you to these remarks. With regard to the Eastern countries, we must start with the fact that the Soviet Union did not sign the Hague Convention on Land Warfare. It 'remains, however, to be seen whether the principle laid down in Article 46 of the Hague Convention on Land Warfare, with reference to the treatment of civilians in war, and the case of occupation of a belligerent country by the enemy, must not be considered as a universally valid international law and therefore applicable even if the belligerent country concerned is not specifically a party to the Hague Convention on Land Warfare. An examination of this question would show the deportation of workers from occupied territories to be illegal unless some special factor emerges to cancel its illegality. A state of emergency in the sense of international law can be considered as one such factor. It is true that it is a matter of international law whether and in what measure such an emergency can legalize a practice which is in itself illegal; but such a state of emergency must be admitted in cases when the state is fighting for its bare existence. It may be considered that after the Allies had declared the unconditional capitulation of Germany to be their goal such a state of emergency existed for the German State, since there remained no doubt that the enemy intended to destroy the existing German State to its very foundations.
DR.FLACHSNER: This state of emergency may, however, be considered as existing at an earlier period, when it became clear that the war had ceased to be a settlement of differences between two states, in the sense of the Hague Convention on Land Warfare, and had become a war aimed not only against the fighting forces of the belligerent nations but also, and primarily, at their economic forces, and thus at their so-called war potential. The Hague Convention on Land Warfare is based upon a conception of war which was already out of date in the first World War and much more so in the second. If in the first World War the belligerents sought to attack each other's economy by blockade and counterblockade, this is all the more true of the second World War, in which, in addition to the more indirect effects of the blockade, they introduced the element of direct attack on the enemy by destroying his productive installations by means of aerial war. In contrast to the conception of war on which the Hague Convention on Land Warfare is based, a complete change has come about. In view of the fact that a country can only resist an adversary who is well-equipped from the technical point of view if it has at its disposal an unimpaired capacity for production, the main objective in this war was the destruction of the enemy's capacity for production. This was the aim of the British blockade not only of Germany but of every country in the German sphere of influence. Dr. Kranzbuhler has already discussed the questions connected with this subject. I herewith refer to the relevant parts of his statement. From this point of view, too, the war in the air was waged primarily not only to attack German national territory but also to destroy production capacity and possibilities in the occupied territories.