dtufail/nuremberg-trials-corpus huggingface dataset:
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 1aw 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.
SIR DAVID MAXWELL-FYFE: 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 25 Feb. 4G 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?
DR. HORN: 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 Goering, as expressed in Dr. Stahmer's interrogatories, that the Defendant Goering 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 Goering 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.
SIR DAVID MAXWELL-FYFE: 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.