Then there is a similar position with regard to the Netherlands.
The third main category is the treatment of the Jews. Again, there is an American official document, the report of Ambassador Kennedy; there is a large Foreign Office statement on the policy towards the Jews; and there is a document showing the If Dr. Horn will consider these various points, which are January, except the last point, I don't think he will find that there
THE PRESIDENT: Sir David, the Tribunal would like to know conspiracy started; and secondly, they would like to know whether you
SIR DAVID MAXWELL-FIFE: If I might deal with the questions in set out in Count I of the Indictment.
The Prosecution say that the essential part of the conspiracy that the Nazi Party should obtain political and economic control of Germany in order that they might carry out the aims, set out in Articles 1 and 2 of the Nazi Party program. That part of the conspiracy started with the emergence of the Nazi Party as a force in German politics, and was fully developed in January 1933. At that time it was the aim of the Nazi Party to secure the breaches of the Treaty of Versailles and the other matters set out in these articles, if necessary by force.
the Indictment, the conspiracy was not static; it was dynamic. And, in 1934, after Germany left the League of Nations and the Disarmament Conference, the aggressive war aspect of the conspiracy increased in momentum. was introduced and the Air Force cane into being, through 1936 when the Rhineland was re-occupied, the securing of Germany's objectives-the objectives of the Nazi Party--if necessary by aggressive war, became a stronger, clearer and more binding aim. November 1937, when Hitler declared that Austria and Czechoslovakia would be conquered at the earliest opportunity. That was succeeded by the acquisition of Austria in March, 1933, and the "Fall Gruen" against Czechoslovakia, which originated in May, 1935, to be carried out before October. war followed the well-known and clear technique of attacking one country or taking aggressive measures against one country, and giving assurances to the country that was next on the list to be attacked. takes a clear course, which I have just mentioned in outlining the aggression against the Defendant Ribbentrop. I may summarize it by saying that the Prosecution submit that the Nazi Party was always engaged in this agreement and concerted action to get control of Germany and carry out its aims, but that the aggression crystallized and became clear from 1934 and the beginning of 1935 onwards.
THE TRIBUNAL (Judge Biddle): Sir David, I would like to ask you a few questions in connection with this. began, or you must not be able to give us the date. Now, is it the contention that the Prosecution does not know when the conspiracy began?
If you do know, would you tell us?
SIR DAVID MAXWELL-FYFE: The conspiracy began with the formation
THE TRIBUNAL (Judge Biddle): And what was that date?
SIR DAVID MAXWELL-FYFE: 1921.
THE TRIBUNAL (Judge Biddle): 1921?
SIR DAVID MAXWELL-FYFE: Yes.
THE TRIBUNAL (Judge Biddle): Now, was the conspiracy to wage aggressive war begun on that date?
SIR DAVID MAXWELL-FYFE: Yes, it was begun in this way. Hitler had said, "I have certain objectives, one of them being to break the attain these objectives, if necessary by using force."
That was 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 went on.
They appear to have required the special form and to have the question.
I am not doing that. I am trying to put it in the THE TRIBUNAL (Judge Biddle): Well, I wouldn't ask you except to clarify the matter in my own mind, Sir David.
Let me ask you a few more questions. 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, in so far as the rights and happiness of others might interfere with their aims, from the very start. went on, and in a period well before the war -- Mr. Biddle will not put it against me that I should not 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 (Judge Biddle): Bid you answer the President with respect to the question of whether the conspirators joining later were responsible? If that were true, then this defendant would be responsible for acts running back to 1921.
SIR DAVID MAXWELL-FYFE: Well, 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. 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 first of January, and to wreck a further train on the first of February. Between the first of January and the first of February, in other 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 (Judge Biddle): I think you have made that very clear, Sir David, but what I am getting at it 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.
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 is-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. difficulty, the Prosecution submit, in convicting a defendant who emerges in evidence at a later date on each of the counts.
THE TRIBUNAL (Judge 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?
SID DAVID MAXWELL-FYFE: Not-
THE TRIBUNAL (Judge 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 remarks in answer to Sir David Maxwell-Fyfe. conspiracy. The general accusation states that the definitive point of time from which one could depart is any time before the 8th of May, 1945.
the Party program in itself is a program of '21, later revised, and these points of the reply program in so far as these goals cannot be pursued through war. Now. if we examine these goals and Suppose that they are pursued by war; it we first dubious from what point of time on these actually became the goal of the party and both the Defense and Prosecution must prove that from that point of time one, tie pursuit of these goals was to take place in the form of was. only a very few people and perhaps only one person, know of it. client, the times at which they join are varied, and also the times at which they came in touch with the Party itself. Some of them were simply Party members, and we must consequently assume, as the Prosecution does, that the Party program was also their own program. conduct of the defense. When can the individual defendant be considered to have entered into the sphere of those who knew that the goals could only be pursued by war, which he did not know before that time and which he had previously supposed were to be pursued without resource to war Was Ribbentrop a member of the innter circle of the conspiracy? Before 1932 was he in touch with party policy? was he, as ambassador, aware of the conspiracy, or was he only party to such at a later date and only found out at this later date that the Party intended to pursuits Its goals through war? From the earliest time in which the defendant come in touch with the party, it is assumed by the Prosecution that from to at tome on he was a member of the conspiracy. began in the year 1921. It is my task to prove though witness that my client, for example, until the year 1939 was pursuing peaceful time. I must do so in order to refute the contention that he was preparing a war or had anything precisely to do with plans for formulation of war.
of the witness that I mentioned in brief. I state explicitly that this discussion has not answered the question: When did the conspiracy begin?
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. 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 Bergenthalen. That is the first point. It is quite clear and it is all set out in the transcript. 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 Anti-Comitern Pact. He has to explain that. all referred to in the transcript for the 8th and 9th of January, which show exactly the part this defendant played in ten sets of aggression against ten separate countries. case which this defendant has to meet. There is I have already summarized the case on the war crimes and crimes against no doubt about it at all.
humanity. Again Dr. Horn will find it dealt with, with every document mentioned, in the transcript for the 9th of January. and clarity of the case against the defendant Ribbentrop is manifest.
DR. HORN: Mr. President, in my defense I have referred to the statements orally made by Sir David. I have not only taken the point of view of refuting these individual points, but I must now return to what Sir David just said. consider them from the point of view of the conspiracy, for Ribbentrop, according to the statement of the prosecution, was a member of this conspiracy, and we have yet to answer the question: When did this conspiracy begin? participation in the conspiracy began in the year 1932, contrary to the assertion of the Prosecution, and I should like to we documents and witnesses to prove that then and later he entered into no 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 a all. I have consistently taken the view that there she old be no objection to any book for working purposes for the Defense.What I want to ask is this, that if Dr. Horn or any otherdefense 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 bock 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 cooperation that the Prosecution can do in that way they will gladly do. That is a matter on which we should be anxious to help. 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 matters of reference, then it just becomes a question of possibility. or whether it is merely desired to have then to refer to. I don't know anything about No. 19, the withdrawn number of the Daily Telegraph, but I suppose the secretariat can make inquiries about that from the proprietors.
DR. HORN: I should like to remark on this last point, Mr. President.
basis for my case. I should like to ask about the numbers of these newspapers. It is a matter here of four newspapers or three, bound up by months. The numbers of these newspapers will be made available to the Court.
THE PRESIDENT: What do you say about the withdrawn number of the Daily Telegraph?
You haven't yet indicated whether it would be relevant.
DR. HORN: In August, 1939, a statement of the Daily Telegraph was withdrawn because it had the greatest details about the memorandum which the then Foreign Minister von Ribbentrop submitted to the English Ambassador, Henderson, in Berlin. It is asserted by the Prosecution as well that Ribbentrop read this note to Henderson so rapidly that he was unable to understand the essential points of it. will be seen to what extent Ambassador Henderson was in a position to understand Ribbentrop's oral presentation of that memorandum. I am convinced that the Prosecution is able to get its hands on a copy of this paper, since it has it at his disposal, but it wasnot presented to us.
SIR DAVID MAXWELL-FYFE: My Lord, this is the first time that I have heard of this withdrawn copy apart -- in this application, and it is obviously a point on which I -
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 Neville Henderson. It is a 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 Neville 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 Neville, but shall investigate the matter, which I have just heard now for the first time.
DR. HORN: May I add, to clarify this matter for the Tribunal, that the Defendant Goering was only at a much later date in touch with Ambassador Henderson and made the memorandum available to him. It is very important when Henderson received this memorandum and at what time he became aware of its contents, in order to exploit the possibility of making it available to the Polish Government at the right time.
Telegraph be procured.
THE PRESIDENT: Thank you, Dr. Horn.
DR. NELTE (Counsel for Defendant Keitel): Mr. President, permit me to make a few prefatory remarks before I request my various witnesses and documents. I hope that the trial can be materially shortened in duration through this application I am about to make. theme that keeps returning, namely, the position of the Defendant Keitel as Chief of the OKW and in his other official functions, his personality and in particular his relationship to Hitler. Further, the clarification of the command relationships in the Wehrmacht. is false which public opinion and the Prosecution have drawn of the personality of the Defendant and of the possibilities of his effectiveness. No name has been so frequently mentioned in the course of this proceeding as that of the Defendant Keitel. Every document that had anything to do in any way with military matters was identified with the OKW and the OKW in turn was identified with Keitel.
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 am doing it in order to explain why I am calling all the witnesses whom I shall call, so that you can form a cumulative judgment. I spoke about this with Sir David on Saturday. I wanted right at the beginning to explain the tenor of my line of proof, so that you would be in the picture, so to speak, on this matter.
THE PRESIDENT: Do you mean, Dr. Nelte, that you will be able to deal with all your witnesses in one series of observations?
(Directed to Sir David) Could you help us, Sir David?
SIR DAVID MAXWELL-FYTE: I think I can help.
Apart from the witnesses who are Co-Defendants that are mentioned by Dr. Nelte, whom of course the Tribunal has already provided, Dr. Nelte asks for Field Marshal von Blomberg and General Halder and 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. 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, Roomer, 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, as long as it is confined to interrogatories which have been allowed, and he is not called orally, we have no objection.
My friend, Mr. Champetier de Ribes, will have a word to say about Ambassador Scarpini. I have asked him to deal with that matter.
Then we come to two witnesses, Dr. Junod and Mr. Patterson. At the moment the Prosecution cannot see how these witnesses areneeded in addition to General Reineeke. 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. to show that at discussions between Hitler and the Defendant Keitel, two stenographers had to be present. The Prosecution do not reward 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 night summarise -- and I hope I am only trying to help Dr. Nolte -the only matters which, as far as the prosecution are concerned, require further discussion is the ratter of what the French Delegation will have to say about Ambassador Scarpini, and my objection to Dr. Junod and Mr. Patterson, 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. 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: Thank you, Sir David, for making lay task easier.
I should like to add that as regards the witness, Dr. Erbe, I shall inquire in writing, submit questions in writing the answers to which will determine whether or not I ask for him as a witness. As for the witness Junod, I believe I may say that hearing him here is relevant because the Soviet Prosecution submitted evidence that an offer to apply the Geneva Convention was specifically turned down by Keitel. Dr. Junod is to be heard as a witness to testify that on the commission of the OKW department in charge of prisoners of war he tried to get in touch with the Soviet Union in order to assure the application of the Geneva Convention, but that this connection could not be achieved, I believe that if General Reinecke alone is to be heard on this subject, as a witness, one could perhaps object that his testimony as chief of the department in charge of prisoners of war was not sufficient proof, that Reinecke cannot prove what Dr. Junod actually did. Consequently, I ask that this witness be approved. an affidavit. constant representative of the French Vichy Government and was particularly concerned with the question of Germany's war prisoners. I believe that that is adequate reason for considering his testimony relevant. To be sure, I did not know his address, and hope that the French Prosecution can help me in that regard.
M. CHAMPETIER de RIBES: We see no objection to hearing the former Ambassador, Scarpini, if his testimony in our judgment can have the slightest bearing on the search for truth; but the reasons which Dr. Nelte gives for the calling of this witness seem to me to demonstrate the complete absence of relevance of his testimony. The former Ambassador, says the honorable representative of the Defense, could demonstrate and say that he freely exercised his control in the prisoners' camps and that the camps and that the war prisoners had a man in whom they had confidence, but this we are very willing to grant to the Defense.
It is perfectly true that Germany had been willing to have farmer Ambassador Scarpini -whom we know was wounded in 1914 in the previous war, and blinded -could visit the camps of prisoners and, if he could not see, hear the French war prisoners. But the question is not to find out whether the Germans had been willing to have a blind inspector visit the camps. The only question presented by the indictment is whether in spite of the visits of these inspectors and in spite of the presence of a man of confidence in the camp, there did not occur in these camps acts contrary to the laws of war. On this point former Ambassador Scarpini could surely give no answer, for nothing obviously happened before him in his presence. This is why the French prosecution considers that the testimony of former Ambassador Scarpini would shed, no light in this search for truth.
DR. NELTE: It was not Known to me that Ambassador Scarpini he was blind. It was not he himself, but rather the delegation of which he was head, that made inspection tours of the prisoner-of-war camps. It is certain that in these, prisoner-of-war camps events took place that were offenses against the Geneva Convention, but the question at issue here is that the Defendant Keitel and the OKW, as the highest authority, did all that, or attempted to do that which in this function as highest authority they had to do.
The OKW had no command authority ever the individual camps. It had only to give the regulations as to how the prisoners of war were to be treated and had to take care that the protecting powers had opportunity to visit the camps.
THE PRESIDENT: Would interrogatories be satisfactory, supposing we thought it proper to administer them to Mr. Scarpini?
DR. NELTE: An interrogation in Nurnberg? Could ambassador Scarpini be heard in Nurnberg?
THE PRESIDENT: I was asking whether interrogatories would be satisfactory. I imagine Mr. Scarpini is not in Nurnberg. Written interrogatories, I mean, of course, where I have mentioned them.
DR. NELTE: I should like the written affidavits, which I should like to submit.
Will they suffice? For, I assume that Ambassador Scarpini is to be interrogated in writing.
THE PRESIDENT: Yes, in writing. Will that be satisfactory to you, Mr. de Ribes?
M. de RIBES: Yes, that will be quite satisfactory. THE PRESIDENT: I think perhaps we might adjourn now, Dr. Nelte, until a quarter past two.
(A recess was taken until 1415 hours).