government about the participation of the national opposition in the governmental work, which was agreed on in the July Treaty. And if we finally have before us the deposition of the history of the illegal movement in the report of Rainer (PS-812), we see their activity in these years takes place without the slightest cooperation or support from Papen. interested in the activity of the Austrian Liberty Organization (Freiheitsbund) ? If it is set forth that this Liberty Organization represents a non-Na*i, trade-union, Austrian organization which was considered to be read to go with Schuschnigg and to support this Cabinet. observed the governmental conditions in Austria and reported to Berlin about them ? And when this wish is expressed at this occasion that this or that constellation is favorable for the development of friendly relations with Austria ? foreign agencies which Papen forwarded to Berlin. They believe that Papen had made the content of those reports his own. This supposition must be incorrect. The informational purpose of sending reports of the foreign secret service is clearly at hand. Beyond that the following has to be established here also. Papen especially forwarded to Berlin also these documents which had come into his hands and which contained a criticism of the German condition. The witness Gisevius and Lahousen have pointed out that Hitler was informed incorrectly or insufficiently by his closest coworkers. The critical reports of foreign countries which Papen had forwarded to Hitler in a direct way, could and also should fulfill the aim of drawing Hitler's attention to abuses and to make him abolish them. This is especially often the case concerning statements about the anticlerical conditions in Germany. The presentation of the reports in the case Tschirschky concerning the activity of the Gestapo which were especially mentioned in the cross-examination, are on the same line. The regular reports of Papen to Hitler deal partly also with the conditions in the neighboring states.
The checking of the contents of the reports shows that they deal entirely wit problems which are in direct connection with the foreign political situation of Austria in the Balkans and which therefore fall into the sphere of tasks of the ambassador accredited in Vienna.
Finally we have to go into the affidavits of Messersmith. He describes events after a period of 10 years, in the case of Papen, seemingly in free memory. Time and later acquired information obviously seem to have clouded the picture of memory so completely that we see, for example, Papen's explanations about his tasks in the Southeastern area reproduced in the two affidavits with contents basically deviating from each other the contents of the affidavits are in contradiction to every rule of experience and logic. A diplomat cannot have revealed the secret aims of his politics to the representative of another state who meets him with emphasized reserve. It is impossible, as Messersmith says in another place, that Papen told not only him, but even publicly, his alleged plan to overthro Schuschnigg, with whose government Papen himself was accredited. It is an impossibility that such disclosures are supposed to have had no consequences whatsoever, and, that they have been put down in an affidavit for the first time in 1945. gment, besides the fact that their content is disproved by the other evidence which contained both the intentions and the actions of Papen. ment 106. A complete contradiction of the Messersmith affidavit is given in this questionnaires by the Polish Minister, Jan Gawronski. This testimony of the diplomat of a country with which Germany was at war from September 1939 on seems especially noteworthy.
Dr. Gawronski had an opportunity during the whole Vienna activity, from 1935 to 1933 to observe Papen. In the answer in the questionnaire, the year 1937 is given by mistake, not 1934 as is correct, as the beginning of the activity of Gawronski in Vienna.
All charges made by Messersmith -- Papen's collaboration with the illegal Nazi movement and, the assumption to overthrow Schuschnigg's regime, the policy of aggression in the Southeastern area, the dismemberment of Czechoslovakia and giving it to Poland or Hungary -- are disproved by the testimony of Gawronski. which was read yesterday. If Papen refused to enter into a secret agreement with an Austrian minister, and if he refused to take advantage of this comfortable and convenient opportunity, this shows clearly that he took part in no subversive activity. Papen exercised his activity as Ambassador extraordinary in Vienna.
Beyond it the Prosecution has taken into consideration Papen's cooperation in the discussion of Berchtesgaden on 12 February. state of a new course, but the result of the development up to that time. Months before, Papen and Schuschnigg in conversations had already regarded a meeting in the near future between the two statesmen as desirable. The July Treaty had naturally left many points of difference undecided. The testimony of the witness Guido Schmidt showed us the situation clearly : an opposition party vert powerful in numbers, though officially not allowed, but tolerated tacitly because of actual conditions, looked ideologically to a full extent toward its, at least ideological leader in Germany. There the leader of this Party was at the same time head of the state. Regarding foreign policy a separation of the parties in both countries was necessary. The inner ideological unity, however, necessarily had to lead to differences again and again. We see, accordingly, in the Asutrian government and understandable reserve and a constant concern to prevent a growth of the influence of this movementin administration and government. The treatment of the questions resulting from the July Treaty corresponded in practice also to this state of interests. It was obvious that the Austrian side should make an effort to treat the stipulations of the Treaty in a restrictive way. It was only natural that the wish existed on the German side to exhaust the possibilities of the Treaty to the fullest extent.
Therefore, a direct contact with the responsible heads of both countries, who on the German side was at the same time the head the Party, could only be regarded as a reasonable requirement. this development. Perhaps with the approach of the more rigorous course which was expected, a meeting of that sort for the purpose of the eradication of existing difficulties would be postponed forever. Certainly, a different result could have been expected later on, in a tenser atmosphere, from the collaboration of a radical successor, than that hoped for by Schuschnigg and Papen. Papen, during his farewell visit to Hitler on 5 February, when they came to speak of affairs, still accepted the mission to bring about the Conference and to accompany the Austrian delegation to Berchtesgaden for this purpose. The Prosecution accuses Papen, that already at that time, the program of the subsequent talks had been determined. Papen, contrary to this, has testified in his interrogation, that he had only received the mission to arrange the discussion for the purpose of clearing up all points of difference on the basis of the July Treaty. The prosecution still lacks the proof for its claim to the contrary. From what has happened on 12 February, it cannot in any way be concluded because of Hitler's personality of Hitler, what he personally thought at the first mentioning of such a discussion on 5 Feburary and much less, of which of his plans no informed Papen. The evidence has shown that the points voiced by Hitler on 12 February are identical with those demands which the *---* National Socialists had raised immediately prior to the discussion and, transmitted to "Hitler in their own channels. From this it can be seen that the subject of conversation chosen by Hitler in the discussion of 12 February was at the very least substantiated and could not as yet have been on hand on 5 February. If the Austrian Nazis preceded Papen with their demands to Berchtesgaden, then the viewof the Prosecution is thereby refuted, that Papen had conspired with Hitler and the Austrian party.
In this case he himself would probably have been the best liaison man between the wishes of the Party and Hitler. This is also emphasized through the testimony of the witnesses Seyss-Inquart and Rainer, who have stated clearly that they did not hove report any contact with Papen during this time. Rainer also points out in his report, that Papen had been of the opinion that the fact of the rearranged discussion had remained secret before the Au strian party. that at the reception of the Austrian delegation of the German-Austrian frontier he had called Schuschnigg's attention to the presence of generals. whether this really-corresponds to the facts was not proven by the presentation of evidence. The sole evidence which can be used in respect to this is the testimony at Schmidt. The latter could not longer exactly testify anymore, whether Papen had spoken of one General, namely Keitel, who, according to past experiences after taking over his new office constantly kept himself in the surroundings of Hitler, or of several Generals.
Papen himself does not know anymore today, if and in what form he made such an exclamation to Schuschnigg at the time. He also does not know, if at the time he was aware at all of the presence of generals. It is very possible that it came to his knowledge at the overnight stay in Salzburg, where he had stayed at a different hotel from the Austrian delegation. In any case, however, the fact cannot be overlooked, that even if Papen had made thestatement claimed by the Prosecution, this statement was made prior to the visit. That, therefore, he did not participate in any attempt at intimidation toward the Austrian gentlemen which might have been aimed at a motive of surprise. His participation in the discussion has been cleared by the evidence. Hitler alone was in command, who, in a brutal manner surprising to those who knew him, tried to impress Schuschnigg. Technical details werenegotiated with Ribbentrop. Papen more or less participated as a spectator, which also bore the fact into account, that he did not occupy his official position anymore. According to the uniform testimonies of those participating, he only saw his task raised by circumstances to intervene soothingly.
One has to consider his position; he sees his intentions doomed to failure through the behavior of Hitler, which cannot be expected of any reasoning human being. He sees how a man who is quick-tempered by nature in his excitementlets all that go which is necessary for a reasonable discussion in the sphere of a conference of statesmen. He hears Hitler's throats, and has to consider him determined to let things go on an irreparable way at the abrupt failure of the negotiations. In the framework of this situation, therefore, the achievement of certain concessions -Hitler acquiesced in the field of the Army Ministry and the economic demandsand the postponement achieved after a hard struggle of the final settlement for ratification by the Austrian government and the Federal President (Bundespraesident), was theoptional solution of the dangerous situation. Even though in this point Papen agreed with the Austrian statesmen who undoubtedly were willing while safeguarding only reasonably the interests of their State to affix their provisional signatures on account of the prevailing conditions, this does not justify the charge against Papen that he approved and intended the result from the outset.
Hitler's opinion on Papen's previous activity in Austria and his participation in the Conference at Berchtesgaden is best illustrated by the fact that no further office of any kind was assigned to him in Vienna. It is very unlikely that during the decisive developments to come, Hitler would have failed to assign tasks to a man who inwardly and effectively attended the Conference at Berchtesgaden. One would not have replaced him by new people from Berlin, and for the still more complicated situation one would not have dispensed with the services of the man who, by reason of his years of service, was most intimately familiar with conditions as a whole. One would certainly have availed oneself of his personal contacts with Austrian statesmen which qualified him, inpreference to others, to continue work on Hitler's plans. If the Prosecution's interpretation of Papen's efforts towards understanding during the discussion in Berchtesgaden as deceitful maneuvering were correct, there is little doubt but that Papen would have been permitted to continue working along that line, and after replacing his person one wouldnot have charged people to deal further with those things whose course was much mere radical.
Papen's memorandum on his farewell visit to the Prime Minister is revealing. A man who in his own commentary to Berlin, passes on Schuschnigg's interpretation that to some extent he had acted under pressure in Berchtesgaden - under "noteworthy", is little likely to have been an active participant in the coercive negotiations. any public office.
The new Charge d' Affaires, Freiherr von Stein, a pronounced National Socialist, took charge of the Embassy. He was assisted by Keppler, a close friend of Hitler. Papen, on theother hand, makes his farewell calls, and he takes up residence at Kitzbuehel, a winter-sport resort.
In themeantime things are getting more and more critical. The plebiscite which Schuschnigg announces results in a development which perhaps Hitler even had not intended on that scale. The visit of Seyss-Inquart and Rainer on 9 March to Papen was accidental; there were no deliberations of any kind, and no decisions were taken. For Papen even to express the view - which Rainer confirmed - that, considering the formulation of the questionnaire, no decent Austrian could be expected to say "No", but that he was bound to follow Schuschnigg's password, suffices to indicate the contract of Papen's position towards the views of the Austrian Nazis and the views which the people from Berlin subsequently brought out.
If, in conclusion, I may still refer to Papen's presence in Berlin on 11 March I must say that even in reviewing things in retrospect I can give no clear explanation for Hitler's desire to know Papen in Berlin. Reasons for it may have been manifold. Should Hitler already at that time have been determined to forsee a solution in that direction as it finally came about - after all, doubts in that respect may exist - the reason might have been that he did not dare leave in Vienna this man who espoused the policy of peace; he might perhaps have assumed that because of the extremity of the position in which they found themselves, Austrian Government officials might perhaps have turned to him and that with Papen's help propositions for a settlement might perhaps have come about. the campaign against Poland when Hitler was fearful lest "some swine might still come along with a proposal for an understanding in the last minute." On the other hand it is also quite conceivable that it was suitable to have Papen in Berlin in the event of yielding on the part of the Austrian Government, in which case he might not have wanted to be deprived of Papen's advice because of this familiarity with conditions. however, unnecessary to attempt to actually understand Hitler's inner motives. Decisive, to be sure, is finally merely what Papen did during his presence in the Reich Chancellory. postponement of the plebiscite, *---*essening of tension would have to be brought about. His attitude concerning the further events was documented. Papen through his standpoint concerning the military preparations, respecively to the lifting of the order to march on. The shorthand notes of the telephone conversations Which had been carried on by Goering have given us a plastic picture of the events in the Reich Chancellery. In connection with this testimony theresult is that essentially he was the driving force and occasionally went even beyond Hitler's intentions.
He emphasized that from the beginning he had been consistent in striving for a solution, he new did not need to reflect or be advised in order to come to a decision.
Seherr-Thoss's affidavit renders Papen's attitude on the eve of the day in question. In an intimate circle he remarked that he had advised against marching in, that against his advice, Hitler, however, just then "had committed the madness of issuing the order to march in."
Finally, we still have a clear picture of Papen's attitude concerning this in his conversation with the witness, Guido Schmidt, which took place years later. Austria's annexation was for a long time then already an historical fact and was considered by most Germans a great political achievement. Papen, on the other hand, criticizes most severely the methods used by Hitler and acknowledges anew the fundamentals of legality and faithfulness to treaties which, seen from a broad view, was forsaken here to the detriment of Germany. whether the case of Austria is at all capable of discussion within the limitations outlined by the Charter - in completion of the defense of the defendant, contrary evidence has been produced that Papen neither brought about the entry into Austria himself nor prepared for it by a policy directed to this end; that his activity in Austria exclusively served the purpose which he assumed with his commission on 26 July 1934; a policy which served for the restoration of friendly relations between both countries, a legal aim which had not the slightest thing to do with a special or general policy of aggression. It is not in contradiction that Papen, as well as the overwhelming majority of Germans and Austrians hoped for, since 1913, for the aim of a normal development. The union of both peoples in some close, legal contacts. That in view of the existing limits of peace treaties there would be more difficulties to overcome was clear. But, could not Papen assume, with a clear conscience, that parties to the treaty did not refuse to recognize a wish of both peoples, a wish which was emphasized by the political and economic impossibilities of maintaining the status quo.
Was it not a question here of realizing the determination of peoples, the great principles of the Twentieth Century?
The many voices from abroad at that time; his talk with Ambassador Henderson which is mentioned in Papen's report of 1 June 1937, defense document No. 74? the attitude of neighboring countries, which is also shown from the reports, and finally, the experiences in the treatment of the repatriation question could lead him to hope that the solution might some day be found in international understanding. independent Austrian Government. This could be based only on a really friendly relationship with Germany. Papen's task could therefore be the basis for the fulfillment of the national wishes publicly expressed in both states.
The period following this is bot brought under discussion by the Prosecution.
The defense, however, must go into even this as evidence in refutation. It is easy to find a proof in established facts from this time, that the assertions of the Prosectution from the earlier period must be incorrect. The Prosecution leaves Papen at the termination of his activity in Vienna and it gives no explanation for the reason to which Papen's current inactivity can be traced back. There is no cause, no event, which could have impelled the alleged conspirators to this conduct. the outbreak; of the war. tor Papen at this time abandoned his previous course, in spite of the possibilities that were doubtless available. The Prosecution ought to have cleared up this transformation in some way, if one is not immediately to regard the interpretation of the actions in the earlier period as inconcusive in the sense of a criminal objective. Papen retired to the country after the incorporation of Austria, where he remained aloof from public life for over a year, until April 1939. This fact is important if one considers the situation at that time. The 4 February 1938 doubtless brought about a more rigorous course in German foreign policy. tool of Hitler for the first actions in preparation for this police. Were this applicable, then one would have to regard Papen, in consideration of the result aimed at, as a hundred-per-cent diplomat. This so successful diplomat and conspirator now does not go to some place where he can continue his activity further, where preparations might have to be made in a similar manner, as for example in the Sudetenland. He is not placed in a position, where the great political threads run together, in Paris, London or Moscow, where on the basis of his international reputation he might indeed appear as undoubtedly the most suitable man to support the Hitlerite policy. eign policy of Hitler, when the Sudeten crisi, the incorporation of Czechoslovakia and the preparations of the war against Poland created a period of an extremely tense political atmosphere. If at that time Hitler did not take his services into consideration at all, then it is clearly apparent from this alone, that Papen was not a conspirator, not even a follower of Hitler and not even the instigator of the first success of Hitlerite policy, the incorporation of Austria.
upon in a situation in which it was not the object to occupy a country, or to make preparations for the intended operations. Papen is called upon at a time when the policy of expansion of our Italian ally into Albania cause difficulties and gave reason to fear entanglements with Turkey. And so here is a clear task, that of maintaing the status of peace. own support, then it still does not avoid passing unfavorable judgement on the acceptance of the post by Papen. It ism therefore, also necessary to go into this point in detail.
Papen was also very reluctant to accept this new appointment. Twice already, in more peaceful times, he had refused the appointment out of general considerations, because he no longer watned to be active in any official position at all. Now he sees reasons to which he can no longer close his eyes. He sees a new task to which he believes it his duty to devote himself. 1939. Even from a secondary flank the spark could easily fall on the powder barrel. A conflict between Italy and Turkey, could, in fulfillment of existing treaties, bring about a general war. If by his activity he could at least exclude the possibility of war to this extent, Papen must have found personal justification for taking over the mission. He was confronting the problem which confronts all those who have been called upon to cooperate within the framework of a system of which they disapprove. To stand aside, to adopt a completely passive attitude, is, of course, the easier way, particularly if no other reasons impel the person in question to accept the post. The more difficult way is to take over a task within the framework of an over-all policy of which one disapproves, which in part of its field offers an aim worthy of achievement. And if this partial field is of such importance that the prevention of a possible was depends on it, then the decision to take over such a mission can only be understandable and worhty of approval.
If only the most remote possibility of attaining such a goal exists, then private interests and feelings must step into the background. to Ankara, if one sees that by his intervention in the spring of 1939 the Italians were moderated from the German side and belligerent complications were avoided, if one considers that later Papen was successfully able to prevent the war from being extended to Turkey and the more distant southeastern territories, then in looking back one can only say that his taking over the mission against his personal feeling was the right decision. made efforts to baring about a peace of renunciation as early as the year 1939, then we must also approve this acceptance of the mission for this reason, independently of the fact of what final success was to crown his efforts, even if one could have only figured on quite a dwindling possibility of reaching the desired goal. The assumption of such a position would finally also be justified from the moral viewpoint if he had only had as much as one single partial success, as, for example, the saving of 10,000 Jews from the deported to Poland, which has been confirmed by the affidavit of Marchionini. arise from the judicial inquiry concerning this affidavit. involved were saved by the intervention of Papen. Papen confirmed, upon interrogation, the correctness of the affidavit. This confirmation corresponds also with the facts. This does not mean, however, that the meaning of that action, as it is know to Marchionini today and which he mentions therefore in his affidavit, was already known the. Papen knew, of course, that the deportation to Poland for an unknown purpose and with an unknown goal was something very grave. This also explains his intervention. He knows onlh today, the same as Marchionini, certainly only knows today in all clarity, that the path of these people was not supposed to lead into deportation labor, but directly into the gas chambers.
naire of the present Apostolic Annuncio in Paris, Roncolli, describing Papen's attitude from personal knowledge. and Baron von Lersner. It clearly shows a unified peace policy, a peace policy which, independently from the momentary military and political situation, even at the highes point of German victories, stressed a peace of renunciation. Papen was, according to the statements of Rose and Kroll, deeply affected by the outbreak of the Polish war and condemned it from the first. the assertions of the Prosecution? Paper is supposed to have brought about the war in conspiracy with Hitler. The Prosecution believes it can deduce the criminal act from his behaviour in the years preceeding the war. No proof has been submitted as to what may have turned Papen the conspirator, into an advocate of peace. It has rested its accusations on the shaking foundation of deductions and omitted to verify whether the assertions of the Prosecution might in any possible way be in agreement with the whole personality of the defendant. In view of the nature of the indictment, one cannot be content to solve the problem by the assumption of a splitting of his personality oand an opportunistic attitude. The indictment includes crimes of monstrous proprtions. Such an indictment must also rest on the personality of the culprit. Participation in such a conspiracy is only conceivable in the case of a complete identity with the doctrines discussed in the proceedings and described as "Nazism", to their utmost consequences. A conspirator, in the sense of the indictment, can only be a man who has given himself up entirely, with the whole of his personality, to that tima. He must be a man in whom even the last moral ties have been abolished. Such a personaoluty cannot be a phenomenon of brief duration; the readiness for such a crime must lie within the person of the culprit.
In contrast to the distorted picture of Papen's character drawn by the Prosecution, his true personality has been shown up during these proeceedings in all clarity. We see a man who is rooted by origin and education in tradition and concervative ideas, a man of consciously responsible national feeling, to whom for just these reasons a regard for others is natural.
knowledge of the world, preclude from the first his seeing things from a one-sided viewpoint, according to his own national wishes. He knows that life requires understanding and the willingness to understand. He knows that international life is b*---*incerity and faith and that one must stand by one's word. which he always makes the basic principle of his actions, must necessarily stand in opposition to the ideological doctrines of National socialism. We have followed his political career and seen that he held fast through all the periods of his activity to his basic political creed which was built on these elements. responsibilities, he did not evade any of the tasks assigned to him. And even it we are witnessing in the end the collapse of his hopes and his endeavours, this cannot be the touchstone for the sincerity of his convictions. sense of the facts established in the Charter can surely only have been possible on the basis of the legal simplifications which an indictment offers to the Prosecution. In the facts of the case against Papen, even this interpretation must fail. involved himself in the alleged conspiracy. Opposed to this is the reality. In the evidence offiered in refutation, facts are established which make a connection of his person with even the idea of the facts in the indictment impossible. of the charge brought against him.
THE PRESIDENT: The Tribunal will adjourn.
IA recess was taken).
THE PRESIDENT: I call on Dr. Flaeschner, counsel for the defendant Speer.
DR. FLAESCHNER: Mr. President, may it please the Tribunal: points of the indictment, which essentially coincide with the stipulations of Par. 6a - c). The French Prosecution which has substantiated more definitely the individual charges against defendant Speer desists from charging defendant Speer with a violation of Par. 6a) of the Statute of the Penal Code and demands only the application against Speer of Par. 6b and c). However, since the legal concept of conspiracy during the oral proceedings has frequently been clarified by referring to the person of the defendant Speer, and since the assertion was set forth that the defendant Speer also had made himself guilty within the meaning of the Penal Code paragraph of a violation of fig. 6a) of the Statute, the details must be entered into by way of precaution. preparations, launching and conduct of a war of aggression or a war violating international treaties, and this, indeed, at a time when the defendant assumed the office of Minister of Armaments, which was expanded to a Ministry for Armament and War Production 1 1/2 years later, when the German Reich was at war with all countries, to which she capitulated in May 1945. At the time the defendant assumed Government affairs, all the facts mentioned under Par. 6a) ha altogether taken place and defendant Speer's activity did not alter the actuall existing situation to the slightest extent. situation. His previous activity was that of an architect, who occupied himself exclusively with peace time construction and did not contribute by his activity, either toward preparation nor launching of a war violating international treaties. Please refer to my document book on page 29, document 1435-PS. If under the circumstances which Par. 6a) of the Statute materially and legally characterizes as a punishable act it were a case of generally prevailing international law, and if individual culpability of persons who bring about the facts of the cases were generally recognized, in international law defendant Speer in my opinion could still not be held responsible for these facts, for not the slightest evidence has been produced during the proceedings that Speer contributed towards bringing about these facts.
In this connection we must consider that culpability of an attitude requires that the person in question must have contributed in some way or other towards the bringing about of the facts which have been declared punishable, i.e. he must have caused the result which was declared punishable to be brought about. If, however, as in the case under consideration, defendant Speer entered the Government without having contributed anything at all towards the so-called crimes against peace, he cannot be charged with criminal responsibility for this, even if such responsibility could be applicable to other members of the government. The Prosecution used the expression that the defendant had accepted and/or approved the proceeding crimes against peace by joining the government. Such a concept taken from the field of civil law 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 detailed statement. In order to avoid repetition, reference is made to it, as well as to the full statements of Prof. Jahrreiss. It can, therefore, be confirmed that defendant Speer cannot be charged with a so-called crime against peace. regarding his activity have shown that Speer by virtue of his position as architect, exercised exclusively architectural - artistic functions also in the Party set-up, Speer was the commissioner for construction in the Hess staff; here it was a matter of a purely technical task, which 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 construction, to execute and shape the Party structures uniformly. For their construction projects, the regional leaders of the NSDAP and the other Party offices were to apply to this office for consultation; however, they availed themselves of this only to a very slight extent.
THE PRESIDENT: Dr. Flaeschner, the Tribunal thinks it might be appropriate at sometime convenient to you if you were to deal with the question of the meaning of the words "waging of a 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 sometime convenient to you the Tribunal would like you to give your interpretat of the words in Article 6-a "waging of a war of aggression".
DR. FLAESCHNER: Yes, Mr. President. Perhaps I might return to this point later, Mr. President, after I concluded this topic. Naturally it was a purely architectonic task, when the Party acted as person for whom building was performed. Considering the peculiarity of architectionic will to fashion things, each architect naturally pursues his own intentions in solving the problems put to him. The activity of the defendant as commissioner for construction was therefore relatively restricted and of secondary importance, since he did not even have an apparatus of his own at his disposal. It would be erroneous to try to assume therefrom any participation on the part of the defendant in any crimes against the peace. The same holds true for the defendant's remaining functions prior to and during the war up to his assumption of office as minister When the defendant was given the job of reshaping the appearance of the towns of Berlin and Nuernberg, this activity had nothing at all to do with any crimes against the peace; on the contrary, his activity was rather to be regarded as a prevention of war preparations, as this task of his required raw materials an equipment to a very great extent, from which rearmament might otherwise have benefited directly or indirectly. The construction projects assigned, to Speer were, moreover, calculated, and planned far ahead. They could only cause the impression in Speer that Hitler reckoned with a long period of peace. It is therefore, out of the question for the defendant prior to his assumption of office as Reich Minister to have contributed directly or indirectly to the realization of facts, which are characterized by Par. 6a) of the Charter as cr* against peace. The fact too, that the defendant was a member of the Reichstag from 1941, cannot be quoted in support by the Prosecution, because as the Prosecution itself pointed out, the Reichstag in the authoritarian regime has sunk to complete insignificance and had become merely an institution that accepted and proclaimed the Fuehrer's decisions.
In this respect also responsibility for the guilt of war is out of the question, for no activity whatever of the Reichstag is recognizable in extention of the war to the Soviet Union and the United States. reproaching the defendant with an offense against Par. 6a) of the Statute. during his term of office through the fact, that workers were transferred against their will from the occupied countries to Germany, where they were employed for the purpose of the conduct of war or the production of war materia The following should be said in this connection:
The Prosecution reproaches the defendant with violations of Par. 52) of the Hague Convention on Land Warfare insofar as according to this convention services can be demanded of nationals of the occupied country only for the necessities of the occupation army; moreover, they have to be in proportion to the resources of the country and must not imply the obligation of the persons concerned, to take part in military actions against their native land. The Hague convention on land warfare establishes in Par. 2) that all countries participating in the war in question must have joined it in General participati clause as it is known. The Soviet Union not having entered into the Conventi* on Land warfare, the latter could be applicable to the conditions created by the war against the Soviet Union only if the legal principles laid down in the Convention should be considered as universally valid international law. Above all we have, therefore, to start from the principle that a different legal judgment has to be applied to those areas belonging to states that were partner of the Hague Convention on Land warfare, and for such areas whose states are not to be regarded as treaty partners. deportation of laborers from territories occupied in war-time by an enemy power can be justified in virtue of Art. 52) of the HLO. Art 52) which constitutes a limitation of Art. 46) ofthe Hague Convention on Land Warfare, inasmuch as the principle is stipulated that fundamentally the population of occupied territori and their property are to be involved as little as the necessities of war will allow.
Starting from this principle, it is new necessary to examine whether, in virtue of it, a deportation for the purpose of securing labor potential for the essential war economy of a belligerent country is prohibited to any extent. In this respect, the question must be considered, and it make: a difference whether the deportation carried out by the occupying belligerent State is in accordance with conventions agreed upon with the Government of the country occupied by the belligerent State. The Prosecution have defended the view that such conventions are legally void because they were made under the constraint of occupation, and because tire Government existing in France during the time of occupation could not be considered as representative of the French nation. International juridical conventions will always be influenced in their contents by the respective centers of gravity of the contracting parties. In every peace treaty concluded between a victor and a vanquished State, this proportion of centers of gravity will be reflected in the contents. This is not, however, contrary to the nature of treaties. an agreement between the German andexisting French government, relative to the assignment of labor potential, is equally ineffectual. The so-called Vichy Government existing at the time was the only Government existing in French metropolitan territory: it was the lawful successor of the government in office before the occupation, and internationally acknowledged by the fact that states then not yet involved in the war preserved diplomatic relations with it.