The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/20

SIR DAVID MAXWELL FYFE: There are two legal conceptions
which have to be borne in mind in considering that point. I
can speak with knowledge only 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 offence of conspiracy.
There are also certain statutory offences, but there is a
common law offence of conspiracy. The gist of that offence
is, as I have already stated, entering into an agreement to
commit an illegal actor 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 date, 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 offence of conspiracy. If one may take an
example, a highly fantastic one but which, I think, meets
the point: assume that you had a conspiracy on the part of
road operators to wreck railway trains, and that 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, another road operator joins the conspiracy. I hope
I have got rightly the point in my Lord's mind and in the
mind of the learned American Judge. Then, there is, as far
as I can see, some doubt as to whether that road operator
would be liable for a murder committed in the wrecking that
took place on the first of January.

I hope I have made my point clear. I am postulating someone
who joins a conspiracy on 15th 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

                                                  [Page 285]

law, it would appear to be at least doubtful - it certainly
is arguable; in American law he would, so I have been

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

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
labour 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 labour; 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 civilised 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.

MR. BIDDLE: Just one more question and then I will have
finished. 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


MR. BIDDLE: Not remote in time with relation to the

SIR DAVID MAXWELL FYFE: No, it is part of the particular

DR. HORN: Mr. President, may I make some brief remarks in
this connection?

I have relied on the general Indictment as regards the time
of the conspiracy. The general Indictment states simply and
solely that the definitive date 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, outlined the Party programme, in the form in
which it was framed in 1921 and revised, I believe, in 1925,
and characterised 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 intended to pursue
these objectives by war, it is, first of all, not clear when
this became their intention, and the defence as well as the
prosecution must prove from what date 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

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.

                                                  [Page 286]

First, they were ordinary Party members, so they had to
assume, as the Chief Prosecutor did, that the Party
programme, of which they had become adherents, was legally

Now the question arises for the defence, and above all, for
conducting the defence: When did the individual client enter
the circle in which it was known that the aims were to be
attained by war, aims which so far he had considered
legitimate and unimpeachable, i.e. aims which according to
his previous assumption, were not to be pursued by recourse
to war. Had the defendant Ribbentrop already entered the
circle of conspirators when in 1932 he contacted Party
circles? Was he, as Ambassador in London, already "in the
know" and thereby a party to the conspiracy, or was it only
at the time of the Hoszbach Document that he realised that
the political aims of the Party were to be implemented
through war, or, if not, when was it?

The defence must be aware of the danger of the defendant
being accused by the prosecution of joining the conspiracy
at the very earliest moment at which he came into 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 in order to refute that he
was already planning or preparing wars or taking a decisive
part in these plans and preparations, to prove through
witnesses that my client, for instance, up to 1939 was
striving for peaceful relations?

It is from this point of view that I ask the Tribunal to
weigh the applications for 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 do not 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 Ribbentrop's 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

In the same year he negotiated the Anti-Comintern Pact. He
has to explain that.

From that time onwards, there are a succession of German
documents, all referred to in the transcript for 8 and 9
January, which show exactly the part this defendant played
in ten sets of aggression against ten separate countries.

I respectfully submit to the Tribunal that it is a perfectly
clear case which this defendant has to meet. There is no
doubt about it at all.

I have already summarised 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 9

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 defence
against the charges lodged by Sir David Maxwell Fyfe, I have
offered rebutting evidence in answer to these charges. I
have, however, not confined myself only to refuting those
charges just mentioned but I have - and thus I must repeat
what I just said

                                                  [Page 287]

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 defence.

What I do want to ask is this, that if Dr. Horn or any other
defence 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 it is to be used,
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.


THE PRESIDENT: I mean that the part of the book or part of
the document which Dr. Horn wants to use should be

SIR DAVID MAXWELL FYFE: But as far as providing the defence
with working copies, any co-operation that the prosecution
can give in that way they will gladly give. That is a matter
on which we should be anxious to help.

The last five documents named fall into rather a different
category. I have not discussed these with Dr. Horn, but I
respectfully submit - and it is the unanimous 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 reference only, 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 know nothing 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: The last item I should like to take up is this:
Now that the trial has already progressed so far that I
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 one-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 have not yet indicated why it would
be relevant.

DR. HORN: On 30 or 31 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

                                                  [Page 288]

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.

THE PRESIDENT: The first time you have heard there was any
copy withdrawn?

SIR DAVID MAXWELL FYFE: I have never heard, 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 he 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 do not want to make a point of the memory of Sir Nevile,
but shall investigate this matter, which I have only now
heard 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 much later date?
It is, therefore, of decisive importance to learn when and
whether Sir Neville 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

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