The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/10/14

DR. KUBUSCHOK, Continued: 

From this angle, too, it is significant that Papen was first
called upon when there was no question of occupying a
country, or of preparing for intended operations. Papen was
called upon at a time when the Italian policy of expansion
into Albania was causing difficulties, and complications
with Turkey were to be feared. So there he had a clearly
defined mission, that of maintaining peace.

Although the prosecution is unable to utilize his activities
in Ankara in support of its case, it cannot refrain from
judging Papen's acceptance of the post unfavourably. I am
therefore compelled to go into this point also.

Papen was also very reluctant to accept this new
appointment. He had already refused the appointment twice,
in more peaceful times, on general grounds and because he no
longer wished to accept any official position. Now he sees
reasons which he can no longer refuse to acknowledge. He
believes it his duty to devote himself to this new task.

The entire political situation was extremely strained after
March, 1939. Even a secondary issue might easily cause a
large-scale conflict. A conflict between

                                                  [Page 241]

Italy and Turkey could, if existing treaties were honoured,
lead to a general war. If by his activities he could to this
extent at least prevent war, Papen must have believed
himself justified in accepting the assignment. He was
confronted with the problem which confronts all those called
upon to play a part in a system of which they disapprove. To
stand aside and to remain completely passive is, of course,
the easier way, especially if there is no other reason which
might induce the person in question to accept the post. It
is much more difficult to take over a mission which forms
part of a general policy of which one disapproves, but is in
itself an aim worthy of achievement. And if this mission is
of such importance that it may prevent possible outbreak of
war, the decision to accept it is understandable and
praiseworthy. Private interests and feelings must take a
back seat if there is even the remotest possibility of
attaining such a goal.

When we consider briefly what Papen really did after taking
over this mission to Ankara, and when we see that, as a
result of his intervention in the spring of 1939, it was
possible for Germany to exercise a moderating influence on
Italy and for war to be avoided; and if we further consider
that Papen succeeded later on in preventing the war from
spreading to Turkey and the other south-eastern countries,
we can only say, in the light of events, that in taking over
the mission against his personal feelings he made the right
decision.

During the presentation of evidence we saw the extent of
Papen's efforts to secure a peace of renunciation as early
as the year 1939. We must therefore approve his acceptance
of the mission for this reason also, no matter what final
success might crown his efforts and even if there was only
the smallest possibility of attaining the desired goal.

Finally, his acceptance of such a position would be
justified from the moral point of view if he had had even an
infinitesimal, success, as, for example, the saving of
10,000 Jews from deportation to Poland, which had been
confirmed by Marchionini's affidavit.

In this connection I want to discuss a misunderstanding
which might arise from the judicial inquiry with reference
to this affidavit.

Marchionini points out in his affidavit that the lives of
the Jews concerned were saved by Papen's intervention. On
being interrogated Papen confirmed the correctness of the
affidavit. This confirmation corresponds also to the facts.
This does not mean, however, that the significance of that
action, as recognized by Marchionini today and mentioned for
that reason in his affidavit, was recognized at the time.
Papen knew, of course, that this deportation to Poland for
an unknown purpose and to an unknown destination was an
extremely serious matter. For that reason he intervened.
Like Marchionini, he did not know what he now knows very
clearly, namely, that the path of these people was destined
to lead them not into deportation and hard labour, but
straight to the gas chambers.

Now I should like to refer to Document 105, the
questionnaire completed by the last Apostolic Nuncio in
Paris, Roncalli, who describes in detail from his own
personal knowledge the steps Papen took in Church affairs
and his attitude to them.

His Ankara activities have been described in detail by the
witnesses Kroll and Baron von Lersner. They clearly indicate
a uniform peace policy, a peace policy which was independent
of the military and political situation of the moment and
which laid stress on a peace of renunciation even at the
peak of the German victories. Rose and Kroll state that
Papen was horrified by the outbreak of the Polish war and
that he condemned it from the first.

How can this attitude and these activities be reconciled
with the assertions of the prosecution? Papen is supposed to
have brought about the war in conspiracy with Hitler. The
prosecution believes it can deduce his guilt in this
criminal act from his behaviour years before the war. No
facts have been submitted to show what might have turned the
conspirator Papen into an advocate of peace. The prosecution
has rested its accusations on the insecure foundation of
deduction and omitted to examine whether its assertions were
even remotely in accord with the whole

                                                  [Page 242]

personality of the defendant. In view of the nature of the
Indictment, it is not enough to solve the problem by
crediting him with a split personality and an opportunist
attitude. The Indictment includes crimes of monstrous
proportions. Such an Indictment must also be based on the
personality of the accused. Participation in such a
conspiracy is only conceivable in the case of a man who
identifies himself completely with the doctrines discussed
in the proceedings under the name of "Nazism" and accepts
their full implications. A conspirator, in the sense of the
Indictment, can only be a man who has dedicated his whole
lift and personality to that aim. He must be a man no longer
conscious of even the most elementary moral obligations. A
personality of this kind cannot be a temporary phenomenon,
the predisposition to such a crime must be present in the
character of the accused.

In contrast to the distorted picture of Papen's character
drawn by the prosecution, his true personality has appeared
very clearly in the course of these proceedings. We see a
man whose origin and education are on traditional and
conservative lines - a man of patriotic feeling, conscious
of responsibility towards his country and who for precisely
these reasons is naturally considerate of his fellows.

His personal ties with Germany's western neighbours and his
knowledge of, the world suffice in themselves to prevent him
from looking at things from a one-sided point of view,
according to his own patriotic wishes. He knows that a life
requires understanding and readiness to understand. He knows
that international life, too, is built on sincerity and
faith and that one must stand by one's word.

We have before us here a man who, on account of his deep
religious feeling the principle on which all his actions are
based, must necessarily oppose the ideology; of National
Socialism. We have followed his political career and have
seen that through all the periods of his activity he held
fast to his basic political creed, which was built on these
elements. In accordance with this fundamental principle and
with full consciousness of his responsibilities, he did not
evade any of the tasks assigned to him. And though at the
end we witness the collapse of his hopes and the failure of
his endeavours, this is no touchstone for the sincerity of
his convictions.

To arraign such a man at all under the charge of committing
a crime in the sense of the facts established in the Charter
was surely only possible on the basis of the interpretation
which an Indictment on the count of conspiracy offers to the
prosecution from the legal point of view. Considering the
facts in the case against Papen, even this interpretation
must fail.

The prosecution has failed to prove that Papen at any time
involved himself in the alleged conspiracy. Truth is opposed
to this. In the evidence offered in refutation, facts are
established which make it impossible to connect his person
with even the idea.

The final conclusion is obvious: Franz von Papen is not
guilty of the charge brought against him.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

THE PRESIDENT: I call on Dr. Flaechsner, counsel for the
defendant Speer.

DR. FLAECHSNER (for the defendant Speer): Mr. President, may
it please the Tribunal:

The prosecution has charged the defendant Speer under all
four Counts of the Indictment which essentially cover the
stipulations of Article 6 (a) to (c).

The French prosecution, which substantiated more definitely
the individual charges against the defendant Speer, refrains
from charging the defendant Speer with the violation of
Article 6 (a) of the Charter and demands only the
application of Article 6 (b) and (c) against Speer. However,
since the legal concept of conspiracy has frequently been
dealt with during the oral proceedings by citing the

                                                  [Page 243]

person of the defendant Speer as an example, and since it
was asserted that the defendant Speer also had made himself
guilty within the meaning of Article 6 (a) of the Charter,
details must be given by way of precaution.

The defendant has, in addition, been charged with the
planning, preparation, initiation or waging of a war of
aggression or a war violating international treaties,
although, at the time when the defendant assumed the office
of Minister of Armaments, which was only expanded to a
Ministry for Armament and Munitions one and a half years
later, the German Reich was already at war with all the
countries to which it capitulated in May, 1945. Thus, at the
time the defendant took charge of government affairs, all
the events mentioned under Article 6 (a) had without
exception taken place, and the defendant Speer's activity
did not alter the existing situation to the slightest
extent.

The defendant had done nothing at all to bring about this
situation. His previous activity was that of an architect,
who occupied himself exclusively with peace-time
construction and did not contribute by his activity either
to the preparation or the waging of a war violating
international treaties. I refer to my document book, Page
29, Document 1435-PS.

If the circumstances which Article 6 (a) of the Charter
materially and legally characterise as criminal acts applied
to International Law, and if the individual criminality of
persons who bring about these conditions were generally
recognized in International Law, the defendant Speer in my
opinion could still not be held responsible for these
conditions, for not the slightest evidence has been produced
during the trial thus far that Speer contributed in the
least towards bringing about these conditions. In this
connection we must consider that criminality of attitude
requires that the person in question must have contributed
in some way to bringing about the circumstances which have
been declared punishable, i.e., he must have functioned as a
cause of the result which has been declared punishable. If,
however, as in the case under consideration, the defendant
Speer entered the Government without having contributed
anything at all to the so-called crimes against peace, he
cannot be charged with criminal responsibility for this,
even if such responsibility were applicable to other members
of the Government.

The prosecution has asserted that by joining the Government
the defendant had accepted and approved the preceding crimes
against peace. This is a concept taken from the field of
civil law and it cannot be applied to criminal law. Criminal
law applies only to circumstances consisting of actions
which serve to bring about the circumstances declared
punishable. Nor is this altered by the introduction of the
legal concept of conspiracy. In this connection reference
may be made to Dr. Stahmer's detailed statement on
conspiracy. The legal views set forth in that statement are
also made the subject of my own statement. I refer to it,
and to Professor Jahrreiss's statements, in order to avoid
repetition. It can, therefore, be confirmed that the
defendant Speer cannot be charged with a so-called crime
against peace.

The personal interrogation of the defendant and the cross-
examination regarding his activity in the Party have shown
that Speer, by virtue of his position as an architect,
exercised only architectural and artistic functions even in
the Party organization. Speer was the commissioner for
building in the Hess staff; it was a purely technical
assignment and had nothing at all to do with any form of
preparation for war. The Party, which strove to seize and
influence all the vital functions of the people, had created
the position of Commissioner for Building to ensure
uniformity in Party buildings. In their building projects,
the Gauleiter and the other Party offices could consult this
office, but they availed themselves of the opportunity only
to a very limited extent.

THE PRESIDENT: Dr. Flaechsner, the Tribunal thinks it might
be appropriate at some time convenient to you if you were to
deal with the question of the meaning of the words "waging
of a war of aggression" in Article 6 (a). I do

                                                  [Page 244]

not want to interrupt you to do it at this moment in your
speech but at some time convenient to you the Tribunal would
like you to give your interpretation of the words in Article
6 (a), "waging of a war of aggression."

DR. FLAECHSNER: Yes, Mr: President. Perhaps I might return
to this point later, Mr. President, when I have concluded
this topic.

Naturally it was from purely artistic reasons that the Party
took over responsibility for building. It strove to give its
buildings a uniformly representative character. Considering
the peculiar nature of the architectural demands, it was
natural that each architect should follow his own line in
solving the problems put to him. The activity of the
defendant as Commissioner for Construction was therefore
relatively restricted and of minor importance, since he did
not even have an office of his own at his disposal. It would
be erroneous to try to deduce therefrom any participation by
the defendant in any crimes against the peace. The same is
true of the defendant's other functions prior to and during
the war, up to his assumption of office as minister.

Although the defendant was given the task of replanning the
towns of Berlin and Nuremberg, this activity had nothing at
all to do with crimes against the peace; on the contrary,
his activities must rather be regarded as hampering war
preparations; as his task required large quantities of raw
materials and equipment, which might otherwise have been
used directly or indirectly for rearmament. The construction
projects assigned to Speer were, moreover, calculated and
planned far ahead. They could only give Speer the impression
that Hitler was counting on having a long period of peace.
The defendant cannot, therefore; be said, prior to his
assumption of office as Reich Minister, to have contributed
directly or indirectly to the emergence of the events
characterised by Article 6 (a) of the Charter as crimes
against peace. The fact, too, that the defendant was a
member of the Reichstag after 1941 cannot be quoted in
support by the prosecution, because, as the prosecution
itself pointed out, the Reichstag sank into complete
insignificance under the totalitarian regime and became
merely an institution Which accepted and acclaimed the
Fuehrer's decisions.

Responsibility for war guilt is out of the question here
too; for no activity on the part of the Reichstag in
connection with extending the war to the Soviet Union and
the United States can be recognized.

The French prosecution, therefore, rightly refrained from
charging the defendant with the violation of Article 6 (a)
of the Charter.

The prosecution further charges the defendant Speer with
having participated in war crimes committed during his term
of office by forcibly transferring workers from the occupied
countries to Germany, where they were employed for the
purpose of waging war or of producing war materials. The
following should be said in this connection:

The prosecution charges the defendant with violations of
Article 52 of the Hague Convention on Land Warfare, which
states that services may only be demanded of nationals of
the occupied country to cover the requirements of the
occupying forces, that they must be in proportion to the
resources of the country and that they must not oblige the
persons concerned to take part in military actions against
their native land. In Article 2, the Hague Convention on
Land Warfare lays down that all countries participating in
the war in question must be signatories (General
participation clause - Allbeteiligungsklausel). As the
Soviet Union was not a signatory of the Convention on Land
Warfare, the latter could apply to conditions created by the
war against the Soviet Union only if the legal principles
laid down in the Convention were considered as universally
valid International Law. We must start, therefore, from the
principle that those areas belonging to signatories of the
Hague Convention on Land Warfare must be judged on a
different legal basis from areas belonging to non-
signatories of the Treaty. In examining the question, we
must first decide whether the deportation of labourers from

                                                  [Page 245]

territories occupied in war time by an enemy power can be
justified on the basis of Article 52 of the Hague
Convention. Article 52 constitutes a limitation of Article
46 of the Hague Convention on Land Warfare, which lays down
the principle that the population of occupied territories
and their property are, on principle, to be subjected to as
little damage as the necessities of war will allow: Starting
from this principle, we must examine whether it involves the
absolute prohibition of deportation for the purpose of
securing labour for the essential war economy of a
belligerent country. It must be remembered in this
connection that the situation is altered if the deportation
carried out by the occupying belligerent State is in
accordance with agreements made with the government of the
country occupied. The prosecution has taken the view that
such agreements are legally invalid because they were made
under the pressure of the occupying power, and because the
government existing in France during the time of the
occupation could not be considered as representing the
French nation.


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