Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-184.03 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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