The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
14th February to 26th February, 1946

Sixty-Seventh Day: Monday, 25nd February, 1946
(Part 4 of 8)

[Page 284]

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 informed.

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 familiar.

With regard to the present case, the prosecution say that the defendants do become responsible for the consequences of acts done in pursuance of the conspiracy. It is rather difficult to speak entirely in vacuo in the matter, but if one may take, for example - again I speak from memory - the defendant Speer, who comes on the scene rather late, if my recollection is right, he then becomes Minister for Production and Armaments and makes the demands for the slave 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 follow?


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

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

DR. HORN: Mr. President, may I make some 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 plans.

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 unimpeachable.

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 point.

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 January.

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 translated.

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 Keitel.

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