Morning Session

DR. KUBUSCHOK: Yesterday I stopped at the point where I was describing what Papen did in the course of the measures of 30 June. I mentioned his resignation, his refusal to co-operate in any way. I shall continue at the bottom of Page 46, the last paragraph.

On the positive side he strives to have the Armed Forces intervene. He applies to his friend General Von Fritsch. Blomberg, because of his attitude, is out of the question. Fritsch will not act except on the express orders of the Reich President. Papen then endeavors to contact Hindenburg. But Hindenburg’s entourage keeps him off. All access to his estate, Neudeck, is blocked by SS guards. Papen sends his secretary Ketteler to Hindenburg’s neighbor and old friend Herr Von Oldenburg in order to obtain access to Hindenburg by this means, but that attempt also fails. He is left to witness how far Hindenburg has obviously been influenced when he publicly approves of Hitler’s conduct in an official telegram on 30 June.

What steps were left for Papen to take with the prospect of even moderate success? In his negotiations with Hitler he had tried to put matters on a legal basis. His attempts to mobilize the only factor of power, the Armed Forces, had failed. Hindenburg was unapproachable; his advisers had evidently influenced him in the opposite direction.

The Prosecution hold that this was the time for Papen to refer openly to the criminal events of June 1930: by so doing he could have brought about the collapse of the entire Nazi system. That assertion is untenable. Apart from the fact that, as we have demonstrated, Papen could no longer make an official statement of this nature, subsequent developments in Germany have made it plain that no individual protest of the kind would have had any effect on Hitler’s power either at home or abroad. Hitler’s prestige in Germany was already so great—and it increased as time went on—that such a protest, assuming that it reached the public at all, would certainly have found no echo in the masses of the population. The great masses saw only the economic improvement and the strengthening of Germany’s position abroad, and only a comparatively small number of them realized the true danger of this development. Foreign countries were, for the most part, better informed of the events of 30 June than were the Germans themselves. A statement by Papen would not have made matters clearer to the German people. No conclusions were drawn from the available knowledge by foreign countries either at that time or later.

The Prosecution even believe that such a step might have led to the reoccupation of the Rhineland by the French. I cannot imagine on what the Prosecution base this assertion. It is contradicted by the fact that later events, not connected with internal politics, but vitally affecting other countries—for instance, the introduction of compulsory military service and the occupation of the Rhineland—called forth no military reaction.

By his resignation and his open refusal to attend cabinet and Reichstag sessions, Papen made it clear to the public that he was opposed to the state of affairs. His conduct was a public protest against the measures of 30 June and their perpetrator. The Prosecution cannot deny these outward signs, which are historical facts. They attempt, however, to construct an antithesis between his outward behavior and his inner convictions. The only evidence at their disposal for that purpose are the letters addressed by Papen to Hitler in July. Even if the real nature and purpose of these letters were not clearly discernible from their contents, as in fact is the case, such an attempt would fail in any case in face of the facts just stated—since the means at hand were, from their very nature, inadequate.

In this connection, I would like, in general, to make the following observations: What reason could Papen have for assuming in public a hostile attitude toward Hitler during his vice-chancellorship, and during the events of 30 June, if he had been, in fact, his loyal follower? What reason could Hitler who, according to the Prosecution, conspired with Papen, have had for desiring this, and this, after all, would only be a result of the conspiracy? Could Hitler have wished Papen to disclose in his Marburg speech all the weaknesses and abuses of the Nazi system? What reason could Hitler have had for wishing Papen to remain so obviously aloof from the lawless proceedings of 30 June? It could only have been in line with his policy to show the unity between Vice Chancellor and Reich Chancellor to the public. If these points are taken into consideration, there is only one possible conclusion: There is no logical basis for the Prosecution’s interpretation of Papen’s inner conviction.

This thesis of unconditional obedience to Hitler, despite certain facts apparently indicating the contrary—but actually for purposes of camouflage—is again applied by the Prosecution to Papen’s acceptance of the Vienna post. Before discussing this problem, let me briefly state the following. In my opinion the final development in the Austrian question—which occurred after Papen’s recall, and undoubtedly without his co-operation—namely the marching-in on 12 March 1938—does not represent a crime in the sense of the Charter either. The Charter considers as punishable the preparation and waging of a war of aggression, or a war by violation of international treaties. In the three counts of the Indictment, the Charter confines itself to the arraignment of what appears to be crime at its gravest, with terrible and all-embracing consequences. The forbidden war of aggression itself, the crimes against the laws regulating the conduct of warfare, the crimes against humanity in their most brutal form, the immeasurable consequences of these grave actions—all these things have justified this unusual trial. The Charter does not charge the Tribunal with the punishment of all the injustices which have occurred in the course of the development of National Socialism. In particular it does not charge the Tribunal with the task of investigating every political measure in order to determine whether it was necessary or permissible. Such a task is no part of the functions of this Tribunal, if only for technical reasons and for lack of the necessary time. It is not the task of the Tribunal to examine whether or not international treaties were observed. This question is only of importance if wars were caused, or if the crimes of violence which are to be described in detail have to be accounted for. The march into Austria is not a war, however far one stretches the meaning of the term, from the standpoint of international law. Here the sole decisive factor is that no force was employed, and not the slightest resistance offered; but that, on the contrary, the troops were received with jubilation. Furthermore, the march into Austria cannot be considered in connection with the later acts of aggression. It was a special case, based on an obvious predicament, which found its expression since 1918, in the fact that efforts had been made by both the Austrians and the Germans to effect some kind of constitutional union between the barely viable Austrian State and Germany. Therefore, the actual events must be considered apart from Hitler’s war plans, and even from his purely military plans of preparation—with which I shall deal later—and must be regarded as the solution of a state political problem which had become acute, and the result of which had always been desired by both sides, independently of Hitler.

Papen’s activity in Vienna is clearly characterized by three episodes: The circumstance of his appointment on 26 July 1934; his letter to Hitler dated 16 July 1936—Defense Exhibit Papen-71, Document 2247-PS—after the conclusion of the July agreement; and his recall on 4 February 1938.

The following circumstances led to his appointment. A crucial event had occurred: Dollfuss had been murdered. Not only were Austro-German relations strained, but they had reached an extremely dangerous stage of development. The international situation was acute. Italy was mobilizing at the Brenner. It was to be feared that Austria would now turn finally to one of the groups of powers interested. A situation which would definitely and finally render impossible the maintenance of even tolerable relations between Germany and Austria seemed to be impending. In this difficult situation, Hitler obviously thought it necessary to discard his objections to Papen’s person and to entrust him with the mission in Vienna.

Papen was particularly fitted to initiate a policy designed to overcome the deadlock caused by the assassination of Dollfuss. In the Cabinet, Papen had always been in favor of developing friendly relations with Austria. Papen had an international reputation as being the representative of a reasonable policy of mutual understanding. He naturally had strong misgivings in taking over this post, however. His recent experience in home politics, his personal attitude to his own and his colleagues’ treatment on 30 June, his attitude to the murder of Dollfuss, with whom he had remained on the most friendly terms since his previous office, were against his accepting the post. It was, therefore, a very difficult decision for Papen to make; but the consideration that he alone was in a position to fulfill this task in the spirit of genuine appeasement was bound to outweigh everything else. Could he assume that any other man had the necessary strength of will, as well as the power, to insure that the way of appeasement now begun would be followed to the end? The personal independence which he himself enjoyed could not be expected of a German Foreign Office official, much less of a Party man. Papen brought to this his experience as Vice Chancellor. He knew the difficulties of convincing Hitler by arguments of fact alone. He alone had any prospect of insuring a consistent peace policy in the future, in spite of the opposition of Hitler’s extremist advisers. On the other hand, he had learned caution from his experiences.

He stated conditions and demanded the establishment of a clear policy based on facts. He demanded that no further influence be exerted on the Austrian Nazi movement, and that this be insured, in the first place, by the dismissal of the man who had played a direct or indirect part in the criminal act—Landesinspektor Habicht. He asked that he himself be subordinated to Hitler personally in order to assure compliance with the conditions as he had proposed them, and to avoid their being weakened by administrative channels. He succeeded in doing something ordinarily impossible in his relations with the head of the State: The conditions under which he accepted the post of Ambassador were laid down in writing. They were signed by Hitler. He wanted always to be in a position to force Hitler to keep to his written word. We obtain a clear picture of these events through the testimonies given by witnesses, particularly by the statement made by Von Tschirschky, a man who, as the Prosecution have stated, is certainly not suspected of viewing the defendant in a favorable light.

The Prosecution assert that Papen, as a faithful follower of Hitler’s already known plans of aggression, had, from motives of sheer opportunism, eagerly and willingly accepted the new post. On the other hand, can the form of the appointment and the extreme precautions taken by the defendant really harmonize with such an attitude? These secret conferences, this unpublished document signed by Hitler, which was in Papen’s possession, cannot really be regarded as a pretense made in order to create a false impression, as the charge made by the Prosecution would infer. These things were not intended to be publicized and were, in fact, never made public. The circumstances connected with his acceptance of the Vienna post can only lead us to conclude that Papen was sincerely eager to maintain the appeasement policy agreed upon. It is absurd to speak of opportunism in this connection. Papen had declined the position of Ambassador to the Vatican. The position of Ambassador in Vienna was hardly an enticing post of honor for a former Reich Chancellor and recent Vice Chancellor. The soundness of Papen’s own financial situation excluded all thought of material motives.

Papen’s letter of 16 July 1936 to Hitler is a report on the success of his many years of work in the interests of settled peaceful relations between both countries. The treaty of 11 July 1936 put the seal upon this. There can be no question as to the value of this document as evidence. It gives a clear account of Papen’s assignment and the way in which he carried it out. Papen points out that the task for which he was called to Vienna on 26 July 1934 is now concluded. He considers his work as finished with the conclusion of the treaty. There can be no clearer proof of the truth of Papen’s statement, in regard to his task and the way in which it was carried out, than that furnished by this letter.

And yet, what far-fetched and dubious motives have been imputed to him in connection with this mission! He is said to have acted as Hitler’s willing tool in accepting the task of preparing and carrying out the forcible annexation of Austria. He is said to have been instructed to undermine the Schuschnigg Government and to co-operate for this purpose with the illegal Nazi movement in Austria. Everything he did with a view to mutual appeasement is described as camouflage to help him to carry out his underground plans. And here is a report of his work which is addressed to his employer and is above suspicion. Is it camouflage, intended to create an impression entirely incompatible with the facts—this letter, found by the Allied troops in the secret archive of the Reich Chancellery, and now obligingly placed at the disposal of the Defense Counsel by the Prosecution?

The third episode which clearly indicates the nature of Papen’s activity in Vienna is his recall on 4 February 1938. The numerous recalls and appointments made on that date clearly showed reorganization of the most important military and political posts. The identity of the military men and diplomats recalled makes clear what the sole reason was for the unusual and extensive changes made at that time. If Hitler at such a time recalled Papen from his post, without any other definite cause for doing so, entirely unexpectedly and without giving reason, this clearly proves that Hitler, embarking upon a foreign policy of extremism, no longer considered Papen the right man for Vienna.

These three points are in themselves sufficient and unequivocal proof of the peaceful nature of Papen’s activities throughout the entire duration of his Austrian mission. As the Prosecution, however, tries in this case to interpret isolated incidents in a manner unfavorable to Papen, I shall briefly consider this period also.

We see Papen engaged in a steady struggle against the illegal movement. The charge that he had conspired with it is best refuted ad absurdum by the fact that plans made by the illegal movement, and stated by Foreign Minister Schmidt to be genuine, reveal that members of this same illegal movement had planned to murder Papen. The documentary evidence from the available reports sent by Papen to Hitler also leads in one direction only. This, too, is absolutely clear proof, since the routine reports regularly made to Hitler certainly exclude any possibility of deliberate deception of the public. It is regrettable that the reports could not be found in their entirety so as to furnish us with a clear and complete historical picture of Papen’s activities. Only a fraction of the reports are in our hands. But if Papen sent carbon copies of all his reports abroad at the end of his period of activity, as the evidence has shown, he surely could only have done it in order to justify his policy of appeasement in the eyes of history. This constitutes absolutely clear proof that his policy, as shown in the complete series of reports, must have been a policy contrary to the development affected by other quarters in March 1938. All the witnesses who have appeared in court, and who could give information on conditions in Austria, have stated under oath that Papen’s policy was a policy of appeasement, and that he opposed any attempts made by the illegal movement to interfere in politics.

In view of these facts, what can be concluded from the presentation of the Prosecution? That Papen, by reason of his position as German Ambassador, and in accordance with the state treaty concluded with Austria, had to maintain a certain external connection with members of the Austrian Nazi movement—a connection, which was in no way secret, which was purely for purposes of observation, and which was necessary to enable him to fulfill his obligations to report to Berlin on actual conditions in Austria? If he had actually collaborated with the illegal movement in the way the Prosecution state he did, this would most certainly have been mentioned in his reports to Berlin. He does not work out any secret plans with the illegal movement. On the contrary, we see him openly negotiating with the Austrian Government over the part to be played by the National Opposition in the work of the Government, as agreed upon in the July treaty. Finally, since we have before us in Rainer’s report the written history of the illegal movement, we see their activities proceeding during those years without the slightest co-operation or support from Papen.

What conclusions can be drawn to the disadvantage of the defendant from the fact that he was interested in the activities of the Austrian Freiheitsbund, when this organization is described as representing a non-Nazi trade union, an Austrian organization which was thought to be willing to follow Schuschnigg and in support of his Cabinet? What conclusions can be drawn to the disadvantage of the defendant from the fact that he also watched the situation of the Government in Austria and reported on it to Berlin? Or when, in this connection, he expresses a wish that this or that combination may favor the development of friendly relations with Austria?

During the cross-examination the Prosecution presented reports from offices abroad, which Papen forwarded to Berlin. They believe that Papen had made use of the contents of these reports. This supposition must be wrong. The object of sending reports made by the foreign secret service to Berlin for purposes of information is clear. In addition, the following facts must be established: Papen also made a special point of forwarding to Berlin those documents containing criticism of conditions in Germany which came into his hands; the witnesses Gisevius and Lahousen have pointed out that Hitler was incorrectly or insufficiently informed by his closest co-workers; the critical reports originating abroad, which Papen sent directly to Hitler, could fulfill the aim of drawing Hitler’s attention to abuses and of making him abolish them, and they were intended to do so—this is particularly often the case with statements about anticlerical conditions in Germany. The same applies to the reports on the activity of the Gestapo in the Tschirschky case—these have already been mentioned in the course of cross-examination. Some of Papen’s regular reports to Hitler also deal with conditions in neighboring states. Inspection of their contents shows that these reports deal entirely with problems directly connected with Austria’s foreign policy in the Balkans and, therefore, formed part of the assignment of the accredited Ambassador in Vienna.

Finally, Messersmith’s affidavit must be considered. He describes events which happened 10 years earlier in Papen’s case, apparently entirely from memory. Time and information acquired later have obviously clouded the picture so completely, for example, that Papen’s explanations of his assignments in the southeastern area, contained in both affidavits, are two altogether different accounts. Apart from this, I may limit my criticism to the statement that the contents of the affidavit run counter to every rule of experience and logic. A diplomat cannot have revealed the secret aims of his policy to the representative of another state who meets him with deliberate reserve. It is impossible that Papen should, as Messersmith says elsewhere, not only have revealed to him his alleged plan to overthrow Schuschnigg—to whose Government Papen himself was accredited—but that he should even have spoken of it in public. It is impossible that such disclosures should have produced no reaction, and that they should have been written down for the first time in an affidavit made in 1945. No judgment can therefore be based on these two affidavits, even apart from the fact that their contents are refuted by the other evidence submitted with regard both to Papen’s plans and to his actions.

I return to Gavronski’s questionnaire, which was read yesterday—Document Papen-106. The answers which the Polish Ambassador Gavronski gave to this questionnaire form a thorough refutation of the Messersmith affidavit. This testimony from the diplomat of a country with which Germany was at war, from September 1939 on, seems particularly remarkable. Gavronski had an opportunity of observing Papen during the whole period covered by his activities in Vienna, from 1934 to 1938. In answering the questionnaire, the year 1937 was given by mistake, instead of 1934—which is correct—as the beginning of Gavronski’s activities in Vienna. All the charges which Messersmith makes against Papen—his collaboration with the illegal Nazi movement, the carrying on of intrigue, the plan to overthrow Schuschnigg’s regime, the policy of aggression in the southeastern area, the partition of Czechoslovakia between Poland and Hungary—are all refuted by Gavronski’s testimony.

In addition, I refer to Rademacher von Unna’s affidavit, part of which was read yesterday. By his refusal to enter into a secret agreement with an Austrian minister, Papen shows very clearly that he was not engaged in subversive activities, since he refused to take advantage of this propitious and convenient opportunity. I believe this suffices in regard to the period during which Papen acted as Ambassador Extraordinary in Vienna.

In addition, the Prosecution have taken into consideration Papen’s co-operation in the discussion at Berchtesgaden on 12 February. This Berchtesgaden conference was not the beginning of a new policy, but the result of previous development. In conversations held months before, Papen and Schuschnigg had already decided that a meeting between the two statesmen would be desirable in the near future. The July treaty had naturally left many points of difference unsettled. The testimony of the witness Guido Schmidt has given us a clear picture of the situation; a numerically strong opposition party, officially prohibited but tacitly tolerated—as a result of actual circumstances—and looking for all its ideological guidance to the man in Germany who was—spiritually at least—its leader. In Germany the leader of the Party was, at the same time, head of the state. From the standpoint of foreign policy, it was necessary to separate the parties in both countries. The inner ideological unity was bound, however, to lead to repeated disputes. The Austrian Government accordingly maintained an understandable attitude of reserve, and made constant efforts to prevent this movement from increasing its influence in the administration and Government. The questions arising from the July treaty were in practice treated in a manner suitable to these interests. It was natural that Austria should try to apply the stipulations of the treaty on as restricted a scale as possible. It was only natural that Germany should wish to make the fullest possible use of the opportunities offered by the treaty. The establishment of direct contact between the responsible heads of both countries—and in the case of Germany this meant also the head of the Party—could only be regarded, therefore, as reasonable. Papen’s recall on 4 February threatened to interrupt this development. Perhaps the adoption of the extremist line of policy, which was expected, would cause the indefinite postponement of a meeting of this kind, which it was hoped would speed the removal of existing difficulties. To say the least of it, the results to be expected at a later date, and in a tenser atmosphere with an extremist successor, might be very different from those which Schuschnigg and Papen were hoping to attain. It is therefore perfectly understandable that, when discussing business with Hitler during his farewell visit on 5 February, Papen, although he had already been recalled, agreed to make definite arrangements for the prospective conference and to accompany the Austrian delegation to Berchtesgaden for this purpose.

The Prosecution reproach Papen with the fact that the program for the subsequent talks had already been settled at that time. Contrary to this, Papen testified in his interrogation that he was only instructed to arrange the discussion in order to clear up all points of difference on the basis of the July treaty. The Prosecution have failed to submit proof for their claim to the contrary. In view of Hitler’s personality, no conclusions can be drawn from the events of 12 February as to his real thoughts when such a meeting was first mentioned on 5 February, much less as to how much of his plans he had made known. The evidence has shown that the points voiced by Hitler on 12 February are identical with the demands raised by the Austrian National Socialists immediately before the discussion and transmitted to Hitler through their own channels. From this it can be seen that the subject of conversation chosen by Hitler in the discussion of 12 February could certainly not have been decided upon on 5 February. If the Austrian Nazis hurried to Berchtesgaden ahead of Papen with their demands, this refutes the Prosecution’s opinion that Papen had conspired with Hitler and the Austrian party. In this case he himself would probably have been the best liaison between the Party wishes and Hitler. This is further emphasized by the testimony of the witnesses Seyss-Inquart and Rainer, who have stated clearly that they had no contact with Papen during this period. Rainer also points out in his report that Papen believed that the fact of the prearranged discussion was kept secret from the Austrian party.

In order to incriminate Papen, the Prosecution also claim that at the reception of the Austrian delegation on the German-Austrian frontier he had called Schuschnigg’s attention to the presence of generals. Whether this is really in accordance with the facts was not disclosed by the evidence. The sole evidence which can be used in respect to this is the testimony of Schmidt. The latter was no longer in a position to state with certainty whether Papen had spoken of one general, namely, Keitel, who is known to have remained constantly in Hitler’s entourage after taking over his new office—or of several generals. Papen himself does not remember whether, and in what form, he made such a remark to Schuschnigg at the time. Neither does he remember whether he was at all aware of the presence of generals at the time. It is quite possible that it came to his knowledge on the night spent in Salzburg, where he stayed at a different hotel from that of the Austrian delegation. In any case, we cannot overlook the fact that even if Papen had made the statement alleged by the Prosecution, this statement was made before the visit, and he therefore did not take part in any attempt at intimidating the Austrian delegation and taking them by surprise.

The part he took in the discussion has been clarified by the evidence. Hitler was in sole command and, with a brutality which surprised even those who knew him, tried to impress Schuschnigg. Technical details were negotiated with Ribbentrop. Papen was present more or less in the capacity of a spectator, which also was accounted for by the fact that he no longer occupied an official position. The testimonies of those who attended the conference are unanimous in stating that he viewed his part in the proceedings as that of exerting a modifying influence, which the circumstances made necessary.

His position must be taken into consideration; he saw his project doomed to failure through Hitler’s behavior, which was such as no reasonable human being could have anticipated. He saw a man with a naturally violent temper in his excitement betray his lack of all the qualities necessary for a reasonable discussion at a conference of statesmen. He heard Hitler’s threats, and was bound to feel that he was determined to let things take an irrevocable course should the negotiations be broken off abruptly. Considering the situation, therefore, the fact that certain concessions were obtained—Hitler acquiesced with regard to the Army Ministry, the economic demands, and the postponement, achieved after a hard struggle, of the final settlement until ratified by the Austrian Government and the Federal President—was the best possible solution of the dangerous situation. Although in this point Papen agreed with the Austrian statesmen, who undoubtedly were only prepared to sign the document provisionally while safeguarding the interests of their State to a reasonable degree in the prevailing conditions, Papen cannot be charged with approving and intending the result from the outset.

Hitler’s opinion of Papen’s previous activities in Austria and the part he played in the conference at Berchtesgaden is best shown by the fact that no further post of any kind was assigned to him in Vienna. It is highly unlikely that Hitler would not have given some assignment to a man who was wholeheartedly and actively interested in the result of the conference at Berchtesgaden. He would not have replaced him by new men from Berlin, nor, at a time when the diplomatic situation was becoming increasingly complicated, would he have dispensed with the services of the man who, by reason of his years of service, had an intimate knowledge of all the conditions. The personal contacts with Austrian statesmen, which qualified him more than others to continue working on Hitler’s plans, would certainly have been utilized. If the Prosecution were correct in interpreting as deceitful the maneuvering by which Papen attempted to bring about an understanding during the discussion in Berchtesgaden, there is little doubt but that Papen would have been permitted to continue working along these lines, and would not have been replaced by men instructed to carry on a program along much more radical lines.

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 view—that to some extent he had acted under pressure in Berchtesgaden—as “worthy of note” is not likely to have played an active part in the coercive negotiations.

The record of evidence has proved that Papen held no further public appointments for some time afterward. The new Chargé d’Affaires, Freiherr von Stein, a pronounced National Socialist, took charge of the Embassy. He was assisted by Keppler, a close confidant of Hitler. Papen, on the other hand, made his farewell calls and went to stay at Kitzbühel, a winter sport resort.

In the meantime things grew more and more critical. The plebiscite announced by Schuschnigg led to a development the proportions of which perhaps even Hitler had not intended. The visit of Seyss-Inquart and Rainer to Papen on 9 March was only a casual one; there were no deliberations of any kind and no decisions were made. If Papen, as Rainer asserted, expressed the view that, considering the way in which the questionnaire was formulated, no decent Austrian could be expected to say “no,” and was therefore bound to follow Schuschnigg’s instructions, that suffices to indicate the contrast between Papen’s views and those of the Austrian Nazis and the intentions which were subsequently made plain in Berlin.

If, in conclusion, I may still refer to Papen’s presence in Berlin on 11 March, I must say that even when I consider the matter in retrospect, I can give no clear explanation for Hitler’s desire to have Papen in Berlin. There might have been many reasons. If Hitler had been, at that time, already determined to force the solution which was later adopted—although there may be doubts as to that—the reason might have been that he did not trust this representative of appeasement in Vienna, or that he assumed that the desperate position in which they found themselves might induce the Austrian Government officials to turn to him, and that with Papen’s help proposals for a settlement might have been made. I may remind you of a similar situation prior to the beginning of the campaign against Poland, when Hitler was afraid “some swine might still come along at the last minute with a proposal for an understanding.” On the other hand, it is also quite conceivable that Hitler wished to have Papen in Berlin so that, in the event that the Austrian Government yielded, he might not be deprived of the advice of a man who was familiar with conditions. As far as the Indictment is concerned, any attempt to understand Hitler’s real motives is superfluous.

The sole deciding factor is constituted by Papen’s actions while he was in the Reich Chancellery. Upon his arrival he expressed to Hitler his desire that the tension be lessened by a postponement of the plebiscite. His attitude toward later events is documented by his comments on the military preparations and the cancellation of the order to march in. The shorthand notes of the telephone conversations carried on by Göring afford us a vivid picture of the events in the Reich Chancellery. His testimony shows that, in the main, he was the driving force, and occasionally went even further than Hitler intended. He emphasized that he had all along made consistent efforts to find a solution, and that he now needed no further advice and no further time to reflect on his decision. Seherr-Thoss’ affidavit makes clear Papen’s attitude on the evening of the day in question. He remarked to a circle of friends that he had advised against marching in, but that Hitler, against his advice, had just been “mad enough to give the order to march in.”

Finally, we find another clear expression of Papen’s attitude in his conversation with the witness Guido Schmidt, which took place years later. At that time, the annexation of Austria had long been a historical fact, and was considered by most Germans to be a great political achievement. Papen, on the other hand, severely criticized Hitler’s method and acknowledged anew those fundamental principles of legality and faithfulness which in this case had been abandoned—a step which, in the long run, would prove harmful to Germany.

My conclusion is that—independent of the legal question of whether the case of Austria can be dealt with at all within the limitations of the Charter—Papen’s defense is completed by the production of evidence to the effect that the defendant himself played no part in bringing about the march into Austria, nor did he prepare the way for it by a policy directed to that end; and that his activity in Austria was exclusively directed toward the aim which he assumed on his appointment on 26 July 1934—a policy which was to restore friendly relations between the two countries—a lawful aim which had no connection with a special or general policy of aggression.

I should like to make the following remarks, which are not in my manuscript. This aim taken over by Papen is in no way contrary to the hopes, cherished since 1918 by the overwhelming majority of Germans and Austrians, for some form of close constitutional union as the result of a normal development. It was clear that in view of the existing restrictions imposed by the peace treaties, a good many difficulties would have to be overcome. But was Papen not in a position to assume with a clear conscience that the parties to the treaty would not refuse to sanction a wish of both peoples, a wish furthered by the political and economic impossibility of maintaining the status quo? Was this not the moment to apply the principle of the self-determination of peoples, the great principle of the twentieth century? The many opinions expressed abroad at the time—his talk with Ambassador Sir Nevile Henderson, mentioned in Papen’s report of 1 June 1937, Defense Exhibit Papen-74, Document 2246-PS; the attitude of neighboring countries, which is also shown in the report, and, finally, the progress made in handling the question of reparations—might lead him to hope that the solution might some day be found in an international understanding. The first necessity for this was the initiative of a sovereign and independent Austrian Government. This could be based only on a genuinely friendly relationship with Germany. Papen’s mission might, therefore, be a basis for the fulfillment of the national wishes publicly expressed in both states.

I continue from my manuscript.

The subsequent period is not taken into consideration by the Prosecution; but the Defense must deal with it for the purpose of refutation. It is a simple matter to establish facts, in connection with this period, which prove that the assertions made by the Prosecution, with regard to the earlier period, must be false. The Prosecution drop Papen at the end of his activities in Vienna and give no explanation for his inactivity since that time. There is no apparent reason or occurrence which might have induced such a change in conduct on the part of the alleged conspirator.

We now come to the period covering the immediate preparations for war and the outbreak of the war itself. The Prosecution assume that, at this time, in spite of the numerous opportunities which must have been open to him, the former conspirator Papen abandoned his previous course. The Prosecution must find some explanation for this transformation if the arguments by which they attribute a criminal intent to the actions of the earlier period are not to be considered inconclusive.

After the incorporation of Austria, Papen retired to the country and remained there, aloof from public life for over a year, until April 1939. This fact is significant in the light of the situation at that time. The events of 4 February 1938 were doubtlessly responsible for the adoption of a more rigorous course in German foreign policy. In the opinion of the Prosecution Papen was Hitler’s willing tool in the actions which preceded and paved the way for this policy. If this were the case, the results achieved by Papen would cause him to be regarded as a hundred-percent successful diplomat. But this most successful diplomat and conspirator does not proceed to some place where he can continue his activities, and where similar preparations might be necessary as, for example, the Sudetenland. He is not sent to some place, where the main strands of European politics cross—in Paris, London, or Moscow, where, on the basis of his international reputation, he would undoubtedly seem the most suitable man to support the Hitlerite policy. This man retires from public life at a time when Hitler’s whole foreign policy, the Sudeten crisis, the incorporation of Czechoslovakia, and the preparations for the war against Poland were creating great political tension. The fact that Hitler did not even consider his services at such a time makes it quite clear that Papen was not a conspirator and not even a follower of Hitler and that he did not even bring about the first success won by the Hitlerite policy—the incorporation of Austria.

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.

The Prosecution is unable to utilize his activities in Ankara in support of his case; it cannot refrain from judging Papen’s acceptance of the post unfavorably. I am therefore compelled to go into this point also.

Papen was 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 Italy and Turkey could, if existing treaties were honored, 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 has in itself an aim worthy of attention. 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 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 southeastern 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 through compromise 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 rescue of 10,000 Jews from deportation to Poland which has 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 labor, but straight to the gas chambers.

Now I should like to refer to Document Papen-105, the questionnaire filled out 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 toward them.

His Ankara activities have been described in detail by the witnesses Kroll and Baron von Lersner. They clearly indicate a unified peace policy, a peace policy which was independent of the military and political situations of the moment, and which laid stress on a peace through compromise 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 believe they can deduce his guilt in this criminal act from his behavior 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 have rested their accusations on the insecure foundation of deduction and omitted examining whether their assertions were even remotely in accord with the whole 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 take into consideration the personality of the accused. Participation in such 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 life 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 toward his country, and who for precisely these reasons is naturally considerate of his fellows. His personal ties with Germany’s western neighbors 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 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 endeavors, 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 simplifications 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 have failed to prove that Papen, at any time, was involved in the alleged conspiracy. The truth is opposed to this. In the evidence offered in refutation, facts are established which make it impossible to connect his person even remotely with the facts of the Indictment.

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. Flächsner, Counsel for the Defendant Speer.

DR. HANS FLÄCHSNER (Counsel for Defendant Speer): Mr. President, may it please the Tribunal:

The Prosecution have charged the Defendant Speer with violations of all four points of the Indictment which essentially covered the stipulations of Articles 6(a) to (c).

The French Prosecution, which substantiated more definitely the individual charges against the Defendant Speer, refrain from charging him with the violation of Article 6(a) of the Charter and demand only the application of Articles 6(b) and (c) against him. However, since the legal concept of conspiracy has frequently been dealt with during the oral proceedings by citing the 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 provisions of the Charter, details must be given by way of precaution.

The defendant has, in addition, been charged with the planning, preparation, launching, or conduct 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 War Production 1½ 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 in the slightest degree.

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 peacetime construction and did not contribute by his activity either to the preparation or the launching of a war violating international treaties. I refer to my document book, Page 19, Document 1435-PS.

If the circumstances which Article 6(a) of the Charter materially and legally characterizes as criminal acts were 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 toward 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 bring about the circumstances which have been declared punishable, that is, he must have functioned as a cause of the result which was 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 have asserted that by joining the Government the defendant had accepted, or rather approved of, 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’ 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 purely architectural and artistic functions even in the Party set-up. 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 insure uniformity in Party buildings. In their building projects, the Gauleiter and the other Party offices could confer with this office, but they availed themselves of the opportunity only to a very limited extent.

THE PRESIDENT: Dr. Flächsner, the Tribunal think 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 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 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. FLÄCHSNER: Yes, Mr. President. Perhaps I might return to this point later, Mr. President, when I have concluded this topic.

Naturally, it was for 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 feeling, 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 Building 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 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 characterized 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 themselves pointed out, the Reichstag sank into complete insignificance under the totalitarian regime and became merely an institution which accepted and acclaimed the Führer’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 charge 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 warfare or of producing war materials. The following should be said in this connection.

The Prosecution charge 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 in 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 nonsignatories of the treaty.

In examining the question, we must first decide whether the deportation of laborers from territories occupied in wartime 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 in general 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 labor 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 have defended the view that such agreements are legally invalid because they were made under the pressure of the occupation and because the Government existing in France during the time of the occupation could not be considered as representing the French nation.

The first point does not support the Prosecution’s contention. The contents of treaties concluded under international law will always be influenced by the respective power of the contracting parties. In every peace treaty concluded between a victor and a vanquished state, this difference of power will be reflected in the contents. This is not, however, contrary to the nature of treaty-making.

The second point, by virtue of which the Prosecution reject the plea of an agreement between the German Government and the French Government, then in power, relating to the assignment of labor, is equally ineffectual. The so-called Vichy Government, then in power, was the only government existing in French territory; it was the lawful successor of the government in office before the occupation—and from the point of view of international law—by the fact that states which were at that time not yet involved in the war maintained diplomatic relations with it.

It cannot, moreover, be assumed that the willingness shown by the French Government in this agreement to co-operate with the German Reich, which was then gaining military victories, ran counter to the real opinion of the French people. Reference can be made in this connection to Document R-124, Page 34 of my document book. Particular attention must be paid to the economic situation of occupied France at the time. After France’s withdrawal from hostilities, the total blockade was extended to cover the whole of French territory in Europe, with the result that raw materials not produced in France were no longer obtainable, and production came to a standstill. Important sections of French production were, in this way, put out of action, and many workers deprived of the means of earning a living. In addition, the French Government did not pledge themselves unconditionally to send labor to Germany, but made this dependent on concessions such as the liberation of prisoners of war, et cetera.

Whether, and in what measure, the hopes placed in the treaty by the French Government were actually fulfilled, is irrelevant in determining whether the treaties in question were authentic treaties or not. From the legal point of view, there is no doubt that these agreements have the character of treaties. From this point of view, there is no justification for the accusation made by the Prosecution that workers were taken from occupied French territory against their will and, therefore, illegally.

No judgment of the legality of the measures relating to the workers from Belgium and Holland can be based on agreements such as those concluded between the German and French Government offices, since in those countries the Government had left the country, and consequently no political authority existed. The general secretaries remaining there could not be considered as representatives of the Government, and the decrees regulating the dispatch of workers to Germany were enacted by order of the Reich commissioners or the military commander. Dr. Steinbauer in his exposition on the Defendant Seyss-Inquart’s activities in Holland has already explained in detail that particular rules must apply to those countries and to the dispatch of laborers from them. In order to avoid repetition, I refer you to these remarks.

With regard to the Eastern countries, we must start with the fact that the Soviet Union did not sign the Hague Convention on Land Warfare. It remains, however, to be seen whether the principle laid down in Article 46 of the Hague Convention on Land Warfare, with reference to the treatment of civilians in war, and the case of occupation of a belligerent country by the enemy, must not be considered as a universally valid international law and therefore applicable even if the belligerent country concerned is not specifically a party to the Hague Convention on Land Warfare. An examination of this question would show the deportation of workers from occupied territories to be illegal unless some special factor emerges to cancel its illegality. A state of emergency in the sense of international law can be considered as one such factor. It is true that it is a matter of international law whether and in what measure such an emergency can legalize a practice which is in itself illegal; but such a state of emergency must be admitted in cases when the state is fighting for its bare existence.

It may be considered that after the Allies had declared the unconditional capitulation of Germany to be their goal such a state of emergency existed for the German State, since there remained no doubt that the enemy intended to destroy the existing German State to its very foundations. This state of emergency may, however, be considered as existing at an earlier period, when it became clear that the war had ceased to be a settlement of differences between two states, in the sense of the Hague Convention on Land Warfare, and had become a war aimed not only against the fighting forces of the belligerent nations but also, and primarily, at their economic forces, and thus at their so-called war potential.

The Hague Convention on Land Warfare is based upon a conception of war which was already out of date in the first World War and much more so in the second. If in the first World War the belligerents sought to attack each other’s economy by blockade and counterblockade, this is all the more true of the second World War, in which, in addition to the more indirect effects of the blockade, they introduced the element of direct attack on the enemy by destroying his productive installations by means of aerial war. In contrast to the conception of war on which the Hague Convention on Land Warfare is based, a complete change has come about. In view of the fact that a country can only resist an adversary who is well-equipped from the technical point of view if it has at its disposal an unimpaired capacity for production, the main objective in this war was the destruction of the enemy’s capacity for production. This was the aim of the British blockade not only of Germany but of every country in the German sphere of influence. Dr. Kranzbühler has already discussed the questions connected with this subject. I herewith refer to the relevant parts of his statement.

From this point of view, too, the war in the air was waged primarily not only to attack German national territory but also to destroy production capacity and possibilities in the occupied territories. Through continual air raids, the aerial war was directed against economic targets in France, Belgium, Holland, Czechoslovakia, Poland, and Austria, and had as its further aim the interruption and disruption of the whole system of communications—not only on the front and immediately behind it but also hundreds of kilometers away from it—in order to paralyze vital functions of the adversary. The Allied air offensive against Japan is a particularly clear indication of this. This war went beyond the bounds of the Hague Convention on Land Warfare. It ceased to make any further distinction between the adversary’s territory proper and the occupied territories, which were likewise included in the enemy blockade. In this war which sought not only to destroy the adversary as a nation but also to ruin its economic system and its power of production, we may speak of a real national emergency.

When the Defendant Speer was appointed Minister, the economic war just described was in full swing on both sides. In fact, the task assigned to Speer’s department was that of solving the production problems caused by it. Speer, therefore, found himself in the thick of this war of economies; and we now have to decide whether, and to what extent, the measures taken on the German side were capable of alleviating the state of emergency.

THE PRESIDENT: Dr. Flächsner, I would like to ask you this question. Is there any communication between states, either at the League of Nations or elsewhere, since the war of 1914-18, which suggests that the Hague Rules on Land Warfare were no longer applicable? Perhaps you would consider that question and answer it at your convenience?

DR. FLÄCHSNER: Mr. President, I can answer this question immediately in the negative. In the period between the two wars, these problems were dealt with only very superficially and, as far as I am acquainted with the facts, the questions considered lay in the sphere of naval warfare and also land warfare in connection with the treatment of prisoners of war. The Hague Convention on Land Warfare itself contained no additions or amendments whatsoever, apart from separate agreements concerning particular methods of conducting warfare. I might add that in the meantime various methods of warfare have been banned by treaties. But, as far as principles are concerned—and that is the basis of my argument—the principles laid down in the Hague Convention have undergone no changes through treaties in the meantime.

THE PRESIDENT: Yes. Then I understand you to say there has been no communication between states, since the 1914-18 war, which suggests that the Hague Rules on Land Warfare are no longer applicable?

DR. FLÄCHSNER: Yes, that is correct.

We must decide whether, and to what extent, the measures taken on the German side were effective in remedying the state of emergency. In the course of the Trial, the Prosecution have claimed, on several occasions, that the imported labor was to be used to release workers for service at the front. This is certainly one reason why the recourse to foreign workers was used, but it is by no means the decisive reason—not even the most important reason. It is a fact that the total blockade of the German Reich carried out by the adversary compelled the Reich to an increasing extent to build plants for the production of substitute raw materials in order to carry on the war in the technical form which it had now assumed. It is also a fact that the disturbances caused in economic life by aerial warfare made it essential to employ an increased number of workers. As an example, let me say how much additional labor was necessary for the repair of air raid damage. This situation involved a state of emergency insofar as the waging of a war of self-preservation would no longer have been possible without the erection of such additional production plants.

Should it be contended that it is impossible to speak of an emergency overriding the illegality of the proceedings in terms of international law, since the war was begun as a war of aggression and was, therefore, illegal from the outset, it may at least be said in favor of the Defendant Speer, that he believed in the existence of such a state of emergency and had reason to do so.

The examination of evidence has revealed that the underlying causes which led to the war, so far as they have been exposed here by the Prosecution, were not known to most of the defendants, and least of all to the Defendant Speer. Insofar as the deportation of foreign workers to the Reich constitutes an objectively illegal measure according to international law, it remains to be examined what share of it can be charged to the Defendant Speer. At his interrogation prior to the beginning of the Trial, on 18 October 1945, the Defendant Speer admitted knowing that, at least as far back as September 1942, foreign workers had ceased to come voluntarily to the Reich. He said he had countenanced that because there was no possibility of meeting the labor requirements otherwise. It must be concluded from this declaration that the defendant was convinced of the necessity for this emergency measure. Subjectively, therefore, he must be credited with believing in the existence of such a state of emergency overriding illegality.

But in the first place, we must examine to what extent the Defendant Speer actually contributed to the dispatch of deportees to Germany. Here we must start from the principle that the Defendant Speer had a purely technical assignment which he described adequately in his evidence, to which reference can be made. In order to carry out this assignment, he stated his labor requirements. The way in which these requirements were met has been described in detail by the witnesses Schieber and Schmelter. Requirements were submitted in terms of totals needed, and it was incumbent upon the Defendant Sauckel to satisfy them. These requirements referred to the total number of workers as a whole, and it was the Defendant Sauckel’s task to meet these requirements as far as possible and in accordance with his judgment. He had power to exhaust the entire resources of the home labor potential as well as to recruit foreign labor. The witnesses Schieber, Kehrl, and Schmelter stated, in the course of their interrogations, that the Defendant Speer tried to procure German labor, in the first place, for assignments given to him by the Government.

The testimony of the witness Saur affords evidence that the satisfaction of the labor requirements necessary to enable Speer to accomplish his assignment of increasing armament production was of considerable, though not decisive, importance—Document Book 2, Page 146. According to this testimony, the number of workers in the direct armament industry rose from 4,000,000 to 4,900,000—for the whole of the armament industry—during the defendant’s activity as Armament Minister, while the manufacture of basic products for armament increased five and a half to seven times in many departments. It must, therefore, be borne in mind that the increase in armament production which the Defendant Speer was required to produce was achieved, in the first place, not so much through an increase in the number of workers employed as by means of technical and organizational measures. It follows from this again that, for the defendant, the procurement of labor was admitted to be an important, though not decisive, element in the fulfillment of the task assigned to him.

The defendant made the credible statement that he had applied to Sauckel for workers, but had stressed the fact that he wanted German workers first of all. In the defendant’s opinion, an increased number of workers could have been found in the economic sector under his control without having recourse to foreign labor to the extent that it was done. The measures taken by the defendant to prevent the transfer of workers from the West into the Reich have been adequately described by the evidence. In taking those measures—that is, in transferring the production of consumer goods and the manufacture of high priority armament parts, such as, for instance, forged parts, railway equipment, et cetera, to the western countries and in installing protected industries there—Speer was actuated by the belief that the conscription of workers from France, as well as from Belgium and Holland, would be halted. The result of his talks with the French Minister Bichelonne, as the defendant explained during his interrogation, was for all practical purposes to end the deportation of workers to Germany. The results have been accurately described by the Plenipotentiary General for the Allocation of Labor at the session of the Central Planning Board held on 1 March 1944—see Page 32 of my document book.

In spite of all the opposition made to this policy—compare Sauckel’s letter to Hitler, dated 17 March 1944, Document 3819-PS—Speer persevered in his purpose. The decision adopted at Hitler’s conference on 4 January 1944—a report of which was submitted by the Prosecution under Document 556-PS—also reveals that the protected industries, the abolition of which was urged by Sauckel, were to remain out of bounds to Sauckel’s labor conscription. Speer wanted to employ the French workers in France, in an effort to transfer the production of consumer goods and products which did not represent armament production to the occupied western territories. He wished to utilize for armament production the German workers released as a result of the closing down of German plants—see Document R-124, Pages 33-34 of the Speer document book. In this manner Speer was able to increase production because German workers could more easily be retrained, as there were no language difficulties and no difficulties regarding food—compare Kehrl, Page 110, the Speer document book. The result of this policy was that workers from the western areas were mainly used in the production of civilian goods, but not in armament production.

On the question of employment of foreign labor in the protected industries, it must also be said the statute is based on two factual circumstances: Deportation for forced labor and forced labor itself.

Forced labor in France was ordered by a decree from the French Government. According to international law there could be no objection to this, unless the view were taken that the French Government was not entitled to take such measures and to issue such decrees. As the Defendant Speer stated, the French economic leadership obtained its independence through the agreement with Bichelonne, naturally with the restrictions imposed by the agreement.

As established by Berck—see Document Book 1, Page 38, Document 1289-PS—co-worker of the Defendant Sauckel, 20 percent went from the protected industries of France to French economy, whereas more than 40 percent went from the consumer goods industry into French hands. It follows that the French armament industry did not manufacture weapons and actual implements of war, for the German authorities would scarcely have left these to the French agencies.

In the session of 20 June 1946 the Tribunal summarized its misgivings as to the manner in which we presented our evidence by stating that questions of suitability were irrelevant. On the other hand the Defense may be said to represent the viewpoint that this speech was only intended to clarify the question of legality. If the French Government were justified in decreeing compulsory labor service, and if plants employing French workers on the basis of this decree or on the basis of voluntary labor contracts were provided with German orders, no legal objection could be raised. The establishment of protected industries, which prevented the withdrawal of workers and their transfer to Germany, and the removal of single branches of production to France, Belgium, and Holland permitted the objective—that is, satisfaction of the requirements of the German economy—to be attained in a manner which was legally unobjectionable. Even though the Defendant Speer did not completely check the transfer of workers, he nevertheless did succeed in decreasing their commitment appreciably. Instead of the policy pursued by other Reich offices of removing foreign workers to the Reich, the defendant aimed at employing the labor needed for his purpose in the workers’ homeland—Exhibit Speer-9, Page 24, and Exhibit Speer-11, Page 27 of the Speer document book. To this extent he counteracted the tendency to deport workers from their native country.

In order to prove the assertion that Speer played a decisive part in intensifying deportation for forced labor, the Prosecution refer to Document 556-PS, which is a file memo by Sauckel of a telephone conversation he had with Speer on 5 January 1941. In contrast to this Speer Exhibit-35 has been submitted, the copy of the minutes of the Führer conference of 3 and 5 January 1941, which was the object of the telephone conversation. Even if sharp remarks by Hitler are reproduced here also, the exhibit, nevertheless, does not reveal the tendency which was noted by Sauckel in his file memo. The Defendant Speer was already at that time on bad terms with Sauckel. The order issued to Speer in the minutes of the Führer conference, with reference to the control of the French armament industry, gave him a pretext for the establishment of protected industries. For all practical purposes the termination of labor commitments from France was thereby achieved—just the opposite, therefore, of what the Prosecution would like to prove. Reference must be made in this connection to Document F-515, Exhibit RF-22. There it is asserted that, owing to the Speer-Bichelonne agreement, labor commitments to Germany from October 1943 onward were one-tenth less—compare Page 41 of my document book.

In weighing the question as to what extent this exonerates the defendant, it is of no importance whether he acted in such a way for reasons of expediency, or with the conviction that the other procedure was illegal. The only thing that matters in this case is the result, which actually put a practical stop to the transfer of laborers to Germany, as is evident from the document quoted, RF-22. It is certainly clear from the Führer’s minutes of 19 to 22 June 1944—Exhibit Speer-12, Page 19 of the Speer document book—and from the testimony of Seyss-Inquart, 11 June 1946, that in spite of the loss of industry in the western territories and the intention of other departments to bring the unemployed workers to Germany, Speer succeeded in maintaining his protected industries, and thus the plan to commit more foreign workers to Germany finally collapsed.

In the case of the Defendant Speer, we cannot say that it was his duty to examine how far Sauckel’s measures were admissible from the point of view of international law, and this for the following reasons. When he took over his post in the year 1942, the transfer of foreign labor to Reich territory had already been practiced for some time. Speer relied on the assumption that the legal foundations for these measures had been examined before their introduction. It was not his duty, in the eyes of the law, to examine them individually; he could be sure that the offices which handled the allocation of labor commitment had examined the legal basis of their activity. During his years of office, he was repeatedly assured by the Plenipotentiary General for the Allocation of Labor that the transfer of labor to the Reich was carried out strictly within legal limits. He could depend on it that the authorities who were entrusted by the State with the tasks of labor procurement would examine, from the point of view of their legal admissibility, the measures they took in order to carry out these tasks.

The activity of the defendant within the framework of the Government could, if transferred to the sector of civil law, be compared with that of the technical plant manager of a factory, and in this case Sauckel’s position would correspond to that of a director of the personnel office. In such a case the technical plant manager’s duty is not to examine whether, and to what extent, the employment contracts concluded with the individual workers conform to legal regulations.

He has only to see that the manpower he is given to carry out his tasks is employed in the right place and in the right manner. This cannot be met with the argument that the Defendant Sauckel merely considered himself as the deputy of the Defendant Speer. This would not present a fair picture of the way in which the different tasks had been distributed between the two codefendants by the state leaders. The fact cannot be overlooked that of all the sectors of the economy which sent in their requests to the Defendant Sauckel, those presented by the Defendant Speer were the most important for the conduct of the war and, therefore, had priority over the others. This does not mean, however, that it was Sauckel’s duty to satisfy all the demands of the department represented by Speer before all the others. He did not do so, as can be seen from the evidence—in particular from the testimonies of the witnesses Schieber, Document Book 2, Page 114, and Kehrl, Document Book 1, Page 106—and moreover he could not do so since the demands of the other branches of economy, which were all known as “Bedarfsträger,” were very often equally urgent, and the labor potential at hand was not sufficient to fulfill all the demands to the same extent. Had Sauckel not been more than a deputy of Speer, a mere tool who had only to carry out the instructions of Speer, the profound differences between the two could never have come into existence.

It has been emphasized by the Prosecution that the appointment of the Defendant Sauckel as Plenipotentiary General for the Allocation of Labor was only made possible through the intervention of the Defendant Speer, and that this gave reason to believe that Sauckel had been more or less a tool of the Defendant Speer, or depended on him to a large extent. This assumption does not correspond with the actual facts. When he took over his office as Armament Minister, the Defendant Speer soon discovered that the supply of labor to plants, which had been carried out until then by the Ministry of Labor, could not equal the demands made on it. Within the field of work of the Ministry of Labor, this activity represented only a small fraction of its over-all functions.

The Defendant Speer declared in the course of his interrogation that the Ministry of Labor was constantly coping with the temperaments of the different Gauleiter in their districts, because it was the ambition of every Gauleiter to do everything within his power to prevent the transfer of workers from his Gau to another. The Ministry of Labor, which was organized on purely bureaucratic lines, did not seem to the Defendant Speer to be equal to its task, and the suggestion was made to the state leadership that a Gauleiter be entrusted with this task. When Speer’s suggestion was followed up by the request that a Gauleiter, charged with the procurement of labor, be put under him, it was not granted by the state leadership because of other existing competencies. The person proposed by Speer was also turned down, and the Defendant Sauckel was appointed instead. So that in Speer’s endeavors to create a Plenipotentiary General for the Allocation of Labor, the reasons involved were merely of an organizational nature with the purpose of overcoming the afore-mentioned opposition, which was directed against the activity of the labor procurement office in the Ministry of Labor. But to draw from these facts the conclusion that the Defendant Speer was responsible for all the measures ordered by the Defendant Sauckel would be erroneous.

The fact that the defendant, as a member of the Central Planning Board, participated in sessions at which the problem of the procurement of labor was discussed, cannot be used to support the claim of the Prosecution. The Prosecution attempt to prove from the sessions of the Central Planning Board that the Defendant Speer played a leading part in the procurement of labor from foreign countries. In reply to this the following must be stated. The Prosecution have only submitted the text of the minutes of a session, but not the decisions which were made on the basis of this session. And yet, it is exactly these which are decisive. Since all the Defendant Speer’s records, including also the notes on the decisions of the Central Planning Board, were placed by him at the disposal of the Allied authorities, it would have been easy for the Prosecution to present such decisions which would have shown the exact participation of the defendant in the procurement of labor. But such conclusions do not exist and, therefore, the fact that at the conferences of the Central Planning Board questions of labor mobilizations were mentioned should not lead to the conclusion that the Central Planning Board had taken this point over in its sphere of activity.

The decree regarding the establishment of the Central Planning Board is given under Number 42 in Exhibit Speer-7. The scope of the Central Planning Board in labor questions is clearly outlined, and it is stated that the procurement and distribution of labor need not be included in the sphere of competence of the Central Planning Board, as the new office of the Plenipotentiary General for the Allocation of Labor has been specially created for it. It is clear also from the testimony that when the Codefendant Sauckel discussed questions concerning the policy of labor commitment before the Central Planning Board, he underlined sharply his independence of the Central Planning Board, and stressed the fact that when he made his decisions he was responsible only to the Führer in the last instance and was independent of the Central Planning Board. For this I refer to the testimonies of the witness Kehrl and the witness Schieber, Exhibits Speer-36 and 37. This does not mean that no attempts were made in the Central Planning Board to exert an influence in the sphere of the Plenipotentiary General for the Allocation of Labor. These attempts, however, did not have any results. In principle we must take the stand that the responsibility of the Defendant Speer for the transportation of labor from the occupied territories to the Reich cannot be deduced from his activity within the Central Planning Board.

If the Prosecution charge the defendant with the fact that he knew that a great portion of the workers made available to him by Sauckel had been brought to Germany against their will, and that he used these workers in the industry which was under his control, this conclusion encounters legal criticism. If, and insofar as, the removal of labor to the Reich was a violation of international law, this crime would be limited, at the most to the removal of labor to the Reich. The fact that the persons removed into Reich territory were assigned to work is, legally speaking, a new fact to which the Prosecution apply the concept of slave labor.

In this connection the following should be considered. By reason of the Reich Service Law, and the decree which enforced it, there existed for every German an obligation to contribute his services to the war effort. Through the labor office as the highest instance, the leaders of the State could dispose of the work of every citizen for any purpose they considered appropriate, and they did so.

Foreign workers who were removed to Germany likewise became subject to this regulation. We, on our part, do not deny that the Hague Convention on Land Warfare itself contains no provision which would support the extension of compulsory labor service from German nationals to the inhabitants of the occupied territories. Since the Hague Convention on Land Warfare reflects the influence of a different concept of warfare, it is impossible that it should have taken into consideration conditions produced by economic warfare. Yet, it is not possible to answer in the affirmative the question of whether the Hague Convention on Land Warfare finally and definitely regulates all the powers of an occupation authority. Such an answer is contradicted by the practice of all the nations which participated in this war. But here, too, we can resort to the afore-mentioned aspect of national emergency to obtain a correct evaluation and appreciation of the case. It should be admitted that the Prosecution are right in that this extension of liability to compulsory labor can be justified from that point of view only.

If we accept the Prosecution’s contention that there is no legal justification for the extension of liability to compulsory labor to foreign nationals of occupied territories, we are still obliged to check the extent to which the Defendant Speer has rendered himself guilty in the employment of labor subject to such compulsion. In this connection we may refer to what was said earlier about deportation. That the Defendant Speer, although he was not responsible for this, still attempted to mitigate the living conditions of these workers, and that he also took steps to correct bad conditions—insofar as these came to his attention—is shown by Exhibits 3, 4, and 5 of the Speer document book and Pages 7, 8, 9 of the Speer document book. Reference must also be made to the testimony of the defendant himself, in direct examination, as well as in cross-examination, where he described his activity in that field.

Justice Jackson, the American chief prosecutor, when placing before the Defendant Speer, during his cross-examination, a series of documents to demonstrate the bad treatment of foreign workers by the firm of Krupp in Essen, himself stated that he did not intend to hold the Defendant Speer responsible for such individual incidents. (Session of 21 June 1946 p. m.) The documents involved were Dr. Jäger’s affidavit—Document D-288—discussed by Dr. Servatius, and a letter of the locomotive manufacturing department of the firm of Krupp, dated February 1942, shortly after the Defendant Speer’s appointment as Reich Minister. The conditions described therein had caused Speer to intervene with Hitler in March 1942—Exhibit Speer-3, Page 7 of the Speer document book. A further document submitted, Document D-321, describes the conditions under which Russian laborers came to Essen in 1941—that is, before the Defendant Speer took office. Document D-258, Exhibit USA-896, which was submitted during cross-examination, was not produced in order to incriminate the defendant, as stated by Justice Jackson—it may therefore be passed over. Further documents submitted all deal with incidents in the Krupp works. As far as he was able to do so, the defendant explained all of them.

These documents show that abuses of a general nature, for which the firm of Krupp might be held responsible, were caused by air bombardments and the resulting demolition of living quarters. But even if the incidents cited had actually occurred on the premises of that firm—which the Defense is not in a position to verify—these incidents would not supply adequate ground for the assumption that the conditions under which foreign laborers worked in armament industries were the same everywhere. No conclusions may be drawn as to a whole system simply by selecting and investigating one firm. Only evidence showing the general prevalence of such conditions would be relevant.

It is true that the activity of the Defendant Speer would not affect the criminal evaluation of his actions in principle, but it would be of decisive import in establishing the degree in which he participated. When the defendant took office, the practice of employing foreign labor and prisoners of war was already in existence. Thus he cannot be considered as the originator, which fact must also be taken into consideration when passing judgment; for it appeared impossible to depart from the established practice. The employment of foreign labor in German economy was nothing unusual. Many foreign laborers were employed in agriculture, mining, and surface and underground construction in peacetime as well. During the war many foreign laborers from both East and West had already been brought to Germany before the Defendant Speer took office, and only part of these belonged to the sector under Speer’s control.

In order to define the spheres of responsibility of the two defendants, Sauckel and Speer, it will be shown below how the assignment and distribution of workers was handled in the establishments last controlled by the Defendant Speer. Acting as organs of the Speer Ministry, commissions and pools assigned certain production tasks to individual establishments as part of the armament program. The factory then calculated the number of workers needed. This was reported simultaneously to the Armament Command and to the Labor Office, where the labor requirements of all employers in need of workers were recorded. The Armament Command examined all requests received from plants under its jurisdiction and passed them on to the Armament Production Office. Labor requirements reported to the Labor Office were forwarded by them in turn to the Gau labor offices. Armament Inspection Offices collected the requests and forwarded them to the Speer Ministry, labor allocation division. The Gau labor offices directed applications which they received to the Plenipotentiary General for the Allocation of Labor.

It must be noted in this connection that in 1942 the Speer Ministry controlled only construction work and ground forces armament. Navy and air armament made their requests for labor independently. In the spring of 1943 Navy armament was assigned to the Speer Ministry, and, from that time on, labor requisitions for this purpose were handled through the labor allocation division. In the fall of 1943 the rest of production was added, while aircraft armament continued to handle its requisitions independently through the Plenipotentiary General for the Allocation of Labor until August 1944.

An account of these details is indispensable to disprove the Prosecution’s assumption that Speer was the main beneficiary of Sauckel’s mobilization of labor. The fact that along with the Speer Ministry there existed essential labor employing agencies of equal importance as, for instance, the Armed Forces Administration, the Transport System, and so forth, need be mentioned only incidentally, but has also been confirmed by the testimony of witnesses. The Plenipotentiary General for the Allocation of Labor distributed the labor at his disposal among the various labor employing agencies and assigned the required labor to the Gau labor office which in turn referred them to the local labor offices where workers were assigned to individual establishments on the strength of applications previously examined by the Armament Office. An exception to this cumbersome procedure was made by the introduction of the so-called “red-slip process” which was used in the case of exceptionally urgent production assignments—I refer to Page 122 of the document book. A certain number of red slips were issued monthly by the Plenipotentiary General for the Allocation of Labor and placed at the disposal of the Armaments Ministry for distribution by the latter to the plants under its supervision through the industry’s administrative agencies. The plant itself then presented these red slips to the Labor Office, which had to satisfy these red-slip requests for workers regardless of the requirements of other consuming agencies. Not until this had been done could allocations be made to other establishments. General requests for labor were involved in all instances. The allocation was exclusively in the hands of labor authorities directed by the Defendant Sauckel, so that neither the individual factory nor the offices of the Defendant Speer, nor the Defendant Speer himself, had any influence on the distribution. The question of whether local, foreign, or prisoner-of-war labor should be used to satisfy requisitions was left for the labor authorities to decide—document book, Pages 8 and 9.

In concluding the presentation of evidence, the Prosecution submitted the decree of 1 December 1942, Document 4006-PS, issued jointly by Speer and Sauckel. The Prosecution contend that this document, and the decree of 22 June 1944 submitted at the same time, furnish a basis for appraisal of the power ration between Speer and Sauckel. Some comment on this is, therefore, appropriate.