The Nizkor Project: Remembering the Holocaust (Shoah)

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MR. ELWYN JONES: My Lord, I have not seen a copy of this
document, but we have no objection in principle. I have not
seen the document myself and it is a little difficult to
give any opinion as to whether we would object, if we had
the opportunity of examining it.

THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for
you to read the document, and the prosecution can move to
strike it out of the record if they object to it.

MR. ELWYN JONES: Yes, my Lord. That would be quite a
convenient course for the prosecution.

DR. KUBUSCHOK: I shall read, from that affidavit from
Rademacher dated 29th May, 1946, which was executed in
Milan, half of the penultimate paragraph. The executor of
the affidavit refers in his letter to a statement made by
von Papen which runs as follows:

  "He, Papen, would however not allow himself to be
  deterred by anybody from carrying out his mission as he
  himself understood it: to be an intermediary and
  peacemaker: therefore he would show anyone the door who
  might wish to misuse him in Austria for obscure purposes.
  In this connection it is worth mentioning that a member
  of the Austrian Government, a State Secretary whose name
  I have forgotten, was making efforts to establish
  personal, but secret, contact with the German Ambassador
  Extraordinary, in order to offer him his services for the
  German cause. Herr von Papen turned this offer down,
  giving as his reason the fact that he refused to
  participate in conspiracies which were directed against
  the official policies of the Ballhaus Platz. He had
  attempted to co-operate openly and loyally with the
  Federal Government and he, on his part, would not use any
  other means."

As an explanation I should like to add that the member of
the Austrian Government who is mentioned here is Neustadter
Stuermer.

Your Lordship, may it please the Tribunal:

Papen is accused of taking part in a conspiracy to commit a
crime against peace. With respect to time the prosecution
limits the discussions of the facts of the case to the
termination of his activity in Vienna. It admits that as far
as the subsequent period is concerned, especially during his
activity as ambassador in Ankara, no indications were found
to support the accusation. In other words, according to this
viewpoint Papen is said to have taken part in the
preparatory actions for unleashing a war of aggression -
which actions the prosecution has antedated considerably -
but he is not said to have actively participated in the
immediate preparations and in the crime against peace
itself.

The prosecution deals with Papen's activity as Reich
Chancellor in the last pre-Nazi Cabinet, with the part he
played as Vice-Chancellor in Hitler's Cabinet until 30th
June, 1934, and with his activity as Minister Extraordinary
in Vienna. It was faced with the task of proving that during
this period preparatory actions for a crime against peace
actually took place and that Papen, in full recognition of
these aims, collaborated in the preparations. Since the
counts of the Indictment deal with a field of activity which
is in itself a legal one, and since the criminal element
cannot be introduced into the individual acts except in the
direction of their aims, judgement of the Papen case lies
essentially in the subjective sphere. The prosecution is
faced with the fact that Papen's own sentiments which often
came to light and the policy which he actually pursued
cannot be made to agree with the interpretation given by it.
Therefore, it seizes upon the premise that he is a double-
faced opportunist who has sacrificed his real sentiments, or

                                                  [Page 208]

what appeared to be so, to the existing conditions of the
day and to Hitler's will. In consequence, it must be the
task of the defence to give a clear picture of his
personality in order to prove that his actions and
statements follow a uniform, consistent line and that his
entire attitude de facto was such as to rule out any
connection with the offences of the Charter; and that those
of his actions which are under discussion must have been
undertaken in pursuit of other aims than these which the
prosecution thinks it can recognize. Furthermore, the
defence will outline Papen's entire political activity with
regard to its legality, and within the framework of this
activity it will deal with the actions considered punishable
by the prosecution and will finally submit counter-evidence
showing that he actively worked against a political
development as represented by the facts brought forward in
this Indictment.

We shall arrive here at a just evaluation only if the
discussion is kept apart from the question of political
suitability and correctness, and if we accept the politician
as he reveals himself to us with the opinions and attitude
which he derived from heritage and tradition. Moreover, an
essential element in arriving at a fair judgement will be
the elimination of that knowledge which we have now received
at the trial concerning later years and this later period.

We shall have to direct our considerations only to the time
of the actions themselves, and only then shall we obtain a
clear picture of what Papen could see and expect at that
time.

The prosecution dates Papen's participation in the
conspiracy as beginning on 1st June, 1932, the date of his
appointment as Reich Chancellor. However, it gives no answer
to the question as to what circumstances are to indicate to
us Papen's entry into the association of conspirators, which
is alleged to have been already in existence. Indeed, it is
impossible to give an answer to this. Papen's activity as
Reich Chancellor cannot be regarded in any way as activity
having to do with a Hitler conspiracy. The idea behind the
formation of the Cabinet, the entire leadership of the
Government during his chancellorship, and finally his
departure from office are too clearly manifest to allow us
to read into them a promotion of Marxist ideas, a paving of
the way for National Socialism or even participation in a
conspiracy allegedly already in existence. The Papen Cabinet
was formed at the time of an unusual economic, political and
parliamentary depression. Unusual means had already become
necessary under the preceding Cabinet. They were to be
continued now, in part on entirely new lines. In times of
unusual crises a parliamentary legislative body probably
always offers certain difficulties. Therefore, even in the
days of Bruening's Cabinet the Reichstag was almost
completely excluded from legislation, which for all
practical purposes was in the hands of the Reich President
by means of the Emergency Powers Law. It was now thought
necessary to work along new lines. A Cabinet of men who were
experts in their own field, but who were not bound to any
party, was to do away with these difficulties. Therefore it
was with this intention that the new Cabinet was created
without the co-operation of parties. The tasks with which
the new Government was faced, and the programme necessarily
resulting from the conditions of the time, brought with them
of necessity an attitude hostile to National Socialism. If
one wished to strike at the roots of the depression,
government policy would have to attack the roots of National
Socialism. These consisted of discontent over economic
conditions and the political situation abroad.

But on the other hand one could only think of doing peaceful
reconstructive work of any lasting benefit if some modus
vivendi could be found with the National Socialist Party.
Not only according to constitutional law did the Party have
the power to practically paralyse every government activity.
With nothing more than' the propagandistic influence it had
on the masses it offered the key to a possible quietening
down of domestic political conditions, the first
prerequisite for the start of far-reaching economic
measures.

                                                  [Page 209]

Papen was faced with this situation in the last days of May,
1932, when, without any action on his part and to his
complete surprise, he was commissioned by Hindenburg to form
a Presidential Cabinet.

With regard to his governmental activity I wish to limit
myself in my defence against the Indictment to the following
details:

The formation of the Cabinet of 1st June, 1932, took place
contrary to previous parliamentary custom without any
preceding consultation with the National Socialist Party.
New economic laws with hitherto unknown financial
commitments were decreed in order to fight unemployment and
at the same time to eliminate the previous inexhaustible
reservoir for the growth of the National Socialist Party.
The aim of the new economic measures and the limited
financial possibilities demanded application of these
measures over a protracted period of time. The labour market
was to be stimulated by the use of means which were to be
created by future savings in public taxes if the measures
were successful. The economic laws were based only on this
exploitation of financial possibilities.

Intentionally, no use was made of unproductive public work
projects or a stimulation of the labour market by armament
orders. Long-range economic measures, which could be
successful only in the case of an uninterrupted government
policy, made the problem of their acceptance by the
Reichstag especially urgent.

In the field of foreign politics, Papen continued the course
which the Bruning Cabinet had pursued, and in so doing he
laid particular emphasis on those points of honour, the
recognition of which would have brought no damage to the
other parties to the treaty but which would have taken from
the National Socialist Party a forceful means of propaganda
in influencing the masses.

At the conference of Lausanne, Papen openly explained the
domestic political situation. He pointed out that
ideological points were mainly involved, the non-realization
of which would give the National Socialists the impetus they
desired. He explicitly emphasized that his efforts were the
last attempt of a middle-class Cabinet and that in the event
of his policy failing only National Socialism would profit
from it.

Papen strove to make the National Socialist Party take a
share of the responsibility without wishing to entrust to it
the key position of Reich Chancellor, a share in the
responsibility which would have forced this party of
negative politics into a recognition of actual conditions
and which would thus have eliminated its attractive
demagogic propaganda.

These first attempts by Papen to bring about the
participation of the National Socialist movement in the work
of government are already regarded by the prosecution as
paving the way for National Socialism.

However, this is actually nothing but an attempt to find a
basis of some kind for practical governmental work, an
attempt which had to take into account the experience of the
Bruning Cabinet and the development of the National
Socialist Party.

The fact could not be disregarded that already the Reich
presidential election in March, 1932, had brought Hitler
36.8 per cent of all the votes. If one takes into
consideration that Hindenburg was the opposing candidate and
that Hindenburg's personality certainly caused many
followers of the NSDAP to cast their vote in this, special
case in a way which was not in accordance with Party
directives, the fact follows that a heretofore hardly known
opposition party had arisen which numerically by far
outweighed all the other parties, the antagonism of which
was able to paralyse a priori any governmental activity.
Hence followed, what was a foregone conclusion for Papen,
the endeavour to get this party out of its status as an
opposition party. This decision would be all the easier if
the firm conviction were there that a share in the
responsibility of government would turn the opposition party
from its radical course and above all curb it considerably
in its further development.

                                                  [Page 210]

The best appraisal of Papen's governmental activity, seen
from the standpoint of the National Socialists, is derived
from the fact that it was the National Socialist Party which
opposed Papen's decisive economic legislation and with its
vote of no confidence - given jointly with the Communist
Party - brought about the end of the Papen Cabinet.

The subsequent negotiations of the still acting Reich
Chancellor, especially the events of 1st and 2nd December,
1932, show again his unequivocal attitude toward the NSDAP.

Papen proposed a violation of the constitution to
Hindenburg. He wished to exhaust this last means in order to
avoid a Hitler chancellorship. Schleicher prevented this
solution on the grounds that in the event of a civil war
which might then break out the Government could not remain
master of the situation with the existing police and
military forces. In the light of these clear historical
events the attempt of the prosecution to give a contrary
interpretation to the facts and to these clearly
recognizable unequivocal motives must remain without
success.

What then are the points which the prosecution believes that
it can marshal in the face of this?

For one thing, Papen, in his first negotiation with Hitler
and a short time after forming his Government, consented to
rescind the order prohibiting the wearing of uniforms, a
measure which, even if it had merely been taken as a
political compensation deal to achieve acceptance of the
Cabinet, is something very natural according to
parliamentary rules. Not only was the NSDAP the strongest
party in the Reichstag, but due in particular to its general
political influence in public life it constituted a powerful
factor of the first order. Therefore, it could not a priori
be driven into a state of opposition if it was intended at
all to pursue a realistic policy of long duration and to
seriously try to overcome the emergency through a
revolutionary economic programme.

The repeal of the prohibition concerning uniforms was based
also on more deep-lying reasons. It was a one-sided
prohibition against a single party; the opposing
organizations were not limited in this respect and the
acknowledgement of the law of equal treatment here could
only produce dangerous propaganda material. The repeal of
the prohibition concerning uniforms was furthermore by no
means the announcement of a licence for political acts of
violence. It was reasonably to be expected that the warning
of the Reich President, announced with the proclamation of
the decree, that acts of violence resulting from the decree
would bring about an immediate prohibition of the
organizations as such, would prevent just such pernicious
results.

The assertion of the prosecution that the repeal of the
prohibition concerning uniforms was the main cause of the
increase in the number of National Socialist seats at the
July election is completely at variance with the facts. I
refer to the already mentioned result of the Reich
Presidential Election of March, 1932, at which the real
situation did not even become completely manifest owing to
the fact that Hindenburg was the opposing candidate. The
election of 21st July, 1932, brought 13,700,000 National
Socialist votes whereas in the Reich Presidential election
of 10th April, 1932, Hitler had received 13,400,000 votes.
There are no grounds whatsoever for assuming that the
appearance of uniforms which, incidentally, had been
replaced earlier by camouflage standardised clothing even
during the period of prohibition, might have had a
determining influence on the outcome of the elections.

Much more important and in a negative sense more decisive
for the outcome of the elections was certainly the general
prohibition of political parades and demonstrations
proclaimed by the Papen Cabinet at the beginning of the
election campaign. Public meetings and political parades are
the most important expedient for a demagogically led party.
To lose this possibility just before the election was
undoubtedly a much greater minus for the NSDAP than the
previous plus it had received in the form of permission to
wear uniforms.

                                                  [Page 211]

In the letter of 13th November, 1932, in which Papen again
tries to induce Hitler to participate in the Government, the
prosecution sees an effort which is undignified in its form
and blameworthy in its essence, to smooth the path of
National Socialism to power. It forgets that Papen conducted
the November elections in sharp opposition to the NSDAP,
because he tried to remove the Party from the key position
in which without Hitler it was impossible to form a majority
with the Social Democrats and the parties extending to the
extreme right. It forgets that this result had not been
achieved, that the key position even with 196 seats remained
with Hitler and that, therefore, it was necessary to make
another attempt to win Hitler over for a Presidential
Cabinet under some conservative chancellor. It overlooks in
this point that Papen's proposals here again had the
definite aim of excluding the NSDAP from the Reich
Chancellorship. For National Socialism a Cabinet under a
conservative politician, who would have had to determine the
principles of the policy in line with the constitution,
would only have permitted the Party's influence to be felt
in this or that department, but in return for this influence
it would have been obliged to share the responsibility
through its participation in the Government. Seen in
retrospect from the standpoint of the opposition to National
Socialism one could indeed have welcomed nothing more
enthusiastically than just such a participation by the Party
in the Government, limited in influence and sharing the
responsibility. The end of an opposition policy which was so
tremendously favourable for propaganda purposes would
undoubtedly have brought about the end of the growth of the
National Socialist movement and the conversion of its
radical elements.

To write the letter in a polite form was the official duty
of the Reich Chancellor towards the leader of the strongest
party in parliament. It is a foregone conclusion that in
using this form and because of the purpose of the letter the
writer does not refer to negative points only but also to
those positive elements which could lead to co-operation in
the Government.

In order to be able at least to find an indication from the
period of Papen's Reich Chancellorship of the similarity of
his ideas with those of National Socialism, the prosecution
has imputed to the temporary elimination of the Prussian
Government by the decree of 20th July, 1932, intentions
which in no way could pass the test of an objective
examination.

The "coup d'etat" of 20th July, as the prosecution terms the
execution of the decree of that date, had not the slightest
thing to do with promoting the National Socialists. In the
opinion of the Reich Cabinet, and according to the decisive
judgement of Reich President yon Hindenburg, domestic
political needs required that the open toleration of
Communist acts of terror by the Prussian Cabinet in office
come to an end. Hindenburg drew the logical conclusion and
issued the emergency decree of 20th July. By a decision of
the then still entirely independent Reich Supreme Court it
was determined that this decree with regard to
constitutional law was permissible within the framework of
State political necessities.


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