Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-76.01 Last-Modified: 1999/11/27 [Page 202] SEVENTY-SIXTH DAYTHURSDAY, 7th MARCH, 1946THE PRESIDENT: I call on counsel for the defendant von Papen.(Dr. Egon Kubuschok, counsel for the defendant von Papen, and Sir David Maxwell Fyfe, came to the lectern.) SIR DAVID MAXWELL FYFE: If the Tribunal approves, I shall indicate the views of the prosecution on the witnesses requested by Dr. Kubuschok. THE PRESIDENT: Very well. SIR DAVID MAXWELL FYFE: The first witness is von Lersner, and there is no objection. This witness is called to cover, among other things, the period of the coming into power of the Hitler Government, which is a time of material importance in the case against von Papen. If the Tribunal would consider the next three witnesses, there is a minor point: The witness Tschirschky was, as I understand it, von Papen's private secretary from 1933 to February, 1935. That is, he covered the period of the rise to power of the Nazi Party. And he also covers some of the Austrian period. The next witness, von Kageneck, is also a private secretary. He does not cover the period of the rise to power, but covers the whole Austrian period. The next witness, Erbach, was the councillor at the Embassy in Vienna, that is, he covers the period 1934 to 1938. The prosecution has always been reluctant to oppose the calling of secretaries who could assist the memory, of the defendant, but it did seem to us that the witness Tschirschky was cumulative both on the period of the rise to power and the Austrian period, and that it would be sufficient to have interrogatories in that case. Therefore, the prosecution, apart from that, would not object to von Kageneck and Erbach. THE PRESIDENT: That is, you suggest interrogatories for No. 2 and calling Nos. 3 and 4? SIR DAVID MAXWELL FYFE: Yes, my Lord, interrogatories, and calling of 3 and 4. THE PRESIDENT: Yes. SIR DAVID MAXWELL FYFE: And with regard to No. 5, the witness Kroll; the prosecution submits that he is irrelevant. He is called for the period when the defendant was an ambassador in Turkey and he, allegedly, is able to say that von Papen had no aggressive thoughts with regard to Russia. The prosecution would submit that von Papen is really the person who can speak on a matter like that, and the prosecution have had no evidence as to any subversive activity of the Nazi Party in Turkey, which is the other point that this witness is said to speak on. Then the next five witnesses - 6, 7, 8, 9 and 10: The Tribunal granted interrogatories and, so long as the matter is limited to interrogatories, the prosecution will make no objection. And No. 11, the Baroness de Nothomb: The prosecution object to evidence on acts of intercession on behalf of members of the resistance movement; and [Page 203] individual acts of that kind, in the opinion of the prosecution, are not really relevant to the matters before the Tribunal. With regard to Archbishop Groeber, if the Tribunal would not mind looking at No. 12 in the application, in the opinion of the prosecution the matters raised by the questions are not relevant. The first is "Were the Concordat negotiations between Germany and the Holy See brought about by the defendant von Paper's own initiative?" The second part of this question is, in short, "Did von Papen make efforts with Hitler regarding the conclusion of the Concordat?" Well, the Concordat was made, and what the Tribunal are really concerned with is the breaches of the Concordat, of which the prosecution has given written evidence. The second question - I am afraid that I do not understand that, and in its present form I submit that it is irrelevant, in addition to being vague - "Were the activities of the defendant directed by his positive religious attitude after the conclusion of the Concordat also?" Then the third question: "Was the conclusion of the Concordat welcomed by the German Episcopate?" I do not think that really helps. And the fourth question: "Did the Concordat give legal backing to the Church during the latter's religious struggles?" And, "Could the Church, in the end, fall back on the Concordat?"The Concordat is there and speaks for itself, and, as I say, the issue in this case is the breaches of the Concordat, not its contents. So we object to No. 12. No. 13, the witness von Beaulieu. That is very short, if the Tribunal would be good enough to look at it:"I shall submit an affidavit of the witness, which deals with the intervention of the defendant as President of the Union Club, on behalf of Jews."The prosecution submit, that the intervention of a racing club on behalf of some Jewish members is not really a relevant matter, even on the Jewish issue. No. 14, the witness Josten. Dr. Kubuschok asks for the use of a statement which has been sent to the Tribunal. The prosecution would prefer that to be in the form of an affidavit or interrogatory, if this is possible.THE PRESIDENT: That is No. 14, is it? SIR DAVID MAXWELL FYFE: No. 14, my Lord, yes. Then No. 15 is His Majesty, the King of Sweden. That is a new application and general in its scope. It is difficult to judge how much King Gustav could contribute, and, therefore, the prosecution do not object to interrogatories. THE PRESIDENT: Sir David, for 14, Dr. Kubuschok says that he requested that the statement made by the witness to the legal department of the Military Government Headquarters, Dusseldorf, be furnished him. Are you objecting to that being furnished him?SIR DAVID MAXWELL FYFE: No, I thought that he had it. DR. KUBUSCHOK: I got it this morning. SIR DAVID MAXWELL FYFE: Dr. Kubuschok says that he received it today; this morning. THE PRESIDENT: Are you objecting to his offering it as evidence? SIR DAVID MAXWELL FYFE: No, I only say that we should prefer it in the form of an affidavit or interrogatory, if that can be done. I do not make any great objection. DR. KUBUSCHOK: In regard to the witnesses I should like to say the following: Witness No. 1, Baron Lersner - the Tribunal granted only an interrogatory at first. The prosecutor has today agreed to have the witness called before this Tribunal. I also ask very urgently that this witness be questioned before the Tribunal.[Page 204]The witness was the President of the German Peace Delegation at Versailles. He is a very well-known German diplomat, who since 1932 has worked very closely with the defendant von Papen. A man like Lersner had, of course, a particularly fine understanding for every policy of aggression. Therefore, it is very important that this co-worker of the defendant von Papen be heard and be allowed to tell us his impressions of the defendant's activities up to 1944. It is particularly important that Lersner, at the instigation of defendant von Papen, was able to go to Turkey.THE PRESIDENT: Dr. Kubuschok, Sir David agreed, I think, with reference to No. 1. DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the matter is settled. The second witness, Tschirschky. Tschirschky was the private secretary of the defendant from 1933 to 1935, the first private secretary during the time that the defendant was Vice-Chancellor. He is a man who was himself persecuted by the Gestapo and had to go into exile in 1935, where he still is. He is a man who can give exhaustive information on the whole period from 1933 to 1935 - in regard to the external activity of the defendant and his attitude between 1933 and 1935.I believe that, especially for the time from the beginning of 1933, we shall not get a thorough picture if we do not hear this intimate co-worker of the defendant personally. The other witnesses mostly concern different periods. Only in some cases do they overlap with the activity of this witness.No. 5, Kroll ...THE PRESIDENT: Supposing that the Tribunal thought it right to grant you No. 2 as an oral witness, would it not be possible to dispense with one of 3 or 4 and have interrogatories from one of them and call the other one? They deal with somewhat the same period.DR. KUBUSCHOK: We definitely need three for the following reasons: Witness Kageneck was present when Hitler entrusted Papen with the Austrian mission. This is a very important point, since the prosecution alleges that he was entrusted with this mission for those purposes of which he was accused. The witness will testify that Papen accepted the mission only after a clear guarantee concerning the purpose of the mission.Furthermore, Count Kageneck was also in Vienna after 1935 ; that is to say, from 1935 until the Anschluss, and for this period we should not have any other witness.Kageneck can also confirm a very important point, that is, that he was entrusted with taking diplomatic documents to Switzerland and safeguarding them there since from these documents, the documentary proof for the activity of the defendant in Vienna could be deduced.Therefore, in my opinion, the witness Kageneck also cannot be dispensed with. If we can dispense with any witness, it would be witness No. 4, Erbach, in regard to whom I might then ask for permission to use an interrogatory, because here, too, questions are to be asked which the other witnesses cannot answer.Witness No. 5, Minister Kroll - Papen is accused of a conspiracy for aggressive war. The Indictment is not limited in respect to time. For the largest part of the time in question, namely 1938 to 1944, Papen was in a position which would have been particularly designed for an activity directed at undermining the peace. Turkey was for a long time an important pillar in military and, therefore, political considerations. It is, therefore, of the greatest interest whether Papen used his position for any activity in the nature of such a conspiracy.Moreover, I should like to bring proof of the opposite. The fact was, that his activity was directed at preserving the peace and that he was, in particular, against any extension of the war by means of military measures against Russia, and was [Page 205]against every political measure for the destruction of the relations between Turkey and the Allied Powers. The witness was, during the Turkish period, the closest co- worker of the defendant. He is, therefore, in a position to give us information about the entire period.Baroness de Nothomb - I have asked in this case to be permitted to present an affidavit or interrogatory. I want . . .THE PRESIDENT: Which number are you dealing with?DR. KUBUSCHOK: No. 11. THE PRESIDENT: You are not dealing with 6 to 10?DR. KUBUSCHOK: No, we are in agreement about 6 to 10. THE PRESIDENT: Very well, 11. DR. KUBUSCHOK: No. 11, Baroness de Nothomb - in this case I asked for an interrogatory or for permission to submit an affidavit. The subject of the evidence is:During the years 1940 to 1944 the defendant continuously supported the witness in her intervention on behalf of persecuted members of the French resistance movement. I want thereby to prove that the defendant von Papen shows again, in this case, that he was greatly interested in a peaceful shaping of German- French relations, and that during the war he always had in mind the post-war time, when the poison should be removed from those relations. The intervention on the part of the defendant was also a result of general humanitarian considerations. This is not without considerable importance in connection with the charge of conspiratorial activity.No. 12, Archbishop Groeber - the Indictment asserts that the defendant von Papen used his position as a prominent German Catholic for a dirty business of deception, and that the conclusion of the Concordat, as such, was effected in the course of a policy directed against the Church; that the conclusion of the Concordat was not intended seriously, as one could see from the later violations of the Concordat. Archbishop Groeber was at the time of negotiations concerning the Concordat, at the Holy See. He was present during all the negotiations. He knows that the initiative for starting negotiations came from von Papen himself, who did not get Hitler's approval until later. He knows that the draft which had been made by von Papen for the Concordat was strongly disapproved by Hitler and that Papen was able to submit this draft only after a long struggle. The witness knows the defendant von Papen very well. He also knows from what inner feelings toward the Catholic question the defendant approached the matter of the conclusion of the Concordat. As an influential dignitary of the Church he can also judge the consequences of the Concordat. He is in a position to judge that the contents of the Concordat, at a later time also, were still a protection for church interests; and from his knowledge of the personal relations of the defendant and all the conditions of the Church in Germany, he can testify as to whether the defendant had anything at all to do with the violations of the Concordat. THE PRESIDENT: Dr. Kubuschok, does witness No. 2 deal with the same subject? Where you say in your discussion of the subject of the evidence, that witness No. 2 accompanied the defendant to Rome to conclude the Concordat can he testify that against Hitler's strong opposition he succeeded, at the last minute, in concluding the Concordat? At that time was the witness present at all the proceedings? DR. KUBUSCHOK: The witness Tschirschky was introduced into the negotiations concerning the Concordat by the defendant. It is very important, in my opinion, to examine also a witness who was present at the negotiations as representing the other side. In particular, this witness, Archbishop Groeber, could also [Page 206] express an opinion in regard to the later period, the violations of the Concordat. He can judge the entire situation from the point of the Church better than can the private secretary Tschirschky. He can also give an essentially more reliable picture of von Papen's personality, which in this matter is very closely connected with his political activity. I have been very modest in my requests; but I should like to ask urgently, in this case, that an interrogatory or an affidavit by Archbishop Groeber be granted, for it is indeed clear, that the accusation that a prominent German Catholic uses his position for evil purposes of deception is a very serious one, and the defendant also is very greatly interested in having this question clarified, within the framework of the Indictment and also beyond that. Witness No. 13 - an affidavit of Herr von Beaulieu, who shall testify that the defendant, in his position as president of a very large and prominent German organization, intervened until the very end for the "non-Aryan" members, as this term was used at that time. Everything which is of importance in judging the Papen case lies, for the most part, in the sphere of the subjective. We will see very few actual actions in the Papen case. The accusations are, for the most part, based on the fact that he was present. It is, therefore, relatively difficult to bring proof and therefore the counter-evidence must, to a large extent, be subjective in nature. To judge a person's character in its entirety, it is not unimportant to know what, for instance, his attitude was in 1938 toward the question of the treatment of Jews; for, if Papen here definitely deviated from a general line followed by Hitler and the Nazis, one will certainly be able to draw a conclusion as to whether he was really the faithful follower of Hitler as the Indictment tries to picture him. Witness No. 14. I received the statement today. I have not yet had time to look through it. I shall submit either the statement or an affidavit which I shall try to get. No. 15 - a questioning of His Majesty King Gustav of Sweden, to be conducted in every way possible. This is a very important question. It touches a major point of the defence, namely, in how far it was possible for a person not entangled in the ideas of Nazism, to collaborate to a certain extent. To what extent could he hope, by his personal activity, to change things or at least to modify them? If, on the basis of the evidence submitted, we prove that von Papen not only exhausted his means to serve this end within Germany, but also, beyond this, used his foreign political connections for this purpose, then this should, I believe, round off the picture of the character of the defendant in an important way. This strong activity in the interest of peace is such that, in my opinion, simply on the basis of such activities, the absolute falsehood and untenability of that charge of the Indictment becomes apparent, that the defendant at any time could have approved of the aims of an aggressive policy within the framework of a conspiracy. SIR DAVID MAXWELL FYFE: May it please the Tribunal, with regard to the Documents, Nos. 1 to 8, the prosecution asks Dr. Kubuschok to submit the extracts, and then we can consider the relevancy at that time. I think that Dr. Kubuschok has No. 9. DR. KUBUSCHOK: I have only the photostat in my possession, which I received from the prosecution. SIR DAVID MAXWELL FYFE: I am sorry. I should have said he had a photostatic copy, but the prosecution have certified the photostat. The original is not obtainable at present. If it comes into our possession we will let Dr. Kubuschok see it. The third point is that Dr. Kubuschok says that he may have to make a supplementary application after Herr von Papen Jr. returns. That is, of course, a matter for him and the Tribunal. The prosecution make no objection.
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