Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-183.07 Last-Modified: 2000/10/12 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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