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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Fourth Day: Tuesday, 23rd July, 1946
(Part 1 of 12)

[Page 231]

DR. KUBUSCHOK: Yesterday I stopped at the point where I was describing what Papen did in the course of the measures of 30th 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 make the Wehrmacht intervene. He appeals to his friend General von Fritsch. Blomberg, owing to his attitude, is out of the question. Fritsch will not act except on the express orders of the Reich President. Papen then endeavours to contact Hindenburg. But Hindenburg's entourage keep him off. All access to his estate Neudeck is blocked by SS guards. Papen sends his secretary Ketteler to Hindenburg's neighbour and old friend, Herr von Oldenburg, in order to obtain access to Hindenburg by this means, but that attempt also fails. He sees to what an extent Hindenburg has obviously been influenced when the latter publicly approves of Hitler's conduct, on 30th June, in an official telegram.

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 Wehrmacht, had failed. Hindenburg was unapproachable; his advisers had evidently influenced him in the opposite direction.

The prosecution holds that this was the time for Papen to refer openly to the criminal events of 30th June; 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 had no longer any possibility of making 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 support from 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 realised the true danger of this development. Foreign countries were, for the most part, better informed of the events of 30th 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 believes that such a step might have led to the reoccupation of the Rhineland by the French. I cannot imagine on what the prosecution bases this assertion. It is contradicted by the fact that later events not connected with internal politics but vitally affecting other countries - e.g. the introduction of compulsory military service and the occupation of the Rhineland - called forth no military reaction.

By his resignation and his ostentatious failure to attend Cabinet and Reichstag sessions, Papen made it clear to the public that he was opposed to the development. His conduct was a public protest against the measures of 30th June and their

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perpetrator. The prosecution cannot deny these outward signs, which are historical facts. It attempts; therefore, to construct an antithesis between his outward behaviour and his mental attitude. The only material at its disposal for that purpose is 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 to make the following comments:

What reason could Papen have had for assuming in public a hostile attitude to Hitler during his Vice-Chancellorship and during the events of 30th June, if he was in fact his loyal follower?

What reason could Hitler have who, according to the prosecution, conspired with Papen - and this, after all, would only be a result of the conspiracy - for desiring this? 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 30th June? It could only have been in line with his policy for the unity between Vice-Chancellor and Reich Chancellor to be maintained before the public also. 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 mental attitude.

This thesis of unconditional obedience to Hitler, despite certain facts apparently indicating the contrary, explained away as being 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 happened after Papen's recall and undoubtedly without his co-operation, namely, the marching in on 12th 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 violating international treaties. In the three counts of the Indictment, the Charter confines itself to the arraignment of what appears to be the gravest crime with its 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 the special situation, indicated by the fact that since 1918 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 political problem which had

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become acute and the result of which had always been desired. by both sides, independently of Hitler.

Papen's activity in Vienna is clearly characterised by three episodes: the circumstances of his appointment on 26th July, 1934; his letter to Hitler dated 16th July, 1936 (Defence Document 71), after the conclusion of the July agreement; and his recall on 4th 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 menacing. Italy was mobilising 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 favour of developing friendly relations in the matter of Austria. Papen had an international reputation as being the representative of a reasonable policy of mutual understanding.

Papen naturally had strong misgivings in taking over this post. His recent experiences in home politics, his personal attitude to his own and his colleagues' treatment on 30th June, his attitude to the murder of Dollfuss, with whom he had remained on the most friendly terms, 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 fulfil this task 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 ensure 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 experience from his post as Vice- Chancellor. He knew the difficulties of convincing Hitler by arguments of fact alone. He alone had any prospect of ensuring 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 ensured in the first place by the dismissal of the man who had played a direct or indirect part in the criminal act: Landesleiter Habicht. He asked that he himself should be subordinated to Hitler personally in order to enable him to ensure compliance with the conditions which he had proposed and to avoid their being weakened by administrative departments. He succeeded in doing something ordinarily impossible in relations with the head of the State: the conditions under which he accepted the post of an 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 has stated, is certainly not suspected of viewing the defendant in a favourable light.

The prosecution asserts 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 harmonise with such an attitude? These secret conferences, this unpublished document signed by Hitler and which was in Papen's possession, cannot really be regarded as a

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pretence made in order to create a false impression, as the charge made by the prosecution would infer. These things were not intended to be publicised 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 anxious 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 attractive post of honour 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 16th July, 1936, to Hitler is a report on the success of his many years of work in the interests of a settled peaceful relationship between both countries. The treaty of 11th 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 26th 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 beyond suspicion. Is it also camouflage, intended to create an impression entirely incompatible with the facts - this letter, found by the Allied troops in the secret archives of the Reich Chancellery, and now placed by the prosecution at the disposal of the defence counsel in a manner which deserves our gratitude?

The third episode which clearly indicates the nature of Papen's activity in Vienna is his recall on 4th February, 1938. The numerous recalls and appointments made on that date clearly showed reorganisation 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 the same 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 also to interpret isolated incidents in a manner unfavourable to Papen, I shall briefly consider this period also.

We see Papen engaged in a steady struggle with 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 points 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

[Page 235]

period of activity, as the evidence has shown that he did do, it could only have been 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 effected by other parties 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 which opposed any attempts made by the illegal movement to interfere in politics.

Does the prosecution's presentation allow us to draw any conclusions contrary to this? Papen, by reason of his position as German Ambassador and in accordance with the 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 fulfil his obligation to report to Berlin on actual conditions in Austria. If he had actually collaborated with the illegal movement in the way the prosecution states 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 government, as agreed upon in the July Treaty. Finally, we have in Rainer's report, which lies before us, the written history of the illegal movement, and we see their activities proceeding during those years without the slightest co-operation of 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 Freedom Union (Freiheitsbund) when this Union is described as representing a Nazi trade union Austrian organization which was thought to be willing to follow Schuschnigg and to support his Cabinet? What conclusions can be drawn to the disadvantage of the defendant from the fact that he also carefully watched the Government of Austria and reported on it to Berlin? Or when in this connection he expressed a wish that this or that combination may favour the development of friendly relations with Austria?

During the cross-examination the prosecution presented reports from foreign agencies abroad which Papen forwarded to Berlin. They believe that Papen had learned 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 fulfil 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 anti-clerical 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 neighbouring 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 forming part of the assignment of the accredited ambassador in Vienna.

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