Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-184.01
Last-Modified: 2000/10/14

DR. KUBUSCHOK, Continued: 

Finally, Messersmith's affidavits must be considered. He
describes events which happened ten years earlier - in
Papen's case apparently entirely from memory. Time and
information acquired later have obviously clouded the
picture of memory so completely that, for example, Papen's
explanations of his

                                                  [Page 236]
                                                            
assignments in the south-eastern area are contained in both
affidavits, but the two accounts are altogether different.

Apart from this, I may limit my criticisms to the statement
that the contents of the affidavits 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 judgement can therefore be based on these two affidavits,
especially as other evidence submitted, both with regard to
Papen's plans and to his actions, proves them to be false.

I return to Gavronski's questionnaire, which was read
yesterday - Document 106. The answers which the Polish
Ambassador, Gavronski, gave to this questionnaire constitute
a complete 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 1935 to 1938. In answering the questionnaire, the year
1937 was given by mistake instead of 1934, which is correct,
as the year when Gavronski's activities in Vienna commenced.
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 south-eastern area, the
dismemberment of Czechoslovakia between Poland and Hungary -
are 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
advantageous and convenient opportunity.

I believe this suffices with regard to the period during
which Papen acted as Ambassador Extraordinary in Vienna.

In addition, the prosecution has taken into consideration
Papen's co-operation in the discussion at Berchtesgaden on
12th February.

The conference of Berchtesgaden was not the beginning of a
new policy, but the result of the 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 undecided. 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, looking for all its
ideological guidance to the man in Germany who was -
spiritually at least - its leader. In Germany the leader of
this 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.

                                                  [Page 237]

Papen's recall on 4th February threatened to interrupt this
development. Perhaps the adoption of a more extreme line of
policy, which was expected, would cause the indefinite
postponement of a meeting of this kind, which it was hoped
would enable existing difficulties to be solved. 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
hoped to attain.

It is therefore perfectly understandable that when
discussing business with Hitler during his farewell visit on
5th 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 reproaches
Papen with the fact that the programme for the subsequent
talks had already been settled. 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
has failed to submit proof for its claim to the contrary. In
view of Hitler's personality, no conclusions can be drawn
from the events of 12th February as to his real thoughts
when such a meeting was first mentioned on 5th February,
much less as to how much of his plans he made known. The
evidence has shown that the points voiced by Hitler on 12th
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 12th
February was at least not yet substantiated on 5th 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 claimed
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 the Austrian delegation. In any case, we cannot
overlook the fact that even if Papen had made the statement
as 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 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.

                                                  [Page 238]

His position must be taken into consideration; he saw his
project doomed to failure through Hitler's behaviour, which
was such as no reasonable human being could have expected:
He saw a man with a naturally violent temper, in his
excitement betraying 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 and the economic demands - and the postponement,
which was achieved after a hard struggle, of the final
settlement until it was ratified by the Austrian Government
and the Federal President was the best possible solution of
the dangerous situation.

Although on 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 been replaced
by new men from Berlin, nor, at a time when the diplomatic
situation was becoming increasingly complicated, would the
services of the man who, by reason of his years of service,
had an intimate knowledge of all the conditions, have, been
dispensed with. The personal contacts with Austrian
statesmen which qualified him more than others to continue
working on Hitler's plans would certainly have been
utilised. If the prosecution was correct in interpreting as
deceitful manoeuvring Papen's efforts to bring about an
understanding during the discussion in Berchtesgaden, there
is little doubt that Papen would have been permitted to
continue working along these lines, and would not have been
replaced by men instructed to carry on matters along much
more radical lines.

Papen's memorandum on his farewell visit to the Federal
Chancellor 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 afterwards.

The new Charge 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
Kitzbuehl, a winter-sport resort.

In the meantime things grew more and more critical. The
plebiscite announced by Schuschnigg led to a development
which perhaps even Hitler had not intended to that extent.
The visit of Seyss-Inquart and Rainer to Papen on 9th March
was only a casual one; there were no deliberations of any
kind and no decisions were taken. 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 I may still refer, in conclusion, to Papen's presence in
Berlin on 11th 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 was at that time already
determined to force the solution which was later adopted -
although there may be doubts as to that - the reason

                                                  [Page 239]

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 in case the Austrian Government yielded, in order
not to 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 should be lessened by
a postponement of the plebiscite. His attitude to 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 Goering 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 farther
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. Scherr-Thoss's 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."

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 an historical fact and was considered
by most Germans to be a great political achievement. Papen,
on the other hand, severely criticises Hitler's method and
acknowledges 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 - independently of the legal question
of whether the case of Austria can be dealt with at all
within the limitations of the Charter - Papen's defence is
completed by the production of contrary evidence to the
effect that he 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 towards the aim of the
policy which he adopted on his appointment on 26th 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 policy taken over by Papen is in no
way incompatible with 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 backed 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 1st June, 1937 - Defence Document 74 - the
attitude of neighbouring countries, which is also shown in
the report, and, finally, the progress made in handling the
question of reparations, led him to hope that the solution
might some day be found in an

                                                  [Page 240]

international understanding. The first necessity for this
was the independent effort 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 fulfilment of the national
wishes publicly expressed in both States.

I continue from my manuscript:

The subsequent period has not been discussed by the
prosecution; but the defence 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 drops Papen at the end of his activities in
Vienna and it gives no explanation of his inactivity since
that time. There is no apparent reason or happening 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 assumes 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
of 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 4th February, 1938, were doubtless
responsible for the adoption of a more rigorous course in
German foreign policy.

It is the opinion of the prosecution that 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-per-
cent 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 policy
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.

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