The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
21st January to 1st February, 1946

Forty-First Day: Wednesday, 23rd January, 1946
(Part 5 of 9)


[Page 96]

Then came the meetings between Papen and Hitler in January 1933, in the house of von Schroder and Ribbentrop, culminating in von Schleicher being succeeded by Hitler as Reich Chancellor on 30 January 1933. Referring again to the biography on Page 66 of the document book, second paragraph, there is an account of the meeting at Schroder's house:
"The meeting with Hitler, which took place in the beginning of January

[Page 97]

1933, in the house of the banker Baron von Schroder, in Cologne, is due to his initiative" - that means, of course, Papen's initiative - "although von Schroder was the mediator." Both von Papen and Hitler later made public statements about this meeting (Press of 6 January 1933). After the rapid downfall of von Schleicher on 26 January 1933, the Hitler-von Papen-Hugenberg-Seldte Cabinet was formed on the 30th January 1933 as a government of national solidarity. In this cabinet von Papen held the office of Vice-Chancellor and Reich Commissar for Prussia."
The meetings at Ribbentrop's house, at which Papen was also present, have been mentioned by Sir David Maxwell Fyfe (Document D-472) which was Exhibit GB 130. I now wish to introduce into evidence an affidavit by von Schroder, but I understand that Doctor Kubuschok wishes to raise an objection to this. Perhaps before Doctor Kubuschok raises his objection it might help if I said, quite openly, that Schroder is now in custody, and according to my information he is at Frankfurt; so that physically he undoubtedly could be called. Perhaps I might also say at this moment that there would be no objection, from the prosecution's point of view, to interrogatories being administered to von Schroder on the subject matter of the affidavit.

DR. KUBUSCHOK (Counsel for defendant von Papen): I object to the reading of the affidavit of Schroder. I know that in individual cases the Tribunal has permitted the reading of affidavits. This occurred under Article 19 of the Charter, which is based on the proposition that the trial should be conducted as speedily as possible, and that for this reason the rules of ordinary court procedure should be modified to some extent. Of decisive importance, therefore, is the speediness of the trial. But in our case the reading of the affidavit cannot be approved for that reason.

Our case is quite analogous to the case that was decided on 14 December with regard to Schuschnigg's affidavit. Schroder is in the vicinity. Schroder was apparently brought to the neighbourhood of Nuremberg for the purposes of this trial. The affidavit was taken down on 5 December. He could be brought here at any time. The reading of the affidavit would result in my having to refer not only to him but also to several other witnesses. Schroder describes a series of facts in his affidavit, which in their entirety are not needed for the finding of a decision. However, once introduced into the trial, they must also be discussed by the defence in the pursuance of its duty.

The affidavit discusses internal political matters, using improper terms. For this reason misunderstandings would enter into the trial which could be obviated by the hearing of a witness. I believe, therefore, that the oral testimony of a witness is the only way in which Schroder's testimony should be submitted to the Tribunal, since otherwise a large number of witnesses will have to be called with the reading of Schroder's affidavit and his personal interrogation.

THE PRESIDENT: Have you finished?


THE PRESIDENT: Do you wish to make any observation?

MAJOR BARRINGTON: Yes, I do, my Lord.

The Tribunal has been asked to exclude this affidavit using as a precedent the decision on von Schuschnigg's affidavit. I think I am correct in saying that von Schuschnigg's affidavit was excluded as an exception to the general rule on affidavits, which the Tribunal laid down earlier the same day, when Mr. Messersmith's affidavit was accepted. Perhaps your Lordship will allow me to read from the transcript the Tribunal's decision on the affidavit of Messersmith.

THE PRESIDENT: Mr. Messersmith was in Mexico, was he not?

MAJOR BARRINGTON: That is so, my Lord, yes.

[Page 98]

THE PRESIDENT: So that the difference between him and Schuschnigg in that regard was very considerable.

MAJOR BARRINGTON: In that regard, yes, but what I was going to say was this, my Lord: In ruling on Messersmiths affidavit your Lordship said:

"In view of those provisions" - that is Article 19 of the Charter - "the Tribunal holds that affidavits can be presented, and that in the present case it is a proper course. The question of the probative value of the affidavit as compared with the witness who has been cross-examined would, of course, be considered by the Tribunal, and if at a later stage the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered."
And your Lordship added: "If the defence wish to put interrogatories to the witness, they will be at liberty to do so."

Now in the afternoon of that day, when Schuschnigg's affidavit came up

THE PRESIDENT: Which day was this?

MAJOR BARRINGTON: This was 28 November, my Lord. It is on Page 214 Pt. 1 of the transcript, the Messersmith affidavit, and Page 234 Pt. 1 is the Schuschnigg affidavit.

Now, when the objection was taken to the Schuschnigg affidavit, the objection was put in these words:

"Today when the resolution was announced in respect of the use to be made of the written affidavit of Mr. Messersmith, the Court was of the opinion that in a case of very great importance possibly it would take a different view of the matter"; and then defence counsel went on to say:

"As it is a case of such an important witness, the principle of direct evidence must be adhered to."

THE PRESIDENT: Have you a reference to a subsequent occasion on which we heard Mr. Justice Jackson upon this subject, when Mr. Justice Jackson submitted to us that on the strict interpretation of Article 19 we were bound to admit any evidence which we deemed to have probative value."

MAJOR BARRINGTON: My Lord, I have not that reference.

THE PRESIDENT: Why do you not call this witness?

MAJOR BARRINGTON: I say, quite frankly, - and I was coming to that - this witness is in a position of being an alleged co-conspirator, and I make no secret of the fact that for obvious reasons the prosecution would not desire to call him as a witness, and I put this affidavit forward as an admission by a co-conspirator. I admit that it is not an admission made in pursuance of the conspiracy, but I submit that, as the Tribunal is not bound by technical rules of evidence, this affidavit may be accepted in evidence as an admission by a co-conspirator; and, as I said before, there will be no objection to administering interrogatories on the subject matter of this affidavit, and indeed, the witness would be available to be called as a defence witness if required.

That is all I have to say on that, my Lord.

THE PRESIDENT: There would be no objection to bringing the witness here for the purpose of cross-examination upon the affidavit?

MAJOR BARRINGTON: I do not think there could be any objection if it were confined to the subject matter of the affidavit. I would not like ...

THE PRESIDENT: How could you object, for instance, to the defendant himself applying to call the witness?

MAJOR BARRINGTON: As I said, I do not think there could be any objection to that, my Lord.

THE PRESIDENT: The result would be the same, would it not? If the witness were called for the purpose of cross- examination, then he could be asked other questions which were not arising out of the matter in the affidavit. If the defendant can call him as his own witness, there can be no objection to the cross-examination going outside the matter of the affidavit.

[Page 99]

MAJOR BARRINGTON: Of course he could not be cross-examined by the prosecution in that event, my Lord.

THE PRESIDENT: You mean you would ask him questions in re- examination, but they would not take the form of cross- examination?

MAJOR BARRINGTON: That is what I mean, my Lord.

THE PRESIDENT: You mean that you would prefer that he should be called for the defendants rather than be cross-examined outside the subject matter of the affidavit?


THE PRESIDENT: Is there anything you wish to add or not?

MAJOR BARRINGTON: There is nothing I wish to add.

THE PRESIDENT: It is time for us to adjourn. We will consider the matter.

(A recess was taken)

DR. HORN (Counsel for defendant Ribbentrop): In the place of Dr. von Rohrscheidt, defence counsel for Hess, I would like to make the following declaration.

Dr. von Rohrscheidt has been the victim of an accident. He has broken his ankle. The defendant Hess has asked me to notify the Tribunal that from now on until the end of the trial, he desires to make use of his right under the Charter to defend himself. The reason that he wants to do that for the whole length of the trial is to be found in the fact that due to his absence his counsel will not be informed of the proceedings of the Court.

THE PRESIDENT: The Tribunal will consider the oral application which has just been made to it on behalf of the defendant Hess.

As to the objection to the affidavit of von Schroder which was made this morning by counsel for the defendant von Papen, the Tribunal does not propose to lay down any general rule about the admission of affidavit evidence. But in the particular circumstances of this case, the Tribunal will admit the affidavit in question, but will direct that if the affidavit is put in evidence, the man who made the affidavit, von Schroder, must be presented, brought here immediately for cross-examination by the defendant's counsel. When I say immediately I mean as soon as possible.

MAJOR BARRINGTON: My Lord, I will not introduce this affidavit.

THE PRESIDENT: Yes, Major Barrington.

MAJOR BARRINGTON: My Lord, before coming on to that affidavit, I last read from the biography a passage about the meeting at von Schroder's house, and I ask the Tribunal to deduce from that extract from the biography that it was at that meeting that a discussion took place between von Papen and Hitler, which led up to the Hitler Government in which von Papen served as Vice Chancellor. So that now at that point the defendant von Papen was completely committed to joining the Nazi Party, and with his eyes open and on his own initiative, he had helped materially to bring them into power.

The second allegation against the defendant von Papen is that he participated in the consolidation of Nazi control over Germany.

In the first critical year and a half of the Nazi consolidation von Papen, as Vice Chancellor, was second only to Hitler in the Cabinet which carried out the Nazi programme.

The process of consolidating the Nazi control of Germany by legislation has been fully dealt with earlier in this trial. The high position of von Papen must have associated him closely with such legislation. In July 1934, Hitler expressly thanked him for all that he had done for the co- ordination of the Government of the National Revolution. That will appear in Document

[Page 100]

2799-PS. In fact, although I shall read from that document in a minute, the document has been introduced to the Court by Mr. Alderman.

Two important decrees may be mentioned specially, as actually bearing the signature of von Papen. First, the decree relating to the formation of special courts, dated the 21st of March 1933, for the trial of all cases involving political matters. The Tribunal has already taken judicial notice of this decree. (see Part 1, p. 233).

This decree was the first step in the Nazification of the German judiciary. In all political cases it abolished fundamental rights, including the right of appeal, which had previously characterised the administration of German criminal justice.

On the same date, the 21 March 1933, von Papen personally signed the amnesty decree liberating all persons who had committed murder or any other crime between 30 January and 21 March 1933 in the National Revolution of the German people. That document is 2059-PS, and is on Page 30 of the English document book. I read Section 1.

THE PRESIDENT: I do not think you need read the decrees if you will summarise them.

MAJOR BARRINGTON: If your Lordship pleases, I will ask you to take judicial notice of that decree.


MAJOR BARRINGTON: As a member of the Reich Cabinet, von Papen was, in my submission, responsible for the legislation carried through even when the decrees did not actually bear his signature. But I shall mention as examples two categories of legislation in particular, in order to show by reference to his own previous and contemporaneous statements that they were not matters of which he could say that, as a respectable politician, he took no interest in them.

First, the civil service. As a public servant himself, von Papen must have had a hard but apparently successful struggle with his conscience when associating himself with the sweeping series of decrees for attaining Nazi control of the Civil Service. This has been dealt with in the afternoon session of 22 November. In this connection I refer the Tribunal to Document 351-PS, which is on Page 1 of the document book. It is Exhibit USA 389, and it is the minutes of Hitler's first cabinet meeting on 30 January 1933. I read from the last paragraph of the minutes, on Page 5 of the document book in the middle of the paragraph:

"The Deputy of the Reich Chancellor and the Reichskommissar for the State of Prussia suggested that the Reich Chancellor, in an interview, should state at the earliest opportunity that the rumours about the danger of inflation and the rumours about the danger to the rights of civil servants are untrue."
Even if this was not meant to suggest to Hitler the giving of a fraudulent assurance, at the best it emphasises the indifference with which von Papen later saw the civil servants betrayed.

Secondly, the decrees for the integration of the Federal States with the Reich. These again have been dealt with earlier in the trial. The substantial effect of these decrees was to abolish the States and to put an end to federalism, and any possible retarding influence which it might have upon the centralisation of power in the Reich Cabinet. The importance of this step, as well as the role played by Papen, is reflected in the exchange of letters between Hindenberg, von Papen - in his capacity as Reichskommissar for Prussia - and Hitler, in connection with the recall of the Reichskommissar and the appointment of Goering to the post of Prime Minister of Prussia. I refer to Document 3357-PS,

[Page 101]

which is on Page 52 of the English document book, and I now put it in as Exhibit GB 239.

In tendering his resignation on 7 April 1933, von Papen wrote to Hitler, and I read from the document:

"With the draft of the law for the co-ordination of the States with the Reich, passed today by the Reich Chancellor, legislative work has begun which will be of historical significance for the political development of the German State. The step taken by the Reich Government, which I headed at the time, is now crowned by this new interlocking of the Reich. You, Herr Reich Chancellor, will now, as once Bismarck was, be able to co-ordinate in all points the policy of the greatest of German States with that of the Reich. Now that the new law enables you to appoint a Prussian Prime Minister, I ask you to inform the Reich President that I return to his hands my post of Reichskommissar for Prussia."
I would like to read also the letter which Hitler wrote to Hindenburg in transmitting this resignation. Hitler wrote:
"Vice-Chancellor von Papen has sent a letter to me which I enclose for your information. Herr von Papen had already informed me, within the last few days, that he agreed with Minister Goering to resign on his own volition, as soon as the unified conduct of the governmental affairs in the Reich and in Prussia were assured by the new law on the co-ordination of policy in the Reich and the States.

On the eve of the day when the new law on the institution of Reich governors was adopted, Herr von Papen considered this aim as having been attained; and he requested me to undertake the appointment of the Prussian Prime Minister, when at the same time he would offer his full-time services in the Reich Government.

Herr von Papen, in accepting the post of Kommissar for the Government of Prussia, in these difficult times since 30 January, has rendered a very meritorious service to the realisation of the idea of co-ordinating the policy in the Reich and the States. His collaboration in the Reich Cabinet, for which he now offers all his strength, is infinitely valuable; my relationship to him is such a heartily friendly one, that I sincerely rejoice at the great help I shall thus receive."

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