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-Third Day: Monday, 22th July, 1946
(Part 11 of 11)

[Page 225]

By DR. KUBUSCHOK, Continued:

In the new Government, too, Papen, as Commissioner for the Saar territory, paid special attention to this question. We see how he attempted to avoid also in the Saar question everything that could in any way impair the relations between the countries, even if only temporarily. Hence his suggestion that there should be no recourse to a plebiscite which might give renewed impetus to political chauvinism in both countries. Hitler himself, not only before he took over power, but as responsible chief of the Cabinet, had stated time and again that Germany had no intention of bringing up the question of Alsace-Lorraine, but that the Saar question was the only problem still to be settled between the two countries. And in so doing he followed entirely the suggestions of Papen, which aimed at a peaceful settlement.

Papen is also accused of having deceived the contracting party, namely the Vatican, when he concluded the Concordat in July, 1933. By concluding the Concordat, Papen had intended merely to strengthen Hitler's position and to enhance his reputation abroad.

The hearing of evidence has shown that the Concordat in its effects, too, was a bilateral pact, and that the legal obligations of the Concordat during the treaty violations on the part of Germany which followed soon afterwards offered certain legal protection to the violated party, also.

The questionnaire of Archbishop Groeber concerns the conclusion of the Concordat. It refer to Document 104 which I submitted today, and I summarize it as follows:

Archbishop Groeber is of the conviction that the Concordat was concluded due to the initiative of Papen. Furthermore, he confirms that Papen succeeded in

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persuading Hitler to the conditions of the Concordat. In the answer to question 4, in particular, he confirms that Papen's activities while the Concordat was concluded were dictated by his positive attitude toward religion. Finally he confirms, in the answer to question 6, that the Concordat was a legal "bulwark" and a support in face of the later persecution of the Church. Answer 7 confirms that the community of German Catholic workers, which I will mention later, was not an organization protected by the Concordat. In any case, it is entirely wrong to suppose that Papen had any knowledge of intended future violations of the treaty and that for that reason he had brought about its conclusion. If he had wished to enhance Hitler's reputation abroad, this means would have been the least suitable that could be imagined. A struggle against the Church without the Concordat would have met, it is true, with an unfavourable reception abroad, but it would nevertheless have been an internal German affair. Through the existence of an inter- State treaty these Church persecutions constituted a violation of an international treaty with resulting harmful effects of a special nature upon prestige. One cannot conclude a treaty for the purpose of gaining prestige if immediately after its conclusion one proceeds to violate the same treaty. This consideration alone already refutes the assumption of the prosecution. Beyond this the accusation of the prosecution is of symptomatic importance.

Every action of Papen's which has somehow come to light must be interpreted in the sense of the conspiracy theory to Papen's disadvantage, and the simplest procedure would be to place the later development into the foreground claiming Papen's co-operation in and knowledge of this development, and to consider his previous contrary statements of opinions as ambiguous and double-faced. This procedure is simple if one considers the knowledge of later developments in retrospect as self-evident and if one does not picture the true factual situation at the time; above all, if one makes no effort to re-examine the logic in the original proclaimed intention and the further developments. Only in this manner can one, as in this instance, come to a conclusion which on closer consideration presupposes the folly of the person acting at the time.

But quite apart from these deliberations the attitude of the defendant towards religious matters does not admit of the slightest doubt about the sincerity of his intentions. In the hearing of the evidence, it was set forth that not only his closest personal advisers in Church affairs, but also the highest dignitaries of the Church who were in closest personal as well as professional contact with the defendant in these matters, emphasized that his attitude as a Catholic was absolutely irreproachable at all times.

The lack of foundation of the whole indictment with regard to Church questions is already made clear by the confutation of the assertion of the prosecution that Papen himself broke the Concordat by dissolving the "Work Association of Catholic Germans". I refer in this respect to the unequivocal testimony of the former secretary of the "Work Association of Catholic Germans", Count Roderich Thun, Defence Exhibit 47. It must be stated, however, that Papen not only saw with regret the subsequent violations of the Concordat by the Reich, but that he actively tried to oppose them. The entire activities of the "Work Association of Catholic Germans" consisted practically of nothing else but the establishment of such violations of the Concordat in order to furnish Papen with a basis for his constant interventions with Hitler. After Papen's departure for Vienna the practical possibility of such interventions ceased to exist.

From all of Papen's speeches it is evident that his attempt at safeguarding the Churches did not emanate from considerations of political expediency of the day, but from his fundamental religious attitude. I believe there is no speech in which he did not express himself on this problem, emphasizing time and again that only the Christian philosophy of life, and thus the Christian Churches, could be the foundation for the orderly government of a State. In just this Christian foundation

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he saw the best protection against the tendency of the Party to give preference to an ever-increasing extent to the idea of sheer might over that of right.

With regard to Papen's report to Hitler of 10th July, 1935 (PS 2248), which was submitted during the cross-examination, the prosecution fell victim to a quite obvious misunderstanding. Papen refers in it to the favourable result there would be in the field of foreign politics if one could succeed in eliminating political

Catholicism without touching the Christian foundation of the State. Papen does not state here his opinion on the past and present situation, but furnishes advice for the future. The content of this advice is definitely positive in the ecclesiastical sense. It states that one may eliminate political Catholicism, but the purely ecclesiastical interests themselves, that is the Christian foundation of the State, must remain untouched. These directives destined for future times obviously contain criticism of the past as well. We see here how, in connection with foreign political activities, matters are discussed and brought up to Hitler which, in themselves, belong to another field.

In his own testimony Papen replied to the accusation of the prosecution that as a good Catholic he should have resigned after the Pope had issued his Encyclical Letter "With Grave Apprehension" of 14th March, 1937. Papen could refer, in this connection, without any criticism and with full approval, to the standpoint of the Church itself, which has always been of the opinion that one should hold a position so long as it still offers the slightest opportunity for positive work. Owing to this wise attitude and to its feeling of responsibility for the German Catholics, the Church until the end never completely broke with the Third Reich. One cannot ask an individual Catholic to take any other standpoint. This all the less as Papen, in his purely foreign political activities, came into no conflict whatsoever with his Catholic conscience.

The accusation that in the autumn of 1938 he should have protested to Hitler about the treatment of Cardinal Innitzer is also lacking in foundation. Papen himself can no longer remember today when and in what form he heard of these occurrences at all. The German Press did not publish anything about it, and in no case did such matters reach the public via internal Church channels as the prosecution assumes. In any case, at that time Papen had no possibility whatsoever to intervene, being merely a private person and on bad terms with Hitler for the moment.

I have already dealt with Hitler's development into an autocrat. After the abolishment of joint reports to Hindenburg, Papen's influence was reduced to a minimum. Protests in Cabinet sessions coming from a single man, who was unable to base these protests on requirements of his own department, were of a purely declaratory nature. Meanwhile the Nazi doctrines were being applied more and more in practice. It became clear that the willingness of the early days to compromise in agreeing to a rule by coalition was slowly abandoned and that the National Socialist doctrine kept gaining ground in all fields. It was clear to Papen that he could not follow that course. It was likewise clear that in the framework of his official position he could not alter the general trend, despite his efforts to help in individual cases. On the other hand, his theoretically still existing position of Vice-Chancellor gave him certain weight in public life. Thus he had to face the problem, whether he should start forth with public criticism of prevailing abuses as a last attempt to gain influence upon the development through public discussion of the problems. In case of failure, he would have at least achieved the public branding of these abuses by a responsible party, even-if as a natural consequence Papen would have to give up his position and would thus no longer be able to aid many people in individual cases.

In his Marburg speech of 17th June, 1934, Papen distinctly branded all abuses which had become apparent until that time. Such extensive public criticism remained unique in the history of the "Third Reich".

[Page 228]

He realised that the danger of Nazism lay in the fact that its different doctrines were so interlocked that they formed an iron ring of oppression on all public life. Had one link of that ring been faulty, the dangerous character of the entire system would have been jeopardised. If only one of the points discussed would have met with practical success in a favourable sense, it would have meant a total change of conditions. The system objected to could not have existed another day if the freedom of public speech demanded by Papen had been granted. It could not have been upheld if the conception of justice and of equality before the law were recognized. It could not have existed if freedom of religion were guaranteed. A Marxist mass theory cannot be upheld if the maxim of the individual's equality, common to all confessions, is advocated.

Each of Papen's attacks in his Marburg speech - he had dealt with the racial issue already in his Gleiwitz speech - was in itself an attack upon the development of the entire Nazi doctrine. Here the audience was clearly shown by a leading member of the opposition in the Government where the entirety of the abuses came from.

The consequences for Papen of such an action were obvious to begin with.

Either Hitler would take into consideration the new state of affairs after it had become a matter of public discussion, or Papen was going to offer his resignation, since for further co-operation he could no longer reconcile his viewpoint with the path chosen by Hitler.

Evidently Hitler at that time did not consider it necessary to make a concession to public opinion by deviating from his line of action. He tried to kill the opposition by forbidding the publication of the speech and by penalising its distributors. Papen resigned. Hitler did not accept his resignation immediately, since he obviously had to take Hindenburg into consideration, wishing to clear up the situation first of all with him. Meanwhile the events of 30th June took place.

What fate had been destined for Papen in the course of those events will probably never be known definitely. Particularly, it will never be elucidated whether people were moved by different intentions.

The improvisation of the actions becomes best apparent in the way they were carried out against the office of the Vice- Chancellor. Bose was the first victim in the very building of the Vice-Chancellery. Jung, who was arrested outside Berlin, was also shot. His fate, though, became known to Papen and the public only much later, as it had been hoped at the beginning that he not only had left Berlin, but had gone to Switzerland, having been warned by the measures taken as a result of the Marburg speech. The other members of the staff who could be apprehended were taken into custody by the police and later sent to concentration camps. As to Papen himself, one evidently hesitated to make a final clear decision as to his fate. His close relationship to Hindenburg would seem to indicate the advisability of not burdening the list of victims of 30th June with so prominent a name, after it had been burdened enough in relation to Hindenburg with the crime camouflaged as self-defence against Schleicher.

Anyway, within the framework of the accusation it suffices to establish that whatever Papen's fate has been in the end, the measures taken against him and his, people demonstrate his absolute opposition against Hitler and the Nazi policy.

During the cross-examination the prosecution presented letters to Papen, which outwardly seem to show at first a certain divergence from his usual attitude.

In those letters Papen assures Hitler of his attachment and loyalty and hides his real and material desires under polite phrases which otherwise were in no way customary in his relations with Hitler. It may appear surprising that a man who opposed the system, who had been persecuted for that reason and upon whose associates such incredible things had been inflicted, chose to write such letters. But for a fair judgement a correct understanding of the state of affairs at that time is required. A state of lawlessness existed at that time. It offered a favourable

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opportunity to get rid of troublesome opponents in the course of those measures. The examples of Schleicher, of Klausner and others have sufficiently shown that. There was no way of knowing beforehand when and in what manner the measures taken against the persons already involved in these matters would end. Almost hysterically one believed one saw in every man with opposing ideas a conspirator with these SA groups, who sooner or later were really going to revolt against Hitler.

How far indeed persons of the right on the ground of their opposing attitude had joined hands with the SA, which was a powerful factor at that time, has not been established with certainty. Anyhow it could not be judged at that time whether or not Hitler's statements in regard to persons not belonging to the SA were correct.

For Papen the situation at that time was as follows: He knew of Bose's assassination, but was as yet unaware of Jung's fate. He hoped that the latter had escaped. Three of his co- workers were in a concentration camp. These had first to be released from there. And also in view of the future the suspicion had to be dispersed that any one of them as well as Papen himself had been in contact with the SA circles in revolt.

If Papen ever wished to make any representations to Hitler, the first requirement for any possible success would be to show that he was far removed from such SA circles. Papen therefore felt obliged to assure Hitler of his loyalty and faith.

Besides, Papen had been convinced for years that Himmler and Goebbels were behind the attack on him and the Vice- Chancellery and that Himmler in particular wanted to eliminate him, having been prevented from doing so only by Goering, and that therefore in order to safeguard himself against these two it was necessary to assure Hitler of his irreproachable attitude.

In judging these letters it is not their form but their content which is essential. The whole gist of the letters is the demand of rehabilitation for his own person and his associates. He demands court action. He advises Hitler to strike out from his intended Justification Law all actions directed against persons outside the SA circle.

But what is the meaning of these demands of Papen? Their real significance is the defence of what is legal against the illegal actions of the 30th of June. He demands an objective and legal clarification of all that is to be condemned in the events of 30th June. When we consider these events of 30th June we must always bear in mind that they fell into two parts. The first were measures against the SA leaders, whose radicalism had always been known and who were always to be connected with acts of violence and independent activities which in the past had had to be condemned. An intervention against such people could be explained as an act of State defence against dangerous forces which were ever ready for revolt.

The other part consisted of measures against individuals outside the SA circle. A court investigation would have resulted in the clearing up of these events and in the condemning of the responsible persons.

I believe that if while applying cool criticism one pictures to oneself the events at that time, one can only arrive at the conviction that Papen's letters really had no other purpose than to achieve what he had already proposed to Hitler, namely a rehabilitation by means of a court procedure of those persons who had been unjustly persecuted, and the withdrawal of the validity of the measures in question by means of a decree. If we come now to the heart of the matter and to what was actually desired, we cannot give to the form of these letters the meaning which is ascribed to them by the prosecution.

That the form in particular did not represent an approval of the measures of 30th June, but was merely used for the above- mentioned purpose, is best shown by the examination of the letter of 117th July. Though at that time Papen had achieved the release of his co-workers from the concentration camp, his other demands were not fulfilled by Hitler. So we now see a piece of writing which is

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entirely lacking even in the most elementary forms of politeness. Merely objective statements and objective requests. A piece of writing signed only with the name of Papen, without even a closing courtesy formula.

As to the affair in question Papen does not retreat from his line of conduct for a single moment. He holds fast to his resignation and demands immediate action on it, as the letter of 10th July, 1934, shows (Document D 17/15). He refuses to play any part in future Government activities. He leaves Hitler immediately after having had him called out of the Cabinet session on 3rd July. He keeps aloof from the Reichstag session at which the justification Law is confirmed. He rudely declines the offer to accept the comfortable post of Ambassador at the Vatican. Such was his negative attitude.

As to the positive one, he strives to bring about the intervention of the Wehrmacht. He turns to his friend General von Fritsch. Blomberg, owing to his attitude, is out of the question. Fritsch will not act without a formal order from the. Reich President. So now Papen endeavours to get in touch with Hindenburg. But Hindenburg's entourage keeps him off.

THE PRESIDENT: You might stop there.

(The Tribunal adjourned until 23rd July, 1946, at 1000 hours.)

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