[Page 235]

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]

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.

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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]

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

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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

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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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