Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-76.01
Last-Modified: 1999/11/27

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SEVENTY-SIXTH DAYTHURSDAY, 7th MARCH, 1946THE PRESIDENT: I
call on counsel for the defendant von Papen.(Dr. Egon
Kubuschok, counsel for the defendant von Papen, and Sir
David Maxwell Fyfe, came to the lectern.)

SIR DAVID MAXWELL FYFE: If the Tribunal approves, I shall
indicate the views of the prosecution on the witnesses
requested by Dr. Kubuschok.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL FYFE: The first witness is von Lersner,
and there is no objection. This witness is called to cover,
among other things, the period of the coming into power of
the Hitler Government, which is a time of material
importance in the case against von Papen.

If the Tribunal would consider the next three witnesses,
there is a minor point: The witness Tschirschky was, as I
understand it, von Papen's private secretary from 1933 to
February, 1935. That is, he covered the period of the rise
to power of the Nazi Party. And he also covers some of the
Austrian period.

The next witness, von Kageneck, is also a private secretary.
He does not cover the period of the rise to power, but
covers the whole Austrian period.

The next witness, Erbach, was the councillor at the Embassy
in Vienna, that is, he covers the period 1934 to 1938.

The prosecution has always been reluctant to oppose the
calling of secretaries who could assist the memory, of the
defendant, but it did seem to us that the witness
Tschirschky was cumulative both on the period of the rise to
power and the Austrian period, and that it would be
sufficient to have interrogatories in that case. Therefore,
the prosecution, apart from that, would not object to von
Kageneck and Erbach.

THE PRESIDENT: That is, you suggest interrogatories for No.
2 and calling Nos. 3 and 4?

SIR DAVID MAXWELL FYFE: Yes, my Lord, interrogatories, and
calling of 3 and 4.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL FYFE: And with regard to No. 5, the
witness Kroll; the prosecution submits that he is
irrelevant. He is called for the period when the defendant
was an ambassador in Turkey and he, allegedly, is able to
say that von Papen had no aggressive thoughts with regard to
Russia. The prosecution would submit that von Papen is
really the person who can speak on a matter like that, and
the prosecution have had no evidence as to any subversive
activity of the Nazi Party in Turkey, which is the other
point that this witness is said to speak on.

Then the next five witnesses - 6, 7, 8, 9 and 10: The
Tribunal granted interrogatories and, so long as the matter
is limited to interrogatories, the prosecution will make no
objection.

And No. 11, the Baroness de Nothomb: The prosecution object
to evidence on acts of intercession on behalf of members of
the resistance movement; and

                                                  [Page 203]

individual acts of that kind, in the opinion of the
prosecution, are not really relevant to the matters before
the Tribunal.

With regard to Archbishop Groeber, if the Tribunal would not
mind looking at No. 12 in the application, in the opinion of
the prosecution the matters raised by the questions are not
relevant. The first is "Were the Concordat negotiations
between Germany and the Holy See brought about by the
defendant von Paper's own initiative?" The second part of
this question is, in short, "Did von Papen make efforts with
Hitler regarding the conclusion of the Concordat?" Well, the
Concordat was made, and what the Tribunal are really
concerned with is the breaches of the Concordat, of which
the prosecution has given written evidence.

The second question - I am afraid that I do not understand
that, and in its present form I submit that it is
irrelevant, in addition to being vague - "Were the
activities of the defendant directed by his positive
religious attitude after the conclusion of the Concordat
also?"

Then the third question: "Was the conclusion of the
Concordat welcomed by the German Episcopate?" I do not think
that really helps.

And the fourth question: "Did the Concordat give legal
backing to the Church during the latter's religious
struggles?" And, "Could the Church, in the end, fall back on
the Concordat?"The Concordat is there and speaks for itself,
and, as I say, the issue in this case is the breaches of the
Concordat, not its contents. So we object to No. 12.

No. 13, the witness von Beaulieu. That is very short, if the
Tribunal would be good enough to look at it:"I shall submit
an affidavit of the witness, which deals with the
intervention of the defendant as President of the Union
Club, on behalf of Jews."The prosecution submit, that the
intervention of a racing club on behalf of some Jewish
members is not really a relevant matter, even on the Jewish
issue.

No. 14, the witness Josten. Dr. Kubuschok asks for the use
of a statement which has been sent to the Tribunal. The
prosecution would prefer that to be in the form of an
affidavit or interrogatory, if this is possible.THE
PRESIDENT: That is No. 14, is it?

SIR DAVID MAXWELL FYFE: No. 14, my Lord, yes.

Then No. 15 is His Majesty, the King of Sweden. That is a
new application and general in its scope. It is difficult to
judge how much King Gustav could contribute, and, therefore,
the prosecution do not object to interrogatories.
THE PRESIDENT: Sir David, for 14, Dr. Kubuschok says that he
requested that the statement made by the witness to the
legal department of the Military Government Headquarters,
Dusseldorf, be furnished him. Are you objecting to that
being furnished him?SIR DAVID MAXWELL FYFE: No, I thought
that he had it.

DR. KUBUSCHOK: I got it this morning.

SIR DAVID MAXWELL FYFE: Dr. Kubuschok says that he received
it today; this morning.

THE PRESIDENT: Are you objecting to his offering it as
evidence?

SIR DAVID MAXWELL FYFE: No, I only say that we should prefer
it in the form of an affidavit or interrogatory, if that can
be done. I do not make any great objection.

DR. KUBUSCHOK: In regard to the witnesses I should like to
say the following: Witness No. 1, Baron Lersner - the
Tribunal granted only an interrogatory at first. The
prosecutor has today agreed to have the witness called
before this Tribunal. I also ask very urgently that this
witness be questioned before the Tribunal.[Page 204]The
witness was the President of the German Peace Delegation at
Versailles. He is a very well-known German diplomat, who
since 1932 has worked very closely with the defendant von
Papen. A man like Lersner had, of course, a particularly
fine understanding for every policy of aggression.
Therefore, it is very important that this co-worker of the
defendant von Papen be heard and be allowed to tell us his
impressions of the defendant's activities up to 1944. It is
particularly important that Lersner, at the instigation of
defendant von Papen, was able to go to Turkey.THE PRESIDENT:
Dr. Kubuschok, Sir David agreed, I think, with reference to
No. 1.

DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the
matter is settled.

The second witness, Tschirschky. Tschirschky was the private
secretary of the defendant from 1933 to 1935, the first
private secretary during the time that the defendant was
Vice-Chancellor. He is a man who was himself persecuted by
the Gestapo and had to go into exile in 1935, where he still
is. He is a man who can give exhaustive information on the
whole period from 1933 to 1935 - in regard to the external
activity of the defendant and his attitude between 1933 and
1935.I believe that, especially for the time from the
beginning of 1933, we shall not get a thorough picture if we
do not hear this intimate co-worker of the defendant
personally. The other witnesses mostly concern different
periods. Only in some cases do they overlap with the
activity of this witness.No. 5, Kroll ...THE PRESIDENT:
Supposing that the Tribunal thought it right to grant you
No. 2 as an oral witness, would it not be possible to
dispense with one of 3 or 4 and have interrogatories from
one of them and call the other one? They deal with somewhat
the same period.DR. KUBUSCHOK: We definitely need three for
the following reasons: Witness Kageneck was present when
Hitler entrusted Papen with the Austrian mission. This is a
very important point, since the prosecution alleges that he
was entrusted with this mission for those purposes of which
he was accused. The witness will testify that Papen accepted
the mission only after a clear guarantee concerning the
purpose of the mission.Furthermore, Count Kageneck was also
in Vienna after 1935 ; that is to say, from 1935 until the
Anschluss, and for this period we should not have any other
witness.Kageneck can also confirm a very important point,
that is, that he was entrusted with taking diplomatic
documents to Switzerland and safeguarding them there since
from these documents, the documentary proof for the activity
of the defendant in Vienna could be deduced.Therefore, in my
opinion, the witness Kageneck also cannot be dispensed with.

If we can dispense with any witness, it would be witness No.
4, Erbach, in regard to whom I might then ask for permission
to use an interrogatory, because here, too, questions are to
be asked which the other witnesses cannot answer.Witness No.
5, Minister Kroll - Papen is accused of a conspiracy for
aggressive war. The Indictment is not limited in respect to
time. For the largest part of the time in question, namely
1938 to 1944, Papen was in a position which would have been
particularly designed for an activity directed at
undermining the peace. Turkey was for a long time an
important pillar in military and, therefore, political
considerations. It is, therefore, of the greatest interest
whether Papen used his position for any activity in the
nature of such a conspiracy.Moreover, I should like to bring
proof of the opposite. The fact was, that his activity was
directed at preserving the peace and that he was, in
particular, against any extension of the war by means of
military measures against Russia, and was [Page 205]against
every political measure for the destruction of the relations
between Turkey and the Allied Powers.

The witness was, during the Turkish period, the closest co-
worker of the defendant. He is, therefore, in a position to
give us information about the entire period.Baroness de
Nothomb - I have asked in this case to be permitted to
present an affidavit or interrogatory. I want . . .THE
PRESIDENT: Which number are you dealing with?DR. KUBUSCHOK:
No. 11.

THE PRESIDENT: You are not dealing with 6 to 10?DR.
KUBUSCHOK: No, we are in agreement about 6 to 10.

THE PRESIDENT: Very well, 11.

DR. KUBUSCHOK: No. 11, Baroness de Nothomb - in this case I
asked for an interrogatory or for permission to submit an
affidavit. The subject of the evidence is:During the years
1940 to 1944 the defendant continuously supported the
witness in her intervention on behalf of persecuted members
of the French resistance movement. I want thereby to prove
that the defendant von Papen shows again, in this case, that
he was greatly interested in a peaceful shaping of German-
French relations, and that during the war he always had in
mind the post-war time, when the poison should be removed
from those relations. The  intervention on the part of the
defendant was also a result of general humanitarian
considerations. This is not without considerable importance
in connection with the charge of conspiratorial activity.No.
12, Archbishop Groeber - the Indictment asserts that the
defendant von Papen used his position as a prominent German
Catholic for a dirty business of deception, and that the
conclusion of the Concordat, as such, was effected in the
course of a policy directed against the Church; that the
conclusion of the Concordat was not intended seriously, as
one could see from the later violations of the Concordat.
Archbishop Groeber was at the time of negotiations
concerning the Concordat, at the Holy See. He was present
during all the negotiations. He knows that the initiative
for starting negotiations came from von Papen himself, who
did not get Hitler's approval until later. He knows that the
draft which had been made by von Papen for the Concordat was
strongly disapproved by Hitler and that Papen was able to
submit this draft only after a long struggle. The witness
knows the defendant von Papen very well. He also knows from
what inner feelings toward the Catholic question the
defendant approached the matter of the conclusion of the
Concordat. As an influential dignitary of the Church he can
also judge the consequences of the Concordat. He is in a
position to judge that the contents of the Concordat, at a
later time also, were still a protection for church
interests; and from his knowledge of the personal relations
of the defendant and all the conditions of the Church in
Germany, he can testify as to whether the defendant had
anything at all to do with the violations of the Concordat.

THE PRESIDENT: Dr. Kubuschok, does witness No. 2 deal with
the same subject? Where you say in your discussion of the
subject of the evidence, that witness No. 2 accompanied the
defendant to Rome to conclude the Concordat can he testify
that against Hitler's strong opposition he succeeded, at the
last minute, in concluding the Concordat? At that time was
the witness present at all the proceedings?

DR. KUBUSCHOK: The witness Tschirschky was introduced into
the negotiations concerning the Concordat by the defendant.
It is very important, in my opinion, to examine also a
witness who was present at the negotiations as representing
the other side. In particular, this witness, Archbishop
Groeber, could also

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express an opinion in regard to the later period, the
violations of the Concordat. He can judge the entire
situation from the point of the Church better than can the
private secretary Tschirschky. He can also give an
essentially more reliable picture of von Papen's
personality, which in this matter is very closely connected
with his political activity. I have been very modest in my
requests; but I should like to ask urgently, in this case,
that an interrogatory or an affidavit by Archbishop Groeber
be granted, for it is indeed clear, that the accusation that
a prominent German Catholic uses his position for evil
purposes of deception is a very serious one, and the
defendant also is very greatly interested in having this
question clarified, within the framework of the Indictment
and also beyond that.

Witness No. 13 - an affidavit of Herr von Beaulieu, who
shall testify that the defendant, in his position as
president of a very large and prominent German organization,
intervened until the very end for the "non-Aryan" members,
as this term was used at that time. Everything which is of
importance in judging the Papen case lies, for the most
part, in the sphere of the subjective. We will see very few
actual actions in the Papen case. The accusations are, for
the most part, based on the fact that he was present. It is,
therefore, relatively difficult to bring proof and therefore
the counter-evidence must, to a large extent, be subjective
in nature. To judge a person's character in its entirety, it
is not unimportant to know what, for instance, his attitude
was in 1938 toward the question of the treatment of Jews;
for, if Papen here definitely deviated from a general line
followed by Hitler and the Nazis, one will certainly be able
to draw a conclusion as to whether he was really the
faithful follower of Hitler as the Indictment tries to
picture him.

Witness No. 14. I received the statement today. I have not
yet had time to look through it. I shall submit either the
statement or an affidavit which I shall try to get.

No. 15 - a questioning of His Majesty King Gustav of Sweden,
to be conducted in every way possible. This is a very
important question. It touches a major point of the defence,
namely, in how far it was possible for a person not
entangled in the ideas of Nazism, to collaborate to a
certain extent. To what extent could he hope, by his
personal activity, to change things or at least to modify
them? If, on the basis of the evidence submitted, we prove
that von Papen not only exhausted his means to serve this
end within Germany, but also, beyond this, used his foreign
political connections for this purpose, then this should, I
believe, round off the picture of the character of the
defendant in an important way. This strong activity in the
interest of peace is such that, in my opinion, simply on the
basis of such activities, the absolute falsehood and
untenability of that charge of the Indictment becomes
apparent, that the defendant at any time could have approved
of the aims of an aggressive policy within the framework of
a conspiracy.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, with
regard to the Documents, Nos. 1 to 8, the prosecution asks
Dr. Kubuschok to submit the extracts, and then we can
consider the relevancy at that time. I think that Dr.
Kubuschok has No. 9.

DR. KUBUSCHOK: I have only the photostat in my possession,
which I received from the prosecution.

SIR DAVID MAXWELL FYFE: I am sorry. I should have said he
had a photostatic copy, but the prosecution have certified
the photostat. The original is not obtainable at present. If
it comes into our possession we will let Dr. Kubuschok see
it.

The third point is that Dr. Kubuschok says that he may have
to make a supplementary application after Herr von Papen Jr.
returns. That is, of course, a matter for him and the
Tribunal. The prosecution make no objection.

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