The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/10/12

THE PRESIDENT: I call on Dr. Bergold for the defendant Bormann.

DR. BERGOLD: Your Lordship, your Honours: The case of the
defendant Martin Bormann, whose defence the Tribunal has
commissioned me to undertake, is an unusual one. When the
sun of the National Socialist Reich was still in its zenith,
the defendant lived in the shade. Also during this Trial he
has been a shadowy figure, and in all probability, he has
gone down to the shades - that abode of departed spirits,
according to the belief of the ancients. He alone of the
defendants is not present, and Article 12 of the Charter
applies only to him. It seems as though history wanted to
preserve the continuity of the genius loci and to have
chosen the town of Nuremberg to be the scene of a discussion
as to whether and to what extent the fact that there is
every reason to believe that a defendant is no longer alive
can be an obstacle in the way of a trial in contumacia - in
absentia - of such a man. In Nuremberg we have an adage
which has come down to us from the Middle Ages, and which
says: "The Nurembergers would never hang a man they did not
hold."

Thus, even in former times they had an excellent way in
Nuremberg of dealing with the question as to how proceedings
can be taken against a person in his absence.

                                                  [Page 198]

THE PRESIDENT: It appears to the Tribunal that you are now
about to argue first of all that the Tribunal has no right
to try the defendant Bormann in his absence, and secondly
that if it has the right it is not advisable. Both these
points were considered on 17th November, 1945, and were
decided on 22nd November, 1945, after you had been
appointed; and both were decided in favour of trying Bormann
in his absence. That is to say that the Tribunal has the
power under Article 12 of the Charter and that it was in the
interests of justice in the circumstances to conduct a
hearing in his absence.

DR. BERGOLD: Yes, that is true. I know of this decision. I
should only like to ask whether in the course of the
proceedings points of view were put forward which might have
caused the Tribunal to change this decision, for I assume
that decisions of the Tribunal can be reconsidered by the
Tribunal itself. I say this in order to show that the trial
here has brought out some points of view which call for a
reopening of the question.

THE PRESIDENT: Dr. Bergold, surely this is an inappropriate
moment at which to advance this argument when we have
already conducted the trial of Bormann. We have given you
over a long period the opportunity to make application for a
reconsideration of this decision.

Are you not hearing what I say?

DR. BERGOLD: I did not quite understand the last sentence.

THE PRESIDENT: I said that to make such an application now
is far too late. You have had all these months since
November in, which you could have made such application for
a reconsideration of the decision of the Tribunal. But
instead of making it, you proceeded with the defence of the
defendant Bormann ....

Possibly you have your disc wrongly set. Would you look at
the disc and see whether it is all right?

DR. BERGOLD: The translation is coming through so badly and
indistinctly that I cannot fully understand your meaning.
The translation is bad. It's only the German translation of
what you are saying that is not sufficiently clear.

THE PRESIDENT: I shall speak very slowly. What I said was
that if you wished the Tribunal to reconsider the decision
of 22nd November, 1945, you should have made application
earlier. Instead of that, you went on to appear as the
representative of Bormann, and the Tribunal decided to hear
the case against him. Therefore, they are not prepared to
listen to this argument for the reconsideration of their
decision now.

If you think it in the interests of your client, the
Tribunal has no objection to this document being filed, or
to the filing of these pages of your speech. But the
Tribunal does not propose to reconsider its decision.

DR. BERGOLD: Mr. President, one piece of evidence did not
come up until the end of my case - the testimony of the
witness Kempka. In my opinion, this statement by the witness
Kempka made the probability of Bormann being dead so evident
that only from this point of view can the question of a
reconsideration be brought up I assumed -

THE PRESIDENT: All I was saying was that from Page 1 to Page
10 the Tribunal will not hear that read. The question of
whether Bormann is dead or not is a question with which you
deal later in your argument, and the Tribunal will hear you
upon that. But from Page 1 to Page 10, the argument does not
deal with the death of the defendant.

If you will begin at Page 10, with the words, "I cannot" -
it is the last paragraph on that page - the Tribunal will
hear you.

                                                  [Page 199]

DR. BERGOLD: Then I must submit to the decision of the
Tribunal.

Gentlemen of the Tribunal

I cannot and I will not criticise the Charter. In bringing
forward my argument, which the Tribunal will not hear, I
merely wanted to establish the fact that the Charter has
created a novel procedure, in that, in a trial in absentia,
a final decision has been given, without it being possible
to reconsider the case, should the defendant be found. But
in my humble opinion, this quite novel procedure in the
legal history of all times and of all countries enables the
Tribunal, at the present stage of the trial and in view of
the proofs brought by the witness Kempka, to make further
use of the right given to it by Article 12.

As a reconsideration of the decision is no longer possible,
the proceedings, in my opinion, should only be carried out
if, by a suitable application of the fine and clear
principles of Russian law, it is first proved that the
defendant Martin Bormann is wilfully evading the Court, and
secondly that there is no doubt whatsoever about the
circumstances. As the Charter does not stipulate more
clearly when and under what conditions the Tribunal may
enforce its right, the Tribunal itself must create the law.

Owing to the incontestable nature of the sentence, the
Tribunal's responsibility in this particular case is a heavy
one. My opinion that the sentence is final is also shared by
the Tribunal, as in the last phrase of the public charge
against the defendant Bormann it is stated explicitly that,
should the defendant be found guilty, the sentence will be
carried out without any further procedure as soon as he is
found.

But in my opinion it has not been proved at all that the
defendant is wilfully keeping away from justice. I think
that, as revealed by the examination of the witness Kempka,
it is even highly probable that the defendant Bormann is
already dead. Witness Kempka has stated that on the night of
1st/2nd May, 1945, he, together with State Secretary
Naumann, who led the way, followed by the defendant Bormann
and then by Standartenfuehrer Dr. Stumpfecker, had tried to
flee through the Russian lines by keeping close to the left-
hand side of an advancing tank. Bormann was walking close to
the middle of the tank, so that the witness thought that
Bormann was holding on to it. It seemed to the witness that
it was necessary to do this in order to keep pace with it.
Having advanced some thirty - forty metres, and after having
passed the German anti-tank obstacles, this tank was blown
up, presumably by a direct hit from an anti-tank grenade.

The witness observed, without there being any possible
doubt, that in the immediate vicinity of the tank, just
where Bormann had been walking, a spurt of flame came from
the exploding tank, knocking down Bormann and State
Secretary Naumann who was walking immediately ahead of him.
Thus Bormann found himself in the centre of the explosion,
which was so violent that the witness is convinced that
there can be no doubt that Bormann died from its effects. It
cannot be maintained that owing to the fact that the witness
escaped the violence of the explosion, Bormann also must
have come out alive. It should be noted that Kempka was
running behind the tank on the left-hand side and thus was
at a distance of some four metres from the explosion.
Furthermore, he had additional protection due to the fact
that Dr. Stumpfecker was running in front of him and his
body was hurled against him by the explosion and served as
cover. Kempka has testified that Bormann was wearing the
uniform and the rank insignia of an SS Obergruppenfuehrer at
that time.

Even if Bormann had not been killed on this occasion he
would certainly have been so seriously wounded that it would
have been impossible for him to escape. Unquestionably he
would have fallen into the hands of the USSR troops, who,
according to the affidavit of the witness Kruger, were quite
close to the Reich Chancellery and had already occupied it
on 2nd May, 1945, the defenders having fled. In view of the
loyal manner in which the USSR is taking part in these
trials, it would have delivered Bormann to the Tribunal for
trial.

                                                  [Page 200]

There were only two possibilities-at least in my opinion -
the first of which was that the wounded Bormann fell into
the hands of the USSR. This, however, has proved not to be
true; and so there remains only the second possibility,
namely, that Bormann lost his life. I am therefore of the
opinion that I have shown that there is sufficient proof to
justify the belief that Bormann is dead.

In my opinion, one should not be allowed to say that a man
is presumed to be alive until the fact of his death is
established: that is a supposition which I, as defence
counsel, would have to refute. The legal assumption of a
person being alive has been valid in all countries of the
world, but only in the field of civil law, and only for the
purpose of regulating matters relating to inheritance or the
property of married persons. However, a legal assumption of
a person being alive has only very seldom been established,
for instance, in common law and in the Prussian law, and
even there it is contested.

The Civil Code makes no provision for the assumption that a
person is still alive, it merely admits the declaration that
a missing person is dead in the eyes of the law. Common law
neither provides for a declaration of the death of a person
nor for the legal assumption of a person being alive.
Russian law permits, after a short period of time, the
declaration that a missing person is dead in the eyes of the
law, and this may be followed by the declaration of the
person's death. But none of these rulings justifies the
assumption that a person may be alive.

Whatever may be the case in civil law, it is nevertheless a
fact that there is no provision in the criminal law of any
country for the assumption that a person is alive. If
criminal law does not recognize the assumption of a person
being alive, then it is not my duty either to refute the
assumption of a person being alive. It must then suffice
that the defence should prove, as I have already done, such
circumstances as could lead one to conclude, after
reasonably evaluating the chances in the usual course of
life, that a defendant is dead.

I am, therefore, most definitely of the opinion that the
death of the defendant Bormann has been proved with
sufficient probability; in fact the probability is so great
that the proceedings should be suspended for all time, since
the Charter does not recognize proceedings against a dead
person. If there were such a thing as the trial of a
wrongdoer after his death, the prosecution, according to all
logic and reason, would have had to indict the real heads of
National Socialism.

But apart from all this, it is not at all proved, in my
opinion, that the defendant Bormann is intentionally evading
the trial, as long as the possibility exists that the
defendant is dead. It is true that the Charter does not
recognize such an assumption in the proceedings against a
defendant who cannot be found. The Charter is very reserved
on this particular point, and I have already stated that I
am convinced that following the hearing of the witness
Kempka the Tribunal should examine very carefully whether it
should exercise its right in this special case of the
defendant Bormann. Considering the finality of the verdict
it seems to me fair and just in the case of Bormann to
consider the general legal principle of all civilised
countries, by which a defendant must be guaranteed a hearing
even if only after his arrest. Thus by suspending the
proceedings now one would avoid creating accomplished facts
so long as it is still possible that Bormann's absence can
be excused.

May I point out in this respect that in the second part of
Article 12 of the Charter, the Tribunal refers expressly to
the interests of justice and that it should consider, in
examining the question, whether it intends to take
proceedings in absentia for any other reason than that the
defendant cannot be found. The interests of justice are not
unilateral and are not directed against the defendant only.
True justice is always universal. All legal systems of the
world demand that, as far as is possible, the interests of
the defendant shall be protected as well.

Owing to the state of health of the defendant Krupp the
Tribunal exercised its right not to try a person in
absentia. Even if this last-mentioned

                                                  [Page 201]

case cannot be compared with that of the defendant Bormann,
this decision should be given consideration in the present
instance, too.

Having in view the peculiar character of the case and the
testimony of the witness Kempka, it can by no means be
considered as proved that the defendant Bormann is
deliberately evading the Tribunal, for in whatever way the
matter is viewed, one cannot dismiss the possibility that -
even if he had been rescued and had not fallen into the
hands of the Allies - he may have been so permanently
injured as to be neither physically nor mentally able to
surrender to the Tribunal. In my considered opinion it is
precisely for this reason that the Tribunal in the interests
of true justice should suspend proceedings against the
defendant Bormann.

Such a decision, however, is also justified according to the
second principle, which was formulated by the Russian law,
namely, that proceedings shall, as a rule, be taken only if
the circumstances of the case no longer leave any room for
doubt.

The defendant Bormann is absent. He has not been able to
defend himself against the charges for which he is indicted.
He has not been able to give me any information, neither
could I find any witnesses who know the circumstances
sufficiently well, and who would have been able to disclose
to me any exonerating evidence concerning the accusations
made.

During the course of these long proceedings, the man Bormann
and his activity have remained shrouded in that obscurity in
which the defendant, by his predisposition, held himself
during his lifetime. The charges which many co-defendants
have made against him, perhaps for very special reasons, and
obviously in order to assist their own defence and exonerate
themselves, cannot for reasons of fairness be taken as the
basis for a judicial decision. The prosecution has stated on
more than one occasion, through its representatives, that
the defendants would seek to throw the chief blame upon dead
or absent men for the acts which are now being judged by the
Tribunal. In their defence speeches some of my colleagues
have followed these tactics of the defendants. Perhaps it
was right to do this. I cannot judge. Besides, I have no
authority to form a judgement.

But nobody knows what the defendant Bormann could have said
in answer to these men if he had been present. Perhaps he
would have been able to show that his activities were not
the cause of the happenings arraigned in the Indictment;
also that he did not possess the influence which is imputed
to him as the Secretary of the Fuehrer and of the Party.

It has always been universally supposed that secretaries and
chiefs of central chancelleries, in the same way as valets
to princes in the times of absolutism, have exercised
considerable influence upon their superiors and lords, for
in the nature of things everything which can only be handled
officially must pass through the hands of this secretary.
But what in a modern State can evade the Moloch of
bureaucracy?

The document book and the Trial Brief presented by the
prosecution contain no conclusive evidence that in the
incriminating events and measures Bormann personally had any
real and outstanding influence on the actions and dealings
of the Third Reich, of the NSDAP, or of Hitler himself, or
of how strong that influence had become.

In the comments on the Bormann decree, reproduced in Volume
II of the official collection of "Instructions, Directives
and Announcements of the Party Chancellery," Page 228,
submitted as Bormann Exhibit 11 in my document book, it is
stated that the Party Chancellery was an agency of Hitler,
which he used for directing the Party. Stress is laid on the
fact that on 12th May, 1941, Hitler again assumed full and
complete responsibility for the leadership of the Party. The
head of the Party Chancellery, at that time Bormann, had
been charged to keep Hitler continually informed about the
work of the Party and to bring to his knowledge any
circumstances about which he should know when making
decisions in Party affairs. This had to be done according to
Hitler's basic directives, and

                                                  [Page 202]

the Chief of the Party reserved for himself the right to
determine these, especially as far as political affairs were
concerned.

Thus it followed that the Party Chancellery was the Central
Chancellery for matters concerning the home policy of the
Reich leadership, and through this channel all suggestions
and information from below were passed upwards to Hitler and
all directives from Hitler were passed down through it to
the lower levels.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken until 1400 hours.)


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