The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. BERGOLD (counsel for the defendant Bormann): May it
please the Tribunal, I shall continue on Page 19 in the
centre of the page.

It is true that a man in a position such as I described to
you this morning can have great influence if there is a man
at the top who can be easily influenced, but it is equally
correct to say that a man in such an office can play a
purely formal role as the head of a liaison agency if at the
top there is a dictatorial autocrat who cannot be
influenced, and if the chief of the office has no special
ambition nor any special abilities.

The proceedings which have been held for many months under
this roof have shown which of the two alternatives is more
likely. It is obvious that, seen from lower levels, the head
of the Chancellery would appear influential even in the case
of the second alternative, because everything goes through
his hands, and because any blame for subordinates passes
through his agency, and because all mistakes which arise in
the provinces, committed by other officials, are reported
there. These officials and subordinates, however high a rank
they may have held, and even though in part they may have
feared the chief of the Party Chancellery - perhaps indeed
only for reasons originating in their personality or their
errors - these are not the right people to enlighten us as
to which of the two alternatives described is the proper
one. As long as Bormann does not appear and is not heard
personally, the true part he played remains obscure. Nobody,
not even the High Tribunal, could ever pass just sentence.
The whole case remains dubious. It remains dubious even in
the individual points. I would like to demonstrate this by
just a few examples.

My esteemed colleague, Dr. Thoma, has stated that Bormann
prevented the defendant Rosenberg from following his policy.
To make his point he referred to the memorandum of Dr.
Markull, submitted as Exhibit R-36. But this document is
nothing other than a comment on an unknown and un-produced
Bormann document.

Markull declares, expressis verbis, that he put Bormann's
formulations into the language of a simple member of the
German Civil Service, and presented them more pointedly.

So, only Bormann could enlighten us in this case, and tell
us whether he wished his writing to be understood in this
way at all, or whether Markull twisted the meaning and sense
of Bormann's words, so that only Bormann could disclose
whether this writing, like almost all the Bormann documents
submitted, did not simply transmit the utterance of another
Reichsleiter or of Hitler. So this case, too, seems
altogether doubtful. An explanation can hardly be expected.
Furthermore, it must be pointed out that almost all the
documents which the prosecution has gathered together in its
document book are in general mere reproductions and
publications of a Hitler decree or a Hitler instruction.
Bormann transmitted these instructions to the subordinate
agencies with an accompanying letter, in order to inform the
agencies concerned. This is an activity which, as office
work, has to be done even under the most terrible tyranny
and the most reprehensible despotism; how much more so in a
modern State structure like the National Socialist Reich.
Someone has to forward all the instructions and orders to
the subordinate agencies; that is a purely formal activity.
It is immaterial whether it is done by a plain office
assistant or by a brilliant Reichsleiter.

                                                  [Page 203]

The official transmission of such instructions - I mention
for example Documents 169-PS, 1950-PS, 656-PS, 058-PS, 205-
PS and even the famous 057-PS, can only be considered a
transmission of directives and opinions of Hitler; from such
a method of transmission nobody can draw the conclusion that
the forwarding person had an influence on the decrees,
orders and decisions. It is possible, but it has not been
proved with certainty.

But before a sentence is passed, this question of influence
should be entirely clarified. Because even if one could see
any offence in the transmission of an order according to
Chancellery routine, whereby one would even have to condemn
the women who wrote such orders on the typewriter, the just
verdict would have to distinguish between the extent and
severity of the punishment for such clerical work and that
which should be inflicted on a man whose collaboration was a
decisive factor in causing such orders and decisions, and
who, by his influence and advice, led the Chief of the State
to issue them. All this is not clear in Bormann's case, and
continues to be uncertain. The statements of the co-
defendants, whose motives can never be entirely unveiled, to
the effect that Bormann exercised great, even diabolic
influence, are no proof.

The other documents of the prosecution only prove that
Bormann, in keeping with the decree of 29th May, 1941 (2099-
PS), and the decree of 24th January, 1942 (2100-PS),
arranged for an exchange of correspondence between the
individual Reichsleiter and forwarded their desires and
suggestions. As an example I mention Documents 056-PS, 061-
PS, 072-PS, 205-PS, and 656-PS. Nobody can determine with
certainty from these activities as a go-between, which were
necessary from the administrative standpoint, the extent and
true nature of Bormann's influence.

Further documents show that Bormann very often served as a
mere stenographer, and took the necessary notes during
Hitler's discussions with some of the defendants. This is
proved by Document L-221 concerning the annexation of the
"Eastern Territories" and the Russian Exhibit USSR 172. But
in any case such documents do not make clear whither and in
what way Bormann influenced the policies and the measures of
the Third Reich during such meetings. According to all
rules, a stenographer has no influence at all. He only
fulfils an automatic function.

I would not like to be misunderstood here. Far be it from me
to dispute the fact that Bormann occupied quite an important
position in the leadership of the Third Reich. But no clear
view has emerged during this trial as to Bormann's actual
importance or as to what extent this was exaggerated or
belittled by the bad conscience of third parties, and
finally what influence he really had. Statements of the
other defendants, made for their own defence, do not
constitute relevant evidence. At any rate the document book
of the prosecution contains almost exclusively documents
like those I have just examined more closely. Bormann
scrupulously only did what was legal in Germany; this was
revealed in the documents I submitted, e.g. Bormann Exhibits
2, 3, 5, 7, in which he repeatedly pointed out to Party
offices that any illegal action against Jews was not
permitted.

It is characteristic of Bormann's case that not even
measures against Jews could be proved against him. He never
did more than forward such instructions, divulge or publish
them, as this was prescribed by law and as it followed from
his position as Party Secretary. Even the big conference of
12th November, 1938, which was held under the chairmanship
of Goering and from which emanated a series of laws against
the Jews, can only be brought into relationship to Bormann
in so far as Bormann forwarded to Goering Hitler's
instruction that such a conference be held. In any case it
has not been made clear at all what influence Bormann
himself had on these questions. But how can a just and fair
Tribunal determine the extent of appropriate punishment for
the part played, if the participation of the individual
defendant in the offence is not clearly established? Nobody
can say then that there is no doubt about the circumstances
of the case.

It seems to be most certainly proved by the document book of
the prosecution that Bormann was one of the most zealous in
the fight against the Christian

                                                  [Page 204]

Churches. Most of the documents quoted in, the Trial Brief
referred to this point. It is certainly correct to say that
Bormann, due to his philosophy and his innermost
conceptions, was a violent opponent of the Christian
doctrine. But such attitude of mind in itself is neither an
offence nor a crime before the whole of mankind, which
embraces so many different conceptions of the world and the
higher spheres and will perhaps give birth to many more.

In modern times there are countless convinced atheists. In
other countries of the world, too, there are officially
recognized organizations which oppose the Christian
doctrine, and at the turn of our century there were big
associations in many countries which raised pure materialism
to a philosophical system and openly proclaimed the negation
of spiritual facts and truths. No one can be punished for
wishing to teach others the precepts of his ideology or for
wanting to convert them to his point of view.

The modern world still recalls the horrors of the
Inquisition. Therefore, Bormann could only be punished if it
were proved that he participated in a real religious
persecution and not merely in an ideological struggle.

In my opinion the two most important pieces of documentary
evidence which the prosecution has produced against Bormann,
namely Documents D-75 and 089-PS, do not show that the
defendant Martin Bormann in his authoritative position
undertook anything against the Churches as religious
institutions. The quintessence of Document D-75 is contained
in the sentence which says that from the incompatibility
between National Socialist and Christian ideology it must be
deduced that any strengthening of existing Christian
denominations and any promotion of new ones is to be avoided
by the Party. It is of no importance for what pressing
reasons Bormann came to such a conclusion at the end of his
letter. It goes without saying that failure to support a
religious concept which one opposes on philosophical grounds
does not constitute religious persecution. Nobody is obliged
to support a religious view. It is not permissible to direct
one's attention only to excited arguments brought against
the strengthening of a religion and to disregard the results
of such considerations.

Furthermore it is important in this connection to note that
we received only one copy of this document, a copy which a
Protestant minister by the name of Eichholz made out for
himself. Whether the reproduction of the contents of
Bormann's statement in this document is fully correct has
not at all been proved. In any case the document in this
form does not constitute authentic evidence.

In Document 089-PS, which may be recognized as being
authentic, Bormann takes a very definite stand against the
Church. It finishes, however - and this is the only fact
which should be considered for the verdict - by saying that
no National Socialist teacher should be reproached for
teaching the Christian religion and even that in such a case
the original text of the Bible should be used; any new
interpretation of, comment on or taking apart of the text of
the Bible is to be avoided. Therefore Bormann, despite his
previous philosophical attack upon the Church, takes here
the legal standpoint that the Christian dogma may be freely
propagated. Could a more loyal action ever be expected of
such a strong opponent of a doctrine?

The remaining documentary evidence does not reveal any real
persecution either. The fact that Bormann, on Hitler's
orders, prohibited the admission of priests or of members of
certain religious associations to the Party, and that on
Hitler's order he forbade priests to be appointed to leading
positions in the Party in order to prevent dissensions, is
not religious persecution. The fact that during the war he
demanded that the Church make the same sacrifices as other
State institutions does not represent a criminal act
undertaken for religious reasons. That, while closing many
lay institutions in order to make use of the human reserves
of the nation, he strove for the closing of religious
institutions too; that, considering the limitation on the
number of copies and number of pages of lay publications he
wished Church publications to be limited also, does not come
under the provisions

                                                  [Page 205]

of Article 6c of the Charter. It is true that in this
respect he also let himself be guided, among other things,
by his anti-clerical attitude. But when, apart from this,
the same measures were taken in Germany against other
institutions and other publications, measures which as war
measures were supposed to be only temporary, one cannot
speak of actual religious persecution. That Bormann might
have been co-responsible for the persecution of priests has
not even been submitted or proved at all. All documents
indicate that Bormann always adhered to the effective legal
stipulations so that he, who was so eagerly intent on
complying with Hitler's orders, most certainly observed
Hitler's decree which at the beginning of the war directed
that all measures against the Church be discontinued.

Therefore it may be said in conclusion that this matter,
too, cannot be really cleared up despite the numerous
documents presented. Documents alone do not suffice to
dissipate all doubts on the case. Especially with respect to
the importance and weight of Bormann's share in measures
aimed at persecution of the Church it seems necessary to
determine Bormann's personal responsibility. This fact
therefore also remains somewhat obscure. A basis for a just
determination of the amount of punishment to be inflicted
cannot be established.

I shall not take up the time of the High Tribunal by
bringing up further details. I think that the indications I
have given are sufficient to show that the documents
presented by the prosecution prove, in any case, only one
thing with certainty, namely that Bormann, in his capacity
as chief of the Party Chancellery, held an intermediary
position in official and secretarial communication between
the head of the Reich and the subordinate agencies and among
those subordinate agencies themselves. Anything else is only
an assumption which has not been definitely proved, in any
case not with that certainty which must seem essential for
the sake of justice in order to pass a verdict in absentia
and without hearing the defendant, and to determine the
severity of the punishment. Unfortunately, a legend has
already been woven around Bormann's personality, his
activity and his survival. But for the sober judgement of
jurists, legends are not a valid basis for a sure verdict
free from any doubt.

In view of the innovation created by the Charter in the
history of law of all times and all nations in passing a
final, irreversible sentence upon an absent defendant, I beg
the High Tribunal to make use of its right to carry through
such a procedure only after having considered the hitherto
existing legal concepts and, especially when examining the
case, to consider the prerequisites set down in a
particularly precise manner by the Russian law. I,
therefore, expressly propose that the Tribunal decide to
suspend the proceedings against the defendant Bormann until
he is personally heard and can personally state his case,
and that the Tribunal make no use of its right according to
Article 12.

THE PRESIDENT: I call on Dr. Kubuschok on behalf of the
defendant von Papen.

DR. KUBUSCHOK: Before beginning my final plea, I should like
to submit to the Tribunal a few completed interrogatories
which have since been received and some of which have also
been translated. Since I am referring to them in my final
plea I would like to submit them now.

THE PRESIDENT: Yes, Dr. Kubuschok.

DR. KUBUSCHOK: First of all I submit the completed
interrogatory which has been received from the witness
Tschirschky, as Exhibit 103. I submit a copy immediately, in
English and in French.

On this occasion may I draw the attention of the Tribunal to
the fact that Tschirschky was the secretary of the defendant
von Papen, and at the time when he was in Vienna was called
to Berlin by the Gestapo, and then emigrated to Great
Britain, where he has presumably obtained British
citizenship. The correspondence with reference to this
Tschirschky case was the subject of the cross-

                                                  [Page 206]

examination. With reference to the very numerous questions
dealing with Papen's vice-chancellor ship and his activities
in Vienna, the witness has expressed himself in great detail
and in all cases answered in the affirmative.

Presumably the Tribunal does not want me to discuss these
questions in detail now. The copies submitted to the
Tribunal will be sufficient. But perhaps I could quote the
last paragraph from question 1:

  "Regarding his relation to the NSDAP, I can say that
  during the time when I was working with von Papen, his
  attitude was a negative and, in fact, a hostile one in
  every respect."

It appears important to me to refer to the answer to
question 3, which deals with the security measures
introduced during the formation of the Government on 30th
January -

THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you
to comment twice on the interrogatory. If you want to
comment upon it to the Tribunal in your speech, well and
good. You comment now, as you put it in, and then presumably
you make some observation later on in your speech.

DR. KUBUSCHOK: Mr. President; during the plea I will refer
very briefly to the special questions in this document. On
the whole I do not refer to them in my plea. In my plea I
merely give a resume of the answers but do not deal with the
questions themselves again.

THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the
appropriate course for you to take is to put in these
interrogatories now, and when you deal with them in your
speech, you can refer to any particular passage that you
want.

DR. KUBUSCHOK: Yes. In its present written form the
reference is very brief and does not even consist of a
sentence. Besides -

THE PRESIDENT: When you get to it -

DR. KUBUSCHOK: Shall I read it then?

THE PRESIDENT: Yes.

DR. KUBUSCHOK: Very well. I have submitted the completed
interrogatory as Exhibit 103 and then the completed
interrogatory of Archbishop Groeber as Exhibit 104. Groeber
has to do with the Concordat. I am also submitting the
interrogatory of Archbishop Roncalli as Exhibit 105 and
finally the interrogatory of the Polish Ambassador Jan
Gavronski as Exhibit 106. These are documents which I
received already translated. In addition I would like to ask
the Tribunal to allow me another document, which in spite of
my efforts I have not yet been able to have translated. It
is an affidavit from a foreign journalist, Rademacher von
Unna. He had transmitted in a letter to my colleague, Dr.
Dix, on 29th May, which arrived here about three weeks ago,
an affidavit for von Papen. Of chief interest in this
affidavit is one paragraph. I should be most grateful to the
Tribunal if I could read the paragraph so that the Tribunal
would be in a position to see if it is relevant, and if so,
to permit me to submit the document. Then I would submit the
original and the translation could be supplied as soon as
completed.

THE PRESIDENT: You have not shown it to the prosecution yet,
have you?

DR . KUBUSCHOK: I had submitted the German text at the time
but now it has been in the translating department for two
weeks and I have not been able to get it yet. I mentioned
the document during the last session where we discussed
evidence, and the Tribunal informed me that I should submit
it on another occasion, when the matter would come up for
discussion.

THE PRESIDENT: Is it long?

                                                  [Page 207]

DR . KUBUSCHOK: It is not long. The document is a page and a
half, and I will read a paragraph which is less than half a
page. Only that paragraph is of real importance to me.

THE PRESIDENT: Does the prosecution object to this?


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