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 5 of 11)

[Page 197]

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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