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 6 of 11)

[Page 202]

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?


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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