THE PRESIDENT: Will you give me the dates of the letters?
DR. LATERNSER: Yes, The letter is dated 8th of July, 1916, and it was addressed to me. That, Mr. President, is all I have to say to the objections raised by the Prosecution.
THE PRESIDENT: Thank you. Mr. Dodd, That concludes the arguments that we need hear this morning, does it not?
MR DODD: Yes.
THE PRESIDENT: Well, the Tribunal will consider your suggestions.
I call on Dr. Steinbauer for the defendant Seyss-Inquart.
DR. STEINBAUER: Gentlemen of the High Tribunal, on Friday I had got as far as Page 71, and with the permission of the Tribunal, I should like to continue on that page of my script. assume only a limited responsibility for the German Police, that is to say, in so far as he exerted it for the carrying out of his orders in civilian matters. When the Reich Commissioner called upon their help, the police customarily first got in touch with Himmler about the matter in most cases. But in all matters which fell within the competence of the police, the Reich Commissioner could neither issue orders to them nor intervene "de jure" in their activity, This must absolutely be kept in mind when judging the Jewish question, the concentration camps, and the deportations. recognized in the Dutch governmental report. The arrests and management of concentration and prisoner camps was the affair of the police. As explained in detail by the defendant when examined as witness, he went, as Wimmer and Schwebel also confirmed, to great trouble to put an end to abuses in the camps which became known to him. We shall hear only briefly refer to the treatment of the so-called Dutch-Indian reprisal hostages with whom the defendant concerned himself considerably and finally the fact that he succeeded in having the members of the clergy who had been imprisoned in the Reich enabled to return to the Netherlands. tremendous power I shall go over to one of the main points of the Indictment, the Jewish question.
ner Seyss-Inquart alone is fully *---* for the execution of the Nazi program for the persecution of the Jews in Holland. That in his Amsterdam speech before the members of the NSDAP, on 13 March 1941, he himself had declared :"For us the Jews are not Dutchmen; for National Socialism and for the National Socialist Reich the Jews are the enemy." In that speech SeyssInquart also explains why, as defender of the interests of the Reich, he believed he had to adopt that attitude against the Jews. He saw in them these whose influence on the German people world paralyze its will to resist and who would appear everywhere as the enemies of the German people. But from that very speech it can be established that Seyss-Inquart considered all measures against the Jews as safety measures only for the duration of the war. He speaks of his desire to create endurable measures during the period of transition and that after terminations the occupation it would be up to the Dutch people to decide what the fate of the Jews was to be. It was quite natural and obvious that during the most was, as a result of the treatment they experienced in Germany and later in the occupied territories, the Jews, without distinction as to nationality, belonged among the most bitter enemies of National Socialist Germany. That had to be taken into account by every official who had to look after the interestsof the Reich in occupied territories This also makes the speech referred to in the beginning understandable. There fore when Seyss-Inquart was commissioned by decree of the Fuehrer to preserve the interests of the Reich in Holland, he also had to adopt some kind of an attitude toward the Jewish question. It was his intention to remove the Jews from leading positions in the government and industry for the duration of the occupation, but otherwise to refrain from any further measures against them. Actually, he also instituted only such measures whereby the Jews were sent on leave or were retired. powers and for the entire sphere of German interests, had been transferred by Adolf Hitler to Himmler, that is, Heydrich, exclusively. Now, the Security Police not satisfied with the dilatory handling of the Jewish problem by the Reich Commissioner, invoked their plenary powers and established an office in Amsterdam whose interference was the cause of constant frictions with the deputy of the Reich Commissioner in Amsterdam.
The Security Police claimed they were unable to guarantee the safety of the Reich, the task entrusted to them, unless further measures were taken restricting the Jews in matters pertaining the economics and to their persnal liberties English and French people had been gathered in individual camps and had been driven over the obrder into the Reich, after their property had been confiscated as enemy property a treatment which Germans living abroad had likewise experienced in enemy countries, In particular, the Police pointed to the fact that very many Jews were actually involved, and often took leading parts, in all the more serious attempts at sabotage and other forms of resistance. Likewise, the Dutch Jews, whose ancestors had in part come from proud Spain, the greatest portion having come from Germany and the East as emigrants, had already been active in leading positions before the occupation in opposition to National Socialism in industry, but more especially in the press. When the enemy entered the country, they knew it would be a life-and-death battle and contrary to Shylock's words in the Merchant of Venice :"For enduring is the heritage of my tribe" they not only placed their property at the disposal of the resistance movement but also their lives. The Reich Commissioner also could not fail to pay heed to this fact. Because of the great number of persons involved a treatment of the Jews roughly similar to that of the English or the French or other enemy aliens by confinement in a camp was simply not possible. Measures affecting personal liberty of action were taken by the Higher SS and Police Leader as Himmler's direct subordinate, or by the Securit Police on direct order by Heydrich. At this point also belongs the introduction of the Jewish star, which the Dutch, by the way, did not consider a mark of defamation. At the same time that measures affecting the personal freedom of action were taken, the property of Jewish organizations and Jews was also taken under management. The Reich Commissioner appointed Dr. Boemker as his special deputy, with the task of supervising the measures taken by the Police As a matter of fact, he intervened a number of times and was able to prevent bad police measures.
The activity of the Reich Commissioner's office was largely concerned with economic measures, and the description by the Dutch Government Commissioner for repatriation, USA 195, gives a clear illustration of the entire Jewish problem in Holland.
The tables shows that the Reich Commissioner was able to delay measures against the Jews for almost a year and that really intensive measures did not begin until February 1941 with the formation of the Central office for Jewish Emigration which was ordered by Heydrich and under the supervision of SS Obersturmfuhrer (SS first lieutenant) de Funte. A comparison with measures taken against the Jews in Germany itself and in other occupied territories shows a pronounced uniformity, which likewise indicated that the measures in question were not taken by the Reich Commissioner but were measures taken uniformly by national offices, in other words, by the Police. The Reich Commissioner also saw to it that sequestration of Jewish property moved in orderly channels. When it finally came to the liquidation of property via orders from the Berlin Central Offices, liquidation proceeds were not confiscated but credited to the Jewish property custodian so that, finally, the Jewish administrative office had accumulated some 500 million guilders. Police through Heydrich the Reich Commissioner together with Higher SS and Police Leader tried to stabilize the Dutch Jewish question by assembling in 2 camps, the Jews affected by the restriction ordinances where they were to live under their own administration. One of the camps was Westerberg where they had a Jewish camp police of their own; with regard to the outside the car was under the supervision of the Dutch Police. When, in the Spring of 1945, it was occupied by the Canadians, the English Radio reported that they found Jews housed there in good condition, contrary to other camps which were found outside of Holland. The second confinement camp was to be Vugth. Himmler made a concentration camp out of it. The Jewish community of Amsterdam was under the direction of Ascher, a merchant dealing in precious stones. Funds were made available to the Jewish community especially for school purposes; negotiations were carried out with firms to provide work in the Jewish quarters. the Dutch Jews into assembly camps situated in Germany. Both invoked the plenary powers given them by the Fuehrer and pointed to the fact that sooner or later an invasion had to be expected. Holland seemed a suitable territory because the ports of Rotterdam and Amsterdam provided suitable bases for reinforcements and that from here was the shortest route that the British could take into the Ruhr region, the industrial centre of Germany.
To permit so man people extremely hostile to Germany, to remain in a territory which would see future operations in the battle against Britain was inconsistent with the safety of the Reich. The Police persisted in its stand and the Reich Commissioner was able to intervene only by taking steps to make the evacuation by the police more humane. The Reich Commissioner was able to bring about that thousands of Jews were exempted from evacuation and were so able to remain in Holland. The defendant had the internment camps inspected by his agencies and in particular corrected bad conditions through the intervention of the Christian church, insofar as this was within his power. The order for evacuation was not given by the defendant but by Himmler or Heydrich. The defendant did not even give his consent to the evacuation. As a result of steps taken by the defendant, a part of the, Jews was taken to Theresienstadt considered a place of encampment, ostensibly under the supervision of international agencies, such as the Red Cross and where the Jews were said to be well treated. As a result of exemption regulations brought about by the Reich Commissioner, a great many Jews could be exempted from evacuation. The abovementioned Dr. Boemker was charged with supervision of the transport of Jews in Holland and it became possible to correct abuses repeatedly through Higher SS and Police Leader. The greater part of the Jews was taken to Poland and it is probably one of the most terrible sentences, found in USA 195 one of the documents submitted by the prosecution, which reads : Total number of these deported 117,000. After they had left Holland every trace of them was lost; they merged into a mass of deportees coming from all occupied countries and no longer could be identified as an individual group." climax in the trial against this defendant. Did the defendant know of the destiny of these many unfortunate and innocent people; did he intentionally approve of it or does he become guilty because he did not prevent it ? The defendant has again and again, even when questioned as witness under oath, solemnly declared that he did not know anything about this, and that he was of the opinion that the Jews would actually be resettled in the East for the duration of the war.
When the defendant once had the opportunity in the year of 1942 or 1943, on the occasion of a report to talk to Adolf Hitler himself, he turned the discussion to the Jewish question. When the Reich Commissioner pointed, out that the evacuation of the Jews was causing serious unrests in the Netherlands, Adolf Hitler replied that he had to segregate the Jews as destructive element from the body of the German people, and that he wanted to resettle them in the East, when Himmler, the Chief of the SS and of the German Police, was questioned by the defendant in the beginning of 1944, he replied to the apprehensions of the Reich Commissioner with the words, that he should not be worried about his Jews, his Dutch Jews were his best workers. turned with the reports that the Jews were ding well and that they were satis fied. News from the deportees also, arrived in the Netherlands at regular intervals, although they decreased later on. Today, when the heavy curtain which was spread over the horror of these mass murders has been lifted we know the connections and the truth. Especially by the conscientious researches in these trials, it has been established that Hitler and Himmler have undertaken in a practically fiendish way to obscure and to cover the knowledge of their cirminal intentions concerning the final solution of the Jewish question. When I read the butch report about the Jewish question for the firs time, I myself was deeply moved. It is this document and the so-called Hossbach last will of Hitler from the year of 1937 which I have especially submitted to my client. Dr. Seyss-Inqaurt told me about the Hossbach document in which the evacuation of 1 million Austrians was demanded :"That he has never such an intention, I would never have participated." stated in a convincing way not to have known anything about the final solution and the happenings in the extermination camps. when I then expressed my opinion, why he did not quit, after he could not prevail with his views upon Himmler and his accomplices, especially concerning the Jewish question, he told me that, after all, he was a soldier and know that a soldier must not desert in war time. He had come to the conviction that he, besides the other tasks charged to him, also remained on his post for the reason that something better would hardly have followed for the Netherlands !
In my duty as defense counsel and jurist, I can add the following : One could not count on the extent of extermination which the prosecution have mentioned If it has taken place in the stated extent, these are actions of a special group of Himmler's hangmen which correspond to a desperate situation only. But in penal law, the principle applies that the causal chain is interrupted if an independant criminal act is interposed in the latter. This is the case here. Before I conclude the most difficult chapter of the entire accusation I should still like to examine the question, if the defense of the defendant that he actually could not have had any knowledge about the terrible crimes which happened in the extermination camps is, in fact credible.
THE PRESIDENT: Is this a good place to break off ?
(A recess was taken).
THE PRESIDENT: I will deal with these documents. The documents objected to in the case of the SS, 69, 85, 86, 96, 101 and 102, are all disallowed. 8 and 9 to be translated and put in the document book. No. 11 is withdrawn. Nos. 5, 13, 15 and 20 may be submitted to the Commissioners but they will not be translated for the document books. That is all.
Now, Dr. Steinbauer.
DR. STEINBAUER: To this point I should first like to present the testimony of a French doctor who himself was a prisoner in an extermination camp for a long time. This is Goutbien, M.D., from Montgeron (Seine-et-Oise) who writes in RF 107:
"It is difficult for a normal man to conceive an exact picture about a concentration camp which is designated in the German language by the two letters K.Z.
"It is difficult for various reasons: first of all, a man educated according to the principles of our civilization which is completely ruled by the elementary Christian humanitarian doctrine cannot believe the truth of the statements made by the victims of so many atrocities; the sadism, the exaggerated refinement of the Nazis have tried to disguise their crimes in a hypocritic way, so that a foreigner who would have inspected a concentration camp two or three years ago would have been impressed by the order and cleanliness in it.
"If a jurist had examined the execution easels, he would always have found at least sufficient reasons, if not valid ones, for their justification. Finally, if a doctor had searched for medical documents, he could have very easily concluded normal causes of death.
"That is how heavy the curtain was, which covered the concentration camps, and which the SS kept carefully and jealously down. The SS tried to give a legal appearance to their crimes; the thing in question here is a characteristic appearance of Hitlerian hypocracy." book, "The Concentration Camps, a Question of Conscience for the German People," he writes, Page 19..."and he believed to be able to prevent the self unmasking by an absolutely tight-ring of silence with which he surrounded his works. This ring was closed so tightly that a German, had to travel abroad in order to learn something concrete about the camps and to read there about the "Soldiers of the Peatbog" (Moorsoldaten). At home books like these did not exist, and one learned only very little from mouth to mouth. Nobody got out of the worst camps, and the perpetrators of the crimes themselves were liquidated from time to time, so that they could not tell anything. But the few who get out of the more moderate camps were so much intimidated that they gave only quite general, obscure hints-quite enough, in order to create in the entire people a general feeling of horror of these mysterious places.
"But even the little which went from mouth to mouth never came to the nowledge of higher officials of the Third Reich. Because if they went after these things, the police learned about it and the latter then took care of it that the bearers of such "atrocity propaganda" kept silent. There as time went on, one refrained from telling anything to such officials." had an active share in the liquidation of the Jews. On 25 June 1946 Dieter Wislicony, the special representative of Eichmann who was in charge of the liquidation of the Jews, was questioned as witness by the appointed judge of this Tribunal. He stated that commissions of the International Red Gross or foreign diplomats were guided to Theresienstadt, in order to simulate the normal status of the accommodation. The Jews who were brought to Auschwitz were forced to write postal cards before they were murdered; these postal cards were then mailed at long intervals, in order to create the impression that the persons were still alive. He invited different representatives of the press. To the explicit question, "Under whose jurisdiction was the Jewish question in the occupied countries, under the commander of the regular police, the Secutiry Police, or the Security Service?" he gave the answer: "According to my knowledge, the Jewish question in the other occupied countries was an affair of the Senior SS and Police officer, pursuant to a special order by Himmler." was for instance demanded by the Slovak government for every Jew as settlement contribution. I have reproached the defendant with this, and he told me that Himmler also demanded from him a settlement contribution of 400 Reichsmark for every Dutch Jew. He as Reich Commissioner refused this in consideration of the incomplete statements concerning the actual settlement of the Jews and with the reference that the final settlement would have to be left for the time of peace.
examination individual cases of sterilization. The suggestions I made to have the letters written by Seyss-Inquart to Himmler procured as evidence show the following fact, in conjunction with the statement of the defendant. Konze, Seyss-Inquart never reported through any sort of official channels to Himmler about the Jewish question. of the Jews in the Netherlands any further, and he referred in this connection to the measures which had been carried out in the meantime against the Jews and which exceeded the measures in the Reich, pointing out on this occasion the cases of sterilization. women and stated to the Christian churches that no coercion must be exercised. As a matter of fact, no further cases occurred after a short period. sible insofar as he did not take stand against it immediately, without being certain, however, to be able to prevent the act. The reasons for the attitude of the defendant becomes evident from the letter which was requested as evidence. It was the worry that the situation of the Jews could be made worse and the supposition that these Jews would be spared further attention from the police in the future. defendant, they were issued only as measures against enemy foreigners for reasons which the defendant mentioned in his speech of 21 March 1941 in Amsterdam. Whatever happened beyond that took place on the express order of the Reich Central Agencies, especially Heydrich, and that primarily through organs of these Reich Central Agency themselves. Reich Commissioner, in accordance with the planned extermination and weakening policy toward the, occupied countr , had deliberately neglected the food supply of the Dutch, which had finally resulted in a starvation-catastrophe.
witnesses Dr. Hirschfeld and von der Wense, as well as by those of the defendant himself. The whole food supply machine remained from the very beginning under Dutch direction in the interests of the population, although it was known to the Reich Commissioner, that it was just in this field that loading cells of the resistance movement had established themselves. The feed supply in the Netherlands was not assuredly not worse than in Germany, from where in particular bread-grains were supplied. As late as the year 1944, the food value consisted of 1800 calories, before that 2500 calories, to which there were still additions of the utmost variety. knapsack-traffic of the Wehrmacht which was mentioned in the cross-examination, through intervention with the Reich Food Administration, even if it was only in the year 1943. as for example by furthering the N.O. Polders, by countering the extremely great demands of the Reich is confirmed by the witness von der Wense. agriculture until September 1944 is the exclusive achievement of the defendant From autumn 1944 on, the situation in the field of feed supplies deteriorated considerably. The country for a large part had become a war zone after the invasion, and the transportation routes had been smashed through innumerable air attacks. This had the result that a difficult food situation was caused, particularly in the West of Holland, where millions of people were compressed into a small area in three major cities. Considering the small number of occupation troops, it would have been a giant blunder in itself to drive these crowded masses intentionally to desperate resistance through starvation. broke out, caused by the London government-in-exile, which was counting on a favourable conclusion of the battle near Arnheim and a German collapse in the very near future, then viewed from the standpoint of international law, this was an emergency in which the country had placed itself toward the occupant. It was natural that the Wehrmacht occupied all available shipping space in order to secure their food supplies for their own defense.
der Wense and Dr. Hirschfeld and state here as the most important fact that the witness Dr. Hirschfeld testified that the Reich Commissioner gave an order for rescinding the blocking of shipping traffic in 16 October 1944. He had been able to count on the fact that the blockade of four weeks, which was not planned as a reprisal measure, would not cause any damage because sufficient food-stocks were on hand or could be sent into Holland in the months of November and December. He actually effected the rescrinding of the embarge at an earlier time, the establishment of a special transport organization an the importing of food stocks from the northeastern provinces by means of German transportation. and night attacks of enemy planes, sabotage of the resistance movement and last of all a great shortage of coal hampered the supply action, the emergency caused by the strike still cannot be in anyway charged against the defendant as a criminal offense. the entire period of occupation until the middle of 1944, the population steadily increased and that general living conditions under wartime considerations did not suffer a considerable deterioration at all. the defendant cared for the importing of food stocks on German transport trains and also furnished them for children, from German Wehrmacht stocks. He demanded supporting actions on the churches and of the Red Cross, although the Geneva insigne was repeatedly misused by the resistance movement. The Crown Prince of Sweden, as President of the Swedish Red Cross, expressed his special gratefulness to the Reich Commissioner. The Reich Commissioner finally contacted the Dutch government-in-exile through its trustees and in this manner initiated the conclusion of an agreement with the Allied Supreme Command, whereby the subsistence of Holland was secured and the occupation was effectively brought to an end. resistance. The German occupational troops in the Netherlands would certainly have been able to do this, although this would have caused the destruction of the country and its population.
floods and destruction caused by the occupying power. If the Prosecution had not brought up this point, then I as defense counsel would have discussed this matter before the Tribunal, because this matter especially gives the defendant the opportunity of appearing in another light, very favorable for him. In referring to the testimony of the witnesses Winner, Schwebel and Dr. Hirschfeld and General von Kleffel, I should like to state the following briefly: It should be known to the Tribunal that 40% of the total land level in the Netherlands lies below sea level. In the course of hard work for centuries, soil was wrested from the sea again and again and changed into fertile farming land. Powerful dikes protect the land; locks and pumping installations regulate the entry of water and water traffic in the interior of the country. The constant struggle against storms and water have turned the Dutchman into a proud and freedom-loving character "God has created the earth; we have made our land ourselves," says a Dutch proverb. Commissioner, contrary to the expectations of many persons, did not take the way into the Reich from Groningen, but returned to The Hague in order to carry his responsibility until the end. He feared that the collapsing Reich might reach a policy of catastrophe which would lead to destruction in an exposed country like Holland where 271 people live in one square kilometer. idea in many heads. Goebbels, after all, has declared braggingly that if they must go, they would slam the door with such a bang that the whole world would hear it. The Reich Commissioner warned against such ideas. The "Scorched earth" order actually came, and it would have meant the destruction of all technical facilities, including dams and lock facilities in Holland and of two-thirds of the country. In unison with minister Speer and Doenitz all this was prevented.
General van Kleffel and been acknowledged by the Chief of Staff of the American Army, Bedell Smith. by Schwebel. The defense counsel of General Christiansen informed me that besides the technical troops of the Wehrmacht which carried out detonations and floodings justified by the war situation, men sent by Himmler also appeared in order to carry out destructions behind the back of the Wehrmacht All this was prevented by the intervention of theReich Commissioner, who has conscious of his responsibility, and the country was saved to a great extent from destruction which could never again have been repaired. Zuidersee, the largest water structure which has over been constructed, which bears no name whatsoever, only the proverb: "A nation that lives builds on its future." Regardless of how the Trials may end, perhaps some day the time will come when the brief words will be added under this proverbs:
"Saved from destruction by Seyss-Inquart."
conspiracy. I ask you, however: Is a man who, in the middle of a struggle for life and death of his nation isplaced at the head of the administration of an enemy country and has tried again and again to prevent or decrease attempted excesses, a creature who could accordingly be described as a ruthless and arbitrary despot and war criminal? expressing some general thoughts on the trials. I esteem France and her old culture, and I have considered it an honor to be allowed as an attorney to cross swords with Frenchmen in these proceedings. I have listened to a speech of the French Chief Prosecutor Francois de Menthon with deep attention and inner sympathy. However it cannot remain undisputed. De Menthon has described Germany as the eternal enemy of France and alone demanded the most severe penalty, death, against all defendants without exception. He thereby places one of the weaknesses of these trials into the foreground, namely, that it will always remain the trial of the victors over the vanquished. One is reminded too strongly of the Gaul Brennus, who, which is vae victus throws the sword onto the uneven scale. Menthon with this presentation unintentionally obstructs the road to a lasting peace. and the source of all crimes, says Menthon; National Socialism is based on racial theory, a product of German mentality. But Menthon rightly explains that National Socialism is the farthest point of a doctrinaire development. There are no direct transitions in History but all is rooted inpreceding ideas and undercurrents. The events of the 20th Century can only find their explanation in the explanation in the developments of the preceding century. The final periods of the 19th century are under the influence of exaggerated Nationalism, and in connection therewith it is important to confirm that it was not Germans, but French who first established the racial theory.
Count Gobineau in his essay sur L'inegalite des races humaines (Essay concerning the inequality of the Human Races)" and George Sorel in his "Reflexion sur la violence (Reflections on Violence."
M. Menthon cites at the end of his statement "La morale internationale" (International Ethics) the work by Politis which I have also mentioned. Politis describes this exaggerated Nationalism being a real international disease, deriving from the 19th century. He in particular mentions the case of the Frenchman Maurice Barres. He sees in the sentence: "Que la patrie et elle tort, il faut lui donner raison"(my country right or wrong), the negation of all ethical laws.
I wash to refer to another Frenchman in contrast with M. Menthon; he is an unknown professor of history. The Gestapo, the German, and the French police are pursuing him; he frequently changes appearance and name. He is everywhere, we find him in the Massive Centrale, in the Auvergne-District, in the mountains near Grenoble, on the coast at Bordeaux, and in Paris. Wherever he appears army trains are derailed, ammunition depots are blown up, and vitally important industrial plants are shut down. He always remembers the words of De Gaulle: "Our country is in mortal danger, join us, everybody; fight for France!" The name of this man is Georges Bidault. The first thing he did after the enemy had been driven out of the country was to visit severely wounded soldiers in the hospitals. But he does not only go to the French, he also visits the German casualties in their wards, saysing to them: "Comrades, I wish you speedy recovery and a happy return to your homes." These words of the man who today is leading France indicate to us the path towards peace in honest and free collaboration of people and nations.
Hitler wished to create a new Europe; through his own methods, he failed in his efforts. Germany is beaten down to defenslessness, her towns are destroyed, her economic life annihilated. France, one of the oldest countries of Christendom, the country which at the end of the 18th century revealed the rights of men, has therefore today the particular mission and responsibilit of saving the culture of the Occident. the life of all countries, must be eliminated. All this in short and common to the trial.
Into your hands, my very esteemed judges, I trustfully put the fate of my client.
I very well know that you will consider all the facts Which speak for Seyss-Inquart. have done so often during the long months of this Trial, and from the imperial castle, now destroyed, look down on the German countryside. Out of the ruins of the old town rise, hardly damaged, the monuments of the Painter Albrecht Duerer and the Geographer Martin Behaim. They are the prophets of German Art and Science. May those two names be symbols for the future, and, like a pillar of fire, load theGerman people from the dark misery to the luminous heights of a lasting peace.
THE PRESIDENT: The Tribunal will adjourn for a few minutes.
(A recess was taken).
THE PRESIDENT: I call on Dr. Bergold for the defendant Bormann.
DR. BERGOLD: Your Lordship, Your Honors: In the case of the defendant Martin Bormann, with whose defense I have been commissioned by the Tribunal, is an unusual one. At the time when the National-Socialist Reich was still shining the defendant lived in the shadow, he dept on being a shadow at this trial and is, in all probability, today, too, among the shadows as the dead were called in ancient times. He is the only one of the defendants who is not present and against whom Article 12 of the Charter is applied. It seems as though history wanted to preserve the continuity of the genii loci and to see in the very town of Nuernberg a discussion of the problem of whether and in how far the greatest probability for a defendant's having lost his life will be an obstacle to a trial in absentia of such a man. For in Nuernberg an adage has come down from the Middle Ages to our times which says the Nuernberg people would not hang anybody lost he be apprehended first. where the question of whether a trial of an absentee can be carried out, was discussed in an excellent manner.
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 those points were considered on the 17th of November, 1945, and were decided on the 22nd of November, 1945, after you had been appointed; and both were decided in favor 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 the point of view was given in the course of the procedure that the Tribunal might change this decision. I assume that this decision can be revised by the Tribunal itself. I am making this statement in order to show that the trial here has brought out the points of view which --
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 1 say?
DR. BERGOLD: I did not understand the last sentence entirely.
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 defense of the defendant Bormann.
Possibly you have your disk wrongly set. Would you look at the disk and see whether it is all right?
DR. BERGOLD: The translation is poor. I can hear, but the translation of your statement into German is not clear enough.
THE PRESIDENT: I shall speak very slowly. What I said was that if you wished the Tribunal to reconsider the decision of the 22nd of November, 1945, you should have made application earlier. Instead of that, you want on to appear as the representative, of Bormann, and the Tribunal decided to hear the case against Bormann. Therefore, they are not prepared to listen to this argument for the reconsideration of their decision now. has no objection to this document's 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 that turned up only at the end of my case, the testimony of the witness Kempka, in my opinion, made the probability of the death, of Bormann so evident that only from this point of view can the question of a reconsideration be brought up. It was when the witness Kempka was questioned at the end of his testimony, and I assumed -