had believed in Hitler, he only needed faith, courage, and the will to make sacrifices in order to continue believing in him, until through the discovery of carefully hidden facts he could recognize the devil in him. Only thus can the struggle be explained which Germany carried on for 68 months. Such a sacrifice does not grow from crime but from idealism and good faith and from clear and apparently just organization.

I regret the generalization which the Prosecution have applied to the crimes, because they are bound to enlarge the mountain of hatred in the shadow of which the world lies to-day. Yet the time has come to interrupt the circle of that hate which has dominated the world until now. It is high time that a halt should be called to the harvest and the sowing of a new seed of hatred and that the seed must be changed. After all, the murder of five millions is a terrible warning, and the world has at its disposal the technical means for its self-destruction. For that reason, the Prosecution should not replace hatred by yet more hatred when they present their case.

It is my right to say this before my conscience because I have not preached hatred, as the Prosecution will have it, nor have I closed my ears to pity. To the contrary, again and again, in the middle of the hardest struggle, I have raised the voice of humanity. The vast majority of my speeches prove it, which, after all, can be considered at any time when one considers the allegations of my adversaries. Such speeches, which even now have not been submitted to the Tribunal, cannot simply have disappeared from the surface of this earth.

Admittedly, it is perfectly possible, alas, even understandable, that the hurricane of disgust which swept the world because of the atrocities which were committed might sweep away the borders of individual responsibility. If that happens, if collective responsibility is to be attached even to those who, in their good faith, were misused, then, Your Honors, you must hold me responsible. As my defense counsel has emphasized, I do not wish to hide behind the millions of those men and women acting in good faith who were misused. I will place myself before them, before those for whom my good faith had been an additional guarantee for the cleanliness of the system. And yet, this responsibility of mine is only valid for those who acted in good faith, not for the originators, collaborators, and those who knew of those atrocities beginning with murder and ending with the choice of living human beings for anatomical collections.

Between these criminals and myself there is only one tie; they

merely misused me in a different manner than they misused those who became their physical victims.

It may be difficult to separate German crime from German idealism. It is not impossible, if you draw that dividing line, then you will save much suffering for Germany and for the whole world.

XXIV. MARTIN BORMANN

FINAL ARGUMENT by Dr. Friedrich Bergold, Defense Counsel Your Lordship, Your Honors:

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 kept 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 Nurnberg 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 Nurnberg an adage has come down from the Middle Ages to our times which says the Nurnberg people would not hang anybody lest he be apprehended first..

In other words, it was in Nurnberg in old times already where the question of whether a trial of an absentee can be carried out was discussed in an excellent manner.

[The Tribunal refused to hear the remainder of Dr. Bergold's argument regarding the advisability and the right of the Tribunal to try Bormann.-Ed.]

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I cannot and will not criticize the Charter. I wish merely to establish the fact that the Charter has created an unheard of novelty. I am, however, of the modest opinion that, in view of this specific novelty in the legal history of all times and countries, the High Tribunal should carefully consider whether at the present stage of the proceedings it will enforce the right granted by Article 12 of the Charter to prosecute in absentia. Since a revision of the sentence is no longer possible, the proceedings in my opinion should be carried out only if by a corresponding 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 the circumstances are not in any respect subject to the slightest doubt. As the Charter does not

stipulate more clearly when and under what conditions the Tribunal is to enforce its right, the latter must make a law for itself.

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 high 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 applied without any further procedure as soon as he is apprehended.

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 to 2d May 1945, together with State Secretary Naumann as first, the defendant Bormann as second, the Standartenfuehrer Dr. Stumpfecker as third, and himself as the fourth in that order, he 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 the witness had the impression that Bormann's hand was holding on to the tank. That action seemed. to the witness necessary in order to keep pace with the rolling tank. That tank, having passed anti-tank obstacles and having advanced some 30-40 meters beyond, was blown up into the air presumably by a direct hit of an anti-tank grenade (Panzerfaust).

The witness observed without any possible doubt that in the immediate vicinity of the tank just where Bormann walked a darting flame burst forth from the exploding tank, knocking down Bormann and State Secretary Naumann walking immediately ahead of him. Thus Bormann found himself in the center of the explosion which was so violent that the witness is convinced Bormann must have died under such circumstances without a doubt. It cannot be maintained that owing to the fact that the witness had escaped the violence of the explosion Bormann also must have been saved. It should be noted that Kempka was running behind the tank on the left hand side and thus was at a distance of some 4 meters from the explosion proper. Furthermore, he had additional protection in the person of Dr. Stumpfecker, running in front of him, whose body was thrown against him by the explosion, serving 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 wounded so seriously 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 Krueger had already been quite close to the Reich Chancellery and had occupied it already on 2 May 1945 owing to the fact that the defenders had fled. With the loyalty the USSR is showing in these proceedings she would have transferred Bormann to the High Tribunal for trial.

There being only two possibilities—at least in my opinion—the first of which, namely that the wounded Bormann fell into the hands of the USSR, has been proved not to be true, then only the second possibility can have happened, namely that Bormann lost his life. I am therefore of the opinion that I have proved with sufficient likelihood that Bormann is dead.

In my opinion one should not be allowed to say that until death is established with absolute certainty a man is to be supposed alive. This is a supposition which I, the defense counsel, would have to refute. A legal assumption of a person being alive has existed in all countries of the world but only in the field of private law and only for the purpose of regulating conditions pertaining to inheritance or matrimonial property laws. However, a legal assumption of a person being alive has only very seldom been stipulated, e.g., in Common Law and in the Prussian Law and even there it is contested.

The Civil Code knows of no assumption of a person being alive but instead only admits the declaration that a person is missing in the eyes of the law. Common Law neither provides a declaration as to the death of a person nor a special one as to a person being alive. Russian law permits already after a short period of time a declaration as to a person being missing in the eyes of the law, and this may be followed by the declaration of the person's death. But even in these stipulations no assumption can be found as to the person being alive.

Whatever is the case in the field of civil law, it is nevertheless a fact that in the field of criminal law there exists no assumption as to a person being alive, in any country. If, however, criminal law does not recognize such an assumption as to a person being alive, it is not my duty either to refute such an assumption as to a person being alive. It must be enough when such circumstances. are proved by the defense as lead one through a reasonable evaluation of the usual course of life, as I have already shown, to conclude that a defendant is dead.

I am, therefore, of the opinion first of all that the death of the defendant Bormann was proved with sufficient probability, in fact with such great probability that the proceedings would accord

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ingly have to be suspended entirely and forever since the Charter does not recognize a trial of dead persons. If there were such a thing as the trial of a culprit after his death the prosecution, according to all logic and reason, would have 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 correct that the Charter does not recognize such an assumption for the procedure against a defendant who cannot be found. However, the Charter is rather taciturn on this subject and I have already stated that I am convinced the High 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 at least the general legal principle of all civilized countries by which a defendant must be guaranteed a hearing even if only after his arrest. Thus by suspending the proceedings one would avoid creating accomplished facts as long as it is still possible that Bormann's absence can be excused.

May I point out in this respect that paragraph 12 of the Charter, second section, expressly refers the Tribunal to the interests of justice which it should consider in examining the question of whether it intends to try in absentia cases other than where the defendant cannot be found. These interests of justice are not unilateral and are not directed against the defendant exclusively. True justice is always universal. In all laws of the world it demands that as far as possible in the eyes of justice. the interests of the defendant shall be protected as well.

In the case of the defendant Krupp's illness, the Tribunal already exercised its right not to try a person in absentia. Even if this case cannot quite be compared with that of the defendant Bormann the decision should be considered in the present instance too.

Just because of the peculiar character of the case and in view of the testimony of the witness Kempka, one can by no means consider the fact as proved that the defendant Bormann deliberately stays away from the Tribunal, because however the matter is viewed, one cannot ignore the possibility that-even if he had been saved and had not fallen into the hands of the Allies-he may have been injured permanently and to such a degree that neither physically nor mentally he is in a position to surrender to the Tribunal. It is for this very reason that after thorough consideration I believe that in the interests of true justice the Tribunal should suspend proceedings against the defendant Bormann.