The Nizkor Project: Remembering the Holocaust (Shoah)

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It is not everyone who has an aggressive character, is a
revolutionary, or who can use violence against the hated
system and its leaders. And do not forget, your Honours,
that at that time, under Hitler's autocratic regime, there
were only two possibilities to work really and positively
against the Nazi regime and its terror. Under this regime
there were not the thousand and one possibilities of
fighting a hated and accursed government as is the case in
free democratic countries with free and independent elected
parliaments. In Hitler Germany any form of active or even
public opposition only meant a completely useless sacrifice.

                                                  [Page 325]

And therefore I beg you, your Honours, in judging these
matters and in answering my question, to free yourselves
from the democratic conditions and circumstances which you
take so much for granted, but which are completely
incomparable with the conditions in Germany under Hitler at
that time, the lack of consideration of which fact has
already caused so much disaster up to very recent times.

And did not the defendant von Neurath save the freedom and
lives of thousands of people whose freedom and lives would
have been irretrievably lost without him, by his very
acceptance of the office of the Reich Protector, and by
remaining in it, despite the fact that he must have realised
that he could not perform the duties connected with this
office without incriminating himself, that he did not have
at his disposal the necessary means for its accomplishment,
but yet, in spite of all this, continued his fight against
the terror of the Nazi regime? Is this not worth a thousand
times more, is it not much more moral and ethical, than if
he had retired immediately, full of abhorrence and moral
indignation?

I do not hesitate to answer this question just as my first
question, in the affirmative, and to express my conviction
that no one can condemn me for this. Or shall a Sophoclean
tragedy be unfolded before us here in the fate of the
defendant; in which a man becomes guilty, due to no fault of
his own, because he obeyed his conscience and his sense of
responsibility?

Your Honours, I believe I have shown and proved by my
preceding statements that not a single one of the actions of
which the prosecution has accused my client is criminal
within the meaning of the Charter, and that not one of these
actions by the defendant was aimed intentionally at
committing a crime within the meaning of the Charter of this
Tribunal; and, therefore, that no criminal action exists,
either objectively or subjectively. But I believe I have
shown also, over and above this, that all my client's
actions as a whole had just the opposite purpose of what the
prosecution claims, namely, not the perpetration, but the
prevention of just such actions as the Charter defines as
punishable crimes, whether crimes of planning, preparation
or the waging of aggressive wars, be they war crimes or
crimes against humanity.

But there still remains one thing for me to do; to draw the
conclusion from all that, as to how impossible, indeed, how
paradoxical it would be to apply the principles of the
conspiracy with regard to my client, for the indispensable
condition of a conspiracy is that each participant not only
desires the criminal objective, but also that he, upon
entering into the conspiracy, by his participation,
sanctions or will sanction the preparatory actions or
actions of the other members in any way connected with it.

But when, as the prosecution is deliberately doing, one
regards approval of the criminal objective and all
preparatory actions for its achievement by each one of the
other members in their official capacity as proved in
International Law merely by the fact of the assumption of,
or remaining in, an office in spite of knowing its criminal
aims, and from this fact alone deduces a criminal co-
responsibility on the part of each individual, the
consequence inexorably follows with compelling logic, that
the application of the principle of co-responsibility due to
the assumption of an office or simply remaining in it,
without consideration of whatever decent and ethical reasons
may have caused one to do so, calls for the punishment of
one who not only disapproves of these criminal intentions,
plans and actions of the others, but even opposes them
actively, and who only accepted his appointment or remained
in his position for this reason, as was the case with the
defendant von Neurath.

In a court which not only represents Justice, the legal and
ethical conscience of all civilised nations on earth, but is
also going to show the way to universal peace to the coming
generations, I do not need to prove to you, your Honours,
that such a result is contrary to not only every natural,
but also to every legal sense of justice and ideas of
justice, that it is contrary to that which this Tribunal has

                                                  [Page 326]

to strive for and is striving for, that it is contrary to
every moral and ethical postulate. This task can only be
fulfilled if you show mankind once more that any
generalisation, any levelling, any treatment and thus also
any judgement and conviction of people and of their
activities only on the basis of corporative, I could say
gregarious, concepts, and not on the personality, that the
will and the designs of the individual are evil. Such
treatment denies the sacredness of the individual, and in
the long run leads inevitably to the adoration of mere
force. But this adoration of force, this belief in force,
was precisely the underlying cause of the terrible events
which once more have been unfolded before us here.

You can only then do justice to and fulfil your double task
- to punish where chastisement should be applied according
to divine and humane law; and at the same time show mankind
the way to international peace - if by your sentence you
take away from mankind the belief in force and give back,
instead of this belief, to all nations on earth and not
least of all to the German nation, the belief in and the
respect for the sacredness of the individual, whom the Lord
once created in His image.

Fully convinced of the truth of this realization, I now
confidently place the fate of my client, the defendant Baron
von Neurath, in your hands!

THE PRESIDENT: I now call on Dr. Fritz on behalf of the
defendant Fritzsche.

DR. FRITZ: Mr. President, the result of the evidence in the
case of Fritzsche is a relatively clear one. Although I am
one of the last to plead, a closer examination of legal
problems cannot be avoided. Above all, these problems arise
from the fact that Fritzsche was characterised by the
prosecution in a particularly striking manner as an
accomplice.

However, at first I must explain what position Fritzsche had
in the Propaganda Ministry and what part he played in German
propaganda in general. It is these facts which ought to be
conclusive in determining what part he supposedly played in
the alleged conspiracy.

At the beginning of the trial, Mr. Albrecht submitted as
evidence the organisational structure of the Government of
the Third Reich as of March, 1945 in the form of a diagram.
Mr. Albrecht admitted himself that Fritzsche's name did not
appear in it in the position of one of the main leaders of
the Propaganda Ministry. It is true, he added, that his
importance had been greater than one would be led to think
from his position as shown on this diagram. He closed his
statement by saying that evidence to this effect would be
submitted to the Tribunal.

Has this been done, and was the hearing of evidence really
able to prove that Fritzsche had greater importance?

At the session of 28th February, 1946, Sir David Maxwell
Fyfe introduced as evidence a "compilation of the elements
of guilt", which in a particularly impressive manner
demonstrates as to how far the individual defendants are
connected with the facts of which they are supposed to be
guilty in the opinion of the prosecution. The classification
of the individual defendants follows from the table which is
attached to this compilation as Appendix A. The Tribunal
will have noticed that the defendant Fritzsche is the only
one not to appear in this table at all. From this it follows
that he does not belong to any of the organizations which
are to be declared criminal here.

An examination of the organisational plan of the Propaganda
Ministry, which was submitted in Brief E by the prosecution,
also shows especially clearly that Fritzsche even in his
last position as Ministerial Director and Chief of the
Broadcasting Division was only one of twelve officials of
the same rank. Such a position in itself excludes a priori
the assumption that he could have determined the principles
of policy, the principles of news presentation, and the
principles of what may or may not become known to Germany
and the world. It is true

                                                  [Page 327]

Captain Sprecher pointed out - evidently in order to
increase Fritzsche's importance - that the Chief of the
German Press Division held a "unique" position, but also did
not pass over the fact in silence that he had predecessors
and successors in this allegedly unique office.

When in November, 1942, Fritzsche was appointed by Goebbels
as Chief of the Broadcasting Division, he did not obtain a
higher position in the civil service hierarchy as a result
of it. His activity was purely administrative. It concerned
technical-organisational questions. In his affidavit of 7th
January, 1946, my client describes the administrative work
connected with it. He also lists his numerous predecessors.
Did it occur to anybody to indict these persons also as
major war criminals, or to call them supreme commanders of a
propaganda instrument? Since this is not the case, the
conclusion must probably be drawn that it was not
Fritzsche's official position which formed the basis for the
Indictment.

Justice Jackson, too, pointed out that within the framework
of the organizations under indictment here, not all
administrative civil service employees and division chiefs
or State officials have been included as a whole; only the
Reich Cabinet was named. Therefore, it can also not be
imputed to Fritzsche - as is allegedly possible in the case
of the members of the organizations - that from his position
alone and the close connection of the individual members of
the organizations it follows that they must have known and
fully and clearly understood the plans of the alleged
conspiracy by virtue of their membership alone.

During Fritzsche's cross-examination, an attempt was also
made by the Russian prosecution to magnify Fritzsche's
position. It introduced three protocols as evidence, namely,
the interrogatories of the witnesses Schorner, Foss and
Stabel. However, these documents did not produce any
supporting evidence. These depositions were only used to
confront the defendant with isolated passages from them.
Because of this limitation, I was able to dispense with the
cross-examination of the three persons who signed these
protocols. But Fritzsche did not fail to express his opinion
on these passages which were held up to him while he was
being questioned on the witness stand. In this connection I
have to point to only one more thing: not one of these three
persons has even claimed to have had any insight into the
internal organization of the Propaganda Ministry. None of
the three depositions contains any definite statement of
Fritzsche's. On the contrary, these depositions contain mere
judgements, judgements which we do not desire to have from
witnesses, especially not in a case where they cannot
furnish any kind of substantial facts. For this reason
alone, their value as evidence must be denied. But aside
from that aspect, they represent completely wrong
judgements. They can by no means be derived from Fritzsche's
own statements which were submitted in this trial by the
prosecution - namely, from his radio addresses.

If evidence against the defendant Fritzsche bearing out
these mere judgements could have been submitted, then in
view of the fact that the prosecution could have obtained
all of his radio addresses, it would have been more to the
point to submit here those statements made by him which
would have enabled the Tribunal to form its own judgement.
The transcripts of the interrogations only contain the
shortly summarising statement that Fritzsche was Goebbels'
"deputy". I confronted the witness von Schirrmeister with
this assertion and he termed it pure nonsense. Fritzsche had
to say the same on the witness stand. There can be no doubt
that the concurring testimony of both witnesses is correct.
Finally, there are still hundreds of others who formerly
worked in this Ministry who could verify the truthfulness of
these statements with their own knowledge.

I can state therefore that the attempt at magnifying
Fritzsche's position, contrary to the facts given in the
organisational chart of the Propaganda Ministry as submitted
by Mr. Albrecht, is a complete failure.

Beyond that, the hearing of evidence has shown that
Fritzsche was not the creator of the great control apparatus
for the German Press, as was furthermore

                                                  [Page 328]

claimed by the prosecution. On the contrary, it was Dr.
Goebbels and other associates of his. Fritzsche could not
have been the creator because of the time element alone.

In the first place, he had merely been an employee for
years! He then became a consultant (Referant) and it was
only since the winter of 1938-39 that he was one of the
twelve division chiefs of the Ministry. When he became Chief
of the German Press Division, the policy of the Press was
determined by Reich Press Chief Dr. Dietrich. As has been
said already, he became Chief of the Broadcasting Division
only in November, 1942, and did not create anything
fundamentally new there. Neither Goebbels nor Dietrich ever
allowed the control of the German Press and radio to be
taken out of their hands. With regard to the details I wish
to refer to the testimony of the witness von Schirrmeister.

The fact that Fritzsche could have been neither the creator
of the Press Division nor a leader of the German propaganda,
as far as it emanated officially from the Ministry, is also
shown by the other numerous statements both by Fritzsche,
when questioned about it on the witness stand, and by the
witness von Schirrmeister.

During his entire activity, Fritzsche actually never
possessed any authority to give orders in these fields, and
could not have had it owing to his rank in the civil
service, which would justify his being called the creator or
leader of the Press and radio in the Third Reich. On the
contrary, between Dr. Goebbels Dr. Dietrich and himself
there were quite a number of other higher intermediary
posts. In this connection I can also refer to what
Lieutenant Meltzer stated in general about the importance of
a State secretary in the Reich Propaganda Ministry and the
Reich Press Chief, when he referred to an affidavit by Amann
of 19th December, 1945. He pointed, out that the holders of
these positions exercised complete control over the news
service in Germany. Fritzsche never held either one of these
positions. Incidentally, the Propaganda Ministry did not
have only one, but three State secretaries. Besides, Dr.
Goebbels had surrounded himself with a Ministerial Staff
(Ministeramt). I believe it is appropriate to point here to
this low rank because the prosecution thought, as it did in
other cases, for instance in the case of the defendant
Goering, that it could conclude a special responsibility
from a high rank, i.e., from a defendant's outward position
alone. Therefore, one can by no means start from the
assumption that Fritzsche exerted any decisive influence
upon the conduct of propaganda in general and upon the
policies which were pursued by the Press and radio.

The tasks which Fritzsche accomplished on the technical side
of the news system involved him only as a journalist and
expert. They had nothing to do with the contents of the
propaganda which was pursued by the State leadership. In
this respect, too, he was only a person who carried out
directives. It is true that he set up the technical
organization of the journalist news offices. He thereby
modernised and perfected them. It is also true that this
news system played a very important part later in the war.
In that respect, Fritzsche's work extended only over the
period from 1933 to 1938. But it is a fact that in those
years he did not have the least influence upon the contents
and political trend of the news, particularly in view of the
fact that he was a mere employee at that time.

I make these references to Fritzsche's official position
within the Propaganda Ministry also for another reason. In
admitting what he did and said and wanting to assume full
responsibility for it - Fritzsche had an opportunity to
explain in detail the cause for and contents of all the
excerpts from his radio addresses submitted to him - he
cannot, on the other hand, answer for those which were
championed by other offices of the State propaganda
apparatus and also within his own Ministry. All the less can
he answer for the unorganised propaganda of the Party.
Fritzsche described the various controlled and uncontrolled
kinds of propaganda of the Third Reich and pointed out their
effects. May I remind the Tribunal that the witness von
Schirrmeister, testified to the effect that even

                                                  [Page 329]

Goebbels could not do anything with the "Party doctrines"
and the "myth" in the field of propaganda. According to the
witness, Goebbels did not regard them as things with which
to lure the masses. When the defendant Speer mentioned the
secret agitation about the miracle weapons, he was able to
point to other sources of unorganised Party propaganda.
Fritzsche does not bear any responsibility for all that. His
official position was not influential enough to be able to
fight effectively against all faulty conditions and abuses.
Therefore, his repeated attempts to have Der Sturmer
prohibited - he considered this paper an excellent means of
anti-German propaganda - remained without success. The Party
propaganda, with all its practical consequences, played a
much more important part than that which Fritzsche with his
comparatively limited functions could ever have played. I
recall the fact that, according to Fritzsche's testimony,
even Dr. Goebbels was afraid of Bormann. This was explained
by the portentous sentence according to which it was not the
State which had to give orders to the Party, but inversely
the Party to the State.

The hearing of evidence - especially the examination of the
witness von Schirrmeister - has thus shown, without any
doubt, that the decisive directives for the propaganda of
the Third Reich came from other agencies. Goebbels, from
whom Fritzsche kept his distance personally, did not allow
any of the subordinate officials in his Ministry to
interfere with his plans. It has been seen that he carried
out his plans with the authority of his position, with the
adroitness of his arguments, which the world knows, and if
necessary by means of fraud. The leadership of the German
Press policy - let us consider only this narrow sphere - was
and remained in the hands of Dr. Goebbels, and Dr. Dietrich.
The same thing happened with the radio as the witness von
Schirrmeister has stated, when Fritzsche took over its
direction in November, 1942. 


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