Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-185.09 Last-Modified: 2000/10/14 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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