Book 5, Document Neurath-152—is also typical of the manner in which the

Police received its instructions directly from Berlin, over the head of

the Reich Protector. Frank speaks therein of the report on the first

demonstrations, which he had sent to Berlin, and in which he had asked

for instructions; he had received them by return mail from the Führer’s

headquarters through the Security Police in Prague, to which office they

had been sent by Berlin directly and he, Frank, received them from

there. There is no mention whatever of the person or even of the office

of the Reich Protector during the entire proceedings; it is an internal

affair of the Police involving the Higher SS and Police Leader Frank.

Because of the importance of this point, I would like to refer

explicitly to the statements, made by the witnesses Von Burgsdorff and

Völckers, both of whom were, on the basis of their official position,

thoroughly conversant with this question during the entire time the

defendant was in office. Burgsdorff testified that the Police was under

Frank, who received his orders directly from Himmler. Völckers said that

the defendant had no influence on Frank’s activities, and thereby on the

Police. In practice, from the very start, the Police and, therefore,

also State Secretary Frank took their measures independently of the

defendant. This was legally confirmed later through the ordinance of 1

September 1939. All witnesses, also in their written testimonies,

testify that the relations between the defendant and Frank had been as

bad as can be imagined.

It is entirely impossible in such a state of affairs that the Chief of

the SD and the Security Police should have been active as political

adviser to the defendant. The defendant cannot at all remember a decree

of May 1939 about the appointment of this man, to which reference is

made in the document by the Chief of Security Police—Document Number

USSR-487. In any case, according to his definite statement, he never

performed any duties. The document, USSR-487, therefore, does not appear

to be conclusive as evidence. The copy handed to me by the Prosecution

is dated 21 July 1943. That alone proves that the appointment of the SD

leader, if it occurred at all, did not take place during the defendant’s

entire time in office. Aside from the date, however, the “reference” of

the latter shows that this appointment does not at all concern a

political adviser to the Reich Protector himself, but to the State

Secretary for Security Matters—that is, Frank. The address “Der Herr

Reichsprotektor” is not to be understood to mean the person, but rather

the office. In German official circles it was customary to speak of the

“Herr” Reichsminister, _et cetera_, even though he was not meant

personally, but some department of his office. It is entirely credible

and probable that the SD leader was appointed political adviser to the

State Secretary, who at the same time was State Secretary to the office

of the defendant and independent State Secretary for Security Matters.

Precisely from the so-called “warning,” given at the end of August 1939,

with which the Prosecution charged my client, it can be seen how he

himself felt about the ways and means of easing the minds of the

population and of preventing acts of violence and insubordination on

their part. According to his sworn testimony, the defendant thereby

intended to discourage the population from committing acts of violence

and especially to prevent acts of sabotage—which were to be expected in

this time of high political tension before the war—thus preventing

harsh police or legal measures which would only serve to embitter the

population even more. It is doubtless more humane to issue such a

warning, and thereby prevent such crimes, rather than allow crimes to be

committed without previous warning and afterward mete out severe

punishment. The fact that acts of sabotage, if it was impossible to

prevent them, had to be severely punished in those times would certainly

have been acknowledged also in any other country and taken for granted.

As the defendant testified, the warning fulfilled its purpose. No

special punishments were threatened or fixed; it contained no special

threats of punishment whatever, but referred, as the wording proves, to

criminal law already in force.

The sentence, that the responsibility for all acts of sabotage affected

not only the culprit but the entire Czech population, is, of course,

concerned only with the moral responsibility and not the penal one, as

was also confirmed by the defendant. It means that in the case of

repeated serious acts of sabotage, general measures would be taken in

the respective territories, as for example, earlier curfew, ban on going

out, or general stoppage of traffic or electric current, under which the

entire population would have to suffer. A responsibility in the penal

sense would have had to be formulated much more concretely. It was

expressly mentioned at the beginning of the proclamation that anyone who

committed the cited crimes thereby proved himself to be an enemy of the

Reich and had to be punished accordingly. This sentence especially shows

that the penal treatment of such sabotage acts was to be applied

individually. At that time, nobody in Prague, not even the Chief of

Police, would have thought of the idea of decreeing collective

punishments or even, as the Prosecution asserted without any evidence

whatever, of introducing the hostage system. In this connection, I also

wish to refer to the statement made by the witness Von Holleben,

Document Book 5, Document Neurath-158, in which he states, “Neurath,

therefore, always refused to make a person responsible for acts

committed by somebody else.”

From all that has been said previously, we see that the Defendant Von

Neurath cannot be made responsible for the arrests made at the time of

the occupation of the Czech territory, nor for the arrests made at the

outbreak of the war of, as the Prosecution assert, 8,000 prominent

Czechs sent to concentration camps or executed as hostages. These

arrests, according to the defendant’s testimony, with which Frank’s

testimony agrees, were made on direct order from Berlin without

knowledge of the defendant nor even of Frank himself. Bienert’s

contradictory testimony presented by the Prosecution is factually

incorrect, and is based on completely illogical and false deductions.

His deduction that this entire action was under the defendant’s

direction because his order for Bienert’s release had been issued only 4

hours after his arrest is without any logic and is objectively wrong.

Finally, on the basis of the evidence, it is irrefutable that the

defendant is also not responsible for the order to shoot 9 students and

to arrest approximately 1,200 students during the night from 16 to 17

November 1939; that these measures, rightly called terror actions, had

been ordered during his absence from Prague, and without his knowledge,

by Hitler personally and had been carried out on Hitler’s direct order

by Frank; and that also the proclamation of 17 November 1939 announcing

it was neither issued nor signed by him, that on the contrary his name

under it had been misused. It is proved by the testimony of the

defendant himself and by that of the witness Dr. Völckers, who

accompanied the defendant on his trip to Berlin on 16 November 1939, the

day after the student riots, and had returned from Berlin to Prague with

him on the very afternoon of 17 November; furthermore by the written

testimony of Herr Von Holleben, and finally by the affidavit of the

defendant’s secretary, Fräulein Friedrich—Document Book 5, Document

Neurath-159—and of the Baroness Ritter, that the defendant, during the

night of 16 to 17 November, when the shootings and arrests took place,

was not in Prague but in Berlin, and the publication of these incidents

was already posted on the house walls of Prague when the defendant

returned to that city. The defendant is not in the least responsible for

these atrocities. The order for them, as well as the simultaneous order

for the closing of the universities, had, on the contrary, been given

directly to Frank by Hitler in Berlin, and this, as the witness Völckers

expressly affirms, in the absence and without the knowledge of the

defendant.

The value, in consideration of this, which may be ascribed to Dr.

Havelka’s testimony, presented by the Prosecution, is self-evident. The

credibility of this witness Havelka, as well as of all the other Czech

testimony submitted by the Prosecution, must in general be examined with

the very greatest caution. It is subject, from the first, to two very

serious objections. First, all these witnesses are members of the former

autonomous Czech Government—that is, the so-called collaborationists,

who are in jail today for this reason and are awaiting their sentence.

It is humanly quite understandable if today they see in a different

light the conditions then prevailing, judge them differently from what

they really were, and involuntarily confuse the terrible things which

happened after Herr Von Neurath had left Prague with the events while he

was there. This results from a haziness of their memory. We must not

overlook the fact that, as is quite natural, they hope by incriminating

Herr Von Neurath to clear themselves.

Added to this is the fact, which is more important still, that they had

no knowledge whatsoever and could not have had any of the internal,

factual, and legal conditions and competences within the office of the

Reich Protector, and that they therefore are not at all able to judge to

what extent the defendant himself was really the man who issued the

individual decrees and orders or brought them about. One example shows

this very clearly. In the witness Kalfus’ testimony, it is alleged that

the defendant was responsible for the customs union between the

Protectorate and the German Reich. In this respect, I wish to refer only

to the fact that already, in Hitler’s decree of 16 March 1939, it had

been expressly announced that the Protectorate belonged to the customs

district of the Reich. The witness Bienert further asserts that it was

Herr Von Neurath who subordinated to the Germans the political

administration of Bohemia and Moravia, which means state as well as

communal administration. This is, however, also objectively wrong. As I

have already proved, this subordination was ordered by the decree of 1

September 1939, which was not issued by the defendant but by the

Ministerial Council for the Defense of the Reich. These examples should

suffice to show how little credibility can be attached to all these

testimonies, and how little the witnesses were informed about the actual

conditions of organization and authority within the office of the Reich

Protector. The often repeated assertion of the witnesses that the

arrests and many other measures of force by the Gestapo against the

Czech population were done on the order or instruction of the defendant

personally is, for example, either a deliberate falsehood or proof of

their ignorance of even the published official decrees announced in the

Czech official gazette. For the Gestapo, as I have already proved, was

not at all under the jurisdiction of the defendant. The conclusions to

be drawn from this, as to the credibility of all the witnesses, are

self-evident. It is obvious that in contrast thereto the sworn testimony

of the defendant and of the witnesses presented by me, together with the

decrees submitted pertaining thereto, deserve far more credibility.

The allegation of the Czech indictment, and of the testimony on which it

is based, that Herr Von Neurath, in the middle of November 1939, ordered

the closing of the universities has thus been disproved as objectively

wrong. In fact, the closing of the universities took place on the

express order of Hitler. As the evidence has shown beyond any doubt, the

defendant immediately protested to Hitler and succeeded in obtaining his

promise to reopen the universities after one year instead of only after

three years. The defendant cannot be blamed for the fact that Hitler did

not keep his promise. His efforts for the revocation of the closing of

the universities prove, however, how much he was interested in

maintaining the educational standard and the intellectual classes of the

Czech nation.

The defendant did whatever he could for the Czech nation as a whole and

for the individual. This applies especially to the harmful activity of

the Police and the Gestapo, as far as he received information about it.

According to his own testimony, which is confirmed by that of the

witness Dr. Völckers, immediately after the arrest of the students in

the middle of November 1939, he used all the influence at his command

for their release, and as we have heard here, not only out of his own

mouth but also from Dr. Völckers, he succeeded in obtaining the release

of almost all the students by the time he left Prague on 27 September

1941. And he worked in the same way continuously for the release of

about 8,000 prominent Czechs who had been arrested at the beginning of

the war. As proved by his own testimony under oath, these arrests were

ordered by Berlin directly and not by the defendant, as the Czech

witnesses Bienert, Krejci, and Havelka untruthfully maintain, nor even

by Frank or by any other Higher SS or Police Leader in the Protectorate.

Moreover, it is also due to the defendant’s personal intervention that

in 1941 the order Hitler issued at Frank’s and Himmler’s instigation for

the removal and arrest of the then Czech Prime Minister General Elias

was rescinded. Only after he had left was Elias arrested by Heydrich and

later condemned to death by the People’s Court.

Definitely wrong is the allegation of the Czech witness Bienert that the

defendant had arranged for the transportation of Czech workers into the

Reich—that is, that he deported Czech workers by force into Germany. It

is, on the contrary, true that, during the whole term of office of the

defendant, not a single Czech worker was deported by force to Germany.

Until 27 September 1941, no compulsory deportation of labor had yet

taken place in any territory occupied by Germany. That happened only

later. But many Czech workers voluntarily and gladly went to the Reich

and accepted jobs there because of the fixed exchange rate of the

Reichsmark and the higher wages; they earned much more there than in

Prague and could send a great part of their earnings to their relatives

in the Protectorate.

If the Czech Prosecution want further to charge the defendant with the

sending by the Gestapo of arrested persons to concentration camps, and

with the ill-treatment of those individuals there, it must be stated

decidedly that until 27 September 1941, the end of the official activity

of the defendant in the Protectorate, not a single concentration camp

existed in the Protectorate. They were all established only after his

departure, under his successor. The decree, too, concerning protective

and preventive custody, with which the Czech Prosecution apparently wish

to charge him also, was issued only after his departure, on 9 March 1942

as shown by the copy annexed to the Czech report, Document USSR-60.

Lastly, with regard to the charges of the Indictment concerning the

alleged measures taken by the defendant against the Jews, in this point

too the representation of the Indictment does not correspond to the

facts, and is shown to be erroneous on closer examination of the

documents submitted by the Prosecution themselves. Of the total of 21

decrees contained in the British Document Book Number 12b, only 4 were

signed by the defendant himself; 6 were issued directly by the Reich

Ministry, 10 by State Secretary Frank,—or his direct subordinate Dr.

Von Burgsdorff—and one by the Czech State President Hacha.

The first decree signed by Herr Von Neurath himself on 21 June 1939,

which contained nothing but the introduction of regulations valid for

the entire German Reich concerning treatment of Jewish property in the

Protectorate—which since 16 March 1939 was also a part of the German

Reich—had been laid down for the defendant by Berlin when he assumed

office. The fact, however, that it was published on 21 June 1939, 3

months later, proves the correctness of his statement, that he wanted to

give the Jews time to prepare themselves for the introduction of the

Jewish legislation as in force throughout the Reich. Its postponement to

that day was done expressly in the interest of the Jews.

The second decree issued by the defendant himself on 16 September 1940

merely prescribed an obligation to declare securities—that is,

mortgages, which were Jewish property—and corresponded to the various

decrees of the same or similar kind issued in the German Reich, too, and

were applicable to all German nationals.

The third decree, issued and signed by himself, of 5 March 1940, as well

as the fourth of 14 September 1940, as quite clearly shown by their

contents, aimed at making possible and facilitating Jewish emigration,

which the course of events in the Reich had made inevitable. Therefore

both decrees had been issued in the very interests of the Jews

themselves, and prove that the defendant had no anti-Semitic views.

All the documents submitted by me which refer to this matter, among

others the newspaper report concerning the boycott of the Jews in the

spring of 1933—Document Book 1, Document Neurath-9—and the submitted

depositions of witnesses, show that he did not approve of the measures

taken against the Jews, particularly measures of violence, but opposed

them. As shown especially by the deposition of the witness Dr. Koepke,

such measures would have been in contradiction with his Christian and

humane attitude and ideology. It is confirmed that until his departure

from Prague not a single synagogue had been closed, and that no

religious restrictions against the Jews had been decreed. No particular

proof is needed to show that the defendant cannot be made responsible

for the six ordinances issued by the Reich Ministry of the Interior. But

neither does he bear any responsibility for the decrees signed by Frank

and Herr Von Burgsdorff, in view of the independent position of State

Secretary Frank and the competence of the Police concerning all Jewish

matters, which I have described. In opposition to the assertion of the

Indictment, it must be particularly emphasized that, according to his

own sworn deposition, no persecution of the Jews occurred during his

entire tenure of office.

His afore-mentioned humane and Christian attitude and ideology make the

assertions in the Czech report of 4 September 1945 (Document 998-PS),

concerning the alleged hostility of the defendant to the Church, appear

just as unlikely. It is true that the Czech indictment of 14 November

1945 (Document USSR-60) does not make this report an object of an

accusation; but, nevertheless, I should like to speak about it briefly.

It is proved by evidence that the relations between Herr Von Neurath and

the Archbishop of Prague were very good, even friendly, and that the

latter explicitly thanked the defendant for his support of the churches.

This would certainly not have been the case if he had been opposed to

the Church or if he had suppressed the churches, their organizations and

clergy, or persecuted them in any other way. It is certainly not an

extraordinary occurrence that there may have been differences in

official matters, as obviously was the case according to the letter of

the Archbishop submitted by the Prosecution; State and Church always

have had differences with one another, at all times and in all

countries. But this cannot under any circumstances be construed as

implying, on the defendant’s side, a policy opposing the Church. It may

be that members of the clergy were arrested; but, in the first place,

such arrests were ordered not by the defendant, but by the Police, which

was not under his control, and secondly—if the defendant knew of them

at all—not on account of any church activity, but because of political

intrigue. Neither is it clear from the mentioned Czech report whether

the alleged actions against the Church, its organizations and clergy,

actually took place during the defendant’s tenure of office. The

evidence has shown that he did not decree any antiecclesiastical or

antireligious measures. Pilgrimages to the Czech religious shrines, for

example, were expressly permitted by him.

At this point I would also like to emphasize that the defendant was not

guilty of injuring Czech national feeling in any way. Contrary to the

assertion of the Prosecution, he did not destroy or close any Masaryk

houses as the Prosecution would like to charge against him. As far as

the closing of any Masaryk houses is concerned, the SS and the Police,

which were not under his jurisdiction, are exclusively responsible. His

attitude toward the Czech national feeling is best illustrated by the

fact that he especially permitted the customary deposition of wreaths at

the Masaryk monuments.

Nor did the defendant take measures hostile to culture, in spite of all

efforts made in that direction by radical elements. Czech theater life

was not touched and remained completely free, as well as Czech

literature, which was not suppressed or encroached upon in any way, with

the exception, of course, that anything of an anti-German or inciting

character was prohibited. Also the press—which, incidentally, was not

controlled or censured by him, but by the Reich Ministry for

Propaganda—was not submitted to any other limitations than the German

press, since the defendant’s efforts altogether were directed toward

conserving and encouraging Czech cultural life in its characteristic

quality and independence.

I believe it is not necessary for me to go still further into details

about that subject, and that I can confine myself to referring to the

defendant’s own statements and the statements of the German witnesses

about this. The testimony of these witnesses shows clearly what

difficulties and opposition on the part of certain radical circles and

authorities, not least on the part of his own State Secretary Frank, he

had to contend with in his general policy toward the Czech people.

If one wants to summarize his official activities, one may say that his

entire life in Prague was one long struggle: A struggle against the

forces inspired and led by Himmler; a struggle which was all the more

difficult because he did not actually possess full powers in the

Protectorate, and because the offices and authorities which were the

most important and influential in the field of home politics—the entire

Police and the Gestapo—were not subordinate to him. Nevertheless, he

did not abandon this struggle, and never grew tired of protesting to

Hitler again and again and demanding redress—in many cases

successfully; in others, not. He fought up to the very end; he did not

allow failures to discourage him, and he remained faithful to his policy

of reconciliation and compromise, of pacification and conservation of

the Czech people and their national characteristics. And when here again

he was forced to recognize, in the autumn of 1941, that to continue his

fight was hopeless—that Himmler’s influence on Hitler was greater than

his own, and that Hitler had now decided to change over to a policy of

force and terror, and to send Heydrich, who was known as a bloodhound,

to Prague for this purpose, he immediately, just as in the winter of

1937-38 as Foreign Minister, took the consequences, resigned his post,

left Prague, and retired to private life for good.

THE PRESIDENT: Perhaps this would be a convenient time to recess.

[_A recess was taken._]

THE PRESIDENT: The Tribunal will sit in open session on Saturday morning

until 1 o’clock.

DR. VON LÜDINGHAUSEN: What impression this resignation created on the

Czech people, even the circles most hostile to Germany, and what

interpretation was put on it appears, with a clarity that can hardly be

surpassed, from the Czech report—Document USSR-60—which was truly not

dictated by pro-German sentiments or love for my client, and which

characterized this departure of my client as a “gehöriger Schlag” in the

German text—“a heavy blow” in the English text—thereby actually

disavowing its own accusations against Herr Von Neurath. And indeed I

think I have proved that, while discharging the duties of his office,

the defendant did not personally become guilty of a single crime against

humanity punishable under the Charter of this Tribunal; and only such

crime could, after all, be considered here.

And now the basic question of this Trial arises: Did the defendant

become guilty—that is, guilty in a manner punishable under the

Charter—of supporting or aiding Hitler and his accomplices in the

commission of their crimes by accepting the office of Reich Protector

and by keeping it, in spite of the war launched by Hitler a few months

after his assumption of this office, and in spite of the events in

November 1939, and several other occurrences? The Prosecution answer

this question in the affirmative. But can an objective impartial

judgment of matters really lead to this affirmative answer?

One thing should be absolutely certain after what we have heard here

from the defendant himself, from the witnesses whom I questioned on the

subject, and from the affidavits which I presented. Herr Von Neurath was

not moved by external or material reasons to enter and remain in

Hitler’s Government as Foreign Minister. Such reasons were similarly not

responsible for his acceptance of the post of Reich Protector. This is

already proved by the fact that he declined the donation which Hitler

intended to present to him on his seventieth birthday in 1943, but

finding this not practicable, he had this donation in his bank, as I

have proved on the basis of the letter from his bank—Document Book 5,

Documents Neurath-160 and 161—and did not touch one penny of it. And

how little the supposedly illustrious position of the Reich Protector

attracted or even suited him is clearly evident from his letter of 14

October 1939 to the witness Dr. Koepke—Document Book 5, Document

Neurath-150, in which he compares it to a prison.

In both cases, as has been proved not only by the defendant’s own

statements but also by the statements of all the witnesses and documents

which I have introduced, the motive or the reason for the acceptance of

and perseverance in his position was not, by any means, his approval of

the ideologies of the Nazi regime with all its methods and his wish to

support them, but, on the contrary, his high ethical and moral

convictions which sprang from his deep sense of responsibility, as a

human being and as a statesman, toward his people. Since he was not in

the position and had not the power to remove Hitler and the Nazi regime,

he considered it his duty, at least in a limited way within the compass

and limits of his power and in the sphere entrusted to his direction, to

fight the Nazi tendencies he despised and to prevent their

materialization as far as his own strength permitted. Can one, I ask,

really reproach Herr Von Neurath for doing this; can one condemn him,

because the task he had assumed with a sense of moral duty and a

consciousness of responsibility was beyond his strength, and he failed

in it?

May I ask you, Your Honors, to free yourselves of all juridical and

political prejudices, of the retrospective view of things with its

unreliable deductions, and to penetrate into the soul of this man—his

world of thoughts and his conception of life.

Brought up in a home inspired by Christian, humane, and respectable

ideas, and also by a sense of responsibility toward the German people,

he had grown up and reached the age of 60 in a civil service career

under the various governments—first under the imperial government, then

under the changing governments of the Republic. Without paying attention

to their political trends, without asking whether they were

conservative, democratic, or social democratic, he had served them, and

had carried out the tasks assigned to him in his sphere of work. As a

diplomat—as an official of the Reich’s Foreign Service—the field of

internal politics was completely remote to him. He considered it his

sole duty to serve his people as such, regardless of the government in

office and its inner political attitude.

And thus, much against his personal wishes, upon Hindenburg’s call in

the hour of distress, he took over the Foreign Ministry and thereby

entered the Government of the Reich and remained in it also after Hitler

was appointed, not as the representative of any particular political

party, but as Hindenburg’s special confidant in the field of foreign

politics. He was the guarantor of the Reich’s peace policy, the _rocher

de bronze_ in this field. His entire education, his sense of

responsibility toward his people, would not permit him to do anything

else than remain at his post after he had been drawn into the whirl and

dynamics of the National Socialist movement, and then necessarily saw

how this Movement was turning in a direction and making use of means

which he, too, could only condemn.

But just as their sense of responsibility and duty to their own people

had driven other respectable and patriotic Germans to the decision to

remove Hitler and the Nazi regime by force, so it was with the

defendant, whose sense of responsibility and duty, not only toward

himself but also toward his people, forced him to set aside his personal

abhorrence of the immorality of this regime and, by remaining in office

and continuing to conduct its affairs according to his own principles,

to fight actively against this immorality, and thus at least keep it

away from the department under his control and protect his German people

from this immorality of the Nazi regime and its consequences—namely,

war—as long as he was able to do this.

And then, a year and a half after his resignation, when the call came to

him again to accept a position—this time as Reich Protector of Bohemia

and Moravia—and Hitler declared to him that he had expressly selected

him for this position because he considered him the only suitable person

to carry out his intended policy of real reconciliation between the

Czech people and the new conditions and the German people, the very same

sense of duty and responsibility forced him to follow this call. For was

it not natural for him to deduce from the fact that Hitler—in spite of

knowing his opposition to the National Socialist regime, its policies

and methods—desired to entrust him with this task, that Hitler really

and honestly meant to effect a reconciliation and appeasement with the

Czech people? Here he was confronted with a task, the achievement of

which would not only be of the highest benefit to his own but also a

foreign people, a task which not only served for the reconciliation of

two nations but also for the ideal of humanity and Christian brotherly

love, as well as for the protection of the Czech people from the

pernicious methods of the Nazi regime.

And now I ask: Is it not at least just as moral and ethical to pledge

one’s self and one’s person for such a goal, to work actively—if only

to a limited extent—against this regime which one has recognized and

repudiated as immoral and corrupt through an apparent collaboration, if

only outwardly appearing as such, to prevent the use of the methods of

this system and thereby save innocent people from misery and death, as

it is to withdraw grumbling out of personal aversion and look on

inactively while this regime rages against humanity without restraint?

Not everyone has an aggressive character, is a revolutionary who can use

violence against the hated system and its leaders. And do not forget,

Your Honors, that at that time under Hitler’s autocratic regime there

were only these two possibilities to work really actively 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

independently elected parliaments. In Hitler Germany any form of active

or even public opposition only meant a completely useless sacrifice. And

therefore I beg you, Your Honors, 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

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 had

to realize that through no fault of his, he could not fulfill the task

connected with this office, that he did not have at his disposal the

necessary means for its accomplishment, but yet, in spite of all this,

continuing 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 Honors, I believe I have shown and proved by my preceding

statements that not a single one of the actions with which the

Prosecution have 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 High Tribunal, so 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 claim they did—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 crimes of war 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—his

participation in it from the very outset, which sanctions or will

sanction the preparatory or any other actions in this respect by the

remaining members for attaining this criminal aim.

But when, as the Prosecution are 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 the criminal aims, and

from this fact alone deduces a criminal coresponsibility on the part of

each individual, the consequence inexorably follows with compelling

logic that the application of the principle of coresponsibility 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

opposed 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 civilized nations on earth—but is also going to show

the way to universal peace to the coming generations, I need not prove

to you, Your Honors, 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 High Tribunal have to strive for

and are 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 generalization, and leveling, any treatment, and thus also any

judgment and conviction of people and of their activities only on the

basis of corporative—I could say, gregarious—concepts, and not on the

personality, the will, and the designs of the individual, is evil. Such

treatment denies the holiness 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 fulfill your double task—to punish

where chastisement should be applied according to divine and human law,

and, at the same time, to 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 holiness of the individual, whom the Lord once created in his

image.

Fully convinced of the truth of this conception, 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. HEINZ FRITZ (Counsel for Defendant Fritzsche): 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 close examination of legal

problems cannot be avoided. Above all, these problems arise from the

fact that Fritzsche was characterized by the Prosecution, in a

particularly striking manner, as an accomplice. However, at first I must

examine what position Fritzsche had in the Propaganda Ministry, and what

part he played in the 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

organizational 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 (Session

of 21 November 1945). Has this been done, and was the hearing of

evidence really able to prove that Fritzsche had greater importance?

At the session of 28 February 1946, Sir David Maxwell-Fyfe introduced as

evidence a “compilation of the elements of guilt” which, in a

particularly impressive manner, demonstrates in 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 on this table at all.

This follows from the fact that he does not belong to any of the

organizations which are to be declared criminal here.

A look at the organizational plan of the Propaganda Ministry, which was

submitted in Brief E by the Prosecution (Session of 23 January 1946),

also shows clearly that Fritzsche, even in his last position as

Ministerial Director and Chief of the Broadcasting Division, was only

one of 12 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,

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 Chief of the

Broadcasting Division by Goebbels, he did not obtain a higher position

in the civil service hierarchy as a result. His activity was purely

administrative. It concerned technical organizational questions. In his

affidavit of 7 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 other 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 (Session of 28 February 1946) 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 from the close connection of the individual

members of the organizations they must necessarily 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. They introduced

three protocols as evidence—namely, the interrogatories of the

witnesses Schörner (Document USSR-472), Voss (USSR-471), and Stahel

(USSR-473). But these documents cannot be considered as evidence. These

depositions were used only 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. On the

contrary, these depositions contain mere judgments, judgments which we

do not want to have from witnesses, especially not in a case where they

cannot furnish any kind of substantial facts. For this reason alone, any

value as evidence must be denied them. But aside from that aspect, they

represent completely wrong judgments. 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 judgments 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 these statements made by him which would have enabled the

Tribunal to form their own judgment. The transcripts of the

interrogations contain only the summarizing statement that Fritzsche was

Goebbels’ “deputy.” I confronted the witness Von Schirrmeister with this

assertion, and he termed it as 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 from their own knowledge. I can

state, therefore, that the attempt at magnifying Fritzsche’s positions,

contrary to the facts given in the organizational chart of the

Propaganda Ministry as submitted by Mr. Albrecht, is a complete failure.

Beyond that, the hearing of evidence had shown that Fritzsche was not

the creator of the great control apparatus for the German press, as was

furthermore claimed by the Prosecution (Session of 23 January 1946). 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, for years he had merely been an employee. Then he

became a consultant—Referent—and it was only since the winter of

1938-39 that he was one of the 12 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 his 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 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 offices. 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 that of the Reich Press

Chief, when he referred to an affidavit by Amann of 19 December 1945. He

pointed out that the holders of these positions exercised complete

control over the news service in Germany (Session of 11 January 1946;

Document 3501-PS). Fritzsche never held either one of those 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 they did in

other cases—for instance, in the case of the Defendant Göring—that

they could conclude a special responsibility from a high rank; that is,

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 agencies; he thereby modernized 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 theses which were championed by other

offices of the state propaganda apparatus and also within his own

Ministry. Still less can he answer for the unorganized 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 High Tribunal that the witness Von Schirrmeister testified to

the effect that even 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

unorganized 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 Stürmer_ banned—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 very 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 become evident 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

limited 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. Dr. Goebbels, one of the oldest and closest of Hitler’s

collaborators, and Dr. Dietrich, Hitler’s permanent escort—during the

war he was present almost uninterruptedly in his headquarters—never

allowed the leadership of the press and radio to be taken out of their

hands, especially by a man who, like Fritzsche, had no connections of

any kind with Hitler and had not even had a single conference with him.

Ultimately, Hitler’s will was decisive here, too.

We have furthermore heard the influence—it is of no importance here

whether it was due to Hitler, Goebbels, or Dietrich—which other

governmental agencies successfully exercised on the press and radio.

Here I will mention the Foreign Office, the High Command of the Armed

Forces, and other ministries, the heads of which were much more closely

connected with the three afore-mentioned personages than, for instance,

Fritzsche.

In order to avoid a misunderstanding, I would like to point out that the

assertion of the Indictment that Fritzsche was in some way closely

connected with the Party propaganda apparatus, for instance, with the

so-called Reich Press Agency of the NSDAP, or the radio department of

the Party, has been positively withdrawn by the Prosecution in the

course of the Trial. With this, I think that I have sufficiently

established the limits of the defendant’s responsibility. This

limitation shows the inaccuracy of the widely spread opinion that

Fritzsche occupied a very important and influential position in the

“gigantic propaganda apparatus” of the Third Reich. This limitation not

only takes into account the legal but also the moral facts, which have

been clearly indicated by the hearing of evidence.

Thus to a certain extent I have already taken a stand against the charge

that Fritzsche was a member of the alleged conspiracy. The Prosecution

have repeatedly tried to incorporate Fritzsche’s work, at its different

stages, in the alleged group of conspirators, and have drawn from it

conclusions which go so far as to say that Fritzsche was therefore also

responsible for War Crimes, for Crimes against Humanity, and even for

Crimes against Peace (Session of 23 January 1946). Even in the arguments

of the Indictment, these attempts seemed to have little relevant

justification.

It is hardly any improper criticism if I declare here that it caused the

Prosecution a certain embarrassment to display Fritzsche’s subordinate

position as an official as so important and full of meaning. Today, now

that the hearing of evidence is complete, it seems to me that the

attempts to include Fritzsche in the circle of conspirators have failed.

Fritzsche cannot be found at any of the sessions at which Hitler

discussed any plans or actions with the closer or wider circle of his

collaborators. And apart from this, he never actually took part either

in any discussions which might have been of a nature to plunge the world

into the blood bath of wars of aggression. He was neither an “old Party

fighter,” nor was he decorated later on with the Golden Party Badge. He

did not belong, as I had to emphasize especially, to any of the

organizations which are here alleged to be criminal. Up to the end he

fulfilled the functions of an official in a ministry and received

directives like any other official. He could never have been a political

adviser.

In view of the circumstances, the bridge between himself and the alleged

conspiracy could have been spanned only by the person of Dr. Goebbels.

The witness Von Schirrmeister has repudiated such an assumption.

According to his testimony, Fritzsche did not even belong to the closer

circle around Dr. Goebbels. Indeed, Von Schirrmeister could even state

that Fritzsche often had to apply to him because he could not get Dr.

Goebbels’ opinion on some question other than through him, as he was Dr.

Goebbels’ personal press assistant. Communicating through the state

secretaries—for instance, Dr. Dietrich, Dr. Naumann, to mention only a

few—also involved certain difficulties. That is not the manner in which

conspirators usually communicate. Moreover, the witness Von

Schirrmeister has said that it was out of the question that Fritzsche

could even have embarked on an exchange of ideas with Dr. Goebbels with

a view to forming plans. Now, it would have been the task of the

Prosecution to prove to the Defendant Fritzsche where his participation

in the conspiracy can be seen. I say that one cannot consider any count

of the Indictment as proved.

I think that it was not Fritzsche’s official positions at all which led

to the bringing of an indictment against him. I rather assume that the

latter is solely to be traced back to his broadcast speeches which made

him and his name known—but only during the war—both in Germany and

perhaps also in a part of the rest of the world. All the serious charges

leveled against him can be traced back only to these radio addresses.

The other assertions concerning his position within the state or Party

apparatus are only based on assumptions or combinations without any

factual basis, which is especially evident, for example, from the purely

personal and refuted statements of Schörner, Voss, and Stahel. But his

name became so well-known only because of the technical means he

utilized. Only the great significance of the radio for the modern

transmission of news made him appear in a special light. It cannot be

denied that in this way he had a great influence on the German people,

but from our own experiences of Nazi-ruled Germany, I can well say that

every Gau speaker (Gauredner) and many a district leader (Kreisleiter)

used much stronger language. But, as a rule, their speeches were

published only by the local press.

The defense was handicapped with respect to these radio addresses

insofar as the complete text of all of them could not be made available.

Unfortunately, the excerpts quoted during cross-examination by the

Russian Prosecution could not be supplemented by the entire text of the

respective speech; thus there was no possibility of reproducing the

sense which the respective address had at the time of delivery. I shall

come back to this and give an example later. To submit only single

passages or quotations to the Tribunal is especially inadequate, because

such excerpts do not show that in his speeches Fritzsche always put the

events of the day in the foreground. It was only rarely and incidentally

that he drew any general ideological conclusions. But even what

Fritzsche has said here about those of his addresses which the

Prosecution were able to produce in their entirety shows a completely

different picture of the cause and motives of his broadcast speeches.

From 1932—that is, already before the seizure of power by National

Socialism—up to 1939, these speeches were nothing but a political press

review. And that is what they were called. They were therefore a

collection of quotations from domestic and foreign newspapers.

Fritzsche does not dispute the fact that these collections were made on

the basis of the interests of the National Socialist State. Only during

the war—but right up to the end they were still based on quotations

also from the foreign press—did these speeches become the platform for

the polemical controversy which in time of war is naturally carried on

from both sides. Without any doubt, they greatly contributed toward the

formation of political opinion in Germany; but there is also no doubt

that many people in Germany listened to Fritzsche’s speeches not for

their polemics but in order to learn from his quotations at least

something about the opinions expressed abroad. For years these speeches

constituted purely private work carried out alongside his official

position. Only during the war did they come to be considered as

semiofficial because of their increasing political news value. Thus—to

make it clearer—they assumed approximately the character of editorials

in a newspaper which, as one says, is closely connected with the

government. It would have been easy for the defense to submit to the

Tribunal tons of newspapers dating from the same time, the editorials of

which showed the same trend, and even—this can be said quite

definitely—used considerably stronger language.

Fritzsche has been able to repudiate most decidedly—and in my opinion

quite rightfully—that these addresses constituted an incitement to race

hatred, to murder or violence, to hatred among nations, or to wars of

aggression. If such an effect could really have been produced by these

speeches, absolutely the same reproach should fall upon any editor of

the Third Reich who received the “daily directives” from the Reich Press

Chief. Fritzsche seems to be accused before this Tribunal only because

through technical means he could be heard over a wide range. But it is,

especially in wartime—and only since 1939 did his speeches have a

political news value at all—in the nature of things, that the

controversialist becomes himself the subject of controversy, especially

the one whose influence, considered from the standpoint of political

news value, extended further technically than the influence of an

article in a local paper. Only in this manner did his name become better

known to outsiders than names of people who were much more powerful than

the publicist.

How far the Prosecution went in their accusations against Fritzsche in

his capacity of a publicist is shown by the fact that not only is he

supposed to have belonged to the plotting group of conspirators, but

that he is also accused of Crimes against Peace. If a propagandist is

subjected to such an accusation, there immediately arises the question

whether public radio speeches would not be the least proper means for

carrying through criminal aims of a secret conspiracy. Speeches, which

can be heard all over the world, could at best be suitable for

camouflaging such aims and for misleading the world. But actually, just

the opposite reproach is leveled against Fritzsche: he is supposed to

have incited other people.

I think I have now dealt at sufficient length with the nature and the

character of these speeches. Their importance had to be adjusted to the

proper scale in view of the far-reaching conclusions of the Prosecution.

Before going into the details of the charge that by radio speeches, or

by other means, Fritzsche contributed toward the various wars of

aggression, it is necessary, in a case in which accusations to that

effect pertaining to criminal or international law are raised against a

publicist, to deal with a legal problem. At no point, as far as I can

see, did the Prosecution consider the question of whether and to what

extent propaganda—that is, the attempt to influence minds—especially

during war, was or still is subject to the rules of international law.

Perhaps the problem did not come up only because this question, once it

was asked, would have had to be definitely denied. While it is true that

the Indictment speaks of the “gigantic propaganda apparatus” during

Hitler’s dictatorship, which was created as a consequence of the

supervision and control of all cultural activity, it does not draw any

conclusions for a judgment according to international law. For, as a

matter of fact, no generally or specially valid rules concerning this

field have ever been established, no sort of prescriptive law developed

in this sphere either.

In this connection, it is interesting that in the textbooks of

international law no attention at all—as far as I could find out—is

paid to this problem. A certain number of textbooks, however, especially

those with a tint of natural law, regularly contain in their catalogs of

fundamental international law a section on national honor or national

dignity. These chapters deduce from the equality of nations, and their

living together in a community governed by international law, the demand

that the nations treat each other with respect. And they furthermore

demand that insults directed against other countries by private persons

from their own sphere of influence be prevented, and that if committed,

such excesses be punished. But this idea found its positive legal

expression only in a number of national criminal codes in

which—naturally in peacetime only—the insulting of foreign chiefs of

state, for instance,[1] is made a punishable offense. Another doctrine,

which is based less upon natural law, holds that this is not a question

of legal obligation but one of international courtesy only. Be that as

it may, an international law precisely defined in some way does not

exist, not even for times of peace, especially not as far as private

propaganda through press and writings is concerned. And as to war, any

directive in this respect is lacking altogether as I have already

pointed out. According to existing rules of international law there are

no limits to propaganda against foreign countries in time of war.

Consequently, there is only one barrier to this propaganda—namely, the

great barrier which governs all the rules of warfare that everything is

permitted _quod ad finem belli necessarium est_.

-----

[1] Crimes Against Foreign Countries, _Swiss Gazette for Penal Law

(Schweizer Zeitschrift für das Strafrecht_) 1928, Page 317.

-----

In view of the tremendous importance of psychological influence upon the

will of individuals and nations, it is beyond doubt that propaganda can

be an important and, in certain cases, even decisive means of war, no

less important than, for instance, economic warfare or even warfare with

weapons. Propaganda in this case has a double task: First, to serve as a

means for increasing the power of resistance of one’s own nation, and

second, to undermine the fighting powers of the opponent. This

influence—whitewashing on one side, slandering on the other,

concealment of facts, _et cetera_—is essentially nothing else but a

stratagem which, within the framework of the rules of land warfare, has

been expressly declared as a permissible instrument of warfare,

according to Article 24 of the Hague Rules of Land Warfare. In this

connection, it may be pointed out that spying—also a form of war

stratagem—had likewise been declared as a permissible instrument of

warfare by the Hague Rules of Land Warfare.

What has been said here is in complete accord with what is practiced by

all countries; defamation of the opponent and his statesmen, making the

opponent contemptible, falsifying the motives and intentions of the

enemy, slanderous assumptions, assertion of unproved statements—all

this belongs unfortunately to those means of propaganda which during a

war are used on all sides and at an increasing rate.

Minor attempts, but only for the purpose of preventing war, are known

from the time before the first World War. At that time, they had an even

farther-reaching aim—namely, to contribute in general to an

understanding among nations by means of a general moral and spiritual

disarmament (_désarmement moral_). However, this goal was not reached

before the first world conflagration of this century. After 1918 though,

as a reaction after the great armed conflicts, this aim received a

stronger uplift and became known to the world through the tasks imposed

upon the League of Nations in this respect. This was indeed the first

real attempt to start an intellectual disarmament. At the fifth session

of the League of Nations in 1925 in Paris it was decided to found an

institute for intellectual co-operation (_coopération intellectuelle_).

Further investigations, which lasted for years, resulted in numerous

proposals, in the establishment of general committees and subcommittees,

of sections and committees of experts with an incalculable wealth of

documents. But nevertheless none of these great efforts converted the

idealistic impulse and the longing of the nations for a “spiritual

disarmament” and intellectual co-operation into sober and concrete

legislation which would have imposed legal obligations on the individual

states as well as on their nations. No results were achieved in pointing

a way which in time of war would prevent hatred, incitement, distortion

of facts, and provocation of other nations or nationals of other

countries in all the possible modern forms of expression.

Even such well-defined and comprehensive propositions for a

moral-intellectual disarmament as those presented by the Polish

Government to the League of Nations in two memoranda of 17 September

1931[2] and 13 February 1932[3] had the same fate. These propositions

aimed at using national legislation to prohibit any propaganda which

might become dangerous for peace, and even any propaganda which aimed at

a mere disturbance of the good relations between nations. Influence was

to be exerted not only upon the big public news media but also upon the

vast ramifications in the administration of every modern state,

including even the revision of schoolbooks. These propositions which

advised member states not to recoil even from censorship and measures of

prohibition finally came to nought because they stood in direct

contradiction to the deeply rooted conception that freedom of expression

of opinion in intellectual matters could not be undermined by such

exceptionally far-reaching police measures; this freedom of expression

had to be preserved as an “inalienable right” granted by the Creator.

And this opposition on fundamental principles ended matters. We have in

the course of the Trial seen ample evidence of the effect which

censorship and control of the press, radio, and films may have.

-----

[2] Letter of the Polish Foreign Minister to the General Secretary of

the League of Nations. Official Number C. 602. M. 240. 1931. IX (Conf.

D. 16); also reproduced in Peter Dietz’ _Geistige Abrüstung_, Pages

137-143; Erlangen Library under the Number U 36/3564.

[3] Propositions of the Polish Delegation covering the progressive

achievement of moral disarmament. Official Number Conference D. 76;

reproduced also in Dietz, Pages 143-145.

-----

The few bilateral agreements which were concluded after the failure of

the Polish propositions of 1931 and 1932 are not worth mentioning here.

They are concerned with certain forms of propaganda only, and solely

with periods of good international relations. We can only express here

the hope, therefore, that on the basis of international solidarity it

will in the future be possible also to reconcile these two still

opposing theses on a higher level.

In the course of this Trial a secret order was produced which had been

issued by the High Command of the Armed Forces on 1 October 1938

(Document C-2). This document showed that the division for international

law in the OKW had drawn up a chart for the event of an armed conflict,

and this chart was to show the principles for dealing with any possible

violation of the rules of warfare by friend and foe. With the knowledge

of the legal vacuum existing in the field of propaganda in its broadest

sense, it is stated there that from the point of view of international

law it is absolutely permissible to make the opponent contemptible and

to try to undermine his strength “regardless of how many lies and

falsehoods are used for this purpose,” and that from the legal

standpoint a rule for the future could even be established to the effect

that if the enemy employed such propaganda, defense by means of

“counterattacks” would be legally possible, and whereby “naturally the

propagation of atrocity lies” must also be used. This may sound cynical

and brutal. But unfortunately it fitted in with the customs of war, or

rather, this undisguised statement originated in the legal lacuna which

could actually be found in international agreements and in prescriptive

law. Dr. Kranzbühler rightly stated here: In war the duty to tell the

truth does not exist.

Owing to the period of time which has elapsed since the first World War

and its propaganda methods on both sides, we can today consider the

events of those days as belonging to history. At that time, too, all

belligerents gave great consideration to their efforts to undermine the

enemy by means of propaganda. But the legend of children’s hands cut off

by German soldiers—a war lie, as Arthur Ponsonby proved in his book

_Falsehood in Wartime_[4]—was still alive in a French schoolbook even

in the midst of peace, nearly 10 years after the first World War.[5]

Publications of all belligerent countries—drawings and cartoons dating

from the time of the first World War alone—can be found in masses in

all libraries. Many will still remember the film _The Four Horsemen of

the Apocalypse_ which showed terrible atrocities, and circulated almost

throughout the whole world at the time of the first World War. Legally,

this matter had unfortunately to remain unsettled up to this point. In

view of the goal striven for by Justice Jackson in this Trial of

creating a new international law, can the case of the Defendant

Fritzsche as a publicist in the Nazi State be included retroactively?

Can the desire of the Prosecution to see Fritzsche punished as a war

criminal be derived from their assertion of a logical development of

existing laws (Sir Hartley Shawcross, Session of 4 December 1945, a. m.)

when up to now nothing, absolutely nothing, has been legally and

properly ruled upon in the field of propaganda, and no promising

beginnings of any kind have appeared in this direction? Here it is

certainly not a question of only an apparent legal loophole (Session of

4 December 1945).

-----

[4] Arthur Ponsonby, M.P., _Falsehood In Wartime_, containing an

assortment of lies circulated throughout the nations during the great

war, published In London by George Allen and Unwin Ltd., Museum Street,

1928.

[5] In a schoolbook for Lorraine: _Deuxième livre du syllabaire

Langlois_: (_Second book of the Langlois Primer_); which was still in

use in 1927, and which refers to these alleged events on Page 156 under

the heading “Remember”; reproduced in the _Informations_

d’_Alsace-Lorraine_ of 20 March 1927.

-----

What has been said, of course, does not include those cases in which

individual crimes were actually incited by means of propaganda.

Therefore, I shall now go into the individual charges of the Prosecution

in order to show that Fritzsche is not guilty of having committed such

acts.

As far as the alleged crime against peace is concerned, the Prosecution

act on the assumption that any important political and military attack

on the part of the German state leadership was preceded by a press

campaign. Therefore, the Nazi conspirators must have used the press also

as an instrument of foreign policy and as a feint to cover subsequent

aggressive action. From that general, perhaps even correct, description

of such intentions, the far-reaching conclusion is drawn that Fritzsche

may also be partly responsible for them. Such responsibility would be

based merely on the chronological circumstance that he was the Chief of

the German Press Division within the official Ministry of Propaganda

from December 1938 to the spring of 1942. But the premises are lacking

for this conclusion. It could only be justified if it had been

successfully proved that Fritzsche was the real creator and inspirer of

all those press campaigns. But Fritzsche, if only because of his

subordinate position—subordinate not only in regard to the departmental

organization but also compared with the real leaders of propaganda,

Hitler, Goebbels, Dietrich, and others—could know only what his

superior passed on to him—as well as to other civil servants—as the

historical truth.

May I bring to mind the fact that all witnesses who have testified in

any way about the influence of the foreign policy on the press always

pointed out that before beginning any political—and especially before

beginning any military—operation, the Foreign Office justified the

measures taken in the field of high policy before the public in White

Books prepared by them. Just as in the case of other intentions or goals

of the highest leaders of the Third Reich, the press, too, was informed

in these cases only of that which the general public was permitted to

learn, while matters not destined for publication were kept secret.

After hearing the evidence, what was the actual relation between the

propaganda furnished by Fritzsche and the various military invasions,

and what did he know of their background?

At the time of the occupation of Bohemia and Moravia, instructions were

given him by the Reich Press Chief only a short time before the decisive

step of 15 March 1939. These consisted, as in all other cases, of

so-called “daily directives” (Document Number 3469-PS) which were given

out at press conferences. Such daily directives thereby received

publication in the headlines of German papers. It may be mentioned here,

that the best known organ of the Party—namely, the _Völkischer

Beobachter_, due to its direct connection with the Reich Press Chief

and, during the war, with the Führer’s headquarters—was more

independent of such daily directives, considering that it had a foreign

news service of its own. What was printed in the _Völkischer Beobachter_

does not, therefore, represent what had been approved by Fritzsche as

leader of the German press. At that time, Fritzsche had already—and

this attitude is of greatest importance with regard to all of his

activities—established the principle for his press reports that untrue

news should never be given to the press. The apparent reason for that

was the fact that his predecessor in the German Press Division, Berndt,

had had all kinds of news spread during the Sudeten crisis, by which he

lost the confidence of German editors. Fritzsche, as well as the witness

Von Schirrmeister, gave details about these matters on the witness

stand.

It is not apparent in what respect Fritzsche played a greater part than

any other officials or officers when the German troops marched into

Czechoslovakia. Fritzsche knew just as little about what has been

disclosed in this Trial about Hitler’s secret intentions at that time as

he could have known about the Case Green plan. As head of the domestic

press, he could have exercised no influence whatsoever on the propaganda

possibilities which were to be made use of within Czechoslovakia proper

(Document Number 998-PS).

The same is true of the Polish campaign. Here too, Fritzsche did not

speak a single word in favor of any armed conflict, or deliberately

spread any stories which might have supported any bellicose intentions.

Even in his radio broadcast of 29 August 1939, which was held against

him during his cross-examination (Session of 28 June 1946, Document

USSR-493) he points out explicitly that there could not in fact exist

any serious doubt about the German desire for peace. These and many

other passages are particularly significant in proving Fritzsche’s good

faith. He has expressed here his and the German nation’s disappointment

that this desire for peace, which Hitler emphasized repeatedly, proved

to be a lie, even a fraud. If one examines the full text of all the

other broadcasts by Fritzsche shortly before and during the Polish

campaign, none of his statements can be interpreted as favoring that war

of aggression. The official reasons given at that time convinced

Fritzsche, as well as millions of other Germans, that right was on

Germany’s side. It was because Fritzsche had shared such a conviction,

at that time, that he declared here on the witness stand that he, too,

felt that he had been deceived by Hitler.

It was no different in the case of Yugoslavia. Here likewise, Fritzsche

was able to learn only what facts were given to him and the many editors

by the Reich Press Chief, facts which Fritzsche had no opportunity to

verify if only because of the speed with which these events were

developing, even if the thought could have struck him during the course

of events that maybe the press was being made use of to provoke warlike

measures.

The role of the press before the surprise attack on the Soviet Union was

made particularly clear during this Trial. For reasons of strategy alone

the entire propaganda machine—also including Fritzsche, as head of the

Home Press Division—was not permitted to know the slightest thing about

it in advance. It was especially this same campaign which Goebbels

cleverly kept secret by simulating an intended German invasion of

England. At that time, Goebbels deliberately led even his closest

assistants on that wrong track, as was stated here by the witness Von

Schirrmeister.

Fritzsche’s statement that he did not know anything about the secret

preparations through the formation of a so-called Eastern Ministry was

not refuted by the so-called Rosenberg report, which was read to him

during cross-examination (Document Number 1039-PS). This is a document

which has also played a part in other connections because of the many

names it contains. At the same time, it is the only document which

includes the name of Fritzsche in connection with any secret plans. From

that document, which according to established facts was drafted by

Rosenberg and some of his associates sometime around 28 or 29 June

1941—thus, after the start of the campaign—it is impossible to draw

the conclusion that Rosenberg spoke with the Defendant Fritzsche before

the decisive date. The draft does not bear any date or signature.

Besides, Fritzsche is mentioned in it by the title of Ministerial

Director which he was not given until the fall of 1942. This does not in

any way appear to disprove Fritzsche’s statement on the witness stand

that he never had been informed by Rosenberg either about an impending

war with the Soviet Union or about the intended formation of an Eastern

Ministry. Not until after the beginning of that campaign, and after the

official announcement that a new Ministry had been established, were

Rosenberg’s wishes with regard to the treatment of Eastern problems in

the German press forwarded to him by the former’s assistants.

Thus Fritzsche’s deposition still holds, that in the case of the war

against the Soviet Union, just as in the other cases, he did not learn

anything until the moment when he was given the pertinent news for

publication. You will grant that this does not permit the conclusion

that he played the role of a conspirator who helped draw up the general

plan, or at least knew of it. And it cannot properly be assumed that

Fritzsche knew anything about the plans of the High Command of the Armed

Forces in June 1941 (Document C-26), or even of the Bormann Protocol of

16 July 1941 (Document L-221)—both of which were submitted to him

during his cross-examination. These negotiations show that actually they

could have taken place only in the innermost circle. Moreover, the

evidence which did not concern Fritzsche directly has shown that even

military methods of deception had been used to conceal the plans. This

has been stated by the witness Paulus and becomes clear from the report

of the German military intelligence service (Document 1229-PS). The

nature of all these things was such that they could well be withheld

from a newspaper man. Even the witness Gisevius, who after all was

always engaged in ferreting out secret ends, had to point out how much

effort was required even within the High Command of the Armed Forces to

obtain information, at any time, as to whether Hitler was planning a war

or not (Session of 25 April 1946).

Accordingly, I can state in conclusion that the emphatic assertion of

the Prosecution that Fritzsche as Goebbels’ accomplice helped the latter

to plunge the world into a blood bath of wars of aggression (Session of

23 January 1946) is not justified. During my examination of Fritzsche he

pointed out, in contrast to this, that whatever the facts may have been

in individual cases, at every moment, from the advance into Austria to

the invasion of Russia, he and the German public were given only such

information as seemed to justify the necessity of the German actions.

Now, one could also conceive the charge of a crime against peace to be

that Fritzsche constantly called on the German people to hold out during

the conduct of a war of aggression. Naturally he did not spread any

defeatist propaganda in the course of his radio speeches. I must,

therefore, discuss the question whether this, or any sort of

participation in a war of aggression, after the latter had broken out,

should be considered as participation in the crime against peace and

should be punished accordingly.

The French Chief Prosecutor, M. de Menthon, tried to draw the

conclusion—proceeding from a literal interpretation of Article 6,

Paragraph 2 (a) of the Charter, without regard for the real meaning of

this article—that the soldiers and other agents of the aggressor state

could not undertake any military operations at all which could be

justified by international law. However, he was obviously compelled to

recognize that in practice this idea must lead to impossible

consequences. Thus, for example, he recognized the Hague Convention for

the Rules of Land Warfare as a law which not only obligates aggressor

and attacked nations alike, but also gives them rights. He thereby let

it be clearly recognized by implication that, in his opinion, this

stipulation of the Charter is to be interpreted restrictively.

In Article 6, Paragraph 2 (a) of the Charter the following are defined

as Crimes against Peace: “The plan, the preparation, the introduction,

and”—according to the German translation “Durchführung”—“waging of a

war of aggression.” “Durchführung” is the translation of the English

word “waging.” It would probably be more correct to translate it by

“unternehmen” (undertaking). But in its natural sense, “unternehmen”

means about the same as “beabsichtigen” (intending); whoever undertakes,

pursues, intends something, has not executed it yet. The word

“durchführen” could create the opinion that the crime against peace was

not concluded with the outbreak of war, and therefore could extend over

its entire duration. The result of this conception would be that all

persons who participated in war operations, as, for instance, the Army

leaders, all members of the Armed Forces, and, besides that, all persons

who supported the war in any way—even by deliveries of war material and

through radio broadcasts—would be punishable according to this

stipulation. They had thereby at least contributed support to the waging

of war. These persons could even be criminals against the peace, if they

had in no way participated in the planning or preparation of it before

the outbreak of the war, and even if they had no idea that any

aggression was involved.

In reply to this, the following must be stated: Only those persons can

be considered as waging a war of aggression who planned it themselves.

They were just carrying out their common plan by starting the war, with

or without a declaration of war. Thus “carrying out” is to be placed on

the same level as “beginning.” The accusation of a crime against peace

can affect only those who also planned it. This is supported by the

following reasons. The punishment is intended to protect the peace

against wars of aggression—that is, against unlawful wars. At the

moment that such unlawful wars start—are “unleashed,” as the Indictment

puts it—the rightful domain of peace has been violated; the crime

against peace is consummated and accomplished. Therefore, no other

meaning but “bring about,” “proceed to execute the plan,” can be

attributed to the term “carry out,” or “undertake”—“waging.”

This interpretation is also consonant with the historical development of

the concept of “crime against the peace” in international law. For years

international law has made a distinction between war crime in the

narrower sense and war guilt in the broader sense. War crimes are

offenses against the rules of warfare, which have been established by

agreement or custom, against the customs of war and, going further, also

offenses against humanity. War guilt means being guilty of having

brought about war, in particular an unjustified war of aggression.

This distinction also made its appearance during the negotiations about

the peace treaty after the first World War. This has found expression in

Article 227 _et sequentes_ of the Treaty of Versailles. There can be no

doubt that the concept of a crime against the peace within the meaning

of the Charter is intended to be the same as this war guilt in its

previous sense in international law. Article 6, Paragraph 2 (a) is

supposed to refer to war criminals—that is to say, those who bring

about an unlawful war.

The view that the subsequent support of a criminally instigated war was

likewise a crime against peace necessarily led to entirely untenable

consequences. In such a case, hardly one citizen of a country which had

started a war of aggression would be guiltless. In its present-day form,

war is no longer, as in former times, limited to an armed conflict

between the armies. Just as both World Wars have shown, it has been

extended to include the belligerent nations in their entirety and all

their spheres of life. It has grown into total war—total in the sense

that everybody participates in it. Even the woman who is making screws

in a factory is a participant in this total war. And, as Professor Exner

so vividly explained in his final speech, in a war of aggression every

capture of prisoners would mean a deprivation of liberty, every

requisition a robbery, and every shot a murder. To want to make all

members of a nation responsible as authors of crimes against peace would

be absurd. Moreover, a classification as to the kind and degree of a

person’s contribution toward a war which had broken out would be

impossible as a practical matter.

Crimes against Peace, therefore, can only be committed by those who

participated in breaking the peace—while the vast majority who did not

participate in it could not be counted in this category.

The point of view which has been developed here is, in my opinion, also

represented in the Indictment. The latter views the crime of breaking

the peace as realized by the act of “unleashing” (Entfesselung). In no

place has it even been hinted that the crime itself, or its

continuation, is seen to consist in the participation in a war or in

supporting it by furnishing services or supplies of any kind. Even

according to the phrasing of the Indictment, from the moment of the

beginning of war onward, only crimes of the second and third group come

into question—that is to say, War Crimes in the narrower sense of

international law, and Crimes against Humanity.

In my opinion, Justice Jackson in his opening speech of 21 November 1945

also adopted the point of view which has been advanced here, whereupon

Justice Biddle pointed out to him in the session of 1 March 1946 that,

at that time, he had indicated that beginning the war was the essence of

the crime and not actual waging of the war. That means, in other words,

that with the beginning of the war of aggression, the Crime against

Peace within the meaning of Article 6, Paragraph 2 (a) of the Charter,

was consummated (breach of peace).

From these statements it follows that any activity in furtherance of the

war during the war cannot represent any criminal act, nor can

Fritzsche’s radio broadcasts which he made during the war.

THE PRESIDENT: The Tribunal will adjourn now.

[_The Tribunal adjourned until 25 July 1946 at 1000 hours._]

ONE HUNDRED

AND EIGHTY-SIXTH DAY

Thursday, 25 July 1946

_Morning Session_

THE PRESIDENT: The Tribunal will sit on now until 1 o’clock without any

interruption.

I have an announcement to make.

When counsel for the Defendant Hess first made his argument, the

Tribunal directed that he should rewrite it and submit it for the

Tribunal’s consideration, as he had continually disregarded the

Tribunal’s directives that the alleged unfairness of the Versailles

Treaty should not be argued.

The argument as now rewritten by Dr. Seidl has been carefully considered

by the Tribunal. It still contains many allusions to the unfairness of

the Versailles Treaty, irrelevant material, quotations not authorized by

the Tribunal, and other matters which have nothing to do with the issues

before the Tribunal. The Tribunal have, therefore, deleted the

objectionable passages and have directed the General Secretary to hand a

marked copy containing the deletions to Dr. Seidl.

That is all.

The Tribunal direct Dr. Seidl to get in touch with the General

Secretary’s representative. He will then see the passages which the

Tribunal consider objectionable.

Now, Dr. Fritz.

DR. FRITZ: Mr. President, Gentlemen of the Tribunal: Yesterday afternoon

I concluded my statement in response to the charge that the Defendant

Fritzsche was guilty of a crime against peace.

The next group of accusations leveled against the defendant is, for

instance, characterized by such terms as incitement against Jews,

incitement against foreign nations, instigating the exploitation of

occupied territories, propaganda for the master race.

On the witness stand, Fritzsche made a declaration which represents a

summary of the knowledge he gained after the collapse and, above all,

here in Court. It ran as follows: An ideology in whose name 5 million

people were murdered must not be permitted to survive such a record.

Now, to what extent did Fritzsche make propaganda for this

anti-Semitism? Could he, by doing so, foresee the murder? Did he approve

of it or at least accept it as inevitable? The Prosecution went very far

in their assertions. They imputed that Streicher, as “the chief Jew

baiter of all times,” could hardly have surpassed Fritzsche in his

defamation of Jews. Fritzsche defended himself against this accusation,

and rightfully in my opinion. A mere comparison of the slogans from the

“arsenal of anti-Semitism,” which Sir Griffith-Jones read for hours from

excerpts from _Der Stürmer_ at the session of 10 January 1946, with

Fritzsche’s statements submitted here by the Prosecution, shows this

very clearly. Fritzsche, supported by the affidavit of Scharping, dated

17 May 1946 (Document Number Fritzsche-2), was able to point out what

actions he undertook against this paper. It must also be noted here that

the language and arguments of Der Stürmer found no echo in any German

newspaper or at a single broadcasting station even of the National

Socialist regime.

Before the war Fritzsche carried on no anti-Semitic propaganda of any

kind. All utterances and statements of his submitted by the Prosecution

originated during the war. They are, however, not directed against the

Jews as a people or as a race, but are related only to the question of

the origin of the war. They were merely casual, polemical remarks on the

Jewish question in the propaganda battle which was fought in this war

alongside the battle of arms. This explains the fact that the radio

addresses submitted by the Prosecution never contain more than casual

remarks, and never speak of the Jews alone. Every one of his radio

speeches may be examined in this respect. Nor does there exist a speech

by him which dealt exclusively with the so-called Jewish problem. He

never undertook to talk on such a subject. Fritzsche always spoke, at

the same time, of “plutocrats,” “bolshevists,” “democrats,” and used

other such phrases by means of which the propaganda of the Third Reich

felt obliged to conduct its fight. During his interrogation he dealt in

detail with each of the radio addresses submitted in the Trial and

discussed the reason he had each time for making his merely incidental

remarks on this subject. An examination of all of his statements over

the radio would show that of all the fundamental propaganda subjects of

Nazi ideology, Fritzsche mentioned and advocated anti-Semitism least of

all. This takes all foundation from the conclusion of the Prosecution.

For there cannot be any connection between such occasional remarks on

the part of Fritzsche and the murder order given by Hitler. I therefore

expressly protest against the accusation that Fritzsche be considered

more guilty than those men who carried out the shootings (Session of 23

January 1946).

In the course of this Trial we have heard much testimony as to what

secret and ultrasecret means and methods were used by the really guilty

ones to carry out this horrible murder. So many statements cannot be put

aside as irrelevant and unreliable. In contrast with former assumptions,

this Trial should have made it clear that there existed only a small

group of instigators and abettors. It has not been proved, in the least,

that a man like Fritzsche belonged to this closest circle of Hitler’s

despotism. The Trial has even shown that he made the acquaintance of the

majority of his codefendants only here in the dock. To draw such

far-reaching conclusions against Fritzsche would necessarily lead to the

assumption that everybody who took a public stand for anti-Semitism as

such—if only with reservations—bears the same criminal guilt. The

extent of the moral guilt is much greater. But we are concerned with it

only insofar as the moral guilt is identical with the criminal guilt.

And, therefore, there is no need to discuss here how far a mere

error—even a political one—may at the same time become immoral. The

accusation, however, of being coresponsible for these murders, was an

especially deep blow to Fritzsche.

With regard to this it might be objected that, although Fritzsche did

not maintain very close relations with his chief Goebbels and the other

heads of the news service, he was yet one of those persons who had

access to the foreign press and radio news. This is perhaps the reason

why Fritzsche is accused of having had knowledge of almost everything

that happened during Hitler’s rule. Fritzsche was able to state in the

witness stand, while giving many details, that even with this

opportunity his good faith was not shaken in the decisive—perhaps also

moral—questions. Just as little as his profession as journalist gave

him the opportunity to follow rumors up on his own, just so little in

this way would he realize what was actually happening. The barriers

which had been erected around the misdeeds, however, could not be broken

down by him through these means.

With regard to foreign reports on atrocities and other misdeeds,

Fritzsche, as well as Von Schirrmeister and, especially, Dr. Scharping,

have stated that the examination by the office “Schnelldienst”—express

news service—which was carried out in all cases, resulted time and

again in official replies which eliminated doubts as to the inaccuracy

of such statements from abroad. This office, the “Deutscher

Schnelldienst”—German news speed service—which had an entirely

different significance from that claimed by the Prosecution, was a

control agency created especially by Fritzsche in order to have foreign

news tested as to the truth of its contents through inquiry at the

competent German official agencies. If the Defense had succeeded in

submitting the records of this “Schnelldienst” to the Tribunal,

documentary evidence could have been offered in every detail for the way

in which German authorities answered inquiries of this kind. For

instance, the Reich Security Main Office knew in a masterly and

deceptive way how to make its replies sound credible. The foreign

propaganda which was to serve a definite purpose could in comparison lay

no claim to a greater power of persuasion—this all the more since the

enemy propaganda in wartime also brought, of course, really incorrect

reports, of which fact Fritzsche often felt quite convinced.

Furthermore, Fritzsche has been accused of advocating the doctrine of

the master race. The only statement by Fritzsche himself which the

Prosecution submitted in regard to this point shows clearly that

Fritzsche neither championed nor promoted such an idea; that, on the

contrary, he expressly rejected it. An examination of the quotation

presented by the Prosecution does not leave any doubt about it. Beyond

what the hearing of evidence—the witness Von Schirrmeister and the

affidavit of Dr. Scharping—has shown as to how Fritzsche prohibited the

use of the words master race for press and radio altogether, Fritzsche

himself under oath termed this accusation nonsensical. Therefore, after

thorough examination of all obtainable speeches by Fritzsche, I can only

state that this charge is untrue. Nothing is changed in regard to this

statement by the fact that Voss and Stahel (Documents USSR-471 and 473)

judged differently without giving any concrete facts. I have already

dealt with the value of those documents as evidence.

Fritzsche allegedly stirred up hatred against foreign peoples. To prove

this serious charge the Prosecution emphasized several excerpts from two

of Fritzsche’s radio addresses, which were held on 5 and 10 July 1941.

In order to be able to understand correctly the circumstances underlying

the speeches, one must take into consideration the dates on which they

were held. They were made shortly after the attack on the Soviet Union.

He is not charged with any further statements—made, for instance, at a

later time—or similar ones which might lead one to suppose some

systematic line of thought. When the passages cited by the Prosecution

were supplemented by the full text of the speeches, and by the

examination of Fritzsche on the witness stand, it was shown that

Fritzsche did not slander the peoples of the Soviet Union. Neither could

what had led up to these speeches have given him any reason to stir up

hatred against that country. They were held shortly after German

sources, and in particular war correspondents, had reported atrocities

in towns in Galicia which had been conquered by German troops. These

were things which were reported everywhere in Germany—and also by

foreign correspondents—in print, pictures, and motion pictures. In this

respect, there was an especially great volume of material, and in his

speeches Fritzsche expressly referred to it. Fritzsche’s statements

reflect the agitation of the German public over these reports, and he

pointed to those presumed to be guilty of the atrocities. The facts, as

such, were also confirmed by the Russians. The latter added, however,

that not the Russians but the Germans were guilty of these actions. What

happened was only that, on the basis of undeniable facts, a controversy

had flared up as to the responsibility—just as happened later in the

famous case of Katyn—in which both sides morally condemned the

instigators.

In neither of those speeches, as an examination of their entire contents

would reveal, did Fritzsche designate entire nations as inferior or

subhuman. His phrases about subhumanity referred only to those culprits

whom in real indignation he pilloried as morally contemptible. He found

it reasonable to believe the proofs presented by the Germans, and,

therefore, there is no reason to assume that, at the time he held the

speeches, he could have predicted what actually was to happen in the

East much later. Therefore, there could not have existed any intention

on his part to stir up his audience to engage in similar actions. It is

impossible to establish any causative connection on the basis of two

such words he had once spoken.

The same is true of the excerpts from a speech of 29 August 1939, which

General Rudenko read to him during his cross-examination (Document

USSR-493). That broadcast also refers to atrocities committed shortly

before the outbreak of the war in Bromberg, and concerning which, on the

day of the speech—that being the reason for it—an official _White

Book_ had been published. It contained a short account of the results of

an investigation of those atrocities. Only the guilty ones were

designated by Fritzsche as inferior human beings. But it is not

justifiable today to generalize this opinion to such an extent, as if he

had designated the entire Polish nation as inferior. Fritzsche

considered the representation in the official _White Book_ as correct.

He could not have doubted the fact that Poles had killed Germans.

However, no word in that speech allows for the conclusion to be drawn

that he envisaged the possibility or even suggested that the Slavic

nations be exterminated. Fritzsche no more than the German people could

imagine anything like it at that time.

General Rudenko attempted in his cross-examination to prove that my

client had made false statements. For that purpose an excerpt from his

broadcast of 2 May 1940 was presented to him (Document USSR-496, Session

of 28 June 1946). This is the example I mentioned before as proof of the

insufficiency of such evidence in general. In it Fritzsche gives a

description of the towns, villages, and hamlets in Norway which he had

visited shortly before, and which had been spared by the war. The

Russian prosecutor pointed to the official report of the Norwegian

Government (Document 1800-PS) enumerating the damages caused by the war.

Thus the impression was created that Fritzsche had lied to his audience.

The full contents of that speech show, however, that the quoted

sentences regarding undamaged houses in Norway stand directly next to

other sentences in which Fritzsche himself depicts the destruction

caused by the fighting in Norway. The speech does not contain a lie if

Fritzsche reported in it that in other parts of the country he visited

not the slightest trace of fighting was found. His description,

therefore, is not in the slightest contradiction to the Norwegian

Government report.

At this point, I should like to insert a few remarks about the case of

the _Athenia_, and the part that Fritzsche played in this connection.

This case shows to what extent Fritzsche was at pains not to retransmit

reports until they were proved to be true and reliable. But it shows,

also, how dependent Fritzsche was on the version of the official German

offices. This is evidence of his good faith; for it seemed natural to

him, and he took it for granted, that official announcements were to be

accepted without questioning, and this conviction could not, at that

time, be shaken.

That particular article in the _Völkischer Beobachter_, dated 23 October

1939, has been rightly described in this Trial by all parties as

contemptible. Now, Fritzsche also engaged in polemics on this point in

sharp although not similar terms. I take the liberty of pointing out

that such remarks could be morally condemned only if Fritzsche had known

beforehand that it was actually a German submarine which sank the

_Athenia_, but, as he has testified under oath, this fact first became

known to Fritzsche here in Nuremberg, in December 1945. Up until then,

he was the very person from whom this decisive circumstance was withheld

although he had, through the naval liaison officer, undertaken

investigations at the High Command of the Navy, and other official

offices within the Ministry of Propaganda, concerning the assertions

made in foreign reports.

To support the charge that Fritzsche instigated the ruthless pillage of

the occupied territories (Session of 23 January 1946), the only evidence

submitted is a statement made on 9 October 1941. In this, a passage from

a public speech made by Hitler a few days before is reproduced. I have

taken the greatest pains to find any instigation for the ruthless

pillage of occupied territories in this quotation, or in the remarks

made by Fritzsche about it in his radio address. It is impossible for me

to see how any one sentence can possibly convey anything to this effect.

I can only assume that it is a case of a misunderstanding and leave it

for the Tribunal to judge. In no other connection has Fritzsche spoken a

word or given a hint to this effect and, least of all, openly called for

such a thing. Moreover, it is to be gathered from Dr. Scharping’s

affidavit, dated 17 May 1946 (Document Fritzsche-2), that the use of any

kind of coercive means against other nations would have run counter to

the purpose of his whole work, including that within the Ministry of

Propaganda—namely, to gain the voluntary co-operation of the European

peoples.

It has also not been proved that Fritzsche really knew about the manner

in which foreign workers were actually recruited. I would point out that

the Defendant Sauckel stated that he had only one brief and unofficial

talk with Fritzsche, and that in the beginning of 1945. In his affidavit

Fritzsche further gave exhaustive details on the fact that he obtained

extensive material from competent authorities to be brought to the

attention of the German public, and in which the voluntary character of

the recruitment of workers for employment in Germany was continually

pointed out. It is not to be assumed that any information concerning

this was given to the Ministry of Propaganda other than that provided by

Sauckel in his report to Hitler (Document 407-PS).

Moreover nothing has proved that Fritzsche approved, or even used for

propaganda purposes, the violations of international law already

committed or intended, such as the so-called Commissar Order, or the

lynching of enemy aviators who had been brought down. With regard to the

Commissar Order, the Russian Prosecution charged that the defendant, as

a soldier, a member of the 6th Army, received knowledge of this decree.

This has been confirmed by Fritzsche. He could, however, point out that

his attitude had not only been passive; he even, and this must be said,

took a successful stand against this by way of proposals to his

commander-in-chief, the witness Paulus (Session of 12 February 1946).

General Rudenko’s charge that in spite of this he remained in Hitler’s

service—although he should at least have assumed that Hitler was the

author of such an order contrary to international law—is not a reason

for accusing Fritzsche as a propagandist, or even as far as his ethics

are concerned. Gentlemen, if such an accusation with a criminal legal

foundation could be made, it would affect every German soldier who

fought on for his fatherland in the East after the autumn of 1942.

Fritzsche also protested against the fact that Allied fliers were to be

treated contrary to international law. When he learned this, he

spontaneously refused any propagandistic activity for Goebbels in this

respect. These facts have been definitely ascertained through thorough

examination of him on this subject and through Dr. Scharping’s affidavit

(Document Number Fritzsche-3).

Furthermore, no charges can be made from what he said in his radio

speeches, about the use of new weapons and the Werewolf movement with

which he has been charged by the Russian Prosecution on

cross-examination (Document USSR-496). I can be spared mentioning

particulars in this connection because Fritzsche testified in detail.

The speech of 7 April 1945 (Document USSR-496), with which he is

reproached, does not in the least glorify forms of warfare contrary to

international law. It rather attempted to find a psychological reason or

excuse for the active participation of civilians in the fighting toward

the end of the war by referring to the suffering of the German people

through the effective air warfare of the Allies.

I still have one point of the evidence to refer to. General Rudenko

submitted to Fritzsche a short document at the end of his

cross-examination (Document USSR-484). It is a copy of a short message,

signed by Fritzsche, dated 19 October 1944, addressed to Major Von

Passavant, a wireless expert of the Propaganda Branch of the OKW. The

Russian Prosecution wish to conclude from the contents of this

communication that Fritzsche had committed himself in the preparation

and execution of some kind of “biological war.” Such a conclusion cannot

possibly be drawn from the contents. It is merely a covering message of

five lines referring to the transmission of a letter of a radio listener

to another department. Fritzsche’s department received daily whole

stacks of letters from unknown radio listeners. A subordinate official

looked through such letters, of which hundreds arrived daily, and

directed them wherever they would perhaps receive special consideration.

The letter of the radio listener Gustav Otto, from Reichenberg, which

apparently contained a suggestion to carry out biological warfare,

followed exactly the same route. Although Fritzsche, in his capacity of

department chief, signed the transmitting letter composed by the

subordinate official, he naturally did not know anything about the

contents of the listener’s letter. In view of the large number of daily

communications from listeners, it was completely impossible for him to

read them. This listener’s letter, in any case, did not receive any

special attention in the broadcasting department. The copy of the

transmitting letter, as can be seen from pencil notes made thereon, was

also immediately filed. How can anything unfavorable be deduced against

the Defendant Fritzsche from this sort of evidence? Especially as it is

completely unknown what the unknown listener meant by a “biological

war.”

Finally, I have yet to point out the following. General Rudenko read the

document on the occasion of the cross-examination (Volume XVII, Session

of 28 June 1946), and from a Russian text; the German text, which

appears in this form in the German transcript, and the English text,

which appears in this manner in the English record, differ considerably

in content from the original German text. If notwithstanding the

insufficiency of this document—the meaning of which could in any case

be clarified only by the appendices which are lacking—the Tribunal

believe it deserves consideration, the first requirement would be to

have exact translations made from the original German text.

In concluding my evaluation of evidence, I wish to say that none of the

documents brought up during the cross-examination of the Defendant

Fritzsche could modify the impression which he gave us during direct

examination—that is, his having spoken sincerely and truthfully before

this Tribunal, and that because of his own desire also to make every

possible contribution on his part so that an actual foundation for a

proper judgment may be found. And going even further, all the statements

made by Fritzsche were supported in all decisive points by the documents

which I submitted, and particularly through the testimony of the witness

Von Schirrmeister. The latter, who during the most important period

between 1938 and 1943 was the daily companion of Goebbels, was able to

report directly, and, I dare say, with great clarity, on the true

conditions in the Ministry of Propaganda. The result of the evidence—I

may repeat here what I expressed in my introduction—was unequivocal for

my client.

Contrary to the announcement made by Mr. Albrecht, which I mentioned at

the beginning of my final pleading, nothing during the proceedings could

corroborate the contention that Fritzsche’s importance in reality was

greater than that shown in the diagram of the Ministry of Propaganda.

The discussion of the bare facts alone ought to have made clear that

Fritzsche can bear no responsibility for what is the actual part that

may have been played by the extensive propaganda machinery of the Third

Reich in the plans which were in the hands of a small initiated circle.

If the restricted department in which Fritzsche worked was misused, then

Fritzsche himself was misused. The assumption that Fritzsche was

Goebbels’ closest collaborator, his right-hand man, so to speak, and

even his acting deputy—an assumption from which the bulk of the

accusations leveled at him are probably derived—is refuted by facts

which have come up for discussion. The odium against Fritzsche, on the

alleged ground that he bears a responsibility equal or similar to that

of Goebbels, has already been definitely shown by the evidence to be

unfounded. Even from the dealings and actions themselves of my client it

ought to have become clear that the assertions of the Prosecution have

gone much too far.

In the legal consideration of those acts and dealings of Fritzsche by

Captain Sprecher, it was quite striking that—as far as I can see, at

only one point and here, too—as distinct from the other defendants was

the quite general conclusion drawn that Fritzsche was, during a definite

period, a principal conspirator because he was directly entrusted with

the manipulation of the press (Session of 23 January 1946). I need not

mention again at this point that the factual prerequisites for such an

opinion did not exist. Now I am only concerned with establishing, with

regard to the legal qualification by the Prosecution themselves, that in

discussing his case his activity will be judged only in the sense of

forms of participation.

The Indictment points out in several places (23 January 1946 a. m.) that

Fritzsche had been called to account by this Court because of aiding and

abetting. He is characterized as an accomplice of Goebbels; he is said

to have assisted in producing propaganda material, helped create an

atmosphere of hatred, lent support, et cetera; whereby it becomes

obvious that he could not have been one of those who did the planning.

On the other hand, it is also said of this defendant that he was an

active instigator and inciter and that, therefore, he stirred up and

aroused people’s passions. The first question now is: Does the accessory

also belong to the participators within the meaning of Article 6 of the

Charter? This question, it seems to me, has not yet been discussed by

Dr. Stahmer; but the case of Defendant Fritzsche offers an opportunity

for this because by the Prosecution themselves he has been characterized

only as an accomplice. I am, therefore, compelled to give the question

closer scrutiny.