I now come to the case of the defendant Dr. Fritz Fischer. The index to the plea on behalf of this defendant shows that my statements contain eight points.
Point 1 deals with Part I of the indictment, common design or conspiracy. As the Tribunal has decided to withdraw this charge, I do not need to deal with the point.
I should like to ask the Tribunal to take note of Counts II and III and also Points 4 and 5, and I now come to Point 5, which deals with the justifications of the defendant Fischer, as well as the defendants Gebhardt and Oberhauser, acting on orders. This point is on page 7 of the original document, on page 9 of the English copy.
The defendant Fischer participated in the experiments for testing the effect of sulfanilamide upon orders of his medical and military superior Karl Gebhardt. It is recognized in the Penal Code of all civilized nations that action upon orders represents a reason for exemption from guilt, even if the order itself is contrary to law, but binding for the subordinate. In examining this legal question one proceeds from the principle that the Court disregards the reasons of justification and exemption from guilt put forward by me in the case of the defendant Karl Gebhardt and considers that both the order given to the defendant Karl Gebhardt himself, as also the passing on of this order to the defendant Fritz Fischer, are contrary to law.
The adherence to a binding order, even though it be contrary to law, on the part of the subordinate creates for him a reason for exemption from guilt and, therefore, renders him also exempt from punishment. This question is disputed only insofar as some consider the action of the subordinate not only excused but even "justified". Further examination of this question at issue seems, however, not necessary in these proceedings, since the result is the same in both cases, namely, the perpetrator's impunity.
The decisive action in the case on hand is, therefore, whether and in how far the "order" for the sulfanilamide experiments was binding for the persons carrying it out.
In view of the fact that, in principle, the law in force at the time is applicable, as the defendants lived under this law and it was binding for them and the application of a law which became effective later would violate the principle "nulla poene sine lege", the question is therefore to be examined within the framework of Article 47 of the German Military Penal Code.
I draw the attention of the Tribunal to the point that I shall come back to this in the supplement to my final statement.
According to the Paragraph 47 of the German Penal Code a subordinate who obeys is liable to be "punished as an accessory, if it is known to him that the order given by the superior concerned an act which has for its purpose the commission of a general or military crime or offense."
End of my quotation.
However, it is not correct, as is sometimes accepted, that Article 47 of the German Military Code itself settles the question in how far military orders' are either binding or not binding. This is a question of public and administrative law. But it must always concern an "order regarding service matters", the same as in other military conditions, that is to say, something which "is inherent to military service". These assumptions are immediately present both in the case of the defendant Karl Gebhardt and in that of the defendant Fritz Fischer. Both were medical officers of the Waffen-SS; therefore a unit of the German Wehrmacht in which especially the principle of obedience was strongly pronounced. Karl Gebhardt was Fritz Fischer's immediate superior; in matters of duty his order to assist with the medical experiments to be undertaken was a binding order for the young medical officer Fischer.
In the investigation of the legal questions resulting from these circumstances, we will separate the case of the defendant Karl Gebhardt, where the "order" was issued from a very high authority - namely, from the head of the State and the Commander-in-Chief of the Wehrmacht from the case of the defendant Fritz Fischer, in which there is a ques tion of an especially close relationship to his immediate military superior.
Later I will return especially to the general questions of public law concerning the command of the Fuehrer.
a) The evidence has shown that the order for testing the effectiveness of sulfanilamide proceeded from the highest authority, namely, from the Commander-in-Chief of the Wehrmacht personally, The reasons of justification of the probable acceptance of the wartime state of emergency and the balancing of interests, as discussed fully already in the investigation of the case of the defendant Karl Gebhardt, gain importance independently first in the person of the defendant Fritz Fischer. But they have influence, of course, on the legality or illegality of the order. The investigation of this question has shown that the given order as such was legal. Even if one would not want to take this for granted, however, for a subordinate even an illegal order of binding nature is of moment.
Article 47 of the German Military Penal Code, as already observed, lets the punishment of the subordinate stand if "it was known" to the latter that the order of the superior "concerned an act which had for its purpose the commission of a general or military crime or offense." In all other cases the punishment touches only the commanding superior.
Just as in most military courts of other armies, the administration of justice re Article 47 of the German Military Penal Code also shows the tendency to a vast limitation of the penal responsibility of the subordinate. That this tendency has grown from the purpose "of guaranteeing the performance of the duty of obedience obligatory to the subordinate, in the interest of military discipline and the Wehrmacht's constant readiness for battle," changes nothing in the fact as such. Here it is a matter of evaluating the legal position at the time the act was committed.
Article 47 of the German Military Penal Code establishes a penal responsibility on the part of the subordinate only if it was "known" to him that the order concerned an act "the purpose" of which was a crime or an offense.
The German administration of justice demands in addition a "definite knowledge" on the part of the acting subordinate; accordingly, cases of mere doubt (conditional intent) or mere obligation to know (negligence) are expressly excluded. Neither is the idea satisfactory that the performance of the order resulted objectively in the committing of a crime or an offense. On the contrary, the superior must have intended this, and this fact must have been known to the subordinate.
In applying these principles there cannot be any doubt that these suppositions were not fulfilled either in the case of the defendant Karl Gebhardt or in the case of the defendant Fritz Fischer - to say nothing at all of the defendant Herta Oberheuser. Both of these defendants regarded the order given them by the head of the State as a measure of war which was conditioned by special circumstances caused by the war itself, and by means of which a question should be answered which was of decisive importance not only for the wounded, but beyond that, should furnish a contribution in the struggle for the foundations of life of the German people and for the existence of the Reich. Both defendants were convinced at that time that the order given them should have any other purpose but the committing of a punishable crime.
b) Then, in regard to the particular position of the defendant Fritz Fischer, the meaning of an order of the "immediate military superior" is to be investigated. At the beginning of the experiments, the defendant Fritz Fischer had the rank of a first lieutenant. He took part in the experiments at the direct command of his military and medical superior who held the rank of general. In view of the surpassing authority of the defendant Karl Gebhardt, as surgeon and chief of the clinic Hohenlychen, and his high military position, a refusal was completely out of the question.
On principle, no other points of view but those already discussed apply here either. Whether the order is a direct or an indirect one offers no reason for difference. In the case of the defendant Fritz Fischer, however, the following is still to be considered: whether it "was known" etc.
to the subordinate is always to be especially examined according to the special circumstances of the moment. At the same time, of course, a decisive part is played by the fact that the order for these experiments was given to the defendant Fritz Fischer, not by a military superior who would not have been in a position or duly qualified to give an expert decision of this question, but by a person who not only occupied a high military rank but beyond that had just that particular experience in the sphere in which the experiments were to be carried out. The defendant Karl Gebhardt was not only a recognized and leading German surgeon, but he had also as consulting surgeon to the Waffen-SS and as chief of a surgical reserve combat unit acquired special experience in the sphere of combat surgery and in the treatment of the bacteriological infection of wounds. The reason for this order given to the defendant Fritz Fischer by his chief must have affected him all the more convincingly as it coincided exactly with the experiences which the defendant Fritz Fischer himself had gained as medical officer with the First SS Armored Division in Russia.
In addition, there was the special framework in which all this took place: Fritz Fischer had been released from the combat unit on account of serious illness and had been ordered to the Hohenlychen clinic. He was under the immediate impression of hard experience at the front. In Hohenlychen he found himself in a clinic which operated in peacetime conditions under the energetic direction of a man extraordinarily gifted in organizational and scientific matters. Every building, every installation of this recognized model institute, the numerous clinical innovations and modern methods of treatment, every one of the many successful treatments of Hohenlychen was inseparably bound up with the name of the chief physician Karl Gebhardt and gave unconditional and unlimited value to his word and his authority in his entire environment.
For all these reasons the defendant Fritz Fischer can have had no doubt at all but that the performance of the order given him was from the medical standpoint a requisite and permissible war measure.
Precisely the open carrying out of the individual experimental measures, with the exclusion of every duty of secrecy, as well as the report of the results which was provided for in advance and also executed before a critical forum of the highest military physicians, were especially suited to nip in the bud any distrust of the justification of these experiments in the mind of the defendant Fritz Fischer.
Even if the defendant Fritz Fischer still had any last personal doubts, his opposition and subsequent refusal would under the circumstances have been just for him neither practicable, nor could it be expected of him.
The defendant Fritz Fischer has himself in the witness box explained his attitude towards military orders. The personal military service of the defendant in the front line, and his own serious war injury, are proof that his idea, that it. is necessary in wartime to subordinate the individual to the common interests and the unconditional submission to military orders, is not an empty phrase to him but his sincere conviction and moral standard.
There is also an undeniable difference between the cold juristic view of an abstract military order, and the personal attitude of a man who had quite recently in his own experience seen thousands of young soldiers die for their fatherland while obediently executing a military command, and who is also in his heart prepared to make the same sacrifice for his fatherland. If we, furthermore, consider that in our case a 29 year old first lieutenant and assistant physician was confronted with the strict order of his superior general who was at the same time a scientific authority in the special research field, and who, on the whole was a strong personality with unusual influence, we cannot expect that the defendant Fritz Fischer could have opposed and refused the order.
In judging these facts of the case we must not proceed without stating that the action of the Defendant Fritz FISCHER was not the essential reason for executing the facts with which he is charged in the Indictment. If the Defendant Fritz FISCHER had for one reason or another not been prepared or able to cooperate, the research program once ordered would nevertheless have been carried out just the same. Karl GEBHARDT would not have had any difficulty in choosing another assistant out of the number of his assistant-physicians in the clinic Hohenlychen. On account of the great respect in which Karl GEBHARDT was held at this clinic, probably everyone of his assistants would have been willing to do it, especially as these experiments were carried out by orders of the State.
Therefore, the action of the Defendant Fritz FISCHER did not constitute a condition, the absence of which would have prevented the acts contained in the Indictment, from being committed. FISCHER'S refusal to cooperate would not have saved the persons to be used in the experiments from such. Fritz FISCHER was actually only a tool in the execution of the orders, a tool which could have been replaced any time; and in view of the existing strict order to carry out the experiments, it would definitely have been replaced.
There is no need to state in greater detail that the conduct of the Defendant Fritz FISCHER remained in any case confined to the individual orders which were given to him. It can be easily concluded that the Defendant was not responsible personally for his cooperation, as his chief, Karl GEBHARDT, gave him only very limited part orders as his clinical assistant, and this shows clearly again the purely military condition of subordination. As Fritz FISCHER also strictly adhered to the part-orders given to him and did not show any initiative of his own, it excludes him moreover from any responsibility concerning questions which were outside his sphere of action. It is impossible to make Fritz FISCHER responsible for questions connected with the legal and medical preparation of the directives for the experiments and the cosmetic after-treatment.
Apart from this view-point, the special conditions of Public Law, which existed in Germany at the time of the action, ought to be mentioned. They were explained by Professor JAHRREISS in his opening speech before the International Military Tribunal in the proceedings against Hermann GOERING and others. Professor JAHRREISS thereby represented the following point of view:
"State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of international law, morals and religion. Someone, even if only the conscience of the person giving the orders ordered something which he had no right to order? Or has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right - or even impose on them the duty - to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse? No domination which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great powers over Germany.
In as far as such a right of examination is not granted to members of the hierarchy, the order has legal force for them.
All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.
If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regards content or form.... .....The result of the development in the Reich of Hitler was at any rate that HITLER became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people arc - even though with groat differences between North and South, West and East - particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.
Finally the only thing that was not quite clear was HITLER'S relationship to the judiciary. For, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of party officials - this has been shown by some of the speeches by the then Reich justice Leader. The defendant, Dr. FRANK, presented here - there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the "sic jubeo" of the one man. But: apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag's pompous declaration about HITLER's legal position, dated the 26 April 1942 was actually only the statement of what had become practice long before.
The Fuehrer's orders were law already a considerable tiro before this second World War.
In this state order of his, the German Reich was treated as a partner by the other states, and this in the whole field of politics. In this connection, I do not wish to stress the way (so impressive to the German people and so fatal to all opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuernberg party rally in the case of his own state shows. I should like rather only to point out that the governments of the greatest nations in the world considered the word of this "almighty" man the final decision, incontestably valid for every German and based their decisions on major questions on the fact that Hitler's order was incontestably valid. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich conference, displayed the famous peace paper, when he handed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism this one man.
No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever increasing number of people at home and abroad.
But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from amongst his own people, amidst blindly believing masses who idolized this man as infallible, knows how firmly Hitler's power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right.
They did not know him personally, he was from them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.
Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial?....
.....The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception of these cases in which the monocrat placed himself - according to the indisputable values of our times - outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.
HITLER's will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Therefore: A person who, as a functionary of the hierarchy refers to an order of the Fuehrer's, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.
Only a parson, who has understood this, can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler's. For them such cases were not a question of a conflict between right and wrong:
Disputes about legality sank into insignificance. For them the problem was one of legitimacy: as time went on, human and divine law opposed each other ever more strongly and more frequently.
Therefore: Whatever the Charter understands by the orders which it sets aside as a. ground for exemption from punishment, can the Fuehrer's order be meant by this?
Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states?... ....The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer's to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene: for what would happen when this connecting link disappeared? It was a vicious circle.
I repeat: An order of the Fuehrer's was binding - and indeed legally binding - on the person to whom it was given, even if the directive was contrary to international law or to other traditional values."
So far the statements of Prof. JAHREISS before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer's command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.
It is true that in the face of all this reference will be made to Article 8 of the Charter for the International Military Tribunal which reads? "The fact that a Defendant acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads:
"b) The fact that a person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime but may be considered in mitigation."
In the face of this objection the following is to be pointed out:
At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, oven to day, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.
Even from the above named provision of the Law of the Control Council the principle cannot be derived that every command of a superior should under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not however preclude by any means that in connection with other facts it may be relevant for this problem as well.
The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect doss not coincide eo ipso with the "objective" principle of balancing interests, as discussed in examining the case of the Defendant Karl GIBHARDT. In addition one must insist on consideration of the "subjective" position of the person committing the act.
In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of it being committed will have to be weighed as well. This applies particularly to the personal situation into which the person committing the act has been put by reasons of a higher command which is binding for him and influences him. Besides the general "objective" principles of balancing interests, such ** a special "subjective" state of coercion can and must therefore be considered in his favor also. A "command" can, therefore, according to the concrete situation shift the boundaries of culpability further in his favor.
Reinhardt FRANK, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim: "Inasfar as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law."
With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience: it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely "personal" character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicolai HARTMANN, Ethic (2nd edition, 1935, P/ 421/22) says for instance, with regard to genuine conflicts of values: "It is a fateful error to believe that such problems can be solved on principle in theory. There are borderline cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision* A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this: To follow the dictates of his conscience to the best of his ability, i.e. according to his own live sense of the level of values and accept the consequences."
No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of Penal Law is out of the question.
I would like to ask the Tribunal to read points 6 and 7 and I would like to come to the next point of my final plea which deals with the membership of the defendant Fritz Fischer in the SS. The Tribunal will find that on page 31 of the original, which is page 33 of the English text.
In Count IV of the Indictment Defendant Fritz FISCHER is charged with the membership in an organization declared to be criminal by the International Military Tribunal, i.e. the membership of the Schutzstaffeln of the NSDAP (commonly known as the "SS").
The evidence has shown that Defendant joined the Reiter-SS (cavalry-SS) in 1934. Defendant has when interrogated as a witness on his own behalf explained in detail the reasons for his joining up. They were the same reasons which, in the years after the seizure of power by the National Socialists, forced and caused many hundreds of thousands of young Germans to join any of the formations or affiliations of the Party. The necessity for such a step was - just in the case of young university students not only derived from the fact that granting of privileges during the course of study and the admission to examinations was rendered dependent upon it, but over and beyond this, it was, of their duty to join any of the formations of the Party and to do service there, owing to the decrees of the German Studentship as the legal representation of the German Universities.
It is true, though, that membership of the SS was not precisely prescribed. Membership of the SA, the NationalSocialist Motor Corps, or, the National Socialist Aviator Corps would have been sufficient. Defendant would have made his choice much more carefully, could he have had the faintest idea that 12 years afterwards this organization would be declared criminal. That the Defendant Fritz FISCHER joined the SS was rather more in the nature of an accident, and was, last not least, occasioned by the fact that among the Party formations only the SS gave him the opportunity at that time to indulge in horseback-riding.
The Defendant joined a Reitersturm (Cavalry unit) of the SS in 1934. This fact is relevant in so far, as in the Judgment of the International Military Tribunal of 30 September 1946, declaring the SS a criminal organization, the so-called Reiter-SS was expressly excepted.
Apart from this fact, there seems to be good cause to consider, from a general point of view, the question of condemning a Defendant for his membership in an Organization declared criminal.
The International Military Tribunal has , in spite of all its restrictions and exceptions, in spite of time limits in its Judgment of 30 September 1946, violated a principle which forms an integral part of modern Criminal Law and present-day conception of law in general. It is the fundamental axiom that there can be no punishment when there is no guilt.
In this connection, the reasons should be briefly examined which, after the seizure of power by the National Socialists, in 1933, caused many hundreds of thousands of young Germans to join the Party formations-apart from the pressure brought to bear upon them.
Defendant Fritz FISCHER has explained these reasons in detail in the witness box, and I may be allowed to refer to this for the details. It is a fact that many young Germans, and last not least many members of the young student-group, silenced the misgivings they had for the very reason ultimately that they had to witness the former enemies of Germany after the First World War again and again denying political equality to democratically and parliamentarily governed Germany, and doing nothing, in realization of a truly constructive idea, to take into account the just interests of the German people. The misgivings about much abuse of National Socialism were bound to lose a good deal of their strength, when it was shown, in the years after the seizure of power , that also the other nations of Europe and the rest of the world did not hesitate to recognize the National-Socialist State, and, far from drawing the political or economical conclusions of their allegedly ideological antipathy - even went as far as to send their diplomatic representatives to the great demonstrations of the Party and to be officially represented at the Reich Party Congresses.
This state of affairs is relevant from the point of view of the evidence, insofar as it is proven in any case that with regard to the bad faith and the criminal intent of the individual members of the Organizations declared criminal, proof must be required in every individual case. A general assumption cannot be considered to be sufficient to justify condemnation on this Count.
In the case of the Defendant Fritz FISCHER it may be said in addition that after the outbreak of war he did not volunteer for the Waffen-Ss, but was, on account of his membership of the General-SS, like every German liable for military service, called up for the Army.
With the exception of his work in the military hospital of Hohenlychen, Defendant served with the Waffen-Ss always at the battle front. During the whole of the course of his service at the battle front he was medical officer with the Divisions of the Waffen-SS which suffered the greatest losses, which were always dispatched to those sectors of the front where danger was imminent, and where units had to be used which would not only fight with admirable valor, but could not be deterred either by any losses or personal sacrifices. During the whole of the time of his membership of the SS, Defendant FISCHER did front line service which differed in nothing from the service of a soldier as experienced in the units of the Army. He has offered his sound limbs for his country and has given proof of the honesty of his ideas and his views. Such conduct of a young man of 26 years at the outbreak of war cannot now be declared criminal. The evidence has not furnished any clue as to Defendant Fritz FISCHER having had any knowledge of acts which caused the International Military Tribunal to declare the SS a criminal organization. In view of the fact that he did not join the Waffen-Ss voluntarily, but was called up for it, that he himself neither committed a war crime, nor a crime against humanity in connection with the war, nor had any knowledge of it, conditions for condemnation according to Count IV of the Indictment do not appear to be fulfilled.
CERTIFICATE OF TRANSLATION 9 June 1947 I, E.J. Hinchliffe, Civ.
No. Military Permit 026034, hereby certify, that I am thoroughly conversant with the English and German languages and that the above is a true and correct translation of the original document.
E.J. Hinchliffe Civ.
No. Military Permit 026034 "End" In view of the fact that the Prosecution in no case of my clients has made any specific application for sentence I shall refrain from any formal application as to the sentence.
THE PRESIDENT: The Tribunal will be in recess.
( A short recess was taken )