made particularly clear during this trial: Already for strategical reasons the total propaganda apparatus thus including Fritzsche, as head of the Inland Press division had to be left in the dark. It was just that campaign, which Goebbels cleverly kept secret by simulating an intended German invasion of England. Goebbels consciously directed even his closest collaborators on that wrong track, as was stated here by the witness von Schirmeister.
Fritzsche's statement, that he did net knew 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 the cross-examination. This is a document which due to the many names it contains was used also in other connections. At the some time it is the only document, which includes the names of Fritzsche in connection with some secret plans. From that document, which was drafted by Rosenberg and some of his associates according to established facts sometime around the 28th or 29th of June 1941 -thus after the start of the campaign -- no conclusion can be drawn, 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 given only in the fall of 1942. Fritzsche's statement on the witness stand has in no way been disproved, namely that he never had been informed by Rosenberg either about an approaching war with the Soviet Union or about an intended formation of a Ministry for the East. Only after the beginning of that campaign and after the official announcement that a new ministry had been established the requests of Rosenberg were transmitted to him by his associates, with regard to the presentation of Eastern problems in the German press.
Thus Fritzsche's deposition still holds that in the case of the war a gains the Soviet Union, as well as in other instances, he had been informed only at the moment when he was given the pertinent news for publication. That would n imply, as should be admitted, that he played, the role of a somehow scheming or at least informed conspirator. And it cannot be assumed that Fritzsche know anything about the plans of the High Command of the Wehrmacht in June 1941 or even of the Bormann Protocol of 16 July 1941 -- both of which were read to him during his cross examination.
Those negotiations show that they could only have taken place in the innermost circle. In this respect the hearing of evidence, which did not concern Fritzsche directly, has shown that even military means of deception had been used to camouflage the plans. This has been stated by the witness Paulus and becomes clear from the report of the German Military Intelligence Service. 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 finding out secret ends, had to admit what efforts were required even within the High Command of the Wehrmacht to obtain information as to whether Hitler was planning a war or not. of the prosecution that Fritzsche was the accomplice of Goebbels in assisting him to hurl the world into a blood bath of wars of aggression is not justified. When I cross-examined Fritzsche he, on the other hand, pointed out: whatever the facts may have been in the various instances, he and the German public at every moment from the advance into Austria to the invasion of Russia were given only such information as made the necessity of the German actions seem justified. that Fritzsche constantly called on the German people to hold out during the carrying-out of a war of aggression. Naturally, he did not make any defeatist propaganda in the course of his radio speeches. participation in a war of aggression, after the latter broke out, could be considered as participation in the crime against peace and could be punished accordingly.
The French Chief Prosecutor M. de Menthon tried to draw the conclusion -proceeding from a literal interpretation of Article 6, Par. 2a of the Charter, without regard for the real meaning of this article -- that the soldiers and other representatives of the aggressor state could not undertake any military operations at all which could be justified by international law. He had to recognize openly, however, that in practise 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 alike, but also justifies them. He thereby let it be clearly recognized by duplication that according to his idea this prescription of the Charter is to be interpreted restrictively.
In Art. 6, Par. 2a of the Charter the following are defined as crimes against peace: "The plan, the preparation, the introduction, and, according to the German translation, the "carrying-cut" of a war of aggression. "Execution" is the translation of the English word "waging". It could be translated more correctly by "undertaking". Undertaking now means in its natural sense about the same as "intend", whoever undertakes pursues, intends something, has not executed it yet. The word "execute" could create the opinion that the crime against peace was not concluded with the outbreak of war and therefore could continue for the whole duration. The result of this conception would be that all the persons, who participated in the war operations, as for instance, the Army leaders, all members of the Armed Forces and beyond that all the persons who supported the war in any way -- even by deliveries of war material and through broadcasted speeches -- were to be punished according to this decision. They had at least contributed support to the waging of war. These persons could even then be criminals against the peace, if before the war they had in no way participated in the planning or preparation of it. Alas, even if they had no idea that an aggression was involved.
To counter this the following must be stated: Only those can be considered as the executors of a war of aggression who had planned it themselves. They just execute their common plan by starting the war, with or without a declaration of war. Thus "execution" ranges on the same level as beginning. The accusation of crime against peace can reach only those who also planned it.
This is supported by the following reasons: i.e. 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. There fore, no other meaning but "bring about" "proceed to execute the plan" can be attributed to the term "carry through", or "undertake", waging.
concept of "crime against the peace" International Law. For many years, international law has made a distinction between "war crime", in the narrower sense, and "war guilt", in the wider sense. War crimes are offenses against established rules of the law governing warfare, established by agreement or force or custom; against war practices and, going further, also offenses against humanity. War guilt mean being guilty of having brought about war, in particular an unlawful war of a session. treaty after the first World War. A deposition of this is found in Article of the Treaty of Versailles. There can be no doubt that the concept of crime against the peace in the meaning of the Charter is to be identical with this war guilt in the previous meaning of international law. Paragraph 6 part 2a has to deal with the war criminals, that is to say those who bring about an illegal war. likewise a crime against peace, must lead to entirely untenable consequences. Thus, hardly any citizen of a country, which had started a war of aggression would be guiltless. The war in its present form is, unlike any previous one no longer limited to fighting between the armies. It extended -- as has been shown in both these World Wars -- over all the belligerent nations and over a their vital interests. It grew in a total war. Total in this sense, that everybody takes part in it. The woman, who is manking screws in the factory is cooperating equally in this total war. And, as Professor Exner so vividl explained in his final pleading, in this war of aggression every arrestation would mean a deprivation of liberty, each requisition a robbery and each show a murder. It really would be absurd were all members of a nation to be made responsible as authors of crimes against the peace. war would moreover be practically impossible.
collaborating in breaking the peace, whilst the bulk of the people, who had not participated in it, could not be counted in this category. represented in the Indictment. The latter considers the crime of breaking the peace realized by the unleashing (Entfesselung). In no place has it even been hinted that the crime itself or its continuation is seen in participation in war or in its support by production or supply of any kind. Also, according to the drawing up of the indictment from the period of time from the beginning of war onwards, only crimes of the second and third group come into question, also war crimes in the more closely defined sense of International Law, and crimes against humanity. also took the point of view which has been advanced here, whereupon it was pointed out to him in the Session of 1 March 1946: Justice Biddle called his attention to the fact, that at that time he had indicated that the beginning of the war was the character of the crime and not the engagement on war itself, i.e. in other words, that with the beginning of the war of aggression the crime against peace within the meaning of Article 6 Paragraph 2a of the Charter was completed (breach of peace). war which furthers the wax cannot represent a criminal act, neither can the radio broadcasts of Fritzsche, which he made during the war.
THE PRESIDENT: The Tribunal will adjourn now.
(The Tribunal adjourned until 25 July, at 1000 hours.)
THE PRESIDENT: The Tribunal will sit on how until one o'clock without any interruption. directed that he should rewrite it and submit it for the Tribunal's directive 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 has therefore deleted the objectionable passages and has directed the general secretary to hand a marked copy containing the deletions to Dr. Seidl The Tribunal directs Dr. Seidl to get in touch with the general secretary's representative.
He will then see the passages which the Tribunal considers objectionable.
Now, Dr. Fritz.
DR. FRITZ ( Counsel for defendant Fritzsche): Mr President, Your Honor: Fritzsche was guilty of a crime against peace. I had concluded that statement. Now I continue on page 32 of my manuscript. characterized by such terms as: incitement against Jews, incitement against foreign nationals, incitement to exploit occupied territories, propaganda for the "master race". mary of the knowledge he gained after the collapse and above all here in the court. It ran as follows: An ideology in whose name five million people were murdered must not be permitted to survive this event.
Now How far did Fritzsche make propaganda for this anti-Semitism? Was he able thereby to forsee this murder, did he approve of it or at least tolerate it? The Prosecution went very far in its assertions. It maintained 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 we see this quite clearly when we compare the slogans from the arsenal of anti-Semitism, which Sir Griffith Jones read for hours in excerpts from the "Stuermer" at the session of 10 January 1946, with Fritzsche's statements submitted here by the Prosecution. Fritzsche supported by the affidavit of Scharping dated 17 May 1946, was able to point out what he undertook against this paper.
It must also be noted here that the language and arguments of the "Sturmer" found no echo in any German newspaper or at a single broadcasting station of the national-socialist regime. All the statements submitted by the Prosecution originated during the war. The 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 mention only occasional polemical introduction of the Jewish question in the propaganda battle which was fought in this war alongside the battle of arms. This explain the fact that the radio addresses submitted by the Prosecution never contain more than casual remarks and never speak of the Jews by themselves. Each of his radio speeches may be examined to this effect. Nor does there exist a speech by him which would have dealt exclusively with the so-called "Jewish problem". He never talked on such a subject. Fritzsche always spoke simultaneously of "Plutocrats", "Bolshevists", "Democrats" and used other such phrases by means of which the propaganda of the Third Reich felt obliged to conduct its battle. During his cross examination as witness he dealt in detail with each of the radio addresses submitted in the trial and discussed the reason he had each time for making 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 conclusions of the Prosecution. For there cannot be any connection between such rare statements 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 credulous men who carried out the shootings. and ultra-secret means and methods were used by the really guilty ones to carry out this horrible murder. So many testimonies cannot be put aside as irrevelent and unreliable. Contrary to former assumptions this trial could have made it clear that there existed only a small group of instigators and initiates. 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 co-defendants here in the dock only. lead, to the assumption that everybody who took a public stand for anti-Semitism as such, if only with reservations, bore the same criminal guilt. The extent of 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 co-responsible for these murders, was an especially deep blow to Fritzsche. stand very closely to his chief Goebels and to the other heads of the information control, 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. of details, on the point that even with this opportunity his faith was not shaken in the questions which were decisive - perhaps also morally. This no me enabled him to realize actual happenings than his profession of journalist, which gave him the opportunity to follow up for himselfrumours which were appearing. He could not break down by such means the wall which had been erected in front of the misdeeds. as well as von Schirmeister 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, he "Deutscher Schnelldienst" (German express news 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.
credible. The foreign propaganda which had to serve a definite purpose could on the contrary lay no claim to any great power of persuaison. This all the more since enemy propaganda in war time also brought of course positively incorrect reports, of which fact Fritzsche was often able to convince himself. "Master Race". 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 that the hearing of evidence -- the witness von Schirmeister and the affidavit of Dr. Scharping -- has shown that Fritzsche prohibited the use of the word "master race" for press and radio altogether. Fritzsche himself under oath termed this assertion nonsensical, Therefore, after thorough examination of all obtainable speeches by Fritzsche I can only state that his charge is untrue. Nothing is changed in regard to this statement by the fact that Foss and Stable judged differently without giving any concrete facts. I have already dealt with the value of those documents as evidence. from two of Fritzsche's radio addresses which were held on 5th and 10th July 1941. In order to be able to understand correctly the circumstances surrounding 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 have shown some kind of system. 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 Soviet Union in them. 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. That 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. would reveal, did Fritzsche designate entire nations as inferior or sub-human. Phrases about "Sub-humanity" referred only to those culprits whom in real indignation he pilloried as morally contemptible. He could 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 happened 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 spoken once. General Rudenko read to him during his cross examination. That broadcast also refers to atrocities, committed shortly before the outbreak of the war in Brommberg and concerning which on the day of the speech -- that being the reason for it -- an official White Book had been published. The results of an investigation of those atrocities were summarized in it. Only the guilty ones were designated by Fritzsche as inferior human beings. But it is not justifiable to generalize this opinion to such an extent as though he had designated the entire Polish nation as inferior. Fritzsche considered the representation in the official Whit 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 took the opportunity or even suggested that the Slavic nations be exterminated. The German people no more than Fritzsche could imagine anything like it at that time.
had made false statements. For that purpose an excerpt from his broadcast of 2 May 1940 was presented to him. This is the example I mentioned before for the insufiency of such evidence in general. In it Fritzsche gives a description of the towns, villages and hamlets which he had visited shortly before, and which had remained undamaged by war. The Russian Prosecutor pointed to the official report of the Norwegian government enumerating the damages caused by the war. Thus the impression was created that Fritzsche was lying to his audience. The full contents of that speech shows, 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. in other parts of the Country he visited not the slightest trace of fighting was found. His description, therefore, is not in contradiction at all to the Norwegian Government report. "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 dependant Fritzsche was on the version of the official German offices. This supports his good faith, for the principle that official announcements are to be believed with absolute faith, which was naturally the reason for his conviction, could not at that time be shaken.
That particular article in the "Voelkischer 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 if 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 Nurnberg in December 1945. Before that, he was precisely the person from whom this decisive circumstance was with held, although he had, through the naval liason officer, undertaken investigations at the Naval Supreme Headquarters and other official headquarters concerning statements by foreign reports.
of the occupied territories, the only evidence submitted is a statement made on the 9 October 1941. In this, a passage from a public speech made by Hitler a few days before is reproduced. I have been at great pains to find an instigation to ruthless pillage of occupied territories in this quotation as well as in the remarks made by Fritzsche about it in his radio address. It is inexplicable to me how any 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. 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 that the use of any kind of coercive means against other nations would have run counter to the purpose of his whole work, including is work within the Propaganda Ministry, namely to gain the Voluntary cooperation of the European populations. 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 1915. In his Affidavit Fritzsche, gave further the exhaustive details also on the fact that he obtained extensive material from the competent authorities for notification to the German public, in which the free will basis upon which men were being recruited for employment in Germany was continually pointed out. It is inadmissible that information concerning this was given to the Ministry of Propaganda other than that given by Sauckel in his report to Hitler. purposes the violations of International Law, already committed or intended, such as the so-called Commission as Decide, or the Lynch Law against enemy aviators, who had been brought down. As regards the Commissioner's Decree, the Russian Prosecution charged the defendant that as a soldier, as a member of the 6th Army, he took cognizance of this decree. This has been confirmed by Fritzsche. He could, however, point out that his attitude had not only been passive. He even, as will have to be confirmed, took a successful stand against this by way of proposals to his Commander-in-Chief, witness Paulus. 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 morally as a man.
My Lord Justices: If such an accusation with a criminal legal foundation could be made, it would rest upon every German soldier who fought on for his Fatherland in the East after the autumn of 1942. treated contrary to International Law. When he learned this, he spontaneously refused any propagandistic activity for Goebbels in this sphere. These facts have been ascertained through his thorough examination on this subject and through Dr. Scharping's Affidavit. new weapons and the "were-wolf" movement in his radio speeches, with which he has been charged by the Russian Prosecution on cross examination. Fritzsche could testify in detail. The speech of 7 April with which he is reproached, does not in the least glorify forms of warfare contrary to the International Laws. It rather attempted to find a psychological reason or excuse for the active participation of civilians in the fighting towards the end of the war by referring to the suffering of the German people through the effective air activity of the Allies.
I must only reply to one point of the evidence: his cross examination. It is the question of a copy of a short message, signed by Fritzsche, of 19 October 1944, addressed to Major Von Passavant, a wireless expert of the Propaganda Branch of the OKW. The Russian Prosecution wishes to conclude from the contents of this communication that Fritzsche had committed himself in the preparation and execution of some kind of "biological war." Since 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 bunches of letters from unknown radio listeners.
A subordinated official looked through such letters, of which hundreds arrived daily, and directed them wherever they would perhaps receive special consideration. Nothing different happened with the letter of the radio-listener Gustav Otto from Reichenberg, which apparently contained a suggestion to carry out "biological warfare." Although Fritzsche signed the transmitting letter composed by the subordinate official in his capacity of Department director, he naturally did not know anything about the contents of the listener's letter. With 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 find 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 put away. How can anything unfavorable be deduced against the defendant Fritzsche from this evidence? Especially since it is completely unknown what the likewise unknown listener meant by a "biological war."
Finally I have yet to point out the following: General Rudenko has read the document on the occasion of the cross-examination, and that from a Russian text. The German text, where appears in this form in the German Transcript on Page 12315, and the English text, which appears in this manner on Page 12606 in the English Record, differ in content considerably from the German original text. If notwithstanding the insufficiency of this document - the meaning of which could in any case be clarified only by the "enclosures" which are lacking - the Prosecution believes it deserves consideration, the first requirement would be to have completely exact translations made from the German original text.
In concluding my estimation of evidence I wish to say: None of the documents brought up during the cross-examination of the defendant Fritzsche could modify the impression which he gave us during direct examinations: To have spoken before this Tribunal in sincerity and truthfully; and that because of his own endeavor to also make by himself every possible contribution 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 Schirmeister.
The latter, who during the most meaningful period of 1938 to 1943 was the daily companion of Goebbels, was able to report directly, and, I dare say, in an observing way, on the actual relations within the Ministry of Propaganda. The result of the evidence - I may repeat here what I expressed in the introduction was unequivocal for my client. Contrary to the announcement made by Mr. Albrecht at the beginning of my final pleading, nothing during the proceedings could add to the contention that Fritzsche's importance in reality was greater than that diagram of the Propaganda Ministry showed. Fritzsche can in particular bear no responsibility for what is, as far it can be judged from afar, the actual part that may have been played by the extensive apparatus of the whole Third Reich propaganda in the plans and in the hands of a small initiated circle. If the restricted department in which Fritzsche cooperated was missed, Fritzsche himself was exploited. The assumption that Fritzsche was Goebbel's closest collaborator, his right hand man so to speak, and even his acting deputy - an assumption from which the bulk of the accusations levelled at him are probably derived - is already refuted by the facts that have been discussed. 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. Alone, the actual actions and proceedings of my client ought to make it clear that the assertions of the Prosecution have gone much too far.
Captain Sprecher, it was quite striking that -- as far as I can see also in distinction to the other defendants -- at only one point was the quite general conclusion drawn that Fritzsche was during a definite period, the principal conspirator, because he was directly entrusted with the manipulation of the press. I need not mention here again that the factual grounds of assumption for such an opinion did not exist. Wow I am only concerned with establishing, in view of the legal qualification by the Prosecution itself, that in his declaration his activity should be considered rather in the sense of forms of participation. The speech of the Prosecution points out in several places that Fritzsche had been called to account by this Court because of his aiding and abetting, he is characterized as an "accomplice" of Goebbels, he had assisted in producing propaganda material, he helped in making possible an atmosphere of hate, he had supported and more of the same, thereby stressing that he could not have been among those who did the planning. On the other hand it is said also of this defendant that he instigated and incited thus taking an active part as instigator, stimulator and inciter.
The first question now is: Is the accessory helper also a participator within the meaning of para. 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 he has been characterized to a particular extent only as an accomplice. I am, therefore, compelled to give the question closer scrutiny. These four concepts: leader, organizer, instigator and participator are said to be equivalent on account of their external composition. The four possible perpetrators must also be dealt with in the same manner. These four concepts, in so far as they differ linguistically, can therefore only explain in what different forms a plot can be fashioned. The one instigates, the other organizes, the one leads the gang, the other takes part in the plot in some ether way. Therefore all four conceptions are closely connected with the common plan. They are united only because of the common plan. Only that makes them true accomplices. To jointly make plans, to jointly want to carry something-out that is the main concept of these four subsidiary concepts. Only the functions amongst themselves can of course be different.
They can also be shared by the conspirators themselves. It the conspirators have jointly invented the plan, have formulated it or, by agreement, have merely furthered It, then it should be of no consequence which part each one of then plays in its execution. It should therefore be basically also unimportant whether within this plot someone is the leader the inspirator or merely another participant in this plan. However, everyone, presumably will have to participate in this pain. He must have recognized its purpose at least, for according to the words of the charter, he must have "participated" in it and that either
a) in the formulation or
b) in the execution of a common plan or
c) in some other conspiracy for the commitment of an individual crime. Only then is he responsible for others When in the execution of such a plan, someone commits a crime.
The word "accomplice" refers therefore to the plan. He is an accomplice in the plan and is in no respect different from the leader or instigator. A more far-reaching meaning in an accessory sense must therefore be far removed from this concept. altogether different meaning for the accessory. By accessory, according to the common legal conception, only one of the forms of accomplice is understood, and that the form by which an outside deed is only supported or furthered. A deed which the accessory does not exactly want for himself. It signifies the dependence, the accessoriness of the bare support of the main deed. Article 6, last paragraph of the Charter cannot have such a meaning. There the participant is to be put on an equal basis with the accomplice, whereas in common law the accessory, as subordinate participant, can never be accomplice in a punishable deed. In common law the assistants are merely accessories. It cannot have been the intention of the creators of the Charter to regard the mere accessorial assistant as participant in the plan, since whoever participates in a plan is to answer fully for the deeds of others, even if he has only subordinately participated in the formation of the plan. However, on the contrary it must then follow: Whoever does not participate at all in the formation or discussion of a common plan can therefore assume no full responsibility for that which others have done.
It is thereby a matter, of indifference whether the others committed a crime in the execution of a plan or only incidentally upon the occasion of its execution. The responsibility of the one for the deeds of the other can only exist when the plan binds them together. It is for this reason that the concept of conspiracy presupposes of necessity the idea that what is being done takes place under the impulse of a common will and a common knowledge in relation to the plan. expressed also in other parts of the Charter. Already in Para. 1 -- and not only in Para. 6, Section 1 -- it is mentioned that in execution of the FourPower Agreement of 8 August 1945 the "principal war criminals", the "principal culprits", the "principal conspirators" or whichever way it is expressed, should to begin with be called to account here before this Court. Assistants, accomplices, simple agents of execution and all other merely dependent, accessorial perpetrators who do not belong to the central body -- that is to say who are not connected with the conspiracy plan or are in closer agreement for the carrying out of a single crime -- cannot be considered as belonging to such a group. Within the meaning of conspiracy and of the substitution of the one for the other connected with it, there can be no simple "helpers" at all. to his position in the State and the party structure -- cannot belong either to the restricted group of conspirators nor to the wider group of the organizations. Moreover Captain Sprecher has himself pointed out that Fritzsche is not represented by the Prosecution as the type of conspirator who would have thought out the all-comprehensive strategy. His particular field even lay outside the conclusion of the plan. But it was not necessary to have himself correctly understand the basic strategy to have perceived the aim, when he became the spokesman of the conspirators. I believe that the latter conclusion if the concept of participator in the sense of a conspiracy is rightly estimated, embodies an error of thought. He who stood outside the makers of the plan certainly does not belong to the group of conspirators.