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.
Prosecution, I come now to this conclusion. The defendant Fritzsche, against whom it has not been proved here that he took part in any common planning, can on this account also not have been a participator in the alleged conspiracy. At any rate he cannot be punished according to Paragraph 6, last section. According to the intellectual constriction of the Charter there should be somewhere a limit fixed concerning the arraignment of a single person in these trials. When is anybody still a participator -- accomplice -- and when is he no more so, but only a perpetrator or accessory? where is this boundary which sets of the responsibility for individual deeds from the responsibility for that which others have done? Because there must be a dividing line for this collective responsibility also. I mean the common plan is this dividing line. He who does not belong to those who did the planning should also be left out of the group of conspirators.
On the other hand the framers of the Charter provided:
a) establishment of a single individual as criminal culprit even though
b) declaration of an organization as such as a criminal organization. and, as is established, was never a member of even one of the organizations being prosecuted here, he could be convicted only if he as an individual had committed crimes as covered by article 6, paragraph 2, a to c of the Charter. In that case, however, just as in any ordinary criminal procedure, the prosecution must furnish him the proof of a criminal offense. If he does not belong to the conspiracy, if he does not belong to an organization, the Prosecution cannot derive its support from a so-called legal assumption, an assumption merely said to result from membership in an organization. It is not possible to reverse the burden of proof.
The second question then is: Did Fritzsche as an accessorial accomplice or abetter, belong to the class of those criminals of whom it has been proven that they as individuals committed crimes against the peace, a violation of law governing warfare, or a crime against humanity?
with his own hands. The charge is directed against him only by reason of his activity as an accessory. accomplice is not something foreign to the English and American criminal law. However, the common law is governed by the principle that the accessory falls into the same class as the accomplice, in other words that -- irrespective of the measure of his personal culpability -- he should be punished, in principle, just like the perpetrator. It is said that at all times the English law was inclined to apply the principle of equal punishment for perpetrator and accessorial accomplice. The reason for referring here to the English common law is merely to establish a link with the German concept of law. It is, therefore, sufficient that English law and American law make a differentiation between the concept of a perpetrator and accessory. fact that there is a difference in the concept of right and of wrong between the Prosecution and the Defendants. The concepts are bound to differ because the Statute Law is not the same.
That is the reason why I cannot as yet conclude my legal argumentation: differences in concept, which may be equally common in both spheres of law, result in different inferences of law as far as Statute Law is concerned. each single defendant according to the letter of para. 6, section 2 a to c of the Charter. In that connection he remarked that it is a commonplace in common law that persons who help a criminal and shield him, who give advice and help to a criminal, are criminals themselves. Perhaps he wished thereby to advocate the conception that according to the spirit of the development of English law such persons, by reason complicity in someone else's deed, should be punished in the same manner as the main perpetrator; that the accessoriness of the accomplice -- if I understand Sir Hartley Shawcross correctly, is in principle, without importance for consideration by common law.
In practical effect this might mean that the difference between the concept of accomplices and accessories plays no part here, or at best might determine the degree of the respective responsibility for the measure of the individual guilt. Is It intended, in principle, to judge him who merely supports the deed of someone else exactly in the same way as applies to him who carries out the deed as his own? I may refer to the effects which such a concept might have on the measure of punishment, for example.
At this point it might be in order to say this: The legal maxim propounded by Sir Hartley Shawcross may indeed by commonplace for every member of the English or American legal professions. This does not hold true for a German defendant, however. As I also infer from the argument of the French Prosecutor, Dubost, this does not seen to hold true for French Common Law, because he pointed out that according to the principle of penal law, strictly speaking, all the defendants could In that case not be considered as main perpetrators but merely as "accomplices." And because the confines of common law concepts are too narrow, it is the opinion of the French Prosecution that the deeds which are to be adjudicated here are not equal to the common law with its rationalistic statics; that it would be necessary to apply a law which goes beyond this. plot - and the practicability to declare an organization criminal, are to be the vehicle by means of which it will be possible to go beyond the common law. However, how about the case of a defendant who does not belong to the conspiracy nor to an organization? After all, law must be applied. This then leaves nothing but the common law for judging the individual deed. Which law other than general concepts such as, for instance, guilt, dolus, carelessness and also the accessoriness of the accomplice can be applied? It is possible that through the establishment of new facts of the case, the Charter created now substantive law.
But what is the juridical concept with which to approach these new facts of the ease? Classification of actual circumstances will probably have to be made by means of the analogy of penal law concepts. As regards the facts of the case listed in paragraphs 6(b) and (c) of the Charter, these correspond essentially with the facts of a case in common law. A defendant as an individual who did not take part in laying out the plan, and who did not belong to an organization, can then he judged only according to principles which also must apply for every other delight of common law. If concepts such as the accessorical accomplice are involved, argumentation against a defendant can take place according to common law only. complicated legal problems, particularly in connection with the doctrine of the form of participation; in other words with the question as to how an accessory should be classified according to the various possibilities of participation. From this in particular results the decisive question: is it possible that the Charter went so far as - I repeat, what is involved are common law concepts - it is a question here of banning, if possible concepts of common law; of respecting the old established legal concepts of the defendants in judging the accessorial assistants. Is it possible that it entirely ignored even the completely different structure of Statute law? especially with reference to the question of accessorial assistance, I ask permission for a few legal dogmatic remarks on the conception of German law. In all fairness and at least as far as the concept of an accessorial accomplice is concerned, a German defendant can be charged only with what is known to the concept of law adopted by his people and which, at the same time, is in keeping, morally, with his sphere of knowledge. That is the decisive point!
By reason of the provisions of Statute law in paragraph 49 of the Reich Penal Code, there is not only a strict separation between the accessory and the accomplice, as far as the concept is concerned, but necessarily and as a matter of principle he is also to be punished less severely than the perpetrator himself.
Jurisprudence and judges, therefore, have made a sharp distinction between the perpetration of an act itself and the more instigation or support of somebody else's act by accomplices. This distinction is made not only in accordance with external characteristics, and so according to objective factors, but also with regard to what occurs in the mind, and so according to subjective factors. During decades of the German law, particularly in the law of the Reich court, this is expressed in such a way that, in the case of assistance in somebody else's action, the accessory is said to have the animus socii, but the perpetrator himself the animus anctoris. According to German law the assistance is regarded outwardly, which means according to objective factors, only a furthering and support of the action of the principal perpetrator; the accessory must have helped to bring about success by his support. If he has not helped to bring about this success, then he is not an accessary. Then his action is not punishable. of the accessary (animus socii) must be directed to the end that somebody else's action is supported with his knowledge. And so when judging what is going on within the mind of a perpetrator, German law also makes a sharp difference between the will and the knowledge. whether somebody has given assistance at all. know about plans or the execution of them, from the range of his duties. Only if one had proved that he had a definite knowledge and will as an accessary to the fact could he be con demned.
It would have to be further proved In the case of defendant Fritzsche whether what he knew and wanted in connection with an alleged furtherance is identical with what any of the main criminals actually did.
Only when the knowledge and intent of both agree can one be on accessary at all. In this connection it is to be emphasized than an indefinite knowledge, a very general intent is not sufficient to establish the state of being an accessary. The accomplice must be concretely aware of the elements in a case which another is to carry out in accordance with his intention. points with instigating specific crimes as an accessary. And so the third question is: Has Fritzsche been the instigator of any single crime? referred to the details of Captain Sprecher's prosecuting speech. To me it is doubtful if here the concept of instigation is meant in the legal-dogmatic sense of the common law. The concept of "incitement" is used essentially to the extent that it corresponds to the German legal concept of more invitation. This charge of instigation can only be raised insofar as it can be said to concern the individual responsibility of Fritzsche for a specific crime mentioned in Article 6 Paragraph 2A - c. The assumption that Fritzsche was a possible "instigator" to a common plan within the group of conspirators cannot be substantiated in any case, in accordance with what I have already explained at an earlier time. general legal sense presupposes, however, quite otherwise than in the case of an accomplice, in which a criminal will is only to be supported or maintained, that such a will must first of all be produced in the perpetrator. The psychological influence, unlike that of the accomplice does not consist of affirming or strengthening the individual who has already decided to carry out the deed, but in first producing the will for the deed. The means for this can be of the utmost variety, but the perpetrator must first have his mind changed - brought around to it.
forms of participation, as in the case of instigation, a conscious and in the case of the instigator a designed causative connection must exist between his instigation and the decision of the perpetrator. The principle of equivalence is valid equally as in the case of assistance. The perpetration of a deed must correspond with the conception and the will of the instigator. The instigator is therefore responsible so far as his intention reaches. A possible excessus mandati cannot be attributed to him. From this follows the accessoryship not only of assistance but also of instigation! Fritzsche case htat he has committed an individual crime as instigator through his transmission of news. Nothing has been demonstrated that he has instigated a single person to murder, cruelties, deportations, killing of hostages, massacre of Jews or others, or crimes mentioned in the Charter, or had, as instigator caused a single crime by his transmission of news. Not a single passage from his nearly 1,000 wireless speeches could be produced from which such a conclusion of individual responsibility could be deduced. It could not happen from public speeches. The crimes which were committed were carried out by people completely indifferent to Fritzsche's propaganda. They received their urge or instructions from altogether different sources. These deeds were to be kept quite secret. The official news service should avoid handling this as much as possible. As this trial has shown particularly impressively the perpetrators made the greatest effort to inform a very small circle, for example, of the annihilation of the Jews. What is self-evident in every other State Constitution, namely, that occurences in the country should be handled through the press, was not permissible in a dictatorship. The people should not be asked whether they approve such incidents. The crimes established by this trial should not be permitted to be made public.
Can one assume that under such circumstances the press and the radio were suitable means to instigate the perpetration of crimes?
Is it not more probable that such incidents were kept specially secret from the press and the radio? ever so prejudiced - could it be reckoned that through public speeches he could evoke decisions for the perpetration of punishable deeds by a single individual. not go so far. The Prosecution will reproach Fritzsche that he has contributed to produce an "atmosphere of hate". gruesome crimes as these to be committed in Germany. This reproach however, is legally irrelevant. This charge would have legal importance only if the defendant Fritzsche had been among the group of so-called conspirators; if he had been the instigator of a common plan. I believe to have proved that such opinion is impossible. If he had actually brought about an "atmosphere of hate", his instigation of someone else - outside of the group of conspirators - to commit a certain crime would have been impossible legally speaking. Furthermore, according to the provision of the Statute Law of German Penal Code, a summons disseminated by radio would even exclude facts which the letter of the penal code requires in order to establish the charge of conspiracy. According to German jurisdiction as practiced for decades, there could be no conspiracy, because instigation could not have centered on a certain individual. Furthermore, German Law concerns itself merely with instigation to commit a concrete deed but not with an instigation to commit punishable actions in general. In principle, therefore, a summons of some kind, directed towards a group of persons individually undefined, does not constitute incitement to complicity; it is rather outside the framework of legal relevancy altogether.
It is quite selfevident, however, that Fritzsche's radio addresses were intended for an entirely unlimited group of persons. Furthermore, and since he was seriously striving to find for the German press and radio propaganda a "foundation based on truth", could he have such an aim to incite to culpable actions? My client admitted in an impressive and unequivocal manner that he followed a tendency which was inkeeping with the official German policy when he passed on the news which he was expected to disseminate. In other words, he did not take advantage of thefact that International Law did not place him under any restraint, and nothing in the evidence submitted has refuted his good faith. However, in the light of thelaw, when it is concerned with incitement to complicity, or with assistance given as an accomplice, good faith is equivalent with lack of will and lack of purposefullness.
This establishes:
1) that the defendant Fritzsche did not belong to the group of conspirators who planned;
2) that he was never at any time a member of a group or an organization which it is here proposed to term criminal;
3) that, factually and for legal reasons, he is not individually This will suffice, I believe, for my discussion of the question of evidence and legal conclusions. It is necessary though to mention one other thing: The Fritzsche case has also its human aspect. related question suggests itself which must not remain without answer: Taking Firtzsche strictly as a human being, can he be expected to have had knowledge, to have been co-originator of all the monstrosities which were established in this Court? According to the interpretation of the Prosecution a dolose instrument is (1) the conspirator - of whom Goebbels was perhaps one - : he only who had knowledge of its aims and purposes.
Fritzsche's measures and utterances, however, were not dictated by criminal will. During his examination before this High Tribunal, Fritzsche pointed out the fact thathe does not convoke his duty to obey. But he added that as far ashis own person is concerned a criminal proposition was never made to him. And he furthermore declared: There was no compulsion for anybody to carry out an order in which he could nothelp seeing the intended crime. Undoubtedly, Fritzsche sacrificed his own convictions and had to have recourse to many a compromise. This, however, he did not do where he thought he discovered injustice, violence and inhumanity. As is fitting to a journalist, he examined with care whatever reports reached him from abroad. In disregard to inherent dangers forhis own person, he traced the news which concerned Germany itself, daggers which ambushed every person who tried to penetrate that which absolute secrecy intended to hide. He did not permit himself to be put off with paltry, vague explanations. He reported many details. I merely refer to his visits to Gluecks, Heydrich, and his investigations in the Ukraine. "Kommissarbefehl" and the plan to revenge inhumanely the air bombardments on Dresden; he fought againstthem with determination, in the latter case even with the help of a foreign Ambassador. And he was successful, too, as these two particularly conspicious examples show. He did this because he followed the voice of his conscience. He did not first engage in lengthy deliberation as to the pros and cons. As regards the "Kommissarbefehl" he merely had heard of it as a soldier - he hadnever read it, nor did he know that it actually was carried into practice at any time - and he at once raised a protest. When Goebbels ordered him to announce the proposed killing of great numbers of allied fliers he did not mind incurring the anger and the fury of hisMinister. Dr. Scharping described this in detail. When he learns of cruelites in the concentration camp at Oranienburg he even sounded an alarm. The culprits were punished immediately, at that time. Dr. Scharping's affidavits which I submitted, and others, prove his implicit willingness to assist those who were persecuted, for political or racial reasons if they applied to him.