Afternoon Session (continued 2)

I think that it was not Fritzsche’s official positions at all which led to the bringing of an indictment against him. I rather assume that the latter is solely to be traced back to his broadcast speeches which made him and his name known—but only during the war—both in Germany and perhaps also in a part of the rest of the world. All the serious charges leveled against him can be traced back only to these radio addresses. The other assertions concerning his position within the state or Party apparatus are only based on assumptions or combinations without any factual basis, which is especially evident, for example, from the purely personal and refuted statements of Schörner, Voss, and Stahel. But his name became so well-known only because of the technical means he utilized. Only the great significance of the radio for the modern transmission of news made him appear in a special light. It cannot be denied that in this way he had a great influence on the German people, but from our own experiences of Nazi-ruled Germany, I can well say that every Gau speaker (Gauredner) and many a district leader (Kreisleiter) used much stronger language. But, as a rule, their speeches were published only by the local press.

The defense was handicapped with respect to these radio addresses insofar as the complete text of all of them could not be made available. Unfortunately, the excerpts quoted during cross-examination by the Russian Prosecution could not be supplemented by the entire text of the respective speech; thus there was no possibility of reproducing the sense which the respective address had at the time of delivery. I shall come back to this and give an example later. To submit only single passages or quotations to the Tribunal is especially inadequate, because such excerpts do not show that in his speeches Fritzsche always put the events of the day in the foreground. It was only rarely and incidentally that he drew any general ideological conclusions. But even what Fritzsche has said here about those of his addresses which the Prosecution were able to produce in their entirety shows a completely different picture of the cause and motives of his broadcast speeches. From 1932—that is, already before the seizure of power by National Socialism—up to 1939, these speeches were nothing but a political press review. And that is what they were called. They were therefore a collection of quotations from domestic and foreign newspapers.

Fritzsche does not dispute the fact that these collections were made on the basis of the interests of the National Socialist State. Only during the war—but right up to the end they were still based on quotations also from the foreign press—did these speeches become the platform for the polemical controversy which in time of war is naturally carried on from both sides. Without any doubt, they greatly contributed toward the formation of political opinion in Germany; but there is also no doubt that many people in Germany listened to Fritzsche’s speeches not for their polemics but in order to learn from his quotations at least something about the opinions expressed abroad. For years these speeches constituted purely private work carried out alongside his official position. Only during the war did they come to be considered as semiofficial because of their increasing political news value. Thus—to make it clearer—they assumed approximately the character of editorials in a newspaper which, as one says, is closely connected with the government. It would have been easy for the defense to submit to the Tribunal tons of newspapers dating from the same time, the editorials of which showed the same trend, and even—this can be said quite definitely—used considerably stronger language.

Fritzsche has been able to repudiate most decidedly—and in my opinion quite rightfully—that these addresses constituted an incitement to race hatred, to murder or violence, to hatred among nations, or to wars of aggression. If such an effect could really have been produced by these speeches, absolutely the same reproach should fall upon any editor of the Third Reich who received the “daily directives” from the Reich Press Chief. Fritzsche seems to be accused before this Tribunal only because through technical means he could be heard over a wide range. But it is, especially in wartime—and only since 1939 did his speeches have a political news value at all—in the nature of things, that the controversialist becomes himself the subject of controversy, especially the one whose influence, considered from the standpoint of political news value, extended further technically than the influence of an article in a local paper. Only in this manner did his name become better known to outsiders than names of people who were much more powerful than the publicist.

How far the Prosecution went in their accusations against Fritzsche in his capacity of a publicist is shown by the fact that not only is he supposed to have belonged to the plotting group of conspirators, but that he is also accused of Crimes against Peace. If a propagandist is subjected to such an accusation, there immediately arises the question whether public radio speeches would not be the least proper means for carrying through criminal aims of a secret conspiracy. Speeches, which can be heard all over the world, could at best be suitable for camouflaging such aims and for misleading the world. But actually, just the opposite reproach is leveled against Fritzsche: he is supposed to have incited other people.

I think I have now dealt at sufficient length with the nature and the character of these speeches. Their importance had to be adjusted to the proper scale in view of the far-reaching conclusions of the Prosecution.

Before going into the details of the charge that by radio speeches, or by other means, Fritzsche contributed toward the various wars of aggression, it is necessary, in a case in which accusations to that effect pertaining to criminal or international law are raised against a publicist, to deal with a legal problem. At no point, as far as I can see, did the Prosecution consider the question of whether and to what extent propaganda—that is, the attempt to influence minds—especially during war, was or still is subject to the rules of international law. Perhaps the problem did not come up only because this question, once it was asked, would have had to be definitely denied. While it is true that the Indictment speaks of the “gigantic propaganda apparatus” during Hitler’s dictatorship, which was created as a consequence of the supervision and control of all cultural activity, it does not draw any conclusions for a judgment according to international law. For, as a matter of fact, no generally or specially valid rules concerning this field have ever been established, no sort of prescriptive law developed in this sphere either.

In this connection, it is interesting that in the textbooks of international law no attention at all—as far as I could find out—is paid to this problem. A certain number of textbooks, however, especially those with a tint of natural law, regularly contain in their catalogs of fundamental international law a section on national honor or national dignity. These chapters deduce from the equality of nations, and their living together in a community governed by international law, the demand that the nations treat each other with respect. And they furthermore demand that insults directed against other countries by private persons from their own sphere of influence be prevented, and that if committed, such excesses be punished. But this idea found its positive legal expression only in a number of national criminal codes in which—naturally in peacetime only—the insulting of foreign chiefs of state, for instance,^[1] is made a punishable offense. Another doctrine, which is based less upon natural law, holds that this is not a question of legal obligation but one of international courtesy only. Be that as it may, an international law precisely defined in some way does not exist, not even for times of peace, especially not as far as private propaganda through press and writings is concerned. And as to war, any directive in this respect is lacking altogether as I have already pointed out. According to existing rules of international law there are no limits to propaganda against foreign countries in time of war. Consequently, there is only one barrier to this propaganda—namely, the great barrier which governs all the rules of warfare that everything is permitted quod ad finem belli necessarium est.

In view of the tremendous importance of psychological influence upon the will of individuals and nations, it is beyond doubt that propaganda can be an important and, in certain cases, even decisive means of war, no less important than, for instance, economic warfare or even warfare with weapons. Propaganda in this case has a double task: First, to serve as a means for increasing the power of resistance of one’s own nation, and second, to undermine the fighting powers of the opponent. This influence—whitewashing on one side, slandering on the other, concealment of facts, et cetera—is essentially nothing else but a stratagem which, within the framework of the rules of land warfare, has been expressly declared as a permissible instrument of warfare, according to Article 24 of the Hague Rules of Land Warfare. In this connection, it may be pointed out that spying—also a form of war stratagem—had likewise been declared as a permissible instrument of warfare by the Hague Rules of Land Warfare.

What has been said here is in complete accord with what is practiced by all countries; defamation of the opponent and his statesmen, making the opponent contemptible, falsifying the motives and intentions of the enemy, slanderous assumptions, assertion of unproved statements—all this belongs unfortunately to those means of propaganda which during a war are used on all sides and at an increasing rate.

Minor attempts, but only for the purpose of preventing war, are known from the time before the first World War. At that time, they had an even farther-reaching aim—namely, to contribute in general to an understanding among nations by means of a general moral and spiritual disarmament (désarmement moral). However, this goal was not reached before the first world conflagration of this century. After 1918 though, as a reaction after the great armed conflicts, this aim received a stronger uplift and became known to the world through the tasks imposed upon the League of Nations in this respect. This was indeed the first real attempt to start an intellectual disarmament. At the fifth session of the League of Nations in 1925 in Paris it was decided to found an institute for intellectual co-operation (coopération intellectuelle).

Further investigations, which lasted for years, resulted in numerous proposals, in the establishment of general committees and subcommittees, of sections and committees of experts with an incalculable wealth of documents. But nevertheless none of these great efforts converted the idealistic impulse and the longing of the nations for a “spiritual disarmament” and intellectual co-operation into sober and concrete legislation which would have imposed legal obligations on the individual states as well as on their nations. No results were achieved in pointing a way which in time of war would prevent hatred, incitement, distortion of facts, and provocation of other nations or nationals of other countries in all the possible modern forms of expression.

Even such well-defined and comprehensive propositions for a moral-intellectual disarmament as those presented by the Polish Government to the League of Nations in two memoranda of 17 September 1931^[2] and 13 February 1932^[3] had the same fate. These propositions aimed at using national legislation to prohibit any propaganda which might become dangerous for peace, and even any propaganda which aimed at a mere disturbance of the good relations between nations. Influence was to be exerted not only upon the big public news media but also upon the vast ramifications in the administration of every modern state, including even the revision of schoolbooks. These propositions which advised member states not to recoil even from censorship and measures of prohibition finally came to nought because they stood in direct contradiction to the deeply rooted conception that freedom of expression of opinion in intellectual matters could not be undermined by such exceptionally far-reaching police measures; this freedom of expression had to be preserved as an “inalienable right” granted by the Creator. And this opposition on fundamental principles ended matters. We have in the course of the Trial seen ample evidence of the effect which censorship and control of the press, radio, and films may have.

The few bilateral agreements which were concluded after the failure of the Polish propositions of 1931 and 1932 are not worth mentioning here. They are concerned with certain forms of propaganda only, and solely with periods of good international relations. We can only express here the hope, therefore, that on the basis of international solidarity it will in the future be possible also to reconcile these two still opposing theses on a higher level.

In the course of this Trial a secret order was produced which had been issued by the High Command of the Armed Forces on 1 October 1938 (Document C-2). This document showed that the division for international law in the OKW had drawn up a chart for the event of an armed conflict, and this chart was to show the principles for dealing with any possible violation of the rules of warfare by friend and foe. With the knowledge of the legal vacuum existing in the field of propaganda in its broadest sense, it is stated there that from the point of view of international law it is absolutely permissible to make the opponent contemptible and to try to undermine his strength “regardless of how many lies and falsehoods are used for this purpose,” and that from the legal standpoint a rule for the future could even be established to the effect that if the enemy employed such propaganda, defense by means of “counterattacks” would be legally possible, and whereby “naturally the propagation of atrocity lies” must also be used. This may sound cynical and brutal. But unfortunately it fitted in with the customs of war, or rather, this undisguised statement originated in the legal lacuna which could actually be found in international agreements and in prescriptive law. Dr. Kranzbühler rightly stated here: In war the duty to tell the truth does not exist.

Owing to the period of time which has elapsed since the first World War and its propaganda methods on both sides, we can today consider the events of those days as belonging to history. At that time, too, all belligerents gave great consideration to their efforts to undermine the enemy by means of propaganda. But the legend of children’s hands cut off by German soldiers—a war lie, as Arthur Ponsonby proved in his book Falsehood in Wartime^[4]—was still alive in a French schoolbook even in the midst of peace, nearly 10 years after the first World War.^[5] Publications of all belligerent countries—drawings and cartoons dating from the time of the first World War alone—can be found in masses in all libraries. Many will still remember the film The Four Horsemen of the Apocalypse which showed terrible atrocities, and circulated almost throughout the whole world at the time of the first World War. Legally, this matter had unfortunately to remain unsettled up to this point. In view of the goal striven for by Justice Jackson in this Trial of creating a new international law, can the case of the Defendant Fritzsche as a publicist in the Nazi State be included retroactively? Can the desire of the Prosecution to see Fritzsche punished as a war criminal be derived from their assertion of a logical development of existing laws (Sir Hartley Shawcross, Session of 4 December 1945, a. m.) when up to now nothing, absolutely nothing, has been legally and properly ruled upon in the field of propaganda, and no promising beginnings of any kind have appeared in this direction? Here it is certainly not a question of only an apparent legal loophole (Session of 4 December 1945).

What has been said, of course, does not include those cases in which individual crimes were actually incited by means of propaganda. Therefore, I shall now go into the individual charges of the Prosecution in order to show that Fritzsche is not guilty of having committed such acts.

As far as the alleged crime against peace is concerned, the Prosecution act on the assumption that any important political and military attack on the part of the German state leadership was preceded by a press campaign. Therefore, the Nazi conspirators must have used the press also as an instrument of foreign policy and as a feint to cover subsequent aggressive action. From that general, perhaps even correct, description of such intentions, the far-reaching conclusion is drawn that Fritzsche may also be partly responsible for them. Such responsibility would be based merely on the chronological circumstance that he was the Chief of the German Press Division within the official Ministry of Propaganda from December 1938 to the spring of 1942. But the premises are lacking for this conclusion. It could only be justified if it had been successfully proved that Fritzsche was the real creator and inspirer of all those press campaigns. But Fritzsche, if only because of his subordinate position—subordinate not only in regard to the departmental organization but also compared with the real leaders of propaganda, Hitler, Goebbels, Dietrich, and others—could know only what his superior passed on to him—as well as to other civil servants—as the historical truth.

May I bring to mind the fact that all witnesses who have testified in any way about the influence of the foreign policy on the press always pointed out that before beginning any political—and especially before beginning any military—operation, the Foreign Office justified the measures taken in the field of high policy before the public in White Books prepared by them. Just as in the case of other intentions or goals of the highest leaders of the Third Reich, the press, too, was informed in these cases only of that which the general public was permitted to learn, while matters not destined for publication were kept secret.

After hearing the evidence, what was the actual relation between the propaganda furnished by Fritzsche and the various military invasions, and what did he know of their background?

At the time of the occupation of Bohemia and Moravia, instructions were given him by the Reich Press Chief only a short time before the decisive step of 15 March 1939. These consisted, as in all other cases, of so-called “daily directives” (Document Number 3469-PS) which were given out at press conferences. Such daily directives thereby received publication in the headlines of German papers. It may be mentioned here, that the best known organ of the Party—namely, the Völkischer Beobachter, due to its direct connection with the Reich Press Chief and, during the war, with the Führer’s headquarters—was more independent of such daily directives, considering that it had a foreign news service of its own. What was printed in the Völkischer Beobachter does not, therefore, represent what had been approved by Fritzsche as leader of the German press. At that time, Fritzsche had already—and this attitude is of greatest importance with regard to all of his activities—established the principle for his press reports that untrue news should never be given to the press. The apparent reason for that was the fact that his predecessor in the German Press Division, Berndt, had had all kinds of news spread during the Sudeten crisis, by which he lost the confidence of German editors. Fritzsche, as well as the witness Von Schirrmeister, gave details about these matters on the witness stand.

It is not apparent in what respect Fritzsche played a greater part than any other officials or officers when the German troops marched into Czechoslovakia. Fritzsche knew just as little about what has been disclosed in this Trial about Hitler’s secret intentions at that time as he could have known about the Case Green plan. As head of the domestic press, he could have exercised no influence whatsoever on the propaganda possibilities which were to be made use of within Czechoslovakia proper (Document Number 998-PS).

The same is true of the Polish campaign. Here too, Fritzsche did not speak a single word in favor of any armed conflict, or deliberately spread any stories which might have supported any bellicose intentions. Even in his radio broadcast of 29 August 1939, which was held against him during his cross-examination (Session of 28 June 1946, Document USSR-493) he points out explicitly that there could not in fact exist any serious doubt about the German desire for peace. These and many other passages are particularly significant in proving Fritzsche’s good faith. He has expressed here his and the German nation’s disappointment that this desire for peace, which Hitler emphasized repeatedly, proved to be a lie, even a fraud. If one examines the full text of all the other broadcasts by Fritzsche shortly before and during the Polish campaign, none of his statements can be interpreted as favoring that war of aggression. The official reasons given at that time convinced Fritzsche, as well as millions of other Germans, that right was on Germany’s side. It was because Fritzsche had shared such a conviction, at that time, that he declared here on the witness stand that he, too, felt that he had been deceived by Hitler.

It was no different in the case of Yugoslavia. Here likewise, Fritzsche was able to learn only what facts were given to him and the many editors by the Reich Press Chief, facts which Fritzsche had no opportunity to verify if only because of the speed with which these events were developing, even if the thought could have struck him during the course of events that maybe the press was being made use of to provoke warlike measures.

The role of the press before the surprise attack on the Soviet Union was made particularly clear during this Trial. For reasons of strategy alone the entire propaganda machine—also including Fritzsche, as head of the Home Press Division—was not permitted to know the slightest thing about it in advance. It was especially this same campaign which Goebbels cleverly kept secret by simulating an intended German invasion of England. At that time, Goebbels deliberately led even his closest assistants on that wrong track, as was stated here by the witness Von Schirrmeister.

Fritzsche’s statement that he did not know anything about the secret preparations through the formation of a so-called Eastern Ministry was not refuted by the so-called Rosenberg report, which was read to him during cross-examination (Document Number 1039-PS). This is a document which has also played a part in other connections because of the many names it contains. At the same time, it is the only document which includes the name of Fritzsche in connection with any secret plans. From that document, which according to established facts was drafted by Rosenberg and some of his associates sometime around 28 or 29 June 1941—thus, after the start of the campaign—it is impossible to draw the conclusion that Rosenberg spoke with the Defendant Fritzsche before the decisive date. The draft does not bear any date or signature. Besides, Fritzsche is mentioned in it by the title of Ministerial Director which he was not given until the fall of 1942. This does not in any way appear to disprove Fritzsche’s statement on the witness stand that he never had been informed by Rosenberg either about an impending war with the Soviet Union or about the intended formation of an Eastern Ministry. Not until after the beginning of that campaign, and after the official announcement that a new Ministry had been established, were Rosenberg’s wishes with regard to the treatment of Eastern problems in the German press forwarded to him by the former’s assistants.

Thus Fritzsche’s deposition still holds, that in the case of the war against the Soviet Union, just as in the other cases, he did not learn anything until the moment when he was given the pertinent news for publication. You will grant that this does not permit the conclusion that he played the role of a conspirator who helped draw up the general plan, or at least knew of it. And it cannot properly be assumed that Fritzsche knew anything about the plans of the High Command of the Armed Forces in June 1941 (Document C-26), or even of the Bormann Protocol of 16 July 1941 (Document L-221)—both of which were submitted to him during his cross-examination. These negotiations show that actually they could have taken place only in the innermost circle. Moreover, the evidence which did not concern Fritzsche directly has shown that even military methods of deception had been used to conceal the plans. This has been stated by the witness Paulus and becomes clear from the report of the German military intelligence service (Document 1229-PS). The nature of all these things was such that they could well be withheld from a newspaper man. Even the witness Gisevius, who after all was always engaged in ferreting out secret ends, had to point out how much effort was required even within the High Command of the Armed Forces to obtain information, at any time, as to whether Hitler was planning a war or not (Session of 25 April 1946).

Accordingly, I can state in conclusion that the emphatic assertion of the Prosecution that Fritzsche as Goebbels’ accomplice helped the latter to plunge the world into a blood bath of wars of aggression (Session of 23 January 1946) is not justified. During my examination of Fritzsche he pointed out, in contrast to this, that whatever the facts may have been in individual cases, at every moment, from the advance into Austria to the invasion of Russia, he and the German public were given only such information as seemed to justify the necessity of the German actions.

Now, one could also conceive the charge of a crime against peace to be that Fritzsche constantly called on the German people to hold out during the conduct of a war of aggression. Naturally he did not spread any defeatist propaganda in the course of his radio speeches. I must, therefore, discuss the question whether this, or any sort of participation in a war of aggression, after the latter had broken out, should be considered as participation in the crime against peace and should be punished accordingly.

The French Chief Prosecutor, M. de Menthon, tried to draw the conclusion—proceeding from a literal interpretation of Article 6, Paragraph 2 (a) of the Charter, without regard for the real meaning of this article—that the soldiers and other agents of the aggressor state could not undertake any military operations at all which could be justified by international law. However, he was obviously compelled to recognize that in practice this idea must lead to impossible consequences. Thus, for example, he recognized the Hague Convention for the Rules of Land Warfare as a law which not only obligates aggressor and attacked nations alike, but also gives them rights. He thereby let it be clearly recognized by implication that, in his opinion, this stipulation of the Charter is to be interpreted restrictively.

In Article 6, Paragraph 2 (a) of the Charter the following are defined as Crimes against Peace: “The plan, the preparation, the introduction, and”—according to the German translation “Durchführung”—“waging of a war of aggression.” “Durchführung” is the translation of the English word “waging.” It would probably be more correct to translate it by “unternehmen” (undertaking). But in its natural sense, “unternehmen” means about the same as “beabsichtigen” (intending); whoever undertakes, pursues, intends something, has not executed it yet. The word “durchführen” could create the opinion that the crime against peace was not concluded with the outbreak of war, and therefore could extend over its entire duration. The result of this conception would be that all persons who participated in war operations, as, for instance, the Army leaders, all members of the Armed Forces, and, besides that, all persons who supported the war in any way—even by deliveries of war material and through radio broadcasts—would be punishable according to this stipulation. They had thereby at least contributed support to the waging of war. These persons could even be criminals against the peace, if they had in no way participated in the planning or preparation of it before the outbreak of the war, and even if they had no idea that any aggression was involved.

In reply to this, the following must be stated: Only those persons can be considered as waging a war of aggression who planned it themselves. They were just carrying out their common plan by starting the war, with or without a declaration of war. Thus “carrying out” is to be placed on the same level as “beginning.” The accusation of a crime against peace can affect only those who also planned it. This is supported by the following reasons. The punishment is intended to protect the peace against wars of aggression—that is, against unlawful wars. At the moment that such unlawful wars start—are “unleashed,” as the Indictment puts it—the rightful domain of peace has been violated; the crime against peace is consummated and accomplished. Therefore, no other meaning but “bring about,” “proceed to execute the plan,” can be attributed to the term “carry out,” or “undertake”—“waging.”

This interpretation is also consonant with the historical development of the concept of “crime against the peace” in international law. For years international law has made a distinction between war crime in the narrower sense and war guilt in the broader sense. War crimes are offenses against the rules of warfare, which have been established by agreement or custom, against the customs of war and, going further, also offenses against humanity. War guilt means being guilty of having brought about war, in particular an unjustified war of aggression.

This distinction also made its appearance during the negotiations about the peace treaty after the first World War. This has found expression in Article 227 et sequentes of the Treaty of Versailles. There can be no doubt that the concept of a crime against the peace within the meaning of the Charter is intended to be the same as this war guilt in its previous sense in international law. Article 6, Paragraph 2 (a) is supposed to refer to war criminals—that is to say, those who bring about an unlawful war.

The view that the subsequent support of a criminally instigated war was likewise a crime against peace necessarily led to entirely untenable consequences. In such a case, hardly one citizen of a country which had started a war of aggression would be guiltless. In its present-day form, war is no longer, as in former times, limited to an armed conflict between the armies. Just as both World Wars have shown, it has been extended to include the belligerent nations in their entirety and all their spheres of life. It has grown into total war—total in the sense that everybody participates in it. Even the woman who is making screws in a factory is a participant in this total war. And, as Professor Exner so vividly explained in his final speech, in a war of aggression every capture of prisoners would mean a deprivation of liberty, every requisition a robbery, and every shot a murder. To want to make all members of a nation responsible as authors of crimes against peace would be absurd. Moreover, a classification as to the kind and degree of a person’s contribution toward a war which had broken out would be impossible as a practical matter.

Crimes against Peace, therefore, can only be committed by those who participated in breaking the peace—while the vast majority who did not participate in it could not be counted in this category.

The point of view which has been developed here is, in my opinion, also represented in the Indictment. The latter views the crime of breaking the peace as realized by the act of “unleashing” (Entfesselung). In no place has it even been hinted that the crime itself, or its continuation, is seen to consist in the participation in a war or in supporting it by furnishing services or supplies of any kind. Even according to the phrasing of the Indictment, from the moment of the beginning of war onward, only crimes of the second and third group come into question—that is to say, War Crimes in the narrower sense of international law, and Crimes against Humanity.

In my opinion, Justice Jackson in his opening speech of 21 November 1945 also adopted the point of view which has been advanced here, whereupon Justice Biddle pointed out to him in the session of 1 March 1946 that, at that time, he had indicated that beginning the war was the essence of the crime and not actual waging of the war. That means, in other words, that with the beginning of the war of aggression, the Crime against Peace within the meaning of Article 6, Paragraph 2 (a) of the Charter, was consummated (breach of peace).

From these statements it follows that any activity in furtherance of the war during the war cannot represent any criminal act, nor can Fritzsche’s radio broadcasts which he made during the war.

THE PRESIDENT: The Tribunal will adjourn now.

[The Tribunal adjourned until 25 July 1946 at 1000 hours.]