The Nizkor Project: Remembering the Holocaust (Shoah)

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The German legal consciousness has had to face the most
complicated legal problems, particularly in connection with
the subject 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 - I
repeat, what is involved are common law concepts - as to
prohibit perhaps the taking into account of the deep-rooted
conceptions of common law of those accused here in judging
an accomplice who acted as an accessory? Is it possible that
it entirely ignored even the completely different structure
of Statute Law?

In view of the utterly different nature of Statute Law -
especially with reference to the question of accessorial
assistance, I ask permission to make a few remarks on the
legal dogmatic 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 59
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 the
administration of justice, therefore, have made a sharp
distinction between the perpetration of an act itself and
the mere 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
German administration of justice, particularly that of the
Reich Supreme 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 socue, but the
perpetrator himself the animus auctoris. According to German
law, the assistance seen from the exterior, that is
according to objective factors, is only a furtherance and
support of the action of the principal perpetrator; the
accessory must have helped to bring

                                                  [Page 349]

about success by his support. If he has not helped to bring
about this success, then he is not an accessory. Then his
action is not punishable.

Concerning the mental side of the deed, the dolus, the will
of the accessory (animus socue) 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.

And this discrimination is furthermore decisive as to
whether somebody has given assistance at all.

I have stated before what Fritzsche was in any way able to
know about plans or the execution of them, from the range of
his duties. Only if it had been proved that he had a
definite knowledge and will as an accessory to the plans
could he be convicted. It would also have to be investigated
in the case of the defendant Fritzsche whether what he knew
and wanted in connection with an alleged furtherance is
identical with what anyone as a principal perpetrator of a
crime then actually did. Only when the knowledge and intent
of both agree can there be question of an accessory at all.
In this connection it is to be emphasized that a vague
knowledge, a very general intent, is not sufficient to
establish the state of being an accessory. The accomplice
must be concretely aware of the elements of a plan which
another is to carry jut in accordance with his intention.

The prosecution, however, also charges Fritzsche in various
points with instigating specific crimes as an accessory. And
so the third question is: Has Fritzsche been the instigator
of any single crime?

At the beginning of these legal statements, I have already
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 common
law. The concept of "incitement" is used essentially to the
extent that it corresponds to the German legal concept of
mere invitation. This charge of instigation can only be
raised in so far as it can be said to concern the individual
responsibility of Fritzsche for a specific crime mentioned
in Article 6, paragraph 2 (a) - (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.

Instigation as an accessory form of participation in the
general legal sense presupposes, however, contrary to 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 does not consist in affirming or strengthening the
intention of the individual who has already decided to carry
out the deed as in the case of the accomplice, but in first
producing or creating the will for the deed. The means for
this can be of the utmost variety, but the perpetrator must
first have his mind changed - to be persuaded to do what is
intended.

Assistance and instigation accord again as accessorial forms
of participation, in that also in the case of instigation a
conscious causative connection willed by the instigator must
exist between his instigation and the decision of the
perpetrator. The principle of equivalence is valid just 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, only responsible
to the extent that his intention goes. A possible exccssas
mandati cannot be attributed to him. From this follow the
accessorial forms not only of assistance but also of
instigation.

The evidence has not furnished the slightest proof in the
Fritzsche case that he has committed an individual crime as
instigator through his transmission of news. There is not
the slightest evidence to show that he has instigated a
single person to murder, cruelties, deportations, killing of
hostages, massacre of Jews or other crimes mentioned in the
Charter, or had caused a single crime by his speeches to

                                                  [Page 350]

the public. Not a single, passage from his nearly 1,000
wireless speeches could be produced from which such
individual responsibility could be deduced. That was not
possible with public speeches anyway. The crimes which were
committed were carried out by people completely indifferent
to Fritzsche's propaganda. They received their impulses or
instructions from altogether different sources. Were not
these deeds to be kept secret? The official news service was
to avoid handling this as much as possible. As this trial
has shown in a particularly impressive manner the
perpetrators took the greatest pains to limit knowledge of,
for example, the annihilation of the Jews to a very small
circle. What is self-evident with every other State
Constitution, namely, that occurrences in the country should
be handled through the Press, was not permissible in a
dictatorship. The people were not to be asked whether they
approved such occurrences. The crimes established by this
trial were not to be given any publicity. 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 occurrences were specially
kept secret from the Press and the radio?

For not in a single case - even though the speeches of
Fritzsche may have had a marked tendency - can it be said
that he, through public speeches, of all things could have
instigated a single individual to commit punishable deeds.

Possibly the juridical indications of the prosecution do not
go so far. The prosecution will reproach Fritzsche that he
contributed to produce an "atmosphere of hate". Only through
such propaganda was it at all possible for 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 I have proved that
this absolutely does not hold true. If he had actually
created an "atmosphere of hate", this would not - outside of
the group of conspirators - from a legal point of view have
enabled him to instigate anyone to commit certain crimes.
Furthermore, according to the provisions of the German Penal
Law, exhortations disseminated by radio would even exclude
the fact of an instigation in a criminal sense. According to
German jurisdiction as practised for decades, an instigation
would legally be impossible because the influence exerted
could not have been centred 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, any sort of exhortation directed
toward a group of persons individually undefined, does not
constitute an instigation; it is rather outside the
framework of legal relevancy altogether. It is quite self-
evident, however, that Fritzsche's radio addresses were
perforce directed to an entirely unlimited number of
persons. Inasmuch as he was seriously striving to find for
the German Press and radio propaganda a "foundation based on
truth", could he have the intention at all to instigate to
criminal actions? My client admitted in an impressive and
unequivocal manner that he followed the tendency of the
official German policy in his news reports and comments. In
other words, he did not take advantage of the fact 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 the law, when it is
concerned with incitement to complicity, or with assistance
given as an accomplice, good faith is equivalent to lack of
will and lack of purpose.

This establishes:

  (1) that the defendant Fritzsche did not belong to the
  scheming group of conspirators;
  
  (2) that he was never at any time a member of a group or
  an organization which is to be declared criminal here;

                                                  [Page 351]

  (3) that for actual and for legal reasons he is not
  personally guilty of a war crime or a crime against
  humanity, neither as an accomplice nor - according to the
  law - as an instigator, and not even - also according to
  the law - as an assistant.

And so, I believe I have sufficiently discussed the question
of evidence and the legal conclusions to be drawn therefrom.
It is necessary, though, to mention one other thing. The
Fritzsche case also has its human aspect.

Apart from the pros and cons of the legal potentialities,
another obvious question must not be left unanswered: Can it
be directly attributed to Fritzsche as a human being that he
had knowledge of or was co-originator of all the horrors
which came to light in this Court? In the sense of the
Indictment only he is a dolose instrument in the hands of
the conspirators - of whom Goebbels was perhaps one - who
had knowledge of their aims and purposes.

Fritzsche's behaviour and utterances, however, were not
dictated by criminal will. During his examination before
this High Tribunal, Fritzsche pointed out the fact that he
did not refer to his duty to obey. But he added that as far
as his own person was concerned he was never expected to do
something criminal. And he furthermore declared: No, one had
to let himself be forced to carry out an order in which he
could not help seeing the intended crime. Undoubtedly,
Fritzsche sacrificed his own convictions and made 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 of inherent dangers to
his own person, dangers which ambushed every person who
tried to penetrate that which absolute secrecy intended to
hide, he traced and examined the news which came from within
Germany itself. He did not permit himself to be put off with
paltry, vague explanations. He reported here many details. I
merely refer to his visits to Glucks and Heydrich, and his
investigations in the Ukraine.

Wherever he learned about criminal plans-such as the
"Kommissarbefehl" and the plan to revenge inhumanely the air
bombardments on Dresden, he fought against them with
determination, in the latter case even with the help of a
foreign ambassador. And he was successful, too, as these two
particularly conspicuous examples show. He did this because
he followed the voice of his conscience. He did not first
engage in lengthy deliberations as to the pros and cons. As
regards the "Kommissarbefehl" he merely had heard of it as a
soldier - he had never read it, not did he know whether it
actually was carried into practice at any time - and he at
once raised a protest. When Goebbels ordered him to announce
a mass murder of Allied flyers he did not mind incurring the
anger and the fury of his Minister Dr. Scharping described
this in detail. When he learned of cruelties in the
concentration camp at Oranienburg he even sounded an alarm.
The culprits were punished 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 appealed to him.
Significant for his tolerance is the fact that he made the
continued publication of the Frankfurter Zeitung possible.
Other proofs along that line which are also submitted with
my Document Book 2 are not negligible, and in the case of
Fritzsche certainly cannot simply be passed over with the
comment that with his other hand he "cold-bloodedly" handed
men over to their death.

He was not willing to sacrifice his dignity as a human
being, not even to the seeming demands of what paraded as
idealism, or for the sake of an oath he had taken.

While the prosecution has tried to darken the picture, I can
also point to brighter spots, namely, those which have a
bearing on him as a propagandist.

Was he a liar - and even perhaps a notorious liar? That
Goebbels was one became clear by the revelations of this
trial. And as it was wrongly assumed that Fritzsche was his
right-hand man, the implication was of course that Fritzsche
had the same

                                                  [Page 352]

attributes. This assumption should now clearly be refuted.
It is my conviction that, had not Goebbels evaded his
responsibility by seeking a way out through death, we should
not see Fritzsche in the prisoners' dock here as
representative of the Propaganda Ministry. The further
assumption that all collaborators of Goebbels must wittingly
have made use of lies too is unjustified. It would only be
justified if it had been established here that Fritzsche was
in a position to grasp all the real and deep-lying
connections and causalities. But only this trial made that
possible. Fritzsche remained entangled in error like
millions of other Germans. Glaring abuses were to be seen
everywhere. Fritzsche was not unaware of them. Indeed, he
has declined to be characterised before this Tribunal as an
opponent of Nazism. He does, however, claim for himself to
have opposed abuses in so far as he could. recognize them.
This entitles him to be put on a higher moral plane.

Neither was he a zealot or a fanatic, possessed only by some
idea or by the adoration of power and success and
inaccessible to criticism. Of course, it was a sin, indeed
the grievous sin against the spirit, to have continued to
serve the system. The decisive point is, however, whether he
was in a position to detect more than mere abuses. Falsehood
was already built into the foundation and anything built
upon that was bound to be deceitful. It was not only the
"thousand doors Ministry", as it was once called, that was
poisoned. The real reason why everything in Germany was
poisoned by falsehood could best be detected by those who
lived in a purer atmosphere.

Fritzsche did not keep immune from the phraseology, but he
used it perhaps with better taste than many others. He was
in a position to state here - and this is no mere empty
phrase - that he has always acted fairly and honourably in
every respect in his professional work. Dr. Scharping, too,
has emphasized this in his affidavit. Is this not an
indication that he really did not detect that the whole
foundation upon which his work was built up was hollow and
deceitful? Had he been a professional liar, he would not
have been interested in doing clean, honest work, in
checking foreign reports and in all that which induced him
to find a truthful basis for the Press and radio.

The prosecution has laid stress upon his rise in the
Propaganda Ministry. Did they mean to imply thereby that he
was particularly qualified as a liar? Actually, his career -
however modest it was compared to that of Hitler's other
vassals - has quite a different foundation as has also been
clearly determined here. He made headway only because he was
a capable journalist, an expert; not because he was
particularly good at lying but because he had a better
command of speech than many others.

As proved by the affidavits of Dr. Scharping and Frau
Kruger, Fritzsche lived on a modest scale. During his
activity in the Propaganda Ministry he gathered no riches,
possessed no luxurious dwelling, nor would he accept any
presents. The prosecution, moreover, made no claims to the
contrary. It therefore does not appear astonishing that
those who had not only heard his voice on the radio but also
knew him personally should have particularly emphasized his
humane qualities. Dr. Scharping declared in his affidavit it
was considered a distinction to be allowed to work with him.
Is it in keeping with human experience that a man who lies
could have won such respect? I believe human esteem can only
be won by an honest character. Those who are in daily
intercourse with a person can find out whether he is a liar
or not. And if his speech does not betray him, then his eyes
will.

There may be many possibilities to clarify the contradiction
that somebody who has co-operated in the propaganda of the
Third Reich is nevertheless honest and a lover of truth. The
most immediate explanation is probably that which can well
be taken from Fritzsche's own remark, that he felt - and
this may well be significant for the verdict if not for
history - that he, too, was deceived by Hitler.

Before this Tribunal, Fritzsche has not only defended
himself but the German people as well. To what extent he
himself is responsible to the German people

                                                  [Page 353]

for the fact that he, again and again and till the end,
urged them to see the war through is not a matter to be
decided here.

Even though Fritzsche may not, like others, have realised at
an earlier date that he was serving an evil cause, or
although he may have divorced himself from the State
leadership because he wanted to share the cup of bitterness
with the German nation to the last dregs, he is not guilty
in the sense of the Indictment brought against him before
this Tribunal. I ask for his acquittal.

THE PRESIDENT: The Tribunal will adjourn until two o'clock.

(A recess was taken until 1400 hours.)


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