The Nizkor Project: Remembering the Holocaust (Shoah)

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Owing to the period of time which has elapsed since the
First World War and its propaganda on both sides, we can
today consider the events of those days

                                                  [Page 334]

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 War-time - showed
up in a French school-book even in the midst of peace,
nearly ten years after the First World War. 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 has
unfortunately so far remained unsettled.

In view of the goal striven for by Justice Jackson in this
trial of also 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
its assertion of a logical development of existing laws 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.

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 crimes against peace are concerned,
the prosecution acts 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 leader 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 in relation to the real
leaders of propaganda, Hitler, Goebbels, Dietrich and others
- could only know what his superiors passed on to him, as
well as to other civil servants, as the historical truth.

I am reminded of the fact that all witnesses who have
testified at all 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 only informed in these cases of what 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 could he have known 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 15th March, 1939.
These consisted, as in all other cases, of so-called "Daily
Directives", 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 Volkischer

                                                  [Page 335]

Beobachter, due to its direct connection with the Reich
Press Chief - and during the war, with the headquarters of
the Fuehrer - was more independent of such daily directives,
since it had a foreign news service of its own. What was
printed in the Volkischer Beobachter does not, therefore,
represent what had been approved by Fritzsche as leader of
the German Press. At that time Fritzsche had already - and
that attitude is of greatest importance in 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 "Fall Grun" 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.

The same is true of the Polish campaign. Here, too,
Fritzsche did not speak a single word in favour of any armed
conflict or deliberately spread any stories which might have
supported any bellicose intentions. Even in his radio
broadcast of 29th August, 1939, which was held against him
during his cross-examination, 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 had 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 favouring 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 his 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 at all during the course
of events that 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 Inland Press
Division - was not permitted to know the slightest thing
about it in advance. It was also 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. This
is a document which has also played a part in other
connections due to 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 the
28th or 29th of June, 1941 - thus after the start

                                                  [Page 336]

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 autumn 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 a Ministry for the East. 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 Wehrmacht in June, 1941, or even of the
Bormann Protocol of 16th July, 1941 - both of which were
submitted to him during his cross-examination. These
negotiations show that actually they could only have taken
place 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. 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
Wehrmacht to obtain information at any time as to whether
Hitler was planning a war or not.

Accordingly, I can state in conclusion that the emphatic
assertion of the prosecution that Fritzsche as Goebbels's
accomplice helped the latter to plunge the world into a
blood bath of wars of aggression 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 2a 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 2a of the Charter the following are
defined as crimes against peace: "The plan, the preparation,
the introduction, and, according to

                                                  [Page 337]

the German translation, the 'Durchfuhrung' (waging) of a war
of aggression". "Durchfuhrung" is the translation of the
English word "waging". It would probably be more correct to
translate it by "undertaking" (Untemehmen). But in its
natural sense undertaking means about the same as
"intending" (beabsichtigen), whoever undertakes pursues,
intends something, has not executed it yet. The word
"waging" 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.

To counter 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 form of 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 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 offences
against the rules of warfare, which have been established by
agreement or custom, against the customs of war and, going
farther, also offences against humanity. War guilt means
being guilty of having brought about war, in particular an
unjustified war of aggression.

This distinction also made an appearance during the
negotiations over the peace treaty after the First World
War. This has found expression in Article 227 ff. of the
Treaty of Versailles. There can be no doubt that the concept
of a crime against 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 2a, 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 vital interests. 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.

                                                  [Page 338]

Moreover, a classification as to the kind and degree of a
person's contribution towards 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 - Mr.
President, I still have one page - 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 realised 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 onwards, 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 21st
November, 1945, also adopted the point of view which has
been advanced here, whereupon Justice Biddle pointed out to
him in the session of 1st 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 2a, 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 25th July, at 1000 hours.)


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