The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/10/18

DR. FRITZ, Continued:

I can be spared mentioning particulars in this connection,
because Fritzsche dealt in detail with the matter during his
testimony. The speech of 7th April,, 1945, 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 still have one point of the evidence to refer to.

General Rudenko submitted to Fritzsche a short document at
the end of his cross-examination. It is a copy of a short
message, signed by Fritzsche, of 19th October, 1944,
addressed to Major von Passavant, a wireless expert of the
Propaganda Branch of the OKW. The Russian prosecution wishes
to conclude

                                                  [Page 344]

from the contents of this communication that Fritzsche had
committed himself to the preparation and execution of some
kind of "biological war". Such 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 stacks of letters from unknown radio
listeners. A subordinate official looked through such
letters, of which hundreds arrived daily, and directed them
to wherever they would perhaps receive special
consideration. The letter of the radio listener Gustav Otto
from Reichenberg, which apparently contained a suggestion to
carry out "biological warfare", followed exactly the same
route. Although Fritzsche in his capacity of Department
Director signed the transmitting letter composed by the
subordinate official, 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 unfavourable be
deduced against the defendant Fritzsche from this sort of
evidence? Especially as it is completely unknown what the
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. This, as well as
the English text, differs considerably in content from the
original German text. If notwithstanding the insufficiency
of this document - the meaning of which could in any case
only be clarified by the "appendices" which are lacking -
the Tribunal believes it deserves consideration, the first
requirement would be to have exact translations made from
the original German text.

In concluding my evaluation of evidence, I wish to say that
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,
namely that he spoke sincerely and truthfully before this
Tribunal; and that because of his own desire to make every
possible contribution so that a sound foundation for a
proper judgement may be achieved. And going even farther,
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
Schirrmeister. The latter, who during the most important
period between 1938 and 1943 was the daily companion of
Goebbels, was able to report directly, and I dare say with
great clarity, on the true conditions in 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 corroborate the contention that
Fritzsche's importance in reality was greater than the chart
of the Propaganda Ministry indicated.

The discussion of the bare facts alone ought to have made
clear that Fritzsche can in particular bear no
responsibility for what is, as far as 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 worked was
misused, then Fritzsche himself was misused. The assumption
that Fritzsche was Goebbels'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 which have come up for discussion. 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. Even from the dealings and actions themselves of
my client it

                                                  [Page 345]

ought to have become clear that the assertions of the
prosecution have gone much too far.

In the legal consideration of those acts and dealings of
Fritzsche by Captain Sprecher, it was quite striking that -
as far as I can see - at only one point, and here, too, in
distinction to the other defendants, 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 at this point that the factual
prerequisites for such an opinion did not exist. Now I am
only concerned with establishing, in regard to the legal
qualification by the prosecution itself, that in discussing
his case his activity will only be judged 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 Tribunal because of his aiding and
abetting; he is characterised as an "accomplice" of
Goebbels, he is said to have assisted in producing
propaganda material, helped create an atmosphere of hatred,
lent support, etc., whereby it becomes obvious that he could
not have been one of those who did the planning. On the
other hand, it is said also of this defendant that he was an
active instigator and inciter and that he stirred and
aroused people's passions.

The first question snow is: Does the "accessory" helper also
belong to the "participators" within the meaning of
paragraph 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 characterised by the prosecution to a great
extent only as an accomplice. I am, therefore, compelled to
give the question closer scrutiny. These four concepts:
leader, organiser, instigator and participator, are said to
be equivalent to a certain extent. The four possible
perpetrators are also to be dealt with equally. These four
concepts, in so far as they differ textually, can therefore
only explain in what different forms a plot can be
fashioned. One person instigates, the other organises,
another leads the gang, still another takes part in the plot
in some other way. Therefore, all four concepts are closely
connected with the common plan. They are united only because
of the common plan. Only that makes them true accomplices.
To make plans jointly, to want jointly to carry something
out, that is the primary concept ruling these four secondary
concepts. Only the functions amongst themselves may of
course be different. They can also be divided by the
conspirators themselves. If 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 them plays in its execution. It
should, therefore, also be basically unimportant whether
within this plot someone is the leader, the inspirer or
merely another participant in the plan. But, everyone must
be a party to the plan. At least, he must have recognized
its purpose, 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 - but only 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 wider meaning in an accessory
sense can therefore not be given to this concept.

In common law, the concept of accomplice as main concept has
also an altogether different meaning for the accessory. By
accessory, according to the common legal conception, only
one of the forms of complicity is understood, and that is
the form by which a deed by another person is only supported
or furthered - a deed which the accessory does not exactly
want to be his own. It means the dependence 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

                                                  [Page 346]

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, for 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. But if the opposite is true then
it must follow that: Whoever does not participate at all in
the formation or discussion of a common plan can, therefore,
not be charged with full responsibility for what others have
done. It is thereby immaterial 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.

This description of participation as restricted to the plan
is, in my opinion, expressed also in other parts of the
Charter. In paragraph 1 - and not only in paragraph 6,
section 1 - it is stated that in execution of the Four-Power
Agreement of 8th August, 1945, at first the "principal war
criminals", the "principal culprits", the "principal
conspirators" or whichever way it is expressed, should be
called to account here before this Tribunal. Assistants,
accomplices, simple agents of execution and all other merely
dependent, accessorial culprits who do not belong to the
central body - that is to say who are not connected with the
conspiracy plan or in close agreement for the carrying out
of a single crime - cannot be considered as belonging to
such a group. Within the meaning of conspiracy and the
responsibility of the one for the other connected with it,
there can be no simple "helpers" at all.

As concerns the defendant Fritzsche I have demonstrated that
- owing already to his position in the State and the Party
structure - he can neither belong 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. That his particular field lay even
outside the framing of the plan. But that it was not
necessary for him to have correctly understood the basic
strategy, to have perceived the aim, when he became the
spokesman of the conspirators. I believe that this
conclusion, if the concept of "participator" within the
meaning of the conspiracy is rightly estimated, contains an
error of thought: He who is said to have even been excluded
from those who made the plan does definitely not belong to
the group of conspirators.

After these legal arguments which are even supported by the
opinion of the 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 not have been a participator in the alleged
conspiracy. At any rate he cannot be punished according to
Article 6, last paragraph, of the Charter. According to the
intellectual construction of the Charter there was supposed
to be somewhere a limit fixed concerning the arraignment of
a single person in these trials. When is someone a
participator - accomplice - and when is he not, but only a
perpetrator or accessory? Where is this boundary through
which the responsibility for individual deeds can be
separated from the responsibility for what others have done?
There must be a dividing line for this collective
responsibility also. I think the common plan constitutes
this dividing line. He who does not belong to those who do
the planning must also be left out of the group of
conspirators.

On the other hand, the framers of the Charter provided for
the possibility:

  (a) of pronouncing an individual a criminal culprit even
  though he does not belong to the group of conspirators,
  and

                                                  [Page 347]

  (b) of declaring an organization as such a criminal
  organization.

If the defendant Fritzsche does not belong to the group of
conspirators 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 offence. If he does not belong to the
conspiracy, if he does not belong to an organization, the
prosecution cannot rely on a so-called legal assumption, an
assumption which is supposed to result from the mere
membership in an organization. It is not possible to reverse
the evidential proof.

The second question then is: Did Fritzsche, as an
accessorial accomplice or abettor, belong to the class of
those criminals of whom it has been proven that they as
individuals committed crimes against peace, a violation of
law governing warfare, or crimes against humanity?

He as an individual is not charged with having committed one
of these crimes with his own hands. The charge is directed
against him only by reason of his activity as an accessory.

As far as I can see, the establishment of the concept of the
accessorial accomplice is not foreign to the English and
American criminal law. However, 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 English law was inclined to apply the principle of
equal punishment for perpetrator and accessorial accomplice.
The reason for referring here to English common law is
merely in order to establish a link with the German concept
of law. It is, therefore, sufficient to establish at present
that English and American law also differentiates between a
perpetrator and a mere accessorial accomplice.

On that point, however, a decisive difficulty arises,
resulting from the 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 be different
because their Statute Law is not the same.

That is the reason why I cannot as yet conclude my legal
argumentation: Differences in conceptions, although familiar
to both legal spheres, result in entirely different legal
consequences as far as Statute Law is concerned.

The British Chief Prosecutor referred to the individual
responsibility of each single defendant according to the
meaning of Article 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. By stating this he possibly represented the view
that according to the spirit of the development of English
law such persons; by reason of their complicity in someone
else's deed, must be punished in the same manner as the main
perpetrator; that is that the function as an accessory of
the accomplice, if I understood Sir Hartley Shawcross
correctly, is, in principle, without importance even with
respect to common law. In practice this might mean that a
legal distinction between accomplices and accessories plays
no part here, except possibly as far as the individual guilt
is concerned. Is the one who merely supports the deed of
someone else to be judged, in principle, in exactly the same
way as the one who wants the deed to be carried out as his
own? I am able to point out what effects such an
interpretation could 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 be
commonplace for every adherent to the English and American
law, but this does not hold true for a German defendant. As
I also infer from the argument of the French Prosecutor,
Dubost, this does not seem to hold true for French common
law either, because he pointed out that according to the
principle of penal law, strictly speaking, all the
defendants could

                                                  [Page 348]

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 common law with its rationalistic statics;
that it would be necessary to apply a law which goes beyond
this.

The concept of conspiracy therefore - the science of the
plot (Komplottlehre) - and the possibility to declare an
organization criminal, are to be the vehicle by means of
which it will be possible to go beyond 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 common law for judging
the individual deed. Which law is otherwise to be applied
for such general concepts as for instance, guilt, dolus,
carelessness, but also for the function as an accessory of
the accomplice? It is possible that through the
establishment of new facts, the Charter created new
substantive law. But what is the juridical concept with
which to approach these new facts? The classification of the
actual circumstances of a case 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 be judged only according to
principles which also must apply for every other delict of
common law. If concepts such as, for instance, an accomplice
who acted as an accessory are involved, argumentation
against a defendant can take place according to common law
only.


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