The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Eighty-Sixth Day: Thursday, 25th July, 1946
(Part 3 of 9)

[DR. FRITZ continues.]

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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

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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

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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;

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(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

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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

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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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