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-Fifth Day: Wednesday, 24th July, 1946
(Part 11 of 11)

[DR. FRITZ continues.]

[Page 333]

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

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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

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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

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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

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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.

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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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