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 2 of 9)

[Page 343]

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

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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

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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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