dtufail/nuremberg-trials-corpus huggingface dataset:
DR. FRITZ: 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 of whom it is said that he even stood outside those who made the plan definitely does 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 underlying conceptions of the Charter there should be somewhere a limit fixed concerning the indictment of an individual person in these trials. When is someone still an accomplice, and when is he no longer that but only a tool or accessory? Where is this boundary through which the responsibility for one's own deeds can be separated from the responsibility for what others have done? Because 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 culprit a criminal even though he does not belong to the group of conspirators, and (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 definitely 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, Justas in any ordinary criminal procedure. the Prosecution must furnish proof of a criminal offense.
DR. FRITZ: 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 accomplice or abettor, belong to the class of those criminals of whom it has been proven that they as individuals committed crimes against peace, violations of law governing warfare, or crimes against humanity? He as an individual is not charged with committing any 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 concept of the accessorial accomplice is not foreign to 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 seems 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 differentiate between the concept of a perpetrator and that of a mere accessorial accomplice. On that point, therefore, a decisive difficulty arises, resulting from the fact that there is a difference in the concept of right and 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 inferences as far as statute law is concerned.
DR. FRITZ: The British chief prosecutor (Session of 4 December 1945 a.m.) 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, the accessorial quality of the accomplice, if I understood Sir Hartley Shawcross correctly, is in principle of no importance even with respect to * Chronological differentiation: Accessories before the fact, principals, accessories after the fact. A differentiation of principals is also made according to the degree ** of the matter, dividing them into matter of first degree and of second degree the latter are also segregated into those who assisted in execution itself through advice (abetting) or those who lent aid during commission of the deed (aiding). *** Mention should be made that an English law (act of 1861), for example, makes a differentiation between accessories and abettors, abandoning-even though merely as a matter of choice-infliction of equal punishment in the case of different types of crimes, so that in the case of felonies equal punishment may be inflicted: "may be punished" . . . In case .of misdemeanors, it is true, equal punishment must be imposed: "shall be liable to be punished." common law. In practice this might mean that a legal distinction between accomplices and accessories plays no part here, or at best might determine the degree of the respective responsibility for the measure of the individual guilt. 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?
DR. FRITZ: I may refer to the effects which 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, none of The defendants could in that case 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 (Session of I February 1946 a.m.). The concept of conspiracy, therefore-the science of the plot (KomplotMehre)-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 is to 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, intent, negligence, but also for the accessorial quality 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 only by means of the analogy of penal law concepts. With regard to the facts of the case listed in Articles 6(b) and (c) of the Charter, these correspond essentially with the facts of a case in common law.
DR. FRITZ: A defendant as an individual who did not take part in drawing up 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. German legal ethics have had to face the most complicated legal problems, particularly in connection with the doctrine of the forms 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 taking into account the deep-rooted legal concept 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 49 of the Reich Penal Code, there is not only a strict separation between the accomplice and the perpetrator, 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.
DR. FRITZ: Jurisprudence and the administration of justice, therefore, have made a sharp distinction between the perpetration of an act itself and the mere abetting or support of somebody else's act by the accomplice. This distinction is made not only in accordance with external characteristics> objective factors, but also with regard to what occurs in the mind, and thus with 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 socii, 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 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 intent, the will of the accessory animus socii 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 * Reich Court 56, 168: "A condition for the action of another person must be established objectively." law also makes a sharp distinction between will and knowledge. * And this discrimination is furthermore decisive as to whether somebody has given assistance at all. I have stated before what Fritzsche could have known about plans or their execution from his duties. Only if it has 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 someone, as a principal perpetrator of a crime, then actually did.
DR. FRITZ: 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 out in accordance with his intention.** The Prosecution, however, also charge 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 already referred to the details of Captain Sprecher's prosecution speech (Session of 23 January 1946). 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 (Aufforderung). This charge of instigation can only be raised insofar as it can be said to concern the individual responsibility of Fritzsche for a specific crime mentioned in Article 6, Paragraph 2(a) to (c). The assumption that Fritzsche was a possible instigator to a common * If I am not mistaken, this corresponds roughly to the distinction between the act of intent (vicious will) and the ability to distinguish between good and evil (some blameworthy condition of mind) of English legal theory. " These legal principles have been developed on the basis of Paragraph 49 of the Reich Penal Code in many decisions of the High Court of Justice of the Reich; the reproduction of at least one of these decisions seems appropriate to explain the German legal theory. As early as in its decision of 7-10-1690 (RG.
DR. FRITZ: 21, 95) the High Court of Justice of the Reich formulated the question as follows: "Because the substance of being punishable as an accessory lies in knowingly furnishing help in the commission of the perpetrator's offense, it does not only presuppose that the accomplice must have had knowledge of all the essential characteristics of the deed to be committed, but also that his will, his intent, was directed toward supporting and furthering the execution of this specific, concrete deed of the perpetrator by his assistance. The deed that was actually committed or intended must coincide to this extent with that which was knowingly supported by the accomplice in all essential characteristics. If this agreement is lacking, especially should the perpetrator use the assistance given him for the execution Of another deed or for a more serious deed which for special reasons remained unknown to the accomplice, this cannot be ascribed to the accomplice. His criminal responsibility extends only as far as his intention to furnish assistance goes and finds fulfillment." Compare to this also the decisions in RG. 15, 316; RG. 37, 323; RG. 56, 350. plan within the group of conspirators cannot be substantiated, in any case, in accordance with what I have already explained earlier. 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.
DR. FRITZ: 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 be brought to change his ideas in that direction.** Assistance and instigation as accessorial forms of participation correspond to one another, in that also in the case of instigation a conscious and causative connection, also willed by the instigator, trust 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 of his intention. A possible excesses mandati cannot be attributed to him. From this stems the accessoriness 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, as instigator, caused a single crime by his speeches to 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.
DR. FRITZ: As this Trial has shown in a particularly impressive manner, the perpetrators took the greatest pains to limit the knowledge of, for example, the annihilation of the Jews to a very * Compare "accessory before the fact" with the two possibilities, that of the "instigator" who first produces the decision, or that of the "abettor" who gives intellectual assistance before the execution. ** From a decision of the Supreme Court (Reichsgericht) in RG. 36, 401: "An attempt at instigation presupposes that the person to be incited is not already determined to commit a criminal act of his own accord or under the influence of others." Compare with this also RG. 26, 362. small circle. What was self-evident with every other state constitution-namely, that occurrences throughout the country should be handled through the press-was not permissible in our 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 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 then reproach Fritzsche for his contributing to an "atmosphere of hate" (Session of 23 January 1946). 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.
DR. FRITZ: If he had actually created an "atmosphere of hate," this would not, outside of the group of conspirators, have enabled him from a legal point of view 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 practiced for decades, an instigation would legally be impossible because the influence exerted could not have been centered on a certain individual. Furthermore, German law concerns itself merely with instigation to commit a concrete deed and 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 accessory 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. * Compare "Decision of Reichsgericht (German Supreme Court) in RG. (Reichsgesetzblatt, Reich Law Gazette)34,328: "It is not sufficient to influence someone along the line of criminal thinking, or of direction of will per se, to justify the assumption of punishable instigation. It is adopted practice, therefore, that the concept of instigation does not exist as long as it involves persuasion of another person to commit criminal deeds in general-even though of a defined category-unless evidence is established that commission of the recent punishable action, which actually occurred was in that person's intent who originated the general summons. Also compare RG. 26, 362. Inasmuch as he was seriously striving to find for the German press and radio propaganda a "foundation based on truth," could he have had the intention at all to instigate to criminal actions?
DR. FRITZ: 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 purposefulness. 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; 3) that for factual 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, he is an instrumentals dolosum in the hands of the conspirators-of whom Goebbels was perhaps one-who had knowledge of their aims and purposes. Fritzsche's measures and utterances, however, were not dictated by criminal will. During his examination before this High Tribunal, Fritzsche never put forward the argument of superior orders. But he added that as far as his own person is concerned he was never expected to do anything criminal. And he furthermore declared: No one was obliged to feel compelled to carry out a criminal order.