Propaganda on Trial: the Cases against Julius Streicher and Hans Fritzsche

Abstract

Through Article 25(3)(e) ICC Statute, the International Criminal Court has jurisdiction where there is “direct and public incitement to commit genocide”. However, this provision has not been applied by the court yet. In 1946, the International Military Tribunal for Nuremberg convicted Julius Streicher as the first person for the crime of incitement. Hans Fritzsche was also tried for incitement. He was acquitted. The question explored in this dissertation is what relevance these two cases have regarding the interpretation of Article 25(3)(e). The question is answered through analysing the international criminal law on the subject. The main focus will be the cases against Streicher and Fritzsche. However, other important considerations are the ICTR propaganda cases which took place within the last 10 years. Especially, the Prosecutor v Nahimana established a clear link to the IMT cases. The dissertation therefore examines such legal problems which were discussed by the IMT and the ICTR but are still not solved by the ICC Statute. The dissertation examines the normative status of incitement in the ICC Statute, the possibility of holding private propagandists liable under international law and the definition of the elements of the crime of incitement. These last points make it necessary to discuss the legal nature of incitement and its external and mental elements.

Other papers on the subject usually put the ICTR trials in the centre and use the IMT cases as a supporting argument. However, this dissertation answers the questions vice versa. Thus, the legal problems are explained in the context of the IMT cases and then answered through considering the IMT judgments and the development of the law. The dissertation argues that the cases against Streicher and Fritzsche are particularly relevant and laid the foundation for the subsequent development of the crime. The author considers this development as positive and argues in favour of the IMT judgments.

The dissertation illustrates that the IMT answered important questions several centuries before the ICTR and gives therefore the blueprint for the ICC. The ICC is not bound by their findings and it is still not possible to regard these specific legal answers of the IMT and ICTR as customary law. However, the ICC will have to find good arguments if it does not want to apply the jurisprudence, created by the IMT in its propaganda cases against Streicher and Fritzsche.