“Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
“Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
This provision of the International Charter is not found in Control Council Law No. 10. In lieu thereof the following pertinent and significant language was used [Article II]:
“2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) withreference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites, or held high position in the financial, industrial or economic life of any such country.”
“2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) withreference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites, or held high position in the financial, industrial or economic life of any such country.”
This language in detail defines the acts which constitute aiding and abetting and is so specific and so comprehensive that it has defined conspiracy without employing the word. The language omits no element of the crime of conspiracy. As a rule there can be no such thing as aiding and abetting without some previous agreement or understanding or common design in the execution of which the aider and abetter promoting that common design has made himself guilty as a principal.
The foregoing provisions of paragraph 2 were intended to serve some useful purpose. War crimes and crimes against humanity had been defined or recognized and illustrated in paragraph 1 of Law No. 10 and did not need further explanation. Obviously, the provisions of paragraph 2 were intended to provide that if the act of one person did not complete the crime charged, but the acts of two or more persons did, then each person “connected with the plans or enterprises involving its commission” is guilty of the crime. This is the gravamen of the law of conspiracy. Conspiracy is universally known as a plan, scheme, or combination of two or more persons to commit a certain unlawful act or crime.
The conspiracies charged in the indictment and defined by Law No. 10 are conspiracies or plans to commit war crimes or crimes against humanity, which are established crimes under international laws or customs of war. In the very nature of such crimes their commission is usually by more than one person. Therefore the purpose of showing the conspiracy to commit such crimes was to establish the participation of each defendant and the degree of his connection with such crimes.
Since the language of paragraph 2 of Law No. 10 expressly provides that any person connected with plans involving the commission of a war crime or crime against humanity is deemed to have committed such crimes, it is equivalent to providing that the crime is committed by acts constituting a conspiracy under the ordinary meaning of the term. Manifestly it was not necessary to place the label “conspiracy” upon acts which themselves define and constitute in fact and in law a conspiracy. Paragraph 2 was so interpreted by the Zone Commander when he issued Military Government Ordinance No. 7, which authorized the creation of this and similar military tribunals, and which provides in article I that—
“The purpose of this Ordinance is to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in article II of Control Council Law No. 10, including conspiracies to commit any such crimes. * * *.”
“The purpose of this Ordinance is to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in article II of Control Council Law No. 10, including conspiracies to commit any such crimes. * * *.”
The prosecution also placed the same interpretation upon paragraph 2, because paragraph 2 of count one of the indictment charges that the “defendants herein * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of war crimes and crimes against humanity.” Evidently the drawer of the indictment had before him paragraph 2 of Control Council Law No. 10 and made its language the basis of the charging of a conspiracy to commit war crimes or crimes against humanity.
Furthermore, it is apparent that the declared purpose of Ordinance No. 7, as set forth in article I thereof, is part and parcel of the entire ordinance as much as any other article thereof and the other articles of the ordinance, as well as Law No. 10, must be construed and applied in the light of article I. In fact article I is distinctly that portion of Ordinance No. 7 which defines the jurisdiction of the military tribunals authorized by it.
The Tribunal should therefore declare that military tribunals as created by Ordinance No. 7 have jurisdiction over “conspiracy to commit” any and all crimes defined in article II of Law No. 10. After all, from a practical standpoint, it can make little difference to any defendant whether the Tribunal finds that such defendant is a member of a conspiracy to commit crimes on the one hand, this being the language of article I of Ordinance No. 7, or on the other hand whether the Tribunal should find he was (a) a principal or (b) an accessory or that he abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving commission of crimes, these latter descriptions being the language of paragraph 2 of article II of Law No. 10.
In most modern English and American jurisprudence, conspiracy pure and simple is not recognized as a separate crime. The only legal importance of finding that any accused person is a party to a conspiracy is to hold the conspirator responsible as an aider and abetter of criminal acts committed by other parties to the conspiracy. If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan. It makes no difference whether the plan orenterprise was that of only one of the conspirators. Upon this point we quote from the judgment of the International Tribunal—
“The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it.”[681]
“The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it.”[681]
This holding answers the further contention that one connected with execution of such a plan of Hitler could not be guilty of conspiracy, or punishable for helping carry out the plan or scheme as a co-conspirator. It is undoubtedly true that not all of the defendants had any part in the formulation of the plan, scheme, or conspiracy of the Nazi regime’s Ministry of Justice to carry out the NN decree, but they did know of its illegality and inhumane purpose and helped to carry it out. The facts show beyond a reasonable doubt that they did knowingly aid, abet, and become connected with the plan, scheme, or conspiracy in aid of waging the war and committed those war crimes [and crimes] against humanity as charged in the indictment. A more perfect plan or scheme to show a conspiracy to commit crimes could hardly be written than was the agreement entered into by the OKW, Ministry of Justice, and the Gestapo to execute and carry out the Hitler Night and Fog decree. All the defendants who took a part in the execution and carrying out of the NN Decree knew of its illegality and of its cruel and inhumane purposes.
[Signed]Mallory B. Blair
Judge of Military Tribunal III
The Marshal: The Tribunal is again in session.
Presiding Judge Brand: The Tribunal is informed that the defendant Schlegelberger is in a condition of illness rendering it impossible for his attendance and that his counsel desires that sentence be pronounced in his absence; in other words, that he waive the presence of the defendant Schlegelberger at the time of sentence.
Is our understanding correct, Dr. Kubuschok?
Dr. Kubuschok: Yes, Your Honor.
Presiding Judge Brand: The Tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings.
This Tribunal has adjudged the defendantFranz Schlegelbergerguilty on counts two and three of the indictment filed in this case. For the crimes of which he has been convicted, this Tribunal sentences him to imprisonment for life.
The Marshal will produce before the Tribunal the defendant Klemm.
Herbert Klemm, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will produce before the Tribunal the defendant Rothenberger.
Kurt Rothenberger, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to seven years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will bring before the Tribunal the defendant Ernst Lautz.
Ernst Lautz, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will produce the defendant Wolfgang Mettgenberg.
Wolfgang Mettgenberg, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and produce the defendant Wilhelm von Ammon.
DefendantWilhelm von Ammon, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce the defendant Guenther Joel.
Guenther Joel, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce the defendant Oswald Rothaug.
DefendantOswald Rothaug, on the count of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will remove this defendant from the court and will produce the defendant Rudolf Oeschey.
Rudolf Oeschey, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will remove this defendant from the court and will produce the defendant Josef Altstoetter.
Josef Altstoetter, on the count of the indictment on which you have been convicted, this Tribunal sentences you to five years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove the defendant from the courtroom.
The Tribunal now stands adjourned without day.
The Marshal: This Tribunal now adjourns without day.
(At 1745 hours, 4 December 1947, the Tribunal was adjourned.)