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(1) May a criminal procedure, which is bent on realising justice, use legal concepts which are and always have been utterly alien to the defendants and to the legal trend of thought of their people?

(2) How would this be consistent with the rule: Nullum crimen sine lege praevia, a principle which the British Chief Prosecutor has acknowledged as a fundamental principle of civilised criminal jurisdiction?

Can it be honestly stated that already before 1939 not only the initiating of an illegal war was held to be an act punishable individually, but moreover a "Conspiracy" for initiating such wars? The affirmative answer to this question given by the prosecution has surprised not Germany only. May I clear up, in

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However, in no case until now has a lawful act been declared punishable, nor an act, which was not a crime when committed, retroactively converted into a crime. And this is the case here.

But the Charter, which I follow now, has enjoined the use of the concept of "Conspiracy". I do not, therefore, go any farther into these questions. At any rate, it would appear that if such a concept is to be applied to Germans, this could only be done with all restrictions imposed by equity.

Anglo-American law defines conspiracy as an agreement between a number, of persons to commit crimes, "a combination or agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means."

Similar definitions always keep occurring. Two points are characteristic "Agreement" and "Common Plan".

Agreement means an explicit or tacit understanding. If several persons pursue the same end independently of one another, then there is no conspiracy. It is accordingly not enough that the plan is common to all of them, they must have knowledge of this community and every one must voluntarily accept the plan as his own. The very expression "to conspire" implies that everyone contributes knowingly and willingly. A person under duress is no conspirator, for duress does not produce agreement, at the utmost, purely outward assistance. For instance, if somebody imposes his will on another, then there is no conspiracy. Therefore, a conspiracy with a dictator at its head is a contradiction in itself. A dictator does not enter into a conspiracy with followers, he does not make any agreement with them, he dictates.

Knowledge and will of the conspirators are aimed at a common plan. The contents of such a plan can be very different. In English law, for instance, conspiracies are known for committing murder, fraud, blackmail, false accusation, certain economic crimes and so forth. In all these cases, conspiracy is treated as a crime sui generis (by itself), and, therefore the conspirators are punishable for conspiracy regardless of whether a murder, a fraud, or even a mere attempt at such crimes has been committed in the individual case.

According to German law, we would say that conspiracy is one of the cases where even preparation of a crime is punishable. Such cases are known to German criminal law. The partner in an agreement for committing .a crime against life is punishable. According to Article 49b he is punishable for a "crime of preparing a killing" even if the intended action has not taken place.

In a certain sense, Article 129 can also be applied here. Participation in an association pursuing certain aims hostile to the State is punishable, again independently of the fact whether a crime has actually been committed. But if it becomes a fact, everybody is charged with his own culpability in this action. If it happens that the individual conspirator is guilty neither as the perpetrator nor as an instigator nor as an accessory to the actual crime, then he can be charged only with participation in an association hostile to the State, but not with such a crime.

The prosecutors in this trial are going farther. They want to punish, under certain circumstances, the conspirators for individual actions they did not participate in.

To take the most significant example: they want to charge a conspirator even with those crimes which were committed prior to his entering the conspiracy.

With the scant material at my disposal, I was not able to find any evidence that this has any foundation in English or American law. One thing is certain, however, that such a conclusion is utterly contrary to German criminal law, for

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Let us now look at the Charter. The Charter quotes two cases which are declared as punishable and which fall within the competence of the Tribunal.

1. Article 6a states: participation in a common plan or conspiracy for the perpetration of a crime against peace. As such are listed the planning, preparation, launching and waging a war of aggression or a war involving the violation of international treaties or assurances. It is remarkable that a concept which belongs to the internal criminal and civil law of England and America is applied here, without more ado, to international facts. The Charter does this by treating individuals who plan or conduct illegal wars as gangsters participating in a highway robbery. This is legal audacity, because in this case the sovereign State stands between the individuals and the result of their actions and this removed any foundation from the comparison with facts in international daily life. Up to now the concept of conspiracy has been unknown to International Law.

2. According to the last paragraph of Article 6 of the Charter, the partners in a conspiracy or in a common plan to commit crimes against peace, the law of war or humanity, are responsible for all actions committed by any partner while executing such a plan. This is, as a matter of principle, quite a different thing from the case mentioned in 1. It does not mean punishment of the crime of conspiracy, but responsibility for the individual action of another conspirator. In other words, conspiracy, as taken here, is not a crime sui generis, but a form of complicity in the actions of the conspirators. Mr. Justice Jackson has given us an example: if three robbers conspire and one of them kills the victim, then all of them, through their complicity, are responsible for the killing.

The case mentioned under 2 is of the greatest importance in this trial. The individual conspirator is to be punished for crimes committed not by himself, but by another conspirator. One defendant, who had nothing to do with the annihilation of the Jews, is to be punished for this crime against humanity only because he was a partner in a conspiracy.

The question at issue is: are, in this trial, principles of responsibility to be applied which go beyond our German criminal law?

Article 6 of the Charter says that all conspirators are responsible for any action committed by any one of the conspirators "in execution of such plans". These are the decisive words for the interpretation.

In my opinion, the meaning of these words is as follows: the other conspirators are also responsible for any actions of their comrades which form part of the common plan, that is, they have helped to conceive it and they have desired it or have at least accepted it. A few examples:

Case A: A, B, C, and D commit a concerted house-breaking in a villa. They happen to find a girl in the house, and A rapes her. B, C and D cannot be charged for this rape. The reason is that A did not do so when committing the crime "in execution of the plan" but if anything, at the "occasion of execution of the plan". The point at issue is not the execution, but merely the occasion arising while executing the plan. This opinion, which should not be disputed, is of importance as it makes clear that there cannot be any question of responsibility for all the actions of the partners to the conspiracy.

Case B: While exploring the villa, B and C begin to fight about some piece of plunder, and B knocks down C. This action too was not committed "in execution of the plan", but was foreign to the plan. A and D are not responsible for this "excess".

The third case: While exploring the villa, the burglars are detected by the owner. D shoots him. Now the issue depends on the special circumstances of the case. Let us, for instance, go back to the example, quoted by Mr. Justice Jackson, of the three robbers, one of whom kills the victim. Considering the nature of American gangsterism, it would appear quite normal that the individual

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Mr. Justice Jackson's argumentation is fallacious in so far as he derives a common principle from a decision which clearly and obviously happens to apply to the "normal case" of his paradigm of the robbers, and can hardly be applied to any other case. As the case stands, co-responsibility for any single act could be made to apply to those conspirators only who have foreseen and approved of their comrades' act.

A legal principle extending the fellow-conspirator's responsibility to such cases as are not included in their common responsibility is alien to German law. Whether or not it belongs to Anglo-American law, the application of such a principle in the present trial would make punishable acts which heretofore could not be punished. This would clearly contradict the rule: Nullum crimen sine lege, a principle, as I previously emphasized, acknowledged explicitly by the British Prosecutor as well. In view of the fact that Article 6 can be interpreted in various ways, we should select out of two possible interpretations, as corresponding to the author's will, the one which does not contradict the said principle.

There exists a withdrawal from a conspiracy, and also a subsequent entrance into it. The question is: What about responsibility for acts committed during the period of non- membership? The prosecution appears to be of the opinion that a person entering into the conspiracy thereby approves anything previously done by any conspirator, in pursuance of the common plan. Such an assertion seems to arise out of the civil law theory of a subsequent ratification of a business transaction. This theory is not tenable in criminal law. The Charter does not mention anything of the sort since the common plan, in the execution of which the act was perpetrated, was common only to those who were members at that time. Even if one takes the act of joining the conspiracy to be an approval of its acts so far committed, the approval of a committed crime does not involve partnership in this crime. The person joining later has nothing to do with these crimes. The same applies to the withdrawal from the conspiracy. The person withdrawing can be made responsible only for what happened during his membership, even if the result has occurred after his withdrawal. Again any other opinion would lead to the result that an ex post facto law is being applied. Did the twenty- two defendants participate in a conspiracy within the meaning of the Indictment, viz., a conspiracy to commit crimes against peace, usages of war and humanity?

If such a conspiracy had existed, then Hitler would have been - nobody doubts it - the leader of these conspirators. But it has already been emphasized that a conspiracy headed by a dictator is a contradiction in itself. Hitler would have laughed if it had been said of him that he had made an agreement with his Ministers, Party leaders and generals, to wage this or that war, or to conduct the war by these or other means. He was an autocrat. He did not care for the approval of these men, but was merely concerned about having his decisions executed, whether they agreed to these decisions or not. Quite aside from legal considerations, Hitler's entourage, in fact, was quite different from a community of conspirators, as considered by the prosecution, and that before the hearing of evidence. Apart from a small Party clan, he was surrounded by an atmosphere of distrust. He trusted neither the "defeatist club" of his Ministers, nor his generals.

Such was already the case before the war, and his environment during the war has been described by witnesses with great impressiveness. A cunning system

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From a purely psychological point of view, it is, to say the least, highly improbable that the score of survivors of the Third Reich picked out and put into the dock by the prosecution, have ever formed a gang of conspirators in the sense of the Indictment. In this group of people all homogeneity as to outlook, background, education, social position and function is lacking, and some of the defendants only met in the dock.

The prosecution considers the Party with its organizations as the nucleus around which the conspiracy formed. We should, however, in this connection, too, consider the different individual attitude. Some of the defendants have not been Party members at all, or, at any rate, not for a long time, and but few of them have played an important part in the Party. Some held top positions in the Party and its organization and devoted their entire activity to the aims of these organizations, while others did everything in their power to eliminate from their sphere of activity any influence of Party and SS.

The NSDAP was founded in a period of utter powerlessness of the State and of general war-weariness of the people at a time when, truly, no intelligent person thought of a second war or, even less, of a war of aggression.

But were any of the defendants' aims unattainable without war?

Surely, the wishful thinking of every true German was the union of all adjoining German territory with the Reich. This applied to the Saar territory, Austria Memel, Danzig, and, as a hope lingering in the far future, also to the Sudeten territory. In the past they all had been parts of the German Reich, they all would have already returned to the German Reich in 1919 if the right of self-determination solemnly promised to all peoples had been realised. But these objectives of German longing could be reached by peaceful means. And in fact they have been reached without a shot or a stroke with the one exception of Danzig, which would have been done in the same peaceful way if the Fuehrer had had a spark of patience and the Poles, a spark of good will.

But they neither wanted nor believed in a war. Hitler was believed capable of a large-scale bluff, but not of launching the catastrophe of a war.

I cannot therefore believe in a conspiracy to commit crimes against peace and usages of war. May I add two points of general importance:

(1) The first point refers to Goering's attitude immediately previous to the outbreak of war. He was at that time Hitler's intimate friend, the country' second man, and is now the chief figure among the defendants. If there had been in truth, a conspiracy to launch wars of aggression at that time, then he would have been the second in importance in such a conspiracy, but it was actually he who tried everything within his power, in the last days of August, 1939, to prevent the attack on Poland, and who tried behind Hitler's back to uphold peace. How would this be consistent with a conspiracy for initiating wars of aggression? Nor did he agree with a war against Russia and he strongly advised the Fuehrer against such a war.

(2) If there had been a conspiracy to commit war crimes, then the war would have been waged, from the beginning, with utter ruthlessness and disregard of rules of war. Just the contrary actually happened. In fact, in the first years

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THE MARSHAL: The Tribunal adjourns until tomorrow.

(The Tribunal adjourned until 5th July, 1946, at 1000 hours.)

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