Mr. Haensel pointed out that very much material for this trial would not have to be produced by the defense if the Tribunal would make up its mind to decide that question beforehand. Mr. Doetzer asked before he produces evidence for the Defense, on behalf of his client, that cass should be discontinued, that is to say, to declare the indictment insufficient also in that respect.
THE PRESIDENT: Only as to his own client, you mean.
DR. SCHILF: Yes. Mr. Doetzer put forward that motion on behalf of his own client, and that for all counts of the indictment; whereas, Mr. Haensel put forward the motion on behalf of all Defense Counsel concerning Count I. If the Tribunal can make up its mind to comply with their suggestions, that would be of the greatest importance for the future course of the trial. We would welcome it, therefore, if the Tribunal would inform us of its decision before I call Professor Jahreis.
MR. WOOLEYHAN: May it please the Court, I gather from Dr. Schilf's remarks that if the Prosecution is to treat, or be asked to treat the opening statements of the Defense as some sort of an informal motion to strike any or all parts of the indictment, with regard to any or all defendants, we certainly request the proper statutory notice to give the Prosecution opportunity to answer that motion before any ruling of the Court is made thereon. That is obvious.
THE PRESIDENT: When did the Prosecution receive the copies, in English, of the opening statements made in behalf of Nebelung, and the statement by Dr. Haensel.
MR. WOOLEYHAN: I can't give you the exact hour, but sometimes yesterday at varying hours; but even if we had received the copy of the opening statements days ago, it was still, we respectfully submit, not incumbent upon the prosecution to treat the statements in the opening statement as a motion.
THE PRESIDENT: The Tribunal is of the opinion that although the formal procedure which would be followed in the United States when a defense counsel wished to make a motion for a non-suit has not been followed, that nevertheless it is plain from a reading of the opening statements that two motions have in fact been made. I think there is no ambiguity about that. One motion is that by Dr. Doetzer, who asks that at this stage of the cas the entire charge be dismissed as to the defendant Nebelung. That is the nature of Dr. Doetzer's motion, is it not? Yes. That motion the Tribunal has considered -- not merely at this moment, but previously. The motion to which I referred will be denied, and that, of course, is with our prejudice to the presentation of a similar motion by this defendant or any other defendant, if warranted, at some future time. That motion is denied.
We will hear counsel on the motion made in behalf of all the defendants relative to the sufficiency of Count I tomorrow morning at 9:30. My assosiate calls my attention to the fact that the motion relates, of course, not only to the sufficiency of Count I, but to the sufficiency of any evidence relative to Count I. We will consider the motion as made with reference to Count I and the evidence tomorrow morning at 9:30.
MR. WOOLEYHAN: One question, Your Honor, please. To which opening statement, or combination of them, is the Prosecution deemed to be under notice as constituting the motion as to the sufficiency of Count I?
THE PRESIDENT: It is Dr. Haensel's opening statement; it is my recollection that the portion is underlined, and is also in one brief paragraph which makes expressly this motion or this request.
MR. WOOLEYHAN: Is it the Court's opinion that, with regard to the opinions expressed therein, the Prosecution are required to meet them tomorrow morning, and no others?
THE PRESIDENT: The question is whether the motion as made shall be allowed or denied.
MR. WOOLEYHAN: The motion being made explicitly in Dr. Haensel's opening statement.
THE PRESIDENT: That is right. That motion was made in Dr. Haensel's statement in behalf of the defendant Joel, was it not? Yes. Is there anything else this afternoon?
MR. WOOLEYHAN: The Prosecution has no objection to proceeding with the Defense's case and production of witnesses of which we have had notice.
THE PRESIDENT: Dr. Schilf, did I understand your request to be that the examination of your first witness should be made only after the chart is presented and available?
DR. SCHILF: Yes.
THE PRESIDENT: So that we may observe. Will you have it ready tomorrow morning?
DR. SCHILF: Yes.
MR. WOOLEYHAN: In fairness to the Prosecution, if that chart is to be treated as a document and offered into evidence in this case, we insist upon our notice.
THE PRESIDENT: The Tribunal hasn't yet been advised that it is offered, or will be offered in evidence.
MR. WOOLEYHAN: I am merely making that statement for the notice of all concerned.
THE PRESIDENT: Dr. Schilf, do you have a small copy of the chart?
DR. SCHILF: May it please the Court, it is not evidence which I am going to submit in the shape of a chart, but it is merely an aid in order to make it easier for Professor Jahreiss to make his statement. Unfortunately today I am unable to hand the copies to the Tribunal. Of the four charts I have only one small copy, which, however, Professor Jahreiss has asked me to return to him for the examination tomorrow morning.
Before the beginning of the session, I shall be able to hand to the Tribunal and the Prosecution small copies of the chart.
THE PRESIDENT: And I understand that the chart will be used as an aid for the purpose of explaining and elucidating the testimony of your expert.
DR. SCHILF: Yes.
THE PRESIDENT: We will recess until tomorrow morning at 9:30 -just a moment.
DR. KUBOSCHOK: (Attorney for Defendant Schlegelberger) May it please the Court, I only have a brief request.
After the expert the evidence for Schlegelberger will be submitted, and I am still a little behind with the preparatory discussions with my client. I should be very pleased if I would have the opportunity to talk to my client tomorrow afternoon. Therefore, I would ask you to excuse my client, Schlegelberger, from tomorrow's afternoon session so that I can talk to him in the customary way.
THE PRESIDENT: Do you have any objection to the defendant Schlegelberger being excused from attendance in Court for the period of tomorrow afternoon?
MR. WOOLEYHAN: No objection in principle, Your Honor, except that it is highly irregular, and I don't want it to start a precedent. There is ample time to confer with his client other than during trial hours, but, I have no objection -- but it does seem irregular.
THE PRESIDENT: The right to be present in the courtroom is more a right and privilege of a defendant than it is an obligation, although it may be both. If the defendant Schlegelberger, through his counsel, asks for a special exception to the usual rule, the Tribunal will grant him this permission to be absent from the trial during tomorrow afternoon only. Do you wish to make that application?
DR. KUBOSCHOK: Yes.
THE PRESIDENT: We will not treat this as a precedent, and we think it would be bad practice as a general practice. After you have gotten started with your witness, other counsel are admonished to be ready with theirs, without any further delays.
Now, is there anything else this afternoon? We will now again attempt to recess, and we do now recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 25 June, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., Defendants, sitting at Nurnberg, Germany, on 25 June, 1947, 0930-1630, the Hon. James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom except the defendant Engert, who is sick.
THE PRESIDENT: Proper notation will be made.
Concerning the motion against Count. I, the Tribunal has ascertained that similar questions are being presented in several of the different Tribunals. For that among other reasons we suggest to counsel for both sides this morning that they make only brief statements as to their general position upon the issue, and this Tribunal will not pass upon the issue until later notice ha.s been given to both parties and probably until further hearing or briefs have been called for. Consequently this morning we suggest to you that you merely state briefly your positions upon the motion which has been made and then proceed with your evidence.
Docs the moving party, to wit, the defendant, desire to make such a statement at this time?
DR. HAENSEL: May it please the Tribunal, the question has been raised as to how far for legal reasons Law No. 10 will form a basis for charges on account of the Anglo-saxon principle of conspiracy. If that is to be treated fundamentally, this question is of great importance and takes a lot of time to deal with it. I am quite ready to speak about that subject one two, or even six hours in order to treat it exhaustively.
The question is, however, how in accordance with the expediency of the Tribunal, it would fit that a lecture on that subject could be included, or am I today to say just that to elucidate that which I have hinted at in my speech, and am I to explain this further? How much does the Tribunal intend to hear? Because as far as the history of law is concerned, one can give a great number of reasons and explanations.
Please, may I have just one indication as to how far I am expected to go? On the other hand, I do not want to restrict the possibilities of the prosecution, and I understand that the Prosecution also intends to have some time for preparation. Therefore I ask to be informed as to how the Tribunal intends to have this matter dealt with.
MR. LAFQLLETTE: I think that I can aid the Tribunal and Dr. Haensel in this matter if possibly Dr. Haensel and the Tribunal would permit me to speak first. I would not ask for a rebuttal, which would be normal. In other words, Dr. Haensel may follow me. I feel that what I have to say would be beneficial with reference to the introduction of evidence pending the final disposition of this matter, and after I have spoken I think Dr. Haensel would then have a fuller idea of the fact that he will not probably have to elaborate upon the technical legal issue. And again, as I say, if permitted to address the court first, I would waive any further statement, so that he may follow me, which he would be able to do were he to speak first and then I to speak and then him to make his rebuttal. So I don't think it is unfair, and it might advance the disposition of the matter, if that is agreeable to Dr. Haensel and the Tribunal.
DR. HAENSEL: I appreciate the suggestion by Mr. LaFollette and I should like to ask him, if the Tribunal approves, to begin with his statements.
THE PRESIDENT: Alright.
MR. LAFOLLETTE: May it please the Tribunal, I appreciate very much the fact that the Tribunal has stated that which I am fully conversant with, that this matter is pending in other Tribunals, However, the indictments in other Tribunals do, in fact, stem from the Office of Chief of Counsel for War Crimes, which controls all of these cases which are on file. Therefore, as far as the technical legal argument is concerned, I do net feel that I am entitled to make a final, technical argument because I might in some way preclude other counsel occupying a relative position to mine in the organization who have matters pending in other Courts who might feel that they could make a better argument or at least arguments which they consider more persuasive. I am aware of the fact, of course, that a finding of this Tribunal would not technically be binding upon any other, but we are all aware also of the factual aspects, namely that it would probably be persuasive.
Court No. III, Case No. 3.
I believe that General Taylor, my superior and the Chief of Counsel, would be available next week or certainly the week after, since next week is a short week, to at least supervise and approve, if not prepare, the briefs which might be presented and which are of concern to this whole organization.
However, leaving aside as I do the technical legal question as to whether or not there is found a substantive crime of conspiracy to commit war crimes or a substantitive crime of conspiracy to commit crimes against humanity in Law 10, I think it is proper to give some attention now to the theories which the prosecution before this Tribunal has and which were set out, I thought, as principles in the opening statement in this Tribunal. That has to do with whether or not certain evidence and certain connections of these defendants are not presented under the indictments which in turn are based upon the language of Law 10 without regard to whether or not the Tribunal eventually determines that there is a substantive crime of the conspirators which I have mentioned.
Section 2 of Article 2 of Law 10 declares as follows: "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 principle, 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."
I do not quote from phrase (e) because an examination of the indictment in this case would disclose that the relationship to a crime set out in phrase (e) of Paragraph 2 of Article 2 is not alleged anywhere in this indictment. But it is profitable, I believe, to turn to the Indictment in this case, and on Page 4, Paragraph 2, which is contained in Count I--the count which is designated generally as the Conspiracy Count--to Paragraph 8, which is the first Paragraph in Count 2--War Crimes--and found on Page 8 of the indictment, and to Court No. III, Case No. 3.Paragraph 20, which is the first paragraph of Count 3--Crimes Against Humanity--which is found on page 14.
I read first from Paragraph 2, "Throughout the period covered by this indictment, all of the defendants herein--" then I eliminate the language "acting in concert with each other"--and simply say, "were principles in and 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."
I read again from Paragraph 8, and find that it alleges that, "Between September 1939 and April 1945, all of the defendants herein unlawfully, willfully and knowingly committed war crimes as defined by Control Council Law 10 in that they were principles in, accessories to, ordered, abetted, took a consenting part in, and were connected with crimes and enterprises involving the commission of--" and thereafter follow allegations which allege crimes as defined as War Crimes in Article 2 of Law 10.
Likewise in paragraph 20, which is the first paragraph of Count 3, Crimes Against Humanity, it is alleged, "Between September 1939 and April 1943, all of the defendants herein unlawfully, willfully, and knowingly, committed crimes against humanity as defined by Control Council Law No. 10 in that they were principles in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises--" and thereafter follows language which specifically alleges Crimes Against Humanity as set out in Article 2 of Law 10.
My point is this: that while it is true that under the law of conspiracy, every conspirator is liable for the criminal act of any other conspirator, yet he must have knowledge of the existance of the conspiracy and. he must have knowledge of the intent and purpose to commit the act. From the standpoint of the presentation of the evidence in this case, it is my opinion, having regard to the way I view the law generally, that the evidence in this case to date will have to Court No. III, Case No. 3.be meticulously combed to find the existence of one single conspiracy involving all of the defendants in the dock.
That is not a necessity, a necessary fact, if conspiracies is a substantive crime, because I believe that under the allegations of Count I that several existing conspiracies could be established under the allegations of that count. But I do say that where the evidence shows that a defendant took a consenting part in the commission of war crimes and crimes against humanity, where he was an accessory to, ordered or abetted the commission of a war crime or crimes against humanity, or where he was connected with a plan and enterprise or several plans and enterprises involving the commission of war crimes and crimes against humanity, that in that event if the evidence establishes that fact, then the relationship to the commission of the crimes alleged in Paragraph 1 is less established, and Paragraph 2 of Article 2, by its language, makes that a criminal act which is punishable.
The Indictment follows the allegations of that language of Law 10 so that if the evidence establishes any of those relationships to a crime, then it seems to me without regard to the existence or non-existence of a substantive crime of conspiracy, a defendant would be guilty under the language of Article 2, Law 2, specifically Paragraph 2. For an example, if the evidence established that Adolf Hitler and Martin Bormann entered into a plan to speed up and expedite the extermination of Jews or Poles, and the evidence further showed that any of the defendants willfully and knowingly took a consenting part in that plan or if any of the defendants were connected with the plan or enterprises involving the commission of that crime, then under the provisions of Article 2 of Law 10, and specifically Paragraph 2 of Article 2, a crime has been established by the evidence.
By the same token if Adolf Hitler, Marshal Keitel, Chancellor Lammers, and others, evolved a plan which was a war crime, being contrary to the customs of war, to establish the Nacht und Nebel procedures, and if that was a crime, then, if any of the defendants in this dock abetted the commission of that crime, was an accessory in the commission of that crime, took a consenting part in the commission of that crime, or was connected with the plan and enterprise thus evolved knowingly, then, I believe, that under the provisions of Law 10, and the allegations of this indictment, he would be guilty.
I point out that the language of Law 10 does not say and is not required to be construed under any rule of criminal construction which favors the defendant as limiting the guilt to a defendant who only was connected with or took a consenting part in a plan or enterprise with his other co-defendants. That, of course, is a customary provision found in the law of conspiracy; also, you need not indict all the conspirators, but leaving out conspiracy there is no limitation in law 10 which says that the defendant is only guilty if he was connected with a plan or enterprise solely created or existing between other defendants. If the plan or enterprise is to commit a crime, and the crime is established, then, if the defendant is connected with that plan-- although all of the other persons arc not in this dock -- he is still guilty under the provisions of Law 10. I think a study of the language upholds what I say.
I also point out that there arc several interesting comments in the IMT opinion which are analogous to the statements which I have just made; they are contained in the opening statement of the Prosecution in the case of the defendant Streicher, who was found guilty of committing crimes against humanity; and, as I recall -- and anyone may correct me if I am wrong -- and I am quite sure he was not found guilty of any other crime, and I do not believe he was indicted under any other count.
Now, the IMT at page 1711 of the mimeographed record said this: Streicher's incitement to murder and extermination at the time when Jews in the cast were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined in the Charter, and constitutes a crime against humanity. Also, in the case of von Schirach the IMT, at page 17037; said this: As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a crime within the jurisdiction of the Tribunal, as that term is used in Article VI-C of the Charter. As a result, murder, extermination, enslavement, deportation and other inhuman acts, and persecution on religious, political or racial grounds in connection with this occupation constituted a crime against humanity under that article. Then, at page 17038 the Tribunal went on to say: The Tribunal finds that von Schirach while he did not originate -- while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he became Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the Ghettos of the east.
Now, so there can be no misunderstanding of my position, or my understanding of the law, I am aware of the fact that that statement was made in connection with the provisions of sub-division C of Article VI of the Charter, which made it necessary that an act be connected with one of the other crimes in order to be a crime against humanity. But the point I am making is that the Tribunal there gave a very clear and concise interpretation of what it considered the term"connected with" to mean, and in Law 10 we have the language throughout Paragraph 2 that if a person is connected with a plan or enterprise involving the commission of a war crime, or a crime against humanity, and the crime is established and the connection is established, then, he is guilty. So that we find that just as in the Streicher and von Schirach cases, they did not initiate the original act which constituted the crime, but they became connected with it -- certainly they took a consenting part in it; and I think that language is adequate.
Now, one thing more -- two things more and I am finished. I also stated, and I shall not bother the Tribunal to read it, in the opening statement in this case, or rather the Prosecution stated it because it was the Prosecution's opening statement, not solely mine, certain theories as to the law of murder, beginning at the bottom of page 45 and running through page 47 of the prosecution's opening statement. We did say, among other things, which I must read to be accurate, that the second category of the law of wrongful homicide, without provocation, which was murder, included those acts where the defendant had knowledge that the act which he did will probably cause the wrongful death, lawful homicide, even though he hopes that they may not occur or is indifferent about them himself. Also there is discussed there the question of murder arising in connection with an intent to commit a felony. Now, it is time for me to apply what was said there to the evidence in this case briefly without limiting myself solely to what I say now -- by what I say now to what I will want to say in a formal brief; but, if this principle can be established in fact, I shall contend, as an example, that if the defendant Schlegelberger participated in the enactment of legislation, substantive legislation, extension of the German law into -- outside the boundaries of the Reich as it existed in 1938, certainly in 1939; if the defendant Schlegelberger by this evidence is shown to have participated in the establishment of certain court procedures, and if, from his knowledge as an attorney, the evidence is such that it is proper to lead this Court to the conclusion that he knew that his acts would result in the death of Poles or Jews, or even German nationals under certain circumstances, even though he hoped that they might not occur, after he left the Ministry of Justice even, I shall argue that I think he is guilty under the provisions of Law 10 which I have read; and the theory of the law of murder which I have just advanced.
So that if the defendant Nebelung in 1944, under a wrongful criminal law, and wrongful under-international law, exercised jurisdiction ever persons that he had no right to exercise ever, but that jurisdiction was Jurisdiction exercised by him by reason of laws passed which either the defendants Schlegelberger, or Rothenberger, or Klemm, we can say, was connected with their creation, or was connected with a plan or enterprise of extermination of which the laws were important, I shall contend that the defendant Schlegelberger, or other of these defendants, are guilty for the act -- not because there is a conspiracy, but under the language of Law 10.
Now, perhaps the Tribunal will not accept my theory, but the Tribunal and Defense Counsel are entitled certainly at this time to know my theory, and because of my theory I feel that I should not preclude all others from making all arguments on the specific technical legal question which is evolved by Dr. Haensel's motion.
One other thing and I am finished. Also in our opening statement we set out certain rules of evidence which showed that evidence of prior acts, under proper circumstances, could be considered itself as evidence, knowledge, intent, motive and one or two other elements of criminal acts.
Court No. III, Case No. 3.
This evidence, in my opinion, under the law of murder which I have read and under the allegations of Article 2 of Law 10, or, rather, the provisions of Article 2 of Law 10 and the allegations of this Complaint in each of the first three counts is admissible evidence without regard to whether or not a substantive crime of conspiracy exists which will uphold the allegation of that substantive crime in Count I, and I think that is very sound law and is regardless of this question.
There is but one difference which again I want to face very frankly. In Count I, Paragraph 1, we allege "between January, '33, and April, 1945, all of the defendants herein" -- and now I am going to eliminate for the purpose purely of reading here the allegations which constitute the technical conspiracy allegations of that paragraph and read it through down to the end of Paragraph 2 -- and if I may, I shall begin again; it will make it clearer. "Between January, 1933, and April, 1945, all of the defendants herein knowingly committed war crimes and crimes against humanity as defined in Control Council Law No. 10, Article 2, throughout the period covered by this indictment," and I think that is the proper construction to mean the period alleged in this Count, all of the defendants herein acting in concert with each other and with others -- and then I eliminate -- I do not eliminate "unlawfully, willfully and knowingly 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."
I think that is a valid Count under Article 2 of Law 10 without regard to any conspiracy count, and it does this: it then alleges that war crimes and crimes against humanity may be committed prior to September 1, 1939, in that Count.
Now if this Tribunal determines that that is not the law, it would depend not upon the conspiracy count but upon a determination of whether or not an overt crime can be committed prior to September, Court No. III, Case No. 3.1939, and that issue would be before us whether the conspiracy allegations of Count I go out or remain in.
Again I just want to emphasize what I just said a few minutes ago that the evidence of acts done before '39 is still good under Article 2 of Law 10 and under the rules governing the relevency of evidence which are cited in the Opening Statement and which can well be expanded to prove intent, design and purpose to commit the acts subsequent to 1939 oven though the Tribunal should hold that no crime can be committed for which a defendant may be guilty prior to 1939.
Thank you.
THE PRESIDENT: Dr. Haensel, will you put on your earphones for a moment?
DR. HAENSEL: Certainly.
THE PRESIDENT: A brief comment -
DR. HAENSEL: I don't hear anything.
THE PRESIDENT: I shall make a brief comment on the statement which the Prosecutor has just made. He appears to have discussed his position as to the scope of evidence which would be admissible on the issue of guilt or innocence if the only charges were the substantive charges of war crimes or crimes against humanity, and if there were no charge of conspiracy; and he has argued that certain evidence would be admissible on the other counts although there was no charge of conspiracy. I have heard no argument from him at all as to whether or not there is a valid charge of conspiracy as a substantive and separate offense.
He then suggests that General Taylor, who is Chief of Counsel in all of these cases, may perhaps desire to be heard on the question which he has not discussed. I think that is a fair statement which I call to your attention before you open your argument. Go ahead.
DR. HAENSEL: I intended to begin with the same words which I leave just hoard from the High Tribunal, and I intended to add that of Court No. III, Case No. 3.the greatest part of the statements made by the Prosecutor to this point I do not have to object to because as far as these theories are concerned, actions of participation, I did not intend to put up an argument.
Today we are confronted with the problem of whether apart from these actions of participation the independent act of conspiracy could be raised as a charge, and in that connection I have not heard many arguments against that which I have briefly intimated and which I only want to touch upon very briefly today.
I should like to take the liberty to continue from the point where we are now in this trial. In this trial we are right before the beginning of the defense, and we have to consider now what material may we intend to introduce as defense counsel.
If conspiracy as a pillar of the indictment is maintained apart from the various forms of participation in 2, Article 2, of Control Council Law No. 10, then we have to submit a great deal more material than if we could limit ourselves to the various forms of participation. I may illustrate that on but two brief examples. If conspiracy could be assumed, then every one of the defendants as Mr. Prosecutor has stated for the entire period from 1933 until 1945 is co-responsible; that is to say, he not only has to defend himself for that which by way of documents has been brought up against him, but he has to defend himself for everything that within the scope of that alleged conspiracy could be presented although he never knew anything about it nor had at all thought about all these matters up to now. That then is the question which faces us whether it would not be expedient for us before we bring a great deal of material which later on might prove to be superfluous, whether we could not receive an instruction from the Tribunal as to what extent that material is necessary. Otherwise we stand before a limitless extention of legal material, a limitless amount which, in my opinion, cannot at all be dealt with, that is to say, not within the scope of a trial lasting Court No. III, Case No. 3.no longer than one life span.
The Prosecutor bases this argument on Figure 2, Article 2, of Control Council Law, specifically Arabic numeral -- that is -letter B, that is, after Figure 2. According to Figure 2 without regard to nationality and according to Figure 1, a person is to be considered guilty of a crime according to Article 1 -- and I leave out a, b, c -- d who was connected with its planning or execution, or e, had belonged to an organization, and so on and so forth. There upon, however, in my opinion, one cannot base the introduction of the concept of conspiracy in the Anglo-American sense as an independent fact.
Crime in defense of this law, on what that is based, is explained in Count I. That is the reason why Figure 2 says, "is considered guilty of a crime according to Figure 1." Sedes Nateriae for the crime is Figure I and not Figure II. In the terminology of that law, Figure II deals with the forms of participation, whereas Figure I defines the facts of the crime, constituting the crime. That distinction has to be made and should not be blurred. In Figure I, however, it is specifically stated that four types of facts are specified, four types of crimes, which are punishable: (A) Against the Peace; (B) War Crimes; (C) Crimes Against Humanity; (D) Membership of an organization and so forth.
It can not be denied that between figures "A" and "D" there is a great difference of formulation because Figure "A", apart from the facts of crimes against the peace, after a semicolon following, a semicolon which has become very famous - I may perhaps tell the story let later how that semicolon got there -- following the semicolon which became famous, it begins again. It says, participation in a common design or a conspiracy for any of the foregoing crimes; that is, the English and American terms of conspiracy - it is extremely interesting, if I may be permitted to state the following: In the London Charter, paragraph 6, there was already a similar definition with regard to aggressive wars. The English text of paragraph 6 of the Charter, and of the Control Council Law are identical, participation in a common plan.
The French translation of Lex 10 reads " complot" and the French translation which has been published here says the participation in a common plan (la participation a un plan commun), that is, it accepts the English expression because one had to find out in the meantime that the English-American term of conspiracy had nothing at all to do with the French term "complot" . I may say that the "complot" is something entirely different.
I have set forth that these facts of conspiracy are only present in Figure A and do not appear in parts B to D. Therefore, I argue that the inclusion of conspiracy is not one of the crimes.