The 3rd Reich has - as mentioned before -
issued three laws increasing the penalty for an action with retroactive effect by applying the death penalty to acts which carried when committed, prison sentences only.
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. of the concept of "Conspiracy". I do not, therefore, go any further 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. ween a number of persons for accomplishing 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 charactertistic: "Agreement" and "Common Plan".
Agreement means an explicit or tacit understanding. If some persons pursue the same and 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. They 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 external 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 his followers, he does not make any agreement with them, he dictates. 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 delicts, and so forth. In all these eases, conspiracy is treated as a crime sui generis (by itself), and therefore the conspira tors are punishable for conspiracy regardless of the fact whether a murder, a fraud, or even a mere attempt at such crimes has been committed in the individual case.
spiracy 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 49-b he is punishable for a "crime of preparing any killing" even if the intended action has not taken place. 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 comes to an action, everybody is charged with his own culpability in this action. If it happens that the cindividual conspirator is guilty neither as the perpetrator nor as an abettor 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 further. They want to punish, under certain circumstances, the conspirators for individual actions they do 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. find any evidence that this has any foundation in English or American law. One this is certain, however, that such a conclusion is utterly contrary to the German criminal law. For the latter is based on the self-evident and unanimously accepted principle that one is only resposible for an action when one has been the author, or at least the part author of it.
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 Court:
1. Paragraph 6-a states: participation in a common plan or conspiracy for the perpetration of a crime against peace is As such are listed the planning, preparation, launching and conducting of a war of aggression or of 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 article 6, the last paragraph 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 another 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. 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: In this trial are principles of responsibility to be applied which go beyond our German criminal law 5 ? co-responsible for any action committed by any one of the coconspirators "in execution of such plans", These are the decisive words for the interpretation.
In my opinion the meaning of those words is as follows: the other conspirators are co-reponsible for any actions of their comrades which form part of the common plan, or which they therefore have helped think out, or have willed or have at least accepted. 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 here. 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 t execution of the plan". The point at issue is not the execution, but merely the occasion arising while executing the plan. This opinion, which sould 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: Whil exploring the villa, B and C come 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. How 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 gangsters concerned bore in mind the possibility of such an occurence, and were quite prepared to approve of it. If this is the case, they are responsible for the killing, as accessories or assitants, also according to our opinion.
In such a ease, there would be no objection to Hr. Justice Jackson's solution. But if the case is different, if the fatal issue had not been forseen by the others, perhaps could not be foreseen--e.g., if they took it for granted that the inhabitants of the house were away from hone--then there is no responsibility of the co-conspirators. They are responsible only for dots belonging to the "execution of the plan". There common plan, however, includes only what has been foreseen, from the beginning, and improved. Other ways of execution are alien to the plan.
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 ease. As the case stands, co-responsibility of 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 follow-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 praevia, a principle, as previously emphasized, acknowledged explicitly by the British prosecutor too. 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. 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 per son entering into the conspiracy hereby approves anything pre-viously 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 as the common plan, the execution of which involved the act which was common to those who were members at that tine. Even if one takes the act of joining the conspiracy to be an approval of its acts so far committed, the approval of a commited crime does not involve partnership in this crime . 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 in a conspiracy within the meaning of the indictment, viz. a conspiracy to commit crimes against Peace, Usages of war and Humanity? been nobody doubts it - the loader of those 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, partly loaders 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 those decisions or not. Quite aside from legal considerations, Hitler's environment, in fact, was quite different from a community of conspirators, as considered by the prosecution, and that before the hearing of evidence. Apaprt 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 what his surroundings looked like during the war has been shown by witnesses with great impressiveness.
A cunning system of secrecy ensured that plans and aims of the Fuehrer's remained unknown to his collaborators as long as at all possible, so that his most Intimate assistants time and again were taken by surprise by the events, and, in fact, were shocked to learn sane of then at the present trial only. This system of secrecy also ensured an isolation of his individual collaborators, as one hand was not allowed to know what the other did. Does this look like a conspiracy? In fact, Hitler complained at tines that the generals were "conspiring" against him, and used, strangely, this very word while speaking of those who today are charged with having conspired with him. The evidence repeatedly mentions conspirations, but conspirations against Hitler, the least, highly imporobable that the score of survivors of the Third Reich picked out and put into the dock by the pros ecution, have ever formed a gang of conspirators in the sense of the indictment. Any homogeneity is lacking in this group of people as to outlook, background, education, social position and function, and some of the defendants only met in the dock. 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,awhile others did everything in their power to eliminate from their spheresof activity any influence of party and SS. ness 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, about a war of aggression.
But were any of the defendants' aims unattainable without war? 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. They all had been in the past 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 realized. 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 goodwill. But they neither wanted nor believed in a war. Hitler was believed capable of a large-scale bluff, but not a 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 previous immediately to th outbreak of war.
He was at that time Hitler's confident friend, the country's 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 day 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 dissuaded the Fuehrer of such a war.
2) If there had been a conspiracy to commit war crimes, then the war woul regard of rules of war. Just the contrary actually happened. In fact, in the first years of the war, international law was, on the whole, respected. Especially in the beginning one endeavoured to wage war with decorum and chivalry. If any evidence is needed, a look into the orders of the German High Command regulating the behaviour of the soldiers in Norway, Belgium, Holland is sufficient proof.
THE MARSHAL: The Tribunal adjourned until tomorrow.
(The Tribunal adjourned until 5 July 1946, at 1000 hours.)
THE PRESIDENT: Dr. Stahmer.
DR. STAHMER: 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 happened. In fact, in the first years of the war -
THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you get a little bit further with your speech.
DR. STAHMER: I had to go a little farther in order to get this into the context, again; I had to start at No. 2, but if the Court wishes, I can continue with where I stopped. Especially in the beginning one endeavoured to wage war with decorum and chivalry. If any evidence is needed, a look into the orders of the German High Command regulating the behaviour of the soldiers in Norway, Belgium, Holland is sufficient proof. Moreover, a leaflet with "10 commandments for the conduct of the German soldier in wartime" was issued to the soldiers when they went into the field. Field Marshal Milch has read them out from his pay-book, during this trial. They all obliged the soldier to act loyally and according to international law. without any consideration of right and morals would really not send their soldiers into the field with a detailed written order saying just the opposite.
I think: If the prosecution believes that these 22 men are conspirators and conspirators against peace, the laws of war and humanity, it is completely mistaken. what relationship their client could have had with the alleged conspiracy. state. During the trial the prosecution also referred repeatedly to this elevated position of Goering's and tried to make it responsible for the defendant's special guilt pointing out that Goering, by virtue of this special position knew about everything, even the most secret matters, and had the possibility to intervene in a practical way on his own in course of Government business.
position. It meant: According to rank Goering was the second man in the state. had made a will and by a secret Fuehrer order had appointed Goering as his successor in the government. In 1935 or 1936 this succession was fixed in an unpublished Reichslaw which was signed by all the ministers.
On 1 September 1939 Hitler announced this law in the Reichstag. In this way the successorship of Goering became known to the German people.
Goering's task of deputising for the Fuehrer in the government now followed, but only in the event of Hitler being prevented by illness or absence from Germany - thus this occurred when in March 1938 Hitler spent a few days in Austria.
During Hitler's presence, that is as long as Hitler exercised his office himself, Goering derived no special powers from the deputyship. directly under him and he was not entitled to issue any official directives to other offices.
The consequence was: As second man in the state Goering could neither rescind, nor change nor supplement Hitler's orders. He could give no orders whatsoever to offices of which he was not directly in charge. He did not have the possibility of giving any binding orders to any other office whether it were an office of the party the police, the army or navy, nor could he interfere in the authority of these offices which were not his own. he used as especially incriminating for Goering; it is furthermore not fit to serve as a basis for the assumption of a conspiracy. or execution of a common plan or conspiracy which was concerned with the crimes stated in the indictment. conspiracy presupposes in the first place that such a common plan existed at all and that accordingly the participants had the intention and agreed to carry out the crimes of which they are accused. These presuppositions are not in evidence in the case of Goering. One has to assume the contrary. It is true that Goering wanted to do away with the Treaty of Versailles and to secure again a position of power for Germany.
But he believed he could obtain this goal, if not with the legal means of the League of Nations, at least with political means alone. The purpose of the rearmament was only to give more weight to the voice of Germany. The Weimar Government, which could not even express the self-determination of the Germans after 1918 in the surely very modest form of a German-Austrian customs - union, though they advocated this determination themselves, owed the lack of success of their foreign policy for Goering, just as for Hitler, mainly to the lack of respect for the German means of imposing power. Goering hoped, strengthened in his belief by Hitler's surprising initial successes that a strong German army, already by its mere existence would make it possible to secure German aims peacefully, as long as these aims kept within reasonable limits. In politics a state can only have its say and make its voice heard if it has a strong army to back it up, which demands the respect of other states. Only recently the American Chief of Staff Marshall said in his second annual report: The world does not seriously consider the wishes of the weak. Weakness is too big a temptation for the strong.... There was no arming for an aggressive war; not even the Four Years Plan, the purpose and aim of which has been clearly explained by the defendant himself and the witness Koerner was not aimed at the preparation of an aggressive war. testified in perfect agreement that the air force created by the armament program was only a defensive air force, which was not fit for an aggressive war and which was therefore called by them a dangerous air force ("Risiko Luftwaffe"). Such a modest rearmament does not allow for any conclusions of aggressive intentions.
After all this it is clear:
According to his character he was an opponent of war. Outwardly also, in his conferences with foreign diplomats and in his public speeches at every opportunity he has expressed with all possible clearness his opposition to war.
the attitude of Goering toward war. He know him especially from the first world war and he has exact knowledge of the attitude of Goering to war from frequent conversations he has held with him. Bodenschatz states that Goering repeatedly told him that he know the horrors of war very well from the first world war. His aim was a peaceful solution of all conflicts to spare the German people as far as possible the horrors of a war. A war would not be possible to burden with a second war a generation which had already experienced the horrors of one great world-war and its bitter consequences. with the defendant Goering that the latter opposed a war, that he already had not agreed with the occupation of the Rhineland and that he advised Hitler in gain against a war with Russia. 1933, frequently emphasized how much he had his heart set on maintaining the peace and that the rearmament had only been undertaken to make Germany strong outwardly and to enable her to play a political role again. the speech which he made at the beginning of July 1938 in Karinhall before all the Gauleiters of the German Reich. In this speech he emphasized energetically that the foreign policy of Germany had to be directed in such a way that it would under no circumstances lead into war. The present generation had still to get over the last world war; another war would shock the German people. Goering had not the slightest reason to hide his true opinion before this gathering, which consisted exclusively of the highest party leaders For that reason, this speech is a valuable and reliable proof for the fact that Goering really and truly wanted peace.
THE PRESIDENT: I'm afraid the two voices are coming together in such a way that it is impossible to understand it. You had better stop for a minute, Dr. Stahmer.
(A recess was taken.)
How deeply the defendant Goering was interested in maintaining 5 July LJG 5-1 good relations with England is shown by his conduct at the conference with Lord Halifax in November 1937 at Karinhall, in which Goering, with full candour, put before Lord Halifax the aims of German foreign policy:
(a) incorporation of Austria and the Sudetenland into Germany, (b) Return of Danzig to Germany with a reasonable solution of the corridor problem. He pointed out at the same time that he did not want war for these aims and that England could contribute to a peaceful solution. his suggestion. The conclusion of the Munich Pact is essentially due to his influence. in March 1939, the relations with England had deteriorated considerable as England was very angry about this step Hitler's, which was a violation of the Munich Pact -- Goering made serious efforts for the restoration of normal relations. by the witness Dahlerus, with English industrialists at the beginning of August 1939 in the Soenke-Nissen-Koog near Husum. In an address he pointed out that under no circumstances must it came to a war with England, and he asked these present to contribute to the best of their ability to the restoration of the good relations with England.
When, after the often quoted speech of Hitler's to the commanders in chief of the armed forces on the Obersalzberg on 22 August 1939 the danger of a war became imminent, Goering summoned immediately and attempted, by-passing the Foreign Office, to reach an agreement with England for the prevention of war on his own responsibility. in the dark as to his true intentions. His efforts were not aimed at the maintaining of peace but only at persuading England to deny to the Poles the support guaranteed to them and thus to separate England from Poland, which would enable Germany after this separation 5 July LJG 5-2 to exert pressure on Poland to submit to the German demands, or to be able to attack Poland and to realize her plans towards Poland without any risk.
The doubts about the honest will for peace are unjustified; the imputed intention was far from Goering's thoughts. inform the witness Dahlerus either of the content of the Fuehrer speech of 23 May 1939 or that of the 22 August 1939, this objection is not relevant and nothing is gained by it. and especially a foreigner--of these strictly confidential speeches without exposing himself to the accusation of high treason or treason against his country. These speeches were all immaterial for the commission given to the witness, since here was the peculiar situation that Goering--after the efforts of the diplomats had reached a deadlock--know as ultimo ratio of no other way out than to use his personal relations, all of his personal influence and his personal prestige. foreign political situation, had become dangerously critical through the quarrel between Germany and Poland, of which also the witness know and which had to be straightened out by an appropriate attitude on the part of England.
That Goering's aim was not to separate England from Poland has been clearly proven by the fart that Goering, to begin with, had transmitted to the British Ambassador in Berlin, Henderson, the text of the note which contained the proposition made by Germany to Poland - propositions which were called moderate by Henderson - and that, hereby, he tried to come to direct negotiations with Poland. Poland, however, obviously did not want an agreement with Germany. Several circumstances point to that.
The conflict with Poland existed for almost one year. Why did Poland not ask for a decision by a court of arbitration on the basis of the concluded arbitration agreement?
Why did Poland 5 July LJG 5-3 not appeal to the League of Nations?
Obviously Poland did not want any arbitration regarding Danzig and the Corridor. to the Legation Forbes, which was stated by the witness Dahlerus, is even more proof for the unwillingness of Poland to come to an understanding. by Germany; he was convinced that, in the event of a war, there would seen be a revolt in Germany and the Polish Army would march in triumph to Berlin. obviously finds its explanation in the fact that she felt too strong and secure by England's assurance. Poland was informed of the plans of the Canaris group to bring about a revolt. There can therefore be no question of an ambigious attitude or false play on the part of Goering. and to restore good relations with England is expressly recognized by Ambassador Henderson, who due to his thorough knowledge of the German conditions and his connections with the leading men of Germany had the right opinion also of Goering. I refer here to his beck "Failure of a Mission", in which on page 83 it says:
"I would like to express here by belief that the Field Marshal, if it had depended on him, would not have gambled on war as Hitler did in 1939.
As will be related in due course, he came down decisevely on the side of peace in September 1938" that Goering's efforts for the prevention of war were sincere. all the means at his disposal, but had been unable to prevent, Goering, as Commander in Chief of the air force exerted all his strength to win the victory for Germany is not contrary to the sincerity of his will to avoid the war. From that moment on he knew only his duty as a soldier to his fatherland. the armed forces, so for instance in November 1939 on 3 May 1939 and on 22 August 1939. The defendant Goering, at his personal interrogation has already given extensive explanations as to the importance and the purpose of these addresses. It is important for the question, whether the fact that he was present at these addresses might constitute perhaps a complicity in a conspiracy in the sense of the indictment, that on these occasions Hitler solely and one-sidedly made known his opinion about military and political questions. The participants were only informed what possible political developments Hitler expected. The participants were never asked for their opinion. They also had no possibility to express their criticism to Hitler's opinion. Hitler did not ask his generals to understand his orders. All he asked of them was to carry them out. principle : Sic voleo, sic iubeo, stat pre ratione voluntas, which he carried through to the last consequence. after the address of 23 May 1939 -- as Milch stated in his testimony -- he forbade expressly all discussions of those present, even among themselves. deduced by the participants from the said speeches and they did not deduce it. This has been confirmed unanimously by all witnesses who were present when those addresses were given.