"The Tribunal so established is described in the Agreement as an International Military Tribunal. Such an International Tribunal is intended to act under international law. It is clearly to be a judicial tribunal constituted to apply and enforce the appropriate rules of international law. I understand the Agreement to import that the three classes of persons which it specifics are war criminals, that the acts mentioned in classes (a), (b), and (c) are crimes for which there is properly individual responsibility; that they are not crimes because of the agreement of the four Governments, but that the Governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the court would not be a court of law but a manifestation of power. The principles which are declared in the Agreement are not laid down as an arbitrary direction to the court but are intended to define and do, in my opinion, accurately define what is the existing international law on these matters."
Similar holdings may be made with respect to Control Council Law No. 10 which recognizes the same basic crimes to be tried by this Tribunal as were recognized by the London Charter. Each such law is an expression of the treaties, rules, and customs of international law on crimes against peace, war crimes, and crimes against humanity; each is in effect and purpose a listing of crimes in violation of pre-existing international law and each "to that extent is itself a contribution to international law". (IMT Judgment, supra). But IMT did not rest its declaration of authority and its procedure upon the Charter which created it, but on the contrary, discussed at length the matters before it from the standpoint of pre-existing international law. No defendant was convicted by the International Military Tribunal except for crimes in violation of pre-existing international law which they held to exist even as to crimes against peace. It supported its Judgment that each crime was based upon pre-existing international law or custom of war, discussing at length the matter of violation of international treaties and agreements, particularly the Hage Conventions of 1899 and 1907, the Peace Conference of 1919, the violation of the Versailles Treaty, the various treaties of mutual guarantee, arbitration, and non-aggression, and the Kellogg-Briand Pact: (See: IMT 10933 q Judgment, Volume 1, pages 221-222).Under American law (National Defense Act of 4 June 1920) a military court or commission may be set up to try persons in the custody of the United States Government or its armed forces for crimes in violation of international law.
The right to punish such war criminals is not dependent upon any question of unconditional surrender or of whether hostilities have ceased. As regards these matters, in the recent case of Yamashita, the United States Supreme Court makes several pronouncements applicable here, as follows:
"The trial and punishment of an enemy combatant who has committed violations of the law of war is not only a part of conduct of war, but also is an exercise of authority sanctioned by Congress to administer system of military justice recognized by law of war which sanction is without qualification as to exercise of authority so long as a state of war exists, from its declaration until peace is proclaimed. Articles of War, Articles 2, 15.
"The mere fact that hostilities have ceased does not preclude the trial of offenders against the law of war before a military commission, at least until peace has been officially recognized by treaty o r proclamation of the political branch of the government. Articles of War, Article 15.
"The extent to which power to prosecute violations of the laws of war shall be exercised before peace is declared rests, not with courts, but with the political branch of the government and may itself be governed by terms of an armistice or a treaty of peace."
The importance of the Yamashita decision is apparent. The International Military Tribunal was established by the London Agreement, 8 August 1945, with its Charter annexed thereto. On entirely similar principles the Charter of the International Military Tribunal, or other tribunals or commissions, for the trial of major war criminals in the Far East was proclaimed on 19 January 1946. These tribunals or commisions of similar principles were all established in accordance with the Berlin agreement of 2 August 1945, which defined the meaning of the unconditional surrender of the armed forces of the Axis Powers, and declared that the Allied Powers intended to punish captured war criminals of the European Axis powers. All such commissions or tribunals are deemed to exercise military powers and therefore are described as "Military Tribunals". This includes the tribunals created under the pro 10933 r visions of Control Council Law No. 10 and Ordinance 7.The judges of these tribunals set up under Law No. 10 and Ordinance 7 are appointed by the War Department, by the acts of the Secretary of War, by the President of the United States as Commander-in-Chief of the armed forces, and by the Commanding General of the American Zone of Occupation in Germany.
These judges take an oath to faithfully perform the task thus assigned to them to the best of their ability.
The Supreme Court of the United States had previously applied the rule announced in the Yamashita case in the case of Quirin and six others. The court declared that:
"The 'law of war' includes that part of the law of nations which prescribes for the conduct of war the status, rights, and duties of enemy nations as well as of enemy individuals.
"Under the 'law of war' lawful combatants are subject to capture and detention as prisoners of war by opposing military forces and unlawful combatants are likewise subject to capture and detention but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."
This authority is expressly conferred by Article 15 of the Articles of War enacted by Congress on 4 June 1920.
It may be here again observed that international law is an unwritten law. There has never been an international legislative authority. The law of nations is founded upon various international rules and customs, which gradually obtain universal recognition and thus become international law. Likewise the law of war is built upon treaties and upon the usages, customs, and practices of warfare by civilized nations, which gradually obtain universal recognition, and also become established by the general principles of justice as applied by jurists and military courts, tribunals, or commissions. And as 10933 s held by the IMT:
"The Signatory Powers created this Tribunal, defined the law it was to administer and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law."
After the unconditional surrender, the Allied Powers have obtained the actual custody of many of the leaders of the German Government, and the German armies, and many of those who were active participants in nameless atrocities against prisoners of war, other persons alleged in the indictment, and civilians of invaded countries, and the power to try such Axis war criminals must be conceded. This power to try these crimes could have been exercised as an entirely military one, out such a method would not accord with Anglo-Saxon or United States ideology. It has been planned to conduct orderly trials, and fair trials, in accordance with the American concepts of due process, giving the accused the benefit of indictment, notice, counsel of their own choosing, witnesses in their behalf, proof beyond a reasonable doubt, and judgment by experienced jurists who are under the obligations of a solemn oath to render even and exact justice. Surely this is giving to the accused rights which they denied to their helpless victims.
It may be here observed that each of the defendants in this case has been captured or arrested and is now in the custody and jurisdiction of this Tribunal. Each of them has been charged by the indictment in this case with having committed two or more of the offenses recognized as crimes by the foregoing instruments which define and limit the Charter and jurisdiction of this Tribunal and which authorize this Tribunal to try and punish any individual found guilty of having committed such crimes or offenses. There has been no formal declaration of peace and officially a state of war still exists between the Allied Powers and Germany.
10933 t Under the doctrine of the Quirin and Yamashita cases, the Allied powers, or either of them, have the right to try and punish individual defendants in this case.
These cases held that where individual offenders are charged with offenses against the laws of nations, and particularly the laws of war, they may be tried by military tribunals or courts set up by the offended government or belligerent power. In such cases no question as to the character of military occupation nor as to the character of belligerency is involved, or whether or not hostilities have ceased. These cases recognize the right to try and punish individuals who are in the custody and jurisdiction of such military court or commission so long as peace has not been officially declared by the authorities competent to conclude such matters.
After armistice or peace agreement, the matter of punishing war criminals is a question for the parties making the peace agreement to determine. In consequence, the question of whether hostilities have ceased is not material. And as is so ably said in the Yamashita case:
"The extent to which power to prosecute violations of the laws of war shall be exercised before peace is declared rests, not with courts, but with the political branch of the government and may itself be governed by terms of an armistice or a treaty of peace."
Conspiracy Count one of the indictment charged the defendants with having, pursuant to a common design, conspired and agreed together and with each other and with divers other persons to commit war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10, in that each of the defendants participated either as a principal, or an accessory, or ordered and abetted, or took a consenting part in, or was connected with plans or enterprises involving the commission of the war crimes and crimes against humanity as set forth in the indictment; and that each defendant so participating was therefore responsible for his own acts and for the acts of all other defendants in the commission of the crimes.
10933 u This Tribunal has ruled that under no provision of Law No. 10 was conspiracy made a separate substantive and punishable crime.
But the defendants may be punished for haying committed war crimes or crimes against humanity by acts constituting a conspiracy to commit them.
Under the foregoing allegations of Count One, the defendants are charged with having committed war crimes and crimes against humanity by acts constituting a conspiracy to commit them. This Tribunal has not applied or convicted any defendant under the conspiracy charge of the indictment. All defendants convicted, save one, have been convicted under a plan or scheme to commit the alleged war crimes or crimes against humanity. The same facts are alleged and proved as constituting a conspiracy to commit the same war crimes and crimes against humanity by carrying out the Night and Fog decree were alleged and, by the same evidence, proved to be a common design or conspiracy to commit such crimes. The same is true of the plan or scheme to persecute and exterminate Poles and Jews upon racial grounds.
There is no material difference between a plan or scheme to commit a particular crime and a common design or conspiracy to commit the same crime. In legal concept there can be no material difference to plan, scheme, or conspire to commit a crime. But of them all, the conspiracy to commit the crimes charged in the indictment is the most realistic because the Nazi crimes are in reality indivisible and each plan, scheme, or conspiracy proved in the instant case was in reality an interlocking part of the whole criminal undertaking or enterprise.
That Control Council Law No. 10 and Ordinance 7 authorize a conviction for committing war crimes and crimes against humanity by conspiracy to commit certain acts, which are defined or recognized as war crimes or crimes against humanity by international law and by Control Council law No. 10, is clear.
In paragraph I (a) of Article II of Control Council Law No. 10, as in Article 6 (a) of the London Charter, it is provided that a con 10933 v spiracy to initiate or wage an aggressive war is a crime against peace.
The defendants are not charged with having committed or conspired to commit a crime against the peace but were so charged in the first international trial.
In discussing the issue of conspiracy the International Military Tribunal limited the scope of its inquiry to consideration of conspiracy to initiate or wage an aggressive war. It did not determine whether a conspiracy could be recognized as a crime under international law relating to war, or whether a conspiracy to commit such a crime had in fact been proved. It merely held that the concept of conspiracy under its Charter was more restricted than that set forth in the indictment which the prosecution sought to prove. That Tribunal did not construe Article II of Control Council Law No. 10 to determine whether it authorized the punishment of a separate crime of conspiracy. Neither did it determine whether the offenses of war crimes or crimes against humanity could be committed by the acts which in fact constitute a conspiracy to commit such crimes.
The Charter of the International Tribunal provided in Article 6(c) that:
"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:
"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 I 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 groups connected with the commission of any such crime or (f) with reference to paragraph I (a), if he held a high political, civil, or military (including General Staff) position in Germany or in one of its Allies, 10933 w 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 lang 10933 x usage 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 I of Law No. 10 and did not need further explanation. Obviously the previsions 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:
10933 y "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 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 chimes 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 3 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 10933 z 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 or enterprise was that of only one of the conspirators. Upon this print we quote from the Judgment of the International Tribunals:
"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."
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, abot, 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 know of its illegality and of its cruel and inhumane purposes.
Signed/Mallory B. Blair.
Typed / MALLORY B. BLAIR Judge of Military Tribunal III 10933 aa CORRECTED COPY
JUDGE BLAIR: I will file this with the Secretary General as part of the record in this case.
THE PRESIDENT: The Tribunal will recess until the hour of 5:15, at which time those defendants who have been convicted of any charges under the Indictment herein will be presented for sentence.
(A recess was taken.)
10933 bb
THE MARSHAL: The Tribunal is again in session.
TEE PRESIDENT: 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?
BR. KUBUSCHOK: Yes, Your Honor.
TEE PRESIDENT: The Tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings.
This Tribunal has adjudged the Defendant Pranz Schlegelberger guilty on Counts 2 and 3 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.
Curt 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.
Defendant Wilhelm 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.
Defendant Oswald 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 Alstoetter.
Josef Alstoetter, 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.
