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.
In figure II where the extent of participation are discussed once more, the plan is mentioned again, that can not mean anything else but a reference to Figure I; that is to that point where planning in Figure A is listed as an independent punishable fact but not a reference to that figure where planning is not an independent fact. Figure II does not list new facts but only explains forms of participation with reference to the facts listed under Figure I. Therefore, the argumentation which after the term of conspiracy has been left out, wants to interpret it into those paragraphs dealing with the forms of participation, to my mind does not seen to be within the scope of this law.
In this connection, before I continue, may I apologize respectfully that I am quite aware to speak as a continental jurist to an American group of Judges, and therefore, I ask that my word be understood in that manner.
The Frenchmen have, in the meantime departed from the English-American principles of conspiracy. I quote from a speech made by Professor Donnedieu De Vabres, who was a judge at the International Military Tribunal before the Association of the International Students - I will give you the French words later on for the translation - and he said that the concept of conspiracy presents an extreme danger, of a certain element of insecurity. I am translating it rather politely - to make certain elements of insecurity possible. He says that the charge of conspiracy really is the weapon of totalitarian states, and that if Hitler wanted to accuse his political opponents he charged them with a conspiracy against himself. That is a political argument brought by Donnedieu De Vabres quite apart from the juridical arguments, and that is that, in our continental development of law the fact of conspiracy has made us afraid for reasons of its rather vague extent.
May I say in that concept of conspiracy there is a very sound core, and that the fact of conspiracy, that is the fact that an action becomes punishable which would hot have to be punishable had it been completed without plan as an individual act; this seems to be absolutely sound.
But we do not dispose of the sound corrective provisions which American law has found with respect to conspiracy, and, therefore, we are worried whenever we are faced with that concept. As for an extension of this section or of participant, beyond the forms of participation, that can be found in our law also.
First in the facts of a Complot and in the facts of a Gang (Bande). For us the term of Complot always is a preliminary step to a crime which still has to materialize. In preliminary action which does not yet constitute the fact itself. Particularly herein Bavaria there is an excellent jurist, the famous Feuerbach, who dealt with the term, the concept of Complot, in the common law at the beginning of the last century. According to him, the prerequisite of Complot consists of three things:
First, the arrangement has to be directed to a common action. Each participant has to be prepared already to contribute by further action to a committment of the facts.
Second, the acts have to be committed from the circle of the participants in the Complot.
And, third, they have to act with their own interest in the committment of the crime, the animus auctoris.
You will see immediately that the essential difference between conspiracy, between the English and American law, is found in that term of Animus Auctoris, the revelation of each participant to contribute a prerequisite for the committment of the facts.
The Gang, the other continental concept of Delict is an arrangement, but it is uncertain which acts are to be committed. The concept of a gang, therefore, departs from the attempt to individualize the crime, but beyond doubt it requires a concrete threat of punishment. This concept has developed so far that it can not lead to punishable facts unless it is expressed in a particular way. For instance, in Article 6.5 of the Code Penal and of the Crime Code De La Paix Public Publique, crimes against the peace, or it is found in the draft for penal law concerning disturbances of the order.
This concept of gang, this gang itself, says can only be punished if a Lex Poenalis, a law for its punishment, existed.
That Lex Poenalis, however, is precisely what gives us the reason, the possibility here to come to a limitation of our material for conspiracy and I am in a position to prove it as far as all continental domains of law are concerned -- that is, I reserve the right to do that later -- according to continental law, neither in Germany nor in any of the countries occupied by Germany was subjected to punishment. The punishability of conspiracy therefore is independent on the question as to whether, together with the conquering powers, also other substantive law entered Germany. The French version of international law has developed a principle - "Where the flag is there is France" (ou le drapeau est France). That principle, however, has not been acknowledged according to international law. The principle is followed which has been expressed in the Hague Convention, that an occupying power shall use the law of the occupied country unless there are necessities for doing otherwise. Starting with the law of the country until the very moment when allied troops entered here, conspiracy, neither by domestic laws or by international law was ever put under punishment. Therefore we are faced with the question -whether by the establishment of military jurisdiction such an institution within the law has been imported which up to now has not existed. The second question is the following - whether, retroactively, the application of an English-American legal standard can be accepted. Up until now we in Germany were at a veritable loss to interpret Law 10 and we took the "position of just accepting it as something which was put upon us and to which we just have to obey. That point of view may be correct inasfar as we owe obedience to the law; but, just the same, as far as an interpretation of the law is concerned, as to its meaning, we certainly can think about that and discuss it. In my opinion, Law 10 does not show any retroactive force. Law 10 seems to me to be the codification of those provisions applicable for a certain group of crimes. Prerequisite for the prosecution of crimes by the Military Tribunals, according to Law 10, in my opinion, seems to be that these acts were also punishable at the time of the occupation - that is to say, the beginning of the occupation, inasfar as they had been committed previously.
I believe I have understood the prosecutor correctly when he wants to include the time from 1933 to 1945 for the conspiracy. In my opinion it is beyond doubt that a Military Tribunal sitting here -- of course opinions vary but this is my opinion - is authorized to judge crimes which were committed before 1945; but that does not imply that this jurisdiction has to be based on American substantive law. In my opinion that jurisdiction should take into account that law which existed in the country, or, if one wishes to say, the occupied counties - at any rate on the continent - previously.
THE PRESIDENT: May I ask you a question? Let me see if we understand your position. I think perhaps you have argued a little broadly beyond the immediate issue. The question is asked only that we may understand the position you are taking. Is it your view, as a, matter of law, that conspiracy is not a separate and substantive or independent crime for which a defendant could be convicted, even though he had not been found guilty of any particular war crime or crime against humanity? Isn't that, in substance, your position?
DR. HAENSEL: I am of the opinion that conspiracy should represent a fact which is punishable even though the individual act could not be proved to the extent that a punishability or guilt, at least, has been proven.
THE PRESIDENT: That is what you claim conspiracy is. But isn't it your claim that under Control Council 10, a defendant could not be convicted of a substantive, separate, independent, charge of conspiracy in a case in which there was no evidence sufficient to convict him of a substantive crime, a war crimes or crime against humanity? Isn't that your position?
DR. HAENSEL: May I say one thing? The difference seems to be in the term of proving the guilt. As far as we are concerned, the principle principle of illegality comprises the difference.
The knowledge of illegality has to be proven for all the facts, whereas in the case of conspiracy it would suffice that an indefinite planning led to a crime which a person, charged with conspiracy only, himself did not intend to commit or to have committed. Of course an independent conspiracy does not exist in the sense that it would be independent of the facts of committing war crimes but there is a difference, as far as the degree of guilt is concerned and the time over which it extends. If somebody, for instance, has been in the Ministry only for one year or for half a year during that entire period between 1933 and 1945, then if conspiracy is not proven or assumed, participation in some war crimes would have to be proven. However, if conspiracy is assumed, it would suffice that he got into that circle of conspirators, regardless of when.
THE PRESIDENT: Well, let me ask you one more question. Let us assume that when all of the evidence is in and has been considered there is not sufficient evidence as to some one of the defendants to permit or require the court to find him guilty of any war crime, as defined, or of any crime against humanity, as defined, in Trial Council 10. Then, I ask you, isn't it your position that under a proper construction of the law which controls this Tribunal, such a defendant could not be convicted of a separate charge under Count One of the Indictment?
DR. HAENSEL: Yes.
THE PRESIDENT: I am not asking this to trap you. I am trying to understand your position. Isn't that really the substance of your motion?
DR. HAENSEL: Yes, I am of the opinion that he could not be judged... that he could not... This is the way I understand it. If active part of participation in a war crime can not be proven to him, then in my opinion he can not be sentenced. That is the way I understand the law.
THE PRESIDENT: Isn't that the issue that you have raised by your motion?
DR. HAENSEL: Yes.
THE PRESIDENT: I understand. We have extended beyond our time. We will take our recess at this time.
(A recess was taken.)
THE MARSHAL: Military Tribunal No. 3 is again in session.
ThE PRESIDENT: Is the defense prepared to proceed with its witness? Has Dr. Haensel concluded his argument?
DR. KUBUSCHOK: Before the witness is called I think it is necessary after all, in a few brief sentences to revert to the subject of our previous discussion. Summarizing, the Prosecution in writing and verbally has raised an indictment from the independent cunt of conspiracy, The defense has made a motion to declare the indictment insufficient in that respect. Today the Prosecution has substantially said the following: concerning the question of independent indictment of conspiracy we cannot yet Very well make a statement, because Gen. Taylor is not here. But for practical reasons that is not so bad, for through the discussion of the action of participation in particular of the provision that somebody is guilty who is in connection with a dead and the commission of a deed, the evidence according to that provision must essentially also extend to those factors which would have to be discussed if an independent conspiracy were assured.
I have to contradict that very energetically. The evidence in both cases is not identical, by any means. I should now immediately discuss the example of the expert. Is the offense of conspiracy to be considered an independent offense, then many questions will have to be put by us which concern the organization of state, the organization of the Ministry of Justice, and of the courts in order to bring counter evidence that a conspiratorial connection did not exist by any means.
I want to go one step further in time and wish to discuss the case which will have to be dealt with next, the Schelgelberger case. If an independent offense of conspiracy is assumed, I, as a dutiful defense counsel concerning the very open question of law of the consequences of of joining and leaving a conspiracy, in effect, must bear in mind the entire period which comes under the Thierack regime. I am of the opinion that, as a matter of course, Schlegelberger's resignation from office quite evidently was legal and it would mean that he left the conspiracy.
But as I said, the questions legally are so open that it is my duty to consider also all those points. The Prosecution will say to me, we have produced documents and material. One of the defendants will in any case be affected by those documents. Therefore that does not apply. But that does not apply in effect, either, It makes a great difference whether fifteen defendants and fifteen defense counsel occupy themselves with one and the same document. Many heads, many opinions. Many different opportunities of interpretation of the facts and the law. Consequently in effect in the interests of an expedient trial it is decisive as to whether now at the beginning of the trial the question of the independent offense of conspiracy is to be eliminated from our consideration or not. The Prosecution had the opportunity to drop that count. If it does not do so, it is my view that cannot do without a ruling of the Court, that such a ruling should be made soon before the evidence for that I have cited the example of Schlegelberger and the example of the expert we are going to produce today. And if in conclusion I may point out this, the legal question whether under Control Council Law No. 10 and independent offense and conspiracy can be applied or not is comparatively simple. The Prosecution must have dealt with that question when it produced and submitted its indictment. I believe, therefore, that already today enough material is available to make a decision about that question, because it is purely a legal question the answer to which results from the law.
THE PRESIDENT: We full understand your request for an early decision. It has been made clear to us before. We are ready to hear the first witness.
DR. SCHILF: May it please the Court, may I ask your permission to grant me a two minute interval so that I can call the expert, who is in the courthouse at the moment.
THE PRESIDENT: Dr. Kubuschok, I think we promised you yesterday that we would inform you today concerning the time at which you should proceed to start the case for your defendant, Dr. Schlegelberger. The Tribunal is unanimously of the opinion that it will be necessary to request you to proceed immediately following the completion of the other witnesses, or of the expert witnesses.