Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-171.08
Last-Modified: 2000/09/14

Dr. STAHMER, Continued:

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

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

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

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this connection, a misunderstanding. It has been said that
the National-Socialist State itself had issued criminal laws
ignoring the rule: Nullum crimen sine lege, so that the
defendants had no right to invoke this rule. It is by no
means my purpose to defend National-Socialist criminal law,
but honesty compels me to say: this is an error. The Third
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.

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

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

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

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

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

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

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

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

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

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

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the latter is based on the self-evident and unanimously
accepted principle that one is only responsible 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 Tribunal.

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

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

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

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

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

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

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

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

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

                                                  [Page 113]

gangsters concerned bore in mind the possibility of such an
occurrence, and were quite prepared to approve of it. If
this is the case, they are responsible for the killing, as
accessories or assistants, also according to our opinion. In
such a case, there would be no objection to Mr. Justice
Jackson's solution. But if the case is different, if the
fatal issue had not been foreseen 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 home - then
there is no responsibility for the co-conspirators. They are
responsible only for acts belonging to the "execution of the
plan". The common plan, however, includes only what has been
foreseen and approved from the beginning. 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 case. As the case stands, co-responsibility for
any single act could be made to apply to those conspirators
only who have foreseen and approved of their comrades' act.

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

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

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

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

                                                  [Page 114]

of secrecy ensured that plans and aims of the Fuehrer's
remained unknown to his associates 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 some of them 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 times 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
conspiracies, but conspiracies against Hitler.

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

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

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

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

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

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

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

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

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

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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 adjourns until tomorrow.

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

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