Chapter LXXXI: Section VII: of the secret decree declares that the directives will (8)

The declaration made in the judgment that Germany has been subjugated by military conquest and that therefore her sovereignty has been transferred to the successful belligerent Allied Powers cannot be sustained either as a matter of fact or under any construction of the foregoing rules of land warfare. The control and operation of Germany under the Allied Powers’ occupation is provisional. It does not transfer any sovereign power of Germany other than for the limited purpose of keeping the peace during occupancy, and for the ultimate rectification of the evils brought about by the Nazi regime and militarism, and in order to destroy such influences and to aid in the establishment of a government in and for Germany under which she may in the future earn her place in the comity of nations. In any event this Tribunal has no power or jurisdiction to determine such questions.

The judgment further declares that Control Council Law No. 10 has a dual aspect. The judgment states:

“In its first aspect and on its face it purports to be a statute
defining crimes and providing for the punishment of persons who
violate its provisions. It is the legislative product of the
only body in existence having and exercising general lawmaking
power throughout the Reich.”

Obviously this aspect or theory of reasoning is predicated upon the previous declarations that since at the time of the unconditional surrender the Nazi government had completely collapsed, and that, since the Allied Powers assumed the entire control of the governmental function of Germany, her sovereignty was thereby transferred to the Allied Powers. It is then declared that Control Council Law No. 10 was enacted by the Allied Control Council in and for Germany in the exercise of this transferred German sovereignty. Under this reasoning Control Council Law No. 10 merely became a local law in and for Germany because Germany, in the exercise of her national governmental sovereignty, could not enact the law as international law. Nor can the Allied Control Council in the exercise of the transferred sovereignty of Germany enact international law.

The judgment further declares that the same and only supreme legislative authority in and for Germany, the Allied Control Council, gave this Tribunal jurisdiction and authority to enforce the local German law so enacted by it and to punish crimes in violation of it, including crimes by German nationals against German nationals as authorized by Control Council Law No. 10. From the foregoing premise the conclusion is inescapable that the Allied Control Council in the exercise of the sovereign power of Germany has enacted the law in and for Germany and has authorized this Tribunal to punish criminals who violated the law in the manner of a German police court.

The foregoing conclusion is based upon the articles by Freeman and Fried, from which quotations are made in the judgment. This same theory by Fried has been expressed in a subsequent statement wherein he states, after reviewing the foregoing facts with respect to the unconditional surrender of the armed forces and the disintegration of the Nazi government, that--

“This Tribunal (III) has the double quality of being an
international court and, owing to the special situation of
Germany at the present time, also a German court.”

This is the only possible conclusion that can be reached in the premises stated.

The second aspect of Control Council Law No. 10 is declared by the judgment to be as follows:

“We have discussed C. C. Law 10 in its first aspect as
substantive legislation. We now consider its other aspect.
Entirely aside from its character as substantive legislation, C.
C. Law 10, together with Ordinance No. 7, provides procedural
means previously lacking for the enforcement within Germany
of certain rules of international law which exist throughout
the civilized world independently of any new substantive
legislation.”

There can be no serious disagreement as regards this aspect or theory of Control Council Law No. 10, but it is contrary to the first aspect or theory of the law. The two aspects are diametrically opposed to each other as to the “source of authority for Control Council No. 10.” They are so conflicting with respect to the claims that the law is both local law and international law that either one or the other aspect cannot exist. The legislature of a national state cannot by a legislative act make international law binding upon other nations. Only an international legislative body may so legislate and no such body has ever existed.

With regard to the premises supporting the view that Control Council Law No. 10 has two aspects, the judgment apparently contains other conflicting statements with respect to the “source of authority for Control Council Law No. 10” and also with respect to the basis of the authority of the legislative body to enact the law. The judgment states at one place--

“International law is not the product of statute. Its content
is not static. The absence from the world of any governmental
body authorized to enact substantive rules of international law
has not prevented the progressive development of that law. After
the manner of the English common law, it has grown to meet the
exigencies of changing conditions.”

The judgment recites at another point--

“Since the Charter IMT and C. C. Law 10 are the product of
legislative action by an international authority, it follows
of necessity that there is no national constitution of any one
state which could be invoked to invalidate the substantive
provisions of such international legislation.”

At still another place the judgment recites--

“In its aspect as a statute defining crime and providing
punishment the limited purpose of C. C. Law 10 is clearly set
forth. It is an exercise of supreme legislative power in and for
Germany. It does not purport to establish by legislative act any
new crimes of international applicability.”

Still at another place in the judgment it is declared that--

“Only by giving consideration to the extraordinary and temporary
situation in Germany can the procedure here be harmonized with
established principles of national sovereignty. In Germany
an international body (the Control Council) has assumed and
exercised the power to establish judicial machinery for the
punishment of those who have violated the rules of the common
international law, a power which no international authority
without consent could assume or exercise within a state having a
national government presently in the exercise of its sovereign
powers.”

Thus, in the first quotation, the judgment states that there has never been an international legislature and that, therefore, international law is not the product of statute; whereas, in the second quotation, it is contended that Control Council Law No. 10 is “the product of legislative action by an international authority.” The third recitation is that Control Council Law No. 10 “is an exercise of supreme legislative power in and for Germany.”

The fourth quotation doubts the legality of our procedure unless the international body in Germany (the Allied Control Council) has assumed and exercised the power to establish judicial machinery for punishment of crimes in violation of international law. The source of the authority to set up courts and machinery for punishment of German war criminals does not depend in any manner upon the exercise of any sovereign power of Germany. This matter will be later discussed.

With these conflicting conclusions as to the source of authority of Control Council Law No. 10, I must respectfully disagree. But the judgment saves itself from them by finally waiving them aside and holding as follows:

“For our purposes, however, it is unnecessary to determine
the present situs of ‘residual sovereignty’. It is sufficient
to hold that, by virtue of the situation at the time of
unconditional surrender, the Allied Powers were provisionally
in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be
permitted to exercise the full powers of sovereignty. We hold
that the legal right of the Four Powers to enact C. C. Law 10 is
established and that the jurisdiction of this Tribunal to try
persons charged as major war criminals of the European Axis must
be conceded.”

The judgment makes the further and additional declaration that--

“The fact that the Four Powers are exercising supreme
legislative authority in governing Germany and for the
punishment of German criminals does not mean that the
jurisdiction of this Tribunal rests in the slightest degree
upon any German law, prerogative, or sovereignty. We sit as a
Tribunal drawing its sole power and jurisdiction from the will
and command of the victor states. The power and right exerted is
that of victors, not of the vanquished.”

With these declarations there is no disagreement. They waive and completely nullify the foregoing conflicting declarations of the judgment with regard to the “source of authority of Control Council Law No. 10” and that its enactment was the exercise of German sovereignty by the four Allied Powers.

It is my view that the jurisdiction of this Tribunal is limited to the area or field of international law which relates to the punishment of war criminals in the fullest sense of that term. The source of its Charter and jurisdiction to try and punish European Axis war criminals is as follows:

_Charter and Jurisdiction of this Tribunal_

The charter and jurisdiction of this Military Tribunal are found within the framework of four instruments or documents: (1) Allied Control Council Law No. 10; (2) Military Government Ordinance No. 7; (3) the Charter of the International Military Tribunal; and (4) the judgment of the International Military Tribunal. These instruments and documents confer power or jurisdiction upon this Tribunal to try and punish certain European Axis war criminals. The source of Control Council Law No. 10 and Ordinance 7 and the authority to enact or issue them are found in certain unilateral agreements, instruments, and documents of the Allied Powers to which brief reference will be here made.

By the Moscow Declaration of 30 October 1943 on German war atrocities and crimes, the three Allied Powers (the United Kingdom, the United States, and the Soviet Union) declared that at the time of granting any armistice to Germany, “those German officers and men and the members of the Nazi Party who have been responsible for or have taken a consenting part in” committing such atrocities or crimes will be adjudged and punished for their abominable deeds. By the Yalta Conference of 11 February 1945 the same three Powers declared that only “the unconditional surrender” of the Axis powers will be accepted. The plan for enforcing the unconditional surrender terms was agreed upon and provides that the Allied Powers will each occupy a separate zone of Germany with coordinated administration and control through a Central Control Council composed of the supreme commanders at Berlin. France was to be invited to take over a zone of occupation and to participate as a fourth member of the Control Council for Germany. Among other things, the Allied Powers declared that they intended to “bring all war criminals to just and swift punishment.” They further declared that they intended “to destroy German militarism and nazism and to insure that Germany will never again be able to disturb the peace of the world.” With these provisional matters we are not concerned here.

The German armed forces unconditionally surrendered on 8 May 1945. France accepted the invitation to become a fourth member of the Allied Control Council and later took over a zone of occupation.

By the Potsdam Agreement of 5 June 1945 and the declaration of the Joint Chiefs of Staff of 2 August 1945 at Berlin, the then Four Allied Powers expressly declared and provided that the punishment of European Axis war criminals “was made a primary task of the military occupation of Germany.” They further declared that certain far reaching provisional measures would be undertaken in Germany to rid her people of nazism and of militarism and to insure the peace and safety of the world, and so that the German people thus extirpated will in the future take their place in the comity of nations. With these latter provisions we are not here concerned. The Allied Control Council for Germany is composed of the Joint Chiefs of Staff of the Four Allied Powers.

By the London Agreement of 8 August 1945, the Four Allied Powers referred to the Moscow Declaration and authorized, after consultation with the Allied Control Council for Germany, the establishment of an International Military Tribunal to try certain of the European Axis war criminals. The Charter of the Tribunal was attached to and made a part of the London Agreement. This Charter described the power and jurisdiction of the Tribunal and defined or recognized the crimes for which the European Axis war criminals were to be tried.

The foregoing avowed policy of the Allied Powers for the punishment of European war criminals or enemy persons was thereafter approved and sanctioned by 19 of the United Nations in accordance with the provisions of article V of the London Agreement.

The International Military Tribunal was duly created and held its first session on 18 October 1945. The actual trial began on 20 November 1945 of 22 alleged major war criminals; and by the judgment of 1 October 1946 some of them were given death sentences; some of them were given life imprisonment; some were given lesser prison terms; and others of them were acquitted.

After the foregoing trial began, the Allied Control Council for Occupied Germany met and on 20 December 1945 enacted Control Council Law No. 10, which defined the jurisdiction of this and similar military tribunals and recognized as crimes to be tried by them--

1. Crimes against peace;

2. War crimes;

3. Crimes against humanity; and

4. Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

Control Council Law No. 10 recognizes as a crime, membership in any organization declared to be criminal by the International Military Tribunal.

Article 9 of the London Charter provides that the IMT may declare any group or organization of which an individual was a member to be a criminal organization. Article 10 provides that the IMT may also declare membership in an organization found by it to be criminal to be a crime. This the IMT did and further declared that its Charter makes the declaration of criminality against an accused organization final. The IMT then fixed the character of membership which would be regarded as criminal, and expressly limited its declaration of group criminality to persons who became or remained members of the organization with knowledge that it was being used for criminal acts or who were personally implicated as members of the organization in the commission of such crimes. These findings and conclusions of the IMT are binding upon this Tribunal.

The Control Council declared that this law or procedure was intended to reach the German war criminals to be tried by the occupying powers of Germany in their respective zones of occupation. The preamble stated that the law was enacted by the authority of and to give effect to the Moscow Declaration, the London Agreement, and the Charter of the International Military Tribunal. Thus, the avowed purpose of the Allied Powers to punish German war criminals was given quadripartite agreement and application under Control Council Law No. 10.

Military Government Ordinance No. 7 was issued on 26 October 1946 “pursuant to the powers of the Military Governor of the United States Zone of Occupation within Germany, and further pursuant to the power conferred upon the Zone Commander by Control Council Law No. 10, and articles 10 and 11 of the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945,” authorizing the establishment of certain “tribunals to be known as Military Tribunals”. Accordingly, Military Tribunal III was established on 13 February 1947, by virtue of the provisions of said Military Government Ordinance No. 7, “with powers to try and punish persons charged with offenses recognized as crimes in article II of Control Council Law No. 10, including conspiracies to commit such crimes.” And article X of Ordinance No. 7 provides that--

“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof of
any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No. 1
shall constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”

As so created and established this and other similar military tribunals are international in character and jurisdiction. They are authorized and empowered to try and punish the “major war criminals of the European Axis”; to try and punish “those German officers and men and members of the Nazi Party who have been responsible for, and have taken a consenting part in,” and have aided, abetted, ordered, or have been connected with plans or enterprises involving the commission of any offense recognized in Control Council Law No. 10 as a crime.

The jurisdiction and power of this and similar tribunals to try and punish war criminals find full support in established international law relating to warfare. This law is that during hostilities and before their formal termination belligerents have concurrent jurisdiction over war crimes committed by the captured enemy persons in their territory or against their nationals in time of war. Accordingly, it has been generally recognized that belligerents during the war may legitimately try and punish enemy persons charged with infractions of the rules of war, if the accused is a prisoner of war and if the act charged has been made a penal offense by the generally accepted laws and customs of war. In such cases the accused usually is tried before the court, commission, or tribunal set up by and adjudged in accordance with the laws and procedure of the victor. After armistice or peace agreement the matter of punishment of war crimes is determined by the terms thereof.

The foregoing law was applied by the judgment of the International Military Tribunal, which after referring to the Charter creating it, declared that--

“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.

“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.”[677]

Even prior to the foregoing IMT judgment, Lord Chief Justice Wright had so construed the London Charter in an article appearing in volume 62 of the Law Quarterly Review, January 1946, page 41. He limits the discussion to the punishment of war criminals. He there states that--

“All I am here concerned with is a limited area of international
law, that relating to the trial and punishment of war criminals
in the full sense of that term, as adopted in the Agreement
of 8 August 1945, made in London between the Governments
of the United Kingdom, of the United States, of the French
Republic, and of the Union of Soviet Socialist Republics, which
established a Tribunal for the trial and punishment of the major
war criminals of the European Axis countries. The Agreement
includes as falling within the jurisdiction of the Tribunal
persons who committed the following crimes: (a) crimes against
peace, which means in effect planning, preparation, initiation,
or waging of a war of aggression; (b) war crimes, by which term
is meant mainly violation of the laws and customs of war; (c)
crimes against humanity, in particular murder, extermination,
enslavement, deportation and other inhumane acts committed
against any civilian population.

“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 specifies 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 preexisting 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 preexisting international law. No defendant was convicted by the International Military Tribunal except for crimes in violation of preexisting international law which they held to exist even as to crimes against peace. It supported its judgment that each crime was based upon preexisting international law or custom of war, discussing at length the matter of violation of international treaties and agreements, particularly the Hague Conventions of 1899 and 1907, the Peace Conference of 1919, the violation of the Versailles Treaty, the various treaties of mutual guarantee, arbitration, and nonaggression, and the Kellogg-Briand Pact.[678]

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 enemy combatants who have committed
violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against such
violation, but is an exercise of the authority sanctioned by
Congress to administer the system of military justice recognized
by law of war, that sanction is without qualification as to the
exercise of this 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 or 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.”[679]

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 commissions 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 provisions 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 (_317 U. S. 1_). 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 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.”[680]

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, but 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.

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 hold 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 (_66 S. Ct. 340_)--

“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.

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 having 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. The same facts under which certain defendants were convicted of having committed 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 conspiracy 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 [Article II]:

“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 1 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 group connected with the
commission of any such crime or (_f_) with reference to
paragraph 1 (_a_), if he held a high political, civil or
military (including General Staff) position in Germany or in
one of its Allies, 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 language 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 1 of Law No. 10 and did not need further explanation. Obviously, the provisions 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--

“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 2, 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 crimes 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 2 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 of 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 point we quote from the judgment of the International Tribunal--

“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.”[681]

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, abet, 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 knew of its illegality and of its cruel and inhumane purposes.

[Signed] MALLORY B. BLAIR
Judge of Military Tribunal III

SENTENCES[682]

THE MARSHAL: The Tribunal is again in session.

PRESIDING JUDGE BRAND: 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?

DR. KUBUSCHOK: Yes, Your Honor.

PRESIDING JUDGE BRAND: The Tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings.

This Tribunal has adjudged the defendant FRANZ SCHLEGELBERGER guilty on counts two and three 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.

KURT 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 Altstoetter.

JOSEF ALTSTOETTER, 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.

The Marshal will remove the defendant from the courtroom.

The Tribunal now stands adjourned without day.

THE MARSHAL: This Tribunal now adjourns without day.

(At 1745 hours, 4 December 1947, the Tribunal was adjourned.)

X. CONFIRMATION OF SENTENCES BY THE MILITARY
GOVERNOR OF THE UNITED STATES ZONE OF
OCCUPATION[683]

A. Introduction

Under articles XV and XVII of Ordinance No. 7, the sentences imposed by a tribunal are subject to review by the Military Governor. On 18 January 1949, General Lucius D. Clay, Military Governor of the U.S. Zone of Occupation, confirmed by separate orders the life sentences imposed upon the defendants Klemm, Oeschey, Rothaug, and Schlegelberger and the sentences for a term of years imposed upon the defendants Altstoetter, von Ammon, Joel, Lautz, Mettgenberg, and Rothenberger. The order confirming the life sentence upon the defendant Schlegelberger is reproduced below.

B. Order of the Military Governor confirming the life
sentence imposed upon the defendant Schlegelberger

HEADQUARTERS, EUROPEAN COMMAND
Office of the Commander-in-Chief
APO 742

Berlin, Germany
18 January 1949
Military Tribunal III
Case No. 3

In the Case of The
United States of America
_vs._
Josef Altstoetter, et al.

_Order with respect to Sentence of Franz Schlegelberger_

In the case of the United States of America against Josef Altstoetter, et al., tried by United States Military Tribunal III, Case No. 3, Nuremberg, Germany, the defendant Franz Schlegelberger, on 4 December 1947, was sentenced by the Tribunal to life imprisonment. A petition to modify the sentence, filed on behalf of the defendant by Dr. Egon Kubuschok, his defense counsel, has been referred to me pursuant to the provisions of Military Government Ordinance No. 7. I have duly considered the petition and the record of the trial and in accordance with article XVII of said Ordinance, it is hereby ordered that:

_a._ The sentence imposed by Military Tribunal III on Franz Schlegelberger be, and hereby is, in all respects confirmed.

_b._ The defendant be confined in War Criminal Prison No. 1, Landsberg, Bavaria, Germany.

[Signed] LUCIUS D. CLAY
LUCIUS D. CLAY
General, U. S. Army

Military Governor and
Commander-in-Chief European Command

X. ORDER OF THE UNITED STATES SUPREME COURT
DENYING WRITS OF HABEAS CORPUS

SUPREME COURT OF THE UNITED STATES
October Term, 1948

EXTRACT

* * * * * * *

No. 463 Misc. In the Matter of Wilhelm von Ammon.
No. 464 Misc. In the Matter of Dr. Guenther Joel.
No. 465 Misc. In the Matter of Herbert Klemm.
No. 466 Misc. In the Matter of Ernst Lautz.
No. 467 Misc. In the Matter of Dr. Wolfgang Mettgenberg.
No. 468 Misc. In the Matter of Rudolf Oeschey.
No. 469 Misc. In the Matter of Dr. Oswald Rothaug.
No. 470 Misc. In the Matter of Kurt Rothenberger.
No. 471 Misc. In the Matter of Dr. Franz. Schlegelberger.

* * * * * * *

ORDER

“Treating the application in each of these cases as a motion
for leave to file a petition for an original writ of habeas
corpus, leave to file is denied. The Chief Justice, Mr. Justice
Reed, Mr. Justice Frankfurter, and Mr. Justice Burton are of the
opinion that there is want of jurisdiction. U. S. Constitution,
article III, section 2, clause 2; see _Ex parte Betz_ and
companion cases, all 329 U.S. 672 (1946); Milch _v._ United
States, 332 U.S. 789 (1947); Brandt _v._ United States,
333 U.S. 836 (1948); _In re_ Eichel, 333 U.S. 865 (1948);
Everett _v._ Truman, 334 U.S. 824 (1948). Mr. Justice
Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice
Rutledge are of the opinion that argument should be heard on the
motions for leave to file the petitions in order to settle what
remedy, if any, the petitioners have. Mr. Justice Jackson took
no part in the consideration or decision of these applications.”

2 May 1949