The 14 defendants were high ranking generals of the German Wehrmacht and former members of the High Command of Nazi Germany’s military forces. The indictment contained four counts: i) crimes against peace by waging aggressive war against other nations violating international treaties, ii) war crimes carried out through murder, ill treatment and other crimes against prisoners of war and enemy belligerents iii) crimes against humanity by participating or ordering the murder, torture, deportation, hostage taking among others of civilians in occupied countries, iv) participating and organising the formulations and execution of a common plan and conspiracy, which involved the commission of crimes against peace, including the acts constituting war crimes and crimes against humanity that formed an integral part of the crimes against peace.493
In an interesting twist, the count of conspiracy was dismissed on the ground that it was already covered by the other charges. The tribunal expressed that it failed to see of what use the conspiracy count was for the prosecution, asserting that if the defendants had committed the acts alleged under the conspiracy count, they would in any case be considered guilty as principals in crimes charged in preceding
491 TWC, Vols. XIV, The Ministries Case, pp. 855-65. 492
TWC, Vols. X, XI, The High Command Case.
493 TWC, Vols. X, The High Command Case, Indictment, pp. 10-55.
counts.494 In other words, the tribunal considered that the conspiracy in this case had merged into the completed crimes. In the words of the tribunal:-
The conspiracy count has not resulted in the introduction of any evidence that is not admissible under the other counts, nor does it, as the evidence has developed in this case, impose any criminality not attached to a violation under such preceding counts.495
VIII. Evaluation
Despite the restrictive construction of the conspiracy count in the IMT judgment, the prosecution decided to engage in a renewed effort to establish broad conspiracy liability theory in the subsequent Nuremberg trials. Evidently, the conspiracy charge was a favourite of the American prosecutions. This conspiracy was alleged with respect to all the crimes in CCL. 10. The theory that informed this prosecutorial policy was that the IMT judgment was not binding on subsequent tribunals, and in any case, the prosecution was of the view that Article II (2) of CCL. 10 provided a non-exhaustive list of different forms of liability, and conspiracy liability could also be read in it.
The defence in most of the cases vehemently opposed the charging of conspiracy to commit war crimes and crimes against humanity on jurisdictional grounds. It submitted that while the IMT judgment had rejected conspiracy to commit war crimes and crimes against humanity, CCL. 10 did not have any provision establishing criminal responsibility for such crimes. It also submitted on the impropriety of introducing an American concept into international law, arguing that the criminalisation of an agreement being a thought crime violated the principle of legality. It emphasized on the retroactivity of imposing criminal responsibility for such conduct upon a German defendant. The submission that conspiracy was a totally
494
TWC, Vols. XI, The High Command Case, p. 483.
495 TWC, Vols. XI, The High Command Case, p. 483.
foreign concept to a German defendant was a misrepresentation by the defence, because Germany at the time already recognised agreements to commit certain crimes as punishable, although, they did not expressly relate to war crimes and crimes against humanity.
In answer thereto, the prosecution emphasized that Article II (2) was so broad also assigning liability to conspirators. The prosecution sought to distinguish between inchoate conspiracy, which the IMT judgment had rejected in reference to crimes against humanity and war crimes, and conspiracy as a form of complicity that applied to consummated conspiracies. It submitted that the later form of conspiracy was provided for in CCL. 10. The prosecution stressed that the conspiracy charged in the respective cases were complete conspiracies with all the crimes having been committed, and not conspiracies based on incomplete or preparatory criminal conduct. The conspiracy charged by the prosecution was therefore, intended to act as an elaboration on the law of accessories and accomplices. The defendants eventually carried the day in the joint ruling before the en banc panel in the Medical,
Pohl and Justice cases. The counts of conspiracy to commit war crimes and crimes
against humanity were rejected on the ground of lack of jurisdiction. This was in line with the decision of the IMT judgment, with the tribunal reiterating that neither the IMT Charter nor CCL. 10 bestowed such jurisdiction. It only recognised jurisdiction over conspiracy to commit crimes against peace.
In the subsequent trials of I.G Farben, Krupp, Ministries and High Command cases, the prosecution adopted a second formulation of conspiracy to circumvent the restrictions of the IMT judgment. Therefore, rather than flout the IMT judgment, it charged the crime of conspiracy to commit crimes against peace describing it to include war crimes and crimes against humanity, which acts it alleged were
committed as an integral part of crimes against peace. An innovative approach, but it proved to be an exercise in futility. In both the I.G Farben and Krupp cases conspiracy was again restricted to war of aggression. In the I.G Farben trial the defendants were discharged from liability of conspiracy on account of lack of knowledge of the aggressive nature of the war, and in the Krupp case the tribunal found the evidence against the defendants insufficient to support a conviction. In respect to the Ministries case, the count on conspiracy was summarily dismissed, with the tribunal asserting that the prosecution had failed to discharge its burden of proof on this charge and no further analysis was made on the validity of the charge. In the High Command case, the conspiracy count was dismissed because the tribunal considered that the acts charged under this count had sufficiently been covered in the other counts referring to completed crimes.
It is clear from the rulings that conspiracy did not enjoy favour before the Nuremberg tribunals. The tribunals simply chose to dismiss the charges of conspiracy to commit crimes against humanity and war crimes on jurisdictional grounds, failing to make any elaborate analysis on certain issues raised by the parties that merited a more detailed or reasoned judicial response.496 First, the tribunal should have considered addressing the prosecution’s submission that conspiracy to commit acts punishable under war crimes and crimes against humanity such as “murder, torture, enslavement, rape, plunder, destruction, devastation, etc”, were indictable offences at common law although not expressly provided for in the statutes. The tribunal in response could have reasoned that this practice was not a general principle of law therefore, should not be used on defendants from continental Europe, whose system
496
See also K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal
Law (2011), p. 280, on this aspect he observes that the en blanc panel in fact never made a ruling at
all.
of law required a strict adherence to the principle of legality.497 To be considered as punishable, CCL. 10 should have expressly provided for conspiracy to commit war crimes and crimes against humanity as separate crimes.
Second, the tribunal should also have responded to the submission that the conspiracy alleged by the prosecution was an ‘adjunct of the crime’ as opposed to a separate subsequent crime. In other words, the prosecution considered conspiracy here to be a form of accessory or accomplice liability. A possible approach would have been to expressly dismiss this submission with the reason that conspiracy as a form of accessorial liability is derivative from the independent inchoate crime of conspiracy. This implies that conspiracy as a form of complicity can only be punished in the instances that conspiracy is expressly provided for as an independent crime in the applicable law. This was not the case in CCL. 10, especially, not with respect to war crimes and crimes against humanity. The prosecution’s submission on this point was therefore, not acceptable.498
The charge of conspiracy was treated with extreme caution such that even in the cases where jurisdiction over conspiracy to commit crimes against peace was acknowledged, no conviction was obtained because of the high evidentiary standard requirements. Knowingly participating in a conspiracy to wage an aggressive war was strictly construed and linked to planning and knowingly participating in the preparation and initiation to wage a war, which the defendant knew was aggressive and illegal in nature. This knowledge was only strictly inferred from the group of men who allegedly had a particular close and confidential relationship with Hitler, leaving
497
On this aspect, K. J. Heller, The Nuremberg Military Tribunals and the Origins of International
Criminal Law (2011), p. 279, observes that the tribunals were not willing ‘to use conventional and
customary international law’ to supplement CCL. 10, although, the same was all too willingly used to limit CCL.10.
498
See also K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal
Law (2011), p. 280, noting that the prosecution’s presentation on this point undermined the
conspiracy counts.
out several other defendants who although played a crucial role in furthering the war, did not fall within the category of Hitler’s inner circle.
A general positive observation that may be made is that the restrictive interpretation of the conspiracy charge played an essential role in avoiding the possibility of mass punishment. The counts on conspiracy in the indictments were generally and broadly drafted not giving any particulars of an accused’s actual participation in the conspiracy. This gave the prosecution the advantage of adducing a wide range of evidence, which only revealed particulars of a defendant’s alleged participation in the conspiracy during the course of the trial. This already put the defendants at a disadvantaged position because they were not fully forewarned of the case against them. The decision to strictly construe the conspiracy charge was positive to the extent that it ensured guilt could not be established by the mere fact of association, without any culpable conduct, therefore, upholding fundamental principles of criminal law.
The main conduct that the conspiracy count seemed to create criminal responsibility for in the face of complete crimes, as illustrated in the respective indictments, was the acts involving planning and preparatory activities with respect to the underlying crimes. This conduct was in any case considered punishable, by the tribunals, as actual participation in the committed crimes. Therefore, no big gap was created following the exclusion of the conspiracy charges. Save that, the conspiracy count had presented with it a time frame that made it possible to punish acts committed way before the war began, its dismissal effectively made it impossible to hold defendants criminally responsible for such acts. This is in fact one of the criticisms
that have been labelled against the decision to dismiss the conspiracy charge.499 These results may again like in the case of the IMT Charter be traced to the drafting of CCL.10, which failed to expressly provide for conspiracy to commit war crimes and crimes against humanity, probably under the assumption that the tribunals would not be too hostile towards the possibility of punishing such conduct through expansive rules of construction.
Comparing conspiracy to the count of membership in a criminal organisation, the later count had a more prominent role. The mere fact of voluntary membership with knowledge of the criminal activities of an organisation declared criminal by the IMT, made one criminally responsible, even with no evidence of having participated in the crimes themselves or having contributed to the functioning of such organisation. This seems to be a lower standard of addressing the question of a defendant’s degree of connection with the underlying crimes than the standards set out for the count on conspiracy. Under conspiracy, a defendant’s guilt was only inferred if he had knowledge of the aggressive nature of the war (with knowledge here being strictly construed), and had participated in its planning and preparation, mere acquiescence would not suffice. The count of membership in a criminal organisation in this sense compensated to some extent for the strategy by the prosecution to use conspiracy as a tool that ensured a substantial number of those who had even been remotely connected with the crimes, or supported the system that perpetrated the crimes would be punished.500
499
J. A. Bush, 109 Colum. L. Rev. (2009), pp. 1211; J. Schnitzer, ‘The Nuremberg Justice Trial 1947- Vengeance of the Victors?’, LLM Thesis (2010), University of Wellington, p. 94.
500
See also J. A. Bush, 109 Colum. L. Rev. (2009), pp. 1211; R. Wala, 41 Georgetown Journal of
International Law (2010), p. 701; also see decisions above Ch 3 section C. I, on Altstöetter in the Justice case, and Ch 3 section C. II, on Poppendick in the Medical case.