However, the Charter, which I follow now, has enjoined the use of the concept of conspiracy. I do not, therefore, go any further into these questions of doubt. At any rate, it would appear therefrom that if such a concept is to be applied to Germans, this must only be done with all limitations imposed by equity.
Anglo-American law defines conspiracy as an agreement between a number of persons to commit crimes, “a combination or an agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means.”
Similar definitions keep recurring. Two points form the main characteristics: “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 be common to all of them, they must have knowledge of this community and everyone 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 external 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 his 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 delicts, and so forth. In all these cases, conspiracy is treated as a crime sui generis; 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 any given case.
According to German terminology, 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 failed to take 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 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 go further. 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 the German criminal law, for the latter is based on the self-evident and unanimously accepted principle that a person is responsible for an action only when he was the author, or at least the coauthor 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 Court: