(1) Article 6(a) 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 conducting of a war of aggression or of 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 a piece of legal audacity, because in this case the sovereign state stands between the individuals and the result of their actions, and this removes all foundation from the comparison with facts in national 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 fundamentally quite another thing from the case mentioned in (1). It does not mean punishment of the crime of conspiracy, but responsibility for the individual act of another conspiracy. 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: In this Trial, are principles of liability 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 plan.” 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 forming part of the common plan which they helped to conceive, desired, or at least condoned. A few examples:
Case (a): A, B, C, and D commit a concerted housebreaking in a villa. They happen to find a girl in the house, and A rapes her. B, C, and D cannot be charged with this rape. The reason is that A was not, when committing the crime, acting “in execution of the plan” but at best “on occasion of the execution of the plan.” The point at issue is not the execution, but merely the occasion arising while executing the plan. This view, which will hardly be disputed, is of importance in that it shows 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 loot 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 gangsters concerned bore in mind the possibility of such an occurrence, and were quite prepared to accept it. If this is the case they are responsible for the killing, as accessories or assistants, according to our opinion as well. 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—for instance, if they assumed that the inhabitants of the house were away from home—then there exists no liability on the part of the coconspirators. They are responsible only for acts incidental to the “execution of the plan.” The common plan, however, includes only what was foreseen and approved from the beginning. Other ways of execution are alien to the plan.
Mr. Justice Jackson’s argumentation is deceptive insofar as he derives a common principle from a decision which clearly and obviously happens to apply to the “normal case” of his parable of the robbers and can hardly be applied to any other case. As the case stands, coresponsibility in any single act could be made to apply to those conspirators only who foresaw and approved of their comrade’s act.