A legal principle extending the fellow conspirator’s responsibility to actions 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 of nullum crimen sine lege, a principle, as I previously emphasized, acknowledged explicitly by the British prosecutor, too. In view of the fact that Article 6 can be interpreted in various ways, we should select from two possible interpretations, as corresponding to the author’s will, the one which does not contradict the said principle.
There is such a thing as withdrawal from a conspiracy, and also later entrance into it. The question is: What about responsibility for acts committed during the period of nonmembership? 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; after all, 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 any acts so far committed, the approval of a crime already committed does not establish partnership in such 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 come about only after his withdrawal. Any other opinion would again lead to the result that an ex post facto law is being applied. Now, did the 22 defendants participate in a conspiracy within the meaning of the Indictment, namely, a conspiracy to commit crimes against peace, usages of war, and humanity?
If such a conspiracy had existed, then Hitler would have been—nobody can doubt 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 ridiculed the suggestion 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 such or such means. He was an autocrat. He was not concerned with the approval of these men, but merely with having his decisions executed, whether they agreed with these decisions or not. Quite aside from legal considerations, Hitler’s environment, in fact, was quite different from a band of conspirators, as visualized by the Prosecution 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 surroundings during the war have been described by witnesses with great impressiveness. A cunning system of secrecy insured that the plans and aims of the Führer 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 only at the present Trial. This system of secrecy also insured an isolation of the individual collaborator, since one person 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 hearing of evidence repeatedly mentions conspiracies, but conspiracies against Hitler. From a psychological point of view it is, to say the least, highly improbable that the score of survivors of the Third Reich selected and put in the dock by the Prosecution should have 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 consider the different attitude displayed by the individuals. Some of the defendants have never been Party members at all, or, at any rate, not for a long time, and only a few of them have played an important part in the Party. Some held top positions in the Party and its organizations, 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, much less of a war of aggression.
But were not some of the defendants’ aims attainable without war?
Presumably every true German from the bottom of his heart desired 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 returned to the German Reich already in 1919, had the right of self-determination solemnly promised to all peoples been realized. But these objectives of German longing could be reached by peaceful means. And in fact, they had been reached without a shot or a stroke with the one exception of Danzig, which would have been managed in the same peaceful way if the Führer had had a shred of patience and the Poles a shred of good will.
But they neither wanted nor believed in a war. Hitler was thought capable of large-scale bluffing, but not of launching the catastrophe of a war. I cannot, therefore, believe in a conspiracy to commit crimes against peace and the usages of war. May I add two points of general importance:
(1) The first point refers to Göring’s attitude immediately previous to the outbreak of war. He was at that time Hitler’s confidant and friend, the country’s second string, and he 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 taken second place within such a conspiracy, yet it was actually he who tried everything within his power during the last days of August 1939 to prevent the attack on Poland, and who tried behind Hitler’s back to maintain peace. How can this be consistent with a conspiracy for initiating wars of aggression? Nor did he approve of a war against Russia and strongly advised the Führer against such a war.