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:
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“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.