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Volume II · Page 174
[juris...] diction to try the crime of conspiracy considered as a separate substantive offense. The motion was set down for argument and duly argued by counsel for the prosecution and the defense. Thereafter, in one of its trial sessions the Tribunal granted the motion. That this judgment may be complete, the ruling made at that time is incorporated in this judgment. The order which was entered on the motion is as follows:
"It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.COUNTS TWO AND THREE — War Crimes and Crimes against Humanity. The second and third counts of the indictment charge the commission of war crimes and crimes against humanity. The counts are identical in content, except for the fact that in count two the acts which are made the basis for the charges are alleged to have been committed on "civilians and members of the armed forces [of nations] then at war with the German Reich [* * *] in the exercise of belligerent control", whereas in count three the criminal acts are alleged to have been committed against "German civilians and nationals of other countries." With this distinction observed, both counts will be treated as one and discussed together.
"Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of count I from the indictment, but, insofar as count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.
"This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10."
