. NMT05-T0264
Volume V · Page 264
who are associated with a common plan. The Tribunal will therefore disregard the charges contained in count one of the indictment, that the defendant took part in a conspiracy for perpetrating war crimes and crimes against humanity, and consider solely the common plan to prepare, start, and carry out wars of aggression." |
| Thus there can be no doubt that, according to
the Charter of the International Military Tribunal at any rate, this does not
constitute a common conspiracy for the commission of war crimes or crimes
against humanity. Moreover, the question should be examined whether the Control Council Law No. 10 of 20 December 1945 provides sufficient legal basis for count one of the indictment. This question must be answered in the negative for the following reasons. The Charter of the International Military Tribunal of 8 August 1945 has become, by Article I of the Control Council Law, an integral part of this law. As a law of the four signatory powers of the London Agreement of 8 August 1945 it is without doubt a legal source of special importance. For this reason, therefore, it must be considered improbable that a law of the Control Council could contradict the regulations of the Charter of the International Military Tribunal or the interpretation which the Charter had acquired through the International Military Tribunal. Moreover, it should be added here that every law should be considered as a complete unity in itself. Considering the regulation placed at the head of this Control Council law that the Charter of the International Military Tribunal was an essential and inseparable part of this law, it must be regarded as out of the question for this law to make statements which contradict the Charter. We may, therefore, consider that the Control Council law does not present sufficient reasons for count one of the indictment from a legal point of view. And indeed this law mentions only in a single place a common plan or conspiracy, namely, in Article II, paragraph 1 (a) when defining the concept of crime against peace. On the other hand, the characteristics of a war crime or crime against humanity, as defined from the point of view of criminal law in Article II, paragraph 1 (b) and (c) contain no adequate further explanation of the concept in the sense of a common plan or conspiracy. Article II, paragraph 2 of the Control Council Law No. 10, which describes in detail the characteristic symptoms for determining participation, also gives no indication that the common plan for the commission of a war crime or a crime against humanity constitutes an independent criminal offense. This refers especially to paragraph 2 (d). Here anyone connected with the planning or perpetration of any of the crimes |
