The Mazal Library

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NUERNBERG MILITARY TRIBUNAL
Volume V · Page 961

COUNT ONE — THE COMMON DESIGN
OR CONSPIRACY

The first count of the indictment charges that the defendants, between January 1933 and April 1945, acting pursuant to a common design, unlawfully, wilfully, and knowingly did conspire and agree together, and with each other, and with divers other persons, to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article II. During the trial each of the defendants challenged this count of the indictment, and moved that the same be quashed and stricken from the indictment. The defendants alleged in their motions that under the basic law the Tribunal did not have jurisdiction to try the charge of conspiracy as a separate substantive offense. The motion to quash was argued by counsel for the prosecution and defense and thereafter the Tribunal granted the motion. In order that this judgment may be complete, the ruling of the Tribunal is incorporated in this judgment:

"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.

"Count one 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 one from the indictment, but, insofar as count one charges the commission of the alleged crimes 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 TI, 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."

Inasmuch as the offenses charged in the unstricken part of count one are repeated in substance in counts two and three, the entire first count may for purposes of this judgment be disre- […garded]

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