 |
| grounds of the IMT judgment which, on page 16882 of the transcript,
states the following with regard to the prerequisites of a conspiracy to commit
crimes against peace: |
| |
"The Tribunal must examine
whether a concrete plan to wage war existed, and determine the participants in
that concrete plan."¹ |
| Further quotation, page 16883 of the transcript, reads as
follows: |
"But the evidence established
with certainty the existence of many separate plans rather than a single
conspiracy embracing them all."² |
In my humble opinion, the prosecution has not established any
participation on the part of the defendants in any separate plan to wage war,
not to speak of a conspiracy of the defendants with such aim.
Moreover,
according to the IMT judgment, the conspiracy cannot be charged as a separate
crime with regard to the crimes against humanity and war crimes.³
Reference is made in this respect to the arguments advanced by the defense
during the morning session of October 29th, transcript page 2963. Therefore the
defense feel that the conspiracy as such cannot be considered as a legally
sound approach to the problem of the personal responsibility of the defendants.
As to the second point which the prosecution has made in order to
establish the personal responsibility of the defendants, namely, their alleged
joint responsibility for the affairs of IG under its bylaws and the German
commercial law, I am afraid that in doing so, the prosecution is mixing up two
kinds of responsibilities; one which is viewed from the angle of civil law, and
the other which has to be considered from the point of view of criminal law. In
this respect the defense feels that the following remarks in the grounds of the
IMT judgment are of utmost importance. The IMT, when dealing with the accused
organizations (transcript page 16929) and the questions of judicial discretion
connected therewith, states the following: |
| |
"This discretion is a judicial
one and does not permit arbitrary action, but should be exercised in accordance
with well-settled legal principles, one of the most important of which is that
criminal guilt is personal, and that mass punishments should
be avoided."4 |
__________
¹ Trial of the Major War
Criminals, volume I. Page 225.
² Id.
³ Ibid., page
226.
4 Ibid., page 256.
288 |
. 
