Note 1 — Afternoon Session

Proceeding from this interpretation of the Charter there arises the need for a discussion on how the Indictment is to be construed with respect to the conspiracy charged therein. This construction is based on the legal concept of Anglo-American law which determines the responsibility of a plurality of persons differently and in a more far-reaching way than the German penal code, which contains the principles of law to which the accused were subject at the time when they committed the deed. The German penal code also provides that a person can be held responsible for offenses committed by others provided he participated in a common plan which was later carried out by others. But the German penal code places decisive weight on determining the extent to which the acts committed at a latter date correspond to the common plan. Since in the serious crimes which are being prosecuted before this Court the determination of the form of guilt in the original plan is necessary in order to permit punishment, later acts of commission by others can be charged against a defendant only to the extent to which they corresponded to arrangements to which the defendant deliberately agreed. A defendant who participated in certain plans cannot be held responsible for subsequent plans of a wider scope, or for acts of commission which far exceeded the original plans without his co-operation.

Responsibility for subsequent plans and acts of commission can be established according to German law only if it can be proved that the defendant, without participating in those subsequent plans and actions, at the time of his original participation recognized and approved this manner of development and execution and, in other words, deliberately encouraged it.

To revert to the example of the Prosecution:

He who participates’ in the plan for robbing a bank is responsible if this plan is carried out, even though he does not personally participate in the execution. But a person does not at the same time become guilty of premeditated murder if the active members subsequently and without his participation discuss murdering the guard or in case one of the members should shoot one of the guards without prior agreement, because the latter has caught him in the act.

Nobody can be convicted of premeditated murder if he did not participate in a plan to commit murder, unless it can be proved that when he participated in the plan for robbing the bank such killing of a guard was already contemplated and that in spite of this he approved the plan for the bank robbery. In that case he, too, would have deliberately contributed to the murder. In other words, according to the provisions of German substantive criminal law there does not exist a liability for so-called excesses of the immediate culprits or for an unforeseen development of plans not originally conceived on such a wide scope, so that a more far-reaching interpretation in line with the concept of conspiracy in Anglo-American law, which at the time when the accused committed their deed did not exist, would violate the principle which prohibits retroactive application of penal laws.