Creative Justice: Conviction Without Accusation

In war crimes trials, “conspiracy”, “design”, and “plan”, are used sometimes synonymously, and sometimes not. The doctrine of conspiracy was borrowed from American state and lower Federal Court decisions, particularly Marino vs. US, 91 Fed. 2d. 691, Circuit Court of Appeals. The rest of the world, of course, was not placed on notice to obey these decisions. In 1945, conspiracy was a concept unknown to international law. An example of the unfairness of this doctrine in practice is provided by the case of Schoepp and Gretsch, in the Trial of Martin Gottfried Weiss, Dachau, Nov. 15 Dec. 13, 1945, M1175 National Archives, beginning on microfilm page 000691:

ALBIN GRETSCH, one of the accused, was then called to the stand by the defense as a witness in his own behalf, and testified through the interpreter as follows:

On cross, the prosecution showed that he was a guard, that he had a gun, and that there were bullets in that gun. On redirect, the defense showed that he never fired a shot. Gretsch was convicted of “aiding and abetting in a common design”.

JOHANN SCHOEPP, one of the accused, was called to the stand by the defense as a witness in his own behalf, and testified through the interpreter as follows:

On cross, the prosecution showed that he was a reserve guard on a transport. On redirect, the defense showed he had no gun, no orders, nothing to do, and was a conscript assigned to the German Army from the Rumanian Army. He was convicted of “aiding and abetting in a common design”.

EXCERPTS FROM PROSECUTION SUMMATION, beginning on microfilm page 000857:

PROSECUTION (Lt. Col. Denson)… The case has been long. This court has heard the oral testimony of over 170 witnesses…I would like to call the court's attention and wish to emphasize the fact that the offense with which these 40 men stand charged is not killing, beating, and torturing these prisoners but the offense is aiding, abetting, encouraging and participating in a common design to kill, to beat, to torture, and to subject these persons to starvation.

Note that there is no mention of a gas chamber. That accusation was dropped before trial, but reintroduced into evidence at Nuremberg, even though it was known to be false.

It may be, because of the testimony submitted here, that this court may be inclined to determine the guilt or innocence of these forty men by the number of men they killed, or by the number of men they beat, or the number they tortured. That is not the test that is to be applied in this case… We are not trying these men for specific acts of misconduct. We are trying these men for participation in this common design… as a matter of fact, this case could have been established without showing that a single man over in that dock at any time killed a man. It would be sufficient, may it please the court, to show that there was in fact a common design, and that these individuals participated in it, and that the purpose of this common design was the killings, the beatings, and the tortures and the subjection to starvation… The evidence before this court demonstrates beyond all peradventure of a doubt the existence of this common design. It is not contended, nor is it necessary to sustain, the charges that this common design had its origin in Dachau, nor was it first conceived in January 1942…

Note that the word “conspiracy” is avoided at all times, apparently to give the prosecution more leeway than allowed in conspiracy cases. It was never revealed where the “design” originated, who made it, when and where, whether it was in writing or oral, or who was present.

EXCERPTS FROM JUDGMENT: 13 December 1945

PRESIDENT: The evidence presented to this court convinced it beyond any doubt that the Dachau Concentration Camp subjected its inmates to killings, beatings, tortures, indignities, and starvation to an extent and to a degree that necessitates the indictment of everyone, high and low, who had anything to do with the conduct and the operation of the camp. This court reiterates that, although appointed by a conquering nation as a military government court in a conquered land, it sits in judgment under international law and under such laws of humanity and customs of human behavior that is recognized by civilized people. Many of the acts committed at Camp Dachau had clearly the sanction of the high officials of the then customs of the German government itself. It is the view of this court that when a sovereign state sets itself up above reasonably recognized and constituted law or is willing to transcend readily recognizeable constituted customs of human and decent treatment of persons, the individuals effecting such policies of their state must be held responsible for their part in the violation of international law and the customs and laws of humanity.

Note that no references are given to any provisions of any laws constituting the legality of the court, the trial, or the crimes of the defendants.

The accused and counsel will stand. The accused will present themselves individually in the order in which they are numbered before the bench.

Thirty six of the forty defendants were sentenced to be hanged, two to life imprisonment, and Schoepp and Gretsch to ten years. Appeal was permitted as to sentence, but not as to the merits of the case. Twenty eight of the defendants were actually hanged. Most of the rest were released in the 1950s.