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invoke existing international law, it is rather a
proceeding pursuant to a new penal law, a penal law enacted only
after the crime. This is repugnant to a principle of jurisprudence
sacred to the civilized world, the partial violation of which by
Hitler's Germany has been vehemently discountenanced outside and
inside the Reich. This principle is to the effect that only he can be
punished who offended against a law in existence at the time of the
commission of the act and imposing a penalty. This maxim is one of
the great fundamental principles of the political systems of the
Signatories of the Charter for this Tribunal themselves, to wit, of
England since the Middle Ages, of the United States since their
creation, of France since its great revolution, and the Soviet Union.
And recently when the Control Council for Germany enacted a law to
assure the return to a just administration of penal law in Germany,
it decreed in the first place the restoration of the maxim, "No
punishment without a penal law in force at the time of the commission
of the act". This maxim is precisely not a rule of expediency
but it derives from the recognition of the fact that any defendant
must needs consider himself unjustly treated if he is punished under
an ex post facto law.
The Defense of all defendants would be neglectful of their duty if they acquiesced silently in a deviation from existing international law and in disregard of a commonly recognized principle of modern penal jurisprudence and if they suppressed doubts which are openly expressed today outside Germany, all the more so as it is the unanimous conviction of the Defense that this Trial could serve in a high degree the progress of world order even if, nay in the very instance where it did not depart from existing international law. Wherever the Indictment charges acts which were not punishable at the time the Tribunal would have to confine itself to a thorough examination and findings as to what acts were committed, for which purposes the Defense would cooperate to the best of their ability as true assistants of the Court. Under the impact of these findings of the Tribunal the States of the international legal community would then create a new law under which those who in the future would be guilty of starting an unjust war would be threatened with punishment by an International Tribunal. The Defense are also of the opinion that other principles of a penal character contained in the Charter are in contradiction with the maxim, "Nulla Poena Sine Lege". Finally, the Defense consider it their duty to point out at this juncture another peculiarity of this Trial which departs from the commonly recognized principles of modern jurisprudence. The Judges have been appointed exclusively by States which were the one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal and of the rules of law, | ||||||||||||||||||||||||||||||||||
Last modified: October 10, 1998
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