. NMT03-T0149
Volume III · Page 149
process by which Germans, even those on a higher level, arrived at an opinion and judgment, of necessity moved and was bound to move along certain lines. The question as to knowledge of certain criminal acts and developments, or better yet, the question as to recognition of the criminality of certain acts and developments can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies particularly to wartime, which in all countries produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. Retrospective observation which, in examining facts, does not put itself into conditions existing at that time, projects into the past, knowledge and opportunity of knowledge gained later. Applied to this trial, the above-named method imputes to the defendants a knowledge, an awareness of the criminality of circumstances, which they did not have at that time and makes demands on their faculties of perception which they could never have satisfied under the circumstances then prevailing.
"nulla poena sine lege," "nullum crimen sine lege"
The inner connection between the afore-mentioned train of thoughts and the principles nulla poena sine lege and nullum crimen sine lege is obvious. The question is whether facts constituting criminality were created after the war by the Charter of the London Agreement and the Control Council Law No. 10 which, in violation of the above principles, are applied retroactive to previous acts, which at the time of commission did not constitute criminal acts. The resulting cardinal problem will be discussed by the defense.
The great and famous American judge, Oliver Wendell Holmes, aid in 1896, "The real reason for a decision are considerations of a political or social nature. It is erroneous to believe that a solution can be found solely with the aid of logic or general legal doctrines which no one contests." (Quoted from quotation in "Majority Rule and Minority Rights" of Henry Steele Commager, page 16 of the German translation.)
The defense can but concur in these words. The defense requests that consideration be given to its train of thoughts as derived from this attitude, and stated in VI, 3, which are the corollary of similar thoughts of the prosecution, without the Court having a misunderstanding concerning the above quotation.
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