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Volume III · Page 974
| opinion recognized the distinction between war crimes and crimes against humanity, and said: |
" * * * insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity." |
| The evidence to be later reviewed establishes that certain inhumane acts charged in count three of the indictment were committed in execution of, and in connection with, aggressive war and were therefore crimes against humanity even under the provisions of the IMT Charter, but it must be noted that C. C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as inhumane acts, etc., committed, "in execution of, or in connection with, any crime within the jurisdiction of the tribunal", whereas in C. C. Law 10 the words last quoted are deliberately omitted from the definition. |
| THE EX POST FACTO PRINCIPLE |
| The defendants claim protection under the
principle nullum crimen sine lege, though they withheld from others the benefit
of that rule during the Hitler regime. Obviously the principle in question
constitutes no limitation upon the power or right of the Tribunal to punish
acts which can properly be held to have been violations of international law
when committed. By way of illustration, we observe that C. C. Law 10, article
II, paragraph 1(b), "War Crimes," has by reference incorporated
the rules by which war crimes are to be identified. In all such cases it
remains only for the Tribunal, after the manner of the common law, to determine
the content of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority under C. C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case. Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world author- [...ity] |
* Trial of the Major War Criminals, op. cit., volume I, pages 254 and 255.
