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Volume III · Page 977
proceeding under a separation of prosecutive and adjudicative powers is, in the name of law and justice, asserted to be less desirable than an ex parte execution list or a drumhead court martial constituted in the immediate aftermath of the war. I state my view reservedly when I say that history will accept no conception of law, politics or justice that supports a submission in these terms." |
| Again, he says: |
"There is, indeed, too large a disposition among the defenders of Nuremberg to look for stray tags of international pronouncements and reason therefrom that the law of Nuremberg was previously fully laid down. If the Kellogg-Briand Pact or a general conception of international obligation sufficed to authorize England, and would have authorized us, to declare war on Germany in defense of Poland-and in this enterprise to kill countless thousands of German soldiers and civilians — can it be possible that it failed to authorize punitive action against individual Germans judicially determined to he responsible for the Polish attack? To be sure, we would demand a more explicit authorization for punishment in domestic law, for we have adopted for the protection of individuals a prophylactic principle absolutely forbidding retroactivity that we can afford to carry to that extreme. International society, being less stable, can afford less luxury. We admit that in other respects. Why should we deny it here?"* |
| Many of the laws of the Weimar era which were enacted for the protection of human rights have never been repealed. Many acts constituting war crimes or crimes against humanity as defined in C. C. Law 10 were committed or permitted in direct violation also of the provisions of the German criminal law. It is true that this Tribunal can try no defendant merely because of a violation of the German penal code, but it is equally true that the rule against retrospective legislation, as a rule of ,justice and fair play, should be no defense if the act which he committed in violation of C. C. Law 10 was also known to him to be a punishable crime under his own domestic law. |
| As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would |
* Wechsler, op. cit., pages 23-25.
