. NMT04-T0056
Volume IV · Page 56
| [pos…] sibility. The reason is that this law, owing to its origin, is an international agreement made by the four signatory powers for the detailed implementation of the Moscow Declaration of 30 October 1943 [See page X.] and the London Declaration of 8 August 1945. [See page XI.] However, this agreement was made by four sovereign powers of equal rights, each of which had its own penal system. Thus, it is impossible simply to use the pertinent regulations of the Penal Code, the Soviet Penal Code 1926, the English or American Penal Law, as "General Regulations" of Law No. 10. |
| Which legal system is to
form the basis of the "General Regulations" of Law No. 10? |
| Here the following fundamental possibilities
exist: Applicable is the law of that state which administers justice in the actual case. In the case at hand the Tribunal would therefore have to draw upon the general regulations of the penal law of the United States of America to fill the gaps of Law No. 10. This solution would have one undeniable advantage, namely, an exact knowledge of the applicable laws on the part of the Tribunal which will make the decision. On the other hand, these advantages are outweighed by considerable disadvantages. There is, first of all, the question whether Federal Penal Law or the penal law of one single state would be applicable. As the latter possibility is excluded, the gaps of Law No. 10 would have to be filled by the Federal Penal Law of the U.S.A. To judge acts carried out under the pressure of emergency and in self-defense in accordance with the Federal Penal Law of the U.S.A., however, calls forth the same doubts as those which speak against the supplementary use of the Anglo-American legal system when judging European continental legal conditions. The doctrine of these legal systems on the law governing acts of self-defense and acts committed in a state of emergency, based on case law, is so alien to European legal thought, that it is bound to produce misleading results if applied to the conduct of the defendants. According to American law, the scope of the law governing acts of self-defense is extremely narrow, if compared with the European concept; the principles of the law governing acts committed in assumed self-defense are not even elucidated. Similar to English law, self-defense forms part of the constituent elements of a crime and, therefore, does not carry the same comprehensive and fundamental importance as it has in European law. Therefore, the closing of gaps left in Law No. 10 with American statutory or common law, would no doubt violate the |
