. NMT05-T1189
Volume VI · Page 1189
| denied the right to be advised and defended by counsel of their own
choice. Defendants have not been denied the right to call any witness to give
relevant testimony nor has the production of any available relevant document
been denied by the Court. As to the law administered. — The Tribunal is giving no ex post facto application to Control Council Law No. 10. It is administering that law as a statement of international law which previously was at least partly uncodified. Codification is not essential to the validity of law in our Anglo-American system. No act is adjudged criminal by the Tribunal which was not criminal under international law as it existed when the act was committed. Now I will read the opinion and judgment as to Case 5. Facing this Tribunal are private citizens of a conquered state being tried for alleged international crimes. Their judges are citizens of one of the victor states selected by its war department. There may well be misgivings as to the fairness of such a trial. These considerations have made the judges of the Tribunal keenly aware of their grave responsibility and of the danger to the cause of justice if the conduct of the trial and the conclusions reached should even seem to justify these misgivings. To err is human, but if error must occur it is right that the error must not be prejudicial to the defendants. That, we think, is the spirit of the law of civilized nations. It finds expression in the following principles well-known to students of Anglo-American criminal law. 1. There can be no conviction without proof of personal guilt. 2. Such guilt must be proved beyond a reasonable doubt. 3. The presumption of innocence follows each defendant throughout the trial. 4. The burden of proof is at all times upon the prosecution. 5. If from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must be taken. We cannot imagine that German law contains concepts more favorable to defendants. Any less favorable, we, as American judges trained in Anglo-American criminal jurisprudence, would be reluctant to apply even though this is not an American court but a special tribunal constituted pursuant to a four-power agreement administering public international law. To the extent required by article 10 of Military Government Ordinance No. 7 the Tribunal is bound by the judgment of the International Military Tribunal (hereinafter referred to as IMT) in Case 1 against Goering et al, but we shall indulge no implications therefrom to the prejudice of the defendants against whom the judgment would not be res judicata except for this article. |
