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obscuring the trial. At this point. I should like to express my
sincere thanks to the Tribunal for this. It is this very attitude which
encourages me to express my doubts from a legal point of view without any
hesitation; restricting myself, of course, to the most essential points, after
having had the opportunity in my closing brief of discussing in detail the
entire complex of questions.
Shortage of time will not permit me to
discuss all questions of legal procedure, and I shall omit detailed evidence
that this High Tribunal is an American Military Commission operating under an
order of the Control Council.
I shall begin with the question whether
this High Tribunal is authorized and obligated to take into
consideration the extraordinarily grave doubts which were raised against the
opinion contained in the IMT judgment by the international critics, especially
in America.
To anticipate the outcome, the defense takes the standpoint
that American courts are bound, on legal grounds alone, to acquit the
defendants in the industrial trials at least, since the. London Agreement is
the sole basis for the IMT judgment and this must be described as a “bill
of attainder” that is, as subsequent legislation for the, punishment of
past actions, and as an ex post facto law as understood in American law,
and consequently does not empower an American court to impose a penalty. These
conceptions of American constitutional law played no part in the IMT judgment
because of the international nature of the Tribunal, so that to this extent, in
view, of the different nature of the problem, no precedent exists. If the
intention of Article 10 of Ordinance No. 7 was to prohibit an American Military
Tribunal from examining the IMT judgment from the viewpoint of the preservation
of constitutional rights before accepting its findings, this regulation would
itself be invalid because it would violate the American Constitution.
But even if the court in question is an international one, the
objection retains its force, for it must not he overlooked that in accordance
with the principles inherent in the obligation to observe precedent, the
obligation always ceases if the material conditions which were dealt with in
the precedent differed essentially from the facts now under consideration.
That is the case here. Whereas in the IMT, leaders of the state or
other political figures in leading positions were concerned, this time it is a
question of the punishment of private persons. This distinction is not of minor
importance, especially in connection with the prohibition against retroactive
criminal laws. Jackson himself defended in principle the validity of the
precept nulla poena sine lege, but added: |
| |
“But these men cannot claim
that such a principle, which in many legal systems forbids laws with
retroactive effect, must also apply in their case. They cannot prove that they
have ever in any situa- [...tion] |
877 |
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