In my opinion, this is a declaration which is extremely significant for the course of the Trial and of the decision, and the defendant can only do this in persona. I do not know whether it is admissible that Defense Counsel may make this declaration of “guilty” or “not guilty” for the defendant, and even if this were admissible, Defense Counsel would not be able to make this declaration because he had no opportunity to come to any understanding with the defendant.
Finally, the accused, who is not present, cannot exercise his right of a final plea.
The Charter, which has decreed so many and such decisive regulations for the rights of the defendant, thereby recognizes that the personal exercise of these rights which were granted to the accused is an important source of knowledge for the finding of an equitable judgment, and that a trial against such a defendant, who is incapable of exercising these rights through no fault of his own, cannot be recognized as a just procedure in the sense of Article 12.
I should like to go further, however, by saying that the procedure in absentia against Krupp, would be contrary to justice, not only according to the provisions of the Charter but also according to the generally recognized principles of the law of procedure of civilized states.
So far as I am informed, no law of procedure of a continental state permits a court procedure against somebody who is absent, mentally deranged, and completely incapable of arguing his case. According to the German Law of Procedure, the trial must be postponed in such a case (Paragraph 205 of the German Code of Criminal Law). If prohibiting the trial of a defendant, who is incapable of being tried, is a generally recognized principle of procedure (principe général de droit reconnu par des nations civilisées) in the sense of Paragraph 38 (c) of the Statute of the International Court in The Hague, then a tribunal upon which the attention of the whole world is, and the attention of future generations will be directed, cannot ignore this prohibition.
The foreign press, which in the last days and weeks has repeatedly been concerned with the law of the Charter, almost unanimously stresses that the formal penal procedure must not deviate from the customs and regulations of a fair trial, as is customary in civilized countries; but it does not object, as far as the penal code is concerned, to a departure from the principles recognized heretofore, because justice and high political considerations demand the establishment of a new international criminal code with retroactive effect in order to be able to punish war criminals.
I wish to add another point here, which may be important for the decision on the question discussed. This High Court would naturally not be able to acquire an impression of the personality of Krupp, an impression which in such an extraordinarily significant trial is a valuable means of perception, which cannot be underestimated for the judgment of the incriminating evidence. If, in the Charter, trial in absentia is permitted on principle against defendants who cannot be located, then corresponding laws of procedure of all states, and even of the German Code of Criminal Procedure agree to that.
A defendant who has escaped is absolutely different from a defendant who cannot argue his case, because in contrast to the latter, he has the possibility of appearing in court and thus, of defending himself. If he deliberately avoids this possibility, then he arbitrarily makes himself responsible for the disadvantages and dangers entailed by his absence. In this case, naturally, there would be no question of an unjust trial.
The view has been expressed in recent days and weeks that world opinion demands a trial against the Defendant Krupp under all circumstances, and even in absentia, because Krupp is the owner of the greatest German armament works and also one of the principal war criminals. So far as this demand of world opinion is based on the assumption that Krupp is one of the principal war criminals, it must be replied that this accusation is as yet only a thesis of the Prosecution, which must first be proved in the Trial.
The essential thing, however, in my opinion, is that it is not important whether world opinion or, perhaps, to use an expression forged in the Nazi work-shop, “the healthy instincts of the people,” or even political considerations play a part in the decision of this question, but that the question (Article 12) must be decided uniquely from the point of view of whether justice demands the trial against Krupp. I do not want to deny that the cries of justice may be the same as the cries echoing world opinion. However, the demands of world opinion and the demands of justice may be in contradiction to each other.