It is, indeed, necessary to clarify whether certain stipulations of the Charter may have created new laws, and consequently laws with retroactive force.
Such a clarification does not serve the purpose of facilitating the work of the historians. They will examine this, just as all the other findings in this Trial, according to the rules of free research; perhaps through many years of work and certainly without limiting the questions to be put and, if possible, on the basis of an ever greater wealth of documents and evidence.
Such a clarification is indispensable, if only for the reason that the decision as to right and wrong depends, or may depend, thereupon, all the more so if the Charter is considered legally unassailable.
Let us assume for the sake of argument that the Charter does not formulate criminal law which is already valid but creates new, and therefore retroactive, criminal law. What does this signify for the verdict? Must not this be of importance for the question of guilt?
Possibly the retroactive law which, for instance, penalizes aggressive war had not yet become fixed or even conceived in the conscience of humanity at the time when the act was committed. In that case the defendant cannot be guilty, either before himself or before others, in the sense that he was aware of the illegality of his behavior. Possibly, on the other hand, the retroactive law was promulgated at a time when a fresh conscience was just beginning to take shape, although not yet clear or universal. It is then quite possible for the defendant to be not guilty in the sense that he was aware of the wrongfulness of his commissions and omissions.
From the point of view of the European continental conception of penal law, the fact that a person was not aware of doing wrong is certainly a point which the Tribunal must not overlook.
Now the question as to whether the penal law contained in the Charter is ex post facto penal law does not present any difficulty as long as the stipulations of the Charter are unequivocal and the prescriptions of international law as applying to date are uncontested.
But what if we have regulations capable of different interpretations before us or if the concepts of international law are the subject of controversy? Let us take the first: A stipulation of the Charter is ambiguous and therefore requires interpretation. According to one justifiable interpretation the stipulation appears to be an ex post facto law; according to another, which can be equally well justified, it does not. Let us take the second: The regulation is clear or has been clarified by interpretation of the Court, but experts on international law are of different opinions as to the legal position applying to date; it is not certain whether we are not concerned with an ex post facto law. In both cases it is relevant whether the defendant was conscious of the wrongfulness of his behavior.
I intend to demonstrate how important these considerations are in this Trial, and shall now begin the examination.
The starting points of the British and French chief prosecutors are fundamentally different.