From that time on the search for true justice stirs the world. All socialist theories are merely attempts at solving this problem. After having been disappointed by the disadvantages of too much liberty, mankind once again seeks security and order. Some wish to return to the Christian truth of God, while others want to proceed in order yet to solve the problem through human intellect.
The National Socialists, whose most revolutionary leaders wanted to go further backward, and at the same time forward to deification of life itself in a biological-political sense, have been conquered and eliminated. Yet no solution of the problems of world order has hitherto been found. The victorious powers hope to arrive at it, however, in drawing a line between themselves and the vanquished by jointly indicting and punishing them as criminals.
From whence, however, will they take the standard by which to define justice and injustice in a legal sense? Insofar as such standards exist by international law as applied up to now, no further statements are required. That a special Court for the Trial was created by the Charter of this Tribunal I will not object to. I must, however, protest against its use, insofar as it is meant to create new material law by threatening punishment for crimes which, at the time of their perpetration, at least as far as individuals are concerned, did not carry any punishment.
One cannot, by an arbitrary act, suddenly create new law when, after centuries of revolutionary development, the old universal principles of medieval law have been gradually abolished and the autonomous thinking of the individual in the moral field has opened gate and door to anarchy. As we know, the very cause of the general state of anarchy in the sphere of justice, from which originated the crimes that are the subject of the accusation here, was the fact that people had forgotten to differentiate between might and justice. The success of so many revolutions over once legitimate rulers “by the grace of God” has shown that might apparently goes before right and that the latter can be changed at will. By what would it then be possible to tell what is right except through the force with which it is able to assert itself and hold its own? This relativity of law which had come about, this positivism of law, no longer concerned itself with a moral justification of law.
Can one expect that punishment will be recognized as just, if the culprit was unable to foresee any punishment because at the time he was not threatened thereby, and therefore believed himself able to derive the authorization for his way of acting solely from the political aims pursued? Of what help is reference to the ethical laws, if such must first be found again? According to Justice Jackson’s opinion, however, the Nazi Government from the start was never the representative of a legitimate state which had pursued the legitimate aims of a member of the international community. Only from such an attitude can the Indictment for conspiracy be understood, which will be discussed later. In fact this Indictment, as the entire argumentation of Justice Jackson, is far ahead of its time. For there were no internationally recognized standards according to which—outside of positive international law—the legitimacy of states and their aims could have been judged, nor was there an international community as such. Slogans about the legitimacy of one’s own and of the illegitimacy of foreign aspirations served only the formation of political fronts, just as did the efforts to brand political adversaries as disturbers of the peace. Whatever they did, they certainly did not create law.
Justice Jackson correctly declared that it would have been possible for the conquerors to deal with the conquered as they saw fit. But, said he, nondiscriminatory punishments without a final and fair establishment of guilt would be a breach of promises repeatedly given and would be a heavy burden on America’s conscience. For that reason he himself proposed judicial proceedings which were to differ from ordinary criminal proceedings by not admitting the usual tactics of obstruction and delay by the defendants. However, an establishment of guilt was to be arrived at on the basis of a just and fair trial. If the defendants were the first leaders of a conquered nation which had to answer before the law, they were also the first ones to whom the opportunity was to be given to defend their lives “in the name of justice.”
If this phrase is to have a meaning, then it must also be of significance for the interpretation of the Charter, because it would not be reasonable if the Court were obliged to rest exclusively upon the Charter without taking into consideration the convictions of others with regard to law. In that case the judgment would represent a mere dictate of force, against which there would be no defense “in the name of justice.”
The Charter may therefore be applied by the Court only insofar as its decrees are justifiable in all conscience, not only formally but also materially. The Charter itself says that nobody shall be excused for a violation of its decrees on the grounds of orders from his government or from a superior. In that case it must apply this, its own logic, also to itself, by allowing the judge to examine the congruence of its prescripts with the general principles of legal concept. For a judge, after all, is far more free and independent of the legislator than a subordinate of his superior, or a subject of his dictator.
Then there is another question, namely, whether the decrees of the Charter are really so much in opposition to the previous and ordinary state of law, especially as to the fundamental ideas of all rules of law, that the Court cannot acknowledge them as right or apply them. In practice, the most serious problem consists in deciding which should have precedence in the case of conflict—the Charter or the legal maxim nulla poena sine lege.
An attempt has been made to justify disregard of this rule in this specific instance with the highly political character of the Trial. Such a justification, however, cannot possibly be accepted. The political significance of a trial is usually apparent from its consequences rather than during the course of the procedure and through the influence exercised upon the legal norms to be applied. A judge should administer law, and not deal in politics. Still less is he called upon to rectify mistakes made by the politicians. Punishment, the establishment of which in due time was neglected, may only be meted out by him on the strength of a subsequent law if he would have done so in any case.