It would be all the more unintelligible and intolerable for the German sense of justice if this phrase were not to apply to Germans accused of War Crimes. In itself the Charter is an exceptional law by the mere fact that it was created only against members of the Axis Powers and based on an agreement made for one year and subject to notice. If, in addition, it should abolish the maxim nulla poena sine lege praevia, specifically for actions that were not only within the scope of German legality, but under most severe penalties had even been made a duty by the Government of the sovereign German State, then all understanding would cease for the interpretation that the Court is bound by the Charter.
Nor is an examination of the political aims connected with the Charter of any assistance. Justice Jackson has called the Charter and the Trial a step toward “creating a juridical guarantee that he who starts a war will pay for it personally.” The American commentator Walter Lippmann stated elsewhere that the system of collective security for the prevention of wars had broken down because nobody was prepared to declare war on the country breaking the peace in order to help prevent a war which did not directly affect them.
The means for combating the disease of war would have been just as bad as the disease itself. In consequence of the fiasco of the collective methods the conception of basing security in the future upon holding responsible those individual persons accountable for breaking the peace was evolved by the enemies of Germany in the last war. And this finally led to the Nuremberg Trial. Taking one’s starting point from this fact, today one might say: During this second World War revolutionary developments have taken place; it has driven humanity beyond the bounds of what was the modern age until a short time ago. The first but essential steps to create a world state have been made.
The way to peace, as shown here, will be welcomed on principle, although one will still doubt its absolute reliability. Justice Jackson himself has expressed doubts whether punishment will serve to intimidate and thus help prevent breaking the peace in the future. Only somebody certain of victory will decide to wage a war and thus will not seriously consider punishment, which would reach him only in the case of defeat. Therefore the educational issue of this Trial, namely, to strengthen the sense of justice, seems more important than the effect of intimidation, which can also be achieved by warning for the future. The politician will have to learn that the principle of division of power will have to be observed by him, too, and that he will not find a judge willing subsequently to condone his mistakes, because he will also punish him on the basis of subsequent laws. Confidence in international jurisdiction, which today still suffers from a suspicion of being easily misused for political purposes, would be heightened considerably through such a pronouncement. On the other hand, it would most certainly suffer by the sentencing of acts whose punishable quality remained doubtful. Thus the violation of the sentence nulla poena sine lege could not be justified even from the angle of political utility, although conversely one must realize that the strengthening of the belief in the inflexibility of justice as the basic pillar of the tremendous dynamics of political forces serves peace best.
This result cannot be questioned on the basis of the individual considerations presented by the prosecutors.
The French prosecutors have pointed out that living international law could not be imagined without international morals, and that a moral code has precedence over all claims for freedom by the individual as well as by the nations. These certainly are facts well worth bearing in mind. Correctly considered, however, they speak only for my viewpoint that any strengthening of the sense of justice must not start out with a violation.
When the French chief prosecutor declared that without punishing the chief culprits of Nazi Germany there could be no future belief in justice, then obviously he went too far. Justice does not grow out of obtaining satisfaction for the violated sense of justice at any price. Otherwise we should quickly arrive again at reprisals, at the endless chain of vendetta. No; justice demands moderation and consideration of motives and countermotives. And there the one-sided action taken only against members of the Axis Powers violates the idea of justice. It is impossible to justify it by a direct violation of its own principles, that is, of the commonly prevailing rule: nulla poena sine lege. The British chief prosecutor himself declared the possibility of subsequent legislature to have been one of the most offensive doctrines of National Socialist jurisdiction. He does, however, believe that the possibility of punishing an act already branded as a crime does not represent a change of the legal situation but only its logical further development, and is therefore permissible. I do not at all want to contest the institution of the Tribunal as thereby justified by him. But the question certainly arises whether this Tribunal is obliged to punish even though no penal law can be found which threatened the offenses with punishment at the time of their commission. To affirm this question would be going much further than the National Socialist judicial procedure which is so vehemently denounced by the British chief prosecutor. He did not offer the slightest motivation for such a course, and appears thus to reject it.
Moreover, he would certainly be ready to admit that the Charter, if it not merely presumed but possibly wished to establish that the acts concerned were punishable, ought to have stated this clearly and unambiguously. The passage involved, in Paragraph 6 of the Charter, completely lacks such clarity. It reads: “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal.”
This may be interpreted either as a mere regulation of competence or, albeit with difficulty, as a regulation originally establishing some act as being punishable. Therefore, this passage must definitely be interpreted in favor of the defendants according to the established legal principle in dubio pro re. The next phrase, “for which there shall be individual responsibility,” and the material regulations for punishment quoted in the following paragraphs, according to their wording leave no reason for doubt as to their interpretation. However, they contain only modifications in dealing with acts established as punishable. The Tribunal may decide whether or not and to what extent they are compatible with the principle nulla poena sine lege praevia.
I find the viewpoint of the American prosecutor most difficult to understand. On the one hand he denounces all legal arbitrariness on the part of the Nazis, yet on the other hand he is not prepared to acquiesce in the punishment of the defendants only for those crimes which were not merely considered reprehensible at the time they were committed, but were actually threatened with punishment. On the one hand he does not desire executions or punishment without first having established guilt in a fair manner; on the other he demands a strict application of the Charter even where it contains new laws surprising the defendants. On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants.