THE PRESIDENT: We will begin again at 10 minutes past 2.
[The Tribunal recessed until 1410 hours.]
Afternoon Session
THE PRESIDENT: Dr. Pannenbecker.
DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President, Gentlemen of the Tribunal:
The American Prosecution, through Dr. Kempner, has charged Defendant Frick with criminal actions according to Article 6, Items a, b, and c of the Charter. I should like first to examine the question as to whether Article 6 of the Charter, with its list of criminal acts, is to be considered as the authoritative expression of material penal law which would lay down, in a manner irrevocably binding on, and not subject to revision by the Tribunal, what actions are to be regarded as punishable; or whether Article 6 of the Charter concerns a rule of procedure defining the competence of this Tribunal for specific subject matters.
THE PRESIDENT [Interposing]: Perhaps it will be for the convenience of the interpreters if I say that we might, as it is now nearly half past 2, sit without a break until 4 o’clock, when we rise.
DR. PANNENBECKER: The latter interpretation was implied in the Prosecution’s presentation of the case by Sir Hartley Shawcross’ remark that although Article 6 of the Charter fills a gap in international penal procedure, the material penal law to be applied to the defendants has already been previously standardized by positive laws. Part II of the Charter, beginning with Article 6, is accordingly entitled: “Jurisdiction and General Principles,” and it may be inferred therefrom that Article 6 is intended to establish a ruling as to the competence of this Tribunal as to procedure in specific groups of crimes.
Sir Hartley Shawcross’ statements were directed against the objection that it is inadmissible and in contradiction with a basic legal principle to punish someone for an act which had not yet been forbidden at the time it was committed; an objection which has as a basis the conception that the Charter has created new material penal law with retroactive effect. It should be examined whether the prohibition of retroaction of penal laws is a legal principle of such importance that it should not be infringed. I need not state to this Court the reasons why this legal principle found general recognition in all civilized countries as a prerequisite and basic precept of justice.