Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C. C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case against Goering, et al., lends support to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:
“* * * insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”[575]
The evidence to be later reviewed establishes that certain inhumane acts charged in count three of the indictment were committed in execution of, and in connection with, aggressive war and were therefore crimes against humanity even under the provisions of the IMT Charter, but it must be noted that C. C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as inhumane acts, etc., committed “in execution of, or in connection with, any crime within the jurisdiction of the tribunal”, whereas in C. C. Law 10 the words last quoted are deliberately omitted from the definition.
THE EX POST FACTO PRINCIPLE
The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C. C. Law 10, article II, paragraph 1(b), “War Crimes,” has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority under C. C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.
Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle nullum crimen sine lege received its true interpretation in the opinion of the IMT in the case versus Goering, et al. The question arose with reference to crimes against the peace, but the opinion expressed is equally applicable to war crimes and crimes against humanity. The Tribunal said:
“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.”[576]
To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson—