“There is, indeed, too large a disposition among the defenders of Nuremberg to look for stray tags of international pronouncements and reason therefrom that the law of Nuremberg was previously fully laid down. If the Kellogg-Briand Pact or a general conception of international obligation sufficed to authorize England, and would have authorized us, to declare war on Germany in defense of Poland—and in this enterprise to kill countless thousands of German soldiers and civilians—can it be possible that it failed to authorize punitive action against individual Germans judicially determined to be responsible for the Polish attack? To be sure, we would demand a more explicit authorization for punishment in domestic law, for we have adopted for the protection of individuals a prophylactic principle absolutely forbidding retroactivity that we can afford to carry to that extreme. International society, being less stable, can afford less luxury. We admit that in other respects. Why should we deny it here?”[579]
Many of the laws of the Weimar era which were enacted for the protection of human rights have never been repealed. Many acts constituting war crimes or crimes against humanity as defined in C. C. Law 10 were committed or permitted in direct violation also of the provisions of the German criminal law. It is true that this Tribunal can try no defendant merely because of a violation of the German penal code, but it is equally true that the rule against retrospective legislation, as a rule of justice and fair play, should be no defense if the act which he committed in violation of C. C. Law 10 was also known to him to be a punishable crime under his own domestic law.
As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C. C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the states at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30 October 1943. Long prior to the Second World War the principle of personal responsibility had been recognized.
“The Council of the Conference of Paris of 1919 undertook, with the aid of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, to incorporate in the treaty of peace arrangements for the punishment of individuals charged with responsibility for certain offenses.”[580]
That Commission on Responsibility of Authors of the War found that—
“The war was carried on by the central empires, together with their allies, Turkey and Bulgaria, by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity.”[581]
As its conclusion, the Commission solemnly declared:
“All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”[582]
The American members of that Commission, though in substantial accord with the finding, nevertheless expressed a reservation as to “the laws of humanity.” The express wording of the London Charter and of C. C. Law 10 constitutes clear evidence of the fact that the position of the American Government is now in harmony with the Declaration of the Paris Commission concerning the “laws of humanity.” We quote further from the report of the Paris Commission:
“Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases.”[583]