This provision is couched in language calculated to adequately safeguard the rights of defendants, so that, by the same reasoning, it cannot be said to operate as an oppressive rule, which in any material manner unduly restricts this Court in making its own ultimate determination as to the guilt or innocence of these defendants. It is a reasonable rule designed to avoid undue repetitious production of acknowledged facts in the trial of this cause. As such it does not detract from the dignity of this Court nor affect the concurrent nature of the jurisdiction which this Court enjoys in relation to the International Military Tribunal.
In conclusion, therefore, we take the position that this Tribunal, like the International Military Tribunal, derives from the “joint decision” of the signers of the Moscow Declaration and of the French nation; that the subject matter over which it has jurisdiction, the crimes which it has jurisdiction to try, are codified by the same powers, and that it has jurisdiction over the same persons, those persons who are charged by indictment with having committed these crimes. These are the basic elements upon which concurrent jurisdiction as a matter of law has always been determined to exist by all courts which have had occasion to decide this question.
We have belabored this question of the equal dignity and concurrent jurisdiction of this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they seem important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them.
Mr. LaFollette: First, we believe that this Tribunal has the right and power to decide all questions of law, other than the “criminal nature” of those groups or organizations which the International Military Tribunal found to be criminal, and as distinguished from the ultimate facts set out in Ordinance No. 7, article X, as original questions of law which it has the right to decide, contrary to the decisions reached by the International Military Tribunal, if it is convinced that a proper interpretation of the Charter and Law No. 10, or of the ultimate facts to be inferred from the evidence in this case, require it logically, and therefore, by the exercise of intellectual integrity, to reach a contrary decision. We do not deny the persuasive authority of the decision and judgment of the International Military Tribunal, but we point out that between the International Military Tribunal and this Tribunal the relationship of a court of superior jurisdiction to that of one of inferior jurisdiction does not exist in fact or in law. Therefore the decision and judgment of the International Military Tribunal is not binding upon this Court; except to the extent fixed by said article X and the other provisions which are referred to.
Second, from the standpoint of policy the prosecution believes it owes it not only to this Tribunal but to the world to establish the concurrent jurisdiction and therefore the equal dignity of this Tribunal and of the proceedings before it, with those before the International Military Tribunal, which preceded it. We try here war criminals charged with the commission of international crimes, codified as such, by the same nations which codified the crimes for which the International Military Tribunal tried the defendants indicted and arraigned before it. This is not an American side show, national in character. On the contrary, it is the avowed program of the Government of the United States to carry on the obligation assumed at Moscow in 1943 by living up to the inter-Allied agreements made at Potsdam in 1945. Finally, we assert the high character of this Tribunal and therefore of the proceeding before it, in order that we ourselves may understand the high judicial character of our actions and the obligations of candor and ethical conduct which these proceedings of necessity impose upon counsel appearing before this bar.
We try these defendants, therefore, in a Court whose authoritative source and whose jurisdiction over subject matter and persons is equal to, and concurrent with, the International Military Tribunal (IMT). We try them for crimes, war crimes, and crimes against humanity, which were unlawful, as alleged in the indictment, when committed because they were in violation of the “universal moral judgment of mankind” as attested by the judicial decision of the International Military Tribunal.
We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.
We shall now present our general theory of the prosecution’s case. In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not, at this time, except perhaps for the purpose of illustration, relate it to each of these defendants. That will be done adequately enough to satisfy the Court and disconcert the defendants when we sum up.
In count two of this indictment, we charge these defendants with the commission of war crimes as defined in article II, paragraph 1(b) of Law No. 10, and in count three we charge them with the commission of crimes against humanity as defined in Law No. 10, article II, paragraph 1(c). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the IMT were tried; therefore, we adopt basically the following statements from the decision of the IMT:
“With respect to war crimes, however, as has already been pointed out, the crimes defined by article 6, section (b) of the Charter [which are the same crimes defined by Law No. 10, article II, paragraph 1(b)] were already recognized as war crimes under international law.”[42]