These latter standards lie within the consciousness and the conscience of man. Thus, they are not affected by the external considerations which justify the relaxation of the rules regulating the competency of proof. They should not have been and they were not relaxed. We endorse the decision to retain them and welcome the opportunity to work under them.
Article II, paragraphs 4(a) and (b) of Law No. 10, are the same in substance, although differing slightly in the use of language to express the substance as articles 7 and 8 of the Charter, respectively.
These paragraphs of article II of Law No. 10 read as follows:
“4. (a) The official position of any person, whether as Head of State or as the responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.
“(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”
Paragraph 4 (a) is a sound rule and applies to most, if not all, of these defendants. Paragraph 4 (b) is likewise sound. We point out, however, that these defendants are lawyers who are charged fundamentally with perverting or converting a system of justice into an instrument for committing crimes under international law. Since this paragraph affords them the right to offer evidence in mitigation and to plead for mitigation from that evidence, the prosecution is entitled to answer that plea by two arguments. First, that a lawyer has special knowledge of the perverting effect upon the dispensation of justice not only of his own acts, but of the acts of others of which he has knowledge—knowledge as an ultimate fact. Second, that a lawyer entrusted by his very calling with a sacred duty must of necessity offer strong proof indeed in mitigation of the prostitution of that duty.
We shall introduce proof on this issue from which knowledge, as an ultimate fact will arise, and also proof from which the plea of mitigation will be shown to be fanciful and hypocritical.
Again upon the subject of relevancy and materiality—probative value—we shall offer evidence of other acts of these defendants and also acts of persons other than these defendants, knowledge of which as an ultimate fact can be inferred to the defendants. These acts shall include those which constitute evidence of other crimes committed both by these defendants and by others. We are convinced that this evidence is relevant and material, and therefore admissible under accepted rules of evidence supported by Wigmore, an acknowledged authority.
Certainly, a brief exposition of our position will expedite the trial by enabling the Court to rule expeditiously, but at the same time judiciously, and it is also our hope that by furnishing defense counsel with an understanding of the legality of the rules under which this evidence will be offered, they will not find it necessary to resort too frequently to empty objections.
We can afford to be candid with Court and counsel. It is only the lazy, the uninformed, or inherently dishonest and therefore unethical lawyer who seeks recourse to silence or obtusion. We refuse to follow a course of conduct from which either of the foregoing can be charged to the prosecution of cases before this Tribunal and its sister Tribunals.