Two frightful world wars and the violent collisions by which peace among
the States was violated during the period between these enormous and
world embracing conflicts caused the tortured peoples to realize that a
true order among the States is not possible as long as such State, by
virtue of its sovereignty, has the right to wage war at any time and for
any purpose. During the last decades public opinion in the world
challenged with ever increasing emphasis the thesis that the decision of
waging war is beyond good and evil. A distinction is being made between
just and unjust wars and it is asked that the Community of States call
to account the State which wages an unjust war and deny it, should it be
victorious, the fruits of its outrage. More than that, it is demanded
that not only should the guilty State be condemned and its liability be
established, but that furthermore those men who are responsible for
unleashing the unjust war be tried and sentenced by an International
Tribunal. In that respect one goes now-a-days further than even the
strictest jurists since the early middle ages. This thought is at the
basis of the first three counts of the Indictment which have been put
forward in this Trial, to wit, the Indictment for Crimes against Peace.
Humanity insists that this idea should in the future be more than a
demand,that it should be valid international law.
However, today it is not as yet valid international law. Neither in the
statute of the League of Nations, world organization against war, nor in
the Kellogg-Briand Pact, nor in any other of the treaties which were
concluded after 1918 in that first upsurge of attempts to ban aggressive
warfare, has this idea been realized. But above all the practice of the
League of Nations has, up to the very recent past, been quite
unambiguous in that regard. On several occasions the League had to
decide upon the lawfulness or unlawfulness of action by force of one
member against another member, but it always condemned such action by
force merely as a violation of international law by the State, and never
thought of bringing up for trial the statesmen, generals, and
industrialists of the state which recurred to force. And when the new
organization for world peace was set up last summer in San Francisco, no
new legal maxim was created under which an international tribunal would
inflict punishment upon those who unleashed an unjust war. The present
Trial can, therefore, as far as Crimes against Peace shall be avenged,
not invoke existing international law, it is rather a proceeding
pursuant to a new penal law, a penal law enacted only after the crime.
This is repugnant to a principle of jurisprudence sacred to the
civilized world, the partial violation of which by Hitler’s Germany has
been vehemently discountenanced outside and inside the Reich. This
principle is to the effect that only he can be punished who offended
against a law in existence at the time of the commission of the act and
imposing a penalty. This maxim is one of the great fundamental
principles of the political systems of the Signatories of the Charter
for this Tribunal themselves, to wit, of England since the Middle Ages,
of the United States since their creation, of France since its great
revolution, and the Soviet Union. And recently when the Control Council
for Germany enacted a law to assure the return to a just administration
of penal law in Germany, it decreed in the first place the restoration
of the maxim, “No punishment without a penal law in force at the time of
the commission of the act”. This maxim is precisely not a rule of
expediency but it derives from the recognition of the fact that any
defendant must needs consider himself unjustly treated if he is punished
under an _ex post facto_ law.
The Defense of all defendants would be neglectful of their duty if they
acquiesced silently in a deviation from existing international law and
in disregard of a commonly recognized principle of modern penal
jurisprudence and if they suppressed doubts which are openly expressed
today outside Germany, all the more so as it is the unanimous conviction
of the Defense that this Trial could serve in a high degree the progress
of world order even if, nay in the very instance where it did not depart
from existing international law. Wherever the Indictment charges acts
which were not punishable at the time the Tribunal would have to confine
itself to a thorough examination and findings as to what acts were
committed, for which purposes the Defense would cooperate to the best of
their ability as true assistants of the Court. Under the impact of these
findings of the Tribunal the States of the international legal community
would then create a new law under which those who in the future would be
guilty of starting an unjust war would be threatened with punishment by
an International Tribunal.
The Defense are also of the opinion that other principles of a penal
character contained in the Charter are in contradiction with the maxim,
“_Nulla Poena Sine Lege_”.
Finally, the Defense consider it their duty to point out at this
juncture another peculiarity of this Trial which departs from the
commonly recognized principles of modern jurisprudence. The Judges have
been appointed exclusively by States which were the one party in this
war. This one party to the proceeding is all in one: creator of the
statute of the Tribunal and of the rules of law, prosecutor and judge.
It used to be until now the common legal conception that this should not
be so; just as the United States of America, as the champion for the
institution of international arbitration and jurisdiction, always
demanded that neutrals, or neutrals and representatives of all parties,
should be called to the Bench. This principle has been realized in an
exemplary manner in the case of the Permanent Court of International
Justice at The Hague.
In view of the variety and difficulty of these questions of law the
Defense hereby pray:
That the Tribunal direct that an opinion be submitted by internationally
recognized authorities on international law on the legal elements of
this Trial under the Charter of the Tribunal.
On behalf of the attorneys for all defendants who are present.
/s/ DR. STAHMER
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[19] The Tribunal rejected this motion 21 November 1945, ruling that
insofar as it was a plea to the jurisdiction of the Tribunal it was in
conflict with Article 3 of the Charter.