20 November 1945
To: The International Military Tribunal in Nurnberg In re: GOERING et al.
Two fearful world wars and the violent clashes by which the peace among the states has been violated in this period between these big conflicts which have engulfed the earth have made mature this wisdom among the tormented nations; a real order among the states is impossible as long as every state has the sovereign right to wage war at any time and for any purpose. Within the last decade public opinion of the world became more and more opposed to the idea that the decision to wage war is beyond good and evil. Public opinion distinguishes between just and unjust wars. It demands that the community of nations calls to account a state which wages an unjust war and denies this state, in the event of victory, the fruits of its violation. Yes, it has been demanded that not only the guilty state is condemned and is made liable, but that beyond this, the men who are guilty of launching the unjust war should be punished by an international tribunal. In this point, one goes farther now than even the strictest legal minds since the early middle ages. This idea is the basis of the first of the three accusations of this indictment, the crimes against the peace. Humanity wishes that in the future this idea will be more than a postulate, that it will become valid international law.
But today it is not yet existing international law. Neither the statute of the League of Nations of this world organization against war, nor the Kellogg-Briand Pact, nor any other treaty which has been concluded after 1918 in that first wave of attempts to outlaw aggressive war has realized this idea. But above all, the practice of the League of Nations has been quite unequivocal in this point until the most recent time. Repeatedly the League had to decide upon the lawfulness or unlawfulness of the forceable action of one member of the League against another. But always international law has never even thought of incriminating statesmen, generals, and economic leaders of the state, using force, still less to bring these men before an international criminal court. And when, this summer, in San Francisco the new world peace organization was established, no rule of law was created under which in the future an international court will punish those persons who launch an unjust war.
As far as crimes against the peace are concerned, the present trial has therefore no legal basis in international law but is a procedure based on new penal law; a penal law which has been created only after the act. This is in contradiction to a legal principle which is cherished in the world. It has been violated partially in Hitler-Germany. This violation has been emphatically disapproved within and without the Reich. This principle is the maxim: Punishment is only possible if a law has been violated, which was in existence at the time the act was committed and which provided punishment. This maxim is one of the great principles of the states, especially of the signatory powers of the charter of this tribunal, of England since the middle ages, of the United States of America since its birth, of France since the great revolution, and of the Soviet Union. When the Control Council for Germany promulgated a recent law the restitution of this principle was ordered: No punishment without a law which already existed when the act was committed.
This principle is not a matter of opportunism but is based on the knowledge that every defendant must feel treated unjustly if he is punished under law created ex post facto.
The defense attorneys of all defendants present in court would violate their duty if they would take silently the abandonment of existing international law and the repulsion of a generally recognized principle of modern criminal law. They are not able to suppress objections, which are today openly expressed even outside Germany. This applies the more as the defense counsellors are unanimously convinced that this trial could serve the progress of the world order even to a much higher degree if the trial would not withdraw from existing international law. Where acts for which no punishment was provided at the time they were committed are involved, the procedure would have to limit itself to a comprehensive investigation of what has happened. In such a case the defense, as a genuine helper of the court, would fully cooperate. Under the impact of such judicial statement the community of law-abiding nations should then create law in order to establish punishment for such individuals who start in future intentionally an unjust war.
Furthermore, the defense is of the opinion, that also other rules of the statute are inconsistent with the legal principles: Nulla poena sine lege.
The defense feels also obligated to point out right now another popularity which differs from generally recognized principle of modern criminal procedure:
The judges are only appointed by such states, which belong to the one side of this war.
This side is everything in one: creator of the Charter, of the penal law, prosecutor, and judge. That this ought not to be so, used to be general legal opinion. The United States of America have always emphasized when international arbitration and jurisdiction was established that the bench should be filled by neutrals or by neutrals together with representatives of all parties involved.
In the permanent international court in the Hague this idea has been realized in a manner which may serve as an example.
In view of the complexity and difficulty of these legal problems the defense now moves: The Tribunal may secure from internationally recognized experts on international law an expert opinion about the legal basis of this trial which is based on the rules of this tribunal.
On behalf of the attorneys for all defendants who are present. Dr. STAHMER
[On November 21, 1945, in the morning session, the Tribunal made the following ruling in regard to the foregoing motion. -Ed.]
A motion has been filed with the Tribunal and the Tribunal has given it consideration. Insofar as it may be a plea to the jurisdiction of the Tribunal, it conflicts with Article 3 of the Charter and will not be entertained. Insofar as it may contain other arguments, which may be opened to the Defendants, they may be heard at a later stage.