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Tribunal demonstrated through the mouth of its president no
inclination to associate itself with an estimation of guilt as it is contained,
for instance, in Control Council Law No. 10, Article II, paragraph 3f.
The presiding judge expressly stated in the course of the argument that it is
for the prosecution to prove the guilt of each individual defendant. The
defense accepts this principle, which corresponds to the criminal law of all
civilized nations, as a basis for the extent and purpose of its evidence as
well. The purpose is therefore to arouse in the judges a reasonable doubt that
the evidence submitted by the prosecution establishes the guilt of the
individual defendants.
In order not to be misunderstood, I should like
specifically to emphasize that the defense, in making this contention, is not
renouncing its contention of complete innocence for the defendants. But faced
with such a charge, the defense simply cannot see itself in a position to prove
their innocence. The entire evidence of the prosecution is in no way direct but
rather only circumstantial. Not one of these defendants started a war himself
or took anything himself or maltreated anybody at all. The prosecution
attempts, however, by means of a chain of hundreds of facts or assumptions to
connect the individual defendants with such acts, acts which they themselves
did not commit. Many of these hundreds of facts appear from the very
beginning to be totally unimportant; at first glance a certain significance can
be attached to others. It is impossible for the defense to consider all facts
and assumptions which have been submitted, and therefore the defense also
cannot prevent the possibility that one or another circumstance which leaves
open the possibility of the guilt of a defendant remains unconsidered. This
situation is due just as much to the extent of the circumstantial evidence
gathered together by the prosecution as to the peculiar laws according to which
judgment is to be rendered on crimes against the peace, war crimes, and crimes
against humanity.
Since the question in this connection is to be
considered in the light of the standards of international law, it appears
suitable to go back to the actual principles of international law. It develops,
as Justice Jackson said with justification in his opening statement before the
International Military Tribunal, out of the acts of governments. A tribunal
which has the mission to decide questions of international law, particularly
those of great bearing, not for the defendants alone, must possess the desire
and the readiness to consider the actions of governments and to weigh carefully
the influence which these actions have upon the formation of international law.
Even the trial before the International Military Tribunal indicated that this
mission is particularly diffi- […cult] |
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