Since every defense that could even pretend to be worthy of the name had to point out the paradox of unlawful laws, the charter itself declared itself taboo. The criticism that could not be withstood was simply forbidden: Article 3 of the charter explicitly forbids every motion by the defense that could demonstrate the court’s lack of jurisdiction.
In order to prepare a minimal defense, the attorney Dr. Stahmer nonetheless launches an assault from the domain of European principles of justice. At the beginning of the trial, on 19 November 1945, on behalf of the whole defense he dares a spectacular attack:
“The present trial, to the extent that it is supposed to punish crimes against peace, cannot support itself on valid international law, but is a proceeding based on a new criminal law, a criminal law that was created only after the deed. This conflicts with a principle of jurisprudence hallowed in the entire world, the partial violation of which in Hitler’s Germany, has been hotly condemned outside and inside the Reich. It is the proposition that only he may be punished who has violated an already existing law that forewarns him of punishment at the time of his deed.”
This proposition belongs to the great principles of the system of government of the very signatory states of the charter for this court, specifically England since the Middle Ages, the United States of America since their birth, France since its great revolution, and the Soviet Union. When recently the [Allied] Control Council for Germany issued a law that is supposed to secure the return to a just German jurisprudence, they ordered in the first line the reestablishment of the proposition: no punishment without a punishment-carrying law that was already in force at the time of the deed. This proposition is not just a regulation of convenience but springs from the insight that every defendant must feel that he is unjustly treated if he is punished in accord with an ex post facto law.
The defense-attorneys of all present defendants would neglect their duty if they accepted the abandonment of the applicable international law and the setting aside of a universally acknowledged principle of modern criminal law, and suppressed their concerns, which today are openly proclaimed even outside of Germany.
Defense-attorney Dr. Stahmer meanwhile in no way opposes the ostensible goal of the court, that crimes against peace should be punished and particular politicians and military-men who are convicted of such a crime should be held legally responsible. The German defense-team demands only that the accepted aim be pursued within the domain of justice. They warn against wanting to create new and better justice with unjust means — unjust because these laws are applied retroactively and onesidedly. On behalf of the German defense-team Dr. Stahmer adjures the court:
“Precisely where there is an accusation about deeds that at the time of commission were not subject to any penalty, the tribunal must limit itself to comprehensively investigating and then ascertaining what happened, and in this the defense-team will collaborate with all its powers, as a genuine aid to the court. The states of the community of international law, under the weight of this judicial ascertainment must then, standing together as lawmakers, admonish the men who would culpably begin an unjust war in the future that they will be punished by an international court.”
Then Dr. Stahmer puts it all on the line: he demands the review of the court’s charter by a neutral committee of internationally recognized legal scholars and, on behalf of the entire defense-team, moves:
“The court should request reports by internationally recognized scholars of international law about the legal foundations of this trial that is based on the court’s charter.”
The “judges” and “prosecutors” find themselves in an unenviable position. They outdo each other in counterattacks so as to conceal their insecurity. The old slogans are repeated. In terms of jurisprudence they have already been forced into a defensive posture. Now the defenders are the prosecutors – prosecutors also against judges who lower themselves to abusing their judicial authority for unjust purposes.
The Allied inquisitors still possess one argument that condemns all legal objections to futility. Two days later, on 21 November 1945, the motion of the German defense is quashed with the rationale that it puts the legitimacy of the court into question and thus is found to contradict Article 3 of the charter.
The court is taboo and must remain taboo, because an internal criticism of its foundations would necessarily oust the juristic functionaries of Allied revenge-policy from their judges’ chairs.
Nevertheless, Stahmer’s assault has historical significance as a magnificent demonstration of courage and conscientiousness amid a world full of the lies, baiting, and violence of the victors, and submissiveness, cowardice, and self-incrimination among the vanquished.
No German defense-attorney would have been permitted at that time without first documenting that he had been an opponent of the political opinion and attitude of the accused. So much the brighter does this flame of the European will to justice shine from the darkness of those days.