There is therefore no single state which could legitimately claim the privilege of trying these criminals. Only an International Tribunal, emanating from the combined United Nations, which were yesterday at war with Germany, can rightly claim this privilege. This is why the declaration on enemy atrocities made at the end of the Moscow Conference in October 1943 had provided that the leaders of Nazi Germany would, after the joint victory of the Allies, be brought before an international jurisdiction. There is, therefore, nothing new from a juridical point of view in the principle of justice which you are called upon to render. Far from being merely an affirmation of power on the part of the victors, your competence is founded on the recognition by international law of the territorial jurisdiction of sovereign states.
The transfer by these states of their juridical power to an international court constitutes a notable progress in the setting up of an inter-state punitive procedure. It does not constitute any innovation in the legal foundation of the justice which you are called upon to render.
The penal qualification of the facts may seem more open to juridical objections. This horrible accumulation and maze of Crimes against Humanity both include and go beyond the two more precise juridical notions of Crimes against Peace and War Crimes. But I think—and I will revert later separately to Crimes against Peace and War Crimes—that this body of Crimes against Humanity constitutes, in the last analysis, nothing less than the perpetration for political ends and in a systematic manner, of common law crimes such as theft, looting, ill treatment, enslavement, murders, and assassinations, crimes that are provided for and punishable under the penal laws of all civilized states.
No general objection of a juridical nature, therefore, appears to hamper your task of justice.
Moreover, the Nazis accused would have no ground to argue on alleged lack of written texts to justify the penal qualification that you will apply to their crimes.
Has not the juridical doctrine of National Socialism admitted that in domestic criminal law even the judge can and must supplement the law? The written law no longer constituted the Magna Charta of the delinquent. The judge could punish when, in the absence of a provision for punishment, the National Socialist sense of justice was gravely offended.
How could a judge under the Nazi regime supplement the law?
In his search for a semi-legal solution he acted in the manner of a legislator. Proceeding from the firm basis of the National Socialist program, he sought the rule which he would have proclaimed had he been a legislator. The Defendant Frank, in his speech at the Juristentag in 1936, declared:
“Say to yourself at each decision you have to make: How would the Führer decide in my place? For every decision which you have to make, ask yourself: Is this decision in accordance with the National Socialist conscience of the German people? Thus you will have a firm basis of conscience which will also bear for all time, in your own sphere of decisions, the authority of the Third Reich, based on the popular National Socialist unity and on the recognition of the will of the Führer Adolf Hitler.”
To those who tomorrow will render justice in the name of human conscience, the Defendant Frank and his accomplices would be ill advised to protest against a lack of written texts with appropriate sanctions, especially since, in addition to various international conventions, these texts, though they be not codified in an inter-state penal code, exist in the penal code of every civilized country.