It seems to us that it is evident from all this that the Charter of 8 August only established a jurisdiction to judge what was already an international crime, not only before the conscience of humanity but also according to international law, even before the Tribunal was established.
If it is not contested that a crime has really been committed, is it possible to contest the competence of the International Tribunal to judge it?
There can, indeed, be no doubt that the states bound by the treaty of 1928 had assumed international responsibilities towards the co-signatories, should they act contrary to the agreements undertaken.
International responsibility normally involves the collective state, as such, without in principle exposing the individuals who have been the perpetrators of an illegal act. It is within the framework of the state, with which an international responsibility rests, that as a general rule the conduct of the men who are responsible for this violation of international law may be appraised. They are subject, as the case may be, to political responsibility or to penal responsibility before the assemblies or the competent jurisdictions.
The reason for this is that normally the framework of the state comprises the nationals: The order of the state assumes the exercise of justice over a given territory and with regard to the individuals whom it includes, and the failure of the state in the exercise of this essential mission is followed by the reaction and the protests of third powers, notably when their own nationals are involved.
But in the present situation there is no German State.
Since the Surrender Declaration of 5 May 1945 and until the day when a government shall have been established by the agreement of the four occupying Powers, there will be no organ representing the German State. Under these conditions, it cannot be considered that a German State juridical order exists, which is capable of bringing the consequences arising from a recognition of the responsibility of the Reich for the violation of the Kellogg-Briand Pact to bear upon those individuals who are, in fact, the perpetrators of this violation in their capacity as organs of the Reich.
Today supreme authority is being exercised over the whole German territory, in regard to the entire German population, by the Four Powers acting jointly. It must, therefore, be allowed that the states which exercise supreme authority over the territory and population of Germany can submit this guilt to a Court’s jurisdiction. Otherwise, the proclamation that Germany has violated the solemn covenant which it has undertaken, becomes meaningless.
There is also involved a penal responsibility incurred for a series of acts, qualified as crimes, which were committed against nationals of the United Nations. These acts, which are not juridically acts of war but which have been committed as such upon the instigation of those who bear the responsibility for the launching of the so-called war, who have committed aggression upon the lives and the property of nationals of the United Nations, may, by virtue of the territorial principle as we have shown above, be brought before a jurisdiction constituted for this purpose by the United Nations, even as war crimes, properly speaking, are now being brought before the tribunals of each country whose nationals have been victims hereof.
Crimes committed by the Nazis in the course of the war, like the war of aggression itself, will be, as Mr. Justice Jackson has demonstrated to you, the manifestation of a concerted and methodically executed plan.