Nor did they say to you:
“You will take these scattered criminal facts, you will group them together to make of them one single crime of which the definition, respecting in a general sense the rules of common law, will be essentially determined by the sole intention or purpose sought, without attempting to seek by analogy any precedents in the different domestic laws which apply only, moreover, to an entirely different subject.”
The authors of the Charter have left you free, entirely free, within the limits of custom; and consequently we, ourselves, within the same limitations are free to propose to you such qualification which appears to us most practical, which appears to us to come closest to the changing reality of facts in their relation to the general principles of law and the broad rules of morality which may seem to us to be such as to meet best the demands of human conscience expressed by international public opinion duly enlightened on Hitlerian atrocities, which will, in fact, remain within the limits of international penal custom. This custom is indeed still in a formulative stage; but although this Trial is without precedent, the problems that are being examined in this Court have arisen before; and the jurists who preceded us have already given them solutions. These solutions constitute precedents; and, as such, they constitute the first elements of your custom. In their memorandum to the Commission to the Responsibility of the Authors of the War and on Sanctions at the Peace Conference of 1919-1920 the French jurists, M. Larnaude and M. De Lapradelle wrote:
“Criminal law could not foresee that through a singular defiance of the essential laws of humanity, of civilization, of honor, an army, by virtue of the instructions of its sovereign, could systematically lend itself to perform deeds through the perpetration of acts such as the enemy has not shrunk from performing in order to achieve success and victory. Therefore, domestic criminal law has never before been able to make provisions which would permit the repression of such acts. And still one must, in the interpretation of every law, cling to the intention of the law maker. . . . If, in certain cases considered particularly propitious, one might succeed in apprehending individuals bearing responsibility of whom the Emperor could be considered an accomplice one would only succeed, and not without difficulty, in narrowing the field of his responsibility by limiting it to a few precise cases. . . . It is a very restricted approach to the problem of William II to diminish it and reduce it to the proportions of a criminal or a court-martial case. . . . The high justice which an anxious world awaits would not be satisfied if the German Emperor were judged only as an accomplice or even as the co-author of a common-law crime. His actions as Chief of State must be considered in conformity with their true juridical character. . . .”
But except for minor details all of this is indeed implicitly contained in the last paragraph of Article 6 of the Charter of your Tribunal:
“Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes”—Crimes against Peace, War Crimes, Crimes against Humanity—“are responsible for all acts performed by any persons in execution of such plan.”
Fundamentally, all this is within strict conformity with the primordial German concept of Führertum, which places all responsibility on the leader and those who are with the leader from the very start. Thus we can, by as close as possible to reality, by applying the Charter of 8 August and Article 6 of the Charter of your Tribunal, by respecting the rules of common law defined by the chief of our delegation, M. De Menthon, and by following custom, which is sketched in the field of international penal law, require of your Tribunal to declare all the defendants guilty of having, in their role as the chief Hitlerian leaders of the German people, conceived, willed, ordained, or merely tolerated by their silence that assassinations or other inhuman acts be systematically committed, that violent treatment be systematically imposed on prisoners of war or civilians, that devastations without justification be systematically committed as a deliberate instrument for the accomplishment of their purpose of dominating Europe and the world through terrorism and the extermination of entire populations in order to enlarge the living space of the German people.
More specifically, we ask you to declare Göring, Keitel, and Jodl guilty of having taken part in the execution of this plan by ordering the seizure and the execution of hostages in violation of Article 50 of the Hague Convention which prohibits collective sanctions and reprisals.
We ask you to find Keitel, Jodl, Kaltenbrunner, Seyss-Inquart, Bormann, and Ribbentrop guilty of having taken part in the execution of this plan: 1. by ordering the terrorist murders of innocent civilians; 2. by ordering the execution without trial and torture to death of members of the resistance; 3. by ordering devastations without justification:
To declare Göring, Keitel, Jodl, Speer, and Sauckel guilty of having taken part in the execution of this plan by jeopardizing the health and the lives of prisoners of war, notably by submitting them to privations and hard treatments, by exposing them, or by attempting to expose them to bombings or other risks of war: