Prosecuting Tony Blair and others

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Sir Hartley SHAWCROSS QC MP - United Kingdom Attorney-General

Appearing as Chief Prosecutor for the United Kingdom Government

Closing Speech

26 July 1946 Vol.19 - Session 187 (pp.423-428)

The Trial of German Major War Crimminals sitting at Nuremberg, Germany

HMSO (Blue Transcripts)

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But I am dealing now not with the murders, which alone so well justify the condemnation of these men, but with their crime against peace. Let me say something about the legal aspect of this matter, for it is one to the firm establishment of which His Majesty's Government of the United Kingdom, and indeed all the Prosecutors here, attach great importance.

The distinguished speech by Professor Jahrreiss for the defence was free of ambiguity. The effect was that though the Kellogg-Briand Pact and the other international declarations and treaties rendered aggressive war illegal, they did not make it criminal. In support of this contention it was argued that they could not have done so because any such attempt to make aggressive war a crime would be contrary to the sovereignty of States, and that, in any event, the entire system of prohibition of war had collapsed before the outbreak of the Second World War, and therefore ceased to be law. It was further argued that these treaties were not taken seriously by numerous jurists and journalists whose opinions were cited, and were not really entitled to be treated seriously because they contained no provision for coping with the problem of the peaceful change of the status quo. With regard to the Pact of Paris itself, counsel contended that there could be no question of a criminal - or even unlawful - breach of that Pact of Paris, because it left to each State, including Germany, the right to determine whether it was entitled to go to war in self- defence. Finally it was suggested [Page 424] that the State could not become the subject of criminal responsibility, and that, if that proposition were not admitted, the crime was one of the German State and not of individual members of it, because in the German State which launched that war upon the world there were no individual wills but only one sovereign, uncontrolled and final will - that of the Dictator Fuehrer.

It might be enough for me to say that this entire line of argument is beside the point and cannot be heard in this Court since it is in contradiction to the Charter. For the Charter lays down expressly that the planning, and I emphasize the word "planning", preparation, initiation, or waging of a war of aggression or of a war m violation of international treaties, agreements, or assurances shall be considered crimes coming within the jurisdiction of the Tribunal. It would appear, therefore, that the only way in which the accused can escape liability is to show to the satisfaction of the Tribunal that these wars were not wars of aggression or in violation of treaties. They have not done that. That being so one asks what is the purpose of the argument which has been advanced on their behalf. Is it to deny the jurisdiction of this Tribunal in this matter? Or what is perhaps more probable, is it a political appeal to some outside audience which may be more easily impressed by the complaint that the accused are being made the object of post factum legislation?

Whatever its object, it is important that the argument should not go unchallenged. I am anxious not to take up time by repeating what I said in my opening statement on the change effected in the position of war in International Law as the result of the long series of treaties in particular the General Treaty for the Renunciation of War. I have submitted that that treaty, one of the most generally signed international treaties, established a rule of International Law with a solemnity and clarity which is often lacking in customary International Law; that the profound change which it produced - and this is important (although indeed the distinction between just and unjust wars had been recognized in medieval times) - was reflected in weighty pronouncements of governments and statesmen; I submit that it rendered illegal recourse to war in violation of the Treaty; and that there is no difference between illegality and criminality in a breach of law involving the deaths of millions and a direct attack on the very foundations of civilised life. Nor do I propose to take time by answering m detail the, if I may say so, strange chain of legal argument put forward by the defence, such as that the treaty had no effect attributed to it by its signatories on the ground that it was received in some quarters with disbelief or cynicism.

Even more curious to ordinary legal thinking is the reasoning that in any case that treaty - and the other treaties and assurances which followed it - had ceased to be legally binding by 1939 because by that time the entire system of collective security had collapsed. The fact that the United States declared its neutrality in 1939 was cited as an example of the collapse of the system, as if the United States had been under any legal obligation to act otherwise. But what is the relevance of the fact that the system designed to enforce these treaties and to prevent and to penalise criminal recourse to war failed to work? Did the aggressions of Japan and Italy and the other States involved in the Axis conspiracy, followed by the German aggressions against Austria and Czechoslovakia, deprive those obligations of their binding effect simply because those crimes achieved a temporary success? Since when has the civilised world accepted the principle that the temporary impunity of the criminal not only deprives the law of its binding force but legalises his crime?

And you will notice, incidentally, that in the case both of the Japanese and Italian aggressions, the Council and the Assembly of the League of Nations denounced these acts as violations both of the Covenant and of the General Treaty for the Renunciation of War, and that in both cases sanctions were decreed. It [Page 425] may be that the policemen did not act as effectively as one could have wished them to act. But that was a failure of the policemen, not of the law.

But not content with the remarkable suggestion that by their very aggressions, because of the reluctance of the peace- loving States to take arms against the blackmail and the bullying which was directed against them, the aggressors had abrogated the law against aggression, the defendants have introduced some question of self-defence. They have not, indeed, really suggested that these wars were defensive wars. Not even Goebbels in his wildest extravagances went quite so far as that. It appears that what they seek to say is not that their wars were wars in self-defence, but that since the Pact of Paris not only left intact the right of States to defend themselves but also the sovereign right of each State to determine whether recourse to war in self- defence was justified in the circumstances, it did not in fact contain any legal obligation at all. That is, in our strong submission, a wholly fallacious argument. It is true that in the declarations preceding and accompanying the signature and the ratification of the Pact of Paris, self- defence was not only recognized as an inherent and inalienable fight of the parties to the treaty, but its signatories reserved for themselves the exclusive right of judging whether circumstances called for the exercise of that right.

The question is whether this reservation of self-defence destroyed the purpose and the legal value of the treaty? If Germany was entitled to have recourse to war in self-defence and if she was free to determine in what circumstances she was permitted to exercise the right of self-defence, can she ever be considered to have violated the solemn obligation of the treaty? That question counsel for the defence sought to answer in the negative. But that answer amounts to an assertion that that solemn treaty, subscribed to by more than sixty nations, is a scrap of paper devoid of any meaning at all, and it would result in this - that every prohibition or limitation of the right of war is a nullity if it expressly provides for the right of self-defence, and I invite the Tribunal emphatically to consign that parody of legal reasoning to where it properly belongs.

Neither the Pact of Paris nor any other treaty was intended to - or could - take away the right of self-defence. Nor did it deprive, its signatories of the right to determine, in the first instance, whether there was danger in delay and whether immediate action to defend themselves was imperative; and that only is the meaning of the express proviso that each State judges whether action in self- defence is necessary. But that does not mean that the State thus acting is the ultimate and only judge of the propriety and of the legality of its conduct. It acts at its peril. Just as the individual is answerable for the exercise of his common law right of self-defence, so the State is answerable if it abuses its discretion, if it transforms "self-defence" into an instrument of conquest and lawlessness, if it twists the natural right of self-defence into a weapon of predatory aggrandizement and lust. The ultimate decision as to the lawfulness of action claimed to be taken in self-defence does not lie with the State concerned, and for that reason, the right of self-defence, whether expressly reserved or implied, does not impair the capacity of a treaty to create legal obligations against war.

Under the Covenant of the League of Nations Japan was entitled to decide in the first instance whether events in Manchuria justified resort to force in self-defence. But it was left to an impartial body of inquiry to find, as it did find, that there was in fact no justification for action in self-defence, and, to mention a more recent example,Article 51 of the Charter of the United Nations lays down that nothing in the Charter shall impair the inherent right of individual or collective self-defence in case of armed attack. But it expressly leaves to the Security Council the power of ultimate action and determination. It is to be hoped that the judgement of this Tribunal will discourage, and discourage with appropriate finality, any future reliance on the argument that because a treaty reserves for the signatories the right of action in self-defence, it becomes, for that reason, [Page 426] incapable of imposing upon the signatories any effective legal obligation against war.

I now turn to the argument that the notion of criminal responsibility is incompatible with the idea of national sovereignty. A State may, as Professor Jahrreiss conceded, commit an offence against International Law, but he contends that to make it criminally responsible and punishable would be to deny the sovereignty of the State.

It is strange to see the accused, who, in their capacity as the German Government, overran most of the States of Europe, who trampled brutally upon their sovereign independence, and who, with boastful and swaggering cynicism, made the sovereignty of the conquered States subservient to the new conception of the "Grossraumsordnung" - it is strange to see these defendants appealing to the mystic virtues of the sanctity of State sovereignty, and perhaps it is not less remarkable to find them invoking orthodox International Law to protect the defeated German State and its rulers from just punishment at the hands of the victorious Powers. But there is no rule of International Law which they can call to aid in this regard.

In a sense these proceedings are not concerned with punishing the German State. They are concerned with the punishment of individuals. But it might seem strange if individuals were criminally responsible for the acts of the State if such acts by the State were not themselves crimes. There is no substance at all in the view that International Law rules out the criminal responsibility of States and that since, because of their sovereignty, States cannot be coerced, all their acts are legal. Legal purists may contend that nothing is law which is not imposed from above by a sovereign body having the power to compel obedience. That idea of the analytical jurists has never been applicable to International Law. If it had, the undoubted obligation of States in matters of contract and tort could not exist.

It may be true that in international relationships prior to the war there was no super-sovereign body which at the same time imposed international laws and enforced them. But, at least in the international field, the existence of law has never been dependent on the existence of a correlated sanction external to the law itself. International Law has always been based on the element of common consent, and where you have a body of rules which, whether by common consent or treaty, are obligatory upon the members of the international community, those rules are the laws of that community although the consent has not been obtained by force, and although there may be no direct or external sanction to secure obedience. The fact is that absolute sovereignty in the old sense is, very fortunately, a thing of the past. It is a conception which is quite inconsistent with the binding force of any international treaty.

In the course of the work of the Permanent Court of International justice it became a stock argument to rely on State sovereignty in support of the opinion that, as States are sovereign, treaty obligations entered into by them ought to be at least interpreted restrictively. The Court consistently discouraged that view. In its very first judgement - a judgement given against Germany in the Wimbledon case - it rejected the plea of sovereignty as a reason for the restrictive interpretation of obligations in treaties. The Court declined to see in a treaty, by which a State undertook to observe a definite line of conduct, an abandonment of its sovereignty, and the Court reminded Germany that the very right to enter into international engagements is an attribute of State sovereignty. As a philosophical proposition the right to contract and the right to freedom of action do, I suppose, present an eternal antinomy. But just as individuals secure their freedom by adherence to their laws, so may sovereign States maintain their own individual status; the view that since States are sovereign they cannot be coerced has long been abandoned. The Covenant of the League of Nations made provision, in Article 16, for sanctions against sovereign States - sanctions being [Page 427] only another name for coercion, probably coercion of a punitive character. The Charter of the United Nations has followed suit - much more decisively. It is true that, because of the absence of a competent compulsory jurisdiction, there is no judicial precedent for States being arraigned before a criminal tribunal. But that is equally true of the undoubted civil responsibilities of States, for apart from treaty there is no compulsory jurisdiction in any international tribunal to adjudicate upon them.

The first man tried for murder may have complained that no Court had tried such a case before. The methods of procedure, the specific punishments, the appropriate Courts, can always be defined by subsequent proclamation. The only innovation which this Charter has introduced is to provide machinery, long overdue, to carry out the existing law, and there is no substance in the complaint that the Charter is a piece of post factum legislation either in declaring wars of aggression to be criminal, or in assuming that the State is not immune from criminal responsibility.

But then it is argued, even if the State is liable, it is only the State and not the individual who can be made responsible under International Law. That argument is put in several ways. States only, it is said, and not individuals, are the subject of International Law. But there is no such principle of International Law. One need only mention the case of Piracy or Breach of Blockade, or the case of Spies, to see that there are numerous examples of duties being imposed by International Law directly upon individuals. War crimes have always been recognized as bringing individuals within the scope of International Law. In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.

In Germany itself, Article 4 of the Weimar Constitution laid it down that generally recognized rules of International Law must be regarded as an integral part of German Federal Law, and what can it mean in effect, save that the rules of International Law are binding upon individuals? Shall we depart from that principle merely because we are here concerned with the gravest offences of all - crimes against the peace of nations and crimes against humanity. The law is a living, growing thing. In no other sphere is it more necessary to affirm that the rights and duties of States are the rights and duties of men and that unless they bind individuals they bind no one. It is a startling proposition that those who aid and abet, who counsel and procure the commission of a crime, are themselves immune from responsibility. The international crime does not differ from the municipal offence in this respect.

Then the argument is put in another way. Where the act concerned is an act of State, those who carry it out as the instruments of the State are not personally responsible and they are entitled, it is claimed, to shelter themselves behind the sovereignty of the State. It is not suggested, of course, that this argument has any application to war crimes, and as we submit each of these men is guilty of countless war crimes it might be enough to brush the matter aside as academic. But that course perhaps would diminish the value which these proceedings will have on the subsequent development of International Law. Now it is true that there is a series of decisions in which Courts have affirmed that one State has no authority over another sovereign State or over its head or representative. Those decisions have been based on the precepts of the comity of nations and of peaceful and smooth international intercourse: they do not in truth depend upon any sacrosanctity of foreign sovereignty, except in so far as the recognition of sovereignty in itself promotes international relations. They really afford no authority for the proposition that those who constitute the organs, those who are behind the State, are entitled to rely on the metaphysical entity which they create and control when, by their directions, that State sets out to destroy that very comity on which the rules of International Law depend. Suppose a State were [Page 428] to send a body of persons into the territory of another State with instructions to murder and to rob. Would those persons carrying out those orders be immune because in the fulfilment of their criminal design they were acting as the organs of another State? Suppose the individuals who had ordered the predatory expedition were to fall into the hands of the State attacked - could they plead immunity? In my submission clearly not. Yet the case put is exactly the case which occurred here. The truth is that this attempt to clothe crime with impunity because the motive was political rather than personal invokes no principle of law but is based on arbitrary political doctrines more appropriate to the sphere of power politics than to that in which the rule of law prevails.

And finally it is said that these wretched men were powerless instruments in Hitler's hands, ordered to do that which, they say, they did reluctantly. The defence of superior orders is excluded by the Charter, although Article 8 provides that it may in appropriate cases be considered in mitigation of punishment, if the Tribunal thinks that justice so requires. But the Charter no more than declares the law. There is no rule of International Law which provides immunity for those who obey orders which - whether legal or not in the country where they are issued - are manifestly contrary to the very law of nature from which International Law has grown. If International Law is to be applied at all, it must be superior to State law in this respect, that it must consider the legality of what is

done by international and not by State law tests. By every test of International Law, of common conscience, of elementary humanity, these orders - if indeed it was in obedience to orders that these men acted - were illegal. Are they then to be excused?

The dictatorship behind which these men seek to shelter was of their own creation. In the desire to secure power and position for themselves they built up the system under which they received their orders. The continuance of that system depended on their continued support. Even if it were true that - as Jodl suggested - these men might have been dismissed, perhaps imprisoned, had they disobeyed the orders which they were given, would not any fate have been better than that they should have lent themselves to these things? But it was not true. These were the men in the inner councils, the men who planned as well as carried out; of all people the ones who might have advised, restrained, halted Hitler instead of encouraging him in his satanic courses. The principle of collective responsibility of the members of a government is not an artificial doctrine of constitutional law. It is an essential protection of the rights of man and the community of nations; International Law is fully entitled to protect its own existence by giving effect to it.

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