 Prosecuting Tony Blair and others
Back to main document menu
The Trial of German Major War Criminals
Sitting at Nuremberg, Germany. Vol.2 Session 12 (Pages 45-59).
Twelfth Day: Tuesday, 4th December, 1945
THE PRESIDENT: I will call on the Chief Prosecutor for Great Britain and Northern Ireland. [Page 45]
SIR HARTLEY SHAWCROSS: May it please the Tribunal:
....
Nor, though this procedure and this Indictment of individuals may be novel, is there anything new in the principles which by this prosecution we seek to enforce. Ineffective though, alas, the sanctions proved to be, in themselves, the Nations of the world had, as it will be my purpose in addressing the Tribunal to show, sought to make aggressive war an international crime, and although previous tradition has sought to punish States rather than individuals, it is both logical and right that,
if the act of waging war is itself an offence against International Law, those individuals who shared personal responsibility for bringing such wars about should answer personally for the course into which they led their States. Again, individual war crimes have long been recognised by International Law as triable by the Courts of those States whose nationals have been outraged, at least so long as a state of war persists. It would be illogical in the extreme if those who, although they may not
with their own hands have committed individual crimes, were responsible for systematic breaches of the laws of war affecting the nationals of many States, should escape for that reason. So also in regard to crimes against humanity. The right of humanitarian intervention on behalf of the rights of man, trampled upon by a State in a manner shocking the sense of mankind, has long been considered to form part of the Law of Nations. Here too, the Charter merely develops a pre- existing principle. If
murder: rapine and robbery are indictable under the ordinary municipal laws of our countries, shall those who differ from the common criminal only by the extent and systematic nature of their offences, escape accusation?
It is, as I shall show, the view of the British Government that in these matters this Tribunal will apply to individuals not the law of the victor, but the accepted principles of international usage, in a way which will, if anything can, promote and fortify the rule of International Law and safeguard the future peace and security of this war- stricken world. By agreement between the Chief Prosecutors, it is my task, on behalf of the British Government and of the other States associated in
this prosecution, to present the case on Count 2 of the Indictment and to show how these defendants, in conspiracy with each other and with persons not now before this Tribunal, planned and waged a war of aggression in breach of the treaty obligations by which, under International Law, Germany, as other States, had sought to make such wars impossible.
That task falls into two parts. The first is to demonstrate the nature and the basis of the Crime against Peace which is constituted, under the Charter of this Tribunal, by waging wars of aggression and in violation of Treaties; and the second is to establish beyond all possibility of doubt that such wars were waged by these defendants.
....
There are, it is true, some small-town lawyers who deny the very existence of any International Law; and indeed, as I have said, the rules of the law of nations may not satisfy the Austinian test of being imposed by a sovereign. But the legal regulation of international relations rests upon quite different juridical foundations. It depends upon consent, but upon a consent which, once given, cannot be withdrawn by unilateral action. In the international [Page 55] field the
source of law is not the command of a sovereign but the treaty agreement binding upon every State which has adhered to it. And it is indeed true, and the recognition of its truth today by all the great powers of the world is vital to our future peace - it is indeed true that, as M. Litvinoff once said, and as Great Britain fully accepts, "Absolute Sovereignty and entire liberty of action only belong to such States as have not undertaken international obligations. Immediately a State accepts
international obligations it limits its sovereignty." In that way and that way alone lies the future peace of the world.
Yet it may be argued that although war itself was outlawed and forbidden, it was not criminally outlawed and criminally forbidden. International Law, it may be said, does not attribute criminality to States and still less to individuals. But can it really be said on behalf of these defendants that the offence of these aggressive wars, which plunged millions of people to their deaths, which by dint of War Crimes and Crimes against Humanity brought about the torture and extermination of
countless thousands of innocent civilians, which devastated cities, which destroyed the amenities - nay, the most rudimentary necessities of civilisation in many countries - which has brought the world to the brink of ruin from which it will take generations to recover will it seriously be said by these defendants that such a war is only an offence, only an illegality, only a matter of condemnation perhaps sounding in damages, but not a crime justiciable by any tribunal? No law worthy of the
name can allow itself to be reduced to an absurdity in that way, and certainly the Great Powers responsible for this Charter are not prepared to admit it. They draw the inescapable conclusion from the renunciation, the prohibition, the condemnation of war which had become part of the Law of nations, and they refuse to reduce justice to impotence by subscribing to the outworn doctrines that a sovereign State can commit no crime and that no crime can be committed on behalf of the sovereign State
by individuals acting in its behalf. They refuse to stultify themselves, and their refusal and their decision has decisively shaped the law of this Tribunal.
If this be an innovation, it is an innovation long overdue - a desirable and beneficent innovation fully consistent with justice, fully consistent with common sense and with the abiding purposes of the Law of nations.
History - very recent history does not warrant the view that a State cannot be a criminal. On the other hand, the immeasurable potentialities for evil inherent in the State in this age of science and organisation would seem to demand, quite imperatively, means of repression of criminal conduct even more drastic and more effective than in the case of individuals. And in so far, therefore, as this Charter has put on record the principle of the criminal responsibility of the State, it must be
applauded as a wise and far-seeing measure of international legislation.
(A recess was taken.)
[Page 56] SIR HARTLEY SHAWCROSS : I was saying before the recess that there could be no doubt about the principle of criminal responsibility on the part of the State which engaged in aggressive war.
Admittedly, the conscience shrinks from the rigours of collective punishment, which may fall upon the guilty and the innocent alike, although, it may be noted, most of these innocent victims would not have hesitated to reap the fruits of the criminal act if it had been successful. Humanity and justice will find means of mitigating any injustice in collective punishment. Above all, much hardship can be obviated by making the punishment fall upon the individuals who were themselves directly
responsible for the criminal conduct of their State. It is here that the Powers who framed this Charter took a step which justice, sound legal sense and an enlightened appreciation of the good of mankind must acclaim without cavil or reserve. The Charter lays down expressly that there shall be individual responsibility for the crimes, including the Crimes against the Peace, committed on behalf of the State.
The State is not an abstract entity. Its rights and duties are the rights and duties of men. Its actions are the actions of men. It is a salutary principle, a principle of law, that politicians who embark upon a particular policy - as here - of aggressive war should not be able to seek immunity behind the intangible personality of the State. It is a salutary legal rule that persons who, in violation of the law, plunge their own and other countries into an aggressive war, should do so with a
halter around their necks.
To say that those who aid and abet, who counsel and procure a crime are themselves criminals, is a commonplace in our own municipal law. Nor is the principle of individual international responsibility for offences against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes, as distinct from the crime of war, is based upon the principle of individual responsibility. The future of International Law, and indeed, of the world itself,
depends on its application in a much wider sphere, in particular in that of safeguarding the peace of the world. There must be acknowledged not only, as in the Charter of the United Nations, fundamental human rights, but also, as in the Charter of this Tribunal, fundamental human duties, and of these none is more vital, none is more fundamental, than the duty not to vex the peace of nations in violation of the clearest legal prohibitions and undertakings. If this be an innovation, it is an
innovation which we are prepared to defend and to justify, but it is not an innovation which creates a new crime. International Law had already, before the Charter was adopted, constituted aggressive war - a criminal act.
 Back to top
|
