Prosecuting Tony Blair and others

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The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
Vol.2 Session12 Page 45-59

Twelfth Day: Tuesday, 4th December, 1945

[Page 45]

THE PRESIDENT: I will call on the Chief Prosecutor for Great Britain and Northern Ireland.

SIR HARTLEY SHAWCROSS: May it please the Tribunal:

On an occasion to which reference has and will be made, Hitler, the Leader of the Nazi conspirators who are now on trial before you, is reported as having said in reference to their warlike plans:

"I shall give a propagandist cause for starting the war, never mind whether it be true or not. The victor shall not be asked later on whether we tell the truth or not. In starting and making a war not the right is what matters, but victory - the strongest has the right."

The British Empire with its Allies has twice, within the space of 25 years, been victorious in wars which have been forced upon it, but it is precisely because we realise that victory is not enough; that might is not necessarily right; that lasting peace and the rule of International Law is not to be secured by the strong arm alone, that the British Nation is taking part in this trial. There are those who would perhaps say that these wretched men should have been dealt with summarily without trial by "executive action"; that their power for evil broken, they should be swept aside into oblivion without this elaborate and careful investigation into the part which they played in plunging the world into war. Vae Victis. Let them pay the penalty of defeat. But that was not the view of the British Government.

Not so would the Rule of Law be raised and strengthened on the international as well as upon the municipal plane; not so would future generations realise that right is not always on the side of the big battalions; not so would the world be made aware that the waging of aggressive war is not only a dangerous venture but a criminal one. Human memory is short. Apologists for defeated nations are sometimes able to play upon the sympathy and magnanimity of their victors, so that the true facts, never authoritatively recorded, become obscured and forgotten. One has only to recall the circumstances following upon the last World War to see the dangers to which, in the absence of any authoritative judicial pronouncement, a tolerant or a credulous people is exposed. With the passage of time the former tend to discount, perhaps because of their very horror, the stories of aggression and atrocity that may be handed down; and the latter, the credulous, misled by perhaps fanatical and perhaps dishonest propagandists, come to believe that it was not they but their opponents who were guilty of that which they would themselves condemn. And so we believe that this Tribunal, acting, as we know it will act notwithstanding its appointment by the victorious powers, with complete and judicial objectivity, will provide a contemporary touchstone and an authoritative and impartial record to which future historians [Page 46] may turn for truth, and future politicians for warning. From this record shall future generations know not only that our generation suffered, but also that our suffering was the result of crimes, crimes against the laws of peoples which the peoples of the world upheld and will continue in the future to uphold-to uphold by international co-operation, not based merely on military alliances, but grounded, and firmly grounded, in the Rule of Law.

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 ofmany 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.

As to the first, it would no doubt be sufficient just to say this: it is not incumbent upon the prosecution to prove that wars of aggression and wars in violation of International Treaties are, or ought to be, International Crimes. The Charter of this Tribunal has prescribed that they are crimes and that Charter is the Statute and the law of this Court. Yet, though that [Page 47] is the clear and mandatory law governing the jurisdiction of this Tribunal, we feel that we should not be fully discharging our task in the abiding interest of international justice and morality, unless we showed to the Tribunal, and indeed to the world, the position of this provision of the Charter against the whole perspective of International Law. For, just as in the experience of our country, some old English Statutes were merely declaratory of the Common Law, so this Charter substantially declares and creates a jurisdiction in respect of what was already the Law of Nations.

Nor is it unimportant to emphasise that aspect of the matter, lest there be some, now or hereafter, who might allow their judgement to be warped by plausible catchwords or by an uninformed and distorted sense of justice towards these defendants. It is not difficult to be misled by such criticisms as that resort to war in the past has not been a crime; that the power to resort to war is one of the prerogatives of the sovereign State; even that this Charter, in constituting wars of aggression a crime, has imitated one of the most obnoxious doctrines of National Socialist jurisprudence, namely, post factum legislation - that the Charter is in this respect reminiscent of Bills of Attainder - and that these proceedings are no more than a measure of vengeance, subtly concealed in the garb of judicial proceedings, which the Victor wreaks upon the Vanquished.

These things may sound plausible yet they are not true. It is, indeed, not necessary to doubt that some aspects of the Charter bear upon them the imprint of significant and salutary novelty. But it is our submission and our conviction, which we affirm before this Tribunal and the world, that fundamentally the provision of the Charter which constitutes wars, such wars as these defendants joined in waging and in planning, a crime, is not in any way an innovation. This provision of the Charter does no more than constitute a competent jurisdiction for the punishment of what not only the enlightened conscience of mankind, but the Law of Nations itself, had constituted an International Crime, before this Tribunal was established and this Charter became part of the public law of the world.

So first let this be said. Whilst it may be true that there is no body of international rules amounting to law in the Austinian sense of a rule imposed by a sovereign upon a subject obliged to obey it under some definite sanction, yet for fifty years or more the people of the world, striving perhaps after that ideal of which the poet speaks:

"When the War Drums throb no longer
And the Battle Flags are furled,
In the Parliament of Man,
The Federation of the World"

have sought to create an operative system of rules based upon the consent of nations to stabilise international relations, to avoid war taking place at all and to mitigate the results of such wars as took place. The first such treaty was of course the Hague Convention of 1899 for the Pacific Settlement of International Disputes. That Convention was, indeed, of little more than precatory effect, and we attach no weight to it for the purposes of this case, but it did establish agreement that, in the event of serious disputes arising between the signatory powers, they would as far as possible submit to mediation. That Convention was followed in 1907 by another Convention reaffirming and slightly strengthening what had previously been agreed. These early conventions fell, it is true, very far short of outlawing war, or of [Page 48] creating any binding obligation to arbitrate. I shall certainly not ask the Tribunal to say that any crime was committed by disregarding those Conventions. But at least they established that the contracting powers accepted the general principle that, if at all possible, war should be resorted to only if mediation failed.

Although these Conventions are mentioned in this Indictment, I am not relying on them save to show the historical development of the law, and it is unnecessary, therefore, to argue about their effect, for the place which they once occupied has been taken by far more effective instruments. I mention them now merely for this, that they were the first steps towards that body of rules of law which we are seeking here to enforce. There were, of course, other individual agreements between particular States, agreements which sought to preserve the neutrality of individual countries, as, for instance, that of Belgium, but those agreements were inadequate, in the absence of any real will to comply with them, to prevent the First World War in 1914. Shocked by the occurrence of that catastrophe, the Nations of Europe, not excluding Germany, and of other parts of the world, came to the conclusion that, in the interests of all alike, a permanent organisation of the Nations should be established to maintain the peace. And so the Treaty of Versailles was prefaced by the Covenant of the League of Nations.

Now, I say nothing at this moment of the general merits of the various provisions of the Treaty of Versailles. They have been criticised, some of them perhaps justly criticised, and they were certainly made the subject of much bellicose propaganda in Germany. But it is unnecessary to inquire into the merits of the matter, for, however unjust one might for this purpose assume the provisions of the Treaty of Versailles to have been, they contained no kind of excuse for the waging of war to secure an alteration in their terms. Not only was that Treaty a settlement, by agreement, of all the difficult territorial questions which had been left outstanding by the war itself, but it established the League of Nations which, if it had been loyally supported, could so well have resolved those international differences which might otherwise have led, as indeed they eventually did lead, to war. It set up in the Council of the League, in the Assembly and in the Permanent Court of International Justice, a machine not only for the peaceful settlement of international disputes, but also for the frank ventilation of all international questions by open and free discussion. At that time, in those years after the last war, the hopes of the world stood high. Millions of men in all countries - perhaps even in Germany herself - had laid down their lives in what they hoped and believed was a war to end war. Germany herself entered the League of Nations and was given a permanent seat on the Council, and on that Council, as in the Assembly of the League, German Governments which preceded that of the defendant von Papen in 1932 played their full part. In the years from 1919 to that time in 1932, despite some comparatively minor incidents in the heated atmosphere which followed the end of the war, the peaceful operation of the League continued. Nor was it only the operation of the League which gave ground, and good ground, for hope that at long last the rule of law would replace that of anarchy in the international field.

The Statesmen of the world deliberately set out to make wars of aggression an International Crime. These are no new terms invented by the Victors [Page 49] to embody in this Charter. They have figured, and they have figured prominently, in numerous treaties, in governmental pronouncements, and in the declarations of statesmen in the period preceding the Second World War. In treaties concluded between the Union of Soviet Socialist Republics and other States, such as Persia in 1927, France in 1935, China in 1937, the contracting parties undertook to refrain from any act of aggression whatever against the other party. In 1933, the Soviet Union became a party to alarge number of treaties containing a detailed definition of aggression, and the same definition appeared in the same year in the authoritative Report of the Committee on Questions of Security set up in connection with the Conference for the Reduction and Limitation of Armaments.

But States were going beyond commitments to refrain from wars of aggression and to assist States which were victims of aggression. They were condemning aggression in unmistakable terms. Thus in the Anti-War Treaty of Non-Aggression and Conciliation, which was signed on the 10th October, 1933, by a number of American States, subsequently joined by practically all the States of the American Continent and a number of European countries as well, the Contracting Parties solemnly declared that "they condemn wars of aggression in their mutual relations or in those of other States". And that treaty was fully incorporated into the Buenos Aires Convention of December, 1936, signed and ratified by a large number of American countries, including, of course, the United States. And previously, in 1928, the Sixth Pan-American Conference had adopted a resolution declaring that, as "war of aggression constitutes a crime against the human species . all aggression is illicit and as such is declared prohibited". A year earlier, as long ago as September, 1927, the Assembly of the League of Nations adopted a resolutionl affirming the conviction that "a war of aggression can never serve as a means of settling international disputes and is, in consequence, an International Crime" and going on to declare that "all wars of aggression are, and shall always be, prohibited". The first Article of the Draft Treaty for Mutual Assistance Of 1923 read in these terms: "The High Contracting Parties, affirming that aggressive war is an International Crime, undertake the solemn engagement not to make themselves guilty of this crime against any other nation." In the Preamble to the Geneva Protocol of 1924, it was stated that "offensive warfare constitutes an infraction of solidarity and an International Crime". These instruments that I have just last mentioned remained, it is true, unratified for various reasons, but they are not without significance or value.

These repeated declarations, these repeated condemnations of wars of aggression, testified to the fact that with the establishment of the League of Nations, with the legal developments which followed it, the place of war in International Law had undergone a profound change. War was ceasing to be the unrestricted prerogative of sovereign States. The Covenant of the League of Nations did not totally abolish the right of war. It left, perhaps, certain gaps which were probably larger in theory than in practice. But in effect it surrounded the right of war by procedural and substantive checks and delays, which, if the Covenant had been faithfully observed, would have amounted to an elimination of war, not only between Members of the League, but also, by reason of certain provisions of the Covenant, in the relations of non-Members as well. And thus, the Covenant of the League restored the position as it existed at the dawn of International Law, at the time when [Page 50] Grotius was laying the foundations of the modern Law of Nations, and established the distinction, a distinction accompanied by profound legal consequences in the sphere, for instance, of neutrality, between a just war and an unjust war.

Nor was that development arrested with the adoption of the Covenant of the League. The right of war was further circumscribed by a series of treaties, numbering - it is an astonishing figure but it is right - nearly a thousand, of arbitration and conciliation embracing practically all the nations of the world. The so-called Optional Clause of Article 36 of the Statute of the Permanent Court of International justice, the clause which conferred upon the Court compulsory jurisdiction with regard to the most comprehensive categories of disputes, and which constituted in effect by far the most important compulsory treaty of arbitration in the post-war period, was widely signed and ratified. Germany herself signed it in 1927 and her signature was renewed, and renewed for a period of five years, by the Nazi Government in July of 1933. (Significantly, that ratification was not again renewed on the expiration of its five years' validity in March of 1938 by Germany.) Since 1928 a considerable number of States signed and ratified' the General Act for the Pacific Settlement of International Disputes, which was designed to fill the gaps left by the Optional Clause and by the existing treaties of arbitration and conciliation.

And all this vast network of instruments of pacific settlement testified to, the growing conviction that war was ceasing to be the normal or the legitimate, means of settling international disputes. The express condemnation of wars of aggression, which I have already mentioned, supplies the same testimony. But there was, of course, more direct evidence pointing in the same direction The Treaty of Locarno of the 16th October, 1925, to which I shall have occasion to refer presently, and to which Germany was a party, was more than a treaty of arbitration and conciliation in which the parties undertook definite obligations with regard to the pacific settlement of disputes which, might arise between them. It was, subject to clearly specified exception of self-defence in certain contingencies, a more general undertaking in which, the parties to it agreed that "they would in no case attack or invade each other or resort to war against each other". And that constituted a general renunciation of war, and it was so considered to be in the eyes of international jurists and in the public opinion of the world. The Locarno Treaty was not just another of the great number of arbitration treaties which were being concluded at this time. It was regarded as a kind of cornerstone in the European settlement and in the new legal order in Europe in partial, just and, indeed generous substitution for the rigours of the Treaty of Versailles. And with that treaty, the term "outlawry of war" left the province of mere pacifist propaganda. It became current in the writings on International Law and in the official pronouncements of governments. No one could any longer say, after the Locarno Treaty - no one could any longer associate himself with the plausible assertion that at all events, as between the parties to that treaty, war remained an unrestricted right of sovereign States.

But, although the effect of the Locarno Treaty was limited to the parties to it, it had wider influence in paving the way towards that most fundamental that truly revolutionary enactment in modern International Law, namely, the General Treaty for the Renunciation of War of 27th August, 1928, the Pact of Paris, the Kellogg-Briand Pact. That treaty, a most deliberate and [Page 51] carefully prepared piece of international legislation, was binding in 1939 on more than 6o nations, including Germany. It was, and it has remained, the most widely signed and ratified international instrument. It contained no provision for its termination, and it was conceived, as I said, as the cornerstone of any future international order worthy of the name. It is fully part of International Law as it stands today, and it has in no way been modified or replaced by the Charter of the United Nations. It is right, in this solemn hour in the history of the world, when the responsible leaders of a State stand accused of a premeditated breach of this great Treaty which was, which remains, a source of hope and of faith for mankind, to set out in detail its two operative Articles and its Preamble. Let me read them to the Tribunal-first the Preamble, and it starts like this:

"The President of the German Reich" - and the other States associated -

THE PRESIDENT: Shall we find it among the documents ?

SIR HARTLEY SHAWCROSS: It will be put in. I do not think you have it at the moment.

"The President of the German Reich,

Deeply conscious of their solemn duty to promote the welfare of mankind;

Persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made, to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated;

Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly progress, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war, should be denied the benefits furnished by this Treaty;

Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavour and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting civilised nations of the world in a common renunciation of war as an instrument of their national policy."

Then, Article I:

"The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another."

And Article II:

"The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."

In that Treaty, that General Treaty for the Renunciation of War, practically the whole civilised world abolished war as a legally permissible means of enforcing the law or of changing it. The right of war was no longer of the essence of sovereignty. Whatever the position may have been at the time of the Hague Convention, whatever the position may have been in 1914, whatever it may have been in 1918 - and it is not necessary to discuss [Page 52]

it - no International lawyer of repute, no responsible statesman, no soldier concerned with the legal use of Armed Forces, no economist or industrialist concerned in his country's war economy, could doubt that, with the Pact of Paris on the Statute Book, a war of aggression was contrary to International Law. Nor have the repeated violations of the Pact by the Axis Powers in any way affected its validity. Let this be firmly and clearly stated. Those very breaches, except perhaps to the cynic and the malevolent, have added to the strength of the Treaty; they provoked the sustained wrath of peoples angered by the contemptuous disregard of this great Statute and determined to vindicate its provisions. The Pact of Paris is the Law of Nations. This Tribunal will declare it. The world must enforce it.

Let this also be said, that the Pact of Paris was not a clumsy instrument likely to become a kind of signpost for the guilty. It did not enable Germany to go to war against Poland and yet rely, as against Great Britain and France, on any immunity from warlike action because of the very provisions of the Pact. For the Pact laid down expressly in its Preamble that no State guilty of a violation of its provisions might invoke its benefits. And when, on the outbreak of the Second World War, Great Britain and France communicated to the League of Nations that a state of war existed between them and Germany as from the 3rd September, 1939, they declared that by committing an act of aggression against Poland, Germany had violated her obligations assumed not only towards Poland but also towards the other signatories of the Pact. A violation of the Pact in relation to one signatory was an attack upon all the other signatories and they were entitled to treat it as such. I emphasise that point lest any of these defendants should seize upon the letter of the Particulars of Count Two of the Indictment and seek to suggest that it was not Germany who initiated war with the United Kingdom and France on 3rd September, 1939. The declaration of war came from the United Kingdom and from France; the act of war and its commencement came from Germany in violation of the fundamental enactment to which she was a party.

The General Treaty for the Renunciation of War, this great constitutional instrument of an international society awakened to the deadly dangers of another Armageddon, did not remain an isolated effort soon to be forgotten in the turmoil of recurrent international crises. It became, in conjunction with the Covenant of the League of Nations or independently of it, the starting point for a new orientation of governments in matters of peace, war, and neutrality. It is of importance, and I wish to quote just one or two of the statements which were being made by Governments at that time in relation to the effect of the Pact. In 1929, His Majesty's Government in the United Kingdom said, in connection with the question of conferring upon the Permanent Court of International justice, jurisdiction with regard to the exercise of belligerent rights in relation to neutral States - and it illustrates the profound change which was being accepted as having taken place, as a result of the Pact of Paris, in International Law:

"But the whole situation rests, and International Law on the subject has been entirely built up, on the assumption that there is nothing illegitimate in the use of war as an instrument of national policy, and, as a necessary corollary, that the position and rights of neutrals are entirely independent of the circumstances of any war which may be in progress. Before the acceptance of the Covenant, the basis of the law [Page 53]

of neutrality was that the rights and obligations of neutrals, were identical as regards both belligerents, and were entirely independent of the rights and wrongs of the dispute which had led to the war, or the respective position of the belligerents at the bar of world opinion.

Now it is precisely this assumption which is no longer valid as regards States which are members of the League of Nations and parties to the Peace Pact. The effect of those instruments, taken together, is to deprive nations of the right to employ war as an instrument of national policy, and to forbid the States which have signed them to give aid or comfort to an offender."

This was being said in 1919, when there was no war upon the horizon.

"As between such States, there has been in consequence a fundamental change in the whole question of belligerent and neutral rights. The whole policy of His Majesty's present Government (and, it would appear, of any alternative government) is based upon a determination to comply with their obligations under the Covenant of the League and the Peace Pact. This being so, the situation which we have to envisage in the event of a war in which we were engaged is not one in which the rights and duties of belligerents and neutrals will depend upon the old rules of war and neutrality, but one in which the position of the Members of the League will be determined by the Covenant and by the Pact."

(Memorandum on the Signature of His Majesty's Government in the United Kingdom on the Optional Clause of the Statute, Misc. No.12 (1929) Cmmd. 3452, p.9).

The Chief Prosecutor for the United States of America referred in his opening speech before this Tribunal to the weighty pronouncement of Mr. Stimson, the Secretary of War, in which, in 1932, he gave expression to the drastic change brought about in International Law by the Pact of Paris, and it is perhaps convenient to quote the relevant passage in full:

"War between nations was renounced by the signatories of the Briand-Kellogg Pact. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. Hereafter, when two nations engage in armed conflict, either one or both of them must be wrongdoers - violators of this general treaty law. We no longer draw a circle about them and treat them with the punctilios of the duellist's code. Instead we denounce them as lawbreakers."

And nearly ten years later, when numerous independent States lay prostrate, shattered or menaced in their very existence before the impact of the war machine of the Nazi State, the Attorney General of the United States, subsequently a distinguished member of the highest tribunal of that great country, gave significant expression to the change which had been effected in the law as the result of the General Treaty for the Renunciation of War, in a speech for which the freedom-loving peoples of the world will always be grateful. On the 27th March, 1941 - and I mention it now not as merely being the speech of a statesman, although it was certainly that, but as being the considered opinion of a distinguished lawyer - he said this:

"The Kellogg-Briand Pact Of 1928, in which Germany, Italy and Japan covenanted with us, as well as with other nations, to renounce war as an instrument of policy, made definite the outlawry of war and of necessity altered the dependent concept of neutral obligations.

[Page 54] The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their signatories of the right of war as an instrument of national policy or aggression, and rendered unlawful wars undertaken in violation of their provisions. In consequence these treaties destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars....

It follows that the State which has gone to war in violation of its obligations acquires no right to equality of treatment from other States, unless treaty obligations require different handling of affairs. It derives no rights from its illegality.

In flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie International Law and allow these great treaties to become dead letters. The intelligent public opinion of the world which is not afraid to be vocal, and the action of the American States, has made a determination that the Axis Powers are the aggressors in the wars today, which is an appropriate basis in the present state of international organisation for our policy."

Thus there is no doubt that by the time the National Socialist State of Germany had embarked upon the preparation of the war of aggression against the civilised world, and by the time it had accomplished that design, aggressive war had become, in virtue of the Pact of Paris and the other treaties and declarations to which I have referred, illegal and a crime beyond all uncertainty and doubt. And it is on that proposition, and fundamentally on that Universal Treaty, the Briand-Kellogg Pact, that Count 2 of this Indictment is principally based.

The prosecution has deemed it necessary - indeed, imperative - to establish beyond all possibility of question, at what I am afraid may appear to be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactivity in the determination of the authors of this Charter to treat aggressive war as conduct which International Law has prohibited and stigmatised as criminal. We have traced the progressive limitation of the rights of war, the renunciation and condemnation of wars of aggression, and, above all, the total prohibition and condemnation of all wars conceived as an instrument of national policy. What statesman or politician could doubt, from 1928 onwards, that aggressive war, or that all war, except in self-defence or for the collective enforcement of the law, or against a State which had itself violated the Pact of Paris, was unlawful and outlawed? What statesman or politician embarking upon such a war could reasonably and justifiably count upon an immunity other than that of a successful outcome of the criminal venture? What more decisive evidence of a prohibition laid down by positive International Law could any lawyer desire than that which has been adduced before this Tribunal?

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. But is it indeed an innovation? Or is it no more than the logical development of the law? There was, indeed, a time when international lawyers used to maintain that the liability of the State, because of its sovereignty, was limited to a contractual responsibility. International tribunals have not accepted that view. They have repeatedly affirmed that a State can commit a tort; that it may be guilty of trespass, of nuisance, and negligence. And they have gone further. They have held that a State may be bound to pay what are in effect penal damages. In a recent case decided in 1935 between the United States and Canada, an arbitral tribunal, with the concurrence of its American member, decided that the United States were bound to pay what amounted to penal damages for an affront to Canadian sovereignty. And on a wider plane, the Covenant of the League of Nations, in providing for sanctions, recognised the principle of enforcement of the law against collective units, such enforcement to be, if necessary, of a penal character. And so there is not anything startlingly new in the adoption of the principle that the State as such is responsible for its criminal acts. In fact, save for reliance on the unconvincing argument of sovereignty, there is in law no reason why a State should not be answerable for crimes committed on its behalf. A hundred years ago Dr. Lushington, a great English Admiralty judge, refused to admit that a State could not be a pirate. 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

[Page 57] There is thus no substantial retroactivity in the provisions of the Charter. It merely fixes the responsibility for a crime already clearly established as such by positive law, upon its actual perpetrators. It fills a gap in international criminal procedure. There is all the difference between saying to a man, "You will now be punished for what was not a crime at all at the time you committed it," and in saying to him, "You will now pay the penalty for conduct which was contrary to law and a crime when you executed it, although, owing to the imperfection of the international machinery, there was at that time no court competent to pronounce judgement against you." It is that latter course which we adopt, and if that be retroactivity, we proclaim it to be most fully consistent with that higher justice which, in the practice of civilised States, has set a definite limit to the retroactive operation of laws. Let the defendants and their protagonists complain that the Charter is in this matter an ex parte fiat of the victors. These victors, composing, as they do, the overwhelming majority of the nations of the world, represent also the world's sense of justice, which would be outraged if the crime of war, after this second world conflict, were to remain unpunished. In thus interpreting, declaring and supplementing the existing law, these States are content to be judged by the verdict of history. Securus judicat orbis terrarum.In so far as the Charter of this Tribunal introduces new law, its authors have established a precedent for the future - a precedent operative against all, including themselves, but in essence that law, rendering recourse to aggressive war an international crime, had been well established when the Charter was adopted. It is only by way of corruption of language that it can be described as a retroactive law.

There remains the question, with which I shall not detain the Tribunal for long, whether these wars which were launched by Germany and her leaders in violation of treaties or agreements or assurances were also wars of aggression. A war of aggression is a war which is resorted to in violation of the international obligation not to have recourse to war, or, in cases in which war is not totally renounced, which is resorted to in disregard of the duty to utilise the procedure of pacific settlement which a State has bound itself to observe. There was, as a matter of fact, in the period between the two world wars, a divergence of opinion among jurists and statesmen whether it was preferable to attempt in advance a legal definition of aggression, or to leave to the States concerned, and to the collective organs of the international community, freedom of appreciation of the facts in any particular situation that might arise.

Those holding the latter view argued that a rigid definition might be abused by an unscrupulous State to fit in with its aggressive design; they feared, and the British Government was for a time among those who took this view, that an automatic definition of aggression might become "A trap for the innocent and a signpost for the guilty". Others held that in the interest of certainty and security a definition of aggression, like a definition of any crime in municipal law, was proper and useful. They urged that the competent, international organs, political and judicial, could be trusted to avoid in any particular case a definition of aggression which might lead to obstruction or to an absurdity. In May of 1933 the Committee on Security Questions of the Disarmament Conference proposed a definition of aggression on these lines:

"The aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to [Page 58] be that State which is the first to commit any of the following actions:

(1) declaration of war upon another State;
(2) invasion by its armed forces, with or without a declaration of war, of the territory of another State;
(3) attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another State;
(4) naval blockade of the coasts or ports of another State;
(5) provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection."

The various treaties concluded in 1933 by the Union of Soviet Socialist Republics and other States followed closely that definition. So did the Draft Convention submitted in 1933 by His Majesty's Government to the Disarmament Conference.

However, it is unprofitable to elaborate here the details of the problem or of the definition of aggression. This Tribunal will not allow itself to be deflected from its purpose by attempts to ventilate in this Court what is an academic and, in the circumstances, an utterly unreal controversy as to what is the nature of a war of aggression, for there is no definition of aggression, general or particular, which does not cover, and cover abundantly and irresistibly in every detail, the premeditated onslaught by Germany on the territorial integrity and political independence of so many sovereign States.

This, then, being the law, as we submit it to be to this Tribunal - that the peoples of the world by the Pact of Paris had finally outlawed war and made it criminal - I turn now to the facts, to see how these defendants under their leader and with their associates destroyed the high hopes of mankind and sought to revert to international anarchy. First, let this be said, for it will be established beyond doubt by the documents which you will see, that from the moment Hitler became Chancellor in 1933, with the defendant von Papen as Reich Chancellor, and with the defendant von Neurath as his Foreign Minister, the whole atmosphere of the world darkened. The hopes of thepeople began to recede. Treaties seemed no longer matters of solemn obligation but were entered into with complete cynicism as a means for deceiving other States of Germany's warlike intentions. International conferences were no longer to be used as a means for securing pacific settlements, but as occasions for obtaining by blackmail demands which were eventually to be enlarged by war. The world came to know the War of Nerves, the diplomacy of the fait accompli, of blackmail and bullying.

In October, 1933, Hitler told his Cabinet that as the proposed Disarmament Convention did not concede full equality to Germany, "It would be necessary to torpedo the Disarmament Conference. It was out of the question to negotiate: Germany would leave the Conference and the League." On 21st October, 1933, Germany did so, and by so doing struck a deadly blow at the fabric of security which had been built up on the basis of the League Covenant. From that time on, the record of their foreign policy became one of complete disregard of international obligations, and, indeed, not least, of those solemnly concluded by themselves. Hitler himself expressly avowed to his confederates, "Agreements are kept only so long as they serve a certain purpose." He might have added that again and again that purpose [Page 59] was only to lull an intended victim into a false sense of security. So patent, indeed, did this eventually become that to be invited by the defendant Ribbentrop to enter a non- aggression pact with Germany was almost a sign that Germany intended to attack the State concerned. Nor was it only the formal treaty which they used and violated as circumstances seemed to make it expedient.

These defendants are charged, too, with breaches of the less formal assurances which, in accordance with diplomatic usage, Germany gave to neighbouring States. You will hear the importance which Hitler himself publicly attached to assurances of that kind. Today, with the advance of science, the world has been afforded means of communication and intercourse hitherto unknown, and, as Hitler himself expressly recognised in his public utterances, international relations no longer depend upon treaties alone. The methods of diplomacy change. The leader of one nation can speak directly to the Government and peoples of another, and that course was not infrequently adopted by the Nazi conspirators. But, although the methods change, the principles of good faith and honesty, established as the fundamentals of civilised society, both in the national and international spheres, remain unaltered. It is a long time since it was said that we are part, one of another, and if today the different States are more closely connected and thus form part of a world society more than ever before, so, also, more than before, is there that need for good faith and honesty between them.

Let us see how these defendants, Ministers and High Officers of the Nazi Government, individually and collectively, comported themselves in these matters.

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