6.1 Sir Hartley SHAWCROSS Q.C. M.P.
The Attorney-General & Chief UK Prosecutor at Nuremberg.

“ 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.

...

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

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“ 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.

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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. “

The Trial of German Major War Criminals (HMSO)

Vol.2 Page Session 12 pp.46-57 Twelfth Day: Tuesday, 4th December, 1945

“ 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.

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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.

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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.”

Ibid. (my emphasis)

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

A fuller extract from the Attorney-General’s closing speech is set out in Background Document RLM 006

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