Archive/File: imt/tgmwc/tgmwc-02/tgmwc-02-12.01 Last-Modified: 1999/09/11 [Page 45] TWELFTH DAY TUESDAY, 4th DECEMBER, 1945 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 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. 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 a large 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 resolution 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.
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