The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                   [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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