Archive/File: imt/tgmwc/tgmwc-02/tgmwc-02-12.03 Last-Modified: 1999/09/11 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 the people 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. On 1st September, 1939, in the early hours of the morning, under manufactured and, in any event, inadequate pretexts, the armed forces of the German Reich invaded Poland along the whole length of her frontiers and thus launched the war which was to bring down so many of the pillars of our civilisation. It was a breach of the Hague Conventions. It was a breach of the Treaty of Versailles which had established the frontiers between Germany and Poland, and however much Germany disliked that Treaty - although Hitler had expressly stated that he would respect its territorial provisions - however much she disliked it - she was not free to break it by unilateral action. It was a breach of the Arbitration Treaty between Germany and Poland concluded at Locarno on 16th October, 1925. By that Treaty Germany and Poland expressly agreed to refer any matters of dispute not capable of settlement by ordinary diplomatic machinery to the decision of an Arbitral Tribunal or of the Permanent Court of International justice. It was a breach of the Pact of Paris. But that is not all. It was also a breach of a more recent and, in view of the repeated emphasis laid upon it by Hitler himself, in some ways a more important engagement into which Nazi Germany had entered with Poland. After the Nazi Government came into power on 26th January, 1934, the German and Polish Governments had signed a Ten-Year Pact of Non- aggression. It was, as the signatories themselves stated, to introduce a new era into the political relations between Poland and Germany. It was said in the text of the Pact itself that "the maintenance and guarantee of lasting peace between the two countries is an essential prerequisite for the general peace of Europe". The two Governments therefore agreed to base their mutual relations on the principles laid down in the Pact of Paris, and they solemnly declared that:- [Page 60] "In no circumstances . will they proceed to the application of force for the purpose of reaching a decision in such disputes." That declaration and agreement was to remain in force for at least ten years and thereafter it was to remain valid unless it was denounced by either Government six months before the expiration of the ten years, or subsequently by six months' notice. Both at the time of its signature and during the following four years Hitler spoke of the German-Polish Agreement publicly as though it were a cornerstone of his foreign policy. By entering into it he persuaded many people that his intentions were genuinely pacific, for the re- emergence of a new Poland and an independent Poland after the war had cost Germany much territory and had separated East Prussia from the Reich. That Hitler should, of his own accord, enter into friendly relations with Poland; that in his speeches on foreign policy he should proclaim his recognition of Poland and of her right to an exit to the sea, and the necessity for Germans and Poles to live side by side in amity - these facts seemed to the world to be convincing proof that Hitler had no "revisionist" aims which would threaten the peace of Europe; that he was even genuinely anxious to put an end to the age-old hostility between the Teuton and the Slav. If his professions were, as embodied in the treaty and as contained in these declarations, genuine, his policy excluded a renewal of the "Drang nach Osten", as it had been called, and was thereby going to contribute to the peace and stability of Europe. That was what people were led to think. We shall have occasion enough to see how little truth these pacific professions in fact contained. The history of the fateful years from 1934 to 1939 shows quite clearly that the Germans used this treaty, as they used other treaties, merely as an instrument of policy for furthering their aggressive aims. It is clear from the documents which will be presented to the Tribunal that these five years fall into two distinct phases in the realisation of the aggressive aims which always underlay the Nazi policy. There was first the period from the Nazi assumption of power in 1933 until the autumn of 1937. That was the preparatory period. During that time there occurred the breaches of the Versailles and Locarno Treaties, the feverish rearmament of Germany, the reintroduction of conscription, the reoccupation and remilitarization of the Rhineland, and all those other necessary preparatory measures for future aggression which my American colleagues have already so admirably put before the Tribunal. During that period - the preparatory period - Germany was lulling Poland into a false sense of security. Not only Hitler, but the defendant Goering and the defendant Ribbentrop made statements approbating the non-aggression pact. In 1935 Goering was saying that "the pact was not planned for a period of ten years but for ever; there need not be the slightest fear that it would not be continued". Even though Germany was steadily building up the greatest war machine that Europe had ever known, and although, by January, 1937, the German military position was so strong and so secure that, in spite of the treaty breaches which it involved, Hitler could openly refer to his strong army, he took pains, at the same time, to say - and again I quote - that "by a series of agreements we have eliminated existing tensions and thereby contributed considerably to an improvement in the European atmosphere. I merely recall the agreement with Poland which has worked out to the advantage of both sides". [Page 61] And so it went on: abroad, protestations of pacific intentions; at home, guns before butter". In 1937 this preparatory period drew to a close and Nazi policy moved from general preparation for future aggression to specific planning for the attainment of certain specific aggressive aims. And there are two documents in particular which mark that change. The first of these was called "Directive for Unified Preparation for War", issued in June, 1937 - 29th June, 1937 - by the Reich Minister for War, who was then von Blomberg, Commander-in-Chief of the Armed Forces. That document is important, not only for its military directions, but for the appreciation it contained of the European situation, and for the revelation of the Nazi attitude towards it. "The general political position," von Blomberg stated - I am quoting from the document - "justifies the supposition that Germany need not consider an attack from any side. Grounds for this are, in addition to the lack of desire for war in almost all nations, particularly the Western Powers, the deficiencies in the preparedness for war of a number of States, and of Russia in particular. It is true," he added, "The intention of unleashing a European war is held just as little by Germany," and it may be that that phrase was carefully chosen because, as the documents will show, Germany hoped to conquer Europe, perhaps to conquer the world in detail; to fight on one front at a time, against one power at a time, and not to unleash a general European conflict. "But," von Blomberg went on: "The politically fluid world situation, which does not preclude surprising incidents, demands a continuous preparedness for war of the German armed forces (a)to counter-attack at any time" - yet he had just said that there was no fear of any attack-" and (b)" - and I invite the Tribunal again to notice this phrase "to enable the military exploitation of politically favourable opportunities should they occur." That phrase is no more than a euphemistic description of aggressive war. It reveals the continued adherence of the German military leaders to the doctrine that military might, and if necessary war, should be an instrument of policy - the doctrine which had been explicitly condemned by the Kellogg Pact, which was renounced by the pact with Poland, and by innumerable other treaties.
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