The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/10/19

Perhaps Jodl's comment in his diary for March that Hitler
"is still looking for an excuse", with Raeder's lame
explanation that this refers to the text of the diplomatic
note which would have to be sent, and Ribbentrop's assertion
that he was informed of the invasion only a day or so before
it was to take place, are as conclusive as anything else of
the dishonesty of this defence. Once again all these men in
their different spheres were playing their appointed parts.
Notably, of course, Rosenberg, who paved the way, Goering,
Raeder, Keitel, Jodl and Ribbentrop, who took the necessary
executive action. Not one of them protested: even
Fritzsche's only defence is that he was not told until a
very late stage when he was as usual required to broadcast.
He does not suggest that he protested. Once again, a
completely ruthless invasion of two countries was undertaken
in breach of every treaty and assurance, solely because it
was strategically desirable to have Norwegian bases and to
secure Scandinavian ore.

And so it went on: Yugoslavia, her fate settled before the
war, Greece, and then Soviet Russia. The German-Soviet Pact
of 23rd August, 1939, paved the way. The complete
worthlessness of a Ribbentrop signature is made clear by
Hitler's memorandum six weeks later, where he remarked: "The
trifling significance of treaties of agreement has been
proved on all sides in recent years."

By 18th December, 1940, it must have become apparent that
the German hope of overcoming the resistance of Great
Britain - then and for many months holding the fort for
freedom and democracy alone against an enemy never more
powerful than at that time - was vain, and so the first
directive was issued for an attack in another direction -
this time against Soviet Russia. It is indeed true - and it
is interesting - that on this occasion a number of the
defendants did make some objection. Little Norway might be
violated without protest: there was no danger

                                                  [Page 423]

there. There was happy acquiescence in the rape of the
gallant Netherlands and of Belgium. But here was an enemy
which might perhaps strike fear into the heart of the bully.
The defendants objected, of course, if at all on purely
military grounds, although Raeder does say that he was
influenced by the moral wrong which breach of the German-
Soviet treaty would involve. It is for you to say. These
moral scruples which ought so properly to have manifested
themselves on countless other occasions are only previously
recorded when one of his officers wishes to marry a lady of
doubtful reputation. The truth is that some of these men
were beginning to become apprehensive. Great Britain's
resistance had already begun to make them think. Was Hitler
now taking on another enemy whom he could not defeat? Once
the decision was taken, however, every one of them set to
work to play his part with his usual disregard for all laws
of morality or even decency.

In no single case did a declaration of war precede military
action. How many thousands of innocent, inoffensive men,
women and children, sleeping in their beds in the happy
belief that their country was and would remain at peace,
were suddenly blown into eternity by death dropped on them
without warning from the skies? In what respect does the
guilt of any one of these men differ from the common
murderer creeping stealthily to do his victims to death in
order that he may rob them of their belongings?

In every single case, as the documents make clear; this was
the common plan. The attack must be "blitzartig schnell" -
without warning: with the speed of lightning: Austria,
Czechoslovakia, Poland-Raeder repeating Keitel's directive
for "Heavy blows struck by surprise" - Denmark, Norway,
Belgium, Holland, Russia.

As Hitler had said in the presence of a number of these men:

  "Considerations of right or wrong or treaties do not
  enter into the matter."

The killing of combatants in war is justifiable, both in
international and in national law, only where the war itself
is legal. But where a war is illegal, as a war started not
only in breach of the Pact of Paris but without any sort of
warning or declaration clearly is, there is nothing to
justify the killing, and these murders are not to be
distinguished from those of any other lawless robber bands.

Every one of these men knew of these plans at one stage or
another in their development. Every one of these men
acquiesced in this technique, knowing full well what it must
represent in terms of human life. How can any one of them
now say he was not a party to common murder in its most
ruthless form?

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.

The distinguished speech by Professor Jahrreiss for the
defence was free of ambiguity. The effect was that though
the Kellogg-Briand Pact and the other international
declarations and treaties rendered aggressive war illegal,
they did not make it criminal. In support of this contention
it was argued that they could not have done so because any
such attempt to make aggressive war a crime would be
contrary to the sovereignty of States, and that, in any
event, the entire system of prohibition of war had collapsed
before the outbreak of the Second World War, and therefore
ceased to be law. It was further argued that these treaties
were not taken seriously by numerous jurists and journalists
whose opinions were cited, and were not really entitled to
be treated seriously because they contained no provision for
coping with the problem of the peaceful change of the status
quo. With regard to the Pact of Paris itself, counsel
contended that there could be no question of a criminal - or
even unlawful - breach of that Pact of Paris, because it
left to each State, including Germany, the right to
determine whether it was entitled to go to war in self-
defence. Finally it was suggested

                                                  [Page 424]

that the State could not become the subject of criminal
responsibility, and that, if that proposition were not
admitted, the crime was one of the German State and not of
individual members of it, because in the German State which
launched that war upon the world there were no individual
wills but only one sovereign, uncontrolled and final will -
that of the Dictator Fuehrer.

It might be enough for me to say that this entire line of
argument is beside the point and cannot be heard in this
Court since it is in contradiction to the Charter. For the
Charter lays down expressly that the planning, and I
emphasize the word "planning", preparation, initiation, or
waging of a war of aggression or of a war m violation of
international treaties, agreements, or assurances shall be
considered crimes coming within the jurisdiction of the
Tribunal. It would appear, therefore, that the only way in
which the accused can escape liability is to show to the
satisfaction of the Tribunal that these wars were not wars
of aggression or in violation of treaties. They have not
done that. That being so one asks what is the purpose of the
argument which has been advanced on their behalf. Is it to
deny the jurisdiction of this Tribunal in this matter? Or
what is perhaps more probable, is it a political appeal to
some outside audience which may be more easily impressed by
the complaint that the accused are being made the object of
post factum legislation?

Whatever its object, it is important that the argument
should not go unchallenged. I am anxious not to take up time
by repeating what I said in my opening statement on the
change effected in the position of war in International Law
as the result of the long series of treaties in particular
the General Treaty for the Renunciation of War. I have
submitted that that treaty, one of the most generally signed
international treaties, established a rule of International
Law with a solemnity and clarity which is often lacking in
customary International Law; that the profound change which
it produced - and this is important (although indeed the
distinction between just and unjust wars had been recognized
in medieval times) - was reflected in weighty pronouncements
of governments and statesmen; I submit that it rendered
illegal recourse to war in violation of the Treaty; and that
there is no difference between illegality and criminality in
a breach of law involving the deaths of millions and a
direct attack on the very foundations of civilised life. Nor
do I propose to take time by answering m detail the, if I
may say so, strange chain of legal argument put forward by
the defence, such as that the treaty had no effect
attributed to it by its signatories on the ground that it
was received in some quarters with disbelief or cynicism.

Even more curious to ordinary legal thinking is the
reasoning that in any case that treaty - and the other
treaties and assurances which followed it - had ceased to be
legally binding by 1939 because by that time the entire
system of collective security had collapsed. The fact that
the United States declared its neutrality in 1939 was cited
as an example of the collapse of the system, as if the
United States had been under any legal obligation to act
otherwise. But what is the relevance of the fact that the
system designed to enforce these treaties and to  prevent
and to penalise criminal recourse to war failed to work? Did
the aggressions of Japan and Italy and the other States
involved in the Axis conspiracy, followed by the German
aggressions against Austria and Czechoslovakia, deprive
those obligations of their binding effect simply because
those crimes achieved a temporary success? Since when has
the civilised world accepted the principle that the
temporary impunity of the criminal not only deprives the law
of its binding force but legalises his crime?

And you will notice, incidentally, that in the case both of
the Japanese and Italian aggressions, the Council and the
Assembly of the League of Nations denounced these acts as
violations both of the Covenant and of the General Treaty
for the Renunciation of War, and that in both cases
sanctions were decreed. It

                                                  [Page 425]

may be that the policemen did not act as effectively as one
could have wished them to act. But that was a failure of the
policemen, not of the law.

But not content with the remarkable suggestion that by their
very aggressions, because of the reluctance of the peace-
loving States to take arms against the blackmail and the
bullying which was directed against them, the aggressors had
abrogated the law against aggression, the defendants have
introduced some question of self-defence. They have not,
indeed, really suggested that these wars were defensive
wars. Not even Goebbels in his wildest extravagances went
quite so far as that. It appears that what they seek to say
is not that their wars were wars in self-defence, but that
since the Pact of Paris not only left intact the right of
States to defend themselves but also the sovereign right of
each State to determine whether recourse to war in self-
defence was justified in the circumstances, it did not in
fact contain any legal obligation at all. That is, in our
strong submission, a wholly fallacious argument. It is true
that in the declarations preceding and accompanying the
signature and the ratification of the Pact of Paris, self-
defence was not only recognized as an inherent and
inalienable fight of the parties to the treaty, but its
signatories reserved for themselves the exclusive right of
judging whether circumstances called for the exercise of
that right.

The question is whether this reservation of self-defence
destroyed the purpose and the legal value of the treaty? If
Germany was entitled to have recourse to war in self-defence
and if she was free to determine in what circumstances she
was permitted to exercise the right of self-defence, can she
ever be considered to have violated the solemn obligation of
the treaty? That question counsel for the defence sought to
answer in the negative. But that answer amounts to an
assertion that that solemn treaty, subscribed to by more
than sixty nations, is a scrap of paper devoid of any
meaning at all, and it would result in this - that every
prohibition or limitation of the right of war is a nullity
if it expressly provides for the right of self-defence, and
I invite the Tribunal emphatically to consign that parody of
legal reasoning to where it properly belongs.

Neither the Pact of Paris nor any other treaty was intended
to - or could - take away the right of self-defence. Nor did
it deprive, its signatories of the right to determine, in
the first instance, whether there was danger in delay and
whether immediate action to defend themselves was
imperative; and that only is the meaning of the express
proviso that each State judges whether action in self-
defence is necessary. But that does not mean that the State
thus acting is the ultimate and only judge of the propriety
and of the legality of its conduct. It acts at its peril.
Just as the individual is answerable for the exercise of his
common law right of self-defence, so the State is answerable
if it abuses its discretion, if it transforms "self-defence"
into an instrument of conquest and lawlessness, if it twists
the natural right of self-defence into a weapon of predatory
aggrandizement and lust. The ultimate decision as to the
lawfulness of action claimed to be taken in self-defence
does not lie with the State concerned, and for that reason,
the right of self-defence, whether expressly reserved or
implied, does not impair the capacity of a treaty to create
legal obligations against war.

Under the Covenant of the League of Nations Japan was
entitled to decide in the first instance whether events in
Manchuria justified resort to force in self-defence. But it
was left to an impartial body of inquiry to find, as it did
find, that there was in fact no justification for action in
self-defence, and, to mention a more recent example, Article
51 of the Charter of the United Nations lays down that
nothing in the Charter shall impair the inherent right of
individual or collective self-defence in case of armed
attack. But it expressly leaves to the Security Council the
power of ultimate action and determination. It is to be
hoped that the judgement of this Tribunal will discourage,
and discourage with appropriate finality, any future
reliance on the argument that because a treaty reserves for
the signatories the right of action in self-defence, it
becomes, for that reason,

                                                  [Page 426]

incapable of imposing upon the signatories any effective
legal obligation against war.

I now turn to the argument that the notion of criminal
responsibility is incompatible with the idea of national
sovereignty. A State may, as Professor Jahrreiss conceded,
commit an offence against International Law, but he contends
that to make it criminally responsible and punishable would
be to deny the sovereignty of the State.

It is strange to see the accused, who, in their capacity as
the German Government, overran most of the States of Europe,
who trampled brutally upon their sovereign independence, and
who, with boastful and swaggering cynicism, made the
sovereignty of the conquered States subservient to the new
conception of the "Grossraumsordnung" - it is strange to see
these defendants appealing to the mystic virtues of the
sanctity of State sovereignty, and perhaps it is not less
remarkable to find them invoking orthodox International Law
to protect the defeated German State and its rulers from
just punishment at the hands of the victorious Powers. But
there is no rule of International Law which they can call to
aid in this regard.

In a sense these proceedings are not concerned with
punishing the German State. They are concerned with the
punishment of individuals. But it might seem strange if
individuals were criminally responsible for the acts of the
State if such acts by the State were not themselves crimes.
There is no substance at all in the view that International
Law rules out the criminal responsibility of States and that
since, because of their sovereignty, States cannot be
coerced, all their acts are legal. Legal purists may contend
that nothing is law which is not imposed from above by a
sovereign body having the power to compel obedience. That
idea of the analytical jurists has never been applicable to
International Law. If it had, the undoubted obligation of
States in matters of contract and tort could not exist.

It may be true that in international relationships prior to
the war there was no super-sovereign body which at the same
time imposed international laws and enforced them. But, at
least in the international field, the existence of law has
never been dependent on the existence of a correlated
sanction external to the law itself. International Law has
always been based on the element of common consent, and
where you have a body of rules which, whether by common
consent or treaty, are obligatory upon the members of the
international community, those rules are the laws of that
community although the consent has not been obtained by
force, and although there may be no direct or external
sanction to secure obedience. The fact is that absolute
sovereignty in the old sense is, very fortunately, a thing
of the past. It is a conception which is quite inconsistent
with the binding force of any international treaty.

In the course of the work of the Permanent Court of
International justice it became a stock argument to rely on
State sovereignty in support of the opinion that, as States
are sovereign, treaty obligations entered into by them ought
to be at least interpreted restrictively. The Court
consistently discouraged that view. In its very first
judgement - a judgement given against Germany in the
Wimbledon case - it rejected the plea of sovereignty as a
reason for the restrictive interpretation of obligations in
treaties. The Court declined to see in a treaty, by which a
State undertook to observe a definite line of conduct, an
abandonment of its sovereignty, and the Court reminded
Germany that the very right to enter into international
engagements is an attribute of State sovereignty. As a
philosophical proposition the right to contract and the
right to freedom of action do, I suppose, present an eternal
antinomy. But just as individuals secure their freedom by
adherence to their laws, so may sovereign States maintain
their own individual status; the view that since States are
sovereign they cannot be coerced has long been abandoned.
The Covenant of the League of Nations made provision, in
Article 16, for sanctions against sovereign States -
sanctions being

                                                  [Page 427]

only another name for coercion, probably coercion of a
punitive character. The Charter of the United Nations has
followed suit - much more decisively. It is true that,
because of the absence of a competent compulsory
jurisdiction, there is no judicial precedent for States
being arraigned before a criminal tribunal. But that is
equally true of the undoubted civil responsibilities of
States, for apart from treaty there is no compulsory
jurisdiction in any international tribunal to adjudicate
upon them.

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