The Nizkor Project: Remembering the Holocaust (Shoah)

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The first man tried for murder may have complained that no
Court had tried such a case before. The methods of
procedure, the specific punishments, the appropriate Courts,
can always be defined by subsequent proclamation. The only
innovation which this Charter has introduced is to provide
machinery, long overdue, to carry out the existing law, and
there is no substance in the complaint that the Charter is a
piece of post factum legislation either in declaring wars of
aggression to be criminal, or in assuming that the State is
not immune from criminal responsibility.

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. In Germany
itself, Article 4 of the Weimar Constitution laid it down
that generally recognized rules of International Law must be
regarded as an integral part of German Federal Law, and what
can it mean in effect, save that the rules of International
Law are binding upon individuals? 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.

Then the argument is put in another way. Where the act
concerned is an act of State, those who carry it out as the
instruments of the State are not personally responsible and
they are entitled, it is claimed, to shelter themselves
behind the sovereignty of the State. It is not suggested, of
course, that this argument has any application to war
crimes, and as we submit each of these men is guilty of
countless war crimes it might be enough to brush the matter
aside as academic. But that course perhaps would diminish
the value which these proceedings will have on the
subsequent development of International Law. Now it is true
that there is a series of decisions in which Courts have
affirmed that one State has no authority over another
sovereign State or over its head or representative. Those
decisions have been based on the precepts of the comity of
nations and of peaceful and smooth international
intercourse: they do not in truth depend upon any
sacrosanctity of foreign sovereignty, except in so far as
the recognition of sovereignty in itself promotes
international relations. They really afford no authority for
the proposition that those who constitute the organs, those
who are behind the State, are entitled to rely on the
metaphysical entity which they create and control when, by
their directions, that State sets out to destroy that very
comity on which the rules of International Law depend.
Suppose a State were

                                                  [Page 428]

to send a body of persons into the territory of another
State with instructions to murder and to rob. Would those
persons carrying out those orders be immune because in the
fulfilment of their criminal design they were acting as the
organs of another State? Suppose the individuals who had
ordered the predatory expedition were to fall into the hands
of the State attacked - could they plead immunity? In my
submission clearly not. Yet the case put is exactly the case
which occurred here. The truth is that this attempt to
clothe crime with impunity because the motive was political
rather than personal invokes no principle of law but is
based on arbitrary political doctrines more appropriate to
the sphere of power politics than to that in which the rule
of law prevails.

And finally it is said that these wretched men were
powerless instruments in Hitler's hands, ordered to do that
which, they say, they did reluctantly. The defence of
superior orders is excluded by the Charter, although Article
8 provides that it may in appropriate cases be considered in
mitigation of punishment, if the Tribunal thinks that
justice so requires. But the Charter no more than declares
the law. There is no rule of International Law which
provides immunity for those who obey orders which - whether
legal or not in the country where they are issued - are
manifestly contrary to the very law of nature from which
International Law has grown. If International Law is to be
applied at all, it must be superior to State law in this
respect, that it must consider the legality of what is done
by international and not by State law tests. By every test
of International Law, of common conscience, of elementary
humanity, these orders - if indeed it was in obedience to
orders that these men acted - were illegal. Are they then to
be excused?

The dictatorship behind which these men seek to shelter was
of their own creation. In the desire to secure power and
position for themselves they built up the system under which
they received their orders. The continuance of that system
depended on their continued support. Even if it were true
that - as Jodl suggested - these men might have been
dismissed, perhaps imprisoned, had they disobeyed the orders
which they were given, would not any fate have been better
than that they should have lent themselves to these things?
But it was not true. These were the men in the inner
councils, the men who planned as well as carried out; of all
people the ones who might have advised, restrained, halted
Hitler instead of encouraging him in his satanic courses.
The principle of collective responsibility of the members of
a government is not an artificial doctrine of constitutional
law. It is an essential protection of the rights of man and
the community of nations; International Law is fully
entitled to protect its own existence by giving effect to
it.

Let me now pass to Counts 3 and 4 of the Indictment, the
Counts dealing with War Crimes and what we have described,
as in fact they are, as Crimes Against Humanity.

And as to these, may I first make some comment on the legal
position. About the law as to war crimes, little indeed need
be said, because the law is clear enough and not in doubt.
Here are crimes more terrible indeed in their extent than
anything which had hitherto been known, but none the less
well recognizable under the pre-existing rules of
International Law and clearly within the legitimate
jurisdiction either of a national or of an international
tribunal. There is no element of retroactivity here, no
question of post factum law-making, nor is there any shadow
of novelty in the decision of the Charter that those who
shared the ultimate responsibility for these frightful deeds
should bear individual responsibility. It is true that the
lawyers and the statesmen who, at The Hague and elsewhere in
days gone by, built up the code of rules and the established
customs by which the world has sought to mitigate the
brutality of war and to protect from its most extreme
harshness those who were passive non-combatants, never
dreamed of such wholesale and widespread slaughter. But
murder does not cease to be murder merely because the
victims are multiplied ten millionfold.

                                                  [Page 429]

Crimes do not cease to be criminal because they have a
political motive. These crimes were many and manifold. It is
not useful to catalogue them here. They vary most
considerably in the numbers of victims. There are the fifty
murdered prisoners of war who escaped from Stalag Luft III;
the hundreds of commandos and airmen who were exterminated;
there are the thousands of civilian hostages put to death;
the tens of thousands of sailors and passengers who perished
in a piratical campaign of terror; there are the hundreds of
thousands of prisoners of war, especially Russians, and of
civilians who met their death because of the rigours and
cruelties to which they were exposed, if not by outright
murder; and there are the many millions murdered outright,
or by the slower method of deliberate starvation, six
millions of them for no better reason than that they were of
Jewish race or faith.

The mere number of victims is not the real criterion of the
criminality of an act. The majesty of death, the compassion
for the innocent, the horror and detestation of the ignominy
inflicted upon man - man created in the image of God - these
are not the subjects of mathematical calculation. None the
less, somehow, numbers are relevant. For we are not dealing
here with the occasional atrocities which are perhaps an
incident in any war. It may be that war develops the good
things in man; it certainly brings out the worst. It is not
a game of cricket. In any war, in this war no doubt there
have been - and no doubt on both sides - numbers of
brutalities and atrocities. They must have seemed terrible
enough to those against whom they were committed. I do not
excuse or belittle them. But they were casual, unorganised,
individual acts. We are dealing here with something entirely
different. With systematic, wholesale, consistent action,
taken as a matter of deliberate calculation - calculation at
the highest level. And so the principal war crime, in extent
as in intensity, with which these men are charged is the
violation of the most firmly established and least
controversial of all the rules of warfare, namely, that non-
combatants must not be made the direct object of hostile
operations. What a mockery the Germans sought to make of the
IVth Hague Convention on the laws and customs of war - a
convention which merely formulated what was already a
fundamental rule:

  "Family honour and rights, the lives of persons and
  private property, as well as religious convictions and
  practices, must be respected."

The murdering on the orders of the German Government, whose
members are here in the dock, in the territory occupied by
its military forces, whose leaders are here in the dock, of
millions of civilians, whether it was done in pursuance of a
policy of racial extermination, as the result of or in
connection with the deportation of slave labour, in
consequence of the desire to do away with the intellectual
and political leaders of the countries which had been
occupied, or was part of the general application of terror
through collective reprisals upon the innocent population
and upon hostages - this murdering of millions of non-
combatants is a war crime. It may indeed be a crime against
humanity as well. Both imagination and intellect, shattered
by the horror of these things, recoil from putting the
greatest crime in history into the cold formula already
described in the text-books as a war crime. Yet it is
important to remember that that is what these crimes were.
Irrespective, in the main, of where they were committed or
of the race or nationality of the victims, these were
offences upon the civilian population, contrary to the laws
of war in general and to those of belligerent occupation in
particular. The truth is that murder, wholesale, planned and
systematic, became part and parcel of a firmly entrenched
and apparently secure belligerent occupation. That was a war
crime no one has sought to dispute.

But some attempt has been made to canvass the illegality of
three other classes of action with which also these men
stand charged. Deportation to Germany for forced labour; the
crimes at sea in connection with submarine warfare, and the
shooting of commandos. And let me shortly examine these
matters.

                                                  [Page 430]

The deportation of the civilian population for forced labour
is, of course, a crime both according to international
custom and to conventional International Law as expressed in
the Hague Convention. Article 46 of Hague Convention No. IV
enjoins the occupying powers to respect "family honour and
rights" and "the lives of persons". Article 52 of the same
Convention lays down that "services shall not be demanded
from municipalities or inhabitants except for the needs of
the army of occupation" and that "they shall be in
proportion to the resources of the country and of such a
nature as not to involve the population in the obligation of
taking part in the operations of war against that country."
With these simple and categorical provisions we have to
contrast the staggering dimensions of the operation which
the defendant Sauckel directed, and in which the other
defendants participated, the ruthlessness with which
peaceful citizens were torn from their families,
surroundings and employment, the manner in which they were
transported, the treatment which they received on arrival,
the conditions in which they worked and died in thousands
and tens of thousands, and the kind of work which they were
compelled to perform as direct helpers in the production of
arms, munitions and other instruments of war against their
own country and against their own people. How can all that
be reconciled with the law?

It seems to have been suggested that the prohibition of the
Law of Nations had in some way become obsolete in the face
of the modern development of totalitarian war, requiring the
vastest possible use and exploitation of the material and
labour resources of the occupied territory. I confess I do
not understand how the extent of the activities a
belligerent imposes on himself, the size of the effort he
needs to make in order to avoid defeat, can enlarge his
rights against peaceful non-combatants or enable him to
brush aside the rules of war. We cannot make these post
factum repeals of accepted International Law in favour of
the law-breakers.

Nor is there a shadow of a right to invoke any material
change in conditions as a justification for their crimes at
sea - crimes which cost the lives of thirty thousand British
seamen alone. We need not base our case here solely on the
mere violation of the customary rules of warfare as embodied
in the London Protocols of 1930 and 1936, fully subscribed
to as they were by Germany, and prohibiting sinking without
warning, or even with warning if proper provision had not
been made for the safety of passengers and crew. We need not
concern ourselves with the niceties of argument whether the
practice of arming merchantmen affects the position.

Nor need we take time to examine the astonishing proposition
that the sinking of neutral shipping was legalised by the
process of making a paper order excluding such neutral ships
not from some definite war zone over which Germany exercised
control but from vast areas of the seas. For there is one
matter at least about which nobody questions or puts
questions to the law.

If you are satisfied that orders were given that survivors
should not be rescued, that steps should be taken to prevent
the shipwrecked from surviving, for the use of such weapons
that there could be no question of survivors, you will have
no doubt that what was done was contrary to law. It is no
answer that to allow non-combatants to survive entailed
greater risk to the attackers. The murderer is not excused
because he says that it was necessary to kill the victim
lest he should subsequently identify him.

So also in regard to the orders for the execution of
commandos. New methods of warfare, new forms of attack, do
not in themselves repeal existing established rules of law.
The sanctity of the life of the soldier in uniform who
surrenders after the accomplishment of his mission and who
committed no war crime prior to his capture is, and, I ask
you to say, must remain an absolute principle of
International Law. Those who, for whatever motive, trample
upon it in disregard of law, in disregard of humanity, in
disregard of chivalry, must pay the penalty when at last the
law is vindicated.

                                                  [Page 431]

I shall not examine this matter further or detail the other
types of war crimes charged in the Indictment. For that
these matters, various in their kind or method, were crimes
under established law is not in doubt. The Tribunal will be
concerned only to affirm the law and to decide upon the
measure of these prisoners' involvement in its breach.

Let me, however, before I turn to questions of fact refer to
the fourth Count of the Indictment, the CRIMES AGAINST
HUMANITY. It is convenient, I think, to deal with these
matters together for, in so far as they were committed
during the war, to some extent they overlap, and in any case
they are interconnected. The war crimes were in their very
enormity crimes against humanity. The crimes against
humanity were war crimes, writ larger still. Moreover, the
crimes against humanity which this Tribunal has jurisdiction
to deal are limited to this extent - they must be crimes the
commission of which was in some way connected with, in
anticipation of or in furtherance of, the CRIMES AGAINST THE
PEACE or the WAR CRIMES stricto sensu with which the
defendants are indicted. That is the qualification which
Article 6 (c) of the Charter introduces. The considerations
which apply here are, however, different from those
affecting the other classes of offence, the crime against
peace or the ordinary war crime. You have to be satisfied
not only that what was done was a crime against humanity but
also that it was not purely a domestic matter, but that
directly or indirectly it was associated with crimes against
other nations or other nationals, in that, for instance, it
was undertaken in order to strengthen the Nazi Party in
carrying out its policy of domination by aggression, or to
remove elements such as political opponents, the aged, the
Jews, the existence of whom would have hindered the carrying
out of the total war policy.

Pursuing that for a moment, the racial policy against the
Jews was, as I have said, simply one facet of the Herrenvolk
doctrine. In Mein Kampf Hitler had said that the most
decisive factor in the German collapse in 1918 was "the
failure to recognize ... the racial problem and the Jewish
menace". The attack on the Jews was at once a secret weapon
- an enduring Fifth Column weapon - to split and weaken the
democracies and a device for unifying the German people for
war. Himmler made it clear in his speech on 4th October,
1943, that the treatment meted out to German Jews was
closely connected with the war policy. He said:
              
  "For we know how difficult we should have made it for
  ourselves if ... we still had Jews today in every town as
  secret saboteurs, agitators and trouble-mongers."


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