The Nizkor Project: Remembering the Holocaust (Shoah)

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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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