The Nizkor Project: Remembering the Holocaust (Shoah)

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But, although the effect of the Locarno Treaty was limited
to the parties to it, it had wider influence in paving the
way towards that most fundamental that truly revolutionary
enactment in modern International Law, namely, the General
Treaty for the Renunciation of War Of 27th August, 1928, the
Pact of Paris, the Kellogg-Briand Pact. That treaty, a most
deliberate and

                                                   [Page 52]

carefully prepared piece of international legislation, was
binding in 1939 on more than 6o nations, including Germany.
It was, and it has remained, the most widely signed and
ratified international instrument. It contained no provision
for its termination, and it was conceived, as I said, as the
cornerstone of any future international order worthy of the
name. It is fully part of International Law as it stands
today, and it has in no way been modified or replaced by the
Charter of the United Nations. It is right, in this solemn
hour in the history of the world, when the responsible
leaders of a State stand accused of a premeditated breach of
this great Treaty which was, which remains, a source of hope
and of faith for mankind, to set out in detail its two
operative Articles and its Preamble. Let me read them to the
Tribunal-first the Preamble, and it starts like this:

   "The President of the German Reich" - and the other
   States associated -

THE PRESIDENT: Shall we find it among the documents ?

SIR HARTLEY SHAWCROSS: It will be put in. I do not think you
have it at the moment.

   "The President of the German Reich,
   
   Deeply conscious of their solemn duty to promote the
   welfare of mankind;
   
   Persuaded that the time has come when a frank
   renunciation of war as an instrument of national policy
   should be made, to the end that the peaceful and
   friendly relations now existing between their peoples
   may be perpetuated;
   
   Convinced that all changes in their relations with one
   another should be sought only by pacific means and be
   the result of a peaceful and orderly progress, and that
   any signatory Power which shall hereafter seek to
   promote its national interests by resort to war, should
   be denied the benefits furnished by this Treaty;
   
   Hopeful that, encouraged by their example, all the other
   nations of the world will join in this humane endeavour
   and by adhering to the present Treaty as soon as it
   comes into force bring their peoples within the scope of
   its beneficent provisions, thus uniting civilised
   nations of the world in a common renunciation of war as
   an instrument of their national policy."

Then, Article I:

   "The High Contracting Parties solemnly declare in the
   names of their respective peoples that they condemn
   recourse to war for the solution of international
   controversies, and renounce it as an instrument of
   national policy in their relations with one another."

And Article II:

   "The High Contracting Parties agree that the settlement
   or solution of all disputes or conflicts of whatever
   nature or of whatever origin they may be, which may
   arise among them, shall never be sought except by
   pacific means."

In that Treaty, that General Treaty for the Renunciation of
War, practically the whole civilised world abolished war as
a legally permissible means of enforcing the law or of
changing it. The right of war was no longer of the essence
of sovereignty. Whatever the position may have been at the
time of the Hague Convention, whatever the position may have
been in 1914, whatever it may have been in 1918 - and it is
not necessary to discuss

                                                   [Page 52]

it - no International lawyer of repute, no responsible
statesman, no soldier concerned with the legal use of Armed
Forces, no economist or industrialist concerned in his
country's war economy, could doubt that, with the Pact of
Paris on the Statute Book, a war of aggression was contrary
to International Law. Nor have the repeated violations of
the Pact by the Axis Powers in any way affected its
validity. Let this be firmly and clearly stated. Those very
breaches, except perhaps to the cynic and the malevolent,
have added to the strength of the Treaty; they provoked the
sustained wrath of peoples angered by the contemptuous
disregard of this great Statute and determined to vindicate
its provisions. The Pact of Paris is the Law of Nations.
This Tribunal will declare it. The world must enforce it.

Let this also be said, that the Pact of Paris was not a
clumsy instrument likely to become a kind of signpost for
the guilty. It did not enable Germany to go to war against
Poland and yet rely, as against Great Britain and France, on
any immunity from warlike action because of the very
provisions of the Pact. For the Pact laid down expressly in
its Preamble that no State guilty of a violation of its
provisions might invoke its benefits. And when, on the
outbreak of the Second World War, Great Britain and France
communicated to the League of Nations that a state of war
existed between them and Germany as from the 3rd September,
1939, they declared that by committing an act of aggression
against Poland, Germany had violated her obligations assumed
not only towards Poland but also towards the other
signatories of the Pact. A violation of the Pact in relation
to one signatory was an attack upon all the other
signatories and they were entitled to treat it as such. I
emphasise that point lest any of these defendants should
seize upon the letter of the Particulars of Count Two of the
Indictment and seek to suggest that it was not Germany who
initiated war with the United Kingdom and France on 3rd
September, 1939. The declaration of war came from the United
Kingdom and from France; the act of war and its commencement
came from Germany in violation of the fundamental enactment
to which she was a party.

The General Treaty for the Renunciation of War, this great
constitutional instrument of an international society
awakened to the deadly dangers of another Armageddon, did
not remain an isolated effort soon to be forgotten in the
turmoil of recurrent international crises. It became, in
conjunction with the Covenant of the League of Nations or
independently of it, the starting point for a new
orientation of governments in matters of peace, war, and
neutrality. It is of importance, and I wish to quote just
one or two of the statements which were being made by
Governments at that time in relation to the effect of the
Pact. In 1929, His Majesty's Government in the United
Kingdom said, in connection with the question of conferring
upon the Permanent Court of International justice,
jurisdiction with regard to the exercise of belligerent
rights in relation to neutral States - and it illustrates
the profound change which was being accepted as having taken
place, as a result of the Pact of Paris, in International
Law:

   "But the whole situation rests, and International Law on
   the subject has been entirely built up, on the
   assumption that there is nothing illegitimate in the use
   of war as an instrument of national policy, and, as a
   necessary corollary, that the position and rights of
   neutrals are entirely independent of the circumstances
   of any war which may be in progress. Before the
   acceptance of the Covenant, the basis of the law

                                                   [Page 53]

   of neutrality was that the rights and obligations of
   neutrals, were identical as regards both belligerents,
   and were entirely independent of the rights and wrongs
   of the dispute which had led to the war, or the
   respective position of the belligerents at the bar of
   world opinion.
   
   Now it is precisely this assumption which is no longer
   valid as regards States which are members of the League
   of Nations and parties to the Peace Pact. The effect of
   those instruments, taken together, is to deprive nations
   of the right to employ war as an instrument of national
   policy, and to forbid the States which have signed them
   to give aid or comfort to an offender."

This was being said in 1919, when there was no war upon the
horizon.

   "As between such States, there has been in consequence a
   fundamental change in the whole question of belligerent
   and neutral rights. The whole policy of His Majesty's
   present Government (and, it would appear, of any
   alternative government) is based upon a determination to
   comply with their obligations under the Covenant of the
   League and the Peace Pact. This being so, the situation
   which we have to envisage in the event of a war in which
   we were engaged is not one in which the rights and
   duties of belligerents and neutrals will depend upon the
   old rules of war and neutrality, but one in which the
   position of the Members of the League will be determined
   by the Covenant and by the Pact."

The Chief Prosecutor for the United States of America
referred in his opening speech before this Tribunal to the
weighty pronouncement of Mr. Stimson, the Secretary of War,
in which, in 1932, he gave expression to the drastic change
brought about in International Law by the Pact of Paris, and
it is perhaps convenient to quote the relevant passage in
full:

   "War between nations was renounced by the signatories of
   the Briand-Kellogg Pact. This means that it has become
   illegal throughout practically the entire world. It is
   no longer to be the source and subject of rights. It is
   no longer to be the principle around which the duties,
   the conduct, and the rights of nations revolve. It is an
   illegal thing. Hereafter, when two nations engage in
   armed conflict, either one or both of them must be
   wrongdoers - violators of this general treaty law. We no
   longer draw a circle about them and treat them with the
   punctilios of the duellist's code. Instead we denounce
   them as lawbreakers."

And nearly ten years later, when numerous independent States
lay prostrate, shattered or menaced in their very existence
before the impact of the war machine of the Nazi State, the
Attorney General of the United States, subsequently a
distinguished member of the highest tribunal of that great
country, gave significant expression to the change which had
been effected in the law as the result of the General Treaty
for the Renunciation of War, in a speech for which the
freedom-loving peoples of the world will always be grateful.
On the 27th March, 1941 - and I mention it now not as merely
being the speech of a statesman, although it was certainly
that, but as being the considered opinion of a distinguished
lawyer - he said this:

   "The Kellogg-Briand Pact Of 1928, in which Germany,
   Italy and Japan covenanted with us, as well as with
   other nations, to renounce war as an instrument of
   policy, made definite the outlawry of war and of
   necessity altered the dependent concept of neutral
   obligations.

                                                   [Page 54]

   The Treaty for the Renunciation of War and the Argentine
   Anti-War Treaty deprived their signatories of the right
   of war as an instrument of national policy or
   aggression, and rendered unlawful wars undertaken in
   violation of their provisions. In consequence these
   treaties destroyed the historical and juridical
   foundations of the doctrine of neutrality conceived as
   an attitude of absolute impartiality in relation to
   aggressive wars....
   
   It follows that the State which has gone to war in
   violation of its obligations acquires no right to
   equality of treatment from other States, unless treaty
   obligations require different handling of affairs. It
   derives no rights from its illegality.
   
   In flagrant cases of aggression where the facts speak so
   unambiguously that world opinion takes what may be the
   equivalent of judicial notice, we may not stymie
   International Law and allow these great treaties to
   become dead letters. The intelligent public opinion of
   the world which is not afraid to be vocal, and the
   action of the American States, has made a determination
   that the Axis Powers are the aggressors in the wars
   today, which is an appropriate basis in the present
   state of international organisation for our policy."

Thus there is no doubt that by the time the National
Socialist State of Germany had embarked upon the preparation
of the war of aggression against the civilised world, and by
the time it had accomplished that design, aggressive war had
become, in virtue of the Pact of Paris and the other
treaties and declarations to which I have referred, illegal
and a crime beyond all uncertainty and doubt. And it is on
that proposition, and fundamentally on that Universal
Treaty, the Briand-Kellogg Pact, that Count 2 of this
Indictment is principally based.

The prosecution has deemed it necessary - indeed, imperative
- to establish beyond all possibility of question, at what I
am afraid may appear to be excessive length, that only
superficial learning or culpable sentimentality can assert
that there is any significant element of retroactivity in
the determination of the authors of this Charter to treat
aggressive war as conduct which International Law has
prohibited and stigmatised as criminal. We have traced the
progressive limitation of the rights of war, the
renunciation and condemnation of wars of aggression, and,
above all, the total prohibition and condemnation of all
wars conceived as an instrument of national policy. What
statesman or politician could doubt, from 1928 onwards, that
aggressive war, or that all war, except in self-defence or
for the collective enforcement of the law, or against a
State which had itself violated the Pact of Paris, was
unlawful and outlawed? What statesman or politician
embarking upon such a war could reasonably and justifiably
count upon an immunity other than that of a successful
outcome of the criminal venture? What more decisive evidence
of a prohibition laid down by positive International Law
could any lawyer desire than that which has been adduced
before this Tribunal?

There are, it is true, some small-town lawyers who deny the
very existence of any International Law; and indeed, as I
have said, the rules of the law of nations may not satisfy
the Austinian test of being imposed by a sovereign. But the
legal regulation of international relations rests upon quite
different juridical foundations. It depends upon consent,
but upon a consent which, once given, cannot be withdrawn by
unilateral action. In the international

                                                   [Page 55]

field the source of law is not the command of a sovereign
but the treaty agreement binding upon every State which has
adhered to it. And it is indeed true, and the recognition of
its truth today by all the great powers of the world is
vital to our future peace - it is indeed true that, as M.
Litvinoff once said, and as Great Britain fully accepts,
"Absolute Sovereignty and entire liberty of action only
belong to such States as have not undertaken international
obligations. Immediately a State accepts international
obligations it limits its sovereignty."

In that way and that way alone lies the future peace of the
world.

Yet it may be argued that although war itself was outlawed
and forbidden, it was not criminally outlawed and criminally
forbidden. International Law, it may be said, does not
attribute criminality to States and still less to
individuals. But can it really be said on behalf of these
defendants that the offence of these aggressive wars, which
plunged millions of people to their deaths, which by dint of
War Crimes and Crimes against Humanity brought about the
torture and extermination of countless thousands of innocent
civilians, which devastated cities, which destroyed the
amenities - nay, the most rudimentary necessities of
civilisation in many countries - which has brought the world
to the brink of ruin from which it will take generations to
recover will it seriously be said by these defendants that
such a war is only an offence, only an illegality, only a
matter of condemnation perhaps sounding in damages, but not
a crime justiciable by any tribunal? No law worthy of the
name can allow itself to be reduced to an absurdity in that
way, and certainly the Great Powers responsible for this
Charter are not prepared to admit it. They draw the
inescapable conclusion from the renunciation, the
prohibition, the condemnation of war which had become part
of the Law of nations, and they refuse to reduce justice to
impotence by subscribing to the outworn doctrines that a
sovereign State can commit no crime and that no crime can be
committed on behalf of the sovereign State by individuals
acting in its behalf. They refuse to stultify themselves,
and their refusal and their decision has decisively shaped
the law of this Tribunal.

If this be an innovation, it is an innovation long overdue -
a desirable and beneficent innovation fully consistent with
justice, fully consistent with common sense and with the
abiding purposes of the Law of nations. But is it indeed an
innovation? Or is it no more than the logical development of
the law? There was, indeed, a time when international
lawyers used to maintain that the liability of the State,
because of its sovereignty, was limited to a contractual
responsibility. International tribunals have not accepted
that view. They have repeatedly affirmed that a State can
commit a tort; that it may be guilty of trespass, of
nuisance, and negligence. And they have gone further. They
have held that a State may be bound to pay what are in
effect penal damages. In a recent case decided in 1935
between the United States and Canada, an arbitral tribunal,
with the concurrence of its American member, decided that
the United States were bound to pay what amounted to penal
damages for an affront to Canadian sovereignty. And on a
wider plane, the Covenant of the League of Nations, in
providing for sanctions, recognised the principle of
enforcement of the law against collective units, such
enforcement to be, if necessary, of a penal character. And
so there is not anything startlingly new in the adoption of
the principle that the State as such is responsible for its
criminal acts. In fact, save for reliance on the
unconvincing argument of sovereignty, there is in law no
reason why

                                                   [Page 56]

a State should not be answerable for crimes committed on its
behalf. A hundred years ago Dr. Lushington, a great English
Admiralty judge, refused to admit that a State could not be
a pirate. History - very recent history does not warrant the
view that a State cannot be a criminal. On the other hand,
the immeasurable potentialities for evil inherent in the
State in this age of science and organisation would seem to
demand, quite imperatively, means of repression of criminal
conduct even more drastic and more effective than in the
case of individuals. And in so far, therefore, as this
Charter has put on record the principle of the criminal
responsibility of the State, it must be applauded as a wise
and far-seeing measure of international legislation.

(A recess was taken.)

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