The Nizkor Project: Remembering the Holocaust (Shoah)

Nazi Conspiracy & Aggression
Volume I Chapter IX
Opening Address for the United Kingdom
(Part 5 of 17)

Yet it may be argued that although war had been outlawed and forbidden it was not criminally outlawed and forbidden. International Law, it may be said, does not attribute criminality to states, still less to individuals. But can it really be said on behalf of these Defendants that the offense of these aggressive wars, which plunged millions of peoples 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

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-- nay the most rudimentary necessities of civilization 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 that such a war is only an offense, only an illegality, only a matter of condemnation and not a crime justiciable by any Tribunal? No Law worthy of the name can permit itself to be reduced to an absurdity. Certainly the Great Powers responsible for this Charter have refused to allow it. They drew the inescapable consequences from the renunciation, prohibition, and condemnation of war which had become part of the law of Nations They refused to reduce justice to impotence by subscribing to the outworn doctrines that the sovereign state can commit no crime and that no crime can be committed by individuals on its behalf. Their refusal so to stultify themselves has decisively shaped the law of this Tribunal.

If this be an innovation, it is innovation long overdue -- a desirable and beneficent innovation fully consistent with justice, with common sense and with the abiding purposes of the law of Nations. But is it indeed so clear 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 a State was, because of its sovereignty, limited to 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 a nuisance, of negligence. They have gone further. They have held that a State may be bound to pay what are in effect penal damages for failing to provide proper conditions of security to aliens residing within their territory. In a recent case decided in 1935 between the United States and Canada an arbitral commission, 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. On a wider plane the Covenant of the League of Nations, in providing for sanctions, recognized the principle of enforcement of the law against collective units such enforcement to be, if necessary, of a penal character. There is thus nothing startlingly new in the adoption of the principle that the State as such is responsible for its criminal acts. In fact, save for the reliance on the unconvincing argument of sovereignty, there is in law no reason why a State should not be answerable for crimes committed on its behalf. In a case decided nearly one hundred years ago Dr. Lushington, a great English Admiralty judge, refused to admit that a State cannot be a pirate. History, very recent history, does not warrant the view that a

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State cannot be a criminal. On the contrary, the immeasurable potentialities for evil inherent in the State in this age of science And organization would seem to demand imperatively means of repression of criminal conduct even more drastic and more effective than in the case of individuals. In so far therefore as the 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.

Admittedly, the conscience shrinks from the rigours of collective punishment, which fall upon the guilty and the innocent alike -- although, it may be noted, most of those innocent victims would not have hesitated to reap the fruits of the criminal act if had been successful. Humanity and justice will find means of mitigating any injustice of collective punishment. Above all, such hardship can be obviated by making the punishment fall on the individuals directly responsible for the criminal conduct the State. It is here that the Powers who framed the 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 crime 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 salutory principle of the law that politicians who embark upon a war aggression should not be able to seek immunity behind the intangible personality of the State. It is a salutory legal rule that persons who, in violation of the law, plunge their own and other countries into an aggressive war, do so with a halter round their necks.

To say that those who aid and abet, who counsel and procure a rime are themselves criminals is a commonplace in our own municipal jurisprudence. Nor is the principle of individual international responsibility for offenses against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes -- as distinguished from the crime of war -- is based on that principle. The future of International Law and, indeed, of the world, 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. Of these none is more vital or more fundamental than the duty not to vex the peace of nations in violation

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of the clearest legal prohibitions and undertakings. If this is an innovation, then it is one which we are prepared to defend and to justify. 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.

There is therefore in this respect no substantial retroactivity in the provisions of the Charter. It merely fixes the responsibility for a crime, 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 an act which was not a crime at the time you committed it", and telling him: "You will now pay the penalty for conduct which was contrary to law and a crime when you executed it though, owing to the imperfection of international machinery, there was at that time no court competent to pronounce judgment against you." If that be retroactivity, we proclaim it to be most fully consistent with that higher justice which, in the practice of civilized 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 as in other matters an ex parte fiat of the victor. 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 War, were to remain unpunished. In thus interpreting, declaring and supplementing the existing law they are content to be judged by the verdict of history. Securus judicat orbs 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. 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.

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