The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
December 3 to December 14, 1945

Twelfth Day: Tuesday, 4th December, 1945
(Part 2 of 8)


[Page 50]

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

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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

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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

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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

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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

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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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