dtufail/nuremberg-trials-corpus huggingface dataset:
SIR HARTLEY SHAWCROSS: Finally it was suggested that the state could not become the subject of criminal responsibility and that, if that proposition were not admitted, the crime was one of the German State and not of individual members of it, because in the German State which launched that war upon the world there were no individual wills but only one sovereign, uncontrolled, and final will-that of the dictator-Fuehrer. It might be enough for me to say that this entire line of arguments is beside the point and cannot be heard in this Court since it is in contradiction to the Charter. For the Charter lays down expressly that the planning-and I emphasize the word "planning"- preparation, initiation, or waging of a war of aggression or of a war in violation of international treaties, agreements, or assurances shall be considered crimes coming within the jurisdiction of the Tribunal. It would appear, therefore, that the only way in which the accused can escape liability is to show to the satisfaction of the Tribunal that these wars were not wars of aggression or in violation of treaties. They have not done that. That being so one asks what is the purpose of the argument which has been advanced in their behalf. Is it to deny the jurisdiction of this Tribunal in this matter? Or what is perhaps more probable, is it a political appeal to some outside audience which may be more easily impressed by the complaint that the accused are being made the object of post factum legislation? Whatever its object, it is important that the argument should not go unchallenged. I am anxious not to take up time by repeating what I said in my opening statement on the change effected in the position of war in international law as the result of the long series of treaties, in particular the General Treaty for the Renunciation of War.
SIR HARTLEY SHAWCROSS: I have submitted that that treaty, one of the most generally signed international treaties, established a rule of international law with a solemnity and clarity which is often lacking in customary international law; that the profound change which it produced, and this is important, although indeed the distinction between just and unjust wars had been recognized in medieval times, was reflected in weighty pronouncements of governments and statesmen. I submit that it rendered illegal recourse to war in violation of the treaty, and that there is no difference between illegality and criminality in a breach of law involving the deaths of millions and a direct attack on the very foundations of civilized life. Nor do I propose to take time by answering in detail the, if I may say so, strange chain of legal argument put forward by the Defense such as that the treaty had no effect attributed to it by its signatories on the ground that it was received in some quarters with disbelief or cynicism. liven more curious to ordinary legal thinking is the reasoning that in any case that treaty-and the other treaties and assurances which followed it-had ceased to be legally binding by 1939 because by that time the entire system of collective security had collapsed. The fact that the United States declared its neutrality in 1939 was cited as an example of the collapse of the system as if the United States had been under any legal obligation to act otherwise. But what is the relevance of the fact that the system designed to enforce these treaties and to prevent and to penalize criminal recourse to war failed to work? Did the aggressions of Japan and Italy and the other states involved in the Axis conspiracy, followed by the German aggressions against Austria and Czechoslovakia, deprive those obligations of their binding effect simply because those crimes achieved a temporary success? Since when has the civilized world accepted the principle that the temporary impunity of the criminal not only deprives the law of its binding force but legalizes his crime?
SIR HARTLEY SHAWCROSS: And you will notice, incidentally, that in the case both of the Japanese and Italian aggressions, the Council and the Assembly of the League of Nations denounced these acts as violations both of the Covenant and of the General Treaty for the Renunciation of War and that in both cases sanctions were decreed. It may be that the policemen did not act as effectively as one could have wished them to act. But that was a failure of the policeman, not of the law. But not content with the remarkable suggestion that by their very aggressions, because of the reluctance of the peace-loving states to take arms against the blackmail and the bullying which was directed against them, the aggressors had abrogated the law against aggression, the defendants have introduced some question of self-defense. They have not, indeed, really suggested that these wars were defensive wars. Not even Goebbels in his wildest extravagances went quite so far as that. It appears that what they seek to say is not that their wars were wars in self-defense, but that since the Pact of Paris not only left intact the right of states to defend themselves but also the sovereign right of each state to determine whether recourse to war in self-defense was justified in the circumstances, it did not in fact contain any legal obligation at all. That is, in our strong submission, a wholly fallacious argument. It is true that in the declarations preceding and accompanying the signature and the ratification of the Pact of Paris, selfdefense was not only recognized as an inherent and inalienable right of the parties to the treaty, but its signatories reserved for themselves the exclusive right of judging whether circumstances called for the exercise of that right. The question is whether this reservation of self-defense destroyed the purpose and the legal value of the treaty.
SIR HARTLEY SHAWCROSS: If Germany was entitled to have recourse to war in self-defense and if she was free to determine in what circumstances she was permitted to exercise the right of self-defense, can she ever be considered to have violated the solemn obligation of the treaty? That question counsel of the defense sought to answer in the negative. But that answer amounts to an assertion that that solemn treaty subscribed to by more than sixty nations is a scrap of paper devoid of any meaning at all, and it would result in this-that every prohibition or limitation of the right of war would be a nullity if it expressly provides for the right of self-defense, and I invite the-Tribunal emphatically to consign that parody of legal reasoning to where it properly belongs. Neither the Pact of Paris nor any other treaty was intended to-or could-take away the right of self-defense. Nor did it deprive its signatories of the right to determine, in the first instance, whether there was danger in delay and whether immediate action to defend themselves was imperative; and that only is the meaning of the express proviso that each state judges whether action in self-defense is necessary. But that does not mean that the state thus acting is the ultimate judge of the propriety and of the legality of its conduct. It acts at its peril. Just as the individual is answerable for the exercise of his common law right of defense, so the state is answerable if it abuses its discretion, if it transforms "selfdefense" into an instrument of conquest and lawlessness, if it twists the natural right of self-defense into a weapon of predatory aggrandizement and lust. The ultimate decision as to the lawfulness of action claimed to be taken in self-defense does not lie with the state concerned, and for that reason, the right of selfdefense, whether expressly reserved or implied, does not impair the capacity of a treaty to create legal obligations against war.
SIR HARTLEY SHAWCROSS: Under the Covenant of the League of Nations, Japan was entitled to decide in the first instance whether events in Manchuria justified resort to force in self-defense. But it was left to an impartial body of enquiry to find, as it did find, that there was in fact no justification for action in self-defense and to mention a more recent example, Article 51 of the Charter of the United Nations lays down that nothing in the Charter shall impair the inherent right of individual or collective self-defense in case of armed attack. But it expressly leaves to the Security Council the power of ultimate action and determination. It is to be hoped that the judgment of this Tribunal will discourage, and discourage with appropriate finality, any further reliance on the argument that, because a treaty reserved for the signatories the right of action in self-defense, it becomes, for that reason, incapable of imposing upon the signatories any effective legal obligation against war. I will now turn to the argument that the motion of criminal responsibility is incompatible with the idea of national sovereignty. A state may, and this Professor Jahrreiss conceded, commit an offense against international law, but he contends that to make it criminally responsible and punishable would be to deny the sovereignty of the state. It is strange to see the accused who in their capacity as the German Government overran most of the states of Europe, who trampled brutally upon their sovereign independence, and who with boastful and swaggering cynicism made the sovereignty of the conquered states subservient to the new conception of the "Grossraumordnung"-it is strange to see these defendants appealing to the mystic virtues of the sanctity of state sovereignty, and perhaps it is not less remarkable to find them invoking orthodox international law to protect the defeated German State and its rulers from just punishment at the hands of the victorious powers. But there is no rule of international law which they can call in aid to this regard.
SIR HARTLEY SHAWCROSS: In a sense these proceedings are not concerned with punishing the German State. They are concerned with the punishment of individuals. But it might seem strange if individuals were criminally responsible for the acts of the state if such acts by the state were not themselves crimes. There is, in our submission, no substance at all in the view that international law rules out the criminal responsibility of states and that since, because of their sovereignty, states cannot be coerced, all their acts are legal. Legal purists may contend that nothing is law which is not imposed from above by a sovereign power body having the power to compel obedience. That idea of the analytical jurists has never been applicable to international law. If it had, the undoubted obligation of states in matters of contract and tort could not exist. It may be true that in international relationships prior to the war, there was no super-sovereign body which at the same time imposed international laws and enforced them. But, at least in the international field, the existence of law has never been dependent on the existence of a correlated sanction external to the law itself. International law has always been based on the element of common consent and where you have a body of rules which, whether by common consent or treaty, are obligatory upon the members of the international community, those rules are the laws of that community although the consent has not been obtained by force, and although there may be no direct or external sanction to secure obedience. The fact is that absolute sovereignty in the old sense is, very fortunately, a thing of the past. It is a conception which is quite inconsistent with the binding force of any international treaty. In the course of the work of the Permanent Court of International Justice, it became a stock argument to rely on state sovereignty in support of the opinion that, as states are sovereign, treaty obligations entered into by them ought to be at least interpreted restrictively. The court consistently discouraged that view.
SIR HARTLEY SHAWCROSS: In its very first judgment-a judgment given against Germany in the Wimbledon case-it rejected the plea of sovereignty as a reason for the restrictive interpretation of obligations in treaties. The court declined to see in a treaty, by which a state undertook to observe a definite line of conduct, an abandonment of its sovereignty and the court reminded Germany that the very right to enter into international engagements is an attribute of state sovereignty. As a philosophical proposition the right to contract and the right to freedom of action too, I suppose, present an eternal antithesis. But just as individuals secure their freedom by adherence to their laws, so may sovereign states maintain their own individual status; the view that since states are sovereign they cannot be coerced has long since been abandoned. The Covenant of the League of Nations made provision, in Article 16, for sanctions against sovereign states-sanctions being only another name for coercion, probably coercion of a punitive character. The Charter of the United Nations has followed suit-much more decisively. It is true that, because of the absence of a competent compulsory jurisdiction, there is no judicial precedent for states being arraigned before a criminal tribunal. But that is equally true of the undoubted civil responsibilities of states, for apart from treaty there is no compulsory jurisdiction in any international tribunal to adjudicate upon them. 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.
SIR HARTLEY SHAWCROSS: 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 offense 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 offense 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.
SIR HARTLEY SHAWCROSS: It is not suggested, of course, that this argument has any application to war crimes, and 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 insofar as the recognition of sovereignty in itself promotes international relations. They really afford no authority for the proposition that those who constitute the organs of incorporate states, those who are behind the state, are entitled to rely on the metaphysical entity which they create and control when, by their very directions, that state sets out to destroy that very comity on which the rules of international law depend. Suppose a state were 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 fulfillment 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.
SIR HARTLEY SHAWCROSS: And finally it is said that these wretched men were powerless instruments in Hitler's hands, ordered to do that which reluctantly, so they say, they did. The defense 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 municipal law in this respect, that it must consider the legality of what is done by international and not by municipal 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.
SIR HARTLEY SHAWCROSS: 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 Three and Four 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 awn 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 noncombatants,-never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten-million-fold. Crimes do not cease to be criminal because they have a political motive. These crimes were many and manifold. It is not useful to catalog them here. They vary most considerably in the numbers of victims.
SIR HARTLEY SHAWCROSS: There are the 50 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 rigors 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, 6 million 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. Nonetheless, 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, unorganized, individual acts. We are dealing here with something entirely different; with systematic, wholesale, consistent action, taken as a matter of deliberate calculation-calculation of 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 noncombatants must not be made the direct object of hostile operations.