forbidden it wasn't criminally outlawed and criminally forbidden.
to States and still less to individuals. But can it really be said justiciable by any tribunal.
No law worthy of the name can allow it.
They draw the inescapable conclusion from the renunciation, the sovereign state by individuals acting in its behalf.
They refused to 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 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 penal damages for an affront to Canadian sovereignty.
And on a character.
And so there is not anything startlingly new in the its criminal acts.
In fact, save for reliance on the unconvincing 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 couldn't be a pirate.
History--very recent history--doesn't warrant the view that a State cannot be a criminal.
(A recess was taken from 11.20 to 11.30 hours.)
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.
collective punishment, which falls 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 of 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,soundlegalsense 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 salutary principle, a principle of law, that politicians who embark upon a particular policy 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. a crime are themselves criminals is a commonplace in our own municipal law. 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 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. 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 in 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 judgment against you." It is that latter course which we adopt,and if that be retroactivity,weproclaim 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 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. Insofar 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. Tribunal for long, whether these wars 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 utilize the procedure of the pacific settlement which a state has bound itself to observe. There was, as a master 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. These 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 of 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 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 another State;"(4) naval blockade of the coasts or ports of another State;"(5) provision of support to armed bands formed in its territory of all assistance or protection."
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. lems 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 irresistably in every detail the premeditated onslaught by Germany on the territorial integrity and political independence of so many sovereign States. 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, 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 war-like 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. ament 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 the 21st of 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 these 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 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 expedient. These defendants are charged, too, with breaches of the less formal assurances which in accordance with diplomatic usage Germany gave to neighboring States. You will hear the importance which Hitler himself publicly--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 recognized 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 civilized 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. Nazi Government, individually and collectively comported themselves in these matters.
On the 1st of 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 a war which was to bring down so many of the pillars of our civilization.
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 the 16th of 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 the 26th of January 1934 the German and Polish Governments had signed a ten year Pact of Nonaggression. 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 in 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:
"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, publicly as though it were a corner-stone of his foreign policy. By entering into it he persuaded many people that his intentions were genuinely pacific, for the re-emergence of an new Poland and independent Poland after the war had cost Germany much territory and had separated East Prussia from the Reich; and 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 the people were led to think. We shall have occasion enough to see how little truth these pacific professions in fact contained. 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 remilitarisation of the Rhineland, and all these other necessary preparatory measures for future aggression which my American colleagues have already so admirably put before the Tribunal. into a false sense of security. Not only Hitler, but the Defendant Goering and the Defendant Ribbentrop made statements approbating the non-agression *act. 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 **r 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."
And so it went on: abroad, protestations of pacific intentions; at home, "guns before butter." 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--June 29, 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 favorable opportunities should they occur."
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. a possible war in the mobilization period of 1937-1930. It is evidence at least for this, that the leaders of the German Armed Forces had in mind to use the military strength which they were building up for aggressive purposes. "No reason", they say, "to anticipate attack from any side...there is a lack of desire for war." Yet they prepare to "exploit militarily favorable opportunities." aggression Commander in Chief of the Army, C**ri**, Commander in Chief dence.
I refer to them now only to emphasize those passages ive war.
You will remember that the burden of Hitler's territory in Europe.
Austria and Czechoslovakia were specifically envisaged.
But Hitler realized that the precess He was prepared to take the risk.
You remember the passage:
"The history of all times: Roman Empire, British Empire by breaking resistance and takeing risks.
Even setbacks are unavoidable:
neither formerly nor today has space been found without an owner.
The attacker always comes up against the proprietor.
The question for Germany is where the great value in Hitler's eyes was that of keeping Poland quiet until That view is confirmed by the events which followed.
At the OKW.
Its first fruits were the bullying of Schuschnigg absorption of Austria in march.
Thereafter, the Green Plan my American colleagues have already dealt.
But it is obvious against Poland.
And it is, therefore, perhaps not surprising against Czechoslovakia herself -- you remember, "I give you my word of honour," the Defendant Goering said.
Just as that is not surprising, so also it is not perhaps surprising that continued assurances should have been given during 1938 to Poland in order to keep that country from interfering with the Nazi aggression on Poland's neighbors. Austria, Hitler, referring to the fourth anniversary of the Polish Pact, permitted himself to say this to the Reichstag -- and I quote: ". . . and so a way to a friendly understanding has been successfully paved, an understanding which beginning with Danzig has today succeeded in finally taking the poison out of the relations between Germany and Poland and transforming them into a sincere friendly co-operation. Relying on her friendships, Germany will not leave a stone unturned to save that ideal which provides the foundation for the task ahead of us - Peace." Hitler's speech in the Sportpalast at Berlin on the 26th of September, 1938. He then said: "The most difficult problem with which I was confronted was that of our relations with Poland. There was a danger that Poles and Germans would regard each other as hereditary enemies. I wanted to prevent this. I know well enough that I should not have been successful if Poland had had a democratic constitution. For these democracies which indulge in phrases about peace are the most bloodthirsty war agitators. In Poland there ruled no democracy, but a man: and with him I succeeded, in precisely twelve months, in coming to an agreement which, for ten years in the first instance, entirely removed the danger of a conflict. We are all convinced that this agreement will bring lasting pacification. We realize that here are two peoples which must live together and neither of which can do away with the other.
A people of 33 millions will always strive for an outlet to the sea. A way for understanding then had to be found, and it will be further extended.
Certainly things were hard in this area. But the main fact is that the two Governments, and all reasonable and clear-sighted persons among the two peoples within the two countries, possess the firm will and determination to improve their relations. It was a real work of peace, of more worth than all the chattering in the League of Nations Palace at Geneva." newed flattery of Poland preceded the projected annexation of Czechoslovakia The realities behind these outward expressions of goodwill are clearly revealed in the documents relating to the Fall Gruen, which are already before the Tribunal. They show Hitler as fully aware that there was a risk of Poland, England, and France being involved in war to prevent the German annexation of Czechoslovakia, and that this risk, although it was realized, was also accepted. On the 25 August of 1938 top secret orders to the German Air Force in regard to the operations to be conducted against England and France, if they intervened, pointed out that, as the Franco-Czechoslovak Treaty provided for assistance only in the event of an "unprovoked" attack, it would take a day or two for France and England, and I suppose the lawyers to decide whether legally the attack had been unprovoked or not, and subsequently, a blitzkrieg accomplishing its aims before there could be any effective intervention by France or England was the object to be aimed at. issued, and to it there was attached a map on which the Baltic States, Hungary, Czechoslovakia, and Poland were all shown as part of Germany, and preparations for expanding the Air Force, and I quote, "as the Reich grows in area", as well as dispositions for a two-front war against France and Russia were discussed. And on the following day Von Ribbentrop was being minuted about the reaction of Poland towards the Czechoslovak problem. I quote: "The fact that after the liquidation of the Czech question it will be generally assumed that Poland will be next in turn" is reconized, but it stated, "The later this assumption sinks in, the better." the Tribunal to remind itself of what the evidence of documents and historical facts shows up to that day. It has made undeniable both the fact of Nazi aggressiveness and of active and actual aggression.
Not only does that conference of 1937 show Hitler and his associates deliberately considering the acquisition of Austria and Czechoslovakia, if necessary by war, but the first of the operations had been carried through in March of 1938, and a large part of the second, under threat of war, a threat as we now see which was much more than a bluff - a threat of actual and real war, although without the actual need for its initiation, secured, as I said, a large part of the second objective in September of 1938. And more ominous still, Hitler had revealed his adherence to the old doctrines of "Mein Kampf" long regarded as the bible of the Nazi Party we shall draw attention in certain particular passages. Hitler is indicating quite clearly to not only his associates, but indeed to the world at this time, that he is in pursuit of "Lebensraum" and that he means to secure it by threat of force, or if threat of force fails, by actual force - by aggressive war. the lack of preparedness, the patience, the cowardice - call it what you will - of the Democratic Powers, but after Munich the question which filled the minds of all thinking people with acute anxiety was "where will this thing end? Is Hitler now satisfied as he declared himself to be? or is his pursuit of lebensraum going to lead to future aggressions, even if he has to embark on open, aggressive war to secure it?" that the answer to these questions was to be given. So far, up to the time of the Munich Agreement, no direct and immediate threat to Poland had been made. The two documents from which I have just quoted, show of course, that high officers of the Defendant Goering's Air Staff had already re the extension of the Reich and, it would seem, the destruction and absorption of Poland, as a foregone conclusion. They were already anticipating, indeed, the last stage of Hitler's policy as expounded in "Mein Kampf" - war to destroy France and to secure lebensraum in Russia. And the writer of the Minute to Ribbentrop already took it for granted that, after Czechoslovakia, Poland would be attacked. But more impressive than these two documents is the fact that, as I have said, at the conference of November 5 of 1937 war with Poland, if she should dare to prevent German aggression against Czechoslovakia, had been quite coolly and calmly contemplated, and the Nazi leaders were ready to take the risk.
So also had the risk of war with England and France under the same circumstances been consid ered and accepted. As I indicated, such a war would, of course, have been aggressive war on Germany's part, and they were contemplating aggressive warfare to force one state to take up arms to defend another state against aggression, in other words, to fulfill its treaty obligations to initiate aggressive warfare against the first state. But in spite of thos plans, in spite of these intentions behind the scenes, it remains true that until Munich the decision for direct attack upon Poland and her destruction by aggressive war had apparently not yet been taken by Hitler and his associates. It is to the transition from the intention and preparation of initiating aggressive war evident in regard to Czechoslovakia to the actual initiation and waging of aggressive war against Poland that I now pass. That transition occupies the eleven months from October 1 of 1938 to the actual attack on Poland on the 1st of September 1939. leaders had occupied the remainder of Czechoslovakia, which by that agreement they had indicated their willingness to guarantee. On the 14th March 1939 the aged and infirm president of the "Rump" of Czechoslovakia Hacha and his foreign minister were summoned to Berlin. At a meeting held between one o'clock and two-fifteen in the small hours of the 15th of March in the presence of Hitler, of the defendants Ribbentrop, Goering and Keitel, they were bullied and threatened and even bluntly told that Hitler had issued the orders for the German troops to move into Czechoslovakia and for the incorporation of Czechoslovakia into the German Reich. would be crushed "by force of arms with all available means", and it was thus that the Protector age of Bohemia and Moravia was set up and that Slovakia was turned into a German satellite, though nominally an independant sate. By their own unilateral action, on pretexts which had no shadow of validity, without discussion with the governments of any other country, without mediation, and in direct contradiction of the sense and spirit of the Munich agreement, the Germans acquired for themselves that for which they had been planning in September of the previous year, and indeed much earlier, but which at that time they had felt themselves unable completely to secure without too patent an exhibition of their aggressive intentions.
Aggression achieved whetted the appetite for aggression to come. There were protests. England and France sent diplomatic notes. Of course, there were protests. The Nazis had clearly shown their hand. Hitherto they had concealed from the outside world that their claims went beyond incorporating into theReich persons of German race living in bordering territory. Now for the first time, in defiance of their solemn assurances to the contrary, non-German territory and nonGerman people had been seized. This acquisition of the whole of Czechoslovakia, together with the equally illegal occupation of Memel Land on the 22nd of March 1939 resulted in an immense strengthening of the German positions both politically and strategically, as Hitler had anticipated it would when he discussed the matter at that conference in November of 1937. aggression against Czechoslovakia, they had begun to make demands upon Poland. The Munich settlement achieved on the 25th of October 1938, that is to say, within less than a month of Hitler's reassuring speech about Poland which I have already referred to and within, of course, a month of the Munich agreement, M. Lipski, the Polish Ambassador in Berlin, reported to M. Beck, the Polish foreign minister, that at a luncheon at Berchtesgaden the day before, that is to say, on October 24, 1938, the Defendant Ribbentrop had put forward demands for the reunion of Danzig with the Reich and for the building of an extra-territorial motor road and railway line across Pomorze, that is the province which the Germans called the Corridor. From that moment onwards until the Polish Government had made it plain, as they did during a visit of the Defendant Ribbentrop to Warsaw in January, 1939, that they would not consent to hand over Danzig to German sovereignty negotiations on these German demands continued.