perhaps Jodl's comment in his diary for March that Hitler "is still looking for an excuse" with Raeder's lame explanation that this refers to the text of the diplomatic note which would have to be sent and Ribbentrop's assertion that he was informed of the invasion only a day or so before it was to take place are as conclusive as anything else of the dishonesty of this defense.
Once again all these men in their different spheres were playing their appointed parts. Notably, of course, Rosenberg, who paved the way, action.
Not one of then protested: even Fritzsche's only defense is that cast.
He does not suggest that he protested. Once again, a completely ruthless And so it went on:
Yugoslavia, her fate settled before the war, Greece, and then Soviet Russia.
The German Soviet Pact of the 23rd August 1939 paved the way.
Complete worhtlessness of a Ribbentrop signature is made clear by Hitler's memorandum six weeks later, where he remarked:
"The trifling years."
German hope of overcoming the resistance o f Great Britain -then and for man months holding the fort of freedom and democracy alone a against an enemynever more powerful than at that time- ere vain, and so the first directive was i ssued for an attack in aonther direction this time --against Soviet Russia. It is indeed true -and it is interesting- that on this occasion a number of the Defendants did make some objection. Little Norway might be violated without protest : There was no danger there. There was happy acquiescence in the rape of the gallant Netherlands and of Belgium. But here was an enem which might perhaps strike fear in the heart of the bully. The Defendants objected, of course, if at all on purely military grounds, although Raeder does say that he was influenced by the moral wrong which breach of the German Soviet treaty would involve. It is for you to say. Those moral scruples which ought so properly to have manifested themselves on countless other occasions are only previously recorded when one of his officers wishe to marry a lady of doubtful reputation. The truth is that some of these men were beginning to become apprehensive. Great Britain's resistance had alrea dy begun to make them think. Was Atler now taking on another enemy whom he could not defeat ? Once the dicision was taken, however, everyone of the set to work to play his part with his usual disregard for all lows of morality or even decency. How many thousands of innocent, inoffensive men, women and children, sleepin in their beds in the happy belief that their Country was and would remain at peace, were suddenly blown into eternity by death dropped on them without warning from the skies ? In what respect does the guilt of any one of these men differ from the common murdered creeping stealthily to do his victims to death in order that he may rob them of their belongings ? plan. The attack must be "blitzartig schnell" -without warning : With the speed of lightning : Austria, Czechoslovakia; Poland; -Raeder repeating Keitel's directive for "heavy blows" struck by surprise". Denmark, Norway, Belgium, Holland, Russia.
As Hitler had said in the presence of a number of these men :
"Considerations of right or wrong or treaties do not enter into the matter." and in Municipal law, only where the war itself is legal. But where a war is illegal, as a war started not only in breach of the Pact of Paris but wit out any sort of warning or declaration clearly is, there is nothing to justify the killing, and these murders are not to be distinguished from those of any other lawless robber bands. their development. Everyone of these men acquiesced in this technique, knowing full well what it must represent in terms of human life. How can anyone of them now say he was not a party to common murder in its most ruthl form ? the condemnation of these men, but with their crime against Peace. Let me say something about the legal aspect of this matter, for it is one to the firm establishment of which His Modesty Government the United Kingdom, and indeed all the prosecutors here attach great importance.
The distinguished speech for the defence was free of ambiguity. The effect was that though the Kellogg-Briand Pact and the other international declarations and treaties rendered aggressive war illegal, they did not make it criminal. In support of this contention it was argued that they could no have done so because any such attempt to make aggressive war a crime would b contrary to the sovereignty of states, and that, in any event, the entire system of prohibition of war had collapsed before the outbreak of the Second World War and therefore ceased to be law. It was further argued that these treaties were not taken seriously by numerous jurists and journalists whose opinions were cited and were not really entitled to be treated seriously because they contained no provision for coping with the problem of the peaceful change of the status quo. "With regard to the Pact of Paris itself, counsel contended that there could be no question of a criminal including Germany, the right to determine whether it was entitled to go to war in self-defence.
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, uncontrolle and final will -that of the Dictator Fuehrer. 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 more probable, is it a political appeal to some outside audience which ma be more easily impressed by the complaint that the accused are being made the object of post factum legislation ? 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 particula the General Treaty for the Renunciation of War. 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 mediaeval 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 civilised 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 defence 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 cynici any case that Treaty -and the other Treaties and assurances which followed i 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 State 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 design 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 these 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 hrs crime ? and Italian aggressions, the Council and the Assembly of the League of Nation 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 policemen, no of the law.
But not content with the remarkable suggestion that by their very aggressions, because of the reulctance 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 instroduced some question of self-defense.
They have not indeed, really suggested that these wars were defensive wars. Not even Goebbels in his wildest extravagancees 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 suumission, a wholly fallacious argument. It is true that in the declarations preceding and accompanying the signature and the ratification of the Pact of Paris, self-defense 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. troyed the purpose and the legal value of the Treaty? 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 f o 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 is a nullity if it expressly provides for the right of self-defense, and I invite the Tribunal emphatically to consign that paradoy 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 selfdefense 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 "self-defense" 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 tto 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 self-defense, whether expressly reserved or implied, does not impair the capacity of a treaty to create legal obligations against war. 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 mere 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 judgement of this Tribunal will discourage, and discourage with appropriate finality, any future 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 notion of criminal responsibility is incompatible with the idea of national sovereignty.
At state may, and Professor Jahrreis conceded, commit an offense against International Law, but he contends that to make it criminally responsible and punishable would be to deny the soveriegnty of the State. the German Government overran most of the States of Europe, who trampled brutally upon their sovereign indenpendence, and who, with boastful and swaggering cynicism, made the sovereignty of the Conquered States subservient to the new conception of the "Grossraumsordnung" - 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 not rule of international law which they can call in aid to this regard. 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 no substance at all in the view that international law rules out the criminal responsibility of States and that, since, becuase of their sovereignty, States cannot be coerced, all their acts are legal. Legal purists may content that nothing is law which is not imposed from above by a sovereign 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. war, there was not super sovereign body which at the same time imposed international laws and enforced them. But, at least in the international 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 the se 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. Justice, it became a stock argument to rely on State sovereignty in support of the opinion that, as States are sovereugn, treaty obligations entered into by them ought to be at least interpreted restrictively. The Court consistently discouraged that view. In its very first judgement - a judgement given against Germany in tic 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 agreement is an attribute of State sovereignty. As a philosophical proposition the right to contract and the right to freedom of action to, I suppose, present an eternal antimony. But just as individuals secure freedom by adherence to 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. 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 subsctance in the complaint that the Charter is a piece of post factum legislation either in delclaring wars of aggression to be criminal, or in assuming that the State is not immune from criminal responsibility. 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.
The then argument is then 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. 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 diminsh the value which these proceedings will have on the subsequent development of international law. Now it is true that there is a series of decision 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 in so far as the recognition of sovereignty in itself promotes international relations. They really afford no authority for the proposition that those who constitute the organs, those who are behind the State, are entitled to rely on the metaphysical entity which they create and control when, by their directions that State sets out to destroy that very comity on which the rules of international law depends. 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 these orders be immune because in the fulfilment 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. ments in Hitler's hands, ordered to do that which reluctantly, or so they say, they did.
The Defence 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? 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 night have been dismissed, perhaps imprisoned, had they disobeyed the orders which 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. 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. with war crimes and what we have described as in fact they are, as crimes against humanity. 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 preexisting rules of International Law and clearly within the legitimate jurisdiction either of a National or of an 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 non-combatants, 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 motice. These crimes were many and manifold. It is not useful to catalogue them here. They vary most considerably in the numbers of victims. There are the fifty 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 rigours 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, six millions of them for no better reason than that they were of Jewish race of faith. 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. None the less, 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, unorganised individual acts. We are dealing here with something entirely different. With systematic, wholesale, consistent action, taken as a matter of deliverate 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 firmly established and least controversial of all the rules of warfare, namely, that noncombatants must not be made the direct object of hostile operations. What a mockery the Germans sought to make of the IV Hague Convention on the laws and customs of war - Convention which merely formulated what was already a fundamental rule:
"Family honour and rights, the lives of persons and private be respected."
here in the Dock, in the territory occupied by its military forces, whose leaders are here in the dock, of millions of civilians, whether it was done in pursuance of a policy of racial extermination, as the result of or in connection with the deportation of slave labour, in consequence of the desire to do away with the intellectual and political leaders of the countries which had been occupied or was part of the general application terror through collective reprisals upon the innocent population and upon hostages -- this murdering of millions of non-combatants is a war crime.
It may indeed be a crime again humanity as well. Both imagination and intellect, shattered by the horror of these things, recoil from putting the greatest crime in history into the cold formula already described in the text books as a war crime. Yet it is important to remember that that is what these crimes were. Irrespective, in the main of where they were committed or of the race or nationality of the victims, these were offences upon the civilian population, contrary to the laws of war in general and to those of belligerent occupation in particular. The truth is that murder, wholesale, planned and systematic became part and parcel of a firmly entrenched and apparently secure belligerent occupation That that was a war crime no one has sought to dispute. classes of action with which also these men stand charged. Deportation to Germany for forced labour; the crimes at sea in connection with submarine warfare, and the shooting of Commandos. And let me shortly examine these matters. course, a crime both according to international custom and to conventional international law as expressed in the Hague Convention. Article 46 of Hague Convention No. IV enjoins the occupying powers to respect "family honour and rights" and "the lives of persons". Article 52 of the same Convention lays down that "services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation" and that "they shall be in proportion to the resources of the country and of such a nature as not to involve the population in the obligation of taking part in the operations of war against the country." With these simple and categorical provisions we have to contrast the staggering dimensions of the operation which the defendant Sauckel directed and in which other defendants participated, the ruthlessness with which peaceful citizens were torn from their families, surroun dings and employment, the manner in which they were transported, the treatme which they received on arrival, the conditions in which they worked and died in thousands and tons of thousands, and the kind of work which they were compelled to perform as direct helpers in the production of arms, munitions and other instruments of war against their own country, and against their own people.
How can all that be reconciled with the law? Nations had in some way become obsolete in the face of the modern development of totalitarian war requiring the vastest possible use and exploitation of the material and labor resources of the occupied territory. I confess I do not understand how the extent of the activities a belligerent imposes on himself, the size of the effort he needs to make in order to avoid defeat, can enlarge his rights against peaceful non-combatants or enable him to brush aside the rules of war. We cannot make these post factum repeals of accepted International Law in favour of the law breakers. conditions as a justificationfor their crimes at sea - crimes which cost the lives of thirty thousand British seamen alone. We need not base our case here solely on the mere violation of the customary rules of warfare as embodied in the London Protocols of 1930 and 1936, fully subscribed to as they were by Germany and prohibiting sinking without warning, or even with warning if proper provision had not been made for the safety of passengers and crew. We need not concern ourselves with theniceties of argument whether the practice of arming merchantmen affects the position. the sinking of neutral shipping was legalized by the process of making a paper order excluding such ships not from some definite war zone over which Germany exercised control but from vast areas of the seven seas. For there is one matter at least about which nobody questions the law. be rescued, thatsteps should be taken to prevent the shipwrecked from surviving, for the use of such weapons that there could be no question of survivors, you will have no doubt that what was done was contrary to law. It is no answer that to allow non-combatants to survive entailed greater risk to the attackers. The murderer is not excused because he says that it was necessary to kill thevictim he had violated lest he should subsequently identify him.
So also in regard to the orders for the execution of Commandos. New methods of warfare, new forms of attack, do not in themselves repeal existing established rules of law. The sanctity of the life of the soldier in uniform, who surrenders after the accomplishment of his mission and who committed no war crimeprior to his capture, is and I ask you to say, must remain an absolute principle of International Law. Those who, for whatever motive, trample upon it in disregard of law, in disregard of humanity, in disregard of chivalry, must pay the penalty when at last the law is vindicated. war crimes charged in the Indictment. For that these matters, various in their kind or method, were crimes under established law is not in doubt. The Tribunal will be concerned only to affirm the law and to decide upon the measure of these Prisoners involvment in its breach. Count of the Indictment, the crimes against humanity. It is convenient, I thin, to deal with these matters together for, in so far as they were committed during the war, to some extent they overlap and in any case they are interconnected. The war crimes were in their very enormity crimes against humanity. The crimes against humanity were writ larger still. Moreover, the crimes against humanity which this Tribunal has jurisdiction to deal are limited to this extent - they must be crimes the commission of which was in some way connected with, in anticipation of or in furtherance of the crimes against the peace or the war crimes stricto sensu with which the Defendants are indicted. That is the qualification which Article 6 (c) of the Charter introduces. The considerations which apply here are, however, different to those affecting the other classes of offence, the crime against Peace or the ordinary war crime. You have to be satisfied not only that what was done was a crime against humanity but also thatitwas not purely a domestic matter but that directly or indirectly it was associated with crimes against other nations or other nationals, in that, for instance, it was undertaken in order to strengthen the Nazi Party in carrying out its policy of domination by aggression, or to remove elements such as political opponents, the aged, the Jews, the existence of which would have hindered the carrying out of the total war policy.
as I have said simply one facet of the Herrenvolk doctrine. In "Mein Kampf", Hitler had said that themost decisive factor in the German collapse in 1918 was "the failure to recognize ..... the racial problem and the Jewish menace." The attack on the Jews was at once a secret weapon -- an enduring fifth column weapon -- to split and weaken the democracies sad a device for unifying the German people for war. Himmler made it clear in his speech on October 4, 1943, that the treatment meted out to German Jews was closely connected with the war policy. He said:
"For we know how difficult we should have made it for ourselves if .... we still had Jews today in every town as secret saboteurs, agitators and trouble mongers." humanity and not a war crime, is one which we indict because of its association with the crime against the peace. That it is of course a very important qualification, and is not always appreciated by these who have questioned the exercise of this jurisdiction. But subject to that qualification we have thought it right to deal with matters which the criminal law of all countries would normally stigmatise as crimes. Murder, extermination, enslavement, persecution on political, racial or economic grounds. These things done against belligerent nationals, or for that matter, done against German nationals in belligerent occupied territory would be ordinary war crimes theprosecution of which would form no novelty. Done against others they would be crimes against municipal law except in so far asGerman law, departing from all the canons of civilized procedure, may have authorized them to be done by the State or by persons acting on behalf of the State. Although so to do does not in any way place those Defendants in greater jeopardy than they would otherwise be, thenations adhering to the Charter of this Tribunal have felt it proper and necessary in the interest of civilization to say that those things even if done in accordance with the laws of the German State, as created and ruled by these men and their ringleader, were, when committed with the intention of affecting the international community - that is in connection with the other crimes charged - not mere matters of domestic concern but crimes against the law of Nations.
I do not minimise the significance for the future of the political and jurisprudential doctrine which is here implied. Normally international law concedes that it is forthe State to decide how it shall treat its own nationals; it is a matter of domestic jurisdiction. And although the Social and Economic Council of the United Nations Organization is seeking to formulate a charter of the Rights of Man the Convenant of the League of Nations and the Charter of the United Nations Organization does recognize that general position. Yet International Law has in thepast made some claim that there is a limit to the omnipotence of the State and that the individual human being, the ultimate unit of all law, is not disentitled to theprotection of mankind whom theState tramples upon his rights in a manner which outrages the conscience of mankind. Grotius, the founder of International Law had some notion of thatprinciple when - at a time when thedistinction between the just and unjust war was more clearly accepted than was the case in the 19th century - he described as just a war undertaken for the purpose of defending the subjects of a foreign state from injuries inflicted by their ruler. He affirmed, with reference to atrocities committed by tyrants against their subjects, that intervention is justified for "the right of social connection is not cut off in such a case." The same idea was expressed by John Westlake, the most distinguished of British International Lawyers when he said:
"It is idle to argue in such cases that the duty of neighboring peoples is to look quietly on.
Laws are which are beyond endurance."
The same view was acted upon by the European Powers which in time past intervened in order to protect the Christian subjedts of Turkey against cruel persecution. The fact is that the right of humanitarian intervention by war is not a novelty in International Law - can intervention by judicial process then be illegal?