Apologists for defeated nations are sometimes able to play upon the sympathy and magnanimity of their victors so that the true facts, never authoritatively recorded, become obscured and forgotten. One has only to recall the circumstances following upon the last World War to see the dangers to which, in the absence of any authoritative judicial pronouncement a tolerant or a credulous people may be exposed. With the passage of time the former tend to discount, perhaps because of their very horror, the stories of aggression and atrocity that may be handed down: and the latter, the credulous, misled by perhaps fanatical and perhaps dishonest propagandists, come to believe that it was not they but their opponents who were guilty of that they would themselves condemn. And so we believe that this Tribunal, acting, as we know it will act notwithstanding its appointment by the victorious powers, acting with complete and judicial objectivity, will provide a contemporary touchstone and an authoritative and impartial record to which future historians may turn for truth and future politicians for warning. From this record shall future generations know not only what our generation suffered but also that our suffering was the result of crimes, crimes against the laws of peoples which the peoples of the world upheld and will continue in the future to uphold, to uphold by international co-operation, not based merely on military alliances but grounded, and firmly grounded in the rule of law. novel, is there anything new in the principles which by this prosecution we seek to enforce. Ineffective though, alas, the sanctions proved themselves to be, the Nations of the world had, as it will be my purpose in addressing the Tribunal to show, had sought to make aggressive war an international crime, and although previous tradition has sought to punish States rather than individuals, it is both logical and right that if the act of waging war is itself an offence against International Law these individuals who shared personal responsibility for bringing such wars about should answer personally for the course into which they led their states. Again, individual war crimes have long been recognised by International Law as triable by the Courts of those States whose nationals have been outraged at least so long as a state of war persists.
It would be illogical in the extreme if those who, although they may not with their own hands have committed individual crimes, were responsible for systematic breaches of the laws of war affecting the nationals of many States should escape for that reason. So also in regard to crimes against humanity. The right of humanitarian intervention on behalf of the rights of man trampled upon by a State in a manner shocking the sense of mankind has long been considered to form part of the law of Nations. Here, too, the Charter merely develops a pre-existing principle. If murder, raping and robbery are indictable under the ordinary municipal laws of our countries shall those who differ from the common criminal only by the extent and systematic nature of their offences escape accusation? matters this Tribunal Will apply to individuals not the law of the victor but the accepted principles of international usage in a way which will, if anything can, promote and fortify the rule of International Law and safeguard the future peace and security of this war-stricken world. British Government and of the other States associated on this Prosecution to present the case on Count 2 of the Indictment and to show how these Defendants in conspiracy with each other and with persons now now before this Tribunal planned and waged a war of aggression in breach of the Treaty obligations by which, under International Law, Germany, as other States, had sought to make such wars impossible.
That task falls into two parts. The first is to demonstrate the nature and the basis of the Crime against Peace which is constituted under the Charter of this Tribunal, by waging wars of aggression and in violation of Treaties; and the second is to establish beyond all possibility of doubt that such wars were waged by these Defendants.
As to the first, it would no doubt be sufficient just to say this. It is not incumbent upon the Prosecution to prove that wars of aggression and wars in violation of International Treaties are, or ought to be, International Crimes. The Charter of this Tribunal has prescribed that they are crimes and that the Charter is the Statute and the law of this Court. Yet, though that is the clear and mandatory law governing the jurisdiction of this Tribunal, we feel that we should not be fully discharging our task in the abiding interest of international justice and morality unless we showed to the Tribunal, and indeed to the world, the position of this provision of the Charter against the whole perspective of International Law.
For just as in the experience of our Country, some old English Statutes were merely declaratory of the Common Law, so this Charter substantially declares and creates a jurisdiction in respect of what was already the Laws of Nations.
lest there be some, now or hereafter, who might allow their judgment to be warped by plausible catchwords or by an uninformed and distorted sense of justice towards these Defendants. It is not difficult to be misled by such phrases as that resort to war in the past has not been a crime: that the power to resort to war is one of the prerogatives of the sovereign State; even that this Charter in constituting wars doctrines of National Socialist jurisprudence, namely post factum legislation. But the Charter is in this respect reminiscent of Bills of Attainder - and that these proceedings are no more than a measure of vengeance, subtly concealed in the garb of judicial proceedings which the Victor wreaks upon the Vanquished. These things may sound plausible - yet they are not true. It is, indeed, not necessary to doubt that some aspects of the Charter bear upon them the imprint of significant and salutary novelty. But it is our submission and our conviction, which we affirm before this Tribunal and the world, that fundamentally the provision of the Charter which constitutes wars, such wars as these Defendants joined in waging and in planning a crime, is not in any way an innovation. This provision of the Charter does no more than constitute a competent jurisdiction for the punishment of what not only the enlightened conscience of mankind but the Law of Nations itself had constituted an International Crime before this Tribunal was established and this Charter became part of the public law of the world.
So first let this be said. Whilst it may be true that there is no body of international rules amounting to law in the Austinian sense of a rule imposed by a sovereign upon a subject obliged to obey it under some definite sanction, yet for fifty years or more the people of the world, striving perhaps after that ideal of which the poet speaks:
"When the War Drums throb no longer The Federation of the World" the people of the world have sought to create an operative system of rules based upon the consent of nations to stabilise international relations, to avoid war taking place at all and to mitigate the results of such wars as took place.
The first such treaty was of course the Hague Convention of 1899 for the Pacific Settlement of International Disputes. That Convention was, indeed, of little more than precatory effect and we attach no weight to it for the purposes of this case, but it did establish agreement that in the event of serious disputes arising between the signatory powers, they would as far as possible submit to mediation. That Convention was followed in 1907 by another Convention reaffirming and slightly strengthening what had previously been agreed. These early conventions fell indeed very far short of outlawing war or of creating any binding obligation to arbitrate. I shall certainly not ask the Tribunal to say any crime was committed by disregarding those Conventions. accepted the general principle that if at all possible war should be resorted to only if mediation failed. I an not relying on them save to show the historical development of the law, and it is unnecessary, therefore, to argue about their effect for the place which they once occupied has been taken by far more effective instruments. I mention them now merely for this, that they were the first steps towards that body of rules of law which we are seeking here to enforce. particular States, agreements which sought to preserve the neutrality of individual countries, as, for instance, that of Belgium, but these agreements were inadequate, in the absence of any real will to comply with them, to prevent the First World War in 1914.
of Europe, not excluding Germany, and of other parts of the world, came to the conclusion that in the interests of all alike a permanent organization of the Nations should be established to maintain the peace. And so the Treaty of Versailles was prefaced by the Covenant of the League of Nations. the various provisions of the Treaty of Versailles. They have been criticized, some of them perhaps justly criticized, and they were certainly made the subject of much bellicose propaganda in Germany. But it is unnecessary to inquire into the merits of the matter, for however unjust one might for this purpose assume the provisions of the Treaty of Versailles to have been, they contained no kind of excuse for the waging of war to secure an alteration in their terms. Not only was it a settlement by agreement of all the difficult territorial questions which had been left outstanding by the war itself, but it established the League of Nations which, if it had been loyally supported, could so well have resolved those international differences which might otherwise have led, as indeed they eventually did lead, to war. It set up in the Council of the League, in the Assembly and in the Permanent Court of International Justice, a machine not only for the peaceful settlement of international disputes, but also for the frank ventilation of all international questions by open and free discussion. At that time, in these years after the last war, the hopes of the world stood high. Millions of men in all countries -- perhaps even in Germany itself -- had laid down their lives in what they hoped and believed was a war to end war. Germany herself entered the League of Nations and was given a permanent seat on the Council, and on that Council as in the Assembly of the League, German Governments which preceded that of the Defendant Von Papen in 1932 played their full part.
In the years from 1919 to that time in 1932, despite some comparatively minor incidents in the heated atmosphere which followed the end of the war, the peaceful operation of the League continued. Nor was it only the operation of the League which gave ground, and good ground, for hope that at long last the rule of law would replace that of anarchy in the international field.
aggression an international Crime. These are no new terms invented by the Victors to embody in this Charter. They have figured, and they have figured prominently, in numerous treaties, in governmental pronouncements, and in the declarations of Statesmen in the period preceding the Second World War. In treaties concluded between the Union of Soviet Socialist Republics and other states, such as Persia in 1927, France in 1935, China in 1937, the contracting parties undertook to refrain from any act of aggression whatever against the other party. In 1933, the Soviet Union became a party to a large number of treaties containing a detailed definition of aggression, and the sane definition appeared in the same year in the authoritative Report of the Committee on Questions of Security set up in connection with the Conference for the Reduction and Limitation of Armaments. But at this time States were going beyond committments to refrain from wars of aggression and to assist States which were victims of aggression. They were condeming aggression in unmistakable terms. In the anti-War Treaty of Non-Aggression and Conciliation which was signed on the 10th of October 1933, a number of American States subsequently joined by practically all the States of the American Continent and a number of European countries as well, the Contracting Parties solemnly declared that "they condemn wars of aggression in their mutual relations or in those of other States". And that treaty was fully incorporated into the Buenos Aires Convention of December 1936, signed and ratified by a large number of American countries, including, of course, the United States. And previously, in 1928, the Sixth Pan-American Conference had adopted a resolution declaring that as "war of aggression constitutes a crime against the human species...all aggression is illicit and as such is declared prohibited." A year earlier, as long ago as September 1927, the Assembly of the League of Nations adopted a resolution affirming the conviction that "a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime" and going on to declare that "all wars of aggression are, and shall always be, prohibited". The first Article of the Draft Treaty for Mutual Assistance of 1923 read in these terms:
"The High Contracting Parties, affirming that aggressive war is an international crime, undertake the solemn engagement not to make themselves guilty of this crime against any other nation." In the Preamble to the Geneva Protocol of 1924, it was stated that "offensive warfare constitutes an infraction of solidarity and an international crime." These instruments that I have just last mentioned remained, it is true, unratified for various reasons, but they are not without significance or value. aggression, testified to the fact that with the establishment of the League of Nations, with the legal developments which followed it, the place of war in International Law had undergone a profound change. War was ceasing to be the unrestricted prerogative of sovereign states. The Covenant of the League of Nations did not totally abolish the right of war. It left, perhaps, certain gaps which were probably larger in theory than in practice. But in effect it surrounded the right of war by procedural and substantive checks and delays, which if the Covenant had been faithfully observed, would have amounted to an elimination of war, not only between Members of the League, but also, by reason of certain provisions of the Covenant in the relations of non-Members as Well. And thus, the Covenant of the League restored the position as it had existed at the dawn of International Law, at the time when Grotius was laying down the foundations of the modern law of nations and established the distinction, a distinction accompanied by profound legal consequences in the sphere, for instance of neutrality, between a just war and an unjust war. of the League. The right of war was further circumscribed by a series of treaties, numbering - it is an astonishing figure but it is right nearly a thousand, of arbitration and conciliation embracing practically all the nations of the world. The so-called Optional Clause of Article 36 of the Statute of the Permanent Court of International Justice, the clause which conferred upon the Court compulsory jurisdiction with regard to the most comprehensive categories of disputes, and which constituted in effect by far the most important compulsory treaty of arbitration, compulsory arbitration in the post-war period, was widely signed and ratified.
Germany herself signed it in 1927 and her signature was renewed and renewed, for a period of five years, by the Nazi Government in July of 1933. Significantly, that ratification was not again renewed on the expiration of its five years' validity in March of 1938, not renewed again by Germany. Since 1928 a considerable number of States signed and ratified the General Act for the Pacific Settlement of International Disputes which was designed to fill the gaps left by the Optional Clause and by the existing treaties of arbitration and conciliation. testified to the growing conviction that war was ceasing to be the normal or the legitimate means of settling international disputes. The express condemnation of wars of aggression, which I have already mentioned, supplies the same testimony. But there was, of course, more direct evidence pointing in the same direction. The Treaty of Locarno of the 16th October 1925, to which I shall have occasion to refer presently, and to which Germany was a party, was more than a treaty of arbitration and conciliation in which the parties undertook definite obligations with regard to the Pacific settlement of disputes which might arise between them. It was, subject to clearly specified exceptions of self-defense in certain contingencies, a more general undertaking in which the parties to it agreed that they would in no case attack or invade each other or resort to war against each other.
And that constituted a general renunciation of war, and it was so considered to be in the eyes of international jurists and in the public opinion of the world. The Locarno Treaty was not just another of the great number of arbitration treaties which were being concluded at this time. It was regarded as a kind of cornerstone in the European settlement and in the new legal order in Europe in partial, just and, indeed, generous substitution for the rigors of the Treaty of Versailles. And with that treaty, the term "outlawry of war" left the province of mere pacifist propaganda. It became current in the writings on international law and in the official pronouncements of governments. No one could any longer say, after the Locarno Treaty, no one could any longer associate himself with the plausible assertion that at all events, as between the parties to that treaty, war remained an unrestricted right of sovereign States. the parties to it, it had wider influence in paving the way towards that most fundamental, that truly revolutionary enactment in modern international law, namely, the General Treaty for the Renunciation of War of 27 August 1928, the Pact of Paris, the Kellogg-Briand Pact. That treaty, a most deliberate and carefully prepared piece of international legislation, was binding in 1939 on more than 60 nations, including Germany. It was, and it has remained, the most widely signed and ratified international instrument. It contained no provision for its termination, and it was conceived, as I said, as the cornerstone of any future international order worthy of the name. It is fully part of international law as it stands today, and it has in no way been modified or replaced by the Charter of the United Nations. It is right, in this solemn hour in the history of the world, when the responsible leaders of a State stand accused of a premeditated breach of this great Treaty which was, which remains, a source of hope and of faith for mankind, to set out in detail its two operative Articles and its Preamble. Now I read them to the Tribunal -- first the Preamble, and it starts like this:
"The President of the German Reich" -- and the other States associated -
THE PRESIDENT: Shall we find it among the documents?
SIR HARTLEY SHAWCROSS: It will be put in. I don't think you have it at the moment.
"The President of the German Reich. . . . . . . "Deeply sensible of their solemn duty to promote the welfare of mankind; "Persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated; "Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly progress, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty; "Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavour and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficient provisions, thus uniting civilized nations of the world in a common renunciation of war as an instrument of their national policy;
Then, Article I: "The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another."
And Article II: "The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."
practically the whole civilized world abolished war as a legally permissible means of enforcing the law or of changing it. The right of war was no longer of the essence of sovereignty. Whatever the position may have been at the time of the Hague Convention, whatever the position may have been in 1914, whatever it may have been in 1918 -and it is not necessary to discuss it -- no International lawyer of repute, no responsible Statesman, no soldier concerned with the legal use of Armed Forces, no economist or industrialist concerned in his country's war economy could doubt that with the Pact of Paris on the Statute Book, a war of aggression was contrary to International Law.
Nor have the repeated violations of the Pact by the Axis Powers in any way affected its validity. Let this be firmly and clearly stated. Those very breaches, except perhaps to the cynic and the malevolent, have added to the strength of the Treaty; they provoked the sustained wrath of peoples angered by the contemptuous disregard of this great Statute and determined to vindicate its provisions. The Pact, of Paris is the Law of Nations. This Tribunal will declare the world most enforce it. instrument likely to become a kind of signpost for the guilty. It didn't enable Germany to go to war against Poland and yet rely, as against Great Britain and France, on any immunity from warlike action because of the very provisions of the Pact. For the Pact laid down expressly in its Preamble that no State guilty of a violation of its precisions might invoke its benefits. And when, on the outbreak of the Second World War, Great'Britain and France communicated to the League of Nations that a state of war existed between them and Germany as from the 3rd of September, 1939, they declared that by committing an act of aggression against Poland, Germany had violated her obligations assumed not only towards Poland but also towards the other signatories of the Pact. A violation of the Pact in relation to one signatory was an attack upon all the other signatories and they were entitled to treat it as such. I emphasize that point lest any of these defendants should seize upon the letter of the Particulars of Count Two of the Indictment and seek to suggest that it was not Germany who initiated war with the United Kingdom and France on 3 September 1939. The declaration of war came from the United Kingdom and from France; the act of war and its commencement came from Germany in violation of the fundamental enactment to which she was a party.
tutional instrument of an international society awakened to the deadly dangers of another Armageddon, didn't remain an isolated effort soon to be forgotten in the turmoil of recurrent international crises. It became, in conjunction with the Covenant of the league of Nations or independently of it, the starting point for a now orientation of governments in matters of peace, war, and neutrality. It is of importance, I think to quote just one or two of the statements which were being made by governments at that time in relation to the effect of that Pact. In 1929, His Majesty's Government in the United Kingdom said in connection with the question of conferring upon the Permanent Court of International Justice jurisdiction with regard to the exercise of belligerent rights in relation to neutral States -- and it illustrates the profound change which was being accepted as having taken place as a result of the Pact of Paris in International Law:
"But the whole situation rests, and international law on the subject has been entirely built up, on the assumption that there is nothing illegitimate in the use of war as an instrument of national policy, and, as a necessary corollary, that the position and rights of neutrals are entirely independent of the circumstances of any war which may be in progress. Before the acceptance of the Covenant, the basis of the law of neutrality was that the rights and obligations of neutrals were identical as regards both belligerents, and were entirely independent of the rights and wrongs of the dispute which had led to the war, or the respective position of the belligerents at the bar of world opinion.
"Now it is precisely this assumption which is no longer valid as regards states which are members of the League of Nations and parties to the Peace Pact. The effect of those instruments, taken together, is to deprive nations of the right to employ war as an instrument of national policy, and to forbid the states which have signed them to give aid or comfort to an offender."
"As between such states, there has been in consequence a fundamental change in the whole question of belligerent and neutral rights. The whole policy of His Majesty's present Government (and, it would appear, of any alternative government) is based upon a determination to comply with their obligations under the Covenant of the League and the Peace Pact. This being so, the situation which we have to envisage in the event of a war in which we were engaged is not one in which the rights and duties of belligerents and neutrals will depend upon the old rules of war and neutrality, but one in which the position of the members of the League will be determined by the Covenant and by the Pact." in his opening speech before this Tribunal to the weighty pronouncement of Mr. Stimson, the the relevant passage in full:
"War between nations was renounced by the signatories of the Briand-Kellogg Pact.
This means that it has become illegal throughout practically the entire world.
It is no longer to be the source and subject of rights.
It is no duct, and the rights of nations revolve.
It is an illegal thing.
Hereafter when two nations engaged in armed conflict of this general treaty law.
We no longer draw a circle about them and treat them with the punctilios of the duelist's code.
Instead we denounce them as law-breakers."
loving peoples of the World will always be grateful. On the lawyer, he said this:
"The Kellogg-Briand Pack of 1928, in which Germany, "The Treaty for the Renunciation of War and the Argen provisions.
In consequency, these treaties destroyed the "It follows that the state which has gone to war in require different handling of affairs.
It derives no right "In flagrant cases of aggression where the facts speak letters.
The intelligent public opinion of the world which the aggressors in "the wars today which is an apporpriate treaties and declarations to which I have referred, illega:
and a crime beyond all uncertainty and doubt. And it is o hibited and stigmatized as criminal.
We have traced the pro instrument of national policy.
What statesman or politician lated the Pact of Paris, was unlawful and outlawed?
What that of a successful outcome of the criminal venture?
What been adduced before this Tribunal?
There are, It's true, same snail-town lawyers who deny the very existence of any International Law; and indeed, as the Austinian test of being imposed by a sovereign.
But the upon quite different juridical foundations.
It depends upon withdrawn by unilateral action.
In the international field to it.
And it is indeed true, and the recognition of its to our future peace -- it is indeed true that, as M. Lit "Absolute Sovereignty and entire liberty of action only be obligations.
Immediately a state accepts international obligations it limits its sovereignty."