Nazi Conspiracy & Aggression [Page 593]
The following address, opening the British presentation of
the case under Count II of the Indictment, was delivered by
Sir Hartley Shawcross, K.C., M.P., British Attorney General
and Chief Prosecutor for the United Kingdom, before the
Tribunal on 4 December 1945.
PART I
On an occasion to which reference has already been made
Hitler, the Leader of the Nazi Conspirators who are now on
trial before you, said in reference to their warlike plans:
"I shall give a propagandist cause for starting the war,
never mind whether it be true or not. The victor shall not
be asked later on whether we tell the truth or not. In
starting and making a war not the right is what matters but
victory -- the strongest has the right." (1014-PS)
The British Empire has twice been victorious in wars which
have been forced upon it within the space of one generation
but it is precisely because we realize that victory is not
enough; that might is not necessarily right; that lasting
peace and the rule of International Law is not to be
achieved by the strong arm alone, that the British Nation is
taking part in this trial. There are those who would perhaps
say that these wretched men should have been dealt with
summarily without trial by "executive action"; that their
personal power for evil broken, they should be swept aside
into oblivion without this elaborate and careful
investigation as the part they played in plunging the world
in war. Vae Victis. Let them pay the penalty of defeat. But
that is not the view of the British Empire or of the British
Government. Not so would the Rule of Law be raised and
strengthened on the international well as the municipal
plane; not so would future generations realize that right is
not always on the side of the big battalions; not so would
the world be made aware that the waging of aggressive war is
not only a dangerous venture but a criminal one. Human
memory is short. 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 the last world war to see
the dangers to which, in the absence of any authoritative
judicial pronouncement a tolerant or a credulous people is
exposed. With the passage of time the former tend to
discount, perhaps because of their very horror, the stories
of aggression and atrocity which may be handed down; the
latter, misled by fanatical and dis-
[Page 594]
honest propagandists, come to believe that it was not they
but their opponents who were guilty of what -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, 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 all generations shall know not
only what our generation suffered but also that our
suffering was the result of crimes against the laws of
peoples which the peoples of the world enforced and will
continue in the future to uphold by international
cooperation, not based merely on military alliances but
firmly grounded in the rule of law.
Nor, though this procedure and this Indictment of
individuals may be 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
to show, 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 offense against
International Law those individuals who shared personal
responsibility for bringing such wars about should answer
personally for the course into which they lead their states.
Again, individual war crimes have long been regarded 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 indeed 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. So also in regard to
crimes against humanity. The right of humanitarian
intervention on behalf of the rights of man trampled upon by
the 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 only from the common criminal by the extent and
systematic nature of their offenses escape accusation ?
It is, as I shall show, the view of the British Government
that in these matters the 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
[Page 595]
the rule of International Law and safeguard the future peace
and security of this war-stricken world.
By agreement between the Chief Prosecutors it is my task on
behalf of the 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 not 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,
under the Charter of this Tribunal, is constituted by waging
wars of aggression and in violation of Treaties. The second
is to establish beyond doubt that such wars were waged by
these Defendants.
As to the first, it would no doubt be sufficient 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 alike of international justice and morality unless
we showed the position of that provision of the Charter
against the whole perspective of International Law. For just
as some old English Statutes were substantially declaratory
of the Common Law, so this Charter substantially declares
and creates a jurisdiction in respect of what was already
the Laws of Nations.
Nor is it unimportant to emphasize that aspect of the matter
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; that the Charter in constituting wars of
aggression a crime has imitated one of the most obnoxious
doctrines of National Socialist jurisprudence, namely post
factum legislation; that 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
[Page 596]
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 conviction, which we affirm before this Tribunal and the
world that fundamentally the provision of the Charter which
constitutes such wars as these Defendants joined in waging
and in planning a crime is not in any way an innovation.
That provision 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 constituted an International Crime before this
Tribunal was established and this Charter became part of the
public law of the world.
The
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Volume
I Chapter IX
Opening Address for the United Kingdom
(Part 1 of 17)