[Page 427]

But then it is argued, even if the State is liable, it is only the State and not the individual who can be made responsible under International Law. That argument is put in several ways. States only, it is said, and not individuals, are the subject of International Law. But there is no such principle of International Law. One need only mention the case of Piracy or Breach of Blockade, or the case of Spies, to see that there are numerous examples of duties being imposed by International Law directly upon individuals. War crimes have always been recognized as bringing individuals within the scope of International Law. In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries. In Germany itself, Article 4 of the Weimar Constitution laid it down that generally recognized rules of International Law must be regarded as an integral part of German Federal Law, and what can it mean in effect, save that the rules of International Law are binding upon individuals? Shall we depart from that principle merely because we are here concerned with the gravest offences 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 offence in this respect.

Then the argument is put in another way. Where the act concerned is an act of State, those who carry it out as the instruments of the State are not personally responsible and they are entitled, it is claimed, to shelter themselves behind the sovereignty of the State. It is not suggested, of course, that this argument has any application to war crimes, and as we submit each of these men is guilty of countless war crimes it might be enough to brush the matter aside as academic. But that course perhaps would diminish the value which these proceedings will have on the subsequent development of International Law. Now it is true that there is a series of decisions in which Courts have affirmed that one State has no authority over another sovereign State or over its head or representative. Those decisions have been based on the precepts of the comity of nations and of peaceful and smooth international intercourse: they do not in truth depend upon any sacrosanctity of foreign sovereignty, except 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 depend. Suppose a State were

[Page 428]

And finally it is said that these wretched men were powerless instruments in Hitler's hands, ordered to do that which, they say, they did reluctantly. 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 State law in this respect, that it must consider the legality of what is done by international and not by State law tests. By every test of International Law, of common conscience, of elementary humanity, these orders - if indeed it was in obedience to orders that these men acted - were illegal. Are they then to be excused?

The dictatorship behind which these men seek to shelter was of their own creation. In the desire to secure power and position for themselves they built up the system under which they received their orders. The continuance of that system depended on their continued support. Even if it were true that - as Jodl suggested - these men might have been dismissed, perhaps imprisoned, had they disobeyed the orders which they were given, would not any fate have been better than that they should have lent themselves to these things? But it was not true. These were the men in the inner councils, the men who planned as well as carried out; of all people the ones who might have advised, restrained, halted Hitler instead of encouraging him in his satanic courses. The principle of collective responsibility of the members of a government is not an artificial doctrine of constitutional law. It is an essential protection of the rights of man and the community of nations; International Law is fully entitled to protect its own existence by giving effect to it.

Let me now pass to Counts 3 and 4 of the Indictment, the Counts dealing with War Crimes and what we have described, as in fact they are, as Crimes Against Humanity.

And as to these, may I first make some comment on the legal position. About the law as to war crimes, little indeed need be said, because the law is clear enough and not in doubt. Here are crimes more terrible indeed in their extent than anything which had hitherto been known, but none the less well recognizable under the pre-existing rules of International Law and clearly within the legitimate jurisdiction either of a national or of 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 millionfold.

[Page 429]

The mere number of victims is not the real criterion of the criminality of an act. The majesty of death, the compassion for the innocent, the horror and detestation of the ignominy inflicted upon man - man created in the image of God - these are not the subjects of mathematical calculation. 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 deliberate calculation - calculation at the highest level. And so the principal war crime, in extent as in intensity, with which these men are charged is the violation of the most firmly established and least controversial of all the rules of warfare, namely, that non- combatants must not be made the direct object of hostile operations. What a mockery the Germans sought to make of the IVth Hague Convention on the laws and customs of war - a convention which merely formulated what was already a fundamental rule:

"Family honour and rights, the lives of persons and private property, as well as religious convictions and practices, must be respected."

But some attempt has been made to canvass the illegality of three other 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.

[Page 430]

It seems to have been suggested that the prohibition of the Law of 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 labour 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.

Nor is there a shadow of a right to invoke any material change in conditions as a justification for 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 the niceties of argument whether the practice of arming merchantmen affects the position.

Nor need we take time to examine the astonishing proposition that the sinking of neutral shipping was legalised by the process of making a paper order excluding such neutral ships not from some definite war zone over which Germany exercised control but from vast areas of the seas. For there is one matter at least about which nobody questions or puts questions to the law.

If you are satisfied that orders were given that survivors should not be rescued, that steps 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 the victim 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 crime prior 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.

[Page 431]

Let me, however, before I turn to questions of fact refer to the fourth Count of the Indictment, the CRIMES AGAINST HUMANITY. It is convenient, I think, 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 war crimes, 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 from 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 that it was 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 whom would have hindered the carrying out of the total war policy.

Pursuing that for a moment, the racial policy against the Jews was, as I have said, simply one facet of the Herrenvolk doctrine. In Mein Kampf Hitler had said that the most 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 and a device for unifying the German people for war. Himmler made it clear in his speech on 4th October, 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."

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