International Military Tribunal - The Nuremberg Trials - Complete Tribunal Proceedings (V. 3)

Human memory is very 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 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 is 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 which 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 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.

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 and showed to be, the nations of the world had, as it will be my purpose in addressing the Tribunal 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 led their states. Again, individual war crimes have long been recognized 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 rights 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 recognized law of nations. Here too, the Charter merely develops a pre-existing principle. If murder, rapine, 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 offenses escape accusation?

It is, as I shall show, the view of the British Government that in these matters, this Tribunal will be applying 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.

By agreement between the chief prosecutors, it is my task, on behalf of the British Government and of the other states associated in this Prosecution, to present the case on Count Two 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, has thought to make such wars impossible.

The 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 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 general 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 today this Charter merely declares and creates a jurisdiction in respect of what was already the law of nations.

Nor is it unimportant to emphasize that aspect of the matter, lest there may 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 criticisms 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 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 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 quite 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 50 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

And the battle flags are furled,

In the parliament of man,

The federation of the world”—

sought to create an operative system of rules based upon the consent of nations to stabilize international relations, to avoid war taking place at all and to mitigate the results of such wars as took place. The first treaty was of course the Hague Convention of 1899 for the Pacific Settlement of International Disputes. That Convention was, indeed, of no 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.