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."
forbidden it wasn't criminally outlawed and criminally forbidden.
to States and still less to individuals. But can it really be said justiciable by any tribunal.
No law worthy of the name can allow it.
They draw the inescapable conclusion from the renunciation, the sovereign state by individuals acting in its behalf.
They refused to purposes of the law of nations.
But is it indeed an innovation?
Or is it no more than the logical development of the law. There was contractual responsibility.
International tribunals have not accepted that view.
They have repeatedly affirmed that a State can commit a tort; that it may be guilty of trespass, of nuisance, and negligence.
And they have gone further. They have held that a State may be bound to pay what are in effect penal damages.
In a penal damages for an affront to Canadian sovereignty.
And on a character.
And so there is not anything startlingly new in the its criminal acts.
In fact, save for reliance on the unconvincing not be answerable for crimes committed on its behalf.
A hundred years ago Dr. Lushington, a great English Admiralty Judge, refused to admit that a State couldn't be a pirate.
History--very recent history--doesn't warrant the view that a State cannot be a criminal.
(A recess was taken from 11.20 to 11.30 hours.)
SIR HARTLEY SHAWCROSS: I was saying before the recess that there could be no doubt about the principle of criminal responsibility on the part of the State which engaged in aggressive war.
collective punishment, which falls upon the guilty and the innocent alike, although, it may be noted, most of these innocent victims would not have hesitated to reap the fruits of the criminal act if it had been successful. Humanity and justice will find means of mitigating any injustice of collective punishment. Above all, much hardship can be obviated by making the punishment fall upon the individuals who were themselves directly responsible for the criminal conduct of their State. It is here that the Powers who framed this charter took a step which justice,soundlegalsense and an enlightened appreciation of the good of mankind must acclaim without cavil or reserve. The Charter lays down expressly that there shall be individual responsibility for the crimes, including the crime against the peace, committed on behalf of the State. The State is not an abstract entity. Its rights and duties are the rights and duties of men. Its actions are the actions of men. It is a salutary principle, a principle of law, that politicians who embark upon a particular policy of aggressive war should not be able to seek immunity behind the intangible personality of the State. It is a salutary legal rule that persons who, in violation of the law, plunge their own and other countries into an aggressive war should do so with a halter around their necks. a crime are themselves criminals is a commonplace in our own municipal law. Nor is the principle of individual international responsibility for offenses against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes, as distinct from the crime of war, is based upon the principle of individual responsibility. The future of International Law, and indeed, of the world itself, depends on its application in a much wider sphere, in particular, in that of safeguarding the peace of the world.
There must be acknowledged not only, as in the Charter of the United Nations, fundamental human rights, but also, as in the Charter of this Tribunal, fundamental human duties, and of these none is more vital, none is more fundamental, than the duty not to vex the peace of nations in violation of the clearest legal prohibitions and undertakings.
If this be an innovation, it is an innovation which we are prepared to defend and to justify, but it is not an innovation which creates a new crime. International Law had already, before the Charter was adopted, constituted aggressive war a criminal act. of the Charter. It merely fixes the responsibility for a crime already clearly established as such by positive law upon its actual perpetrators. It fills a gap in international criminal procedure. There is all the difference in saying to a man, "You will now be punished for what was not a crime at all at the time you committed it," and in saying to him "You will now pay the penalty for conduct which was contrary to law and a crime when you executed it, although, owing to the imperfection of the international machinery, there was at that time no court competent to pronounce judgment against you." It is that latter course which we adopt,and if that be retroactivity,weproclaim it to be most fully consistent with that higher justice which in the practice of civilized states has set a definite limit to the retroactive operation of laws. Let the defendants and their protagonists complain that the Charter is in this matter an ex parte fiat of the victors. These victors, composing as they do, the overwhelming majority of the nations of the world, represent also the world's sense of justice, which would be outraged if the crime of war, after this second world conflict, were to remain unpunished. In thus interpreting, declaring and supplementing the existing law, these States are content to be judged by the verdict of history. Securus judicat orbis terrarum. Insofar as the Charter of this Tribunal introduces new law, its authors have established a precedent for the future -- a precedent operative against all, including themselves, but in essence that law, rendering recourse to aggressive war an international crime, had been well established when the Charter was adopted.
It is only by way of corruption of language that it can be described as a retroactive law. Tribunal for long, whether these wars were launched by Germany and her leaders in violation of treaties or agreements or assurances were also wars of aggression. A war of aggression is a war which is resorted to in violation of the international obligation not to have recourse to war, or, in cases in which war is not totally renounced, which is resorted to in disregard of the duty to utilize the procedure of the pacific settlement which a state has bound itself to observe. There was, as a master of fact, in the period between the two world wars a divergence of opinion among jurists and statesmen whether it was preferable to attempt in advance a legal definition of aggression or to leave to the states concerned and to the collective organs of the international community freedom of appreciation of the facts in any particular situation that might arise. These holding the latter view argued that a rigid definition might be abused by an unscrupulous State to fit in with its aggressive design; they feared, and the British Government was for a time among those who took this view, that an automatic definition of aggression might become a trap for the innocent and a signpost for the guilty. Others held that in the interest of certainty and security, a definition of aggression, like a definition of any crime in municipal law, was proper and useful. They urged that the competent international organs, political and judicial, could be trusted to avoid in any particular case a definition of aggression which might lead to obstruction of to an absurdity. In May of 1933 the Committee on Security Questions of the Disarmament Conference proposed a definition of aggression on these lines:
"The aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
"(1) declaration of war upon another State;
"(2) invasion by its armed forces, with or without a declaration of war, of the territory of another State;"(3) attack by its land, naval, or air forces, with or without another State;"(4) naval blockade of the coasts or ports of another State;"(5) provision of support to armed bands formed in its territory of all assistance or protection."
Republics and other States followed closely that definition. So did the Draft Convention submitted in 1933 by His Majesty's Government to the Disarmament Conference. lems or of the definition of aggression. This Tribunal will not allow itself to be deflected from its purpose by attempts to ventilate in this Court what is an academic and in the circumstances, an utterly unreal controversy as to what is the nature of a war of aggression, for there is no definition of aggression, general or particular, which does not cover and cover abundantly and irresistably in every detail the premeditated onslaught by Germany on the territorial integrity and political independence of so many sovereign States. the peoples of the world by the Pact of Paris had finally outlawed war and made it criminal--I turn now to the facts to see how these defendants under their Leader and with their associates destroyed the high hopes of mankind and sought to revert to international anarchy. First, let this be said, for it will be established beyond doubt by the documents which you will see, from the moment Hitler became Chancellor in 1933, with the defendant Von Papen as Reich Chancellor, and with the defendant Von Neurath as his Foreign Minister, the whole atmosphere of the world darkened.
The hopes of the people began to recede. Treaties seemed no longer matters of solemn obligation but were entered into with complete cynicism as a means for deceiving other States of Germany's war-like intentions. International conferences were no longer to be used as a means for securing pacific settlements but as occasions for obtaining by blackmail demands which were eventually to be enlarged by war. The world came to know the War of Nerves, the diplomacy of the fait accompli, of blackmail and bullying. ament Convention did not concede full equality to Germany, "It would be necessary to torpedo the Disarmament Conference. It was out of the question to negotiate: Germany would leave the Conference and the League." On the 21st of October, 1933, Germany did so and by so doing struck a deadly blow at the fabric of security which had been built up on the basis of the League Covenant. From that time on, the record of their foreign policy became one of complete disregard of international obligations, and indeed not least, of these solemnly concluded by themselves. Hitler himself expressly avowed to his confederates, "Agreements are kept only so long as they serve a certain purpose." He might have added that again and again that purpose was only to lull an intended victim into a false sense of security. So patent, indeed, did this eventually become that to be invited by the defendant Ribbentrop to enter a non-aggression pact with Germany was almost a sign that Germany intended to attack the State concerned. Nor was it only the formal treaty which they used and violated as circumstances seemed to make expedient. These defendants are charged, too, with breaches of the less formal assurances which in accordance with diplomatic usage Germany gave to neighboring States. You will hear the importance which Hitler himself publicly--publicly--attached to assurances of that kind. Today, with the advance of science, the world has been afforded means of communication and intercourse hitherto unknown, and as Hitler himself expressly recognized in his public utterances, international relations no longer depend upon treaties alone.
The methods of diplomacy change. The leader of one nation can speak directly to the Government and peoples of another, and that course was not infrequently adopted by the Nazi conspirators. But, although the methods change, the principles of good faith and honesty, established as the fundamentals of civilized society, both in the national and international spheres, remain unaltered. It is a long time since it was said that we are part, one of another, and if today the different States are more closely connected and thus form part of a world society more than ever before, so, also, more than before, is there that need for good faith and honesty between them. Nazi Government, individually and collectively comported themselves in these matters.
On the 1st of September 1939 in the early hours of the morning under manufactured and in any event inadequate pretexts, the armed forces of the German Reich invaded Poland along the whole length of her frontiers and thus launched a war which was to bring down so many of the pillars of our civilization.
It was a breach of the Hague Conventions. It was a breach of the Treaty of Versailles which had established the Frontiers between Germany and Poland. And however much Germany disliked that Treaty - although Hitler had expressly stated that he would respect its territorial provisions -- however much she disliked it -- she was not free to break it by unilateral action. It was a breach of the Arbitration Treaty between Germany and Poland concluded at Locarno on the 16th of October 1925. By that Treaty Germany and Poland expressly agreed to refer any matters of dispute not capable of settlement by ordinary diplomatic machinery to the decision of an Arbitral Tribunal or of the Permanent Court of International Justice. It was a breach of the Pact of Paris. But that is not all. It was also a breach of a more recent and, in view of the repeated emphasis laid upon it by Hitler himself, in some ways a more important engagement into which Nazi Germany had entered with Poland. After the Nazi Government came into power on the 26th of January 1934 the German and Polish Governments had signed a ten year Pact of Nonaggression. It was, as the signatories themselves stated, to introduce a new era into the political relations between Poland and Germany. It was said in the text of the Pact itself that "the maintenance and guarantee of lasting Peace between the two countries is in essential prerequisite for the general peace of Europe". The two Governments therefore agreed to base their mutual relations on the principles laid down in the Pact of Paris, and they solemnly declared that:
"In no circumstances... will they proceed to the application of Force for the purpose of reaching a decision in such disputes". That declaration and agreement was to remain in force for at least ten years and thereafter it was to remain valid unless it was denounced by either Government six months before the expiration of the ten years, or subsequently by six months' notice.
Both at the time of its signature and during the following four years Hitler spoke of the German-Polish Agreement publicly, publicly as though it were a corner-stone of his foreign policy. By entering into it he persuaded many people that his intentions were genuinely pacific, for the re-emergence of an new Poland and independent Poland after the war had cost Germany much territory and had separated East Prussia from the Reich; and that Hitler should, of his own accord, enter into friendly relations with Poland; that in his speeches on foreign policy he should proclaim his recognition of Poland and of her right to an exit to the sea, and the necessity for Germans and Poles to live side by side in amity.