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as a reason for the restrictive interpretation of obligations in treaties. The Court declined to see in a treaty, by which a State undertook to observe a definite line of conduct, an abandonment of its sovereignty and the Court reminded Germany that the very right to enter into international agreement is an attribute of State sovereignty. As a philosophical proposition the right to contract and the right to freedom of action do present an eternal antimony. But just as individuals secure freedom by adherence to laws, so may sovereign States maintain their own individual status; the view that since States are sovereign they cannot be coerced, has long since been abandoned. The Covenant of the League of Nations made provision, in Article 16, for sanctions against sovereign States-sanctions being only another name for coercion, probably coercion of a punitive character. The Charter of the United Nations has followed suit-much more decisively. It is true that, because of the absence of a competent compulsory jurisdiction, there is no judicial precedent for States being arraigned before a Criminal Tribunal. But that is equally true of the undoubted civil responsibilities of States, for apart from treaty there is no compulsory jurisdiction in any international tribunal to adjudicate upon them.
The first man tried for murder may have complained that no Court had tried such a case before. The methods of procedure, the specific punishments, the appropriate Courts can always be defined by subsequent proclamation. The only innovation which this Charter has introduced is to provide machinery, long overdue, to carry out the existing law, and there is no substance in the complaint that the Charter is a piece of post factum legislation either in declaring wars of aggression to be criminal, or in assuming that the State is not immune from criminal responsibility.
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 recog
nized 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 offense 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 offense in this respect.
The argument is then 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 to be 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 depends. Suppose a State were to send a body of persons into the territory of another State with instructions to murder and to rob. Would those persons carrying out these orders be immune because in the fulfillment of their criminal design they were acting as the organs of another State? Suppose the individuals who had ordered the predatory expedition were to fall into the hands of the State attacked-could they plead immunity? In my submission clearly not. Yet the case put is exactly the case which occurred here. The truth is that this attempt to clothe crime with impunity because the motive was political rather than personal invokes no principle of law but is based on arbitrary political doc
trines more appropriate to the sphere of power politics than to that in which the rule of law prevails.
And finally it is said that these wretched men were powerless instruments in Hitler's hands, ordered to do that which reluctantly, or so they say, they did. The defense 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 municipal law in this respect, that it must consider the legality of what is done by international and not by municipal tests. By every test of international law, of common conscience, of elementary humanity, these orders-if inIdeed 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 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.
War Crimes: The Legal Position
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 preexisting 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 noncombatants, never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten million fold. Crimes do not cease to be criminal because they have a political motive. These crimes were many and manifold. It is not useful to catalogue them here. They vary most considerably in the numbers of victims. There are the fifty murdered prisoners of war who escaped from Stalag Luft III; the hundreds of Commandos and Airmen who were exterminated; there are the thousands of civilian hostages put to death; the tens of thousands of sailors and passengers who perished in a piratical campaign of terror; there are the hundreds of thousands of prisoners of war, especially Russians, and of civilians who met their death because of the rigors and cruelties to which they were exposed, if not by outright murder, and there are the many millions murdered outright, or by the slower method of deliberate starvation, six millions of them for no better reason than that they were of Jewish race or faith.
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, unorganized individual acts. We are dealing here with something entirely different. With systematic, wholesale, consistent action, taken as a matter of deliberate calculation-calculation of 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 firmly established and least controversial of all the rules of warfare, namely, that noncombatants must not be made the direct object of hostile operations. What a mockery the Germans sought to make of the IV Hague Convention on the laws and customs of war-Convention which merely formulated what was already a fundamental rule:
"Family honor and rights, the lives of persons and private property, as well as religious convictions and practices, must be respected."
The murdering on the orders of the German Government whose members are here in the Dock, in the territory occupied by its military forces of millions of civilians, whether it was done in pursuance of a policy of racial extermination, as the result of or in connection with the deportation of slave labor, in consequence of the desire to do away with the intellectual and political leaders of the countries which had been occupied or was part of the general application terror through collective reprisals upon the innocent population and upon hostages-this murdering of millions of noncombatants is a war crime. It may indeed be a crime against humanity as well. Both imagination and intellect, shattered by the horror of these things, recoil from putting the greatest crime in history into the cold formula already described in the text books as a war crime. Yet it is important to remember that that is what these crimes were. Irrespective, in the main of where they were committed or of the race or nationality of the victims, these were offenses upon the civilian population, contrary to the laws of war in general and to those of belligerent occupation in particular. The truth is that murder, wholesale, planned and systematic became part and parcel of a firmly entrenched and apparently secure belligerent occupation. That that was a war crime no one has sought to dispute.
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 labor, the crimes. at sea in connection with submarine warfare, and the shooting of Commandos. And let me shortly examine these matters.
The deportation of the civilian population for forced labor is, of course, a crime both according to international custom and to conventional international law as expressed in the Hague Convention. Article 46 of Hague Convention No. IV enjoins the occupying powers to respect "family honor and rights" and "the lives of persons." Article 52 of the same Convention lays down