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5. OPENING ADDRESS FOR THE UNITED KINGDOM
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 vic
tory—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 to 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 as 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
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 resposible 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
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
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.
So first let this be said. Whilst it may be 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 fifty 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
The Federation of the World have sought to create an operative system of rules based on 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 such treaty was of course the Hague Convention of 1899 for the Pacific Settlement of International Disputes. This was, indeed, of little more than precatory effect and we attach no weight to it for the purpose of this case, but it did establish agreement that in the event of serious disputes arising between the signatory powers, they would so 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 you to say any crime was committed by disregarding them. But at least they established that the contracting powers accepted the general principle that if at all possible war should be resorted to only if mediation failed.
Although these Conventions are mentioned in the Indictment I do not rely on them save to show the historical development of the law. It is unnecessary, therefore, to argue about their effect,
for their place has been taken by more effective instruments. They were the first steps.
There were, of course, other individual agreements between particular States which sought to preserve the neutrality of individual countries as, for instance, that of Belgium, but those agreements were, in the absence of any real will to comply with them, entirely inadequate to prevent the first World War in 1914.
Shocked by the occurrence of that catastrophe the Nations of Europe, not excluding Germany, and of other parts of the World came to the conclusion that in the interests of all alike a permanent organization of the Nations should be established to maintain the peace. And so the Treaty of Versailles was prefaced by the Covenant of the League of Nations.
I say nothing at this moment of the general merits of the various provisions of the Treaty of Versailles. They have been criticized, some of them perhaps justly, and they were made the subject of much warlike propaganda in Germany. But it is unnecessary to enquire into the merits of the matter, for however unjust one might for this purpose assume the Treaty to be, it contained no kind of excuse for the waging of war to secure an alteration in its terms. For not only was it a settlement by agreement of all the difficult territorial questions which had been left outstanding by the war itself but it established the League of Nations which, if it had been loyally supported, could so well have resolved those international differences which might otherwise have led, as they did lead, to war. It set up in the Council of the League, in the Assembly and in the Permanent Court of International Justice, a machine not only for the peaceful settlement of international disputes but also for the ventilation of all international questions by frank and open discussion. At the time the hopes of the world stood high. Millions of men in all countries—perhaps even in Germany—had laid down their lives in what they believed and hoped to be a war to end war. Germany herself entered the League and was given a permanent seat on the Council, on which, as in the Assembly, German Governments which preceded that of the Defendant Von Papen in 1932 played their full part. In the years from 1919 to 1932 despite some minor incidents in the heated atmosphere which followed the end of the war, the peaceful operation of the League continued. Nor was it only the operation of the League which gave good ground for hope that at long last the rule of law would replace that of anarchy in the international field.
The Statesmen of the world deliberately set out to make wars of aggression an international Crime. These are no new terms,