Prosecuting Tony Blair and others

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Sir Hartley SHAWCROSS QC MP - United Kingdom Attorney-General

Appearing as Chief Prosecutor for the United Kingdom Government

Closing Speech

26 July 1946 Vol.19 - Session 187 (pp.423-428)

The Trial of German Major War Crimminals sitting at Nuremberg, Germany

HMSO (Blue Transcripts)

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But I am dealing now not with the murders, which alone so well justify the condemnation of these men, but with their crime against peace. Let me say something about the legal aspect of this matter, for it is one to the firm establishment of which His Majesty's Government of the United Kingdom, and indeed all the Prosecutors here, attach great importance.

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It may be true that in international relationships prior to the war there was no super-sovereign body which at the same time imposed international laws and enforced them. But, at least in the international field, the existence of law has never been dependent on the existence of a correlated sanction external to the law itself. International Law has always been based on the element of common consent, and where you have a body of rules which, whether by common consent or treaty, are obligatory upon the members of the international community, those rules are the laws of that community although the consent has not been obtained by force, and although there may be no direct or external sanction to secure obedience. The fact is that absolute sovereignty in the old sense is, very fortunately, a thing of the past. It is a conception which is quite inconsistent with the binding force of any international treaty.

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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 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.

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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 doctrines more appropriate to the sphere of power politics than to that in which the rule of law prevails.

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