There are, it is true, some small town lawyers who deny the very existence of any international law; and indeed, as I have said, the rules of the law of nations may not satisfy the Austinian test of being imposed by a sovereign. But the legal regulation of international relations rests upon quite different juridical foundations. It depends upon consent, but upon a consent which, once given, cannot be withdrawn by unilateral action. In the international field the source of law is not the command of a sovereign but the treaty agreement binding upon every state which has adhered to it. And it is indeed true, and the recognition of its truth today by all the great powers of the world is vital to our future peace—it is indeed true that, as M. Litvinov once said, and as Great Britain fully accepts:
“Absolute sovereignty and entire liberty of action only belong to such states as have not undertaken international obligations. Immediately a state accepts international obligations it limits its sovereignty.”
In that way and that way alone lies the future peace of the world. Yet it may be argued that although war itself was outlawed and forbidden, it was not criminally outlawed and criminally forbidden. International law, it may be said, does not attribute criminality to states and still less to individuals. But can it really be said on behalf of these defendants that the offense of these aggressive wars, which plunged millions of people to their death, which by dint of War Crimes and Crimes against Humanity brought about the torture and extermination of countless thousands of innocent civilians, which devastated cities, which destroyed the amenities—nay, the most rudimentary necessities of civilization in many countries—which has brought the world to the brink of ruin from which it will take generations to recover—will it seriously be said by these defendants that such a war is only an offense, only an illegality, only a matter of condemnation perhaps sounding in damages, but not a crime justiciable by any Tribunal? No law worthy of the name can allow itself to be reduced to an absurdity in that way, and certainly the great powers responsible for this Charter were not prepared to admit it. They draw the inescapable conclusion from the renunciation, the prohibition, the condemnation of war which had become part of the law of nations, and they refuse to reduce justice to impotence by subscribing to the outworn doctrines that a sovereign state can commit no crime and that no crime can be committed on behalf of the sovereign state by individuals acting in its behalf. They refuse to stultify themselves, and their refusal and their decision has decisively shaped the law for this Tribunal.
If this be an innovation, it is an innovation long overdue—a desirable and beneficent innovation fully consistent with justice, fully consistent with common sense and with the abiding 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 indeed a time when international lawyers used to maintain that the liability of the state, because of its sovereignty, was limited to a 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 of 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 recent case decided in 1935 between the United States and Canada, an arbitral tribunal, with the concurrence of its American member, decided that the United States were bound to pay what amounted to penal damages for an affront to Canadian sovereignty. And on a wider plane, the Covenant of the League of Nations, in providing for sanctions, recognized the principle of enforcement of the law against collective units, such enforcement to be, if necessary, of a penal character. And so there is not anything startlingly new in the adoption of the principle that the state as such is responsible for its criminal acts. In fact, save for reliance on the unconvincing argument of sovereignty, there is in law no reason why a state should 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 could not be a pirate. History—very recent history—does not warrant the view that a state cannot be a criminal. On the other hand, the immeasurable potentialities for evil, inherent in the state in this age of science and organization would seem to demand, quite imperatively, means of repression of criminal conduct even more drastic and more effective than in the case of individuals. And insofar, therefore, as this Charter has put on record the principle of the criminal responsibility of the state, it must be applauded as a wise and far-seeing measure of international legislation.
[A recess was taken.]
SIR HARTLEY SHAWCROSS: [Continuing.] 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.
Admittedly, the conscience shrinks from the rigors of collective punishment, which may fall 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 in 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, sound legal sense, 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 crimes 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—as here—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.
To say that those who aid and abet, who counsel and procure 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.
There is thus no substantial retroactivity in the provisions 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 between 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,