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Editorial
Last Updated: 07/28/2003
International Lawyer 101
Simon Stander

Hartley William Shawcross, who died this month at the age of 101, unravelled the legal underpinnings in international law for trying war criminals. His legacy remains, but so do the complexities.


Two elderly men have died this month aged 100 or more: one is Bob Hope who brought laughter, or at least wry smiles, to many. Slightly less lauded Hartley Shawcross (Lord Shawcross), died aged 101; he played out perhaps his greatest moments before a world audience in Nuremberg in 1946. His words, in all their conviction and imperiousness, remain for all to read in the record of that historic and then unprecedented trial, which have become the model and justification for more recent ones in these times of horrific war crimes and ethnic cleansing.

 

In his closing speech at what as offically called the International Military Tribunal sitting in judgement on 22 indicted was criminals in Nuremberg, he said:

 

“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 members of the international community, those rules are the laws of the 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 inconsistent with the binding force of any international treaty….The truth is that [the] 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.”[i]

 

Let’s hope that Shawcross’s faith in the fairness and good sense of international law, and his perceptions of natural law forming the basis of a universally understood ethic, provide guidance for international attempts to bring justice, equity and peace absent from so many nation states, which appear seemingly free to exercise “absolute sovereignty” to the detriment of their own citizens.

 

As Sir Hartley Shawcross he became a Labour Cabinet Minister, and was often quoted and misquoted by the press. He admitted himself that, out of the courtroom, he had a non-political tendency to say what he thought. Once he let slip the comment: “we are the masters now” in respect of the Labour government. He admitted, “I have said a lot of bloody stupid things in my life but that was I think the most stupid.” Hopefully, history will recall what he said nearly sixty years ago in the court room in Nuremberg in helping set a precedent that promised to hold to account, in principle, the actions of some of the world’s worst tyrants. Heads of states and their supporters are simply not immune from crimes conducted in the name of the State.

 

The moral, legal issues and pragmatic issues, however, remain the same as they did in 1945. Milosovic is on trial for his part in war crimes: Pinochet is not: Idi Amin is breathing his last in exile: Charles Taylor may or may not accept exile in Nigeria against the wishes of the government of Sierra Leone. Does anyone really want to see a military tribunal in action with Saddam Hussein in the dock?

 

 



[i] The Trial of German Major War Criminals, Vol 19, session187 (pp423-428) 26 July 1946,

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