On 26 July 1946 the Attorney General of the United Kingdom, a forty-four-year-old Lancastrian named Sir Hartley Shawcross, rose in Courtroom 600 to deliver the British closing argument at the International Military Tribunal. He spoke for two days. The text he delivered, drafted in part with the philosopher Hersch Lauterpacht in Cambridge over the previous fortnight, set out the legal and moral case for what had been done in the courtroom over the previous eight months. It is, by general critical agreement of the legal commentators who have written since, the finest single piece of advocacy delivered at the trial. Lauterpacht’s contribution, for the passages on the standing of the individual in international law, has been documented by Philippe Sands in his 2016 book East West Street; the rhetorical structure and the delivery were Shawcross’s.
Shawcross had become Attorney General in the new Labour government of Clement Attlee in August 1945, two months after the general election. The trial had been the new government’s first major international undertaking. Shawcross had taken the lead role on the British side himself rather than delegating it. He had attended substantial parts of the trial, leaving the day-to-day courtroom work to his deputy David Maxwell Fyfe. The opening and the closing he had reserved for himself. He had wanted his name on the record.
The opening
The British opening, delivered on 4 December 1945, set out the case on Counts One and Two, the conspiracy to wage aggressive war and the planning and execution of aggressive war. Shawcross opened with a passage that has been quoted in every subsequent international war crimes proceeding involving the law of aggression:
Political loyalty, military obedience are excellent things, but they neither require nor do they justify the commission of patently wicked acts. There comes a point where a man must refuse to answer to his leader if he is also to answer to his conscience. Even the common soldier, serving in the ranks of his army, is not called upon to obey illegal orders.
The argument was the seed of what became, in the judgment of October 1946, the Nuremberg Principle that following superior orders is not a defence if a moral choice was possible. Shawcross had set the framework for it on the third day of the trial.
The closing
The closing was the speech that has lasted. It ran for ten hours over two days, 26 and 27 July 1946. Lauterpacht had drafted the legal sections, on aggressive war, the rights of the individual, the standing of international law over national sovereignty. Shawcross delivered them, and added the passages of moral argument that Lauterpacht’s drafts had left for him to write. The most quoted passage came near the end:
You will remember when you come to give your decision the story of Graebe, the German engineer who described the immolation of a great Jewish community at Dubno; remember the Jews who were stripped of their last possessions, the women, the children, the babies, who walked naked but without weeping, with the quiet words of comfort to each other and to their children, into the pits where, in a few seconds, a German pistol made them into a heap of bloody flesh. Remember the dreadful crescendo of the shrieks of the doomed as they approached the gas chambers of Auschwitz, knowing for the last few moments their fate. Remember the appalling cruelties when the women and children waiting for their slaughter were forced to dig graves into which they were thrown still living.
The passage drew on the affidavit of Hermann Friedrich Graebe, a German construction company manager who had witnessed a mass shooting of Jews at Dubno on 5 October 1942 and had testified about it in writing to the prosecution. Graebe was the only German bystander who had agreed to give evidence on a specific killing. Shawcross had used the Graebe affidavit at length earlier in the closing. The recapitulation at the end was deliberate.
The closing’s most-quoted single sentence is its summary:
The state of mankind, the rights of man, the safety of the world, can be secured only if law and reason replace force and fanaticism in the relations between states.
Shawcross sat down on the afternoon of 27 July 1946. The bench thanked him. The defence counsel, in their replies the following week, explicitly conceded that they could not match the rhetorical level of the closing they had been answered with. The judgment of October 1946 substantially adopted Shawcross’s framework on the aggressive-war counts and on the question of the relationship between superior orders and individual responsibility.
The Hess argument
Shawcross also delivered the British prosecution’s argument on Rudolf Hess, who had flown to Scotland in May 1941 on a personal peace mission and had been held in British custody for the rest of the war. Hess’s defence team had argued that he was unfit to stand trial. The bench had referred the question to its medical panel, which had divided. Shawcross, in a courtroom argument on 30 November 1945, contended that Hess had been competent enough to plan and execute his solo flight to Scotland and was competent enough to face the charges; the bench accepted the argument and the trial proceeded. Hess was sentenced to life and died in Spandau Prison in August 1987 at the age of ninety-three, the last of the Spandau prisoners.
Afterwards
Shawcross continued as Attorney General until 1951, when he became President of the Board of Trade in Attlee’s last cabinet. He was elevated to the peerage as Baron Shawcross of Friston in 1959. He left the Labour Party in 1964 and sat as a crossbench peer thereafter. He served as Chancellor of the University of Sussex from 1965 to 1985, as a director of several major British companies, and as the British representative on the United Nations War Crimes Commission.
His son William Shawcross became a journalist and biographer. The Shawcross archive, deposited at Churchill College Cambridge, contains the working drafts of the Nuremberg closing and the correspondence with Lauterpacht. Shawcross himself died in July 2003 at the age of 101. He was the last of the senior Nuremberg counsel to die. The closing he had delivered fifty-seven years before his death was reprinted in pamphlet form by the Holocaust Educational Trust in 2005 and is available online in the publications of the United Nations Audiovisual Library of International Law. It can be read in an hour. It has not aged.
See also
Sources
- International Military Tribunal, Trial of the Major War Criminals, vols III and XIX (Shawcross opening and closing), Nuremberg, 1947
- Hartley Shawcross, Life Sentence: The Memoirs of Lord Shawcross, Constable, 1995
- Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld and Nicolson, 2016
- Hermann Friedrich Graebe, Affidavit on the Dubno Massacre, Nuremberg Document PS-2992, 10 November 1945
- Bradley F. Smith, Reaching Judgment at Nuremberg, Basic Books, 1977
- Ann Tusa and John Tusa, The Nuremberg Trial, Macmillan, 1983