International Military Tribunal - The Nuremberg Trials - Complete Tribunal Proceedings (V. 3)

“But the whole situation . . . . rests, and international law on the subject has been entirely built up, on the assumption that there is nothing illegitimate in the use of war as an instrument of national policy, and, as a necessary corollary, that the position and rights of neutrals are entirely independent of the circumstances of any war which may be in progress. Before the acceptance of the Covenant, the basis of the law of neutrality was that the rights and obligations of neutrals were identical as regards both belligerents, and were entirely independent of the rights and wrongs of the dispute which had led to the war, or the respective position of the belligerents at the bar of world opinion.”

Then the Government went on:

“Now it is precisely this assumption which is no longer valid as regards states which are members of the League of Nations and parties to the Peace Pact. The effect of those instruments, taken together, is to deprive nations of the right to employ war as an instrument of national policy, and to forbid the states which have signed them to give aid or comfort to an offender.”

This was being said in 1929, when there was no war upon the horizon.

“As between such states, there has been in consequence a fundamental change in the whole question of belligerent and neutral rights. The whole policy of His Majesty’s present Government (and, it would appear, of any alternative government) is based upon a determination to comply with their obligations under the Covenant of the League and the Peace Pact. This being so, the situation which we have to envisage in the event of a war in which we were engaged is not one in which the rights and duties of belligerents and neutrals will depend upon the old rules of war and neutrality, but one in which the position of the members of the League will be determined by the Covenant and by the Pact.”

The Chief Prosecutor for the United States of America referred in his opening speech before this Tribunal to the weighty pronouncement of Mr. Stimson, the Secretary of War, in which, in 1932, he gave expression to the drastic change brought about in international law by the Pact of Paris, and it is perhaps convenient to quote the relevant passage in full:

“War between nations was renounced by the signatories of the Kellogg-Briand Pact. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. Hereafter, when two nations engage in armed conflict, either one or both of them must be wrongdoers—violators of this general treaty law. We no longer draw a circle about them and treat them with the punctilios of the duelist’s code. Instead we denounce them as law-breakers.”

And nearly 10 years later, when numerous independent states lay prostrate, shattered or menaced in their very existence before the impact of the war machine of the Nazi State, the Attorney General of the United States, subsequently a distinguished member of the highest Tribunal of that great country, gave significant expression to the change which had been effected in the law as the result of the Pact of Paris in a speech for which the freedom-loving peoples of the world will always be grateful. On the 27th of March 1941—and I mention it now not as merely being the speech of a statesman, although it was certainly that, but as being the considered opinion of a distinguished lawyer,—he said this:

“The Kellogg-Briand Pact of 1928, in which Germany, Italy and Japan covenanted with us, as well as with other nations, to renounce war as an instrument of policy, made definite the outlawry of war and of necessity altered the dependent concept of neutral obligations.

“The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their signatories of the right of war as an instrument of national policy or aggression and rendered unlawful wars undertaken in violation of these provisions. In consequence these treaties destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars . . . .

“It follows that the state which has gone to war in violation of its obligations acquires no right to equality of treatment from other states, unless treaty obligations require different handling of affairs. It derives no rights from its illegality.

“In flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie international law and allow these great treaties to become dead letters. The intelligent public opinion of the world which is not afraid to be vocal, and the action of the American States, has made a determination that the Axis Powers are the aggressors in the wars today, which is an appropriate basis in the present state of international organizations for our policy.”

Thus, there is no doubt that by the time the National Socialist State of Germany had embarked upon the preparation of the war of aggression against the civilized world and by the time it had accomplished that design, aggressive war had become, in virtue of the Pact of Paris and the other treaties and declarations to which I have referred, illegal and a crime beyond all uncertainty and doubt. And it is on that proposition, and fundamentally on that universal treaty, the Kellogg-Briand Pact, that Count Two of this Indictment is principally based.

The Prosecution has deemed it necessary—indeed, imperative—to establish beyond all possibility of question, at what I am afraid may appear to be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactivity in the determination of the authors of this Charter to treat aggressive war as conduct which international law has prohibited and stigmatized as criminal. We have traced the progressive limitation of the rights of war, the renunciation and condemnation of wars of aggression, and above all, the total prohibition and condemnation of all wars conceived as an instrument of national policy. What statesman or politician in charge of the affairs of nations could doubt, from 1928 onwards, that aggressive war, or that all war, except in self-defense or for the collective enforcement of the law, or against a state which had itself violated the Pact of Paris, was unlawful and outlawed? What statesman or politician embarking upon such a war could reasonably and justifiably count upon an immunity other than that of a successful outcome of the criminal venture? What more decisive evidence of a prohibition laid down by positive international law could any lawyer desire than that which has been adduced before this Tribunal?

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.”