Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-171.02
Last-Modified: 2000/09/14

DR. JAHRREISS, Continued:

The British Government had assumed the obligation on 5th
February, 1930, to appear before the Permanent International
Court of Justice at the Hague whenever an action is brought
against Great Britain, i.e., also in the case of actions
which other States might bring on account of conduct by
which Great Britain had, in the opinion of the plaintiff,
violated International Law during a war. The British
Government had accepted this regulation because it had
relied on the functioning of the machinery of collective
security created by the League of Nations Covenant and the
Pact of Paris: because, if it did function - and as England
would of course not conduct any forbidden wars and her
opponent would on the contrary be the aggressor - a conflict
between England and those States that were faithful to the
security machinery could not possibly be caused by the
actions of British sea power. However, the British
Government had been disappointed in what it relied on: Ever
since the League Assembly of 1938, it had no longer been
possible to doubt that the security machinery would not
function; on the contrary it had, in fact, collapsed
completely. A number of members of the League had already
declared their strict neutrality before the outbreak of war:

  "The entire machinery intended to maintain peace has
  broken down."

I shall still have to show how right the British Government
was in the conclusions it drew. It should not be forgotten
that the British Premier, Neville Chamberlain, had already
proclaimed on 22nd February, 1938, in the House of Commons,
i.e., before the so-called Austrian Anschluss, the complete
inefficiency of the system of collective security. He said:

  "At the last election it was still possible to hope that
  the League might afford collective security. I believed
  it myself. I do not believe it now. I would say more: If
  I am right, as I am confident I am, in saying that the
  League as constituted today is unable to provide
  collective security for anybody, then I say we must not
  delude ourselves, and, still more, we must not try to
  delude small weak nations into thinking that they will be
  protected by the League against aggression and acting
  accordingly, when we know that nothing of the kind can be
  expected."

The Geneva League of Nations was "neutralised", as Noel-
Baker politely expressed it later in the House of Commons.

(2) In view of the correct conclusions drawn by the British
Government in their note of 7th September, 1939, to the
League of Nations, it is no wonder if the Soviet Union
treated the German-Polish conflict in accordance with the
old rules of power politics. In the German-Russian Frontier
and Friendship Pact of 28th September, 1939, and in the
declaration made on the same day in common with the Reich
Government, the Government of Moscow starts from the
conception of the debellatio of Poland, i.e., the abolition
of Poland's Government and armed forces; there is no mention
made of the Pact of Paris or the League of Nations Covenant.
The Soviet Union notes the abolition of the Polish State
machinery by means of war, and draws from this fact the
conclusions which seem right to her, agreeing with the Reich
Government that the new order of things is exclusively a
matter for the two Powers.

                                                   [Page 85]

It was therefore only logical when, in the Finnish conflict
of the winter of 1939 /40, the Soviet Union took up its
stand on classic International Law. It disregarded the
reactions of the League of Nations when, without even
considering the application of the machinery of sanctions
and only appearing to apply an article of the Covenant which
was intended quite differently, it resolved that the Soviet
Union had, as an aggressor, excluded itself from the League.
The report of the Swiss Federal Council of 30th January,
1940, to the Federal Assembly tries to save the face of the
League which has been excluded from political realities.

(3) The President of the United States stated on 5th
September, 1939, that there existed a state of war between
several States with whom the United States lived in peace
and friendship, namely Germany on the one hand and Great
Britain, France, Poland, India and two of the British
Dominions on the other hand. Everyone in the United States
was bound to obey the neutrality regulations most strictly.

From the time of the preliminary negotiations, it was known
in the United States that Europe, and particularly Great
Britain and France, saw the main value of the pact outlawing
war in the fact that the United States would take action in
case of a breach of the pact. The British Foreign Minister
stated this on 30th August, 1928, i.e., four weeks previous
to the signing of the pact. During the deliberations of the
American Senate on the ratification of the pact, Senator
Moses particularly drew attention to this. Senator Borah
affirmed at the time that it was completely impossible to
imagine that the United States would calmly stand by. After
the discredited failures of the policy of collective
security in the case of Manchuria and Abyssinia the world
had understood the now famous "quarantine" speech of
President Franklin Roosevelt of 5th October, 1937, and the
"Stop Hitler!" warnings of the same President before and
after "Munich", as an announcement that the United States
would act on the next occasion. The declaration of
neutrality of 5th September, 1939, could therefore only
mean: Like Great Britain and the Soviet Union, the United
States accepts as a fact the collapse of the system of
collective security.

This declaration of neutrality has often been looked upon as
the death blow for the system. The Washington Government
could reject such a reproach as unjustified. For the system
had already been dead for years, in so far as one believes
at all that it was ever actually alive. But many did not see
the fact that it was not alive at the moment, until the
blinding light of the American declaration of neutrality
fell upon it.

On 1st September, 1939, a decision had already been reached
long before about the various experiments which had been
tried since the First World War to replace the "anarchic
world order" of classic International Law by a better, a
real, order of peace; i.e., to create in the community of
States a general statute according to which there would be
wars which are forbidden by law and others which are not
forbidden by law. These experiments had, in the opinion of
the major Powers of the time, collapsed.

The greatest military Powers of the earth clashed in a
struggle in which they used their full strength. For the
proponents of the materialistic conception of history this
was a second phase in a process developing according to
inexorable laws, in which history ignored diplomatic and
juridical formulae with supreme indifference.

For the majority of the international lawyers of the world
did state: In the general International Law at present valid
there is no distinction between forbidden and un-forbidden
wars.

Hans Kelsen demonstrated this in 1942 in his paper "Law and
Peace in International Relations" which he wrote after
careful research. In this he himself belongs to the minority
who concede a legal distinction between justified and
unjustified wars. His statement therefore carried all the
more weight.

But now we must ask: Are we right in speaking of the
collapse of the system of collective security at all? This
presupposes that such a system at one time existed

                                                   [Page 86]

Can this really be asserted? This is a question of the
greatest importance for this trial, in which the existence
of a world-wide consciousness of right and wrong is taken as
the basis for the Indictment for breach of the peace.

There arises before us the tragedy of the Briand-Kellogg
Pact, that tragedy from which we have all suffered so much,
we who rejoiced when the pact was concluded and later, after
a first period of depression, greeted the Stimson Doctrine
as a long overdue step absolutely essential for the
achievement of real peace, and as an encouraging omen of
fresh progress.

The United States had a great goal in view in 1927 and 1928,
as I have already mentioned. In the League of Nations the
problem had been tackled only half-heartedly and with half-
measures, and this had perhaps done more harm than good to
the cause of real peace. The Geneva Protocol had failed.
Kellogg now wanted to pass over all the difficulties which
are actually essential parts of the problem, and jerk the
world out of its deadlock by taking action without worrying
about theories. The published treaty with its two articles,
the renunciation of war and the obligation of peaceful
settlement, seemed to fulfil the longing of a humanity which
wanted to see at last the act which would liberate it.

But the difficulties which it was desired to get over were
partially inherent in the problem, and no regulations made
by any legislator can ever eliminate them completely. For
even if one disposed of unambiguous criteria, who among
fallible mankind would have the authority to give a decision
in case of dispute?

But we do not even possess unambiguous criteria of
aggression and defence. This holds both for the so-called
political concept, which is in a way the natural one, and
for the legal concept or concepts of aggression and defence.

But these were not the only difficulties pointed out
explicitly and implicitly by the French Government in the
preliminary negotiations for the pact, and this with the
full right of one who knows Europe and its very old
historical legacy in the way the United States Government
knows America and its quite different history. Even if
somebody were capable of jumping over his own shadow, the
shadow cast by European history is so much longer.

When the world came to know the notes exchanged during the
preliminary negotiations, with all the definitions,
interpretations, qualifications and reservations, it became
manifest to what an extent the opinions of the governments
differed from one another despite one and the same wording.
One saw the Soviet Government's open - even bitter criticism
of the refusal of the Western Powers to disarm and thus
create the essential premise for an effective policy of
peace, further, of the vagueness of the treaty but
especially of the famous English reservation of a free hand
in certain regions of the world, the reservation which has
often been called the British Monroe Doctrine or the
Chamberlain Doctrine, and one knew that in reality there
existed only formal agreement behind the signatures and that
no two Powers understood exactly the same thing by the
treaty. Only on one thing did complete agreement exist: War
of self-defence is permitted as an unalienable right of all
States; without this right, sovereignty does not exist; and
every State is alone judge of whether in a given case it is
waging a war of self-defence.

No State in this world was ready to accept foreign
jurisdiction concerning the question of whether its
decisions on ultimate questions of existence were justified
or not.

Kellogg had declared to all the nine States participating in
the negotiations, in his note of 25th June, 1928:

  "... The right of self-defence ... is inherent in every
  sovereign State and is implicit in every treaty. Every
  nation ... is alone competent to decide whether
  circumstances require recourse to war in self-defence."

The friends of peace were cruelly disappointed. What was the
use of such a treaty anyway? They were only too right. Very
soon afterwards they heard with even greater grief of the
course of the discussions in the American Senate. The
ratification was, it is true, passed with eighty-five votes
against one, with few abstentions, but if behind the
signatures of the contracting States there was no

                                                   [Page 87]

material agreement, there was even less behind the result of
the vote in the Senate of that world Power which was the
leading one ideologically and as far as the initiative was
concerned.

The discussions in the Senate, which remain memorable for
all time because of their profound seriousness and
loftiness, showed - and several Senators expressly said so -
that the opinions of the Senators oscillated between two
poles which were worlds apart. For some the treaty really
meant a turning-point; to others it appeared worthless, or,
at best, a feeble or friendly gesture, a popular slogan, a
sort of international kiss, to still others a fertile soil
for all the wars of the future, a gigantic piece of
hypocrisy, even the legalisation of war or of British world
control, or the guaranteeing of the unjust status quo of
Versailles for France and Great Britain.

Some senators criticized the complete vagueness of the
stipulations of the treaty even more sharply than the
Russian note. And if one took Kellogg's declaration about
the right of self-defence, which, according to the will of
the signatory States, was an integral part of the treaty
literally: what kind of war was then forbidden at all?
Sarcastic and ironic words were used in the Senate.

Nothing was gained by this Paris Pact if everything was to
remain as it stood at its conclusion. In the opinion of the
great American expert on International Law, Philip Marshall
Brown, the pact unwittingly engendered by its ineptness the
horrible monster of "undeclared war".

Those who fought against Versailles, Germans and non-
Germans, because progress was blocked, and those who
criticized the League of Nations, Germans and non-Germans,
because it did more harm than good to the will for progress,
had all rejoiced for nothing at the end of August, 1928. The
decisive step had not been taken.

But above all the one thing that is not sufficient in
itself, but is indispensable if a guarantee of peace is
really to be created, the one thing that, in the unanimous
opinion of all who reckon with human beings as they really
are, is necessary, was not tackled at all:

To create a procedure by which the community of States can,
even against the will of the possessor, change conditions
that have become intolerable, in order to provide life with
the safety-valve it must have if it is to avoid an
explosion.

Just as the State can, if at all, avoid revolutions only by
good legislation and by adjusting the laws to the altered
manner of life in good time, so it is with the community of
States as well. Wilson also had this fundamental principle
in mind as we saw. One of the great British experts on
International Law, one of the enthusiastic, unconditional
and progressive adherents of the Paris Pact, McNair, took
this into account too when, in 1936, he wanted to have
placed beside collective force the collective and peaceful
revision of conditions which had become dangerous. This was
taken into account by the American experts on International
Law, Berchard and Fenwick, in their warning explanations of
the aspects of the situation connected with International
Law, shortly before the Second World War. The Government of
the German Reich had, by the way, pointed out this problem
which overshadowed all others, in Stresemann's note to the
American Ambassador dated 27th April, 1928, when
unconditionally agreeing to Kellogg's proposal.

The problem of "collective revision" was not seriously
tackled later on either. This is not surprising, if only
because the very character of such an institution
presupposes renunciation of their sovereignty by the States.
And can such a renunciation be considered in the times in
which we live? Philip Brown melancholically thinks that this
is less possible than ever. And for this reason a real
forward step in the question as to how war could literally
be outlawed was not practicable.

The Government of the United States and the League of
Nations did a great deal to satisfy the urgent demands of
the nations in spite of these inextricable interdependences.
They subsequently tried to give the pact a precise content
and "teeth". The science of International Law provided
suggestions for this and

                                                   [Page 88]

checked it. We must also trace this process briefly even
though it remained completely unsuccessful, because the seed
of the ideas contained in the Indictment are to be found
here, in so far as its line of argument is not a political
or ethical, but a legal one.

Firstly: In its ban on aggression, the Paris Pact
unquestionably starts from the political concept of
aggression. But in that it is quite indefinite. Shotwell and
Brierly, among others, tried to help immediately by deducing
a legal concept of aggression from the second article of the
Treaty, which article establishes the obligation to follow a
procedure of peaceful settlement. We can leave open the
question whether this interpretation may be applied to the
Treaty. In practice nothing is actually gained by doing so;
one kind of difficulty is simply put in the place of
another. There are no fewer obscurities: the measures of
peaceful settlement presuppose good will on both sides;
what, then, if it is lacking on the other side? And what is
still a measure of peaceful settlement and what is one no
longer? The Russian Government was quite right in the above-
mentioned note of 31st August, 1928, to the Briand-Kellogg
Pact when it expounded this question.

Then: Other attempts to help tried to develop a completely
new world constitution from the entirely indefinite pact by
means of logic. They are connected with the name of the
American Secretary of State Stimson and with the work of the
Budapest Meeting of the International Law Association in
1934. To understand this it is necessary to assume that the
Kellogg Pact really brought about, in a legally definable
manner, an unambiguous and unconditional renunciation of
war. Then, of course, there no longer exists the right to
wage wars as and when one likes. War waged against this
prohibition is an offence against the constitution of the
community of States. We are immediately faced by the
question:

Can the legal position of a State which attacks contrary to
law be the same as that of a State which is attacked
contrary to law?

If one answers: No, as does for instance the influential
French commentator of the League of Nations Covenant, Jean
Ray, does this then not mean the elimination of the most
important fundamental principles of classic International
Law?

(1) Do the international laws of war - which after all
proceed from the right to wage war freely and from the duel-
like character of war and, at any rate, the equality before
the law of the belligerents - apply for the evaluation of
the actions of the belligerent Powers against one another?

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