Archive/File: imt/ tgmwc/judgment/j-law-charter
Last-Modified: 1997/09/13

                          Judgment
                           of the
               International Military Tribunal
                           For The
             Trial of German Major War Criminals

                           London
               His Majesty's Stationery Office
                            1951

                                                   [Page 38]
                                                            
                   THE LAW OF THE CHARTER
                              
The jurisdiction of the Tribunal is defined in the Agreement
and Charter, and the crimes coming within the jurisdiction
of the Tribunal, for which there shall be individual
responsibility, are set out in Article 6. The law of the
Charter is decisive, and binding upon the Tribunal.

The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of
these countries to legislate for the occupied territories
has been recognized by the civilized world. The Charter is
not an arbitrary exercise of power on the part of the
victorious Nations, but in the view of the Tribunal, as will
be shown, it is the expression of international law existing
at the time of its creation; and to that extent is itself a
contribution to international law.

The Signatory Powers created this Tribunal, defined the law
it was to administer, and made regulations for the proper
conduct of the Trial. In doing so, they have done together
what any one of them might have done singly; for it is not
to be doubted that any nation has the right thus to set up
special courts to administer law. With regard to the
constitution of the Court, all that the defendants are
entitled to ask is to receive a fair trial on the facts and
law.

The Charter makes the planning or waging of a war of
aggression or a war in violation of international treaties a
crime; and it is therefore not strictly necessary to
consider whether and to what extent aggressive war was a
crime before the execution of the London Agreement. But in
view of the great importance of the questions of law
involved, the Tribunal has heard full argument from the
Prosecution and the Defense, and will express its view on
the matter.

It was urged on behalf of the defendants that a fundamental
principle of all law  international and domestic  is that
there can be no punishment of crime without a pre-existing
law. "Nullum crimen sine lege, nulla poena sine lege." It
was submitted that ex post facto punishment is abhorrent to
the law of all civilized nations, that no sovereign power
had made aggressive war a crime at the time that the alleged
criminal acts were committed, that no statute had defined
aggressive war, that no penalty had been fixed for its
commission, and no court had been created to try and punish
offenders.

                                                   [Page 39]

In the first place, it is to be observed that the maxim
nullum crimen sine lege is not a limitation of sovereignty,
but is in general a principle of justice. To assert that it
is unjust to punish those who in defiance of treaties and
assurances have attacked neighboring states without warning
is obviously untrue, for in such circumstances the attacker
must know that he is doing wrong, and so far from it being
unjust to punish him, it would be unjust if his wrong were
allowed to go unpunished. Occupying the positions they did
in the Government of Germany, the defendants, or at least
some of them must have known of the treaties signed by
Germany, outlawing recourse to war for the settlement of
international disputes, they must have known that they were
acting in defiance of all international law when in complete
deliberation they carried out their designs of invasion and
aggression. On this view of the case alone it would appear
that the maxim has no application to the present facts.

This view is strongly reinforced by a consideration of the
state of international law in 1939, so far as aggressive war
is concerned. The General Treaty for the Renunciation of War
of 27th August, 1928, more generally known as the Pact of
Paris or the Kellogg-Briand Pact, was binding on 63 nations,
including Germany, Italy, and Japan at the outbreak of war
in 1939. In the preamble, the signatories declared that they
were:

     "Deeply sensible of their solemn duty to promote
     the welfare of mankind; persuaded that the time
     has come when a frank renunciation of war as an
     instrument of national policy should be made to
     the end that the peaceful and friendly relations
     now existing between their peoples should be
     perpetuated .... all changes in their relations
     with one another should be sought only by pacific
     means ..thus uniting civilised nations of the
     world in a common renunciation of war as an
     instrument of their national policy ...."

The first two articles are as follows:

     "Article I. The High Contracting Parties solemnly
     declare in the names of their respective peoples
     that they condemn recourse to war for the solution
     of international controversies and renounce it as
     an instrument of national policy in their
     relations to one another."
     
     "Article II. The High Contracting Parties agree
     that the settlement or solution of all disputes or
     conflicts of whatever nature or whatever origin
     they may be, which may arise among them, shall
     never be sought except by pacific means."

The question is, what was the legal effect of this Pact? The
nations who signed the Pact or adhered to it unconditionally
condemned recourse to war for the future as an instrument of
policy, and expressly renounced it. After the signing of the
Pact, any nation resorting to war as an instrument of
national policy breaks the Pact. In the opinion of the
Tribunal, the solemn renunciation of war as an instrument of
national policy necessarily involves the proposition that
such a war is illegal in international law; and that those
who plan and wage such a war, with its inevitable and
terrible consequences, are committing a crime in so doing.
War for the solution of international controversies
undertaken as an instrument of national policy certainly
includes a war of aggression, and such a war is therefore
outlawed by the Pact. As Mr. Henry L. Stimson, then
Secretary of State of the United States, said in 1932:--

     "War between nations was renounced by the
     signatories of the Kellogg-Briand Treaty. This
     means that it has become throughout practically
     the entire world ....an illegal thing. Hereafter,
     when
     
                                              [Page 40]
     
     nations engage in armed conflict, either one or
     both of them must be termed violators of this
     general treaty law .. We denounce them as law
     breakers."

But it is argued that the Pact does not expressly enact that
such wars are crimes, or set up courts to try those who make
such wars. To that extent the same is true with regard to
the laws of war contained in the Hague Convention. The Hague
Convention of 1907 prohibited resort to certain methods of
waging war. These included the inhumane treatment of
prisoners, the employment of poisoned weapons, the improper
use of flags of truce, and similar matters. Many of these
prohibitions had been enforced long before the date of the
Convention; but since 1907 they have certainly been crimes,
punishable as offenses against the laws of war; yet the
Hague Convention nowhere designates such practices as
criminal, nor is any sentence prescribed, nor any mention
made of a court to try and punish offenders. For many years
past, however, military tribunals have tried and punished
individuals guilty of violating the rules of land warfare
laid down by this Convention. In the opinion of the
Tribunal, those who wage aggressive war are doing that which
is equally illegal, and of much greater moment than a breach
of one of the rules of the Hague Convention.

In interpreting the words of the Pact, it must be remembered
that international law is not the product of an
international legislature, and that such international
agreements as the Pact of Paris have to deal with general
principles of law, and not with administrative matters of
procedure. The law of war is to be found not only in
treaties, but in the customs and practices of states which
gradually obtained universal recognition, and from the
general principles of justice applied by jurists and
practised by military courts. This law is not static, but by
continual adaptation follows the needs of a changing world.
Indeed, in many cases treaties do no more than express and
define for more accurate reference the principles of law
already existing.

The view which the Tribunal takes of the true interpretation
of the Pact is supported by the international history which
preceded it. In the year 1923 the draft of a Treaty of
Mutual Assistance was sponsored by the League of Nations. In
Article I the Treaty declared "that aggressive war is an
international crime", and that the parties would "undertake
that no one of them will be guilty of its commission". The
draft treaty was submitted to twenty-nine states, about half
of whom were in favor of accepting the text. The principal
objection appeared to be in the difficulty of defining the
acts which would constitute "aggression", rather than any
doubt as to the criminality of aggressive war. The preamble
to the League of Nations 1924 Protocol for the Pacific
Settlement of International Disputes ("Geneva Protocol"),
after "recognising the solidarity of the members of the
international community", declared that "a war of aggression
constitutes a violation of this solidarity and is an
international crime." It went on to declare that the
contracting parties were "desirous of facilitating the
complete application of the system provided in the Covenant
of the League of Nations for the pacific settlement of
disputes between the States and of ensuring the repression
of international crimes." The Protocol was recommended to
the members of the League of Nations by a unanimous
resolution in the assembly of the forty-eight members of the
League. These members included Italy and Japan, but Germany
was not then a member of the League.

Although the Protocol was never ratified, it was signed by
the leading statesmen of the world, representing the vast
majority of the civilized states and peoples, and may be
regarded as strong evidence of the intention to brand
aggressive war as an international crime.

                                                   [Page 41]

At the meeting of the Assembly of the League of Nations on
the 24th September, 1927, all the delegations then present
(including the German, the Italian, and the Japanese),
unanimously adopted a declaration concerning wars of
aggression. The preamble to the declaration stated:

     "The Assembly:
     
     Recognizing the solidarity which unites the
     community of nations;
     
     Being inspired by a firm desire for the
     maintenance of general peace;
     
     Being convinced that a war of aggression can never
     serve as a means of settling international
     disputes, and is in consequence an international
     crime...."

The unanimous resolution of the 18th February, 1928, of
twenty-one American republics at the Sixth (Havana) Pan-
American Conference, declared that "war of aggression
constitutes an international crime against the human
species."

All these expressions of opinion, and others that could be
cited, so solemnly made, reinforce the construction which
the Tribunal placed upon the Pact of Paris, that resort to a
war of aggression is not merely illegal, but is criminal.
The prohibition of aggressive war demanded by the conscience
of the world, finds its expression in the series of pacts
and treaties to which the Tribunal has just referred.

It is also important to remember that Article 227 of the
Treaty of Versailles provided for the constitution of a
special Tribunal, composed of representatives of five of the
Allied and Associated Powers which had been belligerents in
the first World War opposed to Germany, to try the former
German Emperor "for a supreme offense against international
morality and the sanctity of treaties." The purpose of this
trial was expressed to be "to vindicate the solemn
obligations of international undertakings, and the validity
of international morality". In Article 228 of the Treaty,
the German Government expressly recognized the right of the
Allied Powers "to bring before military tribunals persons
accused of having committed acts in violation of the laws
and customs of war".

It was submitted that international law is concerned with
the actions of sovereign States, and provides no punishment
for individuals; and further, that where the act in question
is an act of State, those who carry it out are not
personally responsible, but are protected by the doctrine of
the sovereignty of the State. In the opinion of the
Tribunal, both these submissions must be rejected. That
international law imposes duties and liabilities upon
individuals as well as upon States has long been recognized.
In the recent case of Ex Parte Quirin (1942 317 US 1),
before the Supreme Court of the United States, persons were
charged during the war with landing in the United States for
purposes of spying and sabotage. The late Chief Justice
Stone, speaking for the Court, said:

     "From the very beginning of its history this Court
     has applied the law of war as including that part
     of the law of nations which prescribes for the
     conduct of war, the status, rights, and duties of
     enemy nations as well as enemy individuals."

He went on to give a list of cases tried by the Courts,
where individual offenders were charged with offenses
against the laws of nations, and particularly the laws of
war. Many other authorities could be cited, but enough has
been said to show that individuals can be punished for
violations of international law. Crimes against
international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.

                                                   [Page 42]

The provisions of Article 228 of the Treaty of Versailles
already referred to illustrate and enforce this view of
individual responsibility.

The principle of international law, which under certain
circumstances, protects the representatives of a state,
cannot be applied to acts which are condemned as criminal by
international law. The authors of these acts cannot shelter
themselves behind their official position in order to be
freed from punishment in appropriate proceedings. Article 7
of the Charter expressly declares:

     "The official position of Defendants, whether as
     heads of State, or responsible officials in
     Government departments, shall not be considered as
     freeing them from responsibility, or mitigating
     punishment."

On the other hand the very essence of the Charter is that
individuals have international duties which transcend the
national obligations of obedience imposed by the individual
state. He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the
state if the state in authorising action moves outside its
competence under international law.

It was also submitted on behalf of most of these defendants
that in doing what they did they were acting under the
orders of Hitler, and therefore cannot be held responsible
for the acts committed by them in carrying out these orders.
The Charter specifically provides in Article 8:

     "The fact that the Defendant acted pursuant to
     order of his Government or of a superior shall not
     free him from responsibility, but may be
     considered in mitigation of punishment."

The provisions of this article are in conformity with the
law of all nations. That a soldier was ordered to kill or
torture in violation of the international law of war has
never been recognized as a defense to such acts of
brutality, though, as the Charter here provides, the order
may be urged in mitigation of the punishment. The true test,
which is found in varying degrees in the criminal law of
most nations, is not the existence of the order, but whether
moral choice was in fact possible.

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