The Law Of The Charter
[Page 38]
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:
The first two articles are as follows:
"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:--
[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.
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(Part 1 of 2)
"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 ...."
"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."
"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
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