>The Law Of The Charter
[Page 40]
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:
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:
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:
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 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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(Part 2 of 2)
"The Assembly:
"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."
"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."
"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."
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