every principle of growth for International Law, we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law. International Law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in International Law are brought about by the action of governments designed to meet a change in circumstances. It grows, as did the Common-law, through decisions reached from time to time in adapting settled principles to new situations. Hence I am not disturbed by the lack of precedent for the inquiry we propose to conduct. After the shock to civilization of the last World War, however, a marked reversion to the earlier and sounder doctrines of International Law took place. By the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise. It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal.

The reestablishment of the principle of unjustifiable war is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy and Japan, in common with ourselves and practically all the nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close to being an act of deception. In 1932, Mr. Stimson, as Secretary of State, gave voice to the American concept of its effect. He said, "War between nations was renounced by the signatories of the Briand-Kellogg Treaty. 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. By that very act, we have made obsolete many legal precedents and have given the legal profession the task of re-examining many of its codes and treaties."

This Pact constitutes only one in a series of acts which have reversed the viewpoint that all war is legal and have brought International Law into harmony with the common sense of mankind, that unjustifiable war is a crime. Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of fortyeight governments, which declared that "a war of aggression consti

tutes. . . an international crime". The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that "war of aggression constitutes an international crime against the human species." The United States is vitally interested in recognizing the principle that treaties renouncing war have juridical as well as political meaning. We relied upon the Briand-Kellogg Pact and made it the cornerstone of our national policy. We neglected our armaments and our war machine in reliance upon it. All violations of it, wherever started, menace our peace as we now have good reason to know. An attack on the foundations of international relations cannot be regarded as anything less than a crime against the international community, which may properly vindicate the integrity of its fundamental compacts by punishing aggressors. We therefore propose to charge that a war of aggression is a crime, and that modern International Law has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be mobilized on the side of peace.

Any legal position asserted on behalf of the United States will have considerable significance in the future evolution of International Law. In untroubled times, progress toward an effective rule of law in the international community is slow indeed. Inertia rests more heavily upon the society of nations than upon any other society. Now we stand at one of those rare moments when the thought and institutions and habits of the world have been shaken by the impact of world war on the lives of countless millions. Such occasions rarely come and quickly pass. We are put under a heavy responsibility to see that our behavior during this unsettled period will direct the world's thought toward a firmer enforcement of the laws of international conduct, so as to make war less attractive to those who have governments and the destinies of peoples in their power.

V.

I have left until last the first question which you and the American people are asking-when can this trial start and how long will it take. I should be glad to answer if the answer were within my control. But it would be foolhardy to name dates which depend upon the action of other governments and of many agencies. Inability to fix definite dates, however, would not excuse failure to state my attitude toward the time and duration of trial.

I know that the public has a deep sense of urgency about these trials.

Because I, too, feel a sense of urgency, I have proceeded with the preparations of the American case before completion of the diplomatic exchanges concerning the Tribunal to hear it and the agreement under which we are to work. We must, however, recognize the existence of serious difficulties to be overcome in preparation of the case. It is no criticism to say that until the surrender of Germany the primary objective of the military intelligence services was naturally to gather military information rather than to prepare a legal case for trial. We must now sift and compress within a workable scope voluminous evidence relating to a multitude of crimes committed in several countries and participated in by thousands of actors over a decade of time. The preparation must cover military, naval, diplomatic, political, and commercial aggressions. The evidence is scattered among various agencies and in the hands of several armies. The captured documentary evidence-literally tons of orders, records, and reports-is largely in foreign languages. Every document and the trial itself must be rendered into several languages. An immense amount of work is necessary to bring this evidence together physically, to select what is useful, to integrate it into a case, to overlook no relevant detail, and at the same time and at all costs to avoid becoming lost in a wilderness of single instances. Some sacrifice of perfection to speed can wisely be made and, of course, urgency overrides every personal convenience and comfort for all of us who are engaged in this work.

Beyond this I will not go in prophecy. The task of making this record complete and accurate, while memories are fresh, while witnesses are living, and while a tribunal is available, is too important to the future opinion of the world to be undertaken before the case can be sufficiently prepared to make a creditable presentation. Intelligent, informed, and sober opinion will not be satisfied with less.

The trial must not be protracted in duration by anything that is obstructive or dilatory, but we must see that it is fair and deliberative and not discredited in times to come by any mob spirit. Those who have regard for the good name of the United States as a symbol of justice under law would not have me proceed otherwise.

May I add that your personal encouragement and support have been a source of strength and inspiration to every member of my staff, as well as to me, as we go forward with a task so immense that it can never be done completely or perfectly, but which we hope to do acceptably.

Respectfully yours,

ROBERT H. JACKSON

Draft of Proposed

IX. Revision of American Draft

Agreement, June 14, 1945

Note: On June 11, 1945, the British Ambassador in Washington presented to the Secretary of State an aide-mémoire inviting the United States to send representatives to London for discussions of the prosecution of war criminals beginning on or about June 25. Similar invitations were addressed to the Soviet and French Governments. These invitations were accepted first by the United States and later by the Soviet and French Governments.

Meanwhile, the legal staff assembled by Mr. Justice Jackson studied the draft of the proposal and, without changing it in principle, suggested various revisions. On June 14, 1945, a revised draft was transmitted to the Embassies of the United Kingdom, the Soviet Union, and the Provisional Government of France at Washington for the information and consideration of their Governments before the approaching London Conference. It was explained that the draft did not contain changes suggested by any of those Governments but that their omission did not mean that many of them were not acceptable to the United States.

The following draft is the one which was so submitted and which was taken up for analysis and criticism by the London Conference when it convened on June 26, 1945.

EXECUTIVE AGREEMENT RELATING TO THE PROSECUTION OF EUROPEAN AXIS

WAR CRIMINALS

1. WHEREAS: (1) The Declaration issued at Moscow on November 1, 1943 stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes "will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments that will be created therein"; and

(2) this Declaration was stated to be "without prejudice to the case of major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies";

NOW THEREFORE joint action is necessary to provide for the prompt prosecution and trial of the major criminals of the European Axis Powers, including the organizations, responsible for or taking a consenting part in the commission of crimes and in the execution of criminal plans.

2. To provide the necessary practical measures for the achievement of these ends, this Executive Agreement is entered into by the Governments of the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, acting by their respective duly authorized representatives.

3. All members of the United Nations shall be invited by the Government of the United Kingdom, acting on behalf of the other signatories hereto, to adhere to this Agreement. Such adherence shall in each case be notified to the Government of the United Kingdom which shall promptly inform the other parties to this Agreement.

4. For convenience, (a) the four signatories will sometimes be referred to as "the Signatories," (b) the members of the United Nations adhering hereto as provided in the preceding Article will sometimes be referred to as "the Adherents," and (c) the Signatories and all Adherents will sometimes be collectively referred to as "the parties to this Agreement".

INTERNATIONAL MILITARY TRIBUNALS

5. There shall be set up by the Control Council for Germany one or more international military tribunals (hereinafter referred to as "International Military Tribunal") which shall have jurisdiction to hear and determine any charges presented pursuant to Article 10. Each such International Military Tribunal shall consist of four members, each with an alternate, to be appointed as follows: One member and one alternate each by the representatives upon the Control Council for Germany of the Soviet Union, the United States, the United Kingdom and France. The alternate, so far as practicable, shall be present at the sessions of the tribunal. The presiding officer of each International Military Tribunal shall be selected by the members of the tribunal, and if they are unable to agree, he shall be selected by lot.

6. In the event of the death or incapacity of any member of an International Military Tribunal, his alternate shall sit in his stead without interruption of the proceedings. All actions and decisions shall be taken by majority vote.

7. An International Military Tribunal may sit in any zone in Germany, Austria or Italy or in any other country with the consent of such country. It shall have the power to summon witnesses including defendants and to require their attendance and testimony, to require the production of documents, to administer oaths, to appoint special