ginnings in isolated points, did not finally carry things to a conclusion in a single case.

With regard to the first point: The validity of the international laws of war during a war, whatever the latter's origin, has not as yet been seriously disputed by any state. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention 'to Resolution No. 3 of the League of Nations Assembly of the 4 October 1921 and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.54 The aggressor state has the same rights and duties in a war as the attacked nation, i.e. those laid down by the traditional international laws of war. The French Chief Prosecutor appears to wish to deviate from this line, but not to wish to draw the full conclusions. But I do not see any tendency to deviate from the present path even in the most recent practice of states.

With regard to the second point: Attempts have been made to deny the obligations imposed by neutrality, and in fact finally to give the states not involved the right of non-neutrality and even the right to wage war against the aggressor. Some statesmen and scholars have devoted themselves just as passionately to undermining and even to denying the right to neutrality as other statesmen and scholars have spoken in favor of its undiminished continuance 55. The clearer it became that the whole system of

Of the 8 March 1930. App.I exhibit 17, page 64. See also Rutgers in the "Recueil des Cours" (Academie de Droit International) vol.38,p.47. Also: "Budapest Articles" 7 (App.I, exhibit 23, page 79). Also: Josef Kunz, Plus de loi de la guerre? (Revue Generale de Droit International Public, 1934). Cohn, Neo-Neutrality (1939) App.II, exhibit 54.

The Peruvian delegate, CORNEJO, in the Committee of the Assembly of the League of Nations in 1929 (Assemblee 1929, C III J.O.,p.201): Neutrality no longer exists! Stimson: The Pact of Paris. Address, 8 August 1932 App. I, exhibit 20, page 76, passage (3).

Hull. Declaration on the Neutrality Law of 17 January 1936 / App. I, exhibit 27, page 83.

Speech by the Swedish Foreign Minister Sandler of the 6 Dec. 1936/ App. I, exhibit 27, page 84 seq.

3 October 1939: Declaration of Panama; the exchange of Notes by the 21 American Republics with Great Britain, France and Germany (23.12.1939; 14.1., 23.1, 14.2.1940) is based completely on the classic Neutrality Law. The Budapest Articles.

Literature: See in the index of authors and works-Appendix III-The works and papers by:

D'Astory, B. (1938), Baty, Th. (1939), Bonn, M.J. (1936/37). Borchard, E.M. (1936; 1937; 1938; 1941), Brierly, J.L. (1929; 1932), Brown, Ph.M. (1936; 1939), Buell (1936), Cohn (1939), Descamps, de (1930), Eagleton, Clyde (1937), Fenwick, Charles G. (1934; 1935; 1939), Fischer Williams, Sir John (1935; 1936); Garner, James Wilford (1936; 1938), Hambro, Edvard (1938); Hide, C.C. (1937; 1941), Jessup, P. C. (1932; 1935; 1936), Lauterpacht (1935, 1940), Mandelstam (1934), Miller, David Hunter (1928), McNair (1936), Politis, N. (1929; 1935), Rappard, W.E. (19351937), Schindler, D. (1938), Stimson, H. (1932), Stowell, Ellery C. (1932), Tenekides, C.C. (1939), Whitton, J.B. (1927,1932), Wright, Quincy (1940).

19

collective security did not function in the particular cases which were of decisive importance, namely in those cases where steps would have had to be taken against a great power, the more the idea of neutrality asserted itself with new strength. The complete discrediting of the League of Nations and of the system of the Briand-Kellogg Pact in the Abyssinian conflict put classic international law back in its old position again here too.

In 1935 Switzerland declared her unrestricted neutrality56; Belgium, Denmark, Finland, Luxemburg, Norway, Holland and Sweden followed with their Declaration at Copenhagen on 24 July 1938. The failure of the League of Nations was the reason, this fact also being mentioned openly.

With reference to the third point: The following is the idea of the policy of non-recognition. The states not involved in a conflict should conduct themselves as members of the community of states, i.e. they should protect the constitution of the community of states by refusing to recognize the fruits of the victor's victory, should he have been the aggressor. The situation he has created by force should not even seem to become a legal situation. He will thus be deprived of what he has gained, and one of the main inducements to wage war will thereby be eliminated. Such a policy of non-recognition is undoubtedly not enough to guarantee a system of collective security by itself, but it is an indispensable part of such an order. There can be, no dispute about this. The Brazilian representative Braga gained merit by proposing, at the 2nd League Assembly in 1921 such a policy to be followed by the members of the League of Nations under the name of a "universal juridical blockade" (blocus juridique universel) 58. The Finnish representative Procope interpreted Article 10 of the Covenant in this sense in 1930 before the League Assembly.59 The Notes of the American Secretary of State Stimson of 7 January 1932 to China and Japan made this idea echo throughout the world.60 Their contents are commonly called the Stimson Doctrine. The League of Nations accepted the Doctrine as a resolution of the Assembly dated the 11 March 1932.1 The idea was later the central point of the Pact of Rio de Janeiro of 10 October 193362 and of the Budapest Articles of 10 September 19340s.

50 Reservations of the Swiss delegation (M.Motta) of 10.10. 1935/App. I, exhibit 25, p.81/82, especially the passages (3), (4), (5).

The conflict between Italy and Abyssinia in 1935-1936 became the great test-case, which decided the fate of the system of collective security: The League of Nations declared a member which was a great power to be the aggressor and decreed economic sanctions, but then shrank from coercive military measures and finally, after Italy's victory, struggled painfully in debates on procedure, especially at the 18th Assembly of the League, to find an answer to the question as to how the League, without openly betraying its constitution, could cross the attacked member, the minor-power Abyssinia, off the list of existing states and recognize it as part of the Italian Empire. The United States also did not enforce the Stimson Doctrine, but remained strictly neutral 65 66

68

It is necessary to know all this; and also to know that the British Government on 20 February 1935 politely but firmly refused, through the Lord Chancellor, Viscount Sankey7, to accept the logical deductions, and paid tribute to the old truth; it is not logic but history that creates law. On a later occasion, when Secretary of State Cordell Hull had explained the principles of American policy to all the powers on the 16 July 1937,69 the Portuguese government issued a warning against "the abstract and generalizing tendency of jurists"; it warned against attempts to "find a single formula" and against not studying historic facts sufficiently.

"Jean Ray, 4th Supplement to the Commentary, 1935, p.10;

“A statesman said one day, speaking of article 16, that if it was applied, it would undoubtedly only be applied once. One can say the same thing about the whole machinery which is intended to be an obstacle against war." See also Fischer Williams, Sir John, Sanctions under the Covenant (Br.YB 1936) and McNair, Arnold D., Collective Security (ibid.App. II, exhibit 48 and 49, p.134, passage (1) and p.140, passage (1).

With reference to the Stimson Doctrine and the case of Abyssinia, see in the index of authors and works-Appendix III-the works and papers of Borchard (1933), Fischer Williams (1936), McNair (1933), Sharp (1934), Stimson (1932), Wild (1932), Wright (1932, 1933).

64 With reference to the system of "collective security", see from the literature concerning the whole position in international law (App. III): Briefly (1932), Bourquin (1934), Brouckere (1934), Cuten (1931), Descamp (1930), Eagleton (1930, 1937, 1938), Elbe (1939), Fenwick (1932,1934, 1935,1939), Fischer Williams (1932, 1933, 1935, 1936), Giraud (1934), Garner (1936), Graham (1929, 1934), Hill (1932), Hyde (1941), Jessup (1935), Mandelstam (1934), Politis (1929), Ritgers 1931, Shotwell (1928), Wickersham (1928/1929), Whitton (1932), Wright (1942).

68

"Parl. Deb., H.L. 5th ser., vol.95, cols.1007, 1043, App. I, exhibit 24, page 80. Lauterpacht, The Pact of Paris and the Budapest Articles of Interpretation (Transactions of the Grotius Society, XX, 1935, p.178) draws the conclusion from the fact that States can accept or reject what was logically deducted to be legal in Budapest. Jessup asserts that the States did not accept the Budapest Articles (Neutrality, its History, Economics and Law, Vol.IV, Today and Tomorrow, 1936, App. II, exhibit 47, p.132, passages (1), (2).).

TO

See A.J. vol.31, 1937, p.680-693.

See the concurring statements by Kuhn, Arthur K.: Observations of Foreign Governments upon Secretary Hull's Principles of Enduring Peace (A.J., vol.32, 1938, p.101, 106). App. III, exhibit 51, p.145, passages (3) and (4) and p.147, passage (8).

768060-48-3

We therefore come to the conclusion that: In the practice of the relations between states there existed-at least during several years prior to 1939-no effective general ruling of international law regarding prohibited war.

No such general ruling existed so far as the leading statesmen and the peoples were aware. This is, in fact, the ultimate reason why the path of special rulings on international law was followed to an ever increasing extent: two states would then conclude treaties, in full knowledge of their particular historical conditions and with a view to securing peace between themselves.

Now, during the second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers and it later received the assistance of LendLease. The American public recognized this act of assistance as being essentially no longer neutral; it was regretted by some, welcomed by others, now attacked and now defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly did not attempt to justify them as consistent with neutrality. On the contrary, they took up their stand on the Pact of Paris as interpreted by the Budapest Articles". As we saw, this would, according to Viscount Sankey's indisputably correct conception of what are the sources of international law, have been wrong even in 1935.

After the developments which had taken place since Italy's victory over Abyssinia, such discussions were entirely outside the field of legal realities. Their purpose was to resolve internal dissensions in America and they could therefore be of no direct importance for international law. Even had these discussions taken place between states, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, during the great struggle, a law to attain which so many efforts-efforts which proved to be Utopian -were made in vain in peacetime? In this court many ways of legal thinking meet-ways which are in part very different. This leads to certain insoluble differences of opinion. But no way of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles, about the contents of which they are of different opinions, and if these articles then find no real application in the practice of these

See Wright in A.J., vol.34,1940, p.680 seq.

Particularly Stimson's speech of the 6.1.1941 should be mentioned here. (App. I, exhibit 41, p.115/116.)

governments-which is not to be wondered at considering the circumstances under which they arose-and if theorists then interpret these articles and the practice of Governments rejects these interpretations either expressly or tacitly, one must then resign oneself to this, in so far as one wants to keep to the task of legal appreciation, no matter how much the goal may be worth striving for politically or morally.

But let us forget for a moment the bitter realities of those years following the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the Contracting Parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be laid down in international law? No, not even the liability of the State to punishment, let alone that of individuals.

The breach of such a treaty would not differ under the international law at present valid from any other violation of international law. The state which violates a treaty would commit an offense against international law, but not a punishable act72. Attempts were occasionally made to deduce from the word "delit" (offense), "crime international" (international crime) and "condemnation de la guerre" (condemnation of war) the existence of an International Criminal Law dealing with our case. Such conclusions are based on wrong premises73. Every lawyer knows that any unlawful behavior can be called a "delit" (delictum), not only punishable behavior. And the word "crime" is used even entirely outside the legal sphere. And this is precisely the case here! When, in 1927, on Poland's application, the League of Nations Assembly declared war to be an international crime, the Polish representative expressly stated that the declaration was not actually a legal instrument, but an act of moral and educational importance."

The attempt to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties, whose purpose it is to preclude wars of aggression between the two partners, became inapplicable. One will actually have to examine whether the parties to the treaty

Fischer Williams also stresses this in his "Sanctions under the Covenant" (Br.YB, 1936, p.130 seq. App. II, exhibit 48, particularly p.136). Also Kelsen: Collective and Individual Responsibility * (1943), p.531

App. II, exhibit 57, page 166, passage (5). Fischer Williams gives an only too justifiable warning against false ideas about the words "international crime" in his "Sanctions under the Covenant" (Br.YB, 1936, p.130 seq. App. II, exhibit 48, p.136, passage (3). "Actes de l'Assemblee, 1927, P., p.153. Also Jean RAY, Commentaire, p.74

75.