Volga as well as the Baku district must likewise be incorporated into the Reich. The Finns want Eastern Karelia. However, in view of the large deposits of nickel, the Kola peninsula must be ceded to Germany."

It was contended for the defendants that the attack upon the USSR was justified because the Soviet Union was contemplating an attack upon Germany, and making preparations to that end. It is impossible to believe that this view was ever honestly entertained.

The plans for the economic exploitation of the USSR, for the removal of masses of the population, for the murder of commissars and political leaders, were all part of the carefully prepared scheme launched on the 22d June without warning of any kind, and without the shadow of legal excuse. It was plain aggression.

(K) WAR AGAINST THE UNITED STATES

Four days after the attack launched by the Japanese on the United States fleet in Pearl Harbor on December 7, 1941, Germany declared war on the United States.

The Tripartite Pact between Germany, Italy, and Japan, had been signed on the 27th September 1940, and from that date until the attack upon the USSR the defendant von Ribbentrop, with other defendants, was endeavoring to induce Japan to attack British possessions in the Far East. This, it was thought, would hasten England's defeat, and keep the United States out of the war.

The possibility of a direct attack on the United States was considered and discussed as a matter for the future. Major von Falkenstein, the Luftwaffe liaison officer with the Operations Staff of the OKW, summarizing military problems which needed discussion in Berlin in October of 1940, spoke of the possibility "of the prosecution of the war against America at a later date". It is clear, too, that the German policy of keeping America out of the war, if possible, did not prevent Germany promising support to Japan even against the United States. On the 4th April 1941, Hitler told Matsuoka, the Japanese Foreign Minister, in the presence of the defendant von Ribbentrop, that Germany would "strike without delay" if a Japanese attack on Singapore should lead to war between Japan and the United States. The next day von Ribbentrop himself urged Matsuoka to bring Japan into the war.

On the 28th November 1941, 10 days before the attack on Pearl Harbor, von Ribbentrop encouraged Japan, through her Ambassador in Berlin, to attack Great Britain and the United States, and stated that should Japan become engaged in a war with the United States, Germany would join the war immediately. A few days later, Japanese representatives told Germany and Italy that Japan was preparing to

attack the United States, and asked for their support. Germany and Italy agreed to do this, although in the Tripartite Pact, Italy and Germany had undertaken to assist Japan only if she were attacked. When the assault on Pearl Harbor did take place, the defendant von Ribbentrop is reported to have been "overjoyed," and later, at a ceremony in Berlin, when a German medal was awarded to Oshima, the Japanese Ambassador, Hitler indicated his approval of the tactics which the Japanese had adopted of negotiating with the United States as long as possible, and then striking hard without any declaration of war.

Although it is true that Hitler and his colleagues originally did not consider that a war with the United States would be beneficial to their interest, it is apparent that in the course of 1941 that view was revised, and Japan was given every encouragement to adopt a policy which would almost certainly bring the United States into the war. And when Japan attacked the United States fleet in Pearl Harbor and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.

IV. VIOLATIONS OF INTERNATIONAL TREATIES

The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against 10 nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements, or assurances." These treaties are set out in appendix C of the indictment. Those of principal importance are the following:

(A) HAGUE CONVENTIONS

In the 1899 Convention the signatory powers agreed: "before an appeal to arms. . . to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers." A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, article I contains this far more specific language:

"The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war."

Germany was a party to these conventions.

(B) VERSAILLES TREATY

Breaches of certain provisions of the Versailles Treaty are also relied on by the prosecution-not to fortify the left bank of the Rhine (art. 42-44); to "respect strictly the independence of Austria" (art. 80); renunciation of any rights in Memel (art. 99) and the Free City of Danzig (art. 100); the recognition of the independence of the Czecho-Slovak State; and the Military, Naval, and Air Clauses against German rearmament found in part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set out in appendix C. With regard to the Treaty of Versailles, the matters relied on are:

1. The violation of articles 42 to 44 in respect of the demilitarized zone of the Rhineland.

2. The annexation of Austria on the 13th March 1938, in violation of article 80.

3. The incorporation of the district of Memel on the 22d March 1939, in violation of article 99.

4. The incorporation of the Free City of Danzig on the 1st September 1939, in violation of article 100.

5. The incorporation of the provinces of Bohemia and Moravia on the 16th March 1939, in violation of article 81.

6. The repudiation of the military naval and air clauses of the treaty, in or about March of 1935.

On the 21st May 1935, Germany announced that, whilst renouncing the disarmament clauses of the treaty, she would still respect the territorial limitations, and would comply with the Locarno Pact. (With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.)

(C) TREATIES OF MUTUAL GUARANTEE, ARBITRATION, AND

NON-AGGRESSION

It is unnecessary to discuss in any detail the various treaties entered into by Germany with other powers. Treaties of Mutual Guarantee were signed by Germany at Locarno in 1925, with Belgium, France, Great Britain, and Italy, assuring the maintenance of the territorial status quo. Arbitration treaties were also executed by Germany at Locarno with Czechoslovakia, Belgium, and Poland.

Article I of the latter treaty is typical, providing:

"All disputes of every kind between Germany and Poland... which it may not be possible to settle amicably by the normal methods of diplomacy, shall be submitted for decision to an arbitral tribunal. ..

"

Conventions of arbitration and conciliation were entered into between Germany, the Netherlands, and Denmark in 1926; and be

tween Germany and Luxemburg in 1929. Nonaggression treaties were executed by Germany with Denmark and Russia in 1939.

(D) KELLOGG-BRIAND PACT

The Pact of Paris was signed on the 27th August 1928 by Germany, the United States, Belgium, France, Great Britain, Italy, Japan, Poland, and other countries; and subsequently by other powers. The Tribunal has made full reference to the nature of this Pact and its legal effect in another part of this judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal this pact was violated by Germany in all the cases of aggressive war charged in the indictment. It is to be noted that on the 26th January 1934, Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in which the use of force was outlawed for a period of 10 years.

The Tribunal does not find it necessary to consider any of the other treaties referred to in the appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany.

(E) 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 preexisting 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 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.

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, för 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 August 27, 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 civilized nations of the world in a common renunciation of war as an instrument of their national policy