« ПредыдущаяПродолжить »
invented by the Victors to embody in this Charter. They have figured prominently in numerous treaties, in governmental pronouncements and in declarations of Statesmen in the period preceding the Second World War. In treaties concluded between the Union of Soviet Socialist Republics and other States—such as Persia (1 October 1927), France (2 May 1935), China (21 August 1937)—the Contracting Parties undertook to refrain from any act of aggression whatsoever against the other Party. In 1933 the Soviet Union became a party to a large number of treaties containing a detailed definition of aggression. The same definition appeared in the same year in the authoritative Report of the Committee on Questions of Security set up in connection with the Conference for the Reduction and the Limitation of Armaments. But States went beyond commitments to refrain from wars of aggression and to assist States victims of aggression. They condemned wars of aggression. Thus in the AntiWar Treaty of Non-Aggression and Conciliation of 10 October 1933, a number of American States subsequently joined by practically all the States of the American Continent and a number of European countries—the Contracting Parties solemnly declared that "they condemned wars of aggression in their mutual relations or in those of other States." That Treaty was fully incorporated into the Buenos Aires Convention of December 1936 signed and ratified by a large number of American countries, including the United States of America. Previously, in February 1928, the Sixth Pan-American Conference adopted a Resolution declaring that as "war of aggression constitutes a crime against the human species * * * all aggression is illicit and as such is declared prohibited.” In September 1927 the Assembly of the League of Nations adopted a resolution affirming the conviction that “a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime" and declaring that “all wars of aggression are, and shall always be, prohibited.” The first Article of the Draft Treaty for Mutual Assistance of 1923 reads: "The High Contracting Parties, affirming that aggressive war is an international crime, undertake the solemn engagement not to make themselves guilty of this crime against any other nation.” In the Preamble to the Geneva Protocol of 1924 it was stated that “offensive warfare constitutes an infraction of solidarity and an international crime.” These instruments remained unratified, for various reasons, but they are not without significance or instruction.
These repeated condemnations of wars of aggression testified to the fact that, with the establishment of the League of Nations
and with the legal developments which followed it, the place of war in International Law had undergone a profound change. War was ceasing to be the unrestricted prerogative of sovereign States. The Covenant of the League did not totally abolish the right of war. It left certain gaps which probably were larger in theory than in practice. In effect it surrounded the right of war by procedural and substantive checks and delays which, if the Covenant had been observed, would have amounted to an elimination of war not only between Members of the League, but also, by virtue of certain provisions of the Covenant, in the relations of non-Members. Thus the Covenant restored the position as it existed at the dawn of International Law, at the time when Grotius was laying the foundations of the modern law of nations and established the distinction, accompanied by profound legal consequences in the sphere of neutrality, between just and unjust wars.
Neither was that development arrested with the adoption of the Covenant. The right of war was further circumscribed by a series of treaties—numbering nearly one thousand—of arbitration and conciliation embracing practically all the nations of the world. The so-called Optional Clause of Article 36 of the Statute of the Permanent Court of International Justice which conferred upon the Court compulsory jurisdiction with regard to most comprehensive categories of disputes and which constituted in effect the most important compulsory treaty of arbitration in the postwar period, was widely signed and ratified. Germany herself signed it in 1927; her signature was renewed and renewed, for a period of five years, by the National Socialist Government in July 1933. (Significantly, that ratification was not renewed on the expiration of its validity in March 1938.) Since 1928 a considerable number of States signed and ratified the General Act for the Pacific Settlement of International Disputes which was designed to fill the gaps left by the Optional Clause and the existing treaties of arbitration and conciliation.
All this vast network of instruments of pacific settlement testified to the growing conviction that war was ceasing to be the normal and legitimate means of settling international disputes. The express condemnation of wars of aggression, which has already been mentioned, supplied the same testimony. But there was more direct evidence pointing in that direction. The Treaty of Locarno of 16th October 1925, to which I will refer later and to which Germany was a party, was more than a treaty of arbitration and conciliation in which the parties undertook definite obligations with regard to the pacific settlement of disputes that
might arise between them. It was, subject to clearly specified exceptions of self-defense in certain contingencies, a more general undertaking in which the parties agreed that “they will in no case attack or invade each other or resort to war against each other". This constituted a general renunciation of war and was so considered to be in the eyes of jurists and of the public opinion of the world. For the Locarno Treaty was not just one of the great number of arbitration treaties concluded at that time. It was regarded as the corner stone of the European settlement and of the new legal order in Europe in partial, voluntary and generous substitution for the just rigours of the Treaty of Versailles. With it the term "outlawry of war" left the province of mere pacifist propaganda. It became current in the writings on international law and in official pronouncements of governments. No jurist of authority and no statesman of responsibility would have associated himself, subsequent to the Locarno Treaty, with the plausible assertion that, at least as between the parties, war had remained an unrestricted right of sovereign States.
But although the effect of the Locarno Treaty was limited to the parties to it, it had a wider influence in paving the way towards that most fundamental and truly revolutionary enactment in modern international law, namely, the General Treaty for the Renunciation of War of 27 August 1928, known also as the Pact of Paris, or the Kellogg-Briand Pact, or the Kellogg Pact. That Treaty—a most deliberate and carefully prepared piece of international legislation—was binding in 1939 upon more than sixty nations, including Germany. It was—and has remained—the most widely signed and ratified international instrument. It contained no provision for its termination, and was conceived as the corner-stone of any future international order worthy of that name. It is fully part of international law as it stands today, and has in no way been modified or replaced by the Charter of the United Nations. It is right, in this solemn hour in the his. tory of the world when the responsible leaders of a State stand accused of a premeditated breach of this great Treaty which was -and remains
a source of hope and faith for mankind, to set out in detail its two operative Articles and its Preamble:
"The Preamble “The President of the German Reich, “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
“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 with one another.
“Article II "The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them,
shall never be sought except by pacific means." In that General Treaty for the Renunciation of War practically the entire civilized world abolished war as a legally permissible means of enforcing the law and of changing it. The right of war was no longer of the essence of sovereignty. Whatever the position may have been in 1914 or in 1918 (and it is not necessary to discuss it) no International lawyer of repute, no responsible Statesman, no soldier concerned with the legal use of Armed Forces could doubt that with the Pact of Paris on the Statute Book a war of aggression was contrary to positive International Law. Nor have the repeated violations of the Pact of the Axis Powers in any way affected its validity. Let this be firmly and clearly stated. Those very breaches, except to the cynic and the malevolent, have added to its strength; they provoked the sustained wrath of people angered by the contemptuous disregard of the great Statute and determined to vindicate its provisions. The Pact of Paris is the Law of Nations. This Tribunal will enforce it.
Let this also be said. The Pact of Paris was not a clumsy enactment likely to become a signpost for the guilty. It did not enable Germany to go to war against Poland and yet rely, as against Great Britain and France, on any immunity from warlike action because of the provisions of the Pact of Paris. For that Pact laid down expressly in its Preamble that no State guilty of a violation of its provisions may invoke its benefits. When on the outbreak of the Second World War Great Britain and France communicated to the League of Nations the fact that a state of war existed between them and Germany as from 3 September, 1939, they declared that by committing an act of aggression against Poland Germany had violated her obligations assumed not only towards Poland but also towards other signatories of the Pact of Paris. A violation of the Pact in relation to one signatory was an attack upon all the other signatories and they were fully entitled to treat it as such. This point is to be emphasized lest any of the defendants should seize upon the letter of the Particulars of Count Two of the Indictment and maintain that it was not Germany who initiated war with the United Kingdom and France on 3 September 1939. The declaration of war came from the United Kingdom and France; the act of war and its commencement came from Germany in violation of the fundamental enactment to which she was a party.
The General Treaty for the Renunciation of War, the great constitutional instrument of an international society awakened to the deadly dangers of another Armageddon, did not remain an isolated effort soon to be forgotten in the turmoil of recurrent international crises. It became, in conjunction with the Covenant of the League of Nations or independently of it, the starting point for a new orientation of governments in matters of peace, war and neutrality. It is of importance to quote some of these statements and declarations. In 1929, His Majesty's Government in the United Kingdom said, in connection with the question of conferring upon the Permanent Court of International Justice jurisdiction with regard to the exercise of belligerent rights in relation to neutral States : But the whole situation
rests, and International Law on the subject has been entirely built up, on the assumption that there is nothing illegitimate in the use of war as an instrument of national policy, and, as a necessary corollary, that the position and rights of neutrals are entirely independent of the circumstances of any war which may be in progress. Before the acceptance of the Covenant, the basis of the law of neutrality was that the