rights and obligations of neutrals were identical as regards both belligerents, and were entirely independent of the rights and wrongs of the dispute which had led to the war, or the respective position of the belligerents at the bar of world opinion.

Now it is precisely this assumption which is no longer valid as regards states which are members of the League of Nations and parties to the Peace Pact. The effect of those instruments, taken together, is to deprive nations of the right to employ war as an instrument of national policy, and to forbid the states which have signed them to give aid or comfort to an offender. As between such states, there has been in consequence a fundamental change in the whole question of belligerent and neutral rights. The whole policy of His Majesty's present Government (and, it would appear, of any alternative government) is based upon a determination to comply with their obligations under the Covenant of the League and the Peace Pact. This being so, the situation which we have to envisage in the event of a war in which we were engaged is not one in which the rights and duties of belligerents and neutrals will depend upon the old rules of war and neutrality, but one in which the position of the members of the League will be determined by the Covenant and the Pact. *" (Memorandum on the Signature of His Majesty's Government in the United Kingdom of the Optional Clause of the Statute, Misc. No. 12 (1929), Cmd. 3452, p. 9).

Chief of Counsel for the United States referred in his opening speech before this Tribunal to the weighty pronouncement of Mr. Stimson, the Secretary of State, in which, in 1932, he gave expression to the drastic change brought about in International Law by the Pact of Paris. It is convenient to quote the relevant passage in full:

"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. Hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers-violators of this general treaty law. We no longer draw a circle about them and treat them with the punctilios of the duelist's code. Instead we denounce them as law-breakers."

Nearly ten years later, when numerous independent States lay prostrate, shattered or menaced in their very existence before the impact of the war machine of the Nazi State, the Attorney-General of the United States-subsequently a distinguished member of the highest tribunal of that great country-gave weighty expression to the change which had been effected in the law as the result of the General Treaty for the Renunciation of War. He said on 27 March 1941:

The Kellogg-Briand Pact of 1928, in which Germany, Italy and Japan covenanted with us, as well as with other nations, to renounce war as an instrument of policy, made definite the outlawry of war and of necessity altered the dependent concept of neutral obligations.

* The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their signatories of the right of war as an instrument of national policy or aggression and rendered unlawful wars undertaken in violation of their provisions. In consequence, these treaties destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars.

"It follows that the state which has gone to war in violation of its obligations acquires no right to equality of treatment from other states, unless treaty obligations require different handling of affairs. It derives no rights from its illegality. In flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie International Law and allow these great treaties to become dead letters. Intelligent public opinion of the world which is not afraid to be vocal and the action of the American States has made a determination that the Axis Powers are the aggressors in the wars today which is an appropriate basis in the present state of international organization for our policy.

There is thus no doubt that by the time the National-Socialist State had embarked upon the preparation of the war of aggression against the civilized world and by the time it had accomplished that design, aggressive war had, in virtue of the Pact of Paris and of other treaties, become illegal beyond all uncertainty and doubt. It is on that Universal Treaty that Count 2 is principally based.

The Prosecution has deemed it necessary-indeed imperativeto establish beyond all possibility of doubt, at what may appear to

be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactive law in the determination of the authors of the Charter to treat aggressive war as conduct which International Law has prohibited and stigmatized as criminal. We have traced the progressive limitation of the right of war, the renunciation and condemnation of wars of aggression, and, above all, the total prohibition and condemnation of all war conceived as an instrument of national policy. What statesman or politician in charge of the affairs of a nation could doubt, from 1928 onwards, that aggressive war, that all war-except in self-defense, or for the collective enforcement of the law, or against a State which has itself violated the Pact of Paris-was unlawful and outlawed? What statesman or politician embarking upon such war could reasonably and justifiably count upon an immunity other than that by a successful outcome of the criminal venture? What more decisive evidence of a prohibition laid down by positive International Law could any lawyer desire than that which has been adduced here?

There are, it is true, some small town lawyers who deny the existence of any International Law. Indeed, as I have said, the rules of the law of Nations may not satisfy the Austinian test of being imposed by a sovereign. But the legal regulation of International Relations rests upon quite different juridical foundations. It depends upon consent, but upon consent which cannot be withdrawn by unilateral action. In the International field the source of law is not the command of a sovereign but the treaty agreement binding upon every state which has adhered to it. It is indeed true and the recognition of its truth today by all the great Powers of the World is vital to our future peace-that as M. Litvinoff once said, and as Great Britain fully accepts, "Absolute Sovereignty and entire liberty of action only belong to such states as have not undertaken International obligations. Immediately a state accepts International obligations it limits its sovereignty".

Yet it may be argued that although war had been outlawed and forbidden it was not criminally outlawed and forbidden. International Law, it may be said, does not attribute criminality to states, still less to individuals. But can it really be said on behalf of these Defendants that the offense of these aggressive wars, which plunged millions of peoples to their deaths, which by dint of war crimes and crimes against humanity brought about the torture and extermination of countless thousands of innocent civilians; which devastated cities; which destroyed the amenities

-nay the most rudimentary necessities of civilization in many countries, which has brought the world to the brink of ruin from which it will take generations to recover-will it seriously be said that such a war is only an offense, only an illegality, only a matter of condemnation and not a crime justiciable by any Tribunal? No Law worthy of the name can permit itself to be reduced to an absurdity. Certainly the Great Powers responsible for this Charter have refused to allow it. They drew the inescapable consequences from the renunciation, prohibition, and condemnation of war which had become part of the law of Nations. They refused to reduce justice to impotence by subscribing to the outworn doctrines that the sovereign state can commit no crime and that no crime can be committed by individuals on its behalf. Their refusal so to stultify themselves has decisively shaped the law of this Tribunal.

If this be an innovation, it is innovation long overdue-a desirable and beneficent innovation fully consistent with justice, with commonsense and with the abiding purposes of the law of Nations. But is it indeed so clear an innovation? Or is it no more than the logical development of the law? There was indeed a time when International lawyers used to maintain that the liability of a State was, because of its sovereignty, limited to contractual responsibility. International tribunals have not accepted that view. They have repeatedly affirmed that a State can commit a tort; that it may be guilty of trespass, of a nuisance, of negligence. They have gone further. They have held that a State may be bound to pay what are in effect penal damages for failing to provide proper conditions of security to aliens residing within their territory. In a recent case decided in 1935 between the United States and Canada an arbitral commission, with the concurrence of its American member, decided that the United States were bound to pay what amounted to penal damages for an affront to Canadian sovereignty. On a wider plane the Covenant of the League of Nations, in providing for sanctions, recognized the principle of enforcement of the law against collective units— such enforcement to be, if necessary, of a penal character. There is thus nothing startlingly new in the adoption of the principle that the State as such is responsible for its criminal acts. In fact, save for the reliance on the unconvincing argument of sovereignty, there is in law no reason why a State should not be answerable for crimes committed on its behalf. In a case decided nearly one hundred years ago Dr. Lushington, a great English Admiralty judge, refused to admit that a State cannot be a pirate. History, very recent history, does not warrant the view that a

State cannot be a criminal. On the contrary, the immeasurable potentialities for evil inherent in the State in this age of science and organization would seem to demand imperatively means of repression of criminal conduct even more drastic and more effective than in the case of individuals. In so far therefore as the Charter has put on record the principle of the criminal responsibility of the State it must be applauded as a wise and far-seeing measure of international legislation.

Admittedly, the conscience shrinks from the rigours of collective punishment, which fall upon the guilty and the innocent alike-although, it may be noted, most of those innocent victims would not have hesitated to reap the fruits of the criminal act if it had been successful. Humanity and justice will find means of mitigating any injustice of collective punishment. Above all, much hardship can be obviated by making the punishment fall upon the individuals directly responsible for the criminal conduct of the State. It is here that the Powers who framed the Charter took a step which justice, sound legal sense and an enlightened appreciation of the good of mankind must acclaim without cavil or reserve. The Charter lays down expressly that there shall be individual responsibility for the crimes, including the crime against the peace, committed on behalf of the State. The State is not an abstract entity. Its rights and duties are the rights and duties of men. Its actions are the actions of men. It is a salutory principle of the law that politicians who embark upon a war of aggression should not be able to seek immunity behind the intangible personality of the State. It is a salutory legal rule that persons who, in violation of the law, plunge their own and other countries into an aggressive war, do so with a halter round their necks.

To say that those who aid and abet, who counsel and procure a crime are themselves criminals is a commonplace in our own municipal jurisprudence. Nor is the principle of individual international responsibility for offenses against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes-as distinguished from the crime of war-is based on that principle. The future of International Law and, indeed, of the world, depends on its application in a much wider sphere-in particular in that of safeguarding the peace of the world. There must be acknowledged not only, as in the Charter of the United Nations, fundamental human rights, but also, as in the Charter of this Tribunal, fundamental human duties. Of these none is more vital or more fundamental than the duty not to vex the peace of nations in violation

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