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A corollary question is "What is an aggressive war?" Here is how the International Military Tribunal answered that question in the Nuernberg trial; first with a discussion of the facts and then a discussion of the applicable law. This portion of the judgment of the IMT is found at IMT proceedings, vol. 22, pps. 426-68:
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The Common Plan or Conspiracy and Aggressive War
The Tribunal now turns to the consideration of the Crimes against Peace charged in the Indictment. Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace. Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other states. It will be convenient to consider the question of the existence of a common plan and the question of aggressive war together, and to deal later in this Judgment with the question of the individual responsibility of the defendants.
The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. The first acts of aggression referred to in the Indictment are the seizure of Austria and Czechoslovakia; and the first war of aggression charged in the Indictment is the war against Poland begun on 1 September 1939.
Before examining that charge it is necessary to look more closely at some of the events which preceded these acts of aggression. The war against Poland did not come suddenly out of an otherwise clear sky; the evidence has made it plain that this war of aggression, as well as the seizure of Austria and Czechoslovakia, was premeditated and carefully prepared, and was not undertaken until the moment was thought opportune for it to be carried through as a definite part of the preordained scheme and plan.
For the aggressive designs of the Nazi Government were not accidents arising out of the immediate political situation in Europe and the world; they were a deliberate and essential part of Nazi foreign policy.
From the beginning, the National Socialist movement claimed that its object was to unite the German people in the consciousness of their mission and destiny, based on inherent qualities of race, and. under the guidance of the Fuehrer.
For its achievement, two things were deemed to be essential; the disruption of the European order as it had existed since the Treaty of Versailles, and the creation of a Greater Germany beyond the
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frontiers of 1914. This necessarily involved the seizure of foreign territories. War was seen to be inevitable, or at the very least, highly probable, if these purposes were to be accomplished. The German people, therefore, with all their resources, were to be organized as a great political-military army, schooled to obey without question any policy decreed by the State.
Preparation for Aggression
In Mein Kampf Hitler had made this view quite plain. It must be remembered that Mein Kampf was no, mere private diary in which the secret thoughts of Hitler were set down. Its contents were rather proclaimed from the housetops. It was used in the schools and universities and among the Hitler Youth, in the SS and the SA, and among the German people generally, even down to the presentation of an official copy to all newly-married people. By the year 1945 over 6 1/2 million copies had been circulated. The general contents are well-known. Over and over again Hitler asserted his belief in the necessity of force as the means of solving international problems, as in the following quotation:
"The soil on which we now live was not a gift bestowed by Heaven on our forefathers. They had to conquer it by risking their lives. So also in the future our people will not obtain territory, and therewith the means of existence, as a favor from any other people, but will have to win it by the power of a triumphant sword."
Mein Kampf contains many such passages, and the extolling of force as an instrument of foreign policy is openly proclaimed.
The precise objectives of this policy of force are also set forth in detail.
The very first page of the book asserts that "German-Austria must be restored to the great German Motherland," not on economic grounds, but because "people of the same blood should be in the same Reich."
The restoration of the German frontiers of 1914 is declared to, be wholly insufficient, and if Germany is to exist at all, it must be as a world power with the necessary territorial magnitude.
Mein Kampf is quite explicit in stating where the increased territory is to be found:
"Therefore we National Socialists have purposely drawn a line through the line of conduct followed by prewar Germany in foreign policy.... We put an end to the perpetual Germanic march towards the South and West of Europe, and- turn our eyes towards the lands of the East. We finally put a stop to
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the colonial and trade policy of the prewar times, and pass over to the territorial policy of the future.
"But when we speak of new territory in Europe today, we must think principally of Russia and the border states subject to her."
Mein Kampf is not to be regarded as a mere literary exercise, nor as an inflexible policy or plan incapable of modification.
Its importance lies in the, unmistakable attitude of aggression revealed throughout its pages.
The Planning of Aggression
Evidence from captured documents has revealed that Hitler held four secret meetings to which the Tribunal proposes to make special reference because of the light they shed upon the question of the common plan and aggressive war. These meetings took place on 5 November 1937, 23 May 1939, 22 August 1939, and 23 November 1939.
At these meetings important declarations were made by Hitler as to his purposes, which are quite unmistakable in their terms.
The documents which record what took place at these meetings have been subject to some criticism at the hands of defending counsel.
Their essential authenticity is not denied, but it is said, for example, that they do not purport to be verbatim transcripts of the speeches they record, that the document dealing with the meeting on 5 November 1937 was dated 5 days after the meeting had taken place, and that the two documents dealing with the meeting of 22 August 1939 differ from one another and are unsigned. Making the fullest allowance for criticism of this kind, the Tribunal is of the opinion that the documents are documents of the highest value, and that their authenticity and substantial truth are established.
They are obviously careful records of the events they describe, and they have been preserved as such in the archives of the German Government, from whose custody they were captured. Such documents could never be dismissed as inventions, nor even as inaccurate or distorted; they plainly record events which actually took place.
Conferences of 23 November 1939 and 5 November 1937
It will perhaps be useful to deal first of all with the meeting of 23 November 1939, when Hitler called his supreme commanders together. A record was made of what was said, by one of those present. At the date of the meeting, Austria and Czechoslovakia
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had been incorporated into the German Reich, Poland had been conquered by the German armies, and the war with Great Britain and France was still in its static phase. The moment was opportune for a review of past events. Hitler informed the commanders that the purpose of the conference was to give them an idea of the world of his thoughts, and to tell them his decision. He thereupon reviewed his political task since 1919, and referred to the secession of Germany from the League of Nations, the denunciation of the Disarmament Conference, the order for rearmament, the introduction of compulsory armed service, the occupation of the Rhineland, the seizure of Austria, and the action against Czechoslovakia. He stated:
"One year later, Austria came; this step also was considered doubtful. It brought about a considerable reinforcement of the Reich. The next step was Bohemia, Moravia, and Poland. This step also was not possible to accomplish in one campaign. First of all, the western fortification had to be finished. It was not possible to reach the goal in one effort. It was clear to me from the first moment that I could not be satisfied with the Sudeten German territory. That was only a partial solution. The decision to march into Bohemia was made. Then followed the erection of the Protectorate and with that the basis for the action against Poland was laid, but I was not quite clear at that time whether I should start first against the East and then in the West or vice versa.... Basically I did not organize the Armed Forces in order not to strike. The decision to strike was always in me. Earlier or later I wanted to solve the problem. Under pressure it was decided that the East was to be attacked first."
This address, reviewing past events and reaffirming the aggressive intentions present from the beginning, puts beyond any question of doubt the character of the actions against Austria and Czechoslovakia, and the war against Poland. For they had, all been accomplished according to plan; and the nature of that plan must now be examined in a little more detail.
At the meeting of 23 November 1939 Hitler was looking back to things accomplished; at the earlier meetings now to be considered, he was looking forward, and revealing his plans to his confederates. The comparison is instructive.
The meeting held at the Reich Chancellery in Berlin on 5 November 1937 was attended by Lt. Col. Hossbach, Hitler's personal adjutant, who compiled a long note of the proceedings, which he dated 10 November 1937 and signed.
The persons present were Hitler, and the Defendants Goering, Von Neurath and Raeder, in their capacities as Commander-in-Chief
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of the Luftwaffe, Reich Foreign Minister, and Commander-in-Chief of the Navy respectively, General Von Blomberg, Minister of War, and General Von Fritsch, the Commander-in-Chief of the Army.
Hitler began by saying that the subject of the conference was of such high importance that in other states it would have taken place before the Cabinet. He went on to say that the subject matter of his speech was the result of his detailed deliberations, and of his experiences during his four and a half years of government. He requested that the statements he was about to make should be looked upon in the case of his death as his last will and testament. Hitler's main theme was the problem of living space, and he discussed various possible solutions, only to set them aside. He then said that the seizure of living space on the continent of Europe was therefore necessary, expressing himself in these words:
"It is not a case of conquering people but of conquering agriculturally useful space. It would also be more to the purpose to seek raw-material-producing territory in Europe directly adjoining the Reich and not overseas, and this solution would have to be brought into effect for one or two generations.... The history of all times--Roman Empire, British Empire--has proved that every space expansion can only be effected by breaking resistance and taking risks. Even setbacks are unavoidable: neither formerly nor today has space been found without an owner; the attacker always comes up against the proprietor."
He concluded with this observation:
"The question for Germany is where the greatest possible conquest could be made at the lowest cost."
Nothing could indicate more plainly the aggressive intentions of Hitler, and the events which soon followed showed the reality of his purpose. It is impossible to accept the contention that Hitler did not actually mean war; for after pointing out that Germany might expect the opposition of England and France, and analyzing the strength and the weakness of those powers in particular situations, he continued:
"The German question can be solved only by way of force, and this is never without risk... If we place the decision to apply force with risk at the head of the following expositions, then we are left to reply to the questions 'when' and 'how.' In this regard we have to decide upon three different cases." The first of these three cases set forth a hypothetical international situation, in which he would take action not later than 1943 to 1945, saying:
"If the Fuehrer is still living then it will be his irrevocable decision to solve the German space problem not later than
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1943 to 1945. The necessity for action before 1943 to 1945 will come under consideration in Cases 2 and 3.
The second and third cases to which Hitler referred show the plain intention to seize Austria and Czechoslovakia, and in this connection Hitler said:
"For the improvement of our military-political position, it must be our first aim in every case of entanglement by war to conquer Czechoslovakia and Austria simultaneously in order to remove any threat from the flanks in case of a possible advance westwards."
He further added:
"The annexation of the two states to Germany militarily and politically, would constitute a considerable relief, owing to shorter and better frontiers, the freeing of fighting personnel for other purposes, and the possibility of reconstituting new armies up to a strength of about twelve divisions." This decision to seize Austria and Czechoslovakia was discussed in some detail; the action was to be taken as soon as a favorable opportunity presented itself. The military strength which Germany had been building up since 1933 was now to be directed at the two specific countries, Austria and Czechoslovakia. The Defendant Goering testified that he did not believe at that time that Hitler actually meant to attack Austria and Czechoslovakia, and that the purpose of the conference was only to put pressure on Von Fritsch to speed up the rearmament of the Army.
The Defendant Raeder testified that neither he, nor Von Fritsch, nor Von Blomberg, believed that Hitler actually meant war, a conviction which the Defendant Raeder claims that he held up to 22 August 1939. The basis of this conviction was his hope that Hitler would obtain a "Political solution" of Germany's problems. But all that this means, when examined, is the belief that Germany's position would be so good, and Germany's armed might so overwhelming, that the territory desired could be obtained without fighting for it. It must be remembered too that Hitler's declared intention with regard to Austria was actually carried out within a little over four months from the date of the meeting, and within less than a year the first portion of Czechoslovakia was absorbed, and Bohemia and Moravia a few months later. If any doubts had existed in the minds of any of his hearers in November 1937, after March of 1939 there could no longer be any question that Hitler was in deadly earnest in his decision to resort to war. The Tribunal is satisfied that Lt. Col. Hossbach's account of the meeting is substantially correct, and that those present knew that Austria and
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Czechoslovakia would be annexed by Germany at the first possible opportunity.
THE PRESIDENT: The Tribunal will now adjourn for 10 minutes.
[A recess was taken.]
THE PRESIDENT: I will now ask M. Donnedieu de Vabres to continue the reading of the Judgment.
M.LE PROFESSEUR DONNEDIEU DE VABRES (Member of the Tribunal for the French
The Seizure of Austria
The invasion of Austria was a premeditated aggressive step in furthering the plan to wage aggressive wars against other countries. As a result Germany's flank was protected, that of Czechoslovakia being greatly weakened. The first step had been taken in the seizure of "Lebensraum"; many new divisions of trained fighting men had been acquired; and with the seizure of foreign exchange reserves, the rearmament program had been greatly strengthened.
On 21 May 1935 Hitler announced in the Reichstag that Germany did not intend either to, attack Austria or to interfere in her internal affairs. On 1 May 1936 he publicly coupled Czechoslovakia with Austria in his avowal of peaceful intentions; and so. late as 11 July 1936 he recognized by treaty the full sovereignty of Austria.
Austria was in fact seized by Germany in the month of March 1938. For a number of years before that date, the National Socialists in Germany had been co-operating with the National Socialists of Austria with the ultimate object of incorporating Austria into the German Reich. The Putsch of 25 July 1934, which resulted in the assassination of Chancellor had the seizure of Austria as its object; but the Putsch failed, with the consequence that the National Socialist Party was outlawed in Austria. On 11 July 1936 an agreement was entered into between the two countries, Article 1 of which stated:
"The German Government recognizes the full sovereignty of the Federated State of Austria in the spirit of the pronouncements of the German Fuehrer and Chancellor of the 21st May 1935." Article 2 declared:
"Each of the two Governments regards the inner political order (including the question of Austrian National Socialism) obtaining in the other country as an internal affair of the
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other country, upon which it will exercise neither direct nor indirect influence."
The National Socialist movement in Austria however continued its illegal activities under cover of secrecy; and the National Socialists of Germany gave the party active support. The resulting "incidents" were seized upon by the German National Socialists as an excuse for interfering in Austrian affairs. After the conference of 5 November 1937, these "incidents" rapidly multiplied. The relationship between the two countries steadily worsened, and finally the Austrian Chancellor Schuschnigg was persuaded by the Defendant Von Papen and others to seek a conference with Hitler, which took place at Berchtesgaden on 12 February 1938. The Defendant Keitel was present at the conference, and Dr. Schuschnigg was threatened by Hitler with an immediate invasion of Austria. Schuschnigg finally agreed to grant a political amnesty to various Nazis convicted of crime, and to appoint the Nazi Seyss-Inquart as Minister of the Interior and Security with control of the Police. On 9 March 1938, in an attempt to preserve the independence of his country, Dr. Schuschnigg decided to hold a plebiscite on the question of Austrian independence, which was fixed for 13 March 1938. Hitler, 2 days later, sent an ultimatum to Schuschnigg that the plebiscite must be withdrawn. In the afternoon and evening of 11 March 1938 the Defendant Goering made a series of demands upon the Austrian Government, each backed up by threat of invasion. After Schuschnigg had agreed to the cancellation of the plebiscite, another demand was put forward that Schuschnigg. must resign, and that the Defendant Seyss-Inquart should be appointed Chancellor. In consequence, Schuschnigg resigned, and President Miklas, after at first refusing to appoint Seyss-Inquart as Chancellor, gave way and appointed him.
Meanwhile Hitler had given the final order for the German troops to cross the border at dawn on 12 Mardi and instructed Seyss-Inquart to use formations of Austrian National Socialists to depose Miklas and to seize control of the Austrian Government. After the order to march had been given to the German troops, Goering telephoned the German Embassy in Vienna and, dictated a telegram which he wished Seyss-Inquart to send to. Hitler to justify the military action which had already been ordered.
"The provisional Austrian Government, which, after the dismissal of the Schuschnigg Government, considers its task to establish peace and order in Austria, sends to the German Government the urgent request to support it in its task and to help it to prevent bloodshed. For this purpose it asks the
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German Government to send German troops as soon as possible."
Keppler, an official of the German Embassy, replied:
"Well, SA and SS are marching through the streets, but everything is quiet."
After some further discussion, Goering stated:
"Please show him (Seyss-Inquart) the text of the telegram, and tell him that we are asking him--well, he does not even have to send the telegram. All he needs to do is to say 'Agreed'."
Seyss-Inquart never sent the telegram; he never even telegraphed "Agreed." It appears that as soon as he was appointed Chancellor, some time after 10 p.m., he called Keppler and told him to call up Hitler and transmit his protests against the occupation. This action outraged the Defendant Goering, because "it would disturb the rest of the Fuehrer, who wanted to go to Austria the next day." At 11:15 p.m. an official in the Ministry of Propaganda in Berlin telephoned the German Embassy in Vienna and was told by Keppler: "Tell the General Field Marshal that Seyss-Inquart agrees."
At daybreak on 12 March 1938 German troops marched into Austria and met with no resistance. It was announced in the German press that Seyss-Inquart had been appointed the successor to Schuschnigg, and the telegram which Goering had suggested, but which was never sent, was quoted to show that Seyss-Inquart had requested the presence of German troops to prevent disorder. On 13 March 1938 a law was passed for the reunion of Austria in the German Reich. Seyss-Inquart demanded that President Miklas should sign this law, but he refused to do so, and resigned his office. He was succeeded by Seyss-Inquart, who signed the law in the name of Austria. This law was then adopted as a law, of the Reich by a Reich Cabinet decree issued the same day, and signed by Hitler and Defendants Goering, Frick, Von Ribbentrop, and Hess.
It was contended before the Tribunal that the annexation of Austria was justified by the strong desire expressed in many quarters for the union of Austria and Germany; that there were many matters in common between the two peoples that made this union desirable; and that in the result the object was achieved without bloodshed.
These matters, even if true, are really immaterial, for the facts plainly prove that the methods employed to achieve the object were those of an aggressor. The ultimate factor was the armed might of Germany ready to be used if any resistance was encountered. Moreover, none of these considerations appear from the Hossbach
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account of the meetings of 5 November 1937 to have been the motives which actuated Hitler; on the contrary, all the emphasis is there laid on the advantage to be gained by Germany in her military strength by the annexation of Austria.
The Seizure of Czechoslovakia
The conference of 5 November 1937 made it quite plain that the seizure of Czechoslovakia by Germany had been definitely decided upon. The only question remaining was the selection of the suitable moment to do it. On 4 March 1938 the Defendant Ribbentrop wrote to the Defendant Keitel with regard to a suggestion made to Ribbentrop by the Hungarian Minister in Berlin, that possible war aims against Czechoslovakia should be discussed between the German and Hungarian armies. In the course of this letter Ribbentrop said:
"I have many doubts about such negotiations. In case we should discuss with Hungary possible war aims against Czechoslovakia, the danger exists that other parties as well would be informed about this."
On the 11th March 1938 Goering made two separate statements to M. Mastny, the Czechoslovak Minister in Berlin, assuring him that the developments then taking place in Austria would in no way have any detrimental influence on the relations between the German Reich and Czechoslovakia, and emphasized the continued earnest endeavor on the part of the Germans to improve those mutual relations. On the 12th March, Goering asked M. Mastny to call on him, and repeated these assurances.
This design to keep Czechoslovakia quiet whilst Austria was absorbed was a typical maneuver on the part of the Defendant Goering, which he was to repeat later in the case of Poland, when he made the most strenuous efforts to isolate Poland in the impending struggle. On the same day, 12 March, the Defendant Von Neurath spoke with M. Mastny, and assured him on behalf of Hitler that Germany still considered herself bound by the German Czechoslovak Arbitration
Convention concluded at Locarno, in October 1925.
The evidence shows that after the occupation of Austria by the German Army on 12 March, and the annexation of Austria on 13 March, Konrad Henlein, who was the leader of the Sudeten German Party in Czechoslovakia, saw Hitler in Berlin on 28 March. On the following day, at a conference in Berlin, when Ribbentrop was present with Henlein, the general situation was discussed, and later the Defendant Jodl recorded in his diary:
"After the annexation of Austria the Fuehrer mentions that there is no hurry to solve the Czech question, because
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Austria has to be digested first. Nevertheless, preparations for Case Gruen (that is, the plan against Czechoslovakia) will have to be carried out energetically; they will have to be newly prepared on the basis of the changed strategic position because of the annexation of Austria." On 21 April 1938 a discussion took place between Hitler and the Defendant Keitel with regard to "Case Gruen," showing quite clearly that the preparations for the attack on Czechoslovakia were being fully considered. On 28 May 1938 Hitler ordered that preparations should be made for military action against Czechoslovakia by 2 October, and from then onwards the plan to invade Czechoslovakia was constantly under review. On 30 May 1938 a directive signed by Hitler declared his "unalterable decision to smash Czechoslovakia by military action in the near future."
In June 1938, as appears from a captured document taken from the files of the SD in Berlin, an elaborate plan for the employment of the SD in Czechoslovakia had been proposed. This plan provided that "the SD follow, if possible, immediately after the leading troops, and take upon themselves the duties similar to their tasks in Germany ...."
Gestapo officials were assigned to co-operate with the SD in certain operations. Special agents were to be trained beforehand to prevent sabotage, and these agents were to be notified "before the attack in due time ... in order to give them the possibility to hide themselves, avoid arrest and deportation ...." "At the beginning, guerilla or partisan warfare is to be expected, therefore weapons are necessary ...."
Files of information were to be compiled with notations as follows: "To arrest"... "To liquidate"... "To confiscate"... "To deprive of passport" et cetera.
The plan provided for the temporary division of the country into larger and smaller territorial units, and considered various "suggestions," as they were termed, for the incorporation into the German Reich of the inhabitants and districts of Czechoslovakia. The final "suggestion" included the whole country, together with Slovakia and Carpathian Russia, with a population of nearly 15 millions.
The plan was modified in some respects in September after the Munich Conference, but the fact that the plan existed in such exact detail and was couched in such warlike language indicated, a calculated design to resort to force.
On 31 August 1938 Hitler approved a memorandum by Jodl dated 24 August 1938, concerning the timing of the order for the
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invasion of Czechoslovakia and the question of defense measures. This memorandum contained the following:
"Operation Gruen will be set in motion by means of an 'incident' in Czechoslovakia, which will give Germany provocation for military intervention. The fixing of the exact time for this incident is of the utmost importance." These facts demonstrate that the occupation of Czechoslovakia had been planned in detail long before the Munich Conference.
In the month of September 1938 the conferences and talks with military leaders continued. In view of the extraordinarily critical situation which had arisen, the British Prime Minister, Mr. Chamberlain, flew to Munich and then went to Berchtesgaden to see Hitler. On 22 September Mr. Chamberlain met Hitler for further discussions at Bad Godesberg. On 26 September 1938 Hitler said in a speech in Berlin, with reference to his conversation:
"I assured him, moreover, and I repeat it here, that when this problem is solved there will be no more territorial problems for Germany in Europe; and I further assured him that from the moment when Czechoslovakia solves its other problems, that is to say, when the Czechs have come to an arrangement with their other minorities, peacefully and without oppression, I will be no longer interested in the Czech State, and that as far as I am concerned I will guarantee it. We do not want any Czechs."
On the 29th September 1938, after a conference between Hitler and Mussolini and the British and French Prime Ministers in Munich, the Munich Pact was signed, by which Czechoslovakia was required to acquiesce in the cession of the Sudetenland to Germany. The "piece of paper" which the British Prime Minister brought back to London, signed by himself and Hitler, expressed the hope that for the future Britain and Germany might live without war. That Hitler never intended to adhere to the Munich Agreement is shown by the fact that a little later he asked the Defendant Keitel for information with regard to the military force which in his opinion would be required to break all Czech resistance in Bohemia and Moravia. Keitel gave his reply on 11 October 1938. On 21 October 1938 a directive was issued by Hitler, and countersigned by the Defendant Keitel, to the Armed Forces on their future tasks, which stated:
"Liquidation of the remainder of Czechoslovakia. It must be possible to smash at any time the remainder of Czechoslovakia if her policy should become hostile towards Germany."
It is not necessary to review the evidence of the months which immediately followed. On 14 March 1939 the Czech President Hacha
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and his Foreign Minister Chvalkovsky came to Berlin at the suggestion of Hitler, and attended a meeting at which the Defendants Ribbentrop, Goering, and Keitel were present with others. The proposal was made to Hacha that if he would sign an agreement consenting to the incorporation of the Czech people in the German Reich at once, Bohemia and Moravia would be saved from destruction. He was informed that German troops had already received orders to march and that any resistance would be broken with physical force. The Defendant Goering added the threat that he would destroy Prague completely from the air. Faced by this dreadful alternative, Hacha and his Foreign Minister put their signatures to the necessary agreement at 4:30 in the morning, and Hitler and Ribbentrop signed on behalf of Germany.
On 15 March German troops occupied Bohemia and Moravia, and on 16 March the German decree was issued incorporating Bohemia and Moravia in the Reich as a protectorate, and this decree was signed by the Defendants Ribbentrop and Frick.
The Aggression against Poland
By March 1939 the plan to annex Austria and Czechoslovakia, which had been discussed by Hitler at the meeting of 5 November 1937, had been accomplished. The time had now come for the German leaders to consider further acts of aggression, made more possible of attainment because of that accomplishment. On 23 May 1939 a meeting was held in Hitler's study in the new Reich Chancellery in Berlin. Hitler announced his decision to attack Poland and gave his reasons, and discussed the effect the decision might have on other countries. In point of time, this was the second of the important meetings to which reference has already been made, and in order to appreciate the full significance of what was said and done, it is necessary to state shortly some of the main events in the history of German-Polish relations.
As long ago as the year 1925 an Arbitration Treaty between Germany and Poland had been made at Locarno, providing for the settlement of all disputes between the two countries. On 26 January 1934, a German-Polish declaration of non-aggression was made, signed on behalf of the German Government by the Defendant Von Neurath. On 30 January 1934, and again on 30 January 1937, Hitler made speeches in the Reichstag in which he expressed his view that Poland and Germany could work together in harmony and peace. On 20 February 1938 Hitler made a third speech in the Reichstag in the course of which he said with regard to Poland:
"And so the way to a friendly understanding has been successfully paved, an understanding which, beginning with
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Danzig, has today, in spite of the attempts of certain mischief-makers, succeeded in finally taking the poison out of the relations between Germany and Poland and transforming them into a sincere, friendly co-operation. Relying on her friendships, Germany will not leave a stone unturned to save that ideal which provides the foundation for the task which is ahead of us--peace." On 26 September 1938, in the middle of the crisis over the Sudetenland, Hitler made the speech in Berlin which has already been quoted, and announced that he had, informed the British Prime Minister that when the Czechoslovakian problem was solved there would be no more territorial problems for Germany in Europe. Nevertheless, on 24 November of the same year, an OKW directive was issued to the German Armed Forces to make preparations for an attack upon Danzig; it stated:
"The Fuehrer has ordered:
(1) ... preparations are also to be made to. enable the Free State of Danzig to be occupied by German troops by surprise."
In spite of having ordered military preparations for the occupation of Danzig, Hitler, on 30 January 1939, said in a speech in the Reichstag:
"During the troubled months of the past year, the friendship between Germany and Poland has been one of the most reassuring factors in the political life of Europe."
Five days previously, on 25 January 1939, Ribbentrop said in the course of a speech in Warsaw:
"Thus Poland and Germany can look forward to, the future with full confidence in the solid basis of their mutual relations."
Following on the occupation of Bohemia and Moravia by Germany on 15 March 1939, which was a flagrant breach of the Munich Agreement, Great Britain gave an assurance to Poland on 31 March 1939 that in the event of any action which clearly threatened Polish independence, and which the Polish Government accordingly considered it vital to resist with their national forces, Great Britain would feel itself bound at once to lend Poland all the support in its power. The French Government took the same stand. It is interesting to note in this connection that one of the arguments frequently presented by the Defense in the present case is that the defendants were influenced to think that their conduct was not in breach of international law by the acquiescence of other powers. The declarations of Great Britain and France showed, at least, that this view could be held no longer.
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On 3 April 1939 a revised OKW directive was issued to the Armed Forces, which after referring to the question of Danzig made reference to Fall Weiss (the military code name for the German invasion of Poland) and stated:
"The Fuehrer has added the following directions to Fall Weiss: (1) Preparations must be made in such a way that the operation can be carried out at any time from 1 September 1939 onwards.
(2) The High Command of the Armed Forces has been directed to draw up a precise timetable for Fall Weiss and to arrange, by conferences the synchronized timings between the three branches of the Armed Forces."
On 11 April 1939, a further directive was signed by Hitler and issued to the Armed Forces, and in one of the annexes to that document the words occur:
"Quarrels"--with Poland--"should be avoided. Should Poland... however adopt a threatening attitude towards Germany, 'a final settlement' will be necessary, notwithstanding the pact with Poland. The aim is then to destroy Polish military strength, and to create in the East a situation which satisfies the requirements of defense. The Free State of Danzig will be incorporated into Germany at the outbreak of the conflict at the latest. Policy aims ... at limiting the war to Poland, and this is considered possible in view of the internal crisis in France, and British restraint as a result of this...."
In spite of the contents of these two directives, Hitler made a speech in the Reichstag on 28 April 1939 in which, after describing the Polish Government's alleged rejection of an offer he had made with regard to Danzig and the Polish Corridor, he stated:
"I have regretted greatly this incomprehensible attitude of the Polish Government, but that alone is not the decisive fact; the worst is that now Poland, like Czechoslovakia a year ago, believes, under the pressure of a lying international campaign, that it must call up its troops, although Germany on her part has not called up a single man, and had not thought of proceeding in any way against Poland.... The intention to attack on the part of Germany which was merely invented by the international press ...."
It was 4 weeks after making this speech that Hitler, on 33, May 1939, held the important military conference to which reference has already been made. Among the persons present were the Defendants Goering, Raeder, and Keitel. The adjutant on duty that day was Lt. Col. Schmundt, and he made a record of what happened, certifying it with his signature as a correct record.
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The purpose of the meeting was to enable Hitler to inform the heads of the Armed Forces and their staffs of his views on the political situation and his future aims. After analyzing the political situation and reviewing the course of events since 1933, Hitler announced his decision to attack Poland. He admitted that the quarrel with Poland over Danzig was not the reason for this attack, but the necessity for Germany to enlarge her living space and secure her food supplies.
"The solution of the problem demands courage. The principle by which one evades solving the problem by adapting oneself to circumstances is inadmissible. Circumstances must rather be adapted to aims. This is impossible without invasion of foreign states or attacks upon foreign property."
Later in his address he added:
"There is therefore no question of sparing Poland, and we are left with the decision to attack Poland at the first suitable opportunity. We cannot expect a repetition of the Czech affair. There will be war. Our task is to isolate Poland. The success of the isolation will be decisive.... The isolation of Poland is a matter of skillful politics."
Lt. Col. Schmundt's record of the meeting reveals that Hitler fully realized the possibility of Great Britain and France coming to Poland's assistance. If, therefore, the isolation of Poland could not be achieved, Hitler was of the opinion that Germany should attack Great Britain and France first, or at any rate should concentrate primarily on the war in the West, in order to defeat Great Britain and France quickly, or at least to destroy their effectiveness. Nevertheless, Hitler stressed that war with England and France would be a life-and-death struggle which might last a, long time, and that preparations must be made accordingly.
During the weeks which followed this conference, other meetings were held and directives were issued in preparation for the war. The Defendant Ribbentrop was sent to Moscow to negotiate a nonaggression pact with the Soviet Union.
On 22 August 1939 there took place the important meeting of that day, to which reference has already been made. The Prosecution have put in evidence two unsigned captured documents which appear to be records made of this meeting by persons who were present. The first document is headed: "The Fuehrer's speech to the commanders-in-chief on 22 August 1939 The purpose of the speech was to announce the decision to make war on Poland at once, and Hitler began by saying:
"It was clear to me that a conflict with Poland had to come sooner or later. I had already made this decision in the spring, but I thought that I would first turn against the West
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in a few years, and only afterwards against the East.... I wanted to establish an acceptable relationship with Poland in order to fight first against the West. But this plan, which was agreeable to me, could not be executed since essential points have changed. It became clear to me that Poland would attack us in case of a conflict with the West."
Hitler then went on to explain why he had decided that the most favorable moment had arrived for starting the war.
"Now," said Hitler, "Poland is in the position in which I wanted her.... I am only afraid that at the last moment some Schweinehund will make a proposal for mediation. A beginning has been made for the destruction of England's hegemony." This document closely resembles one of the documents put in evidence in behalf of the Defendant Raeder. This latter document consists of a summary of the same speech, compiled on the day it was made, by one Admiral Boehm, from notes he had taken during the meeting. In substance it says that the moment had arrived to settle the dispute with Poland by military invasion, that although a conflict between Germany and the West was unavoidable in the long run, the likelihood of Great Britain and France coming to Poland's assistance was not great, and that even if a war in the West should come about, the first aim should be the crushing of the Polish military strength. It also contains a statement by Hitler that an appropriate propaganda reason for invading Poland would be given, the truth or falsehood of which was unimportant, since "the right lies in victory."
The second unsigned document put in evidence by the Prosecution is headed:
"Second speech by the Fuehrer on 22 August 1939," and it is in the form of notes of the main points made by Hitler. Some of these are as follows:
"Everybody shall have to make a point of it that we were determined from the beginning to fight the Western Powers. Struggle for life or death ... destruction of Poland in the foreground. The aim is elimination of living forces, not the arrival at a certain line. Even if war should breakout in the West, the destruction of Poland shall be the primary objective. I shall give a propagandist cause for starting the war--never mind whether it be plausible or not. The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the right is what matters, but victory.... The start will be ordered probably by Saturday morning" (That is to say, 26 August).
In spite of its being described as a second speech, there are sufficient points of similarity with the two previously mentioned
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documents to make it appear very probable that this is an account of the same speech, not as detailed as the other two, but in substance the same. These three documents establish that the final decision as to, the date of Poland's destruction, which had been agreed upon and planned earlier in the year, was reached by Hitler shortly before 22 August 1939. They also show that although he hoped to be able to avoid having to fight Great Britain and France as well, he fully realized there was a risk of this happening, but it was a risk which he was determined to take.
The events of the last days of August confirm this determination. On 22 August 1939, the same day as the speech just referred to, the British Prime Minister wrote a letter to Hitler, in which he said:
"Having thus made our position perfectly clear, I wish to repeat to you my conviction that war between our two peoples would be the greatest calamity that could occur." On 23 August Hitler replied:
"The question of the treatment of European problems on a peaceful basis is not a decision which rests with Germany, but primarily on those who since the crime committed by the Versailles Diktat have stubbornly and consistently opposed any peaceful revision. Only after a change of spirit on the part of the responsible powers can there be any real change in the relationship between England and Germany."
There followed a number of appeals to Hitler to refrain from forcing the Polish issue to the point of war. These were from President Roosevelt on 24 and 25 August; from His Holiness the Pope on 24 and 31 August; and from M. Daladier, the Prime Minister of France, on 26 August. All these appeals fell on deaf ears. On 25 August, Great Britain signed a pact of mutual assistance with Poland, which reinforced the understanding she had given to Poland earlier in the year.
This, coupled with the news of Mussolini's unwillingness to enter the war on Germany's side, made Hitler hesitate for a moment. The invasion of Poland, which was timed to start on 26 August, was postponed until a further attempt had been made to persuade Great Britain not to intervene. Hitler offered to enter into a comprehensive agreement with Great Britain, once the Polish question had been settled. In reply to this, Great Britain made a counter-suggestion for the settlement of the Polish dispute by negotiation. On 29 August Hitler informed the British Ambassador that the German Government, though skeptical as to the result, would be prepared to enter into direct negotiations with a Polish emissary, provided he arrived in Berlin with plenipotentiary powers by midnight for the following day, 30 August. The Polish Government were informed of this, but with the example of
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Schuschnigg and Hacha before them, they decided not to send such an emissary. At midnight on 30 August the Defendant Ribbentrop read to the British Ambassador at top speed a document containing the first precise formulation of the German demands against Poland. He refused, however, to give the Ambassador a copy of this, and stated that in any case it was too late now, since no Polish plenipotentiary had arrived.
In the opinion of the Tribunal, the manner in which these negotiations were conducted by Hitler and Ribbentrop, showed that they were not entered into in good faith or with any desire to maintain peace, but solely in the attempt to prevent Great Britain and France from honoring their obligations to Poland. Parallel with these negotiations were the unsuccessful attempts made by Goering to effect the isolation of Poland by persuading Great Britain not to stand by her pledged word, through the services of one Birger Dahlerus, a Swede. Dahlerus, who was called as a witness by Goering, had a considerable knowledge of England and of things English, and in July 1939 was anxious to bring about a better understanding between England and Germany, in the hope of preventing a war between the two countries. He got into contact with Goering as well as with official circles in London, and during the latter part of August, Goering used him as an unofficial intermediary to try and deter the British Government from their opposition to Germany's intentions towards Poland. Dahlerus, of course, had no knowledge at the time of the decision which Hitler had secretly announced on 22 August, nor of the German military directives for the attack on Poland which were already in existence. As he admitted in his evidence, it was not until 26 September, after the conquest of Poland was virtually complete, that he first realized that Goering's aim all along had been to get Great Britain's consent to Germany's seizure of Poland.
After all attempts to persuade Germany to agree to a settlement of her dispute with Poland on a reasonable basis had failed, Hitler, on 31 August, issued his final directive, in which he announced that the attack on Poland would start in the early morning of 1 September, and gave instructions as to what action would be taken if Great Britain and France should enter the war in defense of Poland.
In the opinion of the Tribunal, the events of the days immediately preceding 1 September 1939 demonstrate the determination of Hitler and his associates to carry out the declared intention of invading Poland at all costs, despite appeals from every quarter. With the ever-increasing evidence before him that this intention would lead to war with Great Britain and France as well, Hitler was resolved not to depart from the course he had set for himself. The Tribunal is fully satisfied by the evidence that the war initiated
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by Germany against Poland on I September 1939 was most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity.
THE PRESIDENT: Now I shall ask M. Falco to continue the reading of the Judgment.
M. LE CONSEILLER R. FALCO (Alternate member of the Tribunal for the French Republic):
The Invasion of Denmark and Norway
The aggressive war against Poland was but the beginning. The aggression of Nazi Germany quickly spread from country to country. In point of time the first two countries to suffer were Denmark and Norway.
On 31 May 1939 a treaty of non-aggression was made between Germany and Denmark, and signed by the Defendant Ribbentrop. It was there solemnly stated that the parties to the treaty were "'firmly resolved to maintain peace between Denmark and Germany under all circumstances." Nevertheless, Germany invaded Denmark on 9 April 1940.
On 2 September 1939, after the outbreak of war with Poland, Germany sent a solemn assurance to Norway in these terms:
"The German Reich Government is determined, in view of the friendly relations which exist between Norway and Germany, under no circumstance to prejudice the inviolability and integrity of Norway, and to respect the territory of the Norwegian State. In making this declaration the Reich Government naturally expects, on its side, that Norway will observe an unimpeachable neutrality towards the Reich and will not tolerate any breaches of Norwegian neutrality by any third party which might occur. Should the attitude of the Royal Norwegian Government differ from this so that any such breach of neutrality by a third party occurs, the Reich Government would then obviously be compelled to safeguard the interests of the Reich in such a way as the resulting situation might dictate."
On 9 April 1940, in pursuance of her plan of campaign, Norway was invaded by Germany.
The idea of attacking Norway originated, it appears, with the Defendants Raeder and Rosenberg. On 3 October 1939 Raeder prepared a memorandum on the subject of "gaining bases in Norway," and amongst the questions discussed was the question:
"Can bases be gained by military force against Norway's will, if it is
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impossible to carry this out without fighting?" Despite this fact, 3 days later, further assurances were given to Norway by Germany, which stated: "Germany has never had any conflicts of interest or even points of controversy with the Northern States, and neither has she any today."
Three days later again, the Defendant Doenitz prepared a memorandum on the same subject, namely, bases in Norway, and suggested the establishment of a base in Trondheim with an alternative of supplying fuel in Narvik. At the same time the Defendant Raeder was in correspondence with Admiral Carls, who pointed out to him the importance of an occupation of the Norwegian coast by Germany. On 10 October Raeder reported to Hitler the disadvantages to Germany which an occupation by the British would have. In the months of October and November Raeder continued to work on the possible occupation of Norway, in conjunction with the "Rosenberg Organization." The "Rosenberg Organization" was the Foreign Affairs Bureau of the NSDAP, and Rosenberg as Reichsleiter was in charge of it. Early in December, Quisling, the notorious Norwegian traitor, visited Berlin and was seen by the Defendants Rosenberg and Raeder. He put forward a plan for a coup d'etat in Norway. On 12 December, the Defendant Raeder and the Naval Staff, together with the Defendants Keitel and Jodl, had a conference with Hitler, when Raeder reported on his interview with Quisling, and set out Quisling's views. On 16 December Hitler himself interviewed Quisling on all these matters. In the report of the activities of the Foreign Affairs Bureau of the NSDAP for the years 1933-1943, under the heading of "Political preparations for the military occupation of Norway," it is stated that at the interview with Quisling Hitler said that he would prefer a neutral attitude on the part of Norway as well as the whole of Scandinavia, as he did not desire to extend the theater of war, or to draw other nations into the conflict. If the enemy attempted to extend the war he would be compelled to, guard himself against that undertaking; he promised Quisling financial support, and assigned to a special military staff the examination of the military questions involved.
On 27 January 1940 a memorandum was prepared by the Defendant Keitel regarding the plans for the invasion of Norway. On 28 February 1940 the Defendant Jodl entered in his diary:
"I proposed first to the Chief of OKW and then to the Fuehrer that 'Case Yellow' (that is the operation against the Netherlands) and 'Weser Exercise' (that is the operation against Norway and Denmark) must be prepared in such a way that they will be independent of one another as regards both time and forces employed."
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On 1 March Hitler issued a directive re the Weser Exercise which contained the words:
"The development of the situation in Scandinavia requires the making of all preparations for the occupation of Denmark and Norway by a part of the German Armed Forces. This operation should prevent British encroachment on Scandinavia and the Baltic; further, it should guarantee our ore base in Sweden and give our Navy and Air Force a wider start J line against Britain.... The crossing of the Danish border and the landings in Norway must take place simultaneously.... It is most important that the Scandinavian States as well as the Western opponents should be taken by surprise by our measures."
On 24 March the naval operation orders for the Weser Exercise were issued, and on 30 March the Defendant Doenitz as Commander-in-Chief of U-boats issued his operational order for the occupation of Denmark and Norway. On 9 April 1940 the German forces invaded Norway and Denmark.
From this narrative it is clear that as early as October 1939 the question of invading Norway was under consideration. The defense that has been made here is that Germany was compelled to attack Norway to forestall an Allied invasion, and her action was therefore preventive.
It must be remembered that preventive action in foreign territory is justified only in case of "an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment of deliberation" (The Caroline Case, Moore's Digest of International Law II, 412). How widely the view was held in influential German circles that the Allies intended to occupy Norway cannot be determined with exactitude. Quisling asserted that the Allies would intervene in Norway with the tacit consent of the Norwegian Government. The German Legation at. Oslo disagreed with this view, although the Naval Attache at that Legation shared it.
The War Diary of the German Naval Operations Staff for 13 January 1940 stated that the Chief of the Naval Operations Staff thought that the most favorable solution would be the maintenance of the neutrality of Norway, but he harbored the firm conviction that England intended to occupy Norway in the near future, relying on, the tacit agreement of the Norwegian Government. The directive of Hitler issued on 1 March 1940 for the attack on Denmark and Norway stated that the operation "should prevent British encroachment on Scandinavia and the Baltic."
It is, however, to be remembered that the Defendant Raeder's memorandum of 3 October 1939 makes no reference to forestalling
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the Allies, but is based upon the aim of "improving our strategical and operational position."
The memorandum itself is headed "Gaining of bases in Norway." The same observation applies mutatis mutandis to the memorandum of the Defendant Doenitz of 9 October 1939.
Furthermore, on 13 March the Defendant Jodl recorded in hi diary:. "Fuehrer does not give order yet for 'W' (Weser Exercise) He is still looking for an excuse." On 14 March 1940 he again wrote: "Fuehrer has not yet decide what reasons to give for 'Weser Exercise'."
On 21 March 1940 he recorded the misgivings of Task Force XXI about the long interval between taking up readiness positions and the close of the diplomatic negotiations, and added:
"Fuehrer rejects any earlier negotiations, as otherwise calls for help go out to England and America. If resistance is put up it must be ruthlessly broken." On 2 April he records that all the preparations are completed; on 4 April the naval operational order was issued; and on 9 April, the invasion was begun. From all this it is clear that when the plans for an attack on Norway were being made, they were not made for the purpose of forestalling an imminent Allied landing, but, at the most, that they might prevent an Allied occupation at some future date.
When the final orders for the German invasion of Norway were given, the diary of the Naval Operations Staff for 23 March 1940 records: "A mass encroachment by the English into Norwegian territorial waters ... is not to be expected at the present time." And Admiral Assmann's entry for 26 March says: "British landing in Norway not considered serious."
Documents which were subsequently captured by the Germans are relied on to show that the Allied plan to occupy harbors and airports in Western Norway was a definite plan, although in all points considerably behind the German plans under which the invasion was actually carried out. These documents indicate that an altered plan had been finally agreed upon on 20 March 1940, that a convoy should leave England on 5 April, and that mining in Norwegian waters would begin the same day; And that on 5 April the sailing time had been postponed until 8 April. But these plans were not the cause of the German invasion of Norway. Norway was occupied by Germany to afford her bases from which a more effective attack on England and France might be made, pursuant to plans prepared long in advance of the Allied plans which are now relied on to support the argument of self-defense.
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It was further argued that Germany alone could decide, in accordance with the reservations made by many of the signatory powers at the time of the conclusion of the Briand-Kellogg Pact, whether preventive action was a necessity, and that in making her decision her judgment was conclusive. But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.
No suggestion is made by the defendants that there was any plan by any belligerent other than Germany to occupy Denmark. No excuse for that aggression has ever been offered.
As the German armies entered Norway and Denmark, German memoranda were handed to the Norwegian and Danish Governments which gave the assurance that the German troops did not come as enemies, that they did not intend to make use of the points occupied by German troops as bases for operations against England as long as they were not forced to do so by measures taken by England and France, and that they had come to protect the North against the proposed occupation of Norwegian strong-points by English-French forces.
The memoranda added that Germany had no intention of infringing the territorial integrity and political independence of the Kingdom of Norway then or in the future. Nevertheless, on 3 June 1940, a German naval memorandum discussed the use to be made of Norway and Denmark, and put forward one solution for consideration, that the territories of Denmark and Norway acquired during the course of the war should continue to be occupied and organized so that they could in the future be considered as German possessions. In the light of all the available evidence it is impossible to accept the contention that the invasions of Denmark and Norway were defensive, and in the opinion of the Tribunal they were acts of aggressive war.
The Invasion of Belgium, the Netherlands and Luxembourg
The plan to seize Belgium and the Netherlands was considered in August 1938, when the attack on Czechoslovakia was being formulated, and the possibility of war with France and England was contemplated. The advantage to Germany of being able to use these countries for her own purposes, particularly as air bases in the war against England and France, was emphasized. In May of 1939, when Hitler made his irrevocable decision to attack Poland, and foresaw the possibility at least of a war with England and France in consequence, he told his military commanders: "Dutch
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and Belgian air bases must be occupied.... Declarations of neutrality must be ignored."
On 22 August in the same year, he told his military commanders that England and France, in his opinion, would not "violate the neutrality of these countries." At the same time he assured Belgium and Holland and Luxembourg that he would respect their neutrality; and on 6 October 1939, after the Polish campaign, he repeated this assurance. On 7 October General Von Brauchitsch directed Army Group B to prepare "for the immediate invasion of Dutch and Belgian territory, if the political situation so demands." In a series of orders, which were signed by the Defendants Keitel and Jodl, the attack was fixed for 10 November 1939, but it was postponed from time to, time until May of 1940 on account of weather conditions and transport problems.
At the conference on 23 November 1939 Hitler said:
"We have an Achilles heel: the Ruhr. The progress of the war depends on the possession of the Ruhr. If England and France push through Belgium and Holland into the Ruhr, we shall be in the greatest danger.... Certainly England and France will assume the offensive against Germany when they are armed. England and, France have means of pressure to bring Belgium and Holland to request English and French help. In Belgium and Holland the sympathies are all for France and England.... If the French Army marches into Belgium in order to attack us, it will be too late for us. We must anticipate them... We shall sow the English coast with mines which cannot be cleared. This mine warfare with the Luftwaffe demands a different starting point. England cannot live without its imports. We can feed ourselves. The permanent sowing of mines on the English coast will bring England to her knees. However, this can only occur if we have occupied Belgium and Holland.... My decision is unchangeable; I shall attack France and England at the most favorable and quickest moment. Breach of the neutrality of Belgium and Holland is meaningless. No one will question that when we have won. We shall not bring about the breach of neutrality as idiotically as it was in 1914. If we do not break the neutrality, then England and France will. Without attack) the war is not to be ended victoriously."
On 10 May 1940 the German forces invaded the Netherlands, Belgium, and Luxembourg. On the same day the German Ambassadors handed to the Netherlands and Belgian Governments a memorandum alleging that the British and French armies, with the consent of Belgium and Holland, were planning to march through those countries to attack the Ruhr, and justifying the invasion on
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these grounds. Germany, however, assured the Netherlands and Belgium that their integrity and their possessions would be respected. A similar memorandum was delivered to Luxembourg on the same date.
There is no evidence before the Tribunal to justify the contention that the Netherlands, Belgium, and Luxembourg were invaded by Germany because their occupation had been planned by England and France. British and French staffs had been co-operating in making certain plans for military operations in the Low Countries, but the purpose of this planning was to defend these countries in the event of a German attack.
The invasion of Belgium, Holland, and Luxembourg was entirely without justification.
It was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war. The resolve to invade was made without any other consideration than the advancement of the aggressive policies of Germany.
The Aggression against Yugoslavia and Greece
On 12 August 1939 Hitler had a conversation with Ciano, and the Defendant Ribbentrop at Obersalzberg. He then said:
"Generally speaking, the best thing to happen would be for the neutrals to be liquidated one after the other. This process could be carried out more easily if on every occasion one partner of the Axis covered the other while it was dealing with the uncertain neutral. Italy might well regard Yugoslavia as a neutral of this kind."
This observation was made only 2 months after Hitler had given assurances to Yugoslavia that he would regard her frontier as final and inviolable. On the occasion of the visit to Germany of the Prince Regent of Yugoslavia on I June 1939, Hitler had said in a public speech:
"The firmly established reliable relationship, of Germany to Yugoslavia, now that owing to historical events we have become neighbors with common boundaries fixed for all time, will not only guarantee lasting peace between our two peoples and countries, but can also represent an element of calm to our nerve-racked continent. This peace is the goal of all who are disposed to perform really constructive work."
On 6 October 1939 Germany repeated those assurances to Yugoslavia, after Hitler and Ribbentrop had unsuccessfully tried to persuade Italy to enter the war on the side of Germany by attacking Yugoslavia. On 28 October 1940 Italy invaded Greece, but the military operations met with no success. In November Hitler wrote
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to Mussolini with regard to the invasion of Greece, and the extension of the war in the Balkans, and pointed out that no military operations could take place in the Balkans before the following March, and therefore Yugoslavia must, if at all possible, be won over by other means and in other ways. But on 12 November 1940 Hitler issued a directive for the prosecution of the war, and it included the words:
"The Balkans: The Commander-in-Chief of the Army will make preparations for occupying the Greek mainland north of the Aegean Sea, in case of need entering through Bulgaria." On 13 December he issued a directive concerning the operation "Marita," the code name for the invasion of Greece, in which he stated:
"1. The result of the battles in Albania is not yet decisive. Because of a dangerous situation in Albania, it is doubly necessary that the British endeavor be foiled to create air bases under the protection of a Balkan front, which would be dangerous above all to Italy as to the Romanian oilfields. "2. My plan therefore is (a) to form a slowly increasing task force in Southern Romania within the next months (b) after the setting-in of favorable weather, probably in March, to send a task force for the occupation of the Aegean north coast by way of Bulgaria, and if necessary to occupy the entire Greek mainland." On 20 January 1941, at a meeting between Hitler and Mussolini, at which Defendants Ribbentrop, Keitel, Jodl, and others were present, Hitler stated:
"The massing of troops in Romania serves a threefold purpose:
(a) an operation against Greece;
(b) protection of Bulgaria against Russia and Turkey;
(c) safeguarding the guarantee to Romania....
It is desirable that this employment be completed without interference from the enemy. Therefore, disclose the game as late as possible. The tendency will be to cross the Danube at the last possible moment, and to line up for attack at the earliest possible moment."
On 19 February 1941 an OKW directive for the operation "Marita" stated:
"On 18 February the Fuehrer made the following decision regarding the carrying-out of Operation Marita: The following dates are envisaged:
Commencement of building bridge, 28 February; crossing of the Danube, 2 March."
On 3 March 1941, British troops landed in Greece to assist the Greeks to resist the Italians; and on 18 March, at a meeting between
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Hitler and the Defendant Raeder, at which the Defendants Keitel and Jodl were also present, the Defendant Raeder asked, for confirmation that "all of Greece will have to be occupied, even in the event of a peaceful settlement," to which Hitler replied, "The complete occupation is a prerequisite of any settlement." On 25 March, on the occasion of the adherence of Yugoslavia to the Tripartite Pact at a meeting in Vienna, the Defendant Ribbentrop, on behalf of the German Government, confirmed the determination of Germany to respect the sovereignty and territorial integrity of Yugoslavia at all times. On 26 March the Yugoslav ministers, who had adhered to the Tripartite Pact, were removed from office by a coup d'etat in Belgrade on their return from Vienna, and the new Government repudiated the pact. Thereupon on 27 March, at a conference in Berlin with the High Command at which the Defendants Goering, Keitel and Jodl were present, and the Defendant Ribbentrop part of the time, Hitler stated that Yugoslavia was an uncertain factor in regard to the contemplated attack on Greece, and even more so with regard to the attack upon Russia which was to be conducted later on. Hitler announced that he was determined, without waiting for possible loyalty declarations of the new Government, to make ail preparations in order to destroy Yugoslavia militarily and as a national unit. He stated that he would act with "unmerciful harshness."
On 6 April German forces invaded Greece and Yugoslavia without warning, and Belgrade was bombed by the Luftwaffe. So, swift was this particular invasion that there had not been time to establish any "incidents" as a usual preliminary, or to find and publish any adequate "political" explanations. As the attack was starting on 6 April, Hitler proclaimed to the German people that this attack was necessary because the British forces in Greece (who were helping the Greeks to defend themselves against the Italians) represented a British attempt to extend the war to the Balkans.
It is clear from this narrative that aggressive war against Greece and Yugoslavia had long been in contemplation, certainly as early as August of 1939. The fact that Great Britain had come to the assistance of-the Greeks, and might thereafter be in a position to inflict great damage upon German interests, was made the occasion for the occupation of both countries. The Aggressive War against the Union of Soviet Socialist Republics On 23 August 1939 Germany signed the non-aggression pact with the Union of Soviet Socialist Republics.
The evidence has shown unmistakably that the Soviet Union on their part conformed to the terms of this pact; indeed the German
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Government itself had been assured of this by the highest German sources. Thus, the German Ambassador in Moscow informed his Government that the Soviet Union would go to war only if attacked by Germany, and this statement is recorded in the German War Diary under the date of 6 June 1941. Nevertheless, as early as the late summer of 1940, Germany began to make preparations for an attack on the U.S.S.R. in spite of the non-aggression pact. This operation was secretly planned under the code name "Case Barbarossa," and the former Field Marshal Paulus testified that on 3 September 1940, when he joined the German General Staff, he continued developing "Case Barbarossa," which was finally completed at the beginning of November 1940; and that even then, the German General Staff had no information that the Soviet Union was preparing for war.
On 18 December 1940 Hitler issued Directive Number 21, initialled by Keitel and Jodl, which called for the completion of all preparations connected with the realization of "Case Barbarossa" by 15 May 1941. This directive stated:
"The German Armed Forces must be prepared to crush Soviet Russia in a quick campaign before the end of the war against England.... Great caution has to be exercised that the intention of an attack will not be recognized." Before the directive of 18 December had been made, the Defendant Goering had informed General Thomas, Chief of the Office of War Economy of the OKW, of the plan, and General Thomas made surveys of the economic possibilities of the U.S.S.R. including its raw materials, its power and transport system, and its capacity to produce arms.
In accordance with these surveys, an economic staff for the Eastern territories with many military-economic units (inspectorates, commandos, groups) was created under the supervision of the Defendant Goering. In conjunction with the military command, these units were to achieve the most complete and efficient economic exploitation of the occupied territories in the interest of Germany. The framework of the future political and economic organization of the occupied territories was designed by the Defendant Rosenberg over a period of 3 months, after conferences with and assistance by the Defendants Keitel, Jodl, Raeder, Funk, Goering, Ribbentrop, and Frick or their representatives. It was made the subject of a most detailed report immediately after the invasion. These plans outlined the destruction of the Soviet Union as an independent State, and its partition, the creation of so-called Reich Commissariats, and the conversion of Estonia, Latvia, Bielorussia and other territories into German colonies.
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At the same time Germany drew Hungary, Romania, and Finland into the war against the U.S.S.R. In December 1940 Hungary agreed to participate on the promise of Germany that she should have certain territories at the expense of Yugoslavia. In May 1941 a final agreement was concluded with Antonescu, the Prime Minister of Romania, regarding the attack on the U.S.S.R., in which Germany promised to Romania Bessarabia, Northern Bukovina, and the right to occupy Soviet territory up to the Dnieper.
On 22 June 1941, without any declaration of war, Germany invaded Soviet territory in accordance with the plans so long made.
The evidence which has been given before this Tribunal proves that Germany had the design carefully thought out, to crush the U.S.S.R. as a political and military power, so that Germany might expand to the east according to her own desire. In Mein Kampf Hitler has written:
"If new territory were to be acquired in Europe, it must have been mainly at Russia's cost, and once again the new German Empire should have set out on its march along the same road as was formerly trodden by the Teutonic knights, this time to acquire soil for the German plough by means of the German sword and thus provide the nation with its daily bread."
But there was a more immediate purpose, and in one of the memoranda of the OKW that immediate purpose was stated to be to feed the German armies from Soviet territory in the third year of the war, even if "as a result many millions of people will be starved to death if we take out of the country the things necessary for us."
The final aims of the attack on the Soviet Union were formulated at a conference with Hitler on 16 July 1941, in which the Defendants Goering, Keitel, Rosenberg, and Bormann participated:
"There can be no talk of the creation of a military power west of the Urals, even if we should have to fight 100 years to achieve this.... All the Baltic regions must become part of the Reich. The Crimea and adjoining regions (north of the Crimea) must likewise be incorporated into the Reich.... The region of the 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 U.S.S.R. 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 U.S.S.R., for the removal of masses of the population, for the murder of commissars
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and political leaders, were all part of the carefully prepared scheme launched on 22 June without warning of any kind, and without the shadow of legal excuse. It was plain aggression.
War against the United States
Four days after the attack launched by the Japanese on the United States fleet in Pearl Harbor on 7 December 1941, Germany declared war on the United States. The Tripartite Pact between Germany, Italy, and Japan had been signed on 27 September 1940, and from that date until the attack upon the U.S.S.R. 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 also 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 4 April 1941, Hitler told Matsuoka, the Japanese Foreign Minister, in the presence of the Defendant 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 Ribbentrop himself urged Matsuoka to bring Japan into the war.
On 28 November 1941, 10 days before the attack on Pearl Harbor, 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 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.
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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.
THE PRESIDENT: The Tribunal will adjourn until a quarter past two.
[A recess was taken until 1415 hours.]
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THE PRESIDENT: I now ask Mr. Biddle to continue the reading of the Judgment.
MR. FRANCIS BIDDLE (Member of the Tribunal for the United States):
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 twelve 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.
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.
Breaches of certain provisions of the Versailles Treaty are also relied on by the Prosecution--not to fortify the left bank of the Rhine (Articles 42-44); to "respect strictly the independence of Austria" (Article 80); renunciation of any rights in Memel (Article 99), and in the Free City of Danzig (Article 100); the recognition of the independence of the Czechoslovak 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
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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 13 March 1938, in violation of Article 80;
3. The incorporation of the district of Memel on 22 March 1939, in violation of Article 99;,
4. The incorporation of the Free City of Danzig on 1 September 1939, in violation of Article 100;
5. The incorporation of the provinces of Bohemia and, Moravia on 16 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 21 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.)
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 between Germany and Luxembourg in 1929. Non-aggression treaties were executed by Germany with Denmark and Russia in 1939.
The Pact of Paris was signed on 27 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
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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 26 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.
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
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be no punishment of crime without a pre-existing 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 that 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, for 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 27 August 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 ... and 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...."
The first two articles are as follows:
"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
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and renounce it as an instrument of national policy in their relations to 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."
The question is, what was the legal effect, of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:
"War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world ... an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law .... We denounce them as law breakers."
But it is argued that the pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the law of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war.
These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offenses against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any 'mention made of a court to try and punish offenders. For many years past, however, military, tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is
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not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of Justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.
The view which the Tribunal takes of the true interpretation of the pact is supported by the international history which preceded it. In the year 1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the treaty declared "that aggressive war is an international crime," and that the parties would "undertake that no one of them will be guilty of its commission." The draft treaty was submitted to 29 states, about half of whom were in favor of accepting the text. The principal objection appeared to be in the difficulty of defining the acts which would constitute "aggression," rather than any doubt as to the criminality of aggressive war. the preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes ("Geneva Protocol"), after "recognizing the solidarity of the members of the international community," declared that "a war of aggression constitutes a violation of this solidarity and is an international crime." It went on to declare that the contracting parties were "desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between the states and of insuring the repression of international crimes." The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the assembly of the 48 members of the League. These members included Italy and Japan, but Germany was not then a member of the League. Although the Protocol was never ratified, it was signed by the leading statesmen of the world, representing the vast majority of the civilized states and peoples) and may be regarded as strong evidence of the intention to brand aggressive war as an international crime. At the meeting of the Assembly of the League of Nations on 24 September 1927, all the delegations then present (including the German, the Italian, and the Japanese) unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
"The Assembly: Recognizing the solidarity which unites the community of nations; being inspired by a firm desire for
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the maintenance of general peace; being convinced that a war of aggression can never serve as a means of settling international disputes, and is in consequence an international crime...."
The unanimous resolution of 18 February 1928 of 21 American republics at the Sixth (Havana) Pan-American Conference, declared that "War of aggression constitutes an international crime against the human species." All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world finds its expression in the series of pacts and treaties to which the Tribunal has just referred.
It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor "for a supreme offense against international morality and the sanctity of treaties." The purpose of this trial was expressed to be "to vindicate the solemn obligations of international undertakings, and the validity of international morality." In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war."
It was submitted that international law is concerned with the actions of sovereign states and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of ex parte Quirin (1942-317, US-1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:
"From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals."
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He went on to give a list of cases tried by the courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
The provisions of Article 228 of the Treaty of Versailles, already referred to, illustrate and enforce this view of individual responsibility. The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:
"The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment."
On the other hand the very essence of the Charter is that, individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law. It was also submitted on behalf of most of these defendants that in doing what they did they were acting under the orders of Hitler, and therefore cannot be held responsible for the acts committed by them in carrying out these orders.
The Charter specifically provides in Article 8:
"The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment."
The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.
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The Law as to the Common Plan or Conspiracy
In the previous recital of the facts relating to aggressive war, it is clear that planning and preparation had been carried out in the most systematic way at every stage of the history.
Planning and preparation are essential to the making of war. In the opinion of the Tribunal aggressive war is a crime under international law. The Charter defines this offense as planning, preparation, initiation or waging of a war of aggression "or participation in a Common Plan or Conspiracy for the accomplishment ... of the foregoing." The Indictment follows this distinction. Count One charges the Common Plan or Conspiracy. Count Two charges the planning and waging of war. The same evidence has been introduced to support both Counts. We shall therefore discuss both Counts together, as they are in substance the same. The defendants have been charged under both Counts, and their guilt under each Count must be determined.
The "Common Plan or Conspiracy" charged in the Indictment covers 25 years, from the formation of the Nazi Party in 1919 to the end of the war in 1945. The Party is spoken of as "the instrument of cohesion among the defendants" for carrying out the purposes of the conspiracy--the overthrowing of the Treaty of Versailles, acquiring territory lost by Germany in the last war and "Lebensraum" in Europe, by the use, if necessary, of armed force, of aggressive war. The "seizure of power" by the Nazis, the use of terror, the destruction of trade unions, the attack on Christian teaching and on Churches, the persecution of Jews, the regimentation of youth--all these are said to be steps deliberately taken to carry out the common plan. It found expression, so it is alleged, in secret rearmament, the withdrawal by Germany from the Disarmament Conference and the League of Nations, universal military service, and seizure of the Rhineland. Finally, according to the Indictment, aggressive action was planned and carried out against Austria and Czechoslovakia in 1936-1938, followed by the planning and waging of war against Poland, and, successively, against 10 other countries. The Prosecution says, in effect, that any significant participation in the affairs of the Nazi Party or Government is evidence of a participation in a conspiracy that is in itself criminal. Conspiracy is not defined in the Charter.
But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on-the declarations of a party program, such as are found in the 25 points of the Nazi Party, announced in 1920, or the political affirmations expressed in Mein Kampf in later years. The Tribunal must
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examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.
It is not necessary to decide whether a single master conspiracy between the defendants has been established by the evidence. The seizure of power by the Nazi Party, and the subsequent domination by the Nazi State of all spheres of economic and social life must of course be remembered when the later plans for waging war are examined. That plans were made to wage war as early as 5 November 1937, and probably before that, is apparent. And thereafter, such preparations continued in many directions, and against the peace of many countries.
Indeed the threat of war--and war itself if necessary--was an integral part of the Nazi policy. But the evidence establishes with certainty the existence of many separate plans rather than a single conspiracy embracing them all. That Germany was rapidly moving to complete dictatorship from the moment that the Nazis seized power, and progressively in the direction of war, has been overwhelmingly shown in the ordered sequence of aggressive acts and wars already set out in this Judgment.
In the opinion of the Tribunal, the evidence establishes the common planning to prepare and wage war by certain of the defendants. It is immaterial to consider whether a single conspiracy to the extent and over the time set out in the Indictment has been conclusively proved. Continued planning, with aggressive war as the objective, has been established beyond doubt. The truth of the situation was well stated by Paul Schmidt, official interpreter of the German Foreign Office, as follows:
"The general objectives of the Nazi leadership were apparent from the start, namely the domination of the European continent, to be achieved first by the incorporation of all German-speaking groups in the Reich, and secondly, by territorial expansion under the slogan 'Lebensraum.' The execution of these basic objectives, however, seemed to be characterized by improvisation. Each succeeding step was apparently carried out as each new situation arose, but all consistent with the ultimate objectives mentioned above."
The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and business men. When
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they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. That they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime.
Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides:
"Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."
In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit War Crimes and Crimes against Humanity, and will consider only the common plan to prepare, initiate and wage aggressive war.
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COUNT ONE OF THE INDICTMENT--AGGRESSIVE WAR
Count one of the indictment, heretofore set out, charges the defendants with crimes against peace.
Before seeking to determine the law applicable it is necessary to determine with certainty the action which the defendants are alleged to have taken that constitutes the crime. As a preliminary to that we deem it necessary to give a brief consideration to the nature and characteristics of war. We need not attempt a definition that is all-inclusive and all-exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally as applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war as to the waging of a defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.
Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of nonresistance and thus prevents the occurrence of any actual combat.
In the light of this general characterization and definition of war and invasions we now consider the charge contained in the indictment. The essence of the charge is participation in the initiation of aggressive invasions and in the planning, preparation, and waging of aggressive wars. The remaining parts of paragraph 1 are merely a statement of particular actions which are sufficient to constitute a commission of the crime charged. Paragraph 2 charges that the defendants were principals, or accessories to, or were in other ways involved in, the commission of the previously charged crimes against peace. These are charges as to the nature of their relationship to the crime otherwise charged in the indictment, and add no new element to the criminality charged in paragraph 1. The reference in paragraph 2 to the high military positions formerly held by the defendants has relevance in the indictment and in the law (Control Council Law No. 10, Art. II, par. 2), not to show or charge additional crimes against peace, but to show what persons may be included and what
persons may not be excluded from being charged and convicted of the offense set forth in paragraph 1 (a).
The prosecution does not seek, or contend that the law authorizes, a conviction of the defendants simply by reason of their positions as shown by the evidence, but it contends only that such positions may be considered by the Tribunal with all other evidence in the case for such light as they may shed on the personal guilt or innocence of the individual defendants. The prosecution does contend, and we think the contention sound, that the defendants are not relieved of responsibility for action which would be criminal in one who held no military position, simply by reason of their military positions. This is the clear holding of the judgment of the IMT, and is so provided in Control Council Law No. 10, Article II, paragraph 4 (a).
The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between the two adversaries. Whether a war be lawful, or aggressive and therefore unlawful under international law, is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness.
As we have pointed out, war whether it be lawful or unlawful is the implementation of a national policy. If the policy under which it is initiated is criminal in its intent and purpose it is so because the individuals at the policy-making level had a criminal intent and purpose in determining the policy. If war is the means by which the criminal objective is to be attained then the waging of the war is but an implementation of the policy, and the criminality which attaches to the waging of an aggressive war should be confined to those who participate in it at the policy level.
This does not mean that the Tribunal subscribes to the contention made in this trial that since Hitler was the Dictator of the Third Reich and that he was supreme in both the civil and military fields, he alone must bear criminal responsibility for political and military policies. No matter how absolute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning, and waging such a war. Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it. Control Council Law No. 10 does not definitely draw such a line.
It points out in paragraph 2 of Article II certain fact situations and established relations that are or may be sufficient to constitute guilt and sets forth certain categories of activity that do not establish immunity from criminality. Since there has been no other prosecution under Control Council Law No. 10 with defendants in the same category as those in this case, no such definite line has been judicially drawn. This Tribunal is not required to fix a general rule but only to determine the guilt or innocence of the present defendants.
The judgment of the IMT held that:*
"The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in 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."
We hold that Control Council Law No. 10 likewise is but an expression of international law existing at the time of its creation. We cannot therefore construe it as extending the international common law as it existed at the time of the Charter to add thereto any new element of criminality, for so to do would give it an ex post facto effect which we do not construe it to have intended. Moreover, that this was not intended is indicated by the fact that the London Charter of 8 August 1945, is made an integral part of the Control Council Law.
Since international common law grows out of the common reactions and the composite thinking with respect to recurring situations by the various states composing the family of nations, it is pertinent to consider the general attitude of the citizens of states with respect to their military commanders and their obligations when their nations plan, prepare for and initiate or engage in war.
While it is undoubtedly true that international common law in case of conflict with state law takes precedence over it and while it is equally true that absolute unanimity among all the states in the family of nations is not required to bring an international common law into being, it is scarcely a tenable proposition that international common law will run counter to the consensus within any considerable number of nations.
Furthermore, we must not confuse idealistic objectives with realities. The world has not arrived at a state of civilization such that it can dispense with fleets, armies, and air forces, nor has it arrived at a point where it can safely outlaw war under
* Trial of the Major War Criminals, op. cit. supra, vol. I, p. 218.
any and all circumstances and situations. In as much as all war cannot be considered outlawed then armed forces are lawful instrumentalities of state, which have internationally legitimate functions. An unlawful war of aggression connotes of necessity a lawful war of defense against aggression. There is no general criterion under international common law for determining the extent to which a nation may arm and prepare for war. As long as there is no aggressive intent, there is no evil inherent in a nation making itself militarily strong. An example is Switzerland which for her geographical extent, her population and resources is proportionally stronger militarily than many nations of the world. She uses her military strength to implement a national policy that seeks peace and to maintain her borders against aggression.
There have been nations that have initiated and waged aggressive wars through long periods of history, doubtless there are nations still disposed to do so; and if not, judging in the light of history, there may be nations which tomorrow will be disposed so to do. Furthermore, situations may arise in which the question whether the war is or is not aggressive is doubtful and uncertain. We may safely assume that the general and considered opinions of the people within states-the source from which international common law springs are not such as to hamper or render them impotent to do the things they deem necessary for their national protection.
We are of the opinion that as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or it continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy.
If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offense. If, however, after the policy to initiate and wage aggressive wars was formulated, a defendant came into possession of knowledge that the invasions and wars to be waged,
were aggressive and unlawful, then he will be criminally responsible if he, being on the policy level, could have influenced such policy and failed to do so.
If and as long as a member of the armed forces does not participate in the preparation, planning, initiating, or waging of aggressive war on a policy level, his war activities do not fall under the definition of crimes against peace. It is not a person's rank or status, but his power to shape or influence the policy of his state, which is the relevant issue for determining his criminality under the charge of crimes against peace.
International law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, international law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime; however, the individual soldier or officer below the policy level is but the policy makers' instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization.
We do not hesitate to state that it would have been eminently desirable had the commanders of the German armed forces refused to implement the policy of the Third Reich by means of aggressive war. It would have been creditable to them not to contribute to the cataclysmic catastrophe. This would have been the honorable and righteous thing to do; it would have been in the interest of their State. Had they done so they would have served their fatherland and humanity also.
But however much their failure is morally reprimandable, we are of the opinion and hold that international common law, at the time they so acted, had not developed to the point of making the participation of military officers below the policy making or policy influencing level into a criminal offense in and of itself.
International law operates as a restriction and limitation on the sovereignty of nations. It may also limit the obligations which individuals owe to their states, and create for them international obligations which are binding upon them to an extent that they must be carried out even if to do so violates a positive law or directive of state. But the limitation which international common law imposes on national sovereignty, or on individual obliga-
tions, is a limitation self-imposed or imposed by the composite thinking in the international community, for it is by such democratic processes that common law comes into being. If there is no generality of opinion among the nations of the world as to a particular restriction on national sovereignty or on the obligations of individuals toward their own state, then there is no international common law on such matter.
By the Kellogg-Briand Pact 63 nations, including Germany, renounced war as an instrument of national policy. If this, as we believe it is, is evidence of a sufficient crystallization of world opinion to authorize a judicial finding that there exist crimes against peace under international common law, we cannot find that law to extend further than such evidence indicates. The nations that entered into the Kellogg-Briand Pact considered it imperative that existing international relationships should not be changed by force. In the preamble they state that they are:
"Persuaded that the time has come when *** all changes in their relationships with one another should be sought only by pacific means * * *."
This is a declaration that from that time forward each of the signatory nations should be deemed to possess and to have the right to exercise all the privileges and powers of a sovereign nation within the limitations of international law, free from all interference by force on the part of any other nation. As a corollary to this, the changing or attempting to change the international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war. It is, therefore, aggressive war that is renounced by the pact. It is aggressive war that is criminal under international law.
The crime denounced by the law is the use of war as an instrument of national policy. Those who commit the crime are those who participate at the policy making level in planning, preparing, or in initiating war. After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policy making level.
The making of a national policy is essentially political, though it may require, and of necessity does require, if war is to be one element of that policy, a consideration of matters military as well as matters political.
It is self-evident that national policies are made by man. When men make a policy that is criminal under international law, they are criminally responsible for so doing. This is the logical and inescapable conclusion.
The acts of commanders and staff officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation, and waging of war or the initiation of invasion that international law denounces as criminal.
Under the record we find the defendants were not on the policy level, and are not guilty under count one of the indictment. With crimes charged to have been committed by them in the manner in which they behaved in the waging of war, we deal in other parts of this judgment.
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1. Soviet Union was never charged for waging aggressive war (against Poland in 1939, against Finland in 1940, against Romania in 1941, against Iran in 1941, against the Baltic States in 1940)
2. UK was never charged for waging aggressive war (against Iraq in 1940, against Iran in 1941)
3. Italy was never charged for waging aggresive war (against Albania and Greece in 1940)
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Notably, Article 6 of the IMT Charter provided that:
That is, the personal jurisdiction of the IMT was limited to the Axis leaders, but the definition of crimes against peace was not so limited. The subtext of this was that the Soviet Union wanted the definition of crimes against peace to be limited to conspiracy, planning, waging and such by the Axis powers - for reasons you have already hinted at. But the Americans insisted that the Charter should plainly establish that aggressive war is an international crime regardless of which state wages it.The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or ' waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
Personally I would have to say that that was the correct course, both from the perspective of international peace and security generally and the criminalisation of aggressive war in particular. What good would have been served by attempting the futile prosecution of erstwhile allies who were still in power and hence untouchable, except to hasten the breakdown of the new peace for which so much blood had been spilt?
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PFLB, this is a good point with regards to why only Axis nations were charged.Personally I would have to say that that was the correct course, both from the perspective of international peace and security generally and the criminalisation of aggressive war in particular. What good would have been served by attempting the futile prosecution of erstwhile allies who were still in power and hence untouchable, except to hasten the breakdown of the new peace for which so much blood had been spilt?
But the perception that the crimes against peace is only applicable to Axis countries rather than the Allies would only give credence to siegersjustiz.
Political principles when applied to formation of international law rather the spirit of the law which was intended or humanitarian principles of why the law is formed in the first place would reinforced this perception
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As unrestricted submarine warfare and many other violations committed by all parties...Panzermahn wrote:But the perception that the crimes against peace is only applicable to Axis countries rather than the Allies would only give credence to siegersjustiz.
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I agree. It is a valid criticism and one which those who drafted the IMT Charter and carried out the prosecutions were aware of. But I still would have done as they did. Since people like Winston Churchill and Joseph Stalin were still in power, charging them with crimes against peace could only have served a declaratory purpose, i.e. showing that aggression was criminal regardless of who committed it.But the perception that the crimes against peace is only applicable to Axis countries rather than the Allies would only give credence to siegersjustiz.
Although that was a worthy message to send, I do not think much good would have been served by sending it through the means of further prosecutions. Regardless of what one thinks about the law before the IMT Charter, a very clear consensus on the criminality of aggression emerged after the Charter, through means such as UNGA Resolutions and the ILC's Nuremberg Principles, that is, the message was being sent in a non-judicial forum. That process would have been impeded by former allies throwing accusations of aggression at each other - as in fact started to happen when the Cold War got into gear and for four decades the term 'aggression' became yet another expletive in the same class as 'fascist' or 'imperialist' (it will never be completely free of this either).
In other words, I think further charges would not have emphasised the legal aspect of the crime but obscured it, by making it the subject of a political spat. International consensus would have been impaired, rather than enhanced. One can see an example in the crime of apartheid - due to the political connotations which many states perceived in the Apartheid Convention 1973, its support has always been one-sided (Eastern Bloc and Non-Aligned Movement states). A crime of apartheid, more restrictively defined, was incorporated into the ICC Statute - in much changed political circumstances.
As it was, such prosecutions as happened were sufficient, because even though they occurred more than sixty years ago and against the nationals of two defeated powers, it is well accepted that aggression is an international crime and does not depend on affiliation to the Axis powers of WWII. Also, bear in mind that by 1947 the Allies had no appetite even for prosecuting further German and Japanese officials for crimes against peace.
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D. CRIMES AGAINST PEACE
Apart from the Judgments delivered in the two trials held before the International Military Tribunals at Nuremberg and Tokyo, the judicial authorities concerning crimes against peace are the Judgments in the I.G. Farben,(6) Krupp,(7) High Command,(8) Greiser(9) and Takashi Sakai(10) Trials, together with the trial of Weizsaeker and others before a United States Military Tribunal, 1st November, 1947-15th April, 1949, in which the Judgment was delivered too late to enable a report on that trial to be included in this series.(11)
(6) See Vol. X, pp. 30-40.
(7) See Vol. X, pp. 102-130.
(6) See Vol. XII, pp. 65-71.
(9) See Vol. XIII, pp. 108-10.
(10) See Vol. XIV, pp. 1-7.
(11) Occasionally the judgment delivered in a trial in which aggressive war is not charged contains a reference to the waging of such a war, but it is not always clear whether the Tribunal is seeking to show that there is a legal conclusion to be drawn from the fact that the war referred to was aggressive in nature. This is true of the judgment in the Justice Trial. "For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe," says the judgment, " it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology." Similar reference in the judgment to aggressive war are contained in passages quoted in Vol. VI, pp. 62 and 73.
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The enactments relevant to the trials mentioned have already been quoted or mentioned in these pages: Article II 1 (a) of Law No. 10,(1) and the relevant provisions of Polish(2) and Chinese(3) Law. It should be added that, while no trials before Danish or Greek Courts or before United States Military Commissions in the Pacific Theatre of Operations in which crimes against peace have been alleged have been reported to the United Nations War Crimes Commission, such courts are in fact empowered to try such crimes.(4)
The following paragraphs numbered (i)-(ix) attempt to analyse the law relating to crimes against peace (including in the meaning of that term "planning, preparation, initiation or waging a war of aggression " and " participating in a common plan or conspiracy for the accomplishment of any of the foregoing ", to use the language of Article II 1 (a) of Law No. 10) as that law has been developed in the trials by United States Military Tribunals in Nuremberg which were bound by Law No. 10. The Polish and Chinese decisions are next referred to, and finally some remarks regarding the legal effects of the fact that a crime against peace has been committed are set out.
(i) Deeming it necessary "to give a brief consideration to the nature and characteristics of war", the Tribunal which conducted the High Command Trial said:
" We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organised body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals. What we have said thus far is equally as applicable to a just as to an unjust war, to the initiation of an aggressive and, therefore, criminal war as to the waging of defensive and, therefore, legitimate war against criminal aggression. The point we stress is that war activity is the implementation of a predetermined national policy.
" Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat. ...
" The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between the two adversaries. "(5)
(ii) Not all wars are illegal; nor is rearmament per se illegal: "Furthermore, we must not confuse idealistic objectives with realities. The world has not arrived at a state of civilisation such that it can dispense with fleets, armies, and air forces, nor has it arrived at a point where it can safely outlaw war under any and all circumstances and
(1) See p. 42.
(2) See p. 35 ; and Vol. VII, pp. 90--91.
(3) See p. 36 ; and Vol. XIV, p. 153.
(4) See pp. 33 and 36 of the present Volume and Vol. III, p. 106.
(5) Vol. XII, pp. 66 and 67.
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situations. Inasmuch as all war cannot be considered outlawed then armed forces are lawful instrumentalities of state, which have internationally legitimate functions. An unlawful war of aggression connotes of necessity a lawful war of defence against aggression. There is no general criterion under International Common Law for determining the extent to which a nation may arm and prepare for war. As long as there is no aggressive intent, there is no evil inherent in a nation making itself militarily strong. An example is Switzerland which for her geographical extent, her population and resources is proportionally stronger militarily than many nations of the world. She uses her military strength to implement a national policy that seeks peace and to maintain her borders against aggression. "(1)
As was remarked in the I.G. Farben and Krupp Trials: " The I.M.T. stated that, 'Rearmament of itself is not criminal under the Charter.' "(2)
(iii) The characteristics of illegal warfare are left rather undefined : "Whether a war be lawful or aggressive and therefore unlawful under International Law, is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for which it is planned, prepared, initiated and waged is to be found its lawfulness or unlawfulness....
"By the Kellog-Briand Pact the sixth-three signatory nations including Germany, renounced war as an instrument of National Policy. If this, as we believe it is, is evidence of a sufficient crystallisation of world opinion to authorise a judicial finding that there exist Crimes against Peace under International Common Law, we cannot find that law to extend further than such evidence indicates. The nations that entered into the Kellog-Briand Pact considered it imperative that existing international relationships should not be changed by force. In the preamble they state that they are :
'... persuaded that the time has come when ... all changes in their relationships with one another should be sought only by pacific means.'
"This is a declaration that from that time forward each of the signatory nations should be deemed to possess and to have the right to exercise all the privileges and powers of a sovereign nation within the limitations of International Law, free from all interference by force on the part of any other nation. As a corollary to this, the changing or attempting to change the international relationships by force of arms is an act of aggression and if the aggression results in war, the war is an aggressive war. It is, therefore, aggressive war that is renounced by the pact. It is aggressive war that is criminal under International Law.
" The crime denounced by the law is the use of war as an instrument of national policy."(3)
(1) Vol. XII, p. 68.
(.) Vol. X, pp. 36, 106 and 122. The Tribunals were careful to make clear, furthermore, that they were not called upon or empowered to make new law on the question of crimes against peace; see Vol. X, pp. 31 and 121 and Vol. XII, p. 67.
(8) Vol. XII, pp. 67 and 70.
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Elsewhere the Tribunal acting in the High Command Trial quoted the section of the Judgment of the Nuremberg International Military Tribunal which is headed " Violations of International Treaties ".(1) Here the latter court, having pointed out that" 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, "(2) refers to violations by Germany of the most important of these treaties that were in fact broken by that State.(3)
Comparatively little judicial attention has, however, been• paid to that part of Article II 1 (a) of Law No. 10 which, like Article 6 (a) of the Charter of the Nuremberg International Military Tribunal, declares criminal, " planning, preparation, initiation or waging of . . . a war in violation of international treaties, agreements or assurances. "(4) although the Supreme National Tribunal of Poland may be taken to have regarded conspiracy to commit breaches of Article 104 of the Treaty of Versailles and of the Polish Danzig Agreement of 9th November, 1920, and other agreements, and breach of the non-aggression pact signed in Berlin on 26th January, 1934, between Poland and Germany, as constituting part of ex-Gauleiter Greiser's guilt under the charge of crimes against peace(5).
The Judgment of the Tokyo International Military Tribunal recognises five separate crimes as crimes against peace :
" Under the heading of ' Crimes against Peace ' the Charter names five separate crimes. These are planning, preparation, initiation and waging aggressive war or a war in violation of international law, treaties, agreements, or assurances; to these four is added the further crime of participation in a common plan or conspiracy for the accomplishment of any of the foregoing. The indictment was based upon the Charter and all the above crimes were charged in addition to further charges founded upon other provisions of the Charter."
The Tribunal added, however :
" A conspiracy to wage aggressive or unlawful war arises when two or more persons enter into an agreement to commit that crime. Thereafter, in furtherance of the conspiracy, follows planning and preparing for such war. Those who participate at this stage may be either original conspirators or later adherents. If the latter adopt the purpose of the conspiracy and plan and prepare for its fulfilment they become conspirators. For this reason, as all the accused are charged with the conspiracies, we do not consider it necessary in respect of those we may find guilty of conspiracy to enter convictions also for planning and preparing. In other words, although we do not question the validity of the charges we do not think it necessary in respect of any defendants who may be found guilty of conspiracy to take into consideration nor to enter convictions upon counts 6 to 17 inclusive.
(1) See British Command Paper, Cmd. 6964, pp. 36-38.
(2) Italics inserted.
(3) Vol. XII, p. 62.
(4) See p. 42. The Nuremberg International Military Tribunal found it unnecessary to discuss at any length whether the aggressive wars found to have been proved were also wars in violation of international treaties, agreements or assurances (British Command Paper, Cmd. 6469, p. 36).
(5) See Vol. XIII, pp. 70-71, 74--77 and 108-110.
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" A similar position arises in connection with the counts of initiating and waging aggressive war. Although initiating aggressive war in some circumstances may have another meaning, in the Indictment before us it is given the meaning of commencing the hostilities. In this sense it involves the actual waging of the aggressive war. After such a war has been initiated or has been commenced by some offenders others may participate in such circumstances as to become guilty of waging the war. This consideration, however, affords no reason for registering convictions on the counts of initiating as well as of waging aggressive war. We propose, therefore, to abstain from consideration of Counts 18 to 26 inclusive. "(1)
Finally it should be added that in the Chinese trial mentioned on page 138, the Tribunal, in finding the accused guilty of a crime against peace, stressed that he had taken part in a war in violation of certain specified international agreements.(2)
(iv) The essentials of criminality in this sphere are knowledge and participation. After reviewing the findings of the International Military Tribunal as to Kaltenbrunner, Frank, Frick, Streicher, Funk, Schacht, Dönitz, von Schirach, Sauckel, von Papen, Speer, Fritzsche and Bormann, the Tribunal which conducted the I.G. Farben Trial said:
" From the foregoing it appears that the I.M.T. approached a finding of guilty of any defendant under the charges of participation in a common plan or conspiracy or planning and waging aggressive war with great caution. It made findings of guilty under Counts I and II only where the evidence of both knowledge and active participation was conclusive. No defendant was convicted under the charge of participating in the common plan or conspiracy unless he was, as was the defendant Hess, in such close relationship with Hitler that he must have been informed of Hitler's aggressive plans and took action to carry them out or attended at least one of the four secret meetings at which Hitler disclosed his plans for aggressive war. The I.M.T. Judgment lists these meetings as having taken place on 5th November, 1937, 23rd May, 1939, 22nd August, 1939, and 23rd November, 1939."(3)
The necessity for knowledge and participation was repeated elsewhere,(4) but it is added in the Krupp Trial Judgment that :
"In finding Hess guilty on the aggressive war Count and on the conspiracy Count, the International Military Tribunal clearly indicated that in its opinion a defendant could be found guilty even if he had not attended one of the four meetings referred to above. Likewise, we do not hold that a defendant cannot be found guilty unless he attended one of the meetings. "(5)
(1) Official transcript of the Judgment, pp. 32-33.
(2) See Vol. XIV, pp. 6-7.
(3) See Vol. X, pp. 31-34. The finding as to Speer was given particular attention, the importance of the precedent seeming to be that : "He was the official head of the whole industrial programme for the production of armaments. It would be unprecedented to hold that the activities of private citizens in the production of armament constituted waging of war when those of the official supervising those activities did not constitute that offence." (See Vol. X, p. 106-107 and 125-127).
(4) See Vol. X, pp. 35, 36, 106, 123, 125 and 128-129.
(5) Vol. X, p. 106 ; and see pp. 122-123 of that Volume.
TYPES OF OFFENCES 143
The requisite knowledge must be of plans for specific invasions or wars of aggression :
"The International Military Tribunal required proof that each defendant had actual knowledge of the plans for at least one of the invasions or wars of aggression, in order to find him guilty. "(1)
Judge Anderson emphasised that: " The requisite knowledge, I think, can be shown either by direct or circumstantial evidence but in any case it must be knowledge of facts and circumstances which would enable the particular individual to determine not only that there was a concrete plan to initiate and wage war, but that the contemplated conflict would be a war of aggression and hence criminal. Such knowledge being shown, it must be further established that the accused participated in the plan with the felonious intent to aid in the accomplishment of the criminal objective. In the individual crime of aggressive war or conspiracy to that end as contradistinguished to the international delinquency of a state in resorting to hostilities, the individual intention is of major importance. "(2)
Judge Wilkins also stressed that the requisite knowledge must include knowledge that the envisaged warfare would be criminal in character :
" To establish the requisite criminal intent, it seems necessary to show knowledge that the military power would be used in a manner which, in the words of the Kellogg Pact, includes war as an 'instrument of policy J. "(3)
The judgment delivered in the High Command Trial ruled that, in certain circumstances, inaction could make an accused liable, as well as "active participation" :
" We are of the opinion that as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy.
" If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offence. If, however, after the policy to initiate and wage aggressive wars was formulated, a defendant came into possession of knowledge that the
(1) Vol. X, p. 106.
(2) Vol. X, p. 123.
(3) See Vol. X, pp. 128-129.
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invasions and wars to be waged were aggressive and unlawful, then he will be criminally responsible if he, being on the policy level, could have influenced such 'policy and failed to do so. "(1)
(v) It was stressed that no rule of law excluded either business men or military men from liability for crimes against peace if the essentials of criminality are present :
"We do not hold that industrialists as such, could not under any circumstances be found guilty upon such charges."(2)
" The prosecution does contend, and we think the contention sound, that the defendants are not relieved of responsibility for action which would be criminal in one who held no military position, simply by reason of their military positions. This is the clear holding of the Judgment of the I.M.T., and is so provided in Control Council Law No. 10, Article II, Sec. 4a. "(3)
Military men appeared among those found guilty of crimes against peace by the International Military Tribunal for the Far East.
Further, of the accused Oshima who was found guilty of conspiracy to wage aggressive war, that Tribunal said : "Oshima was one of the principal conspirators and consistently supported and promoted the aims of the main conspiracy.
" He took no part in the direction of the war in China or the Pacific War and at no time held any post involving duties or responsibility in respect of prisoners. "
" Oshima's special defence is that in connection with his activities in Germany he is protected by diplomatic immunity and is exempt from prosecution. Diplomatic privilege does not import immunity from legal liability, but only exemption from trial by the Courts of the State to which an Ambassador is accredited. In any event, this immunity has no relation to Crimes against international law charged before a tribunal having jurisdiction. The tribunal rejects this special defence."(4)
(vi) Of the types of person who could be held guilty of crimes against peace, the I.G. Farben Judgment said:
" The London Agreement is entitled an agreement 'for the prosecution and punishment of the major war criminals of the European Axis. ' There is nothing in that agreement or in the attached Charter to indicate that the words' waging a war of aggression " as used in Article II (a) of the latter, were intended to apply to any and all persons who aided, supported, or contributed to the carrying on of an aggressive war ; and it may be added that the persons indicted and tried before the I.M.T. may fairly be classified as 'major war criminals' in so far as their activities were concerned. Consistent with the express purpose of the London Agreement to reach the 'major war criminals " the Judgment of the LM.T. declared that 'mass punishments should be avoided.'
(1) Vol. XII, pp. 68-69. (Italics inserted).
(2) See Vol. X, p. 105.
(3) Vol. XII, p. 66.
(4) Official transcript of the judgment, p. 1189.
TYPES OF OFFENCES 145
"To depart from the concept that only major war criminals--that is, those persons in the political, military, and industrial fields, for example, who were responsible for the formulation and execution of policies--may beheld liable for waging wars of aggression would lead far afield. Under such circumstances there could be no practical limitation on criminal responsibility that would not include, on principle, the private soldier on the battlefield, the farmer who increased his production of foodstuffs to sustain the armed forces, or the housewife who conserved fats for the making of munitions. Under such a construction the entire manpower of Germany could, at the uncontrolled discretion of the indicting authorities, be held to answer for waging wars of aggression. That would, indeed, result in the possibility of mass punishments....
" The defendants now before us were neither high public officials in the civil government nor high military officers. Their participation was that of followers and not leaders. If we lower the standard of participation to include them, it is difficult to find a logical place to draw the line between the guilty and the innocent among the great mass of German people. It is, of course, unthinkable that the majority of Germans should be condemned as guilty of committing crimes against peace. This would amount to a determination of collective guilt to which the corollary of mass punishment is the logical result, for which there is no precedent in international law and no justification in human relations. We cannot say that a private citizen shall be placed in the position of being compelled to determine in the heat of war whether his government is right or wrong, or, if it starts right, when it turns wrong. We would not require the citizen, at the risk of becoming a criminal under the rules of international justice, to decide that his country has become an aggressor and that he must lay aside his patriotism, the loyalty to his homeland, and the defence of his own fireside at the risk of being adjudged guilty of crimes against peace on the one hand, or of becoming a traitor to his country on the other, if he makes an erroneous decision based upon facts of which he had but vague knowledge. To require this of him would be to assign to him a task of decision which the leading statemen of the world and the learned men of international law have been unable to perform in their search for a precise definition of aggression. "(1)
The Krupp Trial Judgment stated:
" Whatever may be the view of experts in the field of criminology, in the eyes of law-makers and laymen the object of punishment is to deter others from crime. . In this particular instance, I apprehend, the object sought to be accomplished by making aggressive war a crime was to deter those capable of initiating that type of war from doing so. The language used in the Pact is to the effect that the signatories renounced war as a matter of national policy. Considered in the light of the complexity of the whole problem, the usage and custom which led to the Treaty and the object sought to be accomplished, it seems to me to be a reasonable view that the language used necessarily implies that only those responsible for a policy leading to initiation and waging _____________________________________________________________________
(1) See Vol. X, pp. 37-39. (Italics inserted).
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of aggressive war and those privy to such a policy together with those who, with a criminal intent actively conduct the hostilities or collaborate therein, are criminally liable in the event of war in violation of the Pact; for, if the threat of punishment deters these, there will be no war and the object of the law will have been accomplished.• Upon the other hand, if the threat to the policy-makers, leaders and their collaborators proves of no avail, is it reasonable to conclude that the law contemplates that the threat of post-war punishment by a court exercising criminal jurisdiction held out to the mass of the people will prove effective? To answer this in the affirmative, it seems to me, would be to ignore everyday experience and indulge in purely theoretical rather than practical thought.
" Moreover, to extend criminal liability beyond the leaders and policymakers and their privies to private citizens called upon to aid the war effort necessarily embodies the concept of mass punishment ..."(1) The Tribunal which conducted the High Command Trial found that no accused could be held guilty of crimes against peace unless he was in a position to influence state policy; no other type of " major war criminal" could apparently fall within the Tribunal's ruling: " As we have pointed out, war whether it be lawful or unlawful is the implementation of a national policy. If the policy under which it is initiated is criminal in its intent and purpose it is so because the individuals at the policy-making level had a criminal intent and purpose in determining the policy. If war is the means by which the criminal objective is to be attained then the waging of the war is but an implementation of the policy, and the criminality which attaches to the waging of an aggressive war should be confined to those who participate in it at the policy level.
" This does not mean that the Tribunal subscribes to the contention made in this trial that since Hitler was the Dictator of the Third Reich and that he was supreme in both the civil and military fields he alone must bear criminal responsibility for political and military policies. No matter how absolute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing,. planning, and waging such a war. Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal, and the excusable participation in the waging of an aggressive war by an individual engaged in it. Control Council Law No. 10 does not definitely draw such a line. It points out in Sec. 2 of Article II certain fact situations and established relations that are or may be sufficient to constitute guilt and sets forth certain categories of activity that do not establish immunity from criminality. Since there has been no other prosecution under Control Council Law No. 10 with defendants in the same category as those in this case, no such definite line has been judicially drawn. This Tribunal is not required to fix a general rule but only to determine the guilt or innocence of the present defendants ... " If and as long as a member of the armed forces does not participate in the preparation, planning, initiating or waging of aggressive war on
(1) See Vol. X, pp. 127-128. (Italics, apart from the second set thereof, are inserted.)
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a policy level, his war activities do not fall under the definition of Crimes against Peace. It is not a person's rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of Crimes against Peace.
" International Law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, International Law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy-makers. ...
"Those who commit the crime are those who participate at the policy-making level in planning, preparing, or in initiating war. After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policy-making level.
"The making of a national policy is essentially political, though it may require, and of necessity does require, if war is to be one element of that policy, a consideration of matters military as well as matters political. ...
" The acts of Commanders and Staff Officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation and waging of war or the initiation of invasion that International Law denounces as criminal. "(1)
The International Military Tribunal for the Far East may be thought to have followed the same line of thought. Two passages from its judgment should be quoted in this connection :
" [Muto, Akira] was a soldier and prior to holding the important post of Chief of the Military Affairs Bureau of the Ministry of War he held no appointment which involved the making ofhigh policy. Further, there is no evidence that in this earlier period he, alone or with others, tried to affect the making of high policy.
" When he became Chief of the Military Affairs Bureau he joined the conspiracy. Concurrently with this post he held a multiplicity of other posts from September, 1939 to April, 1942. During this period planning, preparing and waging wars of aggression on the part of the conspirators was at its height. He played the part of a principal in all these activities. "
[Of Sato, Kenryo:] "It was thus not until 1941 that Sato attained a position which by itself enabled him to influence the making of policy, and no evidence has been adduced that prior to that date he had indulged in plotting to influence the making of policy. The crucial question is whether by that date he had become aware that Japan's designs were criminal, for thereafter he furthered the development and execution of these designs so far as he was able.' '(2)
(l) Vol. XII, pp. 67, 69 and 70.
(2) Official transcript of the Judgment, pp. 1185 and 1190-1. (Italics inserted.)
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(vii) The specific crime of conspiracy to plan, prepare, initiate or wage a war of aggression-has been discussed above as part of the crime against peace. In particular, it should be noted that the dicta concerning knowledge and participation refer to conspiracy as well as the offence of planning, preparing, initiating and waging aggressive war. The Tribunal in the I.G. Farben Trial repeated that: "In order to be participants in a common plan or conspiracy, it is elementary that the accused must know of the plan or conspiracy." The Tribunal also stated:
" It is appropriate here to quote from the I.M.T. Judgment: , The Prosecution says, in effect, that any significant participation in the affairs of the Nazi Party or Government is evidence of a participation in a conspiracy that is in itself criminal. Conspiracy is not defined in the Charter. But in the opinion of the Tribunal the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party programme, such as are found in the 25 points of the Nazi Party, announced in 1920, or the political affirmations expressed in Mein Kampf in later years. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.' (Vol. I, p. 225, I.M.T. Judgment.) "(1) After quoting the same passage from the Judgment of the International Military Tribunal, the Tribunal acting in the Krupp Trial pointed out that: " Applying this rule, the I.M.T. held proof of actual knowledge of the concrete plans of the Nazi government to wage aggressive war to be essential to a conviction under the conspiracy Count. . . . Whether it be called the 'Nazi conspiracy', the' Krupp conspiracy', or by some other name, to be a crime under Control Council Law No. 10 or the London Charter, a conspiracy must meet at least three requirements: (1) There must be a concrete plan participated in by two or more persons; (2) the plan must not only have a criminal purpose but that purpose must be clearly outlined; and (3) the plan must not be too far removed from the time of decision and of action. "(2) A relevant paragraph from the Judgment of the Tokyo International Military Tribunal dealing with conspiracy to wage wars of aggression runs as follows: " The conspiracy existed for and its execution occupied a period of many years. Not all of the conspirators were parties to it at the beginning, and some of those who were parties to it had ceased to be active in its execution before the end. All of those who at any time were parties to the criminal conspiracy or who at any time with guilty knowledge played a part in its execution are guilty of the charge contained in Count I."(3)
(viii) In view of the language of Law No. 10, Article III (a)--" planning, preparation, initiation or waging ", the question presents itself whether the mere planning of a war of aggression would itself be criminal. It seems(4)
(1) Vol. X, p. 40, and also 31.
(2) Vol. X, pp. 110 and 113.
(3) Official Transcript, pp. 1142-3.
(4) See Vol. X, pp. 119, 121 and 125.
TYPES OF OFFENCES 149
that such an act would not be criminal unless it amounted to the crime of conspiracy discussed above, and that this would necessitate proof of action, in common with others, which involved conspiring to initiate or wage specific wars of aggression. It was on this ground, among others, that the Prosecution's theory of a separate "Krupp conspiracy" was dismissed.(l)
(ix) On the facts before them, the Military Tribunals held all accused charged of crimes against peace to be not guilty of such offences, on the grounds either of lack of knowledge or lack of ability to influence policy.(2)
(x) In the Trial of Takashi Sakai by a Chinese War Crimes Military Tribunal at Nanking, the accused was found guilty of, inter alia, a crime against peace in that he participated in a war of aggression,(3) and Artur Greiser was also found guilty of, inter alia, crimes against peace, in his trial before the Supreme National Tribunal of Poland.(4) Neither the Chinese nor the, Polish Courts, however, examined in their judgments the question of how closely an accused must be shown to have been to the planning and waging of aggressive war before he can be held responsible for crimes against peace. The Supreme National Tribunal made it clear, however, that Greiser had acted as an instrument of Hitler and not as one who had any part in the laying down of policy, and its judgment indicates why he was chosen to be such an instrument of Hitler's will.(5)
(xi) Some other important aspects of crimes against peace have been noted in these volumes. Each shows whether the fact that such crimes have been committed alters a certain legal situation :
(a) In the Milch Trial the Tribunal expressed certain conclusions regarding what amounted to a plea of superior orders.(6) It seems fair to summarize the decision of the Tribunal by saying that it rejected the plea on the grounds that the superior orders relied upon related to the waging of a war of aggression and involved the commission of " ruthless acts of persecution and terrorism ", and that the defendant must have known that the orders were in these ways illegal. This finding is interesting in that it represents the only instance reported in these volumes in which the illegal nature of aggressive war has been related to the principle that the plea of superior orders can only be effective if the orders were legal or if the accused was not aware, and could not reasonably be expected to be aware, of their illegality.(7)
(b) On the other hand, it was laid down in the Hostages Trial that "International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population fn occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of
(1) See Vol. X, pp. 107-109 and 11~120.
(2) See Vol. X, pp. 34-35, 36-37, 38-:'39, 40, 123-124, 127 and 129 and Vol. XII, p. 70.
(3) See Vol. XIV, pp. 4-7.
(4) See Vol. XIII, pp. 104-5 and 108-9.
(5) See Vol. XIII, pp. 104-5.
(6) See Vol. VII, pp. 40-2.
(7) See pp. 157-158.
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this subject. "(1) The Supreme National Tribunal of Poland, in the Greiser Trial declared that the occupation of Poland by the Reich was a "criminal invasion" and was not, therefore an occupation in the true sense of the word. The Tribunal did not, however, elaborate upon the legal consequences of this finding.(2)
(c) The Tribunal acting in the High Command Trial rejected a Prosecution argument that an accused could never plead military necessity in the course of a criminal war.(3)
(d) In the Trial of Willy Zuehlke, the Netherlands Special Court of Cassation dissented from the opinion of the Court of first instance that all acts committed by the Germans against the Netherlands civilian population were criminal because of the war of aggression launched and waged by Germany against Holland. It was agreed that the said war was an international crime and added that on account of this fact the Netherlands "would have been authorized to answer" the aggression "with reprisals, even with regard to the normal operation of the laws of war on land, sea and in the air." The Court stated, however, that: "it is going too far to regard as war crimes all acts committed against the Netherlands or Netherlanders by the German forces and other organs during the war, solely on the grounds of the illegal nature of the war launched by the then German Reich. "(4)
(1) See Vol. VIII, pp. 59-60. Compare Vol. VI, p. 52 and Vol. XIV, pp. 127-129, where similar opinions on the part of the Tribunal acting in the Rauter Trial, and of certain other Netherlands Courts are set out.
(2) See Vol. XIII, p. 110. Compare a similar statement in Vol. XIV, p. 46.
(3) See Vol. XII, pp. 124-125.
(4) Vol. XIV, pp. 143-145.
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http://jurist.law.pitt.edu/3314.htmUnited Nations General Assembly Resolution 3314 (XXIX). Definition of Aggression
Vote: Adopted without a vote
Ref: 3105(XXVIII), 2967(XXVII), 2781(XXVII), 2644(XXV), 2549(XXIV), 2420(XXIII), 2330(XXII), 1181(XII), 895(IX), 688(VII), 599(VI)
The General Assembly,
Having considered the report of the Special Committee on the Question of Defining Aggression, established pursuant to its resolution 2330(XXII) of 18 December 1967, covering the work of its seventh session held from 11 March to 12 April 1974, including the draft Definition of Aggression adopted by the Special Committee by consensus and recommended for adoption by the General Assembly,[FN2]
Deeply, convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and security,
1. Approves the Definition of Aggression, the text of which is annexed to the present resolution;
2. Expresses its appreciation to the Special Committee on the Question of Defining Aggression for its work which resulted in the elaboration of the Definition of Aggression;
3. Calls upon all States to refrain from all acts of aggression and other uses of force contrary to the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations;[FN3]
4. Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in determination, in accordance with the Charter, the existence of an act of aggression.
2319th plenary meeting
14 December 1974
Definition of Aggression
The General Assembly,
Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,
Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security,
Recalling also the duty of States under the Charter to settle their international disputes by peaceful means in order not to endanger international peace, security and justice,
Bearing in mind that nothing in this Definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations,
Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage,
Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial Integrity,
Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof,
Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,
Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim,
Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,
Adopts the following Definition of Aggression:[FN4]
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
Explanatory note: In this Definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations;
(b) Includes the concept of a "group of States" where appropriate.
The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.
Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its temtory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.
1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.
Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.
Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.
In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.
2. Official Records of the General Assembly, Twenty-ninth Session, Supplement No. 19 (A/9619 and Corr. 1).
3. Resolution 2625 (XXV), annex.
4. Explanatory notes on articles 3 and 5 are to be found in paragraph 20 of the Report of the Special Committee on the Question of Defining Aggression (Official Records of the General Assembly, Twenty-ninth Session, Supplement No. 19 (A/9619 and Corr. 1). Statements on the Definition are contained in paragraphs 9 and 10 of the report of the Sixth Committee (A/9890).
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Judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, vol. 22 (22nd August, 1946 to 1st October, 1946), pp. 463-64In interpreting the words of the [Kellogg-Briand] Pact, it must be remembered that International Law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of States, which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.
An early commentator, Emmerich de Vattel, published a series of essays in 1758 summarizing many of the customs and usages of international law in Europe. Here is what he had to say about "those who in defiance of treaties and assurances have attacked neighboring states without warning":
from Emmerich de Vattel, Law of Nations, Book 2, Chapter 4, pp. 154-56 (in the annotated translation of 1853), available online at https://archive.org/details/lawofnationsorpr00vattiala
from Emmerich de Vattel, Law of Nations, Book 2, Chapter 15, pp. 229-30CHAP. IV.
OF THE RIGHT TO SECURITY, AND THE EFFECTS OF THE SOVEREIGNTY AND INDEPENDENCE OF NATIONS.
IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, that is, to preserve herself from all injuries (§ 18) : and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation : for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.
It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against
(104) As to the independence of nations, see in general, Cours de Droit Public. Paris, A. D. 1830, tom. 2, 1st part, article ii. pp. 3 to 15.
154 OF THE RIGHT TO SECURITY, ETC.
whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.
When the evil is done, the same right to security authorizes the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose if necessary.
Finally, the offended party have a right to provide for the right of their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right, in all these measures, which they adopt with good reason : and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.
If, then, there is anywhere a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs, and to excite domestic disturbances in their
dominions, — it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it for ever after out of her power to injure them. Such would be the just fruits of the policy which Machiavel praises in Caesar Borgia. The conduct followed by Philip II. king of Spain, was calculated to unite all Europe against him ; and it was from just reasons that Henry the Great formed the design of humbling a power whose strength was formidable, and whose maxims were pernicious.
The three preceding propositions are so many principles that furnish the various foundations for a just war, as we shall see in the proper place.
from Emmerich de Vattel, Law of Nations, Book 3, Chapter 11CHAP. XV. [ 229 ]
OF THE FAITH OF TREATIES.
THOUGH we have sufficiently established (§§ 163 and 164) the indispensable necessity of keeping promises, and observing treaties, the subject is of such importance, that we cannot forbear considering it here in a more general view, as interesting, not only to contracting parties, but likewise to all nations, and to the universal society of mankind.
229 OF THE FAITH OF TREATIES.
Every thing which the public safety renders inviolable is sacred in society. Thus, the person of the sovereign is sacred, because the safety of the state requires that he should be in perfect security, and above the reach of violence : thus the people of Rome declared the persons of their tribunes sacred, -- considering it as essential to their own safety that their defenders should be screened from all violence, and even exempt from fear. Every thing, therefore, which the common safety of mankind and the peace and security of human society require to be held inviolable, is a thing that should be sacred among nations.
Who can doubt that treaties are in the number of those things that are to be held sacred by nations ? By treaties the most important affairs are determined ; by them the pretensions of sovereigns are regulated ; on them nations are to depend for the acknowledgment of their rights, and the security of their dearest interests. Between bodies politic, -- between sovereigns who acknowledge no superior on earth, -- treaties are the only means of adjusting their various pretensions, -- of establishing fixed rules of conduct, of ascertaining what they are entitled to expect, and what they have to depend on. But treaties are no better than empty words, if nations do not consider them as respectable engagements, -- as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth.
The faith of treaties, -- that firm and sincere resolution, -- that invariable constancy in fulfilling our engagements, -- of which we make profession in a treaty, is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures : and, if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith.
He who violates his treaties, violates at the same time the law of nations ; for, he disregards the faith of treaties, -- that faith which the law of nations declares sacred ; and, so far as depends on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, he does an injury to all nations, and inflicts a wound on the great society of mankind. "On the observance and execution of treaties," said a respectable
sovereign, "depends all the security which princes and states have with respect to each other : and no dependence could henceforward be placed in future conventions if the existing ones were not to be observed."*
As all nations are interested in maintaining the faith of treaties, and causing it to be everywhere considered as sacred and inviolable, so likewise they are justifiable in forming a confederacy for the purpose of repressing him who testifies a
* Resolution of the States-General, of the 15th of March, 1726, in answer to the Memorial of the Marquis de St. Philip, Ambassador of Spain.
OF THE FAITH OF TREATIES. 230
disregard for it, -- who openly sports with it, -- who violates and tramples it under foot. Such a man is a public enemy who saps the foundations of the peace and common safety of nations. But we should be careful not to extend this maxim to the prejudice of that liberty and independence to which every nation has a claim. When a sovereign breaks his treaties, or refuses to fulfil them, this does not immediately imply that he considers them as empty names, and that he disregards the faith of treaties : he may have good reasons for thinking himself liberated from his engagements ; and other sovereigns have not a right to judge him. It is the sovereign who violates his engagements on pretences that are evidently frivolous, or who does not even think it worth his while to allege any pretence whatever, to give a colourable gloss to his conduct, and cast a veil over his want of faith, it is such a sovereign who deserves to be treated as an enemy to the human race.
OF THE SOVEREIGN WHO WAGES AN UNJUST WAR.
HE who is engaged in war derives all his right from the justice of his cause. The unjust adversary who attacks or threatens him, — who withholds what belongs to him, — in a word, who does him an injury, — lays him under the necessity ever, of defending himself, or of doing himself justice, by force of arms ; he authorizes him in all the acts of hostility necessary for obtaining complete satisfaction. Whoever therefore takes up arms without a lawful cause, can absolutely have no right whatever : every act of hostility that he commits is an act of injustice.
He is chargeable with all the evils, all the horrors of the war: all the effusion of blood, the desolation of families, the rapine, the acts of violence, the ravages, the conflagrations, are his works and his crimes. He is guilty of a crime against the enemy, whom he attacks, oppresses, and massacres without cause: he is guilty of a crime against his people, whom he forces into acts of injustice, and exposes to danger, without reason or necessity, —against those of his subjects who are ruined or distressed by the war,— who lose their lives, their property, or their health, in consequence of it: finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example. Shocking catalogue of miseries and crimes ! dreadful account to be given to the King of kings, to the common Father of men ! May this slight sketch strike the eyes of the rulers of nations, — of princes and their ministers ! Why may not we expect some benefit from it ? Are we to suppose that the great are wholly lost to all sentiments of honour, of humanity, of duty, and of religion ? And, should our weak voice, throughout the whole succession of ages, prevent even one single war, how gloriously would our studies and our labour be rewarded !
He who does an injury is bound to repair the damage, or to make adequate satisfaction if the evil be irreparable, and even to submit to punishment, if the punishment be necessary, either as an example, or for the safety of the party offended, and for that of human society. In this predicament stands a prince who is the author of an unjust war. He is under an obligation to restore whatever he has taken, — to send back the prisoners at his own expense, — to make compensation to the enemy for the calamities and losses he has brought on him, — to reinstate ruined families, — to repair, if it were possible, the loss of a father, a son, a husband.
379 OF THE SOVEREIGN WAGING UNJUST WAR.
But how can he repair so many evils ? Many are in their own nature irreparable. And as to those which may he compensated by an equivalent, where shall the unjust warrior find means to furnish an indemnification for all his acts of violence ? The prince's private property will not be sufficient to answer the demands. Shall he give away that of his subjects ? It does not belong to him. Shall he sacrifice the national lands, a part of the state ? But the state is not his patrimony (Book I. § 91) : he cannot dispose of it at will. And, although the nation be, to a certain degree, responsible for the acts of her ruler, yet (exclusive of the injustice of punishing her directly for faults of which she is not guilty), if she is responsible for her sovereign's acts, that responsibility only regards other nations, who look to her for redress (Book I. § 40, Book II. §§ 81, 82) : but the sovereign cannot throw upon her the punishment due to his unjust deeds, nor despoil her in order to make reparation for them. And, were it even in his power, would this wash away his guilt and leave him a clear conscience ? Though acquitted in the eyes of the enemy, would he be so in the eyes of his people ? It is a strange kind of justice which prompts a man to make reparation for his own misdeeds at the expense of a third person : this is no more than changing the object of his injustice. Weigh all these things, ye rulers of nations ! and, when clearly convinced that an unjust war draws you into a multitude of iniquities which all your power cannot repair, perhaps you will be less hasty to engage in it.
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Note that countries weren't tried at Nuremberg but individuals. In order to try someone you need arrest them. Arresting Stalin and his top officials post war wasn't going to happen.Panzermahn wrote:The interesting question is that why:
1. Soviet Union was never charged for waging aggressive war (against Poland in 1939, against Finland in 1940, against Romania in 1941, against Iran in 1941, against the Baltic States in 1940)
In regards to the UK invasion of Iraq the latter tried to evade it's treaty obligations there was also the little matter of the regime that did so haveing recently come to power in a coup. This I believe was sufficient to justify the UK's actions. Iran is a more difficult case to justify but wasn't really that much out of the norm for the time and place. Nor did Britain hold on to the territory.2. UK was never charged for waging aggressive war (against Iraq in 1940, against Iran in 1941)
Again countries aren't charged individuals are. Furthermore international courts typically don't take up such cases if national courts take care of them. Ill Duce of course recieved extra judicial punnishment. Overthrowing his government pretty much gave a pass to those in power. Were there any significant memebers of his administration who didn't change sides? If so was action taken against them by Italy?3. Italy was never charged for waging aggresive war (against Albania and Greece in 1940)
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In 1941-46 there was no functioning international court.
The United Nations set up an International Court of Justice after the war, but it too required the consent of the parties to hear its cases. Beginning about 1994, the UN Security Council began to set up war crimes tribunals with limited jurisdiction to try cases involving former Yugoslavia, Sierra Leone, Cambodia, etc., but these had no jurisdiction to decide crimes of aggression. In 1998 a number of nations finally agreed on having an international war crimes court -- the International Criminal Tribunal -- but that court expressly excluded jurisdiction over the crime of aggression (variously called crimes against peace and aggressive war) until such time as the nations could agree on a definition of the crime. This was accomplished by a committee of scholars about 2010, but these rules must be ratified and will not go into effect until 2017, if then.
The alternative was a war crimes trial by the aggrieved party, which was the international custom before 1946. Recently, this has been contemptuously dismissed as "victors' justice," but that's all there was until 1998. For the charge of aggression, aggressive war or crimes against peace, that's still all there is, until 2017 at the earliest.