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DR. JAHRREISS, Continued:

(2) Is it possible, or indeed permissible, that neutrality
should still exist in such a war?

(3) Can the result of the war, if the aggressor is
victorious, be recognized by law, especially if it is put
into the form of a treaty, or must not the community of
States deprive the aggressor of the spoils of his victory by
a policy of non-recognition? Should there be, or perhaps
even must there be, common coercive action by the States
against the aggressor?

It must be noted: Not even the theory of law has drawn all
the conclusions. The practice of the States, after a few
tentative beginnings in isolated points, did not finally
carry things to a conclusion in a single case.

With regard to the first point:

The validity of the international laws of war during a war,
whatever the latter's origin, has not as yet been seriously
disputed by any State. Any doubts that arose were cleared up
in a way which allowed of no misunderstandings. I draw
attention to Resolution No. 3 of the League of Nations
Assembly of 4th October, 1921, and to the report of the
Committee of Eleven of the League of Nations for the
adaptation of the Covenant to the Pact of Paris.

The aggressor State has the same rights and duties in a war
as the attacked nation, i.e., those laid down by the
traditional international laws of war. The French Chief
Prosecutor appears to wish to deviate from this line, but
not to wish to draw

                                                   [Page 89]

the full conclusions. But I do not see any tendency to
deviate from the present path even in the most recent
practice of States.

With regard to the second point:

Attempts have been made to deny the obligations imposed by
neutrality, and in fact finally to give the States not
involved the right of non-neutrality and even the right to
wage war against the aggressor. Some statesmen and scholars
have devoted themselves just as passionately to undermining
and even to denying the right to neutrality, as other
statesmen and scholars have spoken in favour of its
undiminished continuance. The clearer it became that the
whole system of collective security did not function in the
particular cases which were of decisive importance; namely,
in those cases where steps would have had to be taken
against a great Power, the more the idea of neutrality
asserted itself with new strength. The complete discrediting
of the League of Nations and of the system of the Briand-
Kellogg Pact in the Abyssinian conflict put classic
International Law back in its old position again here too.
In 1935 Switzerland declared her unrestricted neutrality;
Belgium, Denmark, Finland, Luxemburg, Norway, Holland and
Sweden followed with their declaration at Copenhagen on 24th
July, 1938. The failure of the League of Nations was the
reason: and this fact was also mentioned openly.

With reference to the third point:

The following is the idea of the policy of non-recognition:
The States not involved in a conflict should conduct
themselves as members of the community of States, i.e., they
should protect the constitution of the community of States
by. refusing to recognize the fruits of the victor's
victory, should he have been the aggressor. The situation he
has created by force should not even seem to become a legal
situation. He will thus be deprived of what he has gained,
and one of the main inducements to wage war will thereby be
eliminated. Such a policy of non-recognition is undoubtedly
not enough to guarantee a system of collective security by
itself, but it is an indispensable part of such an order.
There can be no dispute about this. The Brazilian
representative Braga gained merit by proposing, at the
Second League Assembly in 1921, such a policy to be followed
by the members of the League of Nations under the name of a
"universal juridical blockade" (blocus juridique universel).
The Finnish representative Procope interpreted Article 10 of
the Covenant in this sense in 1930 before the League
Assembly. The Notes of the American Secretary of State
Stimson of 7th January, 1932, to China and Japan further
echoed this idea. Their contents are commonly called the
Stimson Doctrine. The League of Nations accepted the
Doctrine as a resolution of the Assembly dated 11th March,
1932. The idea was later the central point of the Pact of
Rio de Janeiro of 10th October, 1933, and of the Budapest
articles of 10th September, 1934.

The conflict between Italy and Abyssinia in 1935/36 became
the great test-case, which decided the fate of the system of
collective security:

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

It is necessary to know all this; and also to know that the
British Government on 20th February, 1935, politely but
firmly refused, through the Lord Chancellor, Viscount
Sankey, to accept the logical deductions, and paid tribute
to the old truth: "It is not logic but history that creates
law." On a later occasion, when Secretary of State Cordell
Hull had explained the principles of American policy to all
the Powers on 16th July, 1937, the Portuguese Government
issued a warning against "the abstract and generalising
tendency of jurists"; it warned against

                                                   [Page 90]

attempts to "find a single formula" and against not studying
historic facts sufficiently.

We therefore come to the conclusion that:

In the practice of the relations between States there
existed - at least during several years prior to 1939 - no
effective general ruling on International Law regarding
prohibited war.

No such general ruling existed so far as the leading
statesmen and the peoples were aware.

This is, in fact, the ultimate reason why the path of
special rulings on International Law was followed to an ever-
increasing extent: two States would then conclude treaties,
in full knowledge of their particular historical conditions
and with a view to securing peace between themselves.

Now, during the Second World War the United States
Government decided to help Great Britain. Great Britain was
able to acquire destroyers and it later received the
assistance of Lend-Lease. The American public recognized
this act of assistance as being essentially no longer
neutral; it was regretted by some, welcomed by others, now
attacked and now defended. The supporters of the measures
before the American public, above all Stimson and Cordell
Hull, quite rightly did not attempt to justify them as
consistent with neutrality. On the contrary, they took up
their stand on the Pact of Paris as interpreted by the
Budapest articles. As we saw, this would, according to
Viscount Sankey's indisputably correct conception of what
are the sources of International Law, have been wrong even
in 1934.

After the developments which had taken place since Italy's
victory over Abyssinia, such discussions were entirely
outside the field of legal realities. Their purpose was to
resolve internal dissensions in America and they could
therefore be of no direct importance for International Law.
Even had these discussions taken place between States, they
could at most have helped to create law. But is it actually
necessary to assert or prove that such discussions could not
have created, during the great struggle, a law to attain
which so many efforts - efforts which proved to be Utopian -
were made in vain in peace time? In this Court many ways of
legal thinking meet - ways which are in part very different.
This leads to certain insoluble differences of opinion. But
no way of legal thinking anywhere on earth, from the most
ancient times to the most recent, could or can make possible
arguments which contradict the very nature of law as a
social order of human life arising out of history. If
several governments accept articles, about the contents of
which they are of different opinions, and if these articles
then find no real application in the practice of these
governments - which is not to be wondered at considering the
circumstances under which they arose - and if theorists then
interpret these articles and the practice of governments
rejects these interpretations either expressly or tacitly,
one must then resign oneself to this, in so far as one wants
to keep to the task of legal evaluation, no matter how much
the goal may be worth striving for politically or morally.

But let us forget for a moment the bitter realities of those
years following the Italo-Abyssinian conflict. Let us
suppose for a moment that a general and unambiguous pact had
existed, accepted and applied by the contracting parties in
fundamental and factual agreement. Would the liability of
individuals to punishment for the breach of such a treaty be
laid down in International Law?


Not even the liability of the State to punishment, let alone
that of individuals.

The breach of such a treaty would. not differ under the
existing International Law from any other violation of
International Law. The State which violates a treaty would
commit an offence against International Law, but not a
punishable act. Attempts were occasionally made to deduce
from words "delitt" (offence), "crime international"
(international crime) and "condemnation de la guerre"
(condemnation of war) the existence of an International
Criminal Law dealing with our case. Such conclusions are
based on wrong premises. Every lawyer knows

                                                   [Page 91]

that any unlawful behaviour can be called a "delitt"
(delictum), not only punishable behaviour. And the word
"crime" is used even entirely outside the legal sphere. And
this is precisely the case here. When, in 1927, on Poland's
application, the League of Nations Assembly declared war to
be an international crime, the Polish representative
expressly stated that the declaration was not actually a
legal instrument, but an act of moral and educational
importance. The attempt to organize a universal world system
of collective security on a legal basis failed. But this
does not mean that the numerous bilateral treaties, whose
purpose it is to preclude wars of aggression between the two
partners, became inapplicable. One will actually have to
examine whether the parties to the treaty may have made the
existence or continued existence of general machinery of
collective security the prerequisite for the validity of the

The same applies to unilateral assurances of non-aggression
as to the bilateral treaties.

Many bilateral non-aggression pacts were concluded, and
several unilateral assurances were given. In some cases the
political and in some a legal concept of aggression, and
even a number of such legal concepts side by side, determine
right and wrong. The German Reich also concluded a series of
such pacts. They have been drawn upon by the prosecution as
an argument. One must examine whether all these treaties
were still in force at the critical moment. This examination
must be left to the individual defence counsel. But if the
German Reich did attack in an individual case in breach of a
non-aggression pact which was still valid, it committed an
offence in International Law and is responsible therefore
according to the rules of International Law regarding
offences in International Law.

But only the Reich. Not the individual, even if he were the
head of the State. This is beyond all doubt according to the
existing International Law. It is unnecessary even to speak
about this. For up to the most recent times not even the
possibility has been mentioned, either in the Manchurian, or
in the Italo-Abyssinian or in the Russo-Finnish conflict, of
instituting criminal proceedings against those people who
were responsible, on the Japanese, Italian or Russian side,
for planning, preparing, launching and waging war, or who
simply participated in these acts in any way. And it was
certainly not because matters had, paradoxically enough, not
been thought out to the end, that they were not prosecuted.
But they were not prosecuted because this cannot happen as
long as the sovereignty of States is the organisational
basic principle of the whole inter-State order.

THE PRESIDENT: I think this would be a convenient time to
break off.

(A recess was taken.)

DR. JAHRREISS: Should things reach the point where,
according to general world law, the men who participated in
the planning, preparation, launching and waging war
forbidden by International Law could be brought before an
international criminal court, the decisions regarding the
State's ultimate problems of existence would be subject to
super-State control. One could, of course, still call such
States sovereign, but they would no longer be sovereign. In
his paper of late 1943 which I have already mentioned
several times, and which he wrote after the Moscow
conference of 1st November, 1943, Kelsen again and again
repeats the phrase that in questions of breach of the peace,
the liability of individuals to punishment does not exist
according to the general International Law at present valid
and cannot exist on account of sovereignty.

For Europeans, at any rate, the State has, for the last four
centuries, above all since the ever more rapid advances made
by the idea of the national State, gained the dignity of a

Of course, acts of State are acts of men. But they are in
fact acts of State, i.e., acts of the State carried out by
its organs and not the private acts of Mr. Smith or Mr.

                                                   [Page 92]

What the Indictment is doing when, in the name of the world
community as a legal entity, it wants to have individuals
legally sentenced for their decisions regarding war and
peace, is, when one looks at it from the angle of European
history, looking upon the State as one would look upon a
private individual, indeed, more than that, what it is doing
is destroying the State mentally. Such a charge, the moral
justification of which is not my concern - such a charge is,
as we have already shown, incompatible with the very nature
of sovereignty and with the feeling of the majority of
Europeans. It seems, indeed, as though not only Europeans
feel that way. In 1919, in Paris, it was the American
delegates at the War Guilt Investigation Committee who
opposed most strongly any legal sentence on the Kaiser for
the very reason of the incompatibility of such a procedure
with the sovereignty of the State. And it is impossible to
recognize the idea of sovereignty more strongly than Kellogg
did eight years later during the negotiations in connection
with the Pact of Paris, when he declared, as I have already
said, "Every State is the sole judge of its behaviour with
regard to questions affecting its existence."

There are epochs which idolise the sovereignty of the State;
others which anathematise it. Some idolise and anathematise
it simultaneously. Our epoch does so. Perhaps we are living
in a period of transition. Perhaps a transformation of
values is taking place. Perhaps world community will become
the supreme political treasure for the peoples, in place of
their own particular States, which have at any rate held
this position hitherto. Perhaps we shall reach a point where
the unleashing of a war deserving moral and also legal
condemnation will, for the general legal conscience,
constitute high treason against the world community. Perhaps
we shall reach a point where it will be permissible, or even
compulsory, to betray a government which starts such a war
to foreign countries without a legal justification for
calling this high treason towards one's country. At the
moment in no nation is there a majority - let alone
unanimity - in support of this opinion.

The punishment of individuals by the legal community of
nations for breach of the peace between States can thus be
ordered only if the fundamental principles of the
International Law currently valid and the scale of values
which has for centuries been firmly rooted in the feeling of
the European nations are abandoned - that scale of values
according to which the State, one's own sovereign State,
forms the indispensable foundation for free personality.

The Indictment mentally wipes out the German State for the
time when it stood upright in its full strength and acted
through its organs. It must do so if it desires to prosecute
individual persons for a breach of the peace between States.
It must turn the defendants into private individuals. But it
then combines them - so to speak on the private plane - with
the help of the criminal law concept of a conspiracy which
is taken from Anglo-Saxon law and is strange to us, gives
them the many millions strong substructure of organizations
and groups which are designated as criminal, and thereby
again places a super-person before us.

In as far as the Charter supports all this by its
regulations, it lays down fundamentally new laws, if - with
the British Chief Prosecutor - one measures them against
existing International Law. That which, originating in
Europe, has finally spread to the whole world and is called
International Law, is, in essence, a law of the co-
ordination of sovereign States. If one measures the
regulations of the Charter against this law, one must say:
The regulations of the Charter negate the basis of this law,
they anticipate the law of a world State.

They are revolutionary. Perhaps in the hopes and longings of
the nations the future is theirs.

The lawyer, and only as such may I speak here, has only to
establish that they are new - revolutionarily new. The laws
regarding war and peace between States had no place for them
- could not have any place for them. Thus they are criminal
laws with retroactive force.

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