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The Criminality of Aggressive War

Published online by Cambridge University Press:  01 August 2014

Leo Gross
Leo Gross*
Affiliation:
Fletcher School of Law and Diplomacy
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Extract

The judgment delivered on September 30, 1946, by the International Military Tribunal brought to a close the first prosecution instituted under the London Agreement of August 8, 1945, entered into by the governments of the United States, France, Great Britain, and the U.S.S.R. But the publication of the judgment stirred a new wave of sharp criticism of the moral and legal foundations of the Nuremberg Trial. The charge that the Tribunal itself, as well as the substantive law which it applied, was ex post facto was renewed with vigor. So was the charge that no real justice was done at Nuremberg, because vanquished war criminals only were brought before the Tribunal and no attempt was made to try alleged war criminals of the victorious nations.

Type
Research Article
Information
American Political Science Review , Volume 41 , Issue 2 , April 1947 , pp. 205 - 225
Copyright
Copyright © American Political Science Association 1947

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References

1 Glueck, Sheldon, The Nuremberg Trial and Aggressive War (1946), pp. 98–99, 119–121Google Scholar.

2 Hyde, Charles Cheney, “Punishment of War Criminals,” Proceedings of the American Society of International Law, Vol. 37 (1943), p. 43 f.Google Scholar; Glueck, Sheldon, War Criminals; Their Prosecution and Punishment (1944), p. 116Google Scholar.

3 Cf. “Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30th September and 1st October, 1946,” in British Parliamentary Papers, Misc. No. 12 (1946), Cmd. 6964, p. 38Google Scholar. Hereinafter referred to as the Judgment.

4 Glueck, Thus, The Nuremberg Trial and Aggressive War, p. 91Google Scholar. Sir Hartley Shawcross, Chief Prosecutor for Great Britain and Northern Ireland, argued before the Tribunal: “There is thus no substantial retroactivity in the provisions of the Charter. It merely fixes the responsibility for a crime already clearly established as such by positive law, upon its actual perpetrators.” “The Trial of German Major War Criminals,” Proceedings before the International Military Tribunal, Part 2, p. 57 (Published under the Authority of H.M. Attorney-General by His Majesty's Stationery Office, 1946)Google Scholar, hereinafter referred to as Proceedings. But even procedural retroactivity is denied by the Tribunal. Arguing de minore ad majorem, and relying upon the precedent of the Hague Convention of 1907 respecting the Laws and Customs of War on Land, the Tribunal declared that although the Kellogg-Briand Pact “does not expressly enact that such wars [of aggression] are crimes, or set up courts to try those who make such wars,” it was nevertheless possible to try and punish individuals for violations of the Pact just like individuals have in the past been tried and punished by military tribunals for violations of rules of land warfare. Judgment, p. 40. The validity of this analogy is not immediately clear.

5 The relevant text of Article 6 of the Charter is as follows: “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.” Trial of War Criminals. Department of State, Publication 2420, 1945, p. 16Google Scholar.

5a This paper is not concerned with the question whether it was just to try and punish Nazi war criminals or whether the maxim nullum crimen sine lege, nulla poena sine lege has a moral or legal, a subjective or objective, significance. These questions are discussed briefly by the Tribunal, Judgment, p. 39, and more extensively by Glueck, op. cit., pp. 71 ff., and by Mr.Stimson, Henry L. in “The Nuremberg Trial: Landmark in Law,” Foreign Affairs, Vol. 25 (1947), p. 183CrossRefGoogle Scholar. Also the extent to which states, and even their nationals, may be punished for engaging in an illegal war falls outside the compass of the present study. But the Tribunal declared that “the undoubted right” of the countries to which the German Reich unconditionally surrendered “to legislate for the occupied territories has been recognized by the civilized world.” Judgment, p. 38. If international law recognizes the right of conquest, it may be arguable that it is within the power of the victor to impose upon the enemy measures short of total extinction, provided that in so doing the victor does not infringe an established principle of international law. This paper is mainly concerned with the reasoning by which the U. S. Chief of Counsel, Mr. Robert H. Jackson, and Professor Glueck have supported the law set forth in the Charter of the Tribunal. Incidentally, it suggests an alternative approach.

6 “Report of Robert H. Jackson to the President, released by the White House on June 7, 1945,” Trial of War Criminals, p. 9, and Proceedings, Part I, p. 81. The Tribunal also stressed the dynamic character of international law and, adopting the thesis urged upon it by the prosecution, declared “that resort to a war of aggression is not merely illegal, but is criminal.” Judgment, p. 41. However, whereas Mr. Justice Jackson claims that the principle referred to above had been in existence at the time the Nazis came to power, the Tribunal held that the Charter “is the expression of international law existing at the time of its creation,” that is, in 1945. Judgment, p. 38. This is a significant discrepancy. As the violation of the Kellogg-Briand Pact by Germany occurred in 1930, the existence of the alleged principle should have been traced back to that period.

7 Trial of War Criminals, p. 10. See also Proceedings, Part I, p. 81.

8 Glueck, op. cit., pp. 25, 26. See also ibid., pp. 34, 45.

9 Ibid., p. 25.

10 Ibid., pp. 28–32. The Tribunal supports its thesis by the Pact of Paris, the draft Treaty of Mutual Assistance, the Geneva Protocol, the Assembly Resolution of 1927, the Havana Resolution of 1928, the Treaty of Versailles, and the case Ex parte Quirin decided by the United States Supreme Court in 1942. Judgment, p. 40 f.

11 Ibid., pp. 32–34.

12 Ibid., pp. 27, 28. The prosecution in the Japanese War Crimes Trial adopted a similar trend of thought. Cf. “Trial of Japanese War Criminals,” Department of State, Publication 2613 (1946), p. 14 fGoogle Scholar.

13 See note of the French Ambassador to the Secretary of State, Mar. 30, 1928. Treaty for the Renunciation of War. Department of State Publication No. 468, 1933, p. 27Google Scholar; note of the British Secretary of State for Foreign Affairs to the American Ambassador, May 19, 1928, ibid., p. 44; address by M. Aristide Briand, French Minister of Foreign Affairs, delivered at Paris, Aug. 27, 1928, preceding the signing of the Treaty, ibid., p. 314. See also Shotwell, James T., War as an Instrument of National Policy (1929), pp. 220–226Google Scholar.

14 Cf. Wright, Quincy, “The Meaning of the Pact of Paris,” American Journal of International Law, Vol. 27 (1933), pp. 39–61CrossRefGoogle Scholar; Lauterpacht, H., “The Pact of Paris and the Budapest Articles of Interpretation,” Transactions of the Grotius Society, Vol. 20 (1935), pp. 178–202Google Scholar, particularly at p. 181 f. and p. 186; International Law Association, 38th Report (1934), p. 66Google Scholar.

15 Glueck, op. cit., p. 19.

16 Thus Glueck, ibid., p. 21.

17 League of Nations, Official Journal, Sp. Supp. No. 13 (1923), p. 154Google Scholar.

18 Ibid., p. 403.

19 “Reduction of Armaments. Treaty of Mutual Assistance. Replies from Governments.” Doc. A. 35. 1924. IX. The Finnish government, in its reply of Jan. 18, 1924, observed that “when the Committee describes as an international crime a war which violates the provisions of the Covenant, this is tautology as far as the members of the League are concerned, while the states non-members of the League would probably not recognize an act forbidden by the Covenant as an international crime unless it appears as such in the light of the general principles of international law.” Ibid., p. 5.

20 But see Glueck, op. cit., p. 28 f.

21 Assembly Resolution, Oct. 2, 1924, Official Journal, Sp. Supp. No. 23 (1924), p. 225Google Scholar. Mr. Justice Jackson's statement that the Geneva Protocol was “signed by the representatives of forty-eight Governments” (Trial of War Criminals, p. 10, and Proceedings, Part I, p. 80, is somewhat exaggerated. The Protocol was signed on behalf of nineteen Governments. Cf. “Signatures, Ratifications, and Accessions in respect of Agreements and Conventions Concluded under the Auspioes of the League of Nations.” Twenty-first List. Official Journal, Sp. Supp. No. 193 (1944), p. 155Google Scholar.

22 The term “international crime” in this context presumably refers to aggressive war. Cf. Noel-Baker, P. J., The Geneva Protocol (1925), p. 29Google Scholar.

23 Glueck, op. cit., p. 30.

24 Cf. “General Report submitted to the Assembly on behalf of the First and Third Committees by M. Politis, Rapporteur for the First Committee, and M. BeneŠ, Rapporteur for the Third Committee.” Doc. A. 135 (1). 1924. IX. Official Journal, Sp. Supp. No. 23, 1924, pp. 479 ff., at p. 482 fGoogle Scholar.

25 But cf. Glueck, op. cit., p. 30.

26 Cf. “General Report,” p. 495.

27 Ibid., p. 497.

28 “League of Nations. Fifth Assembly. Report of the British Delegates relating to the Protocol for the Peaceful Settlement of International Disputes.” British Parliamentary Papers, Misc. No. 21 (1924), Cmd. 2289, p. 8Google Scholar. Cf. Miller, D. H., The Geneva Protocol (1925), pp. 11, 23 f., 106–113Google Scholar. Mr. Miller examined the Gene Protocol “primarily from the legal viewpoint” (ibid., p. 3), and the fact that he virtually disregarded the condemnation of war as an international crime (ibid., p. 54) may perhaps be interpreted as implying that, from a legal standpoint at any rate, no criminal-law principles have found their way into the Protocol.

29 Noel-Baker, op. cit., p. 114.

30 Glueck, op. cit., p. 29, note 14. It may be observed in passing that the Protocol was signed on behalf of no more than nineteen governments, which did not represent the vast majority of civilized states and peoples. It was signed on behalf of Albania, Belgium, Brazil, Bulgaria, Chile, Czechoslovakia, Estonia, Finland, France, Greece, Haiti, Latvia, Liberia, Paraguay, Poland, Portugal, the Kingdom of the Serbs, Croats and Slovenes, Spain, and Uruguay. Cf. “Signatures, Ratifications …” p. 155. The Tribunal repeats almost textually Professor Glueck's estimate of the Geneva Protocol. Judgment, p. 40. It thus repeats his error regarding “the vast majority of civilized states and peoples.”

31 League of Nations, Official Journal, Sp. Supp. No. 54, 1927, p. 155Google Scholar.

32 Glueck, op. cit., p. 31.

33 League of Nations, Official Journal, Sp. Supp. No. 54, 1927, p. 155Google Scholar.

34 Cf. ibid., p. 83, where M. Sokal explains the motives behind the draft resolution which he submitted to the Assembly. M. Sokal's proposal was discussed in the Third Committee. Cf. Minutes of the Third Committee, Official Journal, Sp. Supp. No. 57, particularly pp. 45–47Google Scholar. The statement of the delegate of the Netherlands, M. Loudon, is of special significance because it draws a clear line between the “great moral value” of the Polish proposal and “the outlawry of war in a more legal form.” Ibid., p. 46.

34a Cf. Schindler, Dietrich, “Die Verbindlichkeit der Beschlüsse des Völkerbundes” (1927), passimGoogle Scholar.

35 Scott, James Brown (ed.), International Conferences of American States, 1889–1928 (1931), p. 437Google Scholar.

36 Ibid., p. 441 f.

37 Cf. “Report of the Delegates of the U.S.A. to the Sixth International Conference of American States.” U. S. Govt. Printing Office (1928), p. 26Google Scholar.

38 Scott, op. cit., p. 455.

39 “Proceedings of the International Conference of American States on Conciliaion and Arbitration,” Washington, Dec. 10, 1928–Jan. 5,1929. U. S. Govt. Printing Office, (1929), p. 614Google Scholar.

40 U. S. Treaty Series, No. 906, 1936.

41 “The Anti-War Treaty proposed by Argentina and the Brazilian Reply,” Bulletin of the Pan American Union, Apr., 1933, p. 320 ff., at p. 327Google Scholar.

42 Ibid., p. 341 f.

43 Glueck, op. cit., p. 34. Similarly SirShawcross, Hartley: “Thus there is no doubt that by the time the National Socialist State of Germany had embarked upon the preparation of the war of aggression against the civilized world, and by the time it had accomplished that design, aggressive war had become, in virtue of the Pact of Paris, and the treaties and declarations to which I have referred, illegal and a crime beyond all uncertainty and doubt. And it is on that proposition, and fundamentally on that Universal Treaty, the Briand-Kellogg Pact, that Count 2 of this Indictment is principally based.” Proceedings, Part II, p. 54Google Scholar.

44 Trial of War Criminals, p. 10. See also Proceedings, Part I, p. 80 f.

45 Remarks made by Dr. Cohn, the delegate of Denmark, in the First Committee of the Tenth Assembly, on Sept. 17, 1929, in connection with the proposed amendment of the Covenant in order to bring it into harmony with the Pact, Kellogg-Briand. Official Journal, Sp. Supp. No. 76 (1929), p. 29Google Scholar.

46 “Report of the First Committee [Rapporteur M. Henri Rollin] to the Assembly.” Doc. A. 86. 1931. V. Official Journal, Sp. Supp. No. 93 (1931), p. 220Google Scholar.

47 But see Glueck, op. cit., p. 36.

48 Trial of War Criminals, Appendix C., p. 82–89.

49 Permanent Court of International Justice, Publications, Series A, No. 10 (1927), p. 28Google Scholar.

50 Judge Manley O. Hudson, commenting on this clause, said: “The elements necessary are the concordant and recurring action of numerous states in the domain of international relations, the conception in each case that such action was enjoined by law, and the failure of other states to challenge that conception at the time. The appreciation of these elements is not a simple matter, and it is a task for persons trained in law.” The Permanent Court of International Justice, 1920–1942 (1943) p. 609Google Scholar.

51 Westlake, John, International Law, Vol. I (1910), p. 14Google Scholar; Hyde, Charles Cheney, International Law (second ed.), Vol. I (1945), p. 11Google Scholar.

52 Hackworth, Green H., Digest of International Law, Vol. I (1941), p. 1 ff.Google Scholar; Hyde, op. cit., p. 4 ff.

52a The Tribunal, however, finds that the acts in question “may be regarded as strong evidence of the intention to brand aggressive war as an international crime.” Judgment, p. 40.

53 The value of the judgment of the International Military Tribunal, unsupported as it is by authority, as a precedent in international law is problematic. True it is that certain dicta of the Tribunal may be regarded as endorsing the view set forth by Messrs. Jackson and Glueck. It is, however, important to bear in mind that the Tribunal repeatedly declared that it was bound by the law established by the Four Powers in the Charter. Thus, with reference to Article 6 of the Charter, it stated: “These provisions are binding upon the Tribunal as the law to be applied to the case.” And in a different context it said categorically that “the law of the Charter is decisive, and binding upon the Tribunal.” Of significance is also the following: “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 Defence and will express its views on the matter.” Judgment, pp. 3, 38.

54 Foreword to ProfessorGlueck's, book, The Nuremberg Trial and Aggressive War, p. xGoogle Scholar.

55 Preamble to the Covenant of the League of Nations.

56 Hyde, op. cit., p. 8 f. See also Lauterpacht, H., The Development of International Law by the Permanent Court of International Justice (1934), p. 103Google Scholar; Friedman, W., “International Law and the Present War,” Modern Law Review, Vol. 3 (1941), p. 179 f.Google Scholar

57 Journal of the United Nations, No. 13: Supp. A-A/P. V/34, p. 8.

58 Journal of the United Nations, No. 15: Supp. A-A/P. V/35, p. 24.

59 The General Assembly of the United Nations, on Dec. 11, 1946, adopted unanimously a Resolution proposed by the United States Delegation in which it “affirms the principles of international law recognized by the Charter of the Nürnberg (sic) Tribunal and the judgment of the Tribunal” and “directs the Committee on the codification of international law … to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg (sic) Tribunal and in the judgment of the Tribunal.” Journal of the United Nations, No. 58: Supp. A-A/P. V./55, p. 485. The delegate of Cuba pointed out in the Sixth Committee (Legal Questions) that he could not vote for the proposed resolution “because it affirmed the principles of international law by a mere reference to them, without enumerating them explicitly. The Cuban delegation,” he said, “thought that the adoption of principles of such importance should not be based on mere references, but should be the outcome of a thorough study of each of the principles concerned.” Journal of the United Nations, No. 56: Supp. No. 6-A/C. 6/123, p. 127. For these reasons, the representatives of Cuba, Argentina, and Peru voted against the proposal in the Sixth Committee. Journal of the United Nations, No. 58: Supp. No. 6-A/C. 6/127, p. 129. See also Documents A/C. 6/116 and A/236. It should be noted that this Resolution followed the action of nineteen governments of the United Nations which had previously expressed their adherence to the London Agreement. Cf. Judgment, p. 1.

59a Lauterpacht, , The Pact of Paris and the Budapest Articles of Interpretation, p. 190Google Scholar.

60 Cf. writers cited in Glueck, op. cit., p. 74, note 3. As mentioned above, Professor Glueck seems to deny substantive, but does not entirely rule out formal, retroactivity. Ibid., p. 91.

61 Permanent Court of International Justice, Publications, Series A, No. 9, p. 18Google Scholar.

62 See Ogg, Frederic A., European Governments and Politics (2nd ed., 1945), p. 36 f.Google Scholar: “Leaving out of account practical and moral restraints which operate powerfully upon it, and thinking only of what may be done under the law, Parliament can alter or rescind any charter, agreement, or statute; it can cause any official of the government to be dismissed and any judicial decision to be made of no effect; it can put an end to any usage and overturn any rule of common law; it can bend the constitution in any direction that it desires. It follows that every parliamentary act is “constitutional”; if a measure is passed which is contrary to the constitution as it has hitherto stood, the constitution simply becomes something different in that regard. One who follows English political discussion, even from afar, will now and then hear it charged that a legislative proposal, or even a law, is unconstitutional. But this means only that somebody considers the offending proposal or act to be inconsistent with previously accepted fundamental law, or with an established usage, or with international law, or perhaps only with the accepted standards of morality. An act so regarded is legally quite as valid and enforceable as if no question had been raised. No one can allege that it is ultra vires. The word of Parliament, i.e. the latest word, is law, however it may cut across existing constitutional arrangements; and as such it will be enforced by the courts.”

63 Kelsen, Hans, Peace Through Law (1944), p. 87Google Scholar.

64 In the case of the International Military Tribunal for the Far East, the consent of the Japanese government to the trial of Japanese war criminals is presumed to have been granted in the instrument of surrender signed by Japan on Sept. 2, 1945. Department of State Bulletin, Vol. XIV (1946), p. 361Google Scholar.

65 The basis for this is the, Declaration regarding the Defeat of Germany and the Assumption of Supreme Authority with respect to Germany, paragraph 5 of the Preamble, and Articles 11 and 13. American Journal of International Law, Vol. 39 (1945), Supp., p. 171 ff.CrossRefGoogle Scholar

66 Glueck, op. cit., p. 25: “There is no question but that, as an act of the will of the conqueror, the United Nations had the authority to frame and adopt such a Charter.”

67 Judgment, p. 38.

68 Grotius, , De Jure Belli ac Pacis, translated by Kelsey, Francis W.. “Classics of International Law,” ed. by Scott, J. B., Vol. II (1925), pp. 826, 828Google Scholar.

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