The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-First Day: Thursday, 4th July, 1946
(Part 2 of 8)

[Page 84]

DR. JAHRREISS, Continued:

The British Government had assumed the obligation on 5th February, 1930, to appear before the Permanent International Court of Justice at the Hague whenever an action is brought against Great Britain, i.e., also in the case of actions which other States might bring on account of conduct by which Great Britain had, in the opinion of the plaintiff, violated International Law during a war. The British Government had accepted this regulation because it had relied on the functioning of the machinery of collective security created by the League of Nations Covenant and the Pact of Paris: because, if it did function - and as England would of course not conduct any forbidden wars and her opponent would on the contrary be the aggressor - a conflict between England and those States that were faithful to the security machinery could not possibly be caused by the actions of British sea power. However, the British Government had been disappointed in what it relied on: Ever since the League Assembly of 1938, it had no longer been possible to doubt that the security machinery would not function; on the contrary it had, in fact, collapsed completely. A number of members of the League had already declared their strict neutrality before the outbreak of war:

"The entire machinery intended to maintain peace has broken down."
I shall still have to show how right the British Government was in the conclusions it drew. It should not be forgotten that the British Premier, Neville Chamberlain, had already proclaimed on 22nd February, 1938, in the House of Commons, i.e., before the so-called Austrian Anschluss, the complete inefficiency of the system of collective security. He said:
"At the last election it was still possible to hope that the League might afford collective security. I believed it myself. I do not believe it now. I would say more: If I am right, as I am confident I am, in saying that the League as constituted today is unable to provide collective security for anybody, then I say we must not delude ourselves, and, still more, we must not try to delude small weak nations into thinking that they will be protected by the League against aggression and acting accordingly, when we know that nothing of the kind can be expected."
The Geneva League of Nations was "neutralised", as Noel- Baker politely expressed it later in the House of Commons.

(2) In view of the correct conclusions drawn by the British Government in their note of 7th September, 1939, to the League of Nations, it is no wonder if the Soviet Union treated the German-Polish conflict in accordance with the old rules of power politics. In the German-Russian Frontier and Friendship Pact of 28th September, 1939, and in the declaration made on the same day in common with the Reich Government, the Government of Moscow starts from the conception of the debellatio of Poland, i.e., the abolition of Poland's Government and armed forces; there is no mention made of the Pact of Paris or the League of Nations Covenant. The Soviet Union notes the abolition of the Polish State machinery by means of war, and draws from this fact the conclusions which seem right to her, agreeing with the Reich Government that the new order of things is exclusively a matter for the two Powers.

[Page 85]

It was therefore only logical when, in the Finnish conflict of the winter of 1939 /40, the Soviet Union took up its stand on classic International Law. It disregarded the reactions of the League of Nations when, without even considering the application of the machinery of sanctions and only appearing to apply an article of the Covenant which was intended quite differently, it resolved that the Soviet Union had, as an aggressor, excluded itself from the League. The report of the Swiss Federal Council of 30th January, 1940, to the Federal Assembly tries to save the face of the League which has been excluded from political realities.

(3) The President of the United States stated on 5th September, 1939, that there existed a state of war between several States with whom the United States lived in peace and friendship, namely Germany on the one hand and Great Britain, France, Poland, India and two of the British Dominions on the other hand. Everyone in the United States was bound to obey the neutrality regulations most strictly.

From the time of the preliminary negotiations, it was known in the United States that Europe, and particularly Great Britain and France, saw the main value of the pact outlawing war in the fact that the United States would take action in case of a breach of the pact. The British Foreign Minister stated this on 30th August, 1928, i.e., four weeks previous to the signing of the pact. During the deliberations of the American Senate on the ratification of the pact, Senator Moses particularly drew attention to this. Senator Borah affirmed at the time that it was completely impossible to imagine that the United States would calmly stand by. After the discredited failures of the policy of collective security in the case of Manchuria and Abyssinia the world had understood the now famous "quarantine" speech of President Franklin Roosevelt of 5th October, 1937, and the "Stop Hitler!" warnings of the same President before and after "Munich", as an announcement that the United States would act on the next occasion. The declaration of neutrality of 5th September, 1939, could therefore only mean: Like Great Britain and the Soviet Union, the United States accepts as a fact the collapse of the system of collective security.

This declaration of neutrality has often been looked upon as the death blow for the system. The Washington Government could reject such a reproach as unjustified. For the system had already been dead for years, in so far as one believes at all that it was ever actually alive. But many did not see the fact that it was not alive at the moment, until the blinding light of the American declaration of neutrality fell upon it.

On 1st September, 1939, a decision had already been reached long before about the various experiments which had been tried since the First World War to replace the "anarchic world order" of classic International Law by a better, a real, order of peace; i.e., to create in the community of States a general statute according to which there would be wars which are forbidden by law and others which are not forbidden by law. These experiments had, in the opinion of the major Powers of the time, collapsed.

The greatest military Powers of the earth clashed in a struggle in which they used their full strength. For the proponents of the materialistic conception of history this was a second phase in a process developing according to inexorable laws, in which history ignored diplomatic and juridical formulae with supreme indifference.

For the majority of the international lawyers of the world did state: In the general International Law at present valid there is no distinction between forbidden and un-forbidden wars.

Hans Kelsen demonstrated this in 1942 in his paper "Law and Peace in International Relations" which he wrote after careful research. In this he himself belongs to the minority who concede a legal distinction between justified and unjustified wars. His statement therefore carried all the more weight.

But now we must ask: Are we right in speaking of the collapse of the system of collective security at all? This presupposes that such a system at one time existed

[Page 86]

Can this really be asserted? This is a question of the greatest importance for this trial, in which the existence of a world-wide consciousness of right and wrong is taken as the basis for the Indictment for breach of the peace.

There arises before us the tragedy of the Briand-Kellogg Pact, that tragedy from which we have all suffered so much, we who rejoiced when the pact was concluded and later, after a first period of depression, greeted the Stimson Doctrine as a long overdue step absolutely essential for the achievement of real peace, and as an encouraging omen of fresh progress.

The United States had a great goal in view in 1927 and 1928, as I have already mentioned. In the League of Nations the problem had been tackled only half-heartedly and with half- measures, and this had perhaps done more harm than good to the cause of real peace. The Geneva Protocol had failed. Kellogg now wanted to pass over all the difficulties which are actually essential parts of the problem, and jerk the world out of its deadlock by taking action without worrying about theories. The published treaty with its two articles, the renunciation of war and the obligation of peaceful settlement, seemed to fulfil the longing of a humanity which wanted to see at last the act which would liberate it.

But the difficulties which it was desired to get over were partially inherent in the problem, and no regulations made by any legislator can ever eliminate them completely. For even if one disposed of unambiguous criteria, who among fallible mankind would have the authority to give a decision in case of dispute?

But we do not even possess unambiguous criteria of aggression and defence. This holds both for the so-called political concept, which is in a way the natural one, and for the legal concept or concepts of aggression and defence.

But these were not the only difficulties pointed out explicitly and implicitly by the French Government in the preliminary negotiations for the pact, and this with the full right of one who knows Europe and its very old historical legacy in the way the United States Government knows America and its quite different history. Even if somebody were capable of jumping over his own shadow, the shadow cast by European history is so much longer.

When the world came to know the notes exchanged during the preliminary negotiations, with all the definitions, interpretations, qualifications and reservations, it became manifest to what an extent the opinions of the governments differed from one another despite one and the same wording. One saw the Soviet Government's open - even bitter criticism of the refusal of the Western Powers to disarm and thus create the essential premise for an effective policy of peace, further, of the vagueness of the treaty but especially of the famous English reservation of a free hand in certain regions of the world, the reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine, and one knew that in reality there existed only formal agreement behind the signatures and that no two Powers understood exactly the same thing by the treaty. Only on one thing did complete agreement exist: War of self-defence is permitted as an unalienable right of all States; without this right, sovereignty does not exist; and every State is alone judge of whether in a given case it is waging a war of self-defence.

No State in this world was ready to accept foreign jurisdiction concerning the question of whether its decisions on ultimate questions of existence were justified or not.

Kellogg had declared to all the nine States participating in the negotiations, in his note of 25th June, 1928:

"... The right of self-defence ... is inherent in every sovereign State and is implicit in every treaty. Every nation ... is alone competent to decide whether circumstances require recourse to war in self-defence."
The friends of peace were cruelly disappointed. What was the use of such a treaty anyway? They were only too right. Very soon afterwards they heard with even greater grief of the course of the discussions in the American Senate. The ratification was, it is true, passed with eighty-five votes against one, with few abstentions, but if behind the signatures of the contracting States there was no

[Page 87]

material agreement, there was even less behind the result of the vote in the Senate of that world Power which was the leading one ideologically and as far as the initiative was concerned.

The discussions in the Senate, which remain memorable for all time because of their profound seriousness and loftiness, showed - and several Senators expressly said so - that the opinions of the Senators oscillated between two poles which were worlds apart. For some the treaty really meant a turning-point; to others it appeared worthless, or, at best, a feeble or friendly gesture, a popular slogan, a sort of international kiss, to still others a fertile soil for all the wars of the future, a gigantic piece of hypocrisy, even the legalisation of war or of British world control, or the guaranteeing of the unjust status quo of Versailles for France and Great Britain.

Some senators criticized the complete vagueness of the stipulations of the treaty even more sharply than the Russian note. And if one took Kellogg's declaration about the right of self-defence, which, according to the will of the signatory States, was an integral part of the treaty literally: what kind of war was then forbidden at all? Sarcastic and ironic words were used in the Senate.

Nothing was gained by this Paris Pact if everything was to remain as it stood at its conclusion. In the opinion of the great American expert on International Law, Philip Marshall Brown, the pact unwittingly engendered by its ineptness the horrible monster of "undeclared war".

Those who fought against Versailles, Germans and non- Germans, because progress was blocked, and those who criticized the League of Nations, Germans and non-Germans, because it did more harm than good to the will for progress, had all rejoiced for nothing at the end of August, 1928. The decisive step had not been taken.

But above all the one thing that is not sufficient in itself, but is indispensable if a guarantee of peace is really to be created, the one thing that, in the unanimous opinion of all who reckon with human beings as they really are, is necessary, was not tackled at all:

To create a procedure by which the community of States can, even against the will of the possessor, change conditions that have become intolerable, in order to provide life with the safety-valve it must have if it is to avoid an explosion.

Just as the State can, if at all, avoid revolutions only by good legislation and by adjusting the laws to the altered manner of life in good time, so it is with the community of States as well. Wilson also had this fundamental principle in mind as we saw. One of the great British experts on International Law, one of the enthusiastic, unconditional and progressive adherents of the Paris Pact, McNair, took this into account too when, in 1936, he wanted to have placed beside collective force the collective and peaceful revision of conditions which had become dangerous. This was taken into account by the American experts on International Law, Berchard and Fenwick, in their warning explanations of the aspects of the situation connected with International Law, shortly before the Second World War. The Government of the German Reich had, by the way, pointed out this problem which overshadowed all others, in Stresemann's note to the American Ambassador dated 27th April, 1928, when unconditionally agreeing to Kellogg's proposal.

The problem of "collective revision" was not seriously tackled later on either. This is not surprising, if only because the very character of such an institution presupposes renunciation of their sovereignty by the States. And can such a renunciation be considered in the times in which we live? Philip Brown melancholically thinks that this is less possible than ever. And for this reason a real forward step in the question as to how war could literally be outlawed was not practicable.

The Government of the United States and the League of Nations did a great deal to satisfy the urgent demands of the nations in spite of these inextricable interdependences. They subsequently tried to give the pact a precise content and "teeth". The science of International Law provided suggestions for this and

[Page 88]

checked it. We must also trace this process briefly even though it remained completely unsuccessful, because the seed of the ideas contained in the Indictment are to be found here, in so far as its line of argument is not a political or ethical, but a legal one.

Firstly: In its ban on aggression, the Paris Pact unquestionably starts from the political concept of aggression. But in that it is quite indefinite. Shotwell and Brierly, among others, tried to help immediately by deducing a legal concept of aggression from the second article of the Treaty, which article establishes the obligation to follow a procedure of peaceful settlement. We can leave open the question whether this interpretation may be applied to the Treaty. In practice nothing is actually gained by doing so; one kind of difficulty is simply put in the place of another. There are no fewer obscurities: the measures of peaceful settlement presuppose good will on both sides; what, then, if it is lacking on the other side? And what is still a measure of peaceful settlement and what is one no longer? The Russian Government was quite right in the above- mentioned note of 31st August, 1928, to the Briand-Kellogg Pact when it expounded this question.

Then: Other attempts to help tried to develop a completely new world constitution from the entirely indefinite pact by means of logic. They are connected with the name of the American Secretary of State Stimson and with the work of the Budapest Meeting of the International Law Association in 1934. To understand this it is necessary to assume that the Kellogg Pact really brought about, in a legally definable manner, an unambiguous and unconditional renunciation of war. Then, of course, there no longer exists the right to wage wars as and when one likes. War waged against this prohibition is an offence against the constitution of the community of States. We are immediately faced by the question:

Can the legal position of a State which attacks contrary to law be the same as that of a State which is attacked contrary to law?

If one answers: No, as does for instance the influential French commentator of the League of Nations Covenant, Jean Ray, does this then not mean the elimination of the most important fundamental principles of classic International Law?

(1) Do the international laws of war - which after all proceed from the right to wage war freely and from the duel- like character of war and, at any rate, the equality before the law of the belligerents - apply for the evaluation of the actions of the belligerent Powers against one another?

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