DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
PRELIMINARY QUESTION OF LAW
THE UNITED STATES OF AMERICA, THE REPUBLIC OF CHINA, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, THE UNION OF SOVIET SOCIALIST REPUBLICS, THE COMMONWEALTH OF AUSTRALIA, CANADA, THE REPUBLIC OF FRANCE, THE KINGDOM OF THE NETHERLANDS, NEW ZEALAND, INDIA AND THE COMMONWEALTH OF THE PHILIPPINES.
— AGAINST —
ARAKI, Sadao; DOHIHARA, Kenji; HASHIMOTO, Kingoro; HATA, Shunroku; HIRANUMA, Kiichiro; HIROTA, Koki; HOSHINO, Naoki; ITAGAKI, Seishiro; KAYA, Okinori; KIDO, Koichi; KIMURA, Heitaro; KOISO, Kuniaki; MATSUI, Iwane; MINAMI, Jiro; MUTO, Akira; OKA, Takasumi; OSHIMA, Hiroshi; SATO, Kenryo; SHIGEMITSU, Mamoru; SHIMADA, Shigetaro; SHIRATORI, Toshio; SUZUKI, Teiichi; TOGO, Shigenori; Tojo, Hideki; UMEZU, Yoshijiro, Defendants.
I sincerely regret my inability to concur in the judgment and decision of my learned brothers. Having regard to the gravity of the case and of the questions of law and of fact involved in it, I feel it my duty to indicate my view of the questions that arise for the decision of this Tribunal.
On April 29, 1946 the eleven prosecuting nations named above filed their indictment against twenty-eight persons. Accused MATSUOKA, Yosuke and NAGANO, Osami died during the pendency of this trial and accused OKAWA, Shumei was discharged from the present proceeding because of his mental incompetency. The remaining twenty-five persons are now arraigned as accused before us to take their trial for what has been stated to be the major war- crimes .
Evidence has been given in this case connecting each of the accused with the Government of Japan during the relevant period. Details showing this connection will be given as occasion arises.
The charges against these accused persons are laid in fifty-five counts grouped in three categories:
1. Crimes against Peace Count 1 to Count 36).
2. Murder Count 37 to Count 52).
3. Conventional War Crimes and Crimes against Humanity. (Count 53 to Count 55) .
The counts of charges are prefaced by an introductory summary amply indicating the nature of the prosecution case and are appended with five appendices in the nature of bills of particulars.
In the language of the prosecution itself:
“In Group One, Crimes against Peace AS DEFINED IN THE CHARTER are charged in thirty-six counts. In the first five counts the accused are charged with conspiracy to secure the military, naval, political and economic domination of certain areas, by the waging of declared or undeclared war or wars of aggression and of war or wars in violation of international law, treaties, agreements and assurances. Count I charges that the conspiracy was to secure
the domination of East Asia and of the Pacific and Indian Oceans; Count 2, domination of Manchuria; Count 3, domination of all China; Count 4, domination of the same areas named in Count 1, by waging such illegal war against sixteen specified countries and peoples. In Count 5, the accused are charged with conspiring with Germany and Italy to secure the domination of the world by the waging of such illegal wars against any opposing countries. The prosecution charges in the next twelve counts (6 to 17) that all or certain accused planned and prepared such illegal wars against twelve nations or people attacked pursuant thereto. In the next nine counts (18 to 26) it is charged that all or certain accused initiated such illegal wars against eight nations or peoples, identifying in a separate count each nation or people so attacked. In the next ten counts (27 to 36) it is charged that the accused waged such illegal wars against nine nations or peoples, identifying in a separate count each nation or people so warred upon.
“In Group Two, murder or conspiracy to murder is charged in sixteen counts (37 to 52). It is charged, in Count 37, that certain accused conspired unlawfully to kill and murder people of the United States, the Philippines, the British Commonwealth, the Netherlands, and Thailand ( Siam), by ordering, causing and permitting Japanese armed forces, in time of peace, to attack those people in violation of Hague Convention III, and in Count 38, in violation of numerous treaties other than Hague Convention III.
“It is charged in the next five counts (39 to 43) that the accused unlawfully killed and murdered the persons indicated in Counts 37 and 38 by ordering, causing and permitting, in time of peace, armed attacks by Japanese armed forces, on December 7 and 8, 1941, at Pearl Harbour, Kota Bahru, Hong Kong, Shanghai and Davao. The accused are charged in the next count (44) with conspiracy to procure and permit the murder of prisoners of war, civilians and crews of torpedoed ships.
“The charges in the last eight counts (45 to 52) of this group are that certain accused, by ordering, causing and permitting Japanese armed forces unlawfully to attack certain cities in China (Counts 45 to 50) and territory in Mongolia and of the Union of Soviet Socialist Republics (Counts 51 and 52), unlawfully killed and murdered large numbers of soldiers and civilians.
“In Group Three, the final group of counts (53 to 55), other conventional War Crimes and Crimes against Humanity, are charged. Certain specified accused are charged in Count 53 with having conspired to order, authorize and permit Japanese commanders, War Ministry officials, police and subordinates to violate treaties and other laws by committing atrocities and other crimes against many thousands of prisoners of war and civilians belonging to the United States, the British Commonwealth, France, Netherlands, the Philippines, China, Portugal and the Union of Soviet Socialist Republics.
“Certain specified accused are directly charged in Count 54 with having ordered, authorized and permitted the persons mentioned in Count 53 to commit offences mentioned in that Count. The same specified accused are charged in the final count (55) with having violated the laws of war by deliberately and recklessly disregarding their legal duty to take adequate steps to secure the observance of conventions, assurances and the laws of war for the protection of prisoners of war and civilians of the nations and peoples named in Count 53.”
Summarized particulars in support of the counts in Group One are presented in Appendix A of the Indictment. In Appendix B are collected the Articles of Treaties violated by Japan as charged in the counts for Crimes against Peace and the Crime of Murder. In Appendix C are listed official assurances violated by Japan and incorporated in Group One, Crimes against Peace, Conventions and Assurances concerning the laws and customs of war are discussed in Appendix D, and particulars of breaches of the laws and customs of war for which the accused are responsible are set forth therein. Individual responsibility for crimes set out in the indictment and official positions of responsibility held by each of the accused during the period with which the indictment is concerned are presented in Appendix E.
In presenting its case at the hearing the prosecution offered what it characterized to be “the well-recognized conspiracy method of proof1’. It undertook to prove:
1. (a) that there was an over-all conspiracy.
( b ) that the said conspiracy was of a comprehensive character and of a continuing nature.
(c) that this conspiracy was formed, existed and operated during the period from 1 January, 1928 to 2 September, 1945.
2. that the object and purpose of the said conspiracy consisted in the complete domination by Japan of all the territories generally known as Greater East Asia described in the indictment.
3. that the design of the conspiracy was to secure such domination by—
(a ) war or wars of aggression.
(6) war or wars in violation of:
(i) international law,
( in) agreements and assurances.
4. that each accused was a member of this over-all conspiracy at the time any specific crime set forth in any count against him was committed.
The prosecution claimed that as soon as it would succeed in proving the above matters, the guilt of the accused would be established without anything more and that it would not matter whether any particular accused had actually participated in the commission of any specified act or not.
In counts one to five the accused are charged with having participated in the formulation or execution of a common plan or conspiracy, the object of such plan or conspiracy being the military, naval, political and economic domination of certain territories and the means designed for achieving this object being:
1. declared or undeclared war or wars of aggression.
2. war or wars in violation of:
(a) international law.
( b) treaties.
(c) agreements and assurances.
It is implied in these charges that acts in execution of such plan were performed. The accused are sought to be made criminally liable for such acts.
In these counts the questions that would arise for our decision are:
1. Whether military, naval, political and economic domination of one nation by another is a crime in international life.
2. Whether war or wars ( a ) of aggression.
(b) in violation of:
(0 international law.
(iii ) agreements and assurances.
are crimes in international life and whether their legal character would in any way depend upon their being initiated with or without declaration.
Counts six to seventeen charge the accused only with having planned and prepared wars of the categories mentioned above. In order to sustain these charges it is essential that such wars must be criminal or illegal.
Counts eighteen to twenty-four relate to initiation of wars of the same categories and would, therefore, stand or fall according as such wars are or are not crime in international life.
Counts twenty-five to thirty-six charge the accused or some of them with having waged wars of the same categories and would thus fail if such wars are not crime in international life.
Counts thirty-seven to fifty-two contain charges on the footing that hostilities started in breach of treaties would not have the legal character of war and did not therefore confer on the Japanese forces any right of lawful belligerents.
I shall examine these several counts in detail later on. It is obvious that they all involve the question whether wars of the categories mentioned above became crime in international life.
The prosecution case is that these accused persons did the acts alleged in course of working the machinery of the Government of Japan taking advantage of their position in that Government. Grounds of individual responsibility for the alleged crimes are set out in Appendix E of the Indictment thus:
“It is charged against each of the accused that he used the power and prestige of the position which he held and his personal influence in such a manner that he promoted and carried out the offences set out in each Count of this Indictment in which his name appears.
“It is charged against each of the accused that during the periods hereinafter set out against his name he was one of those responsible for all the acts and omissions of the various governments of which he was a member, and of the various civil, military or naval organizations in which he held a position of authority.
It is charged against each of the accused, as shown by the numbers given after his name, that he was present at and concurred in the decision taken at some of the conferences and cabinet meetings held on or about the following dates in 1941, which decisions prepared for and led to unlawful war on 7 and 8 December, 1941.”
The acts alleged are, in my opinion, all acts of state and whatever these accused are alleged to have done, they did that in working the machinery of the government, the duty and responsibility of working the same having fallen on them in due course of events.
Several serious questions of international law would thus arise for our consideration in this case. We cannot take up the questions of fact without coming to a decision on these questions.
The material questions of law that arise for our decision are the following:
1. Whether military, naval, political and economic domination of one nation by another is crime in international life.
2- (a) Whether wars of the alleged character became criminal in international law during the period in question in the indictment.
(b) Whether any ex post facto law could be and was enacted making such wars criminal so as to affect the legal character of the acts alleged in the indictment.
3. Whether individuals comprising the government of an alleged aggressor state can be held criminally liable in international law in respect of such acts.
Several subsidiary questions of law will also fall to be decided before we can justly take up the evidence in this case. These questions will be indicated in their proper places in course of the decision of the main questions specified above. But before all this, I must dispose of some PRELIMINARY MATTERS CONCERNING OURSELVES.
The accused at the earliest possible opportunity expressed their apprehension of injustice in the hands of the Tribunal as at present constituted.
The apprehension is that the Members of the Tribunal being representatives of the nations which defeated Japan and which are accusers in this action, the accused cannot expect a fair and impartial trial at their hands and consequently the Tribunal as constituted should not proceed with this trial.
Regarding the Constitution of THE COURT FOR THE TRIAL of persons accused of war crimes, the Advisory Committee of Jurists which met at The Hague in 1920 to prepare the statute for the Permanent Court of International Justice expressed a “ voeu for the establishment of an International Court of Criminal Justice. This, in principle, appears to be a wise solution of the problem, but the plan has not as yet been adopted by the states. Hall suggests that,
“It should be possible for both the victor and the vanquished in war to be able to bring to trial before AN IMPARTIAL COURT persons who are accused of violating the laws and usages of war”.
I feel tempted in this connection to quote the views of Professor Hans Kelsen of the University of California which may have the effect of turning our eyes to one particular side of the picture likely to be lost sight of in a “floodlit court house where only one thing is made to stand out clear for all men to see, namely that the moral conscience of the world is there reasserting the moral dignity of the human race”.
The learned Professor says-.“it is the jurisdiction of the victorious states over the war criminals of the enemy which the Three Power Declaration
signed in Moscow demands. It is quite understandable that during the war the peoples who are the victims of the abominable crimes of the Axis Powers wish to take the law in their own hands in order to punish the criminals . But after the war will be over our minds will be open again to the consideration that criminal jurisdiction exercised by the injured states over enemy subjects is considered by the peoples of the delinquents as vengeance rather than justice, and is consequently not the best means to guarantee the future peace. The punishment of war criminals should be an act of international justice, not the satisfaction of a thirst for revenge. It does not quite comply with the idea of international justice that only the vanquished states are obliged to surrender their own subjects to the jurisdiction of an international tribunal for the punishment of war crimes. The victorious states too should be willing to transfer their jurisdiction over their own subjects who have offended the laws of warfare to the same independent and impartial international tribunal.”
The learned Professor further says: “As to the question—what kind of tribunal shall be authorized to try war criminals, national or international, there can be little doubt that AN INTERNATIONAL COURT is much more fitted for this task than a national, civil, or military court. Only a court established by an international treaty, to which not only the victorious but also the vanquished states are contracting parties, will not meet with certain difficulties which a national court is confronted with.”
Though not constituted in the manner suggested by the learned Professor, HERE is AN INTERNATIONAL TRIBUNAL for the trial of the present accused.
The judges are here no doubt from the different victor nations, but they are here in their personal capacities. One of the essential factors usually considered in the selection of members of such tribunals is MORAL INTEGRITY. This of course embraces more than ordinary fidelity and honesty. It includes “a measure of freedom from prepossessions, a readiness to face the consequences of views which may not be shared, a devotion to judicial processes, and a willingness to make the sacrifices which the performance of judicial duties may involve”.
The accused persons here have not challenged the constitution of the tribunal on the ground of any shortcoming in any of the members of the tribunal in these respects. The Supreme Commander seems to have given careful and anxious thought to this aspect of the case and there is a provision in the Charter itself permitting the judges to decline to take part in the trial if for any reason they consider that they should not do so.
Ordinarily, on an objection like the one taken in this connection, the judges themselves might have expressed their unwillingness to take upon themselves the responsibility. Administration of justice demands that it should be conducted in such a way as not only to assure that justice is done but also to create the impression that it is being done. In the classic language of Lord Hewart, Lord Chief Justice of England, “it is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”.
The fear of miscarriage of justice is constantly in the mind of all who are practically or theoretically concerned with the law and especially with the dispensation of criminal law. The special difficulty as to the rule of law governing this case, taken with the ordinary uncertainty as to how far our means are sufficient to detect a crime and coupled further with the awkward possibilities of bias created by racial or political factors, makes our position one of very grave responsibility. The accused cannot be found fault with, if, in these circumstances, they entertain any such apprehension, and I, for myself, fully appreciate the basis of their fear. We cannot condemn the accused if they apprehend, in their trial by a body as we are, any possible interference of emotional factors with objectivity.
We cannot overlook or underestimate the effect of the influence stated above. They may indeed operate even unconsciously. We know how unconscious processes may go on in the mind of anyone who devotes his interest and his energies to finding out how a crime was committed, who committed it, and what were the motives and psychic attitude of the criminal. Since these processes may remain unobserved by the conscious part of the personality and may be influenced only indirectly and remotely by it, they present permanent pitfalls to objective and sound judgment—always discrediting the intergrity of human justice. But in spite of all such obstacles it is human justice with which the accused must rest content. We, on our part, should always keep in view the words of the Supreme Commander for the Allied Powers with which Mr. Keenan closed his opening statement and avoid the eagerness to accept as real anything that lies in the direction of the unconscious wishes, that comes dangerously near to the aim of the impulses.
With these observations I persuade myself to hold that this objection of the accused need not be upheld.
The defense also took several other objections to the trial; of these the substantial ones may be subdivided under two heads:
1. Those relating strictly to the jurisdiction of the Tribunal.
2. Those which, while assuming the jurisdiction of the Tribunal, call on the Tribunal to discharge the accused of the charges contained in several counts on the ground that they do not disclose any offence at all.
Some of these objections even related to war crimes stricto sensu alleged to have been committed during the war which ended in the surrender. As preliminary objections, these are of no substance.
A war, whether legal or illegal, whether aggressive or defensive, is still a war to be regulated by the accepted rules of warfare. No pact, no convention has in any way abrogated jus-in-bello.
So long as States, or any substantial number of them, still contemplate recourse to war, the principles which are deemed to regulate their conduct as belligerents must still be regarded as constituting a vital part of international law. There is a persistent tendency on the part of the belligerents to shape their conduct according to what they consider to be their own needs rather than the requirements of international justice. Strong measures are required to curb this tendency in the belligerent conduct.
War crimes stricto sensu, as alleged here, refer to acts ascribable to individuals concerned in their individual capacity. These are not acts of State and consequently the principle that no State has jurisdiction over the acts of another State does not apply to this case.
Oppenheim says: “The right of the belligerent to punish, during the war, such war criminals as fall into his hands is a well-recognized principle of international law. It is a right of which he may effectively avail himself as he has occupied all or part of enemy territory, and is thus in the position to seize war criminals who happen to be there. He may, as a condition of the armistice, impose upon the authorities of the defeated state the duty to hand over persons charged with having committed war crimes, regardless of whether such persons are present in the territory actually occupied by him or in the territory which, at the successful end of hostilities, he is in the position to occupy. For in both cases the accused are, in effect, in his power. And, although normally the Treaty of Peace brings to an end the right to prosecute war criminals, no rule of international law prevents the victorious belligerent from imposing upon the defeated State the duty, as one of the provisions of the armistice or of the Peace Treaty, to surrender for trial persons accused of war crimes."
Similar views are expressed by Hall and Garner.
“The principle”, says Garner, “that the individual soldier who commits acts in violation of the laws of war, when these acts are at the same time offences against the general criminal law, should be liable to trial and punishment, not only by the courts of his own state, but also by the courts of the injured adversary in case he falls into the hands of the authorities thereof, has long been maintained.”
Hall says: “A belligerent, besides having the rights over his enemy which flow directly from the right to attack, possesses also the right of punishing persons who have violated the laws of war, if they afterwards fall into his hands. To the exercise of the first of the above-mentioned rights no objection can be felt so long as the belligerent confines himself to punishing breaches of UNIVERSALLY ACKNOWLEDGED LAWS.”
It should only be remembered that this rule applies only where the crime in question is not an act of state. The statement that if an act is forbidden by
international law as a war crime, the perpetrator may be punished by the injured state if he falls in its hands is correct only with this limitation that the act in question is not an act of the enemy state.
IN MY JUDGMENT, it is now well-settled that mere high position of the parties in their respective states would not exonerate them from criminal responsibility in this respect, if, of course, the guilt can otherwise be brought home to them. Their position in the State does not make every act of theirs an act of state within the meaning of international law.
The first substantial objection relating to the jurisdiction of the Tribunal is that the CRIMES TRIABLE BY THIS TRIBUNAL MUST BE LIMITED TO THOSE COMMITTED IN OR IN CONNECTION WITH THE WAR WHICH ENDED IN THE SURRENDER on 2 September, 1945. In my judgment this objection must be sustained. It is preposterous to think that defeat in a war should subject the defeated nation and its nationals to trial for all the delinquencies of their entire existence. There is nothing in the Potsdam Declaration and in the Instrument of Surrender which would entitle the Supreme Commander or the Allied Powers to proceed against the persons who might have committed crimes in or in connection with ANY OTHER WAR.
The prosecution places strong reliance on the CAIRO DECLARATION read with paragraph 8 of the Potsdam Declaration and urges that the Cairo Declaration by expressly referring to all the acts of aggression by Japan since the First World War in 1914 vested the Allied Powers with all possible authority in respect to those incidents. The relevant passage in the CAIRO DECLARATION RUNS THUS: “It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent."
THE POTSDAM DECLARATION in paragraph 8 says: “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."
THESE DECLARATIONS ARE MERE ANNOUNCEMENTS OF THE INTENTION OF THE ALLIED POWERS. They have no legal value. They do not by themselves give rise to any legal right in the United Nations. The Allied Powers themselves disown any contractual relation with the vanquished on the footing of these Declarations: Vide paragraph 3 of the Authority of the Supreme Commander.
As I READ THESE DECLARATIONS I do not find anything in them which will amount even to an announcement of intention on the part of the declarants to try and punish war criminals in relation to these incidents. I am prepared to go further. In my judgment, even if we assume that these Declarations can be read so as to cover such cases, that would not carry us far. The Allied Powers by mere declaration of such an intention would not acquire in law any such authority. In my view, if there is any international law which is to be respected by the nations, that law does not confer any right on the conqueror in a war to try and punish any crime committed by the vanquished not in connection with the war lost by him but in any other unconnected war or incident.
The CAIRO DECLARATION referred to in the Potsdam Declaration rather goes against the contention of the prosecution. That Declaration expressly refers to certain specified past matters and proclaims what steps should be taken in respect to them. I do not find anything in that Declaration which would suggest any trial or punishment of any individual war criminal in connection with those past events. Nor do I find anything in the Charter which would entitle us to extend our jurisdiction to such matters.
In my opinion, therefore, crimes alleged to have been committed in or in connection with any conflict, hostility, incident or war not forming part of the war which ended in the surrender of the 2nd September, 1945 are outside the jurisdiction of the Tribunal.
The defense claims the following incidents to be thus outside our jurisdiction, namely:
1. The Manchurian Incident of 1931.
2 The activities of the Japanese Government in the Provinces of Liaoning, Kirin, Heilungkiang and Jehol.
3. The armed conflicts between Japan and the USSR relating to Lake Khasan affiairs and Khalkhingol River affairs.
This will affect our jurisdiction over the matters involved in counts 2, 18, 25, 26, 35, 36, 51 and 52 of the Indictment. Apart from their being parts of the overall conspiracy charged in count 1, the hostilities relating to these matters ceased long before the Potsdam Declaration of 26 July 1945 and the Japanese Surrender of 2 September 1945.
In the Indictment the prosecution makes the case of an over-all conspiracy in count 1 which, if proved, may bring in all these incidents as part of the war which ended in the aforesaid Surrender.
The question, thus, ultimately becomes a question of fact to be determined on the evidence in the case.
If on the evidence on the record we are unable to find the over-all conspiracy as alleged in count 1, then, in my opinion, the charges in the above named counts would fall for want of our jurisdiction.
I may now take up the material questions of law involved in the case as specified above. These were also raised by the defense in their preliminary objections.
The questions are:
1. Whether a war of the alleged character is crime in international law.
2. Whether individual members of a State commit a crime in international law by preparing, etc. for such a war.
Law Applicable to the Case:
I shall, first of all, take up the question WHETHER THE CHARTER establishing this Tribunal, in any way, OBLIGES IT TO APPLY ANY PARTICULAR LAW other than what may be determined by the Tribunal itself to be the international law, and, if so, what that law is: whether the Charter has defined “ war crimes” and whether the Tribunal is bound by that definition, if any, in determining the guilt of the persons under trial here.
The indictment in one place mentions the offences as “Crimes against Peace, War Crimes, and Crimes against Humanity as defined in the Charter of this Tribunal”, and in another, characterizes them as “Crimes against Peace, War Crimes, and Crimes against Humanity and of Common Plans or Conspiracies to Commit those Crimes, all as defined in the Charter of the Tribunal”.
In grouping the counts, “Crimes against Peace are characterized as being acts for which it is charged that the persons named and each of them are individually responsible in accordance with Article 5 and particularly Article 5 ( a ) and (b ) of the Charter of the International Military Tribunal for the Far East and in accordance with International Law, or either of them."
Group Two, Murder, is named as “being acts for which it is charged that the persons named and each of them are individually responsible, being at the same time Crimes against Peace, Conventional War Crimes, and Crimes a- gainst Humanity, contrary to all the paragraphs of Article 5 of the said Charter, to International Law, and to the domestic laws of all the countries were committed, including Japan, or to one or more of them”.
Group Three, Conventional War Crimes and Crimes against Humanity, are named as “being acts for which it is charged that the persons named and each of them are individually responsible, in accordance with Article 5 and particularly Article 5(6) and ( c ) of the Charter of the International Military Tribunal for the Far East, and in accordance with International Law, or either of them”.
Mr. Keenan in opening the case for the prosecution devoted considerable time to what purported to be a statement of the law upon which the indictment is based, but again kept the position vague. He said, “in the first instance, what constitutes cognizable crime by this Tribunal is defined by the Charter." He then proceeded to define and explain conspiracy, saying, “The first offense charged in the indictment is conspiracy. Since this offense is merely named and not defined, some definition must be made." By saying “this offense is merely named and not defined”, he seems to have meant, named in the Charter and not defined there. After explaining conspiracy, Mr. Keenan proceeded thus: “The next offenses charged run through Counts 6 to 36 in various forms; but the same essential elements are contained in all, that is: 'The planning, preparation, initiation or waging of a declared or undeclared war of aggression’ , or ‘The planning, preparation, initiation or waging of a war in violation of international law, treaties, agreements or assurances.
“Taking the first section of this definition, the essential element here is “war of aggression”. Is this a crime under international law, and has it been so understood during all the time referred to in the indictment? We claim that it is and has been. To reach this conclusion we must establish two things:
First, that there is international law covering the subject, and second, that it is a crime under that law. The establishment of these two things is, we believe, among the important questions before this Tribunal."
He then proceeds to examine the international law on the point and invites the Tribunal to take judicial notice of the fact “that there is a large body of International Law known at different times and by different writers as the “common law” or “general law” or “natural law” or “international law”.
My appreciation of the position taken up by the prosecution in this case is that according to it, it is the already existing rules of international law, existing at the date of commission of the acts alleged, on which the indictment is based, and that whether the charges shall stand or fall will depend upon what view the Tribunal takes of those rules.
Mr. Comyns Carr for the prosecution made this position clear in his address of 14 May 1946 at the hearing of the preliminary objection taken by the Defense Counsel as to the jurisdiction of this Tribunal. He said:
“We are not asking this Tribunal to make any new law, nor are we admitting that the Charter purports to create any new offence." According to him, international law itself “being the gradual creation of custom and of the application by judicial minds of old established principles to new circumstances ... it is unquestionably within the power, and . . . the duty of this Tribunal to apply well-established principles to new circumstances, if they are found to have arisen, without regard to the question whether precise precedent for such application already exists in every case."
The position is made clearer by the Prosecution in the final summation of the case. In its summation the prosecution submitted that ‘the Charter is conclusive as to the composition and jurisdiction of the Tribunal and as to all matters of evidence and procedure’. “As to the crimes LISTED in Article 5”, the prosecution submission was “ that the charter is and purports to be merely declaratory of international law as it existed from at least 1928 onwards and indeed before." The prosecution urged the Tribunal to examine this proposition and to base its judgment upon it.
But whatever be the prosecution view, in my opinion, the criminality or otherwise of the acts alleged must be determined with reference to the rules of international law existing at the date of the commission of the alleged acts. In my opinion, the charter cannot and has not defined any such crime and has not, in any way, limited our authority and jurisdiction to apply the rules of international law as may be found by us to the facts alleged in this case.
The prosecution is stated to be “pursuant to the Potsdam Declaration of 20 July, 1945, and the Instrument of Surrender of 2nd September, 1945, and the Charter of the Tribunal."
The relevant provisions of the Potsdam Declaration in question are contained in paragraphs 5 to 8, 10 and 13 and they stand thus:
“5. Following are our terms. We will not deviate from them, There are no alternatives. We shall brook no delay.
“6. There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest, for we insist that a new order of peace, security and justice will be impossible until irresponsible militarism is driven from the world.
“7. Until such a new order is established and until there is convincing proof that Japan’s war-making power is destroyed, points in Japanese territory to be designated by the Allies shall be occupied to secure the achievement of the basic objective we are here setting forth.
“8. The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.
“10. We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners. The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.
“13. We call upon the Government of Japan to proclaim now the unconditional surrender of all Japanese armed forces, and to provide proper and adequate assurances of their good faith in such action. The alternative for Japan is prompt and utter destruction."
The Instrument of Surrender acceded to this demand and in paragraph two proclaimed unconditional surrender thus:
“We hereby proclaim the Unconditional Surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese armed forces and all armed forces under Japanese control wherever situated."
I need only quote also the last paragraph of this instrument for my present purpose. The paragraph stands thus:
“The authority of the Emperor and the Japanese Government to rule the state shall be subject to the Supreme Commander for the Allied Powers who will take such steps as he deems proper to effectuate these terms of surrender."
The expression “unconditional surrender” has almost become an expression of art in the military vocabulary to mean admission of total defeat. Some trace the history of its origin to the scene at Appomattox, Virginia, where on April 9,1865, General Robert E. Lee commanding the Confederate Army, surrendered to General Ulysses S. Grant, then leading the Federal Forces. But we are not concerned with the history of the expression. For our present purpose we are concerned with, not how it came to possess a particular import, but what is its import. Unconditional surrender implies a complete defeat and an admission of such complete defeat. It imports complete surrender to THE MIGHT and MERCY of the victor. What the vanquished gets, he gets, not by a stipulation, but by the grace of the victor; it does not matter that some indication of the policy to be followed is graciously indicated by the victor even before the formal surrender. Of course, by saying this, I do not mean to say that the defeated party has no protection whatsoever from the whims of the VICTOR’S MIGHT. International law and usage purport to define the rights and duties of the victor in such a case. However impotent such law may be to afford any real protection, it at least does not LEGALLY place the vanquished at the absolute mercy of the victor.
We shall see later what is the position of the victor nations AS SUCH in international law in relation to a conquered nation. All that I need point out here is that so far as the terms of the demand of surrender and of the ultimate surrender go there is nothing in them TO VEST ANY ABSOLUTE SOVEREIGNTY in respect of Japan or of the Japanese people either in the victor nations or in the Supreme Commander. Further there is nothing in them which either expressly or by necessary implication would authorize the victor nations or the Supreme Commander to legislate for Japan and for the Japanese or in respect of war crimes. It will be pertinent to notice here that in vesting authority on the Supreme Commander the victor nations did not claim any AUTHORITY DERIVED FROM the vanquished under any agreement. THE AUTHORITY OF THE SUPREME COMMANDER in paragraph 3 runs thus:
“The statement of intentions contained in the Potsdam Declaration will be given full effect. It will not be given effect, however, because we consider ourselves bound in a contractual relationship with Japan as a result of that document. It will be respected and given effect because the Potsdam Declaration forms a part of our policy stated in good faith with relation to Japan and with relation to peace and security in the Far East."
I would now come to the Charter constituting this Tribunal. The relevant provisions are contained in Articles 1,2, 5 and 6 and they stand thus:
CONSTITUTION OF TRIBUNAL
“ Article 1. Tribunal Established. The International Military Tribunal for the Far East is hereby established for the just and prompt trial and punishment of the major war criminals in the Far East. The permanent seat of the Tribunal is in Tokyo.
“ Article 2 . Members. The Tribunal shall consist of not less than six nor more than eleven Members, appointed by the Supreme Commander for the Allied Powers from the names submitted by the Signatories to the Instrument of Surrender, India, and the Commonwealth of the Philippines.
JURISDICTION AND GENERAL PROVISIONS
“Article 5. Jurisdiction Over Persons and Offenses. The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses which include
Crimes against Peace. 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, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foreging.
“(b) Conventional War Crimes : Namely, violations of the laws or customs of war.
“(c) Crimes against Humanity : Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 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 person in execution of such plan.
“Article 6. Responsibility of Accused. Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
Excepting these the Charter contains no other provisions having any bearing on the question under consideration. There is no express provision in the Charter making it obligatory on the Tribunal either to apply or to exclude any particular law.
Before proceeding to examine the provisions of the Charter in relation to the question now under consideration, I would like to dispose of one branch of the arguments of the defense in this connection, based, I am inclined to believe, on a misconception of a well-recognized rule of construction of statutes arising from the principle of non-retroactivity of law. The defense wanted to say that the definitions, if any, in the Charter would be void on this principle.
The rule denying retroactivity to a law is not that law cannot be made retroactive by its promulgator, but that it should not ordinarily be made so and that if such retroactive operation can be avoided courts should always do that.
The Charter here is clearly intended to provide a court for the trial of offences, if any, in respect of past acts. There cannot be any doubt as to this scope of the Charter and consequently it is difficult for us to read into its provisions any non-retroactivity.
Nor can it be denied that if the promulgator of the Charter was at all invested with any authority to promulgate a law, his authority was in respect of acts which are all matters of the past and already completed.
The real questions that arise for our consideration are:
1. Whether the Charter has defined the crime in question; if so,
2. Whether it was within the competence of its author so to define the crime.
3. Whether it is within our competence to question his authority in this respect.
Article 5 of the Charter, it is said, defines the different categories of crimes. The article in its plain terms purports only to provide for “jurisdiction over persons and offenses . In so doing the Charter says: the following acts .... are crimes coming within the jurisdiction of the Tribunal . . . ." The intention, in my opinion, is not to enact that these acts do constitute crimes but that the crimes, if any, in respect to these acts, would be triable by the Tribunal . Whether or not these acts constitute any crime is left open for determination by the Tribunal with reference to the appropriate law. In my opinion, this is the only possible view that we can take of these provisions of the Charter.
The Potsdam Declaration and the Instrument of Surrender certainly did not contemplate that the Allied Powers would have authority to give, whatever character they might choose, to past acts and then meet such acts with such justice as they might, in the future, determine. It is impossible to read into these instruments any such authority and I cannot for a moment imagine that the Allied Powers would assume such a grave power in violation of the solemn declarations made in them, AND PERHAPS IN DISREGARD OF INTERNATIONAL LAW AND USAGE. I do not see any reason why we should make such an uncharitable assumption against the Allied Powers or against the Supreme Commander when such reading of the Charter is not the only possible reading.
It will be interesting to notice here what Lord Wright says in connection with the Tribunal set up for the trial of the major war criminals of the European Axis countries.
Referring to the Agreement of August 8, 1945, made in London between the Governments of the United Kingdom, of the United States, of the French Republic and of the Union of Soviet Socialist Republics, establishing the Tribunal for the trial and punishment of the major war criminals of the European Axis countries, Lord Wright says:
“The Agreement includes, as falling within the jurisdiction of the Tribunal, persons who committed the following crimes:
“(a) Crimes against Peace, which means in effect, planning, preparation, initiation or waging of a war of aggression.
“( b) War crimes, by which term is meant mainly violation of the laws and customs of war.
“(c) Crimes against Humanity, in particular, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.
“The Tribunal so established is described in the Agreement as an International Military Tribunal. Such an International Tribunal is intended to act under International Law. It is clearly to be a judicial tribunal constituted to apply and enforce the appropriate rules of International Law.
“I understand the Agreement to import:
“( a ) That the three classes of persons which it specifies are war criminals .
“(b) That the acts mentioned in classes (a), (b), and (c) are crimes for which there is properly individual responsibility.
“(c) ( i) That they are not crimes because of the agreement of the four governments.
“(ii) But that the governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law.
“ON ANY OTHER ASSUMPTION THE COURT WOULD NOT BE A COURT OF LAW, but A MANIFESTATION OF POWER."
The same principles apply with equal force in the present case also. We have been set up as an International Military Tribunal. The clear intention is that we are to be “a judicial tribunal” and not “a manifestation of power”. The intention is that we are to act as a court of law and act under international law. We are to find out, by the application of the appropriate rules of international law, whether the acts constitute any crime under the already existing law, dehors the Declaration, the Agreement or, the Charter. Even if the Charter, the Agreement or the Declaration schedules them as crimes, it would only be the decision of the relevant authorities that they are crimes under the already existing law. But the Tribunal must come to its own decision. It was never intended to bind the Tribunal by the decision of these bodies, for otherwise the Tribunal will not be a ‘judicial tribunal’ but a mere tool for the manifestation of power.
The so-called trial held according to the definition of crime now given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in a war. A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more a political than a legal affair, an essentially political objective having thus been cloaked by a juridical appearance. Formalized vengence can bring only an ephemeral satisfaction, with every probability of ultimate regret; but vindication of law through genuine legal process alone may contribute substantially to the re-establishment of order and decency in international relations."
But that is not the only consideration which influences me to the view I am taking of the Charter in this respect. THE CONTRARY VIEW would make the Charter ultra vires.
THE TERMS OF AUTHORITY of the Supreme Commander have been quoted above. These are in the simplest possible form and nowhere expressly authorize the Supreme Commander to define the provisions of international law.
It is contended in this connection that the Moscow Declaration made the intention of the Allied Powers in this respect clear and that there the Allied
Powers clearly proclaimed that “war criminals” would mean and include persons who are now classed as having committed offenses against peace.
THE MOSCOW DECLARATION was released on November 1, 1943 and I could not discover anything in this document which would support this view. The Declaration refers to war criminals stricto sensu. The only reference to others is in the last paragraph which stands thus:
“The above declaration is without prejudice to the case of the major criminals, whose offenses have no particular geographical localisation and who will be punished by the joint decision of the Governments of the Allies."
The document nowhere says who are these “major criminals”. In the earlier parts of the document actual perpetrators of the various cruelties in violation of jus in hello are specifically named; these major criminals may only be the persons responsible for issuing general orders, if any, relating to those cruel actions. But even assuming that the expression was intended to include persons responsible for the preparation of aggressive war, the Declaration does not say that the Allied Powers HAD SCHEDULED them as war criminals irrespective of their legal position in this respect under international law. EVEN IF THE ALLIED POWERS INTENDED TO DO THAT, this, their Declaration alone, will not invest them with any such legal authority, if international law be otherwise. This might have been a declaration of threat on the strength of might; but if the Allied Powers, instead of executing the might, choose to place the matter in the hands of judicial tribunal, by this very fact they express their intention clearly enough that they want to deal with such persons according to law.
It will be pertinent here to notice what Professor Hans Kelsen of the University of California has said regarding the position of the victor in this respect. I am referring to him in this connection as his is the view most favourable to the prosecution. The learned Professor says:
“If the individuals who are morally responsible for this war, those persons who have, as organs of their states, disregarded general or particular international law, and have resorted to or provoked this war, if these individuals as authors of the war shall be made legally responsible by the injured states, it is necessary to take into consideration:
“ 1. That general international law does not establish individual, but collective responsibility for the acts concerned, and “2. That the acts for which the guilty persons shall be punished are acts of state—that is, according to general international law, acts of the government or performed at the government ’ s command or with its authorization."
According to the learned Professor:
“If individuals shall be punished for acts which they have performed as acts of state, by a court of another state, or by an international court, the legal basis of the trial, as a rule, must be an international treaty concluded with the state whose acts shall be punished, by which treaty jurisdiction over these individuals is conferred upon the national or international court." The learned Professor then points out: “if it is a national court, then this court functions, at least indirectly, as an international court. It is national only with respect to its composition in so far as the judges are appointed by one government only; it is international with respect to the legal basis of its jurisdiction.”
The law of a state, says Professor Kelsen, contains no norms that attach sanctions to acts of other states which violate international law. Resorting to war in disregard of a rule of general or particular international law is a violation of international law, which is not, at the same time, a violation of national criminal law, as are violations of the rules of international law which regulate the conduct of war. The substantive law applied by a national court competent to punish individuals for such acts can be international law only. Hence, the international treaty must not only determine the delict but also the punishment , or must authorize the international court to fix the punishment which it considers to be adequate.
According to Professor Kelsen:
“An international treaty authorizing a court to punish individuals for acts they have performed as acts of state constitutes a norm of international criminal law with retrospective force, for the acts were at the moment when they were committed not crimes for which the individual perpetrators were responsible."
With due respect I do not accept all the propositions propounded by the learned Professor in support of the legality of trial and punishment of such criminals. I cannot accept the view that by such a treaty ex post facto law can always be created and applied to the case of such persons. It is, however, not necessary for me to quarrel with this proposition in the present connection. HERE THERE is NO SUCH TREATY; and the terms of authority of the Supreme Commander make it expressly clear that any power conferred on him is not in any way derived from the vanquished through any contractual relationship.
From what has been stated above it seems amply clear that if the ALLIED POWERS AS VICTORS HAVE NOT, UNDER THE INTERNATIONAL LAW, THE LEGAL RIGHT to treat such persons as war criminals, they have not derived any such right by a treaty or otherwise. The Allied Powers have nowhere given the slightest indication of their intention to assume any power which does not belong to them in law. It is therefore pertinent to inquire what is the extent of THE LAWFUL AUTHORITY OF A VICTOR over the vanquished in international relations. I am sure no one in this Twentieth Century would contend that even now this power is unlimited in respect of the person and the property of the defeated. Apart from the right of reprisal, the victor would no doubt have the right of punishing persons who had violated the laws of war. But to say that the victor can define a crime at his will and then punish for that crime would be to revert back to those days when he was allowed to devastate the occupied country with fire and sword, appropriate all public and private property therein, and kill the inhabitants or take them away into captivity. When international law will have to allow a victor nation thus to define a crime at its will, it will, like David Low’s “Peace”, be surprised to find itself back on the same spot whence it started on its apparently onward journey several centuries ago. Perhaps humanity also will feel the same inward surprise though it may be civilized e- nough not to give any outward expression of the same.
When Lord Wright says that THE VICTORS HAVE ACCURATELY DEFINED the crime in accordance with the existing international law, he overlooks the fact that if it is not open to the Tribunal to examine this definition with reference to the existing law, it becomes a definition NOW given by the victor, though it may happen to be a correct definition. In my opinion, such a power is opposed to the principles of international law and it will be a dangerous usurpation of power by the victor, unwarranted by any principle of justice.
While considering the questions whether aggressive war can be denominated an international crime and whether individuals comprising the government or general staff of an aggressor state may be prosecuted as liable for such crime, Dr. Glueck says that the Charter under which the International Military Tribunal at Nuremberg is supposed to operate gives dogmatically affirmative answers to both of the questions. In his view “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; and it may well be that the Tribunal at Nuremberg will deem itself completely bound by the restrictions above quoted” (i. e. , Articles 6 and 7 of the Nuremberg Charter, corresponding to Articles 5 and 6 of the present Charter).
The Tribunal at Nuremberg seems to have deemed itself bound by the so-called definition of the law given in the relevant charter. But in fairness to the prosecution in the case before us it must be pointed out that it does not claim any conclusive character for the present charter in this respect. According to the prosecution “The Charter is conclusive as to the composition and jurisdiction of the Tribunal and as to all matters of evidence and procedure." As to the crimes listed in Article 5, the prosecution submits that “the Charter is and purports to be merely declaratory of international law as it existed from at least 1928 onwards." We are urged by the prosecution to examine this proposition and base our judgment upon it. The prosecution, of course, does not say what we are to do in case we find the international law in this respect to be otherwise.
Assuming that the supposed definition given in the Charter does not represent the correct position under international law, I can understand Dr. Glueck if he means to say that the Charter is the act of the will of the conqueror and therefore must be obeyed by those who are bound to obey such will. But I fad to see how Dr. Glueck can speak of the conqueror having authority so to will. I believe the existing international law nowhere confers on the conqueror any such authority. Neither the belligerent’s rights with respect to the person of any enemy nor the conqueror s rights with respect to such person would cover any such authority. Neither the rights following the military occupation of an enemy territory nor the rights following the conquest of such a territory would confer such an authority on the invader or the conqueror. Whether the accused be treated as prisoners of war or not, they are not legally at the mercy of the invader or the conqueror. Only military necessity seems to invest the invader or the conqueror with very wide power and perhaps it is impossible to set bounds to the demands of such military necessity. But even there it must be remembered that military necessity is not a mere phrase of convenience, but is to be an imperative reality.
A belligerent, besides having the rights over his enemy which flew directly from the right to attack, no doubt also possesses the right of punishing persons who have violated the laws of war, if they fall into his hands. Hall says: To the exercise of the above-mentioned rights no objection can be felt so long as the belligerent confines himself to punishing breaches of UNIVERSALLY ACKNOWLEDGED LAWS. . . . When, however, the act done is not universally thought to be illegitimate .... it may be doubtful whether a belligerent is justified in enforcing his own views to any degree, and unquestionably he ought as much as possible to avoid inflicting the penalty of death, or any punishment of a disgraceful kind." Hall is here speaking of war crimes stricto sensu and even in such cases the belligerent’s own view of the law does not justify his action or will. In my opinion a conqueror does not enjoy any higher right in this respect in international law.
It is also my opinion that an International TRIBUNAL, by whomsoever set up and manned, is not bound by any such expression of the WILL of the conqueror. I need not stop here to examine this question further as in my opinion the Charter does not define the crime but only specifies the acts the authors whereof are placed under the jurisdiction of the Tribunal.
The prosecution refers us to the judgment of the Nuremberg Tribunal in this respect. In delivering the judgment of that Tribunal, Lord Justice Lawrence, referring to the provisions of the Charter establishing that Tribunal, is reported to have observed as follows:
These provisions are binding upon the Tribunal as the law to be applied to the case. The Tribunal will later discuss them in more detail; but, before doing so, it is necessary to review the facts."
Later while considering 'the Law of Charter’ his Lordship said: —
“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 shah be individual responsibility, are set out in Article 6. The law of the Charter is decisive and binding upon the Tribunal."
Coming later to the definition in the Charter, his Lordship said:
It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can 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 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.
His Lordship then said:
“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but it 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 neighbouring 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 ”
According to Lord Justice Lawrence:
“This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concernedHe said: “The General Treaty, for the Renunciation of War of August 27, 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939.
“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.”
The question as to what is international law dehors the Charter and where the law stood after the Pact of Paris will be discussed later. Here we are concerned only with that part of the observations of Lord Justice Lawrence which deals with the obligatory character of the Charter.
I would not arrogate to myself the duty of examining the scope of the other Charter in order to see whether or not it defined war crimes. I would assume that it did so define as was held by the other Tribunal. Assuming that the Charter purported so to define war crimes the question is whether this definition is intra vires.
Lord Justice Lawrence considers that the maxim nullum crimen sine lege has no application to the case as it is not a maxim in limitation of sovereignty but is only a principle of justice.
I am not quite sure if the Constitution of the U. S. A., in its Article 1 Sections 9 and 10 providing that “ no ex post facto law shall be passed by the Congress and “no state shall . . . pass any ex post facto law”, did not limit its sovereignty itself in this respect. The author of the Charter in the case before us derived his authority at least in part from the U. S. A., and, so far as his power of legislation is concerned, it may be subject to this limitation, at least when this power is sought to be supported as delegated by that sovereignty. But let us proceed on the assumption that the characterization of the maxim by Lord Justice Lawrence is correct and let us see how the QUESTION OF SOVEREIGNTY comes in.
Lord Justice Lawrence says: "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 had 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.”
His Lordship continues: "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. ”
According to his Lordship: “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.
Lord Justice Lawrence refers to “ the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered." He again refers to "what any one of the Signatory Powers might have done singly. ’Tt is thus not very clear which sovereignty was in the mind of Lord Justice Lawrence when he made these observations. It may be that His Lordship had in his mind either one or both of the following two sovereignties:
1. The sovereignty of the defeated state.
2. The sovereignty of the victor state.
This portion of the judgment comes under the heading "The Law of the Charter”, and it seems to deal with TWO DISTINCT MATTERS relating to the question of jurisdiction. The first is the question of CREATION OF THE TRIBUNAL and the second is THAT OF DEFINING THE LAW TO BE ADMINISTERED by the Tribunal thus created.
These observations of Lord Justice Lawrence, therefore, involve the following questions:
1. (a) Whether the victor states in the right of their own respective national sovereignties can try and punish PRISONERS OF WAR falling within their custody for War Crimes.
(b) Whether, for this purpose, they can in the right of their own sovereignty
(i) set up a Tribunal for such a trial,
(ii) legislate defining such war crimes.
2. Whether any state (victor or vanquished) in exercise of its right of sovereignty
( a ) can try and punish ITS OWN CITIZENS for war crimes, and ( b ) for this purpose can,
(i) set up a Tribunal for such a trial,
(ii) legislate defining such war crimes.
3. (a) Whether a victor state derives the sovereignty of a defeated state
(0 by reason of the unconditional surrender of the vanquished state,
or by the terms of the surrender, or by anything more.
( b ) If so, whether this acquired sovereignty includes all the rights, ordinary and extraordinary, of the vanquished sovereign.
The pronouncements are not very clear so far as these several questions are concerned. It is not, for example, clear what is intended to be pronounced as “not to be doubted” about any nation’s right. The judgment says, “it is not to be doubted that any nation has the right thus to set up special courts to administer law." If this refers to the question of setting up of special courts, we need not trouble ourselves with it here. If, however, it refers to the right of “defining the law” such “court is to administer”, I respectfully beg to differ from the view thus expressed. International law certainly does not yet recognize any such right in any nation.
The observations of Lord Justice Lawrence seem to contain the following pronouncements:
1. War criminals are within the jurisdiction of:
(a) their own national state.
( b) the belligerent state when they fall within its custody.
2. ( a ) Their national state had power to legislate defining war crime.
(b) By reason of surrender, this power now vests in the victor
3. (a) Any belligerent state within whose custody such persons might come had right to legislate defining their crime.
(b) The combined victor states also consequently have that right.
As I have already noticed there is no quarrel with the first of the above three propositions. But the entire difficulty is with the propositions 3(a) and 2 ( b) as set down above.
No one, I believe, will seriously support the proposition marked 3 ( a ) above. As I have noticed already, prisoners can be tried and punished only for breaches of recognized rules of law . Any power of the nature contemplated in item 3(a) above will obliterate the centuries of civilization which stretch between us and the days of summary slaying of the vanquished.
The questions whether the Charter is or is not “an arbitrary exercise of power on the part of the victor nations, ” and whether it is or is not “the expression of international law existing at the time of its creation” and to that extent is or is not “itself a contribution to international law are not relevant for our present purpose. If the authors of the charter had the right to legislate and GIVE THE LAW WHICH THE TRIBUNAL WOULD BE BOUND TO ADMINISTER, then while administering that law, the Tribunal would have no business to raise such questions. If such authors are ever called upon to justify their action, then only such considerations would be relevant. The question now before us is whether the author or authors of the charter had RIGHT TO LEGISLATE AND GIVE THE LAW defining war crimes for the trial of the prisoners of war in their custody.”
Professor Quincy Wright of the Board of Editors of the American Journal of International Law, in an Article entitled “ The Law of Nuremberg Trial” published in the Journal in January 1947 referring to this part of the judgment says: “Every state does . . . have authority to set up special courts to try any person within its custody who commits war crimes, at least if such offenses threaten its security. It is believed that this jurisdiction is broad enough to cover the jurisdiction given by the Charter.” It is not clear if Professor Wright wants to support even the belligerent’s right to legislate for the purpose of defining ‘ war crimes ’. I hope he did not purport to do any such thing. As I read his view, it seems even to limit the belligerents’ power of trial only to cases when the act over and above being a criminal act under the recognized rule of law, also goes to threaten the security of the belligerent state.
Professor Wright’s reference to the Lotus case and the conclusions drawn therefrom do not, in any way, advance the case of the alleged legislative power of the victor states. Extending criminal jurisdiction is one thing, and extending the criminal law itself by defining crime’ is a different thing. In my opinion, the principle of international law forbids a state from doing this last thing in respect of Prisoners of War in its custody.
A victor state, as sovereign legislative power of its own state, might have right to try prisoners of war within its custody for war crimes as defined and determined by the international law. But neither the international law nor the civilized world recognizes any right in it to LEGISLATE DEFINING THE LAW IN THIS RESPECT to be administered by any court set up by it for the purpose of such trial.
I am further inclined to the view that this right which such a state may have over its prisoners of war is not a right derivative of its sovereignty but is a right CONFERRED ON IT as a member of the international society BY THE international law.
A victor nation promulgating such a Charter is only exercising an authority conferred on it by international law. Certainly such a nation is not yet a sovereign of the international community. It is not the sovereign of that much desired superstate.
Professor Wright suggests a novel source for this legislative power. According to him “Art. 5 of the Moscow Declaration of November 1, 1943 and Art. 2 (6) of the Charter of the United Nations support the idea that the four Powers acting in the interest of the United Nations had the right to legislate for the entire community of nations.”
Indeed occasions may sometimes arise for such desperate efforts]
Article 5 of the Moscow Declaration runs thus: “That for the purpose of maintaining international peace and security pending the re-establishment of law and order and the inauguration of a system of general security, they will consult with one another and as occasion requires with other members of the United Nations with a view to joint action on behalf of the community of nations ."
Article 2 (6) of the United Nations Charter says that the organization shall ensure that non-members act in accordance with the principle of Article 2, so far as may be necessary for the maintenance of international peace and security.
I do not see what is there in these provisions which authorizes such a revolutionary creation of ex post facto international law. Of course, law can also be created illegally otherwise than by the recognized procedures—ex injuria jus oritur: Any law NOW created in this manner and applied WILL perhaps be the law henceforth.
Under international law, as it now stands, a victor nation or a union of victor nations would have the authority to establish a tribunal for the trial of war criminals, but no authority to legislate and promulgate a new law of war crimes. When' such a nation or group of nations proceeds to promulgate a Charter for the purpose of the trial of war criminals, it does so only under the authority of international law and not in exercise of any sovereign authority.
I believe, even in relation to the defeated nationals or to the occupied territory a victor nation is not a sovereign authority.
At any rate the sovereignty is recognized by the civilized world to have been limited in this respect by the international law at least in respect of its power over the Prisoners of War within its custody.
The next question is whether the victor nations derived the sovereignty of the defeated nations by reason of the latter’s defeat and unconditional surrender, and whether a sovereignty thus acquired or derived vested the victor nations with the legislative power in question.
The judgment mentions “the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered." It is not very clear what is the view of Lord Justice Lawrence about the acquisition or the derivation of this “sovereign legislative power” by the victor countries. If his line of approach is dependent on any special factual features of the case before him, namely, that the character and terms of the surrender or of occupation in question vested the victors with the sovereignty of the vanquished state, then very little remains for me to say in this connection excepting that the terms of surrender here in the case before us and the character of occupation did not vest the sovereignty of Japan in the victor nations.
I have quoted the relevant terms of the Potsdam Declaration, as also, of the instruments of surrender. Reference may here be made to clauses 7, 8 and 10 of the instruments. We should also remember that in spite of the limited occupation by the Allied Powers the Government of Japan has all along been allowed to function.
Professor Quincy Wright in supporting this part of the judgment seems to enunciate the following propositions:
1. The derivation of the Tribunal's jurisdiction from the sovereignty of Germany is well-grounded.
( a ) such derivation is supportable on the special factual features of the case.
or (b) as a legal consequence of the surrender.
2. Under International law a state may acquire sovereignty of territory by declaration of annexation after subjugation of the territory if that declaration is generally recognized by the other states of the world.
(a) There is no doubt but that sovereignty may be held jointly by several states.
( b ) (i) The Four Allied Powers assumed the Sovereignty of Germany in order, among other purposes, to administer the country until such time as they thought fit to recognize an independent German Government.
( ii) Their exercise of powers of legislation, adjudication, and administration in Germany during this period is permissible under international law, limited only by the rules of international law applicable to sovereign states in territory they have subjugated.
(Hi) Their powers go beyond those of a military occupant.
It is not very clear whether he too considers this derivation of sovereignty as the result of the special factual features of the German case.
I have already indicated that the factual position in this respect in the case before us is quite different.
As a proposition of international law ‘ that the unconditional surrender transfers the sovereign legislative power of the vanquished state from it to the victor', it has no support in international law as it stood during the relevant war.
As has been warned by Oppenheim “subjugation must not be confounded with conquest, although there can be no subjugation without conquest”. “Conquest is taking possession of enemy territory by military force, and is completed as soon as the territory is effectively occupied."“A belligerent, although he has annihilated the forces and conquered the whole of the territory of his adversary, and thereby brought the armed contention to an end, may nevertheless not choose to exterminate the enemy state by annexing the conquered territory, but may conclude a treaty of peace with the .... defeated state, re-establish its government and hand back to it the whole or a part of the conquered territory. Subjugation takes place only when a belligerent, after having annihilated the forces and conquered the territory of his adversary, destroys his existence by annexing the conquered territory. Subjugation may, therefore, be correctly defined as extermination in war of one belligerent by another through annexation of the former’s territory after conquest, the enemy forces having been annihilated."
I need not pursue the question whether the legal effect of subjugation would be the derivation of the sovereignty of the defeated state by the victor state. In my opinion, even assuming that the victor state becomes the sovereign of the subjugated territory, it is wrong to say that such sovereignty is derived from the defeated state or the defeated people and hence is the continuation of the sovereignty of the defeated state. Even if it is a sovereignty, it is a sovereignty of the victor state now extended to the subjugated territory. If it is a sovereignty at all it is not derived from the vanquished people or the vanquished state—but is acquired IN SPITE of them.
I would not call it a sovereignty of the defeated state at all. That state is non-est, having been annihilated. A new state might have come into existence; but such a state is based entirely on the MIGHT of the conqueror. The sovereignty of the vanquished state, or, more correctly, the sovereignty of which the vanquished state was the depositary is annihilated with its depositary or only remains in abeyance. Indeed the sovereign power is not a mysterious subject which might be served from the state itself; it is only a general personification of the sum total of the conception and activity of the state so far as it has became self-conscious and asserts its functions self-consciously.
Whatever that be, the case before us, is not one of subjugation, though it is a case of complete defeat and unconditional surrender.
It is obvious that mere conquest, defeat and surrender, conditional or unconditional, do not vest the conqueror with any sovereignty of the defeated state. The legal position of the victor prior to subjugation is the same as that of a military occupant. Whatever he does in respect of the vanquished state he does so in the capacity of a military occupant. A military occupant is not a sovereign of the occupied territory.
But even assuming that in international law, a victor state derives the sovereignty of the vanquished state, the former would not have the power claimed for it even in this capacity.
Prisoners of war, so long as they remain so, are under the protection of international law. No national state, neither the victor nor the vanquished, can make any ex post facto law affecting their liability for past acts, particularly when they are placed on trial before AN INTERNATIONAL TRIBUNAL. Their own state might try and punish them in its own national court, either already existing or created specially for the purpose; and, even if we assume that for this purpose, it might create some ex post facto law binding on such national tribunal, it does not follow that it would have been competent to create law for the application by an INTERNATIONAL TRIBUNAL. SO long as the prisoners are placed on trial before an INTERNATIONAL TRIBUNAL, it does not matter whether as prisoners of war, by the victor state, or, as its citizens, by the vanquished state, NEITHER STATE can legislate so as to give any ex post facto law to be applied by that INTERNATIONAL tribunal in order to determine their crime. Such states might have an option in the matter of setting up the tribunal: they might create a national tribunal for the trial. We are not concerned with what they might or might not have done in defining the law in such a case. But as soon as they set up an INTERNATIONAL TRIBUNAL, they cannot create any law
defining the crime for such tribunal.
It may be observed in passing that the Charter of a German Sovereign giving some law for its national court would not, I am sure, be in any extent, a contribution to international law. This question of the scope of legislative power in respect of the trial and punishment of prisoners of war for war crimes will arise for our consideration also in connection with the charges in the present indictment regarding the trial and punishment of the U. S. air pilots by Japan. There, of course, the prosecution denies any such power to the Japanese government.
Mr. Justice Jackson of the United States in his report as Chief of Counsel for the United States in prosecuting the principal war criminals of the European Axis observed:
“We could execute or otherwise punish them without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride."
It is, indeed, surprising that no less a person than Mr. Justice Jackson, in his considered report to no less an authority than the President of the United States, could insert these lines in the Twentieth Century. On what authority, one feels inclined to ask, could a victor execute enemy prisoners without a hearing? I need not stop here to consider what would be the legal position of a victor if we accept the view that by the Pact of Paris war has been renounced as an instrument of national policy rendering such a war a crime and that such a war only entitles the other party to a right of self-defense. Whether the weapon of defense can be of any avail to the victor for any acquisitive or aggressive purpose is a question which we need not consider here. Even apart from any limiting effect of the outlawry of war on the victor’s rights, I do not think that during recent centuries any victor has enjoyed any such right as is declared by Mr. Justice Jackson in his report.
If the victor really had such a right then perhaps it might have been possible for him to give a new definition of a crime in respect of past acts and punish the prisoners as criminals according to such new definition after hearing them if that would ease the conscience of any nation. In that case it would have been mere adaptation of a particular method to the enforcement of an existing right. But I do not see anything anywhere in the existing international law conferring any such power on the victors.
Neither temporary military occupation of a territory nor final acquisition by conquest, if acquisition by war is even now possible, of a territory and subjugation would confer any such rights oh the occupying belligerent or victor over the inhabitants or over the prisoners either taken during the war or after truce. Even under the martial law of the occupant the position of the prisoners and of the inhabitants of the occupied territory is not so helpless.
Whatever view of the legality or otherwise of a war may be taken, victory does not invest the victor with unlimited and undefined power now. Inter
national laws of war define and regulate the rights and duties of the victor over the individuals of the vanquished nationality. In my judgment, therefore, it is beyond the competence of any victor nation to go beyond the rules of international law as they exist, give new definitions of crimes and then punish the prisoners for having committed offense according to this new definition. This is really not a norm in abhorrence of the retroactivity of law : It is something more substantial. To allow any nation to do that will be to allow usurpation of power which international law denies that nation.
Keeping all this in view my reading of the Charter is that it does not purport to define war crimes; it simply enacts what matters will come up for trial before the Tribunal, leaving it to the Tribunal to decide, with reference to the international law, what offense, if any, has been committed by the persons placed on trial.
A view seems to have been entertained in some quarters that as this Tribunal is set up by the victor nations, it is not competent to question their authority in respect of any of the provisions of the Charter establishing the Tribunal. Even the view expressed by Lord Wright in his Article on “ Nuremberg” may bear this construction. Lord Wright in this Article after having quoted the provisions contained in Article 6 of the Nuremberg Charter, observed: “these provisions defined the law to be applied by the Tribunal and were binding on it." Later on he said : “The judges could not, of course, question the competency of their appointment and refuse to apply the definitions of the law laid down in the London Agreement and the Charter. I do not see why questioning any legislation purporting to give definitions of the law would necessarily involve questioning the competency of the judges’appointment. I must confess, I do not see any principle in support of this view.
Those who entertain this view, say: —
1. That “the sole sources of the powers of the judges of the Tribunal are the Charter and their appointments to act under the Charter".
2- That apart from the Charter they have no power at all; and
3. That each judge of this Tribunal accepted the appointment to sit under the Charter and that apart from the Charter he cannot sit at all nor pronounce any order at all.
From these they conclude that this Tribunal is not competent to try the question whether the Supreme Commander has exceeded his mandate, “as the Charter has not remitted such a question to it”.
I sincerely regret I cannot persuade myself to accept this view. I believe the Tribunal, established by the Charter, is not set up in a field unoccupied by any law. If there is such a thing as international law, the field where the Tribunal is being established is already occupied by that law and that law will operate at least until its operation is validly ousted by any authority. Even the Charter itself derives its authority from this international law. In my opinion it cannot override the authority of this law and the Tribunal is quite competent, under the authority of this international law, to question the validity or otherwise of the provisions of the Charter. At any rate unless and until the
Charter expressly or by necessary implication overrides the application of international law, that law shall continue to apply and a Tribunal validly established by a Charter under the authority of such international law will be quite competent to investigate the question whether any provision of the Charter is or is not ultra vires. The trial itself will involve this question. Its specific remittance for investigation by the Charter will not be required.
In national systems it is not inconceivable that an authority competent to set up a Tribunal may not at the same time be competent to legislate. In such a case simply because such an authority sets up a Tribunal by a document wherein it also purports to legislate, the Tribunal would not be incompetent to declare that piece of legislation ultra vires.
As I have pointed out above, a victor nation is, under the international law, competent to set up a Tribunal for the trial of war criminals, but such a conqueror is not competent to legislate on international law. A tribunal set up by such a nation will certainly be a valid body. But if the nation in question purports also to legislate beyond its competency under the recognized rules of international system, that legislation may be ultra vires and I do not see what can debar the Tribunal from examining this question if called upon to apply this legislated norm. It makes no difference in this respect that the same document which sets up the Tribunal also purports to legislate. This fact would not obligate the Tribunal:
1. To uphold the authority of its promulgator in every other respect.
2 To uphold every provision of the document promulgating the Tribunal.
3. To construe the Charter in any particular manner.
After careful consideration of the question I come to the conclusion:
1. That the Charter has not defined the crime in question.
2 ( a ) That it was not within the competence of its author to define any crime.
( b ) That even if any crime would have been defined by the Charter that definition would have been ultra vires and would not have been binding on us.
3. That it is within our competence to question its authority in this respect.
4. That the law applicable to this case is the international law to be found by us.
THE PRINCIPAL QUESTION which thus ultimately arises for our decision is whether the acts alleged in the indictment under the category of “Crimes a- gainst Peace”constituted any crime under the international law.
The acts alleged are “the planning, preparation and initiation”of wars of specified characters.
It is not the prosecution case that “war”, irrespective of its character, became a crime in international law. Their case is that a war possessing the alleged character was made illegal and criminal in international law and that consequently persons provoking such criminal war by such acts of planning, etc., committed a crime under international law.
Two PRINCIPAL QUESTIONS therefore arise here for our decision, namely:
1. Whether the wars of the alleged character became criminal in international law.
2. Assuming wars of the alleged character to be criminal in international law, whether the individuals functioning as alleged here would incur any criminal responsibility in international law.
I would take up the first of these questions first.
For the sake of convenience the question may be considered with reference to four distinct periods, namely:
1. That up to the First World War of 1914.
2. That between the First World War and the date of the Pact of Paris (27 August 1928).
3. That from the date of the Pact of Paris to the commencement of the World War under consideration.
4. That since the Second World War.
So far as the first of the above four periods is concerned it seems to be generally agreed that no war became crime in international life, though it is sometimes asserted that a distinction between “just”and “unjust”war had always been recognized. It may be that international jurists and philosophers sometimes used these distinctive expressions in their learned discourses. But international life itself never recognized this distinction and no such distinction was ever allowed to produce any practical result. At any rate an“unjust” war was not made “ crime” in international law. In fact any interest which the western powers may now have in the territories in the Eastern Hemisphere was acquired mostly through armed violence during this period and none of these wars perhaps would stand the test of being “just war”.
During the second of the above periods Mr. Quincy Wright writing in 1925 on“The Outlawry of War”, said:
“Under present international law “acts of war”are illegal unless committed in time of war or other extraordinary necessity but the transition from a state of peace to a “state of war” is neither legal nor illegal.
“A state of war is regarded as an event, the origin of which is OUTSIDE of international law although that law prescribes rules for its conduct differing from those which prevail in time of peace. The reason for this conception, different from that of antiquity and the Middle Ages, was found in the complexity of the causes of war in the present state of international relations, in the difficulty of locating responsibility in the present regime of constitutional governments and in the prevalence of the scientific habit of attributing occurrences to natural causes rather than to design.
“In so far as wars cannot be attributed to acts of responsible beings, it is nonsense to call them illegal. They are not crimes but evidences of disease. They indicate that nations need treatment which will modify current educational, social, religious, economic, and political standards and methods in so far as they affect international relations.”
Senator Borah, on December 12, 1927, in his Resolution before the United States Senate, stated thus:
“Whereas, war is the greatest existing menace to society, and
“Whereas, civilization has been marked in its upward trend out of barbarism into its present condition by the development of law and courts to supplant methods of violence and force; and
“Whereas, war between nations has always been and still is a lawful institution, so that any nation may, with or without cause, declare war against any other nation and is strictly within its legal rights, and
“Whereas, the overwhelming moral sentiment of civilized people everywhere is against the cruel and destructive institution of war.
Resolved, that it is the view of the Senate of the United States that war between nations should be outlawed as an institution or means for the settlement of international controversies by making it a public crime under the law of nations, and that every nation should be encouraged by solemn agreement or treaty to bind itself to indict and punish its own international war-breeders or instigators and war profiteers under powers similar to those conferred upon our Congress under Article 1, Section 8, of our Federal Constitution, which clothes the Congress with the power to define and punish offenses against the law of nations
So even on the 12th day of December 1927, Senator Borah could say that “War between nations HAS ALWAYS BEEN AND STILL IS a lawful institution and that “any nation may, with or without cause, declare war against other nation and be strictly within its legal rights. . . ."1 fully agree with this view. As the preamble itself shows, Senator Borah, in making this statement, was fully alive to the evil of war.
In the 8th edition of Hall’s International Law (1924), we find the following passages:
“As international law is destitute of any judicial or administrative machinery, it leaves states, which think themselves aggrieved, and which have exhausted all peaceable methods of obtaining satisfaction, to exact redress for themselves by force. It thus recognizes war as a permitted mode of giving effect to its decisions. Theoretically, as it (international law) professes to cover the whole field of the relations of states which can be brought within the scope of law, it ought to determine the causes for which war can be justly undertaken..... it might also not unreasonably go on to discourage the commission of wrongs by subjecting a wrongdoer to special disabilities.
“The first of these ends it attains to a certain degree, though very imperfectly. ... In most of the disputes which arise between states, the grounds of quarrel, though they might probably be always brought into connection with the wide fundamental principles of law, are too complex to be judged with any certainty by reference to them; sometimes again they have their origin in divergent notions, honestly entertained, as to what those principles consist in, and consequently as to the injunctions of secondary principles by which action is immediately governed; and sometimes they are caused by collisions of naked interest or sentiment, in which there is no question of right, but which are so violent as to render settlement impossible until a struggle has taken place. It is not, therefore, possible to frame general rules which will be of any practical value.
“The second end international law does not even endeavour to attain. However able law might be to declare one of two combatants to have committed a wrong, it would be idle for it to affect to impart the character of a penalty to war when it is powerless to enforce its decisions International law has consequently no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation. Hence both parties to every war are regarded as being in an identical legal position, and consequently as being possessed of equal rights."
I need not stop here to express my view of the character of an international community or of international law. Both the expressions are used in specific senses in relation to international life as I would endeavour to show later. But even taking them in unqualified sense, no distinction was made between just and unjust war or between non-aggressive and aggressive war, and no difference in the legal character of a war was based on any such distinction.
In the 6th edition ( 1944) of Oppenheim’s “International Law”, revised by Dr. Lauterpacht of the University of Cambridge, we find the following statement:
“.... So long as war was a recognized instrument of national policy both for giving effect to existing rights and for changing the law, the justice or otherwise of the cause of war was not of legal relevance. The right of war, for whatever purposes, was a prerogative of national sovereignty. Thus conceived every war was just."
Whether the legal position has now changed after the covenants and the Pact of Paris will be examined later. So far as the position unaffected by such covenants and pacts is concerned, it seems amply clear that no war became crime during THE FIRST TWO OF THE ABOVE FOUR PERIODS. War might have been an evil in international life; it might have become even its disease as Mr. Quincy Wright says; but certainly was not a crime.
Before leaving these two periods it would be fair to point out that at least two distinguished international jurists of the present age seem to think that aggressive war became crime in international life during perhaps the second of these periods. I mean Dr. Glueck of the United States of America and Mr. Trainin of the U. S. S. R. Dr. Glueck seems to think that a customary international law developed making aggressive war a crime in international life. According to Mr. Trainin even before the Second World War there were “two tendencies of the historical process”,—one being the collision of imperialistic interests, the daily struggle in the field of international relations and the futility of international law—the tendency reflecting the policy of the aggressive nations in the imperialistic era—and the other, just a parallel and opposite to the former, being the struggle for peace and liberty and independence of nations, tendency in which is reflected the policy of a new and powerful international factor—the socialist state of the toilers, the U. S. S.R.
According to him there was some scope for the introduction of the conception of criminal responsibility in international life in view of the second tendency named above.
In my opinion neither view is sustainable. I would examine them in detail while considering the position during the next period,
Coming now to THE THIRD OF THE PERIODS specified above, namely, THE PERIOD BEGINNING WITH THE PACT OF PARIS, I must say there has already come into existence a formidable array of literature relating to the question. A careful examination of these various authorities would, I believe, yield the following CONFLICTING RESULTS:
1. The Kellogg-Briand Pact made resorting to a war of aggression a delict: (Prof. Hans Kelsen of the University of California)
2. The Pact of Paris failed to make violations of its terms an international crime punishable either by national courts or some international tribunal: (Mr. George A. Finch and Dr. Glueck of the U. S. )
3. ( a) The time has arrived in the life of civilized nations when an
international custom should be taken to have developed to hold aggressive war to be an international crime: (Dr. Glueck)
( b ) Considering international law as a progressive system' the rules and principles of which are to be determined at any moment by examining all its sources, “general principles of law”, “international custom” and teachings of the most highly qualified publicists, no less than “international conventions” and “judicial decisions” there can be little doubt that international law had designated as crimes the acts.... specified in the Charter long before the acts charged against the defendants were committed (Prof. Wright).
4. (a) The Pact of Paris is the evidence of the acceptance by the civilized nations of the principle that war is an illegal thing (Lord Wright).
( b ) This principle so accepted and evidenced is entitled to rank as a rule of international law (Lord Wright).
(c) The Pact of Paris converted the principle that “aggressive war is illegal”from a rule of“natural law”to a rule of “positive law” (Lord Wright and Prof. Wright).
(d) International law, being a living and operative force in these days of widening sense of humanity, has progressed, and AN INTERNATIONAL COURT, faced with the duty of deciding if the bringing of aggressive war is an international crime, is entitled and bound to hold that it is (Lord Wright):
(i) In order that there may be international crime, there must be international community (Mr. Trainin and Lord Wright):
(ii) There is a community of nations, though imperfect and inchoate (Mr. Trainin and Lord Wright):
(in) The basic prescription of this community is the existence of peaceful relations between States (Mr. Trainin and Lord Wright):
(i) War is a thing evil in itself: It breaks international peace (Mr. Trainin and Lord Wright):
(ii) It may be justified on some specified grounds (Lord Wright):
(iii) A war of aggression falls outside that justification, and is, therefore, a crime Lord Wright).
(c) Whatever might have been the legal position of war in an international community prior to the Pact of Paris, the Pact clearly declared it to be an illegal thing (Lord Wright):
6. Since the Moscow Declaration of 1943 and as a result of the same, a new international society has developed. To facilitate this process of development and to strengthen these new ideas, juridical thought is obliged to forge the right form of these new relations, to work out a system of international law and, as an indissoluble part of this system, to dictate to the conscience of nations the problem of criminal responsibility for attempts on the foundations of international relations (Mr.Trainin).
This last proposition of Mr. Trainin really falls to be considered in relation to the fourth period specified above. But I would examine it along with the other propositions formulated by the learned author.
I would first of all proceed to examine the effect of the Pact of Paris. In my opinion the Pact did not in any way change the existing international law. It failed to introduce any new rule of law in this respect.
The question falls to be considered FROM TWO DISTINCT VIEWPOINTS, namely:
1. Whether the Pact made any war a crime in international life?
2. Whether the Pact introduced the question of justification of war in international life and thus, making aggressive war unjustifiable, made such a war a crime or an illegal thing by reason of its own harmful character?
The Pact commonly known as the Kellogg-Briand Pact or the Pact of Paris was signed on the 27th August 1928.
In the preamble, after acknowledging a deep sensibility of their solemn duty to promote the welfare of mankind, the parties announce that:
“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 may be perpetuated;
Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory power which shall hereafter seek to promote its national interest by resort to war, should be denied the benefits furnished by this treaty;
“Hopeful that, encouraged by their example, all other nations of the world will join in this humane endeavor, and by adhering to the present treaty as soon as it comes into force, bring their peoples within the scope of its beneficent provisions, thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy; they have agreed to the following articles:
"Article 1 . 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, and renounce it as an instrument of national policy in their relations with one another.
"Article 2. 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.
"Article 3. The present treaty shall be ratified by the High Contracting Parties, in accordance with their respective constitutional requirements, and shall take effect as between them as soon as all their several instruments of ratification shall have been deposited at Washington.
"This Treaty shall, when it has come into effect as prescribed in the preceding paragraph, remain open as long as may be necessary for adherence by all the other powers of the world.”
It will be profitable to have a brief sketch of the history of the Pact.
I would start from the ABORTIVE Geneva Protocol of 1924. In the preamble of this Protocol, the parties declared themselves to be animate by the firm desire to ensure the maintenance of general peace and the security of nations, whose existence, independence or territories may be threatened, purported to recognize the solidarity of the members of the international community, and asserted“ that a war of aggression constituted a violation of this solidarity and was an international crime”. The purpose of the Protocol was declared to be the realization of the reduction of the national armaments to the lowest point consistent with national safety, the enforcement by common action of international obligations. THE PROTOCOL WAS NEVER RATIFIED by the several states, and consequently, never came to have any legal effect. In these circumstances, the assertion in this document that aggressive war is international crime, produced no legal consequences. But it might have given birth to the idea of condemning
aggressive war in international life.
On the 6th September 192?, the representative of the Netherlands, in the 8th Assembly of the League of Nations, put forth a draft resolution in taking up the study of the fundamental principles of the Geneva Protocol again. The leading opponents of the Geneva Protocol had been Great Britain and the self- governing Dominions of the British Crown. This opposition continued, and this attempt at revival failed.
During this Eighth Session of the League Assembly, however, on the 24th September 1927, the following POLISH RESOLUTION was adopted:
“Recognizing the solidarity which unites the community of nations;
“Being inspired by a firm desire for 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;
“Considering that a solemn renunciation of all wars of aggression would tend to create an atmosphere of general confidence, calculated to facilitate the progress of the work undertaken with a view to disarmament:
“l. That all wars of aggression are, and shall always be, prohibited.
“2. That every pacific means must be employed to settle disputes of every description which may arise between states."
It may be noted that this Resolution already contained the two features of the Pact of Paris, namely:
1. A renunciation of a certain kind of war;
2. An undertaking not to seek the settlement of international disputes by other than pacific means.
At the last plenary session of the Sixth International Conference of American States, which sat at Havana from the 16th January to the 20th February 1928, the Mexican Delegate introduced a resolution to the effect that:
1. All aggression is considered illicit and as such is declared prohibited.
2. The American States will employ all pacific means to settle conflicts which may arise between them.
This resolution was accepted at the conference.
In the meantime, France was thinking of celebrating the tenth anniversary of the entry of the United States into the General War. The date fell on the 6th April 1927. Monsieur Briand met Professor James T. Shotwell on the 22nd March, who formulated to him the idea of renunciation of war as an instrument of national policy. Following his suggestion, Monsieur Briand sent a personal message to the American people, suggesting that France and the United States might celebrate the occasion by subscribing publicly to some mutual engagement tending to outlaw war as between these two countries. He interpreted the American slogan “to outlaw war” as meaning “the renunciation of war as an instrument of national policy.
This gave rise to correspondence between Monsieur Briand and Mr. Kellogg. On the 1st June 1927, Briand transmitted to Kellogg a draft treaty of his own, consisting of a preamble and three articles. This was intended only to be a bilateral instrument. These three articles eventually reappeared as the three articles of the Pact signed on the 27th August 1928, with little change of the text, apart from what was required to alter the same into a multilateral one.
In the meantime, the then existing Franco-American Arbitration Treaty of 1908, which was due to expire on the 27th February 1928, was replaced by a new treaty, duly signed on the 6th February 1928, containing a new preamble, with a declaration to the effect that the two parties were:
“Eager by their example not only demonstrate their condemnation of war as an instrument of national policy in their mutual relations, but also to hasten the time when the perfection of international arrangements for the pacific settlement of international disputes shall have e- liminated forever the possibility of war among any of the powers of the world.”
As regards the other treaty, Mr. Kellogg, in his note of the 28th December 1927, suggested that the treaty for the renunciation of war, proposed by Monsieur Briand, should not be merely bilateral, but multilateral.
There followed a conflict. The French Government insisted that, if the treaty was to be multilateral, the terms proposed by Monsieur Briand should be qualified; the American Government insisted that the text of the Pact, even in case of its being made multilateral, should be as in the proposed draft. Eventually the French Government accepted a suggestion from the American Government that the two governments should jointly submit to the Governments of Germany, Great Britain, Italy and Japan, the correspondence exchanged between them since June. The U. S. S. R. was excluded up to this stage.
In the third phase, Mr. Kellogg, on the 13th April 1928, issued a circular letter to the German, British, Italian, and Japanese Governments, submitting to these governments the draft of a multilateral treaty to be signed by all the surviving great powers except the U. S. S. R. The two substantive articles of this draft were identical with those of Briand’s draft of the preceding June, except some verbal change making it multilateral.
On the 20th April, the French Government circulated to the same powers an alternative draft in which the two substantive articles were expanded to five, and a number of qualifications and provisos were introduced in precise terms. This French draft sought to bring to a point the various provisos, interpretations, and understandings that had been put forward on the French side in the course of the Franco-American correspondence.
On the 29th April, Mr. Kellogg dealt with these French considerations
in a speech delivered before the American International Law Association, to demonstrate that the French desiderata could be satisfied within the framework of the draft circulated by him. This he did, not only to his immediate audience, but to the governments and to the world at large. These interpretations were the turning point of the whole transaction. The British, the Italian, and the Japanese Governments had before them Kellogg’s interpretative exposition of the 29th April 1928, before they had dispatched their replies to Kellogg’s note of the 13th April.
I need not stop here to examine the long series of correspondence that followed after this. Eventually, the British Government accepted Kellogg’s proposal of the 13 th April, as read together with his speech of the 29th, in a long and reasoned note dated the 19th May 1928. Further, the British Government suggested that Mr. Kellogg’s invitation should be extended to the British self governing Dominions and to India, and postulated an understanding which came to be nicknamed as the “British Monroe Doctrine”. Mr. Kellogg promptly acted upon the suggestion of extending an invitation to the Governments of the Dominions and India, and received favourable replies from them all by the middle of June. As regards the postulate, the British Government did not either demand that it should be incorporated in the text of the treaty or formulate it in so many words as a British reservation. They did, however, reassert this postulate in a note of the 18th July 1928, in the act of accepting the treaty re-submitted by Mr. Kellogg in its definitive form; and on the 6th August they forwarded copies of the two notes of the 19th May and the 18 th July to the Secretary General of the League of Nations at Geneva, with a request that they should be circulated to the governments of other states members.
The postulate in question stood thus:
“The language of Article 1, as to the renunciation of war as an instrument of national policy, renders it desirable that I should remind Your Excellency that there are certain regions of the world, the welfare and integrity of which constitute a special and vital interest for our peace and safety. His Majesty’s Government have been at pains to make it clear in the past that interference with these regions cannot be suffered. Their protection against attack is to the British Empire a measure of self-defence. It must be clearly understood that His Majesty’s Government in Great Britain accept the new treaty upon the distinct understanding that it does not prejudice their freedom of action in this respect. The Government of the United States have comparable interests, any disregard of which by a foreign power they have declared that they would regard as an unfriendly act. His Majesty’s Government believe, therefore, that in defining their position they are expressing the intention and meaning of the United States Government. ” On the 23rd June 1928, Mr. Kellogg dispatched another circular note to the several governments, quoting therein the interpretative paragraphs from his speech of the 29th April. With this note the draft treaty was re-submitted with no change in the text of the articles, but with a modification in
the preamble postulating “that any signatory power which” should thereafter “seek to promote its national interests by resort to war should be denied the benefits furnished by this treaty”.
The treaty was accepted by the various governments in this form.
Before the Senate of the United States ratified the Pact, Mr. Kellogg often appeared before the Senate Committee on Foreign Relations, and in the colloquies between the Secretary of State and individual members of the committee, most of the controversial points were brought out. On the question whether the terms of the treaty were affected by the previous correspondence between the signatory powers, Mr. Kellogg stuck to the opinion that there was nothing in any of those notes that was not contained, explicitly or implicitly, in the treaty itself. On the question of self-defense, Mr. Kellogg declared that "the right of self-defense uias not limited to the defense of territory under the sovereignty of the state concerned, and that under the treaty, each state would have the prerogative of judging for itself, WHAT ACTION THE RIGHT OF SELF-DEFENSE COVERED and when it came into play, subject to the risk that this judgment might not be endorsed by the rest of the world. The United States must judge and it is answerable to the public opinion of the world if it is not an honest defense; that is all.” This is Mr. Kelloggg’s own statement.
THIS IS HOW THE PACT OF PARIS CAME INTO BEING and what it was intended to convey by its authors.
The account given above is substantially taken from that given by Professor Toynbee. It indicates that the parties thereto intended to create by this Pact only a CONTRACTUAL OBLIGATION. Its originators did not design it for the entire Community of Nations. There were several reservations introduced by the several parties for their respective interests. This is compatible with contractual obligations, but not with law. No doubt it was a multilateral treaty or pact. But though a law can be created only by a multilateral treaty, every multilateral treaty does not create law. A rule of law, once created, must be binding on the states independently of their will, though the creation of the rule was dependent on its voluntary acceptance by them. THE OBLIGATION of this Pact, however, always remains DEPENDENT ON THE WILL OF THE STATES, in as much as it is left to these states themselves to determine whether their action was or was not in violation of the obligation undertaken by the Pact.
Apart from any other consideration, the single fact that war in self-defense in international life is not only not prohibited, but that it is declared that EACH STATE RETAINS “THE PREROGATIVE OF JUDGING for itself WHAT ACTION the right of self-defense covered and when it came into play” is, in my opinion, sufficient to take the Pact out of the category of law. As declared by Mr. Kellogg, the right of self-defense was not limited to the defense of territory under the sovereignty of the state concerned.
Considerations relevant for the determination of the LEGAL CHARACTER of rules of conduct obtaining in society are:
1. That only through final ascertainment by agencies other than the parties to the dispute can the law be rendered certain; it is not rendered so by the ipse dixit of an interested party. Such certainty is of the essence of law.
2. That it is essential for the rule of law that there should exist agencies bearing evidence of or giving effect to the imperative nature of law.
THE LAW’S EXTERNAL NATURE may express itself either in the fact that it is a precept created independently of the will of the subject of the law, or that no matter how created, it continues to exist in respect of the subjects of the law independently of their will.
The Pact of Paris as explained by Mr. Kellogg and as understood and accepted by the parties thereto would not stand these tests. The reservation of the right of self-defense and self-preservation in the form and to the extent explained by Mr. Kellogg would take the Pact out of the category of a rule of law.
It must also be remembered that in the present state of the international life this reservation cannot be lightly dealt with. At the present stage of international community, if it can be called a community at all, this right of self- defense or self-preservation is even now a fundamental right and follows from the very nature of international relations. The whole of the duties of states are normally subordinate to this right.
“Where law affords inadequate protection to the individual, he must be permitted, if his existence is in question, to protect himself by whatever means may be necessary, and it would be difficult to say that any act not inconsistent with the nature of a moral being is forbidden, so soon as it can be proved that by it, and it only, self-preservation can be secured. But the right in this form is rather a governing condition, subject to which all rights and duties exist, than a source of specific rules, and properly perhaps it cannot operate in the latter capacity at all. It works by suspending the obligation to act in obedience to other principles. There are circumstances falling short of occasions upon which existence is immediately in question, in which, through a sort of extension of the idea of self-preservation to include self-protection against serious hurt, states are allowed to disregard certain of the ordinary rules of law in the same manner as if their existence were involved.
“The right of self-preservation in some cases justifies the commission of acts of violence against a friendly or neutral state, when from its position and resources it is capable of being made use of to dangerous effect by an enemy, when there is a known intention on his part so to make use of it, and when, succeed, either through the helplessness of the country or by means of intrigues with a party within it.
“States possess a right of protecting their subjects abroad.”
RIVIER gives an account of this right of self-defense or self-preservation thus:
"These rights of self-preservation (conservation, respect, independence and mutual trade), which can all be carried back to a single right of self-preservation, are founded on the very notion of the state as a person of the law of nations. They form the general statute (loi) of the law (droit) of nations, and the common constitution of our political civilization. The recognition of a state in the quality of a subject of the law of nations implies ipso jure the recognition of its legitimate possession of those rights. They are called essential, or fundamental, primordial, absolute, permanent rights, in opposition to those arising from express or tacit conventions, which are sometimes described as hypothetical or conditional, relative, accidental rights."
“When”, RIVIER says, “a conflict arises between the right of self-preservation of a state and the duty of that state to respect the right of another, the right of self-preservation overrides the duty. PRIMUM VIVERE. A man may be free to sacrifice himself. IT IS NEVER PERMITTED TO A GOVERNMENT TO SACRIFICE THE STATE of which the destinies are confided to it. The government is then authorized, and even in certain circumstances bound, to violate the right of another country for the safety of its own. That is the excuse of necessity, an application of the reason of state. It is a legitimate excuse.”
According to KAUFMANN, the state is the instrument of an ideal which can justly claim the subjection of its members to an imposed command. That ideal is self-preservation and self-development in history in a world of competing physical forces represented by other states. This ideal can be ultimately fulfilled only by physical and moral force on the part of the state; it can be fulfilled only by enlisting all the physical and moral powers of its members. The essence of the state is power, as revealed in victorious war.
According to HEGEL, the relation of states is one of independent entities which make promises, but at the same time stand above their promises. Nothing done in the interest of the preservation of the state is illegal.
There are writers who support the view that there is nothing higher than the INTEREST OF EACH OF THE PARTIES AS JUDGED BY EACH PARTY HIMSELF. If the other party is unwilling to give in, then only war can decide whose interest is legally stronger. This, according to them, is not the denial of law, but the only legal proof possible in international life.
WESTLAKE, who takes a more restricted view of the right says:
“What we take to be pointed out by justice as the true international right of self-preservation is merely that of self-defense. A state may defend itself by preventive means if, in its conscientious judgment necessary, against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended. In so doing, it will be acting in a manner intrinsically defensive, even though externally aggressive. In attack, we include all violation of the legal rights of itself or of its subjects, whether by the offending state or by its subjects without due repression by it or amply compensation, when the nature of the case admits compensation. And by due repression we intend such as will effectually prevent all but trifling injuries (de minimis non curat lex), even though the want of such represssion may arise from the powerlessness of the government in question. The conscientious judgment of the state acting on the right thus allowed must necessarily stand in the place of authoritative sanction, so long as the present imperfect organization of the world continues ."
THESE DIFFERENT VIEWS OF THE RIGHT OF SELF-DEFENSE ARE NOT OF MUCH consequence to us for our present purposes. What is necessary for us to notice is that the conception of aggression being only the complement of that of self- defense, so long as the question whether a particular war is or is not in self- defense remains unjusticiable, and is made to depend only upon the “conscientious judgment” of the party itself, THE PACT FAILS TO ADD ANYTHING TO THE EXISTING LAW. It only serves to agitate the opinion of the world, and the risk involved in its violation lies only in rousing an unfavourable world opinion a- gainst the offending party. Nothing can be said to be “law” when its obligation is still for all practical purposes dependent on the mere will of the party.
Professor Lauterpacht points out that “the question of the fulfillment of the Pact of Paris has been treated as non-justiciable matter as the result of the determination of its principal signatories to remain the sole judges whether a case for self-defense (that is for disregarding the object of the treaty) has arisen”. The question is undoubtedly of the highest importance for the state concerned, but, as Professor Lauterpacht very rightly points out, it is at the same time par excellence a question capable of judicial cognizance. The claim that it should be removed from the purview of judicial determination is not an illustration of non-justiciability of important matters, but a controversial interpretation calculated to reduce the value of the Pact of Paris as a legal instrument.
The question before us, however, is not whether the fulfillment or nonfulfillment of the Pact was capable of judicial cognizance, but WHETHER IT WAS SO MADE BY THE PARTIES. Remembering that the question is entirely dependent upon the Covenant of the Parties—upon the meaning of the Parties to the Covenant, if the Parties themselves intended to give it a particular meaning or have understood and acted upon it in a particular way, it is not open to us now to ascribe any other meaning to it.
The learned Professor suggests that probably the view as to the impossibility of judicial determination of the recourse to force in self-defense is due to the confusion of two different aspects of this question. There is, first, the actual use of force when a state believes its life and vital interests to be endangered beyond possibility of redress if immediate action is not taken, when, in the words of the classical definition, a state believes that there is a necessity for action which is instant, overwhelming, and leaving no choice of means and no moment for deliberation. It is of the essence of the legal conception of self-defense that recourse to it must, in the first instance, be a matter for the judgment of the state concerned. But this is no reason why is should not remain justiciable to see if the state really had any occasion so to believe—why the legitimacy of the action taken should not be justiciable.
It is rightly pointed out that:
“It is not the right of self-defense which threatens to introduce the principal element of disintegration into the General Treaty for the Renunciation of War. The possible element of disintegration lies in the assertion that recourse to self-defense is not amenable to judicial determination.”
If this were the correct interpretation of the Treaty, then, it is admitted that the result would be to deprive it of its legal value as a means of preventing war. The Treaty would stamp as unlawful such wars only as the belligerents might openly declare to be undertaken with the intention of aggression. It could not be described as rendering unlawful wars which States, fully conscious of the moral and political implications and risks of their action, honestly declared to be undertaken in repelling a danger, actual or threatened, to their vital interests. It would be immaterial that, under this interpretation, discretion in the exercise of the right of self-defense would be subject to the general legal requirement of good faith in the performance of treaty obligations. Various systems of law contain provisions which expressly refer to the requirement of good faith. It is the elimination of any objective legal authority endowed with the competence to ascertain whether the duty of good faith has been complied with, which would largely be destructive of the legal object of the Treaty so interpreted.
Professor Lauterpacht himself, however, is of the opinion that there is nothing in the declaration or reservations referring to the Pact for Renunciation of War, and concerning the right of self-defense, which necessitates the assumption that the signatories of the Treaty intended to adopt this interpretation which would deprive the Treaty of most of its legal value. He says:
“It is possible, perhaps probable, that the intention was merely to reaffirm a principle necessarily valid without any express declaration, namely, that implied in the first-mentioned interpretation of the nonjusticiability of the right of self-defense."
This may be so; or from what has been said of the nature of this right the States might have thought otherwise. We are not much concerned with the question what should or could have been done. IF, AS A MATTER OF FACT, THE QUESTION WAS KEPT TO BE DETERMINED BY THE STATE CONCERNED, THE VALUE OF THE PACT MUST BE APPRAISED WITH REFERENCE TO THIS FACT, and not with reference to what the fact might have been. Even if the Parties did so under a misapprehension or misconception of the scope of self-defense, it is not open to us to go behind it so far as the effect of the Pact is concerned. The prosecution in the case before us very fairly admitted in its summation that “when the Kellogg-Briand Pact was signed, it was stipulated that it did not interfere with the right of self-defense, and that each nation was to be the judge of that question.”
In my opinion, it would not be correct to say that the parties to the Pact intended to reserve for their own judgment only the question of immediate action. The parties themselves never understood the Pact in that way, and, I believe, Mr. Kellogg himself made it amply clear what the Pact was intended by the parties to mean in this respect.
Professor Lauterpacht points out the principal difficulty to be that there is no machinery provided in the Pact for a legal regulation of the recourse to self-defense. Such machinery exists in the Covenant of the League of Nations. According to him, the Council and the Assembly of the League provide a possibility for evolving not only a moral, but also a legal judgment on the observance of the provisions of the Covenant as to recourse to war. It should, however, be remembered that the League of Nations was not an organization for all nations, and the organization itself provided for withdrawal of nations from it. The United States was no party, and Japan withdrew and the U. S. S, R. became a member after her withdrawal. Further, covenants prior to the Pact of Paris had reference only to a procedure to be followed in coming to war; these did not affect the legality or otherwise of the war itself.
In interpreting the Pact, we must not in any way be influenced by the fact that we are called upon to interpret it in a case against a vanquished people. Our interpretation must be the same as it would have been had the question come before us prior to any decisive war. With international law still in its formative state, great care must be taken that the laws and doctrines intended to regulate conduct between state and state do not violate any principles of decency and justice. History shows that this is a field where man pays dearly for mistakes. Those who feel interested in these trials, not for retaliation, but for the future of world peace, should certainly expect that nothing is done here which may have the effect of keeping the hatefire burning.
The function of law is to regulate the conduct of parties by reference to rules whose formal source of validity lies, in the last resort, in a precept IMPOSED FROM OUTSIDE.
Within the community of nations, this essential feature of the rule of law is constantly put in jeopardy by the conception of the Sovereignty of States which deduces the binding force of international law from the will of each individual member of the international community.
The inquiry involved in the consideration of the question raised in the case before us is at the vey start confronted with the doctrine of sovereignty. The same doctrine confronts us in our inquiry as to the question of limitation of the function of law in the settlement of international disputes.
The theory of the sovereignty of states may reveal itself in international law mainly in two ways:
First, as the right of the state to determine what shall be for the future the content of international law by which it will be bound, Second, as the right to determine what is the content of existing international law in a given case.
As a result of the first:
1. A state is not bound by any rule unless it has accepted it expressly or tacitly.
2. In the field of international legislation, unanimity and not mere majority is essential.
The second aspect connotes that the state is to be the sole judge of the applicability of any individual rule to its case.
So long as the states retain this right in respect of any rule, that rule, in my opinion, does not become law in the ordinary sense of the term. Even if we choose to give it the name law , it will only be so in a specific sense, and its violation leads us nowhere. Its violation does not become a crime for the simple reason that none but the alleged defaulter can say whether it has been violated.
The view I take of the legal effect of the Pact makes it unnecessary for me to consider the various adverse comments made on it. It is sometimes said that the Pact was designed to be a perpetual guarantor of the status quo and thus, by it, an unstable and unjustifiable status quo, was sought to be erected in 1928.
We need not proceed to examine these criticisms; perhaps they are correct. At least Mr. Justice Jackson of the U.S.A. in his summing up of the case against the German War Criminals at the Nuremberg Trial lent much support to this view by refusing to go behind the state of affairs in Europe existing in a certain specified year. He would not allow any justification to come in from any prior period. But these criticisms have no bearing on the question before us. If otherwise law, such shortcomings as are propounded through these comments would not have changed the character of the Pact as law.
In order to introduce the conception of crime in international life, it is essential that there would be an INTERNATIONAL COMMUNITY brought under the reign of law. But, as yet, there is no such community.
The expressions “International Law” and “International Community” are both used in relation to the existing international life only in some specific sense.
I have elsewhere discussed the character of international community. No doubt there is such a community in a sense, but to say that it is a COMMUNITY UNDER THE REIGN OF LAW is only to extend the meaning of both law and community so as to enable them to cover some strange fields.
Apart from the domain regulated by expressly accepted international obligations, there is no international community. As these obligations exist only in the limited sphere of the expressly recognized partial community of interests, the individual interests of each state must always remain the guiding consideration.
Modern international law was developed as a means for regulating external contacts rather than as an expression of the life of a true society .
Maine, writing before the necessity for an international constitutional system became evident, uses harsh language. He calls it an Eighteenth Century superstition, a superstition of the lawyers’ seized upon and promulgated by philosophers, in their eagerness to escape from what they deemed a superstition of the priests”.
It is the misfortune of the international lawyers, not their fault, that the confusions and perplexities of our time should have excited false hopes and led to a revival of superstition and even to the promulgation of what may not unfairly be described as substitute religions in legal wrappings.
On a careful consideration of THE NATURE AND THE SCOPE OF THE OBLIGATIONS ASSUMED BY THE STATES UNDER THE PACT OF PARIS, I have arrived at the conclusion that the pre-existing legal position of war in international life remained unaffected. The only effect produced by the Pact is the possible INFLUENCING OF THE WORLD OPINION against the offending belligerent and thereby developing the law-abiding sentiment as between states. However insignificant this effect may appear to some writers, men of very high position and authority attached much importance to it. Lord Parker of Waddington, one of the Lords of Appeal, in the debate of March 19, 1918, in the House of Lords on the League of Nations, remarked:
“One thing only I fear, and that is that the movement in favour of the League of Nations runs some risk by reason of the fact that its advocates are in somewhat too great a hurry. They are devoting their attention to the details of the superstructure rather than to the stability of the foundation.”
He was speaking on the schemes for an international tribunal and an international police force. After pointing out that the schemes were based upon a false analogy between municipal and international law, Lord Parker said: “Every sound system of municipal law, with its tribunal and organized police, is a creation of historical growth, having its roots far in the past if we attack that part of the problem at first, I have very serious fears that the whole structure that we are trying to build may fall about our ears. It is a very serious matter to ask great nations in the present day to agree beforehand to the arbitrament of a tribunal consisting of representatives of some two dozen or three dozen states, many of whom may be indirectly interested in casting their votes on this side or on that.”
He pointed out that the only sound course was to recognize that lawabid- ing sentiment as between states was still only in the embryonic stage. The right method of approach was to concentrate on mobilizing sentiment and opinion against war itself, as anti-social conduct, a crime in violence against the community. Professor Zimmern sums up the speech saying that on the basis of embryonic world citizenship, Lord Parker builds a structure more firmly grounded, if less imposing, than that of the legalists. It is the organization of the hue and cry and nothing more. This is a stage preceding the stage of reign of law and is one without which no reign of law is possible.
Some such consideration might have prevailed with the parties to the PACT OF PARIS which induced them to leave the Pact where it now stands. Perhaps this is all that was thought possible and advisable in the present rudimentary stage of the world community. Perhaps much expectation was based on the assumption that a country does not lightly throw away its fair fame— that national reputation is an asset that is generally high prized by modern states.
The possibility of influencing the world opinion one way or the other does not seem to be looked upon as a negligible factor in the present day international life, At least the nations seem to attach much value to this opinion and propaganda for this purpose is daily gaining in importance in that life.
It will be of some interest to notice in this connection what M. Briand himself said about this matter while welcoming the first signatories of the Pact.
“It may be objected, ” Briand said, “that this pact is not practicable; that it lacks sanctions. But does true practicability consist in excluding from the realm of facts THE MORAL FORGES, amongst which is that of public opinion ? In fact, the state which would risk incurring the reprobation of all its associates in the pact would run the positive risk of seeing a kind of general solidarity, gradually and spontaneously directed against it, with the redoubtable consequence which it would soon feel. And where is the country, signatory to the pact, which its leaders would assume the responsibility of exposing to such a danger?” (vide Ex. 2314A in this case).
The same view of its sanction was taken in 1929, by Mr. Stimson, the then Secretary of State of the United States of America, in a statement made public in which he denied the British argument that as between the Signatory States ‘there has been in consequence a fundamental change in the whole question of belligerent and neutral rights’, and declared that “its efficacy depends solely upon the PUBLIC OPINION of the world and upon the conscience of those nations who sign it.”
I would now take up the remaining question in relation to the Pact, namely, whether, THOUGH THE PACT OF PARIS DID NOT DECLARE ANY WAR TO BE A CRIME, ITS EFFECT WAS TO DEMAND JUSTIFICATION for a war in international life and thus to render any war that would not be justifiable a crime or an illegal thing by its very nature.
This is Lord Wright’s view and it requires a serious consideration.
As I understand him, Lord Wright wants to say that as soon as by the Pact of Paris the signatory nations renounced war as an instrument of national policy, it no longer remained within the right of any nation to wage any war; war as a right was thus banished from international life. If after this any nation should think of war, it must justify its action. Otherwise the nation commits a crime, a war by its very nature involving criminal acts. A war can be justified only if it is necessitated by self-defense. Hence an aggressive war being a war which is not in self-defense, is unjustifiable and consequently a crime.
Perhaps this would have been so had the Pact been unqualified by any reservation. The whole difficulty is that the Pact of Paris by leaving the question what is war in self-defense to be determined by a Party itself, subject only to the risk of an adverse world opinion, rendered its effect absolutely nugatory in this respect. In my opinion, when by any rule the Party itself is allowed to remain the sole judge of the justifiability of any action taken by it, the action still remains without the province of any law requiring justification and its legal character remains unaffected by the so-called rule.
As I have already noticed, Dr. Lauterpacht inclines to the view that the Pact should be taken to mean that war as an instrument of national policy is given up, subject only to the right of self-defense. The party claiming this right may take action on the strength of his own judgment, but the existence or otherwise of this right is justiciable by others. This is also the contention of the Prosecution in the present case.
Similar seems to be the opinion of Mr. Quincy Wright. After pointing out how in the earlier ages the concept that war is a suitable instrument of justice prevailed subject only to certain limitations upon the application of this concept, Mr, Wright says:
“The covenant with hesitation, and the Pact of Paris with more firmness, proceed upon a different hypothesis—that war is not a suitable instrument for anything except defense against war itself, actual or immediately threatened. Thus, under these instruments, the tests of 'just war' have changed from a consideration of the subjective ends at which it is aimed, to a consideration of the objective conditions under which it is begun and is continued."
He points out how with the post-war efforts at world organization, the jus ad bellum becomes the predominating feature of international law, with a concept which no longer attempts to distinguish between the justice or the injustice of the belligerent’s cause, but instead, attempts to distinguish between the fact of aggression and the fact of defense,
I have already given my reason why I could not accept the view of Dr. Lauterpacht in this respect. Mr. Quincy Wright only says that the test provided is a consideration of the objective conditions instead of the subjective ends. But to whom is this consideration left? Mr, Wright does not give any decisive answer to this question. I have already given my view of this question and in my opinion this is the crucial question so far as the present matter is concerned.
The right of self-defense referred to by the various states in relation to the Pact of Paris is certainly not the same as the right of private defense given by a national system against criminal acts, as is contended by the Prosecution in the present case. It is the right inherent in every sovereign state and implied by the sovereignty of the state. It is not the right which comes into existence by some act of violence of an opponent. I have already quoted from authorities to show the scope of this right and its fundamental character. It is the very essence of sovereignty and so long as sovereignty remains the fundamental basis of international life, IT CANNOT BE AFFECTED BY MERE IMPLICATION.
The proposition that the question of interpretation of a treaty is a matter justiciable in international law need not be denied. At the same time the right of self-defense or self-preservation is equally a fundamental matter in international life. Such a right cannot be said to have been limited in any way by implication. If the right was non-justiciable for the purposes of international law at the date of the Pact, it must be left still a non-justiciable matter. The Pact of Paris did not change the legal position in this respect.
There is certainly a great deal of difficulty in reconciling the uncompromising claims of national sovereignty in international relations with the growing necessities dictated by political developments in international relations and by demands of the growing public consciousness and opinion of the world. But the solution of this difficulty does not lie in staging trials of this kind only.
In international law, unlike municipal law, the general justiciability of disputes is no part of the existing law; it is in the nature of a specifically undertaken and restrictively interpreted obligation. Accordingly in international law, when the question arises whether any actual dispute is justiciable or not, the proper procedure is necessarily to inquire whether the contesting states have in regard to that particular dispute undertaken to accept the jurisdiction of an international tribunal.