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Tokyo Judgment: Opinion Judge Pal/india

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    These are the pages extracted from the book: Roling B.V.A. & Ruter C.P., eds, The Tokyo Judgment The International Tribunal for the Far East (I.M.T.F.E.) 29 April 1946 12 November 1948, APA, University Press Amsterdam, 1977, pp. 545, 551-570, 577,948-950,1144-1145. Structure of a page is [chapter heading or running title], then text, and after, [page number].

These are the pages extracted from the book: Roling B.V.A. & Ruter C.P., eds, The Tokyo Judgment - The International Tribunal for the Far East (I.M.T.F.E.) 29 April 1946 - 12 November 1948, APA, University Press Amsterdam, 1977, pp. 545, 551-570, 577,948-950,1144-1145. Structure of a page is [chapter heading or running title], then text, and after, [page number].


vations. It m b that His Lordship had in his mind either n r 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 ms under the heading "The Law of the Charter", and it sms 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 b the Tribunal thus created.

Thes observations of Lord Justice Lawrence, therefore, involve the following questions:

1. () Whether the victor states in the right f their own respective national sovereignties n try and punish prisoners f war falling within their custody for War Crimes;

(b) Whether, for this purpose, they n in the right of their own sovereignty

(i) set up Tribunal for suh trial,

(ii) legislate defining such war crimes.

2. Whether ny state (victor r vanquished) in exercise of its right of sovereignty

() an try and punish its own citizens for war crimes, and

(b) for this purps n,

(i) set up tribunal for such trial,

(ii) legislate defining suh war crimes.

3. () Whether victor state derives the sovereignty of defeated state

(i) by resn of the unconditional surrender of the vanquished state, r

(ii) by the terms of the surrender, r

(iii b anything mr.

(b) If s, whether this acquired sovereignty includes ll the rights, ordinary and extraordinary, of the vanquished sovereign.

The pronouncements are not very clear so far s these several questions are concerned. It is not, for example, clear what is intended to b pronounced s "not to be doubted" about any nation's right. The judgment ss: "It is not to b doubted that n nation hs 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 n such right in any nation.

The observations of Lord Justice Lawrence sm to contain the following pronouncements:

1. War criminals are within the jurisdiction of:

() their own national state

(b) the belligerent state when they fall within its custody.

2. () Their national state had power to legislate defining war crime;

(b) B reason of surrender, this power now vests in the victor state.

3. () An belligerent state within whose custody such persons might me had
right to legislate defining their crime;

(b) The combined victor states also consequently have that right.

s I have already noticed there is n quarrel with the first of the above three propositions. But the entire difficulty is with the propositions 3() and 2(B) s set down above.

No one, I believe, will seriously support the proposition marked 3() above. s I have noticed already, prisoners an be tried and punished only for breaches of recognized rules f law. n power of the nature contemplated in item 3() above wil1 obliterate the centuries of civilization which stretch between us and the days of summary slaying of the vanquished.

[p. 545]



3. To construe the Charter in any particular manner.

After a careful consideration of the question l 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 against 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 or 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. Insofar 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 insofar 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 right"

I 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 endeavor 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 power less 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 endeavor 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 r. 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 r. 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 r. 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.).

. (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 la w", "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 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).

5. (a) (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 (r. Trainin and Lord Wright).

(iii) The basic prescription of this community is the existence of peaceful relations between States (Mr. Trainin and Lord Wright).

(b) (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, thereof 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. Mo facilitate this process of development and to strengthen these new ideas, juridical thought is obliged to forge the right f, those 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 consist, 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 1927, 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 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:

"The Assembly

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:


1. 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, set at Havana from the 16th January to the20th 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 M. 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 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, lateral 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 sign 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 to 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 eliminated forever the possibility of war among any of the powers of the world."

As regards the other treaty, r. 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 ltalian, 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 13th April, as read together with his speech of the 29th, in a long and reasoned note dated the 19th ay l928.

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 Goverrunents of the Dominions and India, and received favorable 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. The did, however, reassert this postulate in a note of the 18th July l928, 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 ay and the 18th 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-defense. 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 Majestys 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. Keltogg declared that the right of self-defense was 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. Kellogg'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, inasmuch 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.

Hall says:

"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 itself-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 a 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 repression 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 Hs violation lies only in rousing an unfavorable world opinion against 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 fulfilment of the Pact of Paris has been treated as non-justiciable matter as the result of the determination of Hs 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 fulfilment or non-fulfilment 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 it 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 non-justiciability 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 machine 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 very 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 ease.

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 any 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 l928.

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.

aine, 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 favor 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 law-abiding 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 locked 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 . 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 forces, 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 Seeretary 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 be 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.

As far back as 1934 at a conference of the International Law Association held in Budapest views were expressed that the Pact of Paris had brought in a revolution in international law - not a revolution in the sense that war had ceased, but that, while war waged as an instrument of national policy prior to 1928 was lawful, and gave rise to belligerent rights and neutral duties, such a war waged after 1928 had become unlawful and, consequently, could not give rise to rights and duties: e injuria non oritur jus. Similar views were reiterated at the Fortieth Conference of the Association held at Amsterdam in 1938. Some of the international lawyers asserted that no party to the Pact of Paris, which would violate the Pact, would have any rights whatever as a belligerent, as regards either the state attacked or neutrals, and that it would render itself in law liable for every injury done, whether to the state attacked and its members or to a neutral state and its members.

This view as to the effect of the Pact on the legal character of war was not shared by all and certainly did not in any way reflect the changes that might take place amongst nations in their practical regard for the Pact. If the effect of the Pact were to render war illegal depriving its author of belligerent rights there would be no duty of neutrality in any nation on the occasion of any such war.

Dr. Scheuner of Vienna examined the practice of nations with regard to neutrality since 1928, and the result of his examination was presented before the Conference at Amsterdam referred to above. The learned Professor traced the development of neutrality first since the foundation of the League of Nations up to 1928 and then since the Kellogg-Briand Pact. For the first period he considered how much regard the several nations paid to the Articles of the League Convention and summed up the result thus:

"In practice ..... all the states have acted during this period as though the law of the neutrality had continued to exist."

He then cited instances in support of this view.

Coming to the second period Dr. Scheuner found

"that the governments since 1928 have in their treaties as well as in their political declarations and actions accepted the point of view that neutrality in its traditional sense is not incompatible with the obligations of the members of the League and of the signatories of the Briand-Kellogg Pact of Paris. A number of governments have not hesitated to declare themselves neutral, to undertake obligations to remain neutral in the event of a war, or to declare that in the event of war they wish to remain neutral ....."

Though not decisive, this throws some light on the question as to what changes took place amongst nations in their practical regard for the Pact. Nations do not seem to have behaved as if war after 1928 became an illegal thing. At least they preferred to recognize belligerent rights even in the case of a war in violation of the Pact. As I shall show later, both the U. S. A. and the U. . entertained this view of the incidents of belligerency attaching to such a war. On February 27, 1933, Sir John Simon, discussing in the House of Commons the



embargo on the shipments to China and Japan spoke of Great Britain as a "neutral governent", and of the consequent necessity of applying the embargo to China and Japan alike.

So, at that time Japan's war in China was not considered to be an illegal thing.

As has been pointed out By Mr. Finch:

(1) In January 1933, during the alleged aggression of Japan upon China in violation of the Nine power Treaty, the covenant of the League of Nations and the Pact of Paris, Secretary of State r. Stimson, recommended that Congress "confer upon the President authority in his discretion to limit or forbid, in cooperation with other producing nations, the shipment of arms and munitions of war to any foreign state when in his judgment such shipment may promote or encourage the employment of force in the course of a dispute or conflict between nations. " No congressional action was taken upon this recommendation, but two years and a half later Congress passed the Neutrality Act of August 31, 1935, placing an embargo on the export of munitions of war to every belligerent state.

(2) This law was put into effect By President Roosevelt in the War of Italy upon Ethiopia.

(3) The Neutrality Act of 1935 was of a temporary character. It was replaced by permanent legislation in the Neutrality Act of ay 1, 1937. This Act continued the embargo on the shipment of arms etc. to all belligerents ... . .

(4) War in Europe started by the invasion of Poland on September 1, 1939.

Three weeks later, on September 21, President Roosevelt sent a message to Congress requesting the repeal of the embargo and a return to the "historic foreign policy" of the U. S. based on the "age-old doctrines of international law", that is "on the solid footing of real and traditional neutrality", which, according to John Quincy Adams "recognizes the cause of both parties to the contest as just - that is, it avoids all consideration of the merits of the contest".

r. Finch points out that in the light of this legislative history of the official attitude of the government of the U. S. toward the interpretations of the pact, it is impossible to accept the thesis that a war in violation of the Pact was illegal in international law on September 1, 1939.

y own view is that war in international life remained, as before, outside the province of law, its conduct alone having been brought within the domain of law. The Pact of Paris did not come within the category of law at all and consequently failed to introduce any change in the legal position of a belligerent state or in the jural incidents of belligerency.

If the Pact of Paris thus failed to affect the legal character of war, either directly or indirectly, the next question is whether any category of war became crime or illegal thing in international life in any other way.

Dr. Glueck answers this question in the affirmative and says that a customary international law developed making an aggressive war a crime in international life.

For this purpose Dr. Glueck relies on the following data:

1. 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.

2. It is familiar law in the international field that custom may, in the words of Article 38 of the 8tatute of the Permanent Court of International Justice, be considered "as evidence of a general practice accepted as law".

(a) All that is necessary to show is that during the present century a wide-spread custom has developed among the civilized states to enter into agreements expressive of their solemn conviction that unjustified war is so dangerous a threat to the survival of mankind and mankind' s law that it must be branded and treated as criminal.



3. In addition to the Pact of Paris, the following solemn international pronouncements may be mentioned as the evidence of this custom and of this conviction:

(a) The agreements limiting the nature of the deeds permissible in the extreme event of war: The Hague Conventions of 1899 and 1907 and the Geneve Conventions of 1929 regulating the treatment of prisoners of war;

(b) The draft of a treaty of mutual assistance sponsored by the League of Nations in 1923, solemnly declaring (Article 1) that aggressive war is an international crime, and that the parties would undertake that no one them will be guilty of its commission.

(c) Thee preamble to the League of Nations 1924 Protocol for the Pacific Settlement of International Disputes (Geneva protocol) referring to aggressive war as crime.

(d) The declarations made at the Eighteenth Plenary meeting of the Assembly of the League of Nations held on September 24, 1927.

(e) The unanimous resolution, February 18, 1928, of the twenty-one American Republics at the Sixth (Havana) Pan American Conference declaring that "War of aggression constitutes an international crime against the human species".

(f) The preamble of the general convention signed by the representatives of all the republics at the international conference of American states on conciliation and arbitration held at Washington in December 1928, containing the statement that the signatories desired "to demonstrate that the condemnation of war as an instrument of national policy in their mutual relations set forth in the Havana Resolution constitutes one of the fundamental bases of inter-American relations ....."

(g) The preamble of the Anti-War Treaty of Non-Aggression and Conciliation signed at Rio de Janeiro, October 10, 1933, stating that the parties were entering into the agreement "to the end of condemning wars of aggression and territorial acquisitions......"

(h) Article 1 of the notable Draft Treaty of Disarmament and Security prepared by an American group and carefully considered by the Third Committee on Disarmament of the Assembly of the League of Nations 1924, providing that "The High Contracting Parties solemnly declare that aggressive war is an international crime ....."

(i) Senator Borah' s Resolution introduced on December 12, 1927.

As evidence of the suggested custom Dr. Glueck refers to a few solemn international pronouncements noticed above. These pronouncements, it may be observed, are mostly in agreements between states.

Agreements between states no doubt may have the significance attached to them by Dr. Glueck. Besides creating rights and duties inter-partes, they may have the significance of being the pronouncement of some growing popular conviction and may thus ultimately contribute to the growth of a rule as an international customary law.

There is however some difficulty in determining the value of usages professing to be the groundwork of rules derogating from accepted principles. As has been pointed out by Hall, in some cases their universality may establish their authority; but in others, there may be a question whether the practice which is said to uphold them, though unanimous as far as it goes, is of value enough to be conclusive; and in others again it has to be decided which of two competing practices, or whether a practice claiming to support an exception, is strong enough to set up a new, or destroy an old, authority.

In the present case the alleged customary law, if established, would destroy a well-established fundamental law, namely, the sovereign right of each national state. Before the



alleged custom was established this right was recognized as a fundamental one in the international system and the reason why this had to be recognized as an essential one still exists.

"The interests protected by international law are not those which are of major weight in the life of states. It is sufficient to think of the great political and economic rivalries to which no juridical formula applies, in order to realize the truth of this statement. International law develops its true function in a sphere considerably circumscribed and modest, not in that in which there move the great conflicts of interests which induce states to stake their very existence in order to make them prevail. "

This is what Anzilotti says about the sphere of international law as it now stands. It may not be an accurate statement from the point of view of the actual content and scope of international law insofar as it wants to say that international law is concerned only with minor issues between states. The major questions of the existence of states and their tights as members of the international community certainly form the subject matter of that law. But even now questions of very great weight in the life of states are left outside the system and no state would agree to make them justiciable. It is an undeniable fact that such major questions of international relations have been regarded as pertaining to the domain of politics and not of law. No customary law can develop in respect of them until they are brought within the domain of law. So long as states persist in retaining their own right of judgment as to whether or not a certain requirement is necessitated by their self-defense, the matter remains outside the domain of law.

I have already quoted from the views expressed by Professor Quincy Wright in 1925 to show that in his view no war was crime up to that time.

In December 1927, senator Borah in his Resolution before the United States Senate stated that until then "War between nations has always been and still is lawful institution, so that any nation may, with or without cause, declare war against any other nations and be strictly within its legal rights". Dr. Glueck refers to this resolution but omits to notice this statement of the then existing law.

These statements, in my opinion, correctly give the law then existing. The question, therefore is when did the alleged customary law develop? It did not certainly develop during the few months preceding the date of the Pact of Paris. In my opinion it never developed even after that date. Customary law does not develop only by pronouncements. Repeated pronouncements at best developed the custom or usage of making such pronouncements.

Before we can accept pronouncements referred to By Dr. Glueck as evidence of proposed customary rule we must remember that these pronouncements relate to the very foundation of the present international system which keeps such issues outside the domain of law. National sovereignty is, even now, the very basis of the so-called international community. States are not only parties but also judges and executors in their own cases in relation to certain matters. The dangers of a too rigid application of the doctrine of national sovereignty and of the principles of "self-determination" are not even now fully appraised. It is still considered better to run the risk of sacrificing the directing influence of any central authority, than to allow its operations to be extended into the sphere of the internal activity of states.

The division of mankind into national states dates from the time when the idea of the World Empire had disappeared, and all the states confronted one another independently and without supreme authority.

The division was indispensable: Its justification had been that the members of the different states could develop their qualities and talents without being hindered by the contradictory views and endeavors of others who might be dominated by an entirely different view of life. Such a national formation is of special value, because it is the only way in which a uniformly gifted national group can develop its own life, its own talents and abilities to the utmost. It is the vocation of a national society to thoroughly develop every capability inherent in any



people and its justification is its affording an opportunity for the profitable empl0yment of

everyone's activity everywhere.

A national society, from the very circumstances of its origin and development, is aware of the bearing of the interests of its own members upon the universal objects of general humanity and consequently is bound to regard other national societies not only as entitled to rights equal with its own, but as supplementing itself. National states thus cannot seek any absolute seclusion, nor strive after any absolute self-sufficiency; and in this sense the period of national states is also marked by the period of international society. But this international society is anything but a society under the reign of law.

No doubt the national state cannot be considered so definite and perfect a policy amongst the societies as to form the utmost boundary of their development. Every class of the population has its own onesidedness; it will remain stationary on a certain plane of education and knowledge unless it receives impulses from without and feels the influence of foreign images and ideas; so that a constant exchange between its own development and between the assimilation of, and adaptation to, external ideas takes place. In this way nations have developed and are developing in state communities.

The federation of mankind, based upon the external balance of national states, may be the ideal of the future and perhaps is already pictured in the minds of our generation. But until that ideal is realized, the fundamental basis of international community, if it can be called a community at all, is and will continue to be the national sovereignty.

International organization has not, as yet, made any provision for full realization of this very essence of national sovereignty. Its realization is left to the power of the national state. There has not, as yet, been any organization for real international peace. Peace, hitherto, has been conceived of only as negation of war and nothing more. In such circumstances, so long as the application of "power" remains the fundamental principle, pronouncements like those referred to By Dr. Glueck would, in my opinion, fail to create any customary law.

But what are really these pronouncements? And before we attach any value to them we must not ignore the fact that whenever called upon to declare a war to be a crime states did not adequately respond.

The states have always been careful in retaining their right to decide what they would consider to be war in defense. None as yet is prepared to make the question whether a particular war is or is not "in defense" justiciable. So long as a state retains its own decision as final in this respect, no war is made criminal.

After a careful consideration of all these facts and circumstances I am of the opinion that no international customary law could develop through the pronouncements referred to by Dr. Glueck and relied on by the prosecution.

The pronouncements at most only amounted to expressions of the conviction of persons making them. But these are not yet attended by any act on the part of any of the states. Custom as a source of law pre-supposes two essential elements:

1. The juristic sentiments of a people.

2. Certain external, constant and general acts by which it is shown.

It is indicated by identical conduct under similar external circumstances. The conduct of national states during the period in question rather goes the other way.

It may be that Dr. Glueck is thinking of "customary law" in a specific sense. It cannot be denied that in one sense customary law, statute and juristic law are all shoots from the same slip, namely, popular consciousness. In this sense the center of gravity of the development of all law - not only of customary law - can be placed into the legal consciousness, "the natural harmony of the conviction of a people, which is a popular universal conviction". For this purpose its emergence in usage is not essential to the origin of law. In this sense there need be no other prerequisites to the origination of customary law than a common popular conviction. We are, however, not much concerned with customary law in this




so far from being incompatible, are, in fact, complementary. The law is not a solid construction of dead material, a fixed and permanent monument, it is an integral part of a living and developing society created and transmitted by men .....

Turn now to international law, what do we find? A situation almost exactly the opposite of what has just been described.

To begin with, where are we to look for the rules and obligations of international law? We shall not find them embodied in the habits of the will, still less in the affections, of a society.

International law, in fact, is a law without a constitution. And since it is "not grounded in a constitution it lacks the possibility of natural growth. Unconnected with a society, it cannot adjust itself to its needs. It cannot gather itself together by imperceptible stages into a system .....

The reason for this is very simple. The rules of international law, as they existed previous to 1914, were, with a few exceptions, not the outcome of the experience of the working of a world society. they were simply the result of the contacts between a number of self-regarding political units - stars whose courses, as they moved majestically through a neutral firmament, crossed one another from time to time. the multiplication of these external impacts or collisions rendered it mutually convenient to bring their occasions under review and to frame rules for dealing with them."

In my judgment this is where the international law stands even now and will stand unless and until the political units agree to yield their sovereignty and form themselves into a society. As I have shown elsewhere, the post war United Nations Organization is certainly a material step towards the formation of such a society. I know that as a judge, it is not for me to preach the need for a wider social consciousness or to propound practical solutions for the problems involved in the material interdependence of the modern world. Yet the international relation has reached a stage where even a judge cannot remain silent though the task that is given him is only one of formulation, classification and interpretation. I believe with Professor Lauterpacht that it is high time that international law should recognize the individual as its ultimate subject and maintenance of his rights as its ultimate end. "The individual human being - his welfare and the freedom of his personality in its manifold manifestations - is the ultimate subject of all law. A law of nations effectively realizing that purpose would acquire a substance and a dignity which would go far toward assuring its ascendency as an instrument of peace and progress." This certainly is to be done by a method very different from that of trial of war criminals from amongst the vanquished nations. An international organization of the kind recommended by Dr. Lauterpacht would not permit a dominating foreign power to claim its dealings with the dominated nation as its "domestic affairs" outside the jurisdiction of the organization.

Inducements to the exercise of creative judicial discretion in the field before us do not inspire much enthusiasm in me. The decision would not create anything new: It would only create precedent for a victor in war to bring the vanquished before a tribunal. It can never create precedent for the sovereign states in general unless such states voluntarily accept such limitations. Certainly this is open to them to do by treaties or conventions.

I am told that if the persons in the position of the present accused are not made responsible for acts such as are alleged against them, then the Pact of Paris brings in nothing useful.

I am not sure whether that is the position. Law, no doubt, ends by being what it is made to be by the body which applies it to concrete situations: Yet the body called upon to apply it should not force it to be what it is not, even at the risk of missing the most attractive opportunity for contributing towards the development of a temptingly significant concept of international law, - I mean "the legal concept of the crime against peace".




responsibility in international life. I have already given m reason why I cannot accept this proposition.

The basic principle of this crime s recognized b the various national systems is that every state has right to evolve legal institutions to suppress b force, s criminal, certain agreements for the ultimate commission of acts which are at least mala in se and irrevocable involve grave social evils. Every state has right to anticipate the ultimate commission of the act and suppress the combination b force.

The only general principle which these various systems will yield is that it is legitimate and expedient to evolve legal institutions for the prevention and suppression of potential crimes of certain categories. Such crimes are generally those endangering the very existence of the state.

Strictly speaking, in the present stage of the international society there is no such organization at ll whose security would attract the operation of this principle. There is n international superstate s yet. he national states are only individual members of that society occupying the position of individuals in national state.

Even apart from these considerations, if we carefully examine the principles of the law of conspiracy s prevailing in the several civilized countries, we cannot fail to s that the essential principle underlying that law is the desirability and possibility of prevention. In m opinion this object cannot be achieved in international life s at present constituted. Conspiracy is fundamentally mental offense.

The prosecution sys that in order to constitute conspiracy there must b crossing of the line of mere meditation. The essence of the offence is the joint agreement, the joint undertaking. The crossing of the line of meditation m require sme overt act. But "the act required does not amount to the dignity of the act required to sustain conviction for an attempt to commit crime. It is any act which is in furtherance of the conspiracy. It need not be criminal act; it need not be an illegal act; it need not be an act of any importance; it need not be performed b more than one of the conspirators; ... ... the sole purpose of requiring the overt act is to ensure that there is sufficient evidence that conspiracy has actually been entered into. Any single one of the thousands of acts b any one of these defendants or b any one of their co-conspirators would meet the requirements of an overt act necessary to establish conspiracy in these jurisdictions where it is required".

Activity in the external forum is relevant for determining whether there has been conspiracy only insofar s it establishes the existence of the internal elements sufficient to constitute the crime. The two factors of will and reason, which enter into the making of any agreement, are the starting points in any analysis of the nature of the conspiratorial agreement.

Basically "conspiracy is an inchoate act for which the essential act is slight. It involves an intent to commit further act. It is the commission of that act which the state desires to prevent".

The essential element in the principle of the law of conspiracy is thus the desirability s lso the possibility of prevention of the design contemplated b the conspirators. Manifestly there is grave danger where conviction and punishment cn be based purely on intent. This has been recognized. The commissioners, n behalf of the Legislature of New York, in revising the conspiracy statutes of New York, in the introduction to the section which required an overt act before one could be convicted of conspiracy observed s follows:

" metaphysical train of reasoning, which has never been adopted in n other s in the whole criminal law, the offense of conspiracy is made to, consist in the intent, in an act of the mind; and to prevent the shock to common sense, which such proposition would be sure to produce, the formation of this intent b the interchange of thoughts, is made itself an overt act, done in



pursuance of the interchange of agreement. Surely an opportunity for repentance should b allowed to ll human beings; and he who has conspired to do criminal act, should be encouraged to repent and abandon it. Acts and deeds are subjects of human laws; not thoughts and intents, unless accompanied b acts. "

Professor Sayre of the Harvard Law School is more outspoken in his denunciation of the doctrine of criminal conspiracy in the Anglo-American system. says:

"Under such principle every one who acts in cooperation with another m some day find his liberty dependent upon the innate prejudices or social bias of an unknown judge. It is the very antithesis of justice according to law.

doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends n strength or glory to the law; it is veritable quicksand of shifting opinion and ill considered thought.

It is doctrine which has proved itself the evil genius of our law wherever it has touched it. the time not be long delayed in coming when it will be nothing more than shadow stalking through past cases."

Thus even in national system conspiracy s constituting crime has not gone unchallenged. Its only justification is the prevention and suppression of potential danger. It n have n place in community which has not s yet organized any preventive means. Even fully discovered at the conspiracy stage, the international community, s it now stands, has no means of punishing the offense and consequently the punishment provided in view of its potentiality is brutum fulmen. The law must wait till the potentiality becomes an actuality and then again till the favorable contingency happens, that is, till the conspirators lose the war.

On the other hand, if completed conspiracy b itself is crime in international law, once certain parties enter into this conspiracy, there remains n s for locus penetentiae for them. They gain nothing b desisting from further act so far s conspiracy for aggressive war is concerned. They have already completed their offense. I do not think there n justification for introducing such crime in international life at the stage where it now stands.

We must also remember that in transposing the law of conspiracy in the international system we are really not seeking to prevent any dangerous combination, because, as I have shown above, such prevention is impossible at this stage of international life. The proposed extension m only give dangerous weapon in the hands of an unscrupulous victor. Nations while making preparations for war would never think or admit that they are making such preparation for aggressive purposes. I should not repeat it here, but we have seen how statesmen in very high positions were claiming openly very wide and extensive right of self-defense. Every nation, for itself and for the nation which it likes, would take self-defense in such extensive sense, while at the same time, would never appreciate its opponent' s similarly wide definition. In order to make aggressive war crime in international life, it would be necessary for us to hold that whether or not measure taken b state was in self-defense, the decision of the state concerned would not be final. The ultimate decision s to the lawfulness of the action claimed s taken in self-defense m not lie with the state concerned. But, in the absence of any international agency or court with compulsory jurisdiction competent to decide whether or not n right of self-defense was involved, it becomes the right of the victor to decide whether or not any right of self-defense was involved, it becomes the right of the victor to decide whether or not the vanquished resorted to war in self-defense. The application the rule which we re now seeking to introduce will thus necessarily b in the hands of the opponent who would happen to be the victor, and who could never appreciate its defensive character. We can well imagine what m be the consequence. In opinion while serving n useful purpose, it would be introducing dangerous principle in the international system, further retarding the peaceful relations in that life.

[p. 949]


There is yet another consideration against the introduction of conspiracy s crime in international life. The international society even now recognizes the compulsive means of settlement of differences between states. Even now it is permissible to state to take to measures containing certain amount of compulsion for the purpose of making another state consent to such settlement of difference s is required b the former: See Oppenheim's International Law, Chapter II. These compulsive means remain legitimate even after the Pact of Paris. "The question", says Dr. Lauterpacht, "whether the Paris Pact b forbidding resort to war has also prohibited resort to force short of war is controversial one. Article 2 of the Pact refers to the obligation of the contracting parties not to solve disputes b any other except pacific means; and in the Preamble the contracting parties express their conviction that 'll changes in their relations with one another should be sought only b ifi means and be the result of a peaceful and orderly process'. In the view of some writers these provisions must b interpreted as meaning that the Pact prohibits recourse to force short of war. But the last-quoted passage refers only to changes in relations, not to the enforcement of existing legal relations; as to Article 2, it must be borne in mind that although measures of force short of war are compulsive means, they are still pacific means. "Compulsive means are in theory and practice considered peaceable, although not amicable, means of settling international differences.

I need not stop here to examine in detail the various compulsive means in contradistinction to war. All that I want to point out in this connection is that in the preparatory stages the line between the two m be very thin and preparation ultimately to serve only the purposes of legitimate compulsive measure may be mistaken for preparation for war. The same outward manifestation of mind may thus be indicative of two different mental states - one of them being legitimate in international life and the other criminal, if conspiracy be introduced as crime. While serving n practical useful purpose, the introduction of this mental rime in international life would bring with it this difficulty of ascertaining the particular criminal, state of the mind.

After giving m anxious thought to the question I have me to the conclusion that "conspiracy" b itself is not yet crime in international law.

In m view of the authority of the Charter, conspiracy will not be crime although listed s such b the Charter, if it is not crime in international law. s I have already pointed out, even the prosecution in the case before us does not seem to claim that definition of crime given in the Charter would, as such, be binding n the Tribunal. The Tribunal is invited, to examine whether or not what is listed as crime in the Charter is crime in international law and to base its judgment n the result of such examination.

The prosecution, however, contends that it was within the competence of the Supreme Commander to lay down binding rules of procedure including "forms of charge and of proof of responsibility" and that the provisions in the Charter relating to conspiracy were simply such "forms of charge and of proof of responsibility".

I cannot accept the relevant provisions in the Charter s giving mere "forms of charge and of proof of responsibility" and consequently I need not examine the other proposition relating to the competence of the Supreme Commander.




into that document. The fact that the Protocol failed to secure the number of ratifications necessary to make it effective was largely due to the opposition of Great Britain and that opposition was mainly due to the view that, there being n machinery, or n effective machinery, for the revision under Article 19 of the Covenant of Treaties which have bm inapplicable, the Protocol would involve its adherents in guarantee of the status quo, however unjust and precarious it might b" (Oppenheim-Lauterpacht, . ., . 91, note 2).

18 Text in the Monthly Summary of the League of Nations, 1923, . 236 seq.

19 This quotation is from Scialoja's address at the Sixth Assembly. See Journal of the Sixth Assembly of the League of Nations, Geneva, 1925, . 80. The text was published in the League of Nations, Resolutions and Recommendations adopted b the Assembly during its Fifth Session, 1924, . 21 seq. It is of importance to note that, despite these manifestations of enthusiasm, the delegates merely undertook to recommend the Protocol to their governments for their "serious consideration" (Alfred Zimmern, The League of Nations and the rule of law, 1918-1935, London, 1936, . 350-351).

20 This last exception "had not bn formally mentioned in the Protocol, but it was quite clearly understood that it was admitted", according to Politis, acting as General Assembly Reporter, Journal of the Fifth Assembly of the League of Nations, Geneva, 1924, . 329.

21 Text of the proposed resolution is to b found in the Journal of the Sixth Assembly of the League of Nations, Geneva, 1925, . 74-75.

22 ublished in the Journal, . ., . 114 seq.

23 Hans Wehberg: The Outlawry of War, Washington,.t'1931, . 43.

24 Verbatim Record f the Eighth ordinary session of the Assembly f the League of Nations, 24 September 1927, 10:00 . 9.

25 Verbatim Record of the Eighth ordinary session of the Assembly of the League f Nations. 8th September, 1927, 10:30, . 6.

26 Journal of the Eighth ordinary session of the Assembly of the League of Nations, Geneva, 1927, . 226.

27 Judgment of the IMT for the trial of German major war criminals, Nuremberg, 30 September and 1 October 1946. is Majesty's Stationary Office, Cmd. 6964, . 41.

28 Judgment - Nuremberg, . . . 41.

29 Report of the Delegates of the United States of America to the Sixth International Conference of American States, held at Habana in 1928, U.S. Government Printing ffi, Washington 1928, . 21.

30 . Report, . 23.

31 Treaty for the Renunciation of War, U.S. Government Printing ffi, Washington,1933, . 314.

32 In order to assess the significance attributed to the Pact of Paris before the Second World War, the "Budapest Articles f Interpretation" are essential. These articles were unanimously adopted at the Thirty-eight Conference of the International Law Association, held at Budapest in 1943. Stimson at the time referred to these as "the most authoritative statement of international law n that subject which, so far as I know , ''has ever been published" (Quoted in Hackworth' s Digest of International Law, VII, . 680, Washington, 1943). In the Budapest Articles n mention is made ! n criminal responsibility. Violation of the Pact confers upon other states various rights which they did not possess under the traditional conception f neutrality (Article 4); the culpable state shall indemnity to all states involved (Article 6). (The text is to b found in the American Journal of International Law" 1935, . 92 seq.).

33 In: Treaty for the renunciation of war. Text of the Treaty, notes exchanged, instruments of ratification and of adherence and other papers. Dept. of State . 468, Wash. 1933, . 57.


34 o.., . 68.

35 o. . , . 73.

36 o..,.51.

37 Congr. Record, 70th Congress, 2nd Session, . 1286.

38 U.S. Senate Committee n Foreign Relations, Dec. 7, 1928. "General pact for the renunciation of war", . 5. It m b considered of importance to note that this record of the transactions of the said committee was revised b Secretary of State Kellogg before publication, as it appears from the record of the transactions of Dec. 11, 1928, . 27.

39 James M. Shotwell: War as n instrument of national li and its renunciation in the Pact of Paris. New York 1928, . 217.

40 Nuremberg Judgment, Br. ed., . 30.

41 Charles Cheney Hyde. International Law, chiefly as interpreted and applied b the United States. Vol. III, Sec. Ed., Boston 1945, . 1683.

42 Congressional Record, Jan. 3, 1929, Vol.70. 70th Congr., 2nd Session, .1063. And again n Jan. 4, 1929 (l.. page 1126): "There is n superior court or other tribunal to which appeal n b made except the judgment of the world" or "But this treaty never n go to n court, because if it is violated we are the judges of that ourselves, and each signatory is the judge for itself", or "This treaty does not provide for any tribunal" (1.., . 1133). n those assurances senators based their "yeah" to ratify, some of them recognizing at the same time that it was "worthless, but perfectly harmless treaty" (Jan. 15, 1. ., page 1728).

43 David Hunter ill: The Pact of Paris. New York-London, 1928, . 129.

44 The significance of this negative wording is stressed b the positive wording of art. 2, sub. 3 of the Charter of the United Nations.

45 Hans Kelsen: Through Law. 1944, . 32.

46 David . ille: The Pact of Paris. New York-London, 1928, . 127.

47 Sheldon Glueck: The Nuremberg Trial and Aggressive War, New York, 1946, . 5; see also . 37.

48 In the course of the discussions bout the Pact of Paris, the defense offered evidence concerning instances of international conduct which could b interpreted s breaches of the Pact committed b nations represented in this Tribunal. This evidence was not offered n the theme "thieves for their robbery have authority when judges steal themselves", but with the purpose of showing how the Pact of Paris was actually interpreted b the nations concerned and to draw from that interpretation conclusions as to the real content of the treaty, in other words, "as proof of the present. state of the international law relevant to this case" (T. 17605). Defense counsel Blakeney further stated in this connection: "I m interested in showing to the Tribunal that if the USSR, the U. S., Great Britain and other nations have done these things, they cannot b acts of criminal aggression" (T. 17615). However, the Tribunal ruled differently, when the President announced:

"The Tribunal has decided not to receive evidence as to the relations between the USSR and Finland, Latvia, stonia, Poland and Roumania; nor as to the relations between Russia and Great Britain and Iran; nor as to the relations between the U. S. of America and Denmark, vis-a-vis Greenland and Iceland. These are collateral and irrelevant issues. The decision is decision of the majority" (T. 17635).

The interests of the defendants were not necessarily prejudiced B this ruling, where the matters concerned n b considered the subject of mmn knowledge, of which the Tribunal n take judicial notice (Charter, art. 13d).

49 Both addresses are recorded in "Punishment for War Crimes", London, . . 's Stationery Offi, 1942, . 15.

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