dtufail/nuremberg-trials-corpus huggingface dataset:
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Measures for peaceful settlement presuppose good will on both sides; what if that is lacking on one side or the other? And what still constitutes a measure of peaceful settlement, and what no longer does? The Russian Government were quite right in their note of 31 August (27) Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes). (28) International Law and Lawless Nations (A.J., Volume 33, 1939, Pages 743-745). (29) See also Scelle, George, Theorie juridique de la revision des traites. Paris, 1936; further: Kunz, Josef, The Problem of Revision in International Law ("peaceful change',), (A. J., Volume 33, 1939, Pages 33-35). (30) International Lawlessness (A.J., Volume 32, 1938, Page 775). (31) Brierly, Some Implications of the Pact of Paris (Br. YB 1929, Page 208 et sequentes). 1928 on the Kellogg-Briand Pact when they brought up this question. Other attempts to help tried to develop a completely new world constitution out of the entirely vague pact by way of logic. They are connected with the name of the American Secretary of State, Stimson, and with the work of the Budapest meeting of the International Law Association in 1934.(32) In order to understand this, it will be found necessary to assume that the Kellogg Pact really did bring about, in a legally conceivable manner, the unambiguous and unconditional renunciation of war. Then, of course, there exists no longer any right to wage wars as and when one likes. War waged in defiance of this prohibition is an offense against the constitution of the community of states. We are immediately faced by the question: Can the legal position of a state which attacks contrary to law be the same as that of a state which is being attacked contrary to law? If one answers "no," as does for instance the influential French commentator of the League of Nations Covenant, Jean Ray,(33) does not this mean the elimination of the most important fundamental principles of classic international law?
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): (1) Do the international laws of war-which, after all, spring from the right to wage war freely and from the duel-like character of war and certainly from the equality of the belligerents before the law-apply for the qualification of the acts of the belligerent powers against one another? (2) Is it possible, or indeed permissible, that neutrality should still exist in such a war? (3) Can the result of the war, assuming that the aggressor is victorious, be valid under law, especially when compressed into the form of a treaty, or must not the community of states deprive the aggressor of the spoils of his victory by a policy of nonrecognition? Should there not be, or must there not be, joint coercive action by the states against the aggressor? It must be noted that not even theoretical law has drawn all possible conclusions. The practice of the states, after a few tentative beginnings in isolated points, never came to a definite conclusion in a single case. With regard to the first point, the validity of the international laws of war during a war, whatever its origin, has never so far been seriously disputed by any state. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention to Resolution Number 3 of the League of Nations Assembly (32) The well-known "Budapest Articles," International Law Association: B r i a n d -K e l l o g g P a c t o f P a r i s, London 1934, Page 63 et sequentes. (33) Commentaire, Page 371. of 4 October 1921 and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.(34) The aggressor state has the same rights and duties in a war as the attacked nation, that is, those laid down by the traditional international laws of war. The French chief prosecutor appears to wish to deviate from this line, although he does not seem disposed to draw the full conclusions. However, I do not see any tendency to deviate from the present path even in the most recent practice of states.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): With regard to the second point: Attempts have been made to deny the obligation to remain neutral and, in fact, finally to establish for the states not involved the right of non neutrality and even the right to wage war against the aggressor. Some statesmen and scholars have devoted themselves just as passionately to undermining, and even to outlawing, the right to neutrality as other statesmen and scholars have spoken in favor of its undiminished continuance(35). The clearer it became that the whole system of collective security failed to function in those particular cases which were of decisive importance, namely, where steps would have had to be taken against a great power, the more the idea of neutrality asserted itself with fresh vigor. The complete discredit attaching to the League of Nations and the system of the Kellogg-Briand Pact since the Abyssinian conflict put classical international law back into its old position. In 1935 Switzerland declared her unrestricted neutrality;(36) Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden followed with their (34) Of 8 March 1930. See also Rutgers in the Recuei1 des Cours (Academic de Droit International), Volume 38, Page 47 et sequentes. Further: "Budapest Article 7" and }buns, Josef, "Plus de lot de la guerre?" (Revue Generale de Droit International Public, 1934). - Cohn, Neo-Neutrality (1939). (35) The Peruvian delegate, Senor Cornejo, in the Committee of the League of Nations Assembly in 1929 said (Assemblee 1929, C m J. O., Page 201): "Neutrality no longer exists!" Stimson, The Pact of Paris, Address 8 August 1932. Hull, Declaration on the Neutrality Law of 17 January 1936. Pact of Rio de Janeiro of lo October 1933. speech by the Swedish Foreign Minister Sandler of 6 December 1937 (see Jahrreiss Plea, Annex Exhibit Number 27). 3 October 1939: Declaration of Panama; the exchange of notes by the 21 American Republics with Great Britain, France, and Germany (23 December 1939),14 January, 23 January, 14 February 1940) is based completely on the classic Neutrality Law.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The "Budapest Articles."-Literature: D'Astroy, B. (1938); Baty, Th. (1939); Bonn, M. J. (1936/37); Borchard, E. M. (1936, 1937, 1938, 1941); Brierly, J. L. (1929, 1932), Brown, Ph. M. (1936, 1939); Quell (1936); Cohn (1939); Descamps, de (1930); Eagleton, Clyde (1937); Fenwick, Charles G. (1934, 1935, 1939); Fischer Williams, Sir John (1935, 1936); Garner, James Wilford (1936, 1938), Hambro, Edvard (1938), Hyde, C. C. (1937, 1941); Jessup, P. C. (1932, 1935, 1936), Lauterpacht (1935, 1940); Mandelstam (1934) Miller, David Hunter (1928), McNair (1936), Politis, N. (1929, 1935), Rappard, W. E. (19351937) Schindler, D. (1938); Stimson, H. (1932); StoweU, Ellery C. (1932); Tenekides, C. C (1939); Whitton, J. B. (1927, 1932); Wright, Quincy (1940). (36) Reserves de la Delegation Suisse (M. Motta) of 10 October 1935. declaration at Copenhagen on 24 July 1938.(37) The failure of the League of Nations was the reason quite openly given. With reference to the third point: The idea underlying the policy of nonrecognition is that the states not involved in a conflict should conduct themselves as members of the community of states, that is, they should protect the constitution of the community of states by refusing to recognize the fruits of victory, should the victor have been the aggressor. The situation he has created by force should not even seem to become a legal situation. He will thus be deprived of what he has gained, and one of the main inducements to wage war will thereby be eliminated. Such a policy of nonrecognition is undoubtedly not enough to guarantee by itself a system of collective security, but it is an indispensable part of such an order. There can be no dispute about this. The Brazilian representative, Senhor Braga, gained merit by proposing, at the second League Assembly in 1921, that such a policy be followed by the members of the League of Nations under the name of a "universal legal blockade" (blocks juridique universel).(38) The Finnish representative, M.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Procope, interpreted Article 10 of the Covenant in this sense in 1930 before the League Assembly.(39) The notes by the American Secretary of State, Stimson, of 7 January 1932 to China and Japan(40) made this idea echo throughout the world. Their contents are commonly referred to as the Stimson Doctrine. The League of Nations accepted the Doctrine as a resolution of the Assembly on 11 March 1932.(41) The concept was later the focal point of the Pact of Rio de Janeiro of 10 October 1933 and of the Budapest Articles of 10 September 1934. The conflict between Italy and Abyssinia in 1935-36 became the great test case(42) which decided the fate of the system of collective security. The League of Nations declared a member, which was a great power, to be the aggressor and decreed economic sanctions but then shrank from coercive military measures and finally, after Italy's victory, struggled painfully in debates on procedure, especially at the 18th Assembly of the League, to find an answer to the (37) Udenrigspolitiske Meddelelser 4. Aergang, Numbers 4-5, Page 122 et sequentes (see Jahrreiss Plea, Annex Exhibit Number 30). (38) Actes de la IIe Assemblee, seance des commissions, I, Page 396 et sequentes. (39) Acetes de la IIe Assemblee, Page 75. (40) Department of State, Press Releases, 9 January 1932, Page 41. (41) Actes de l'Assemblee extraordinaire (J. O., Supplement special, Number 101, Page 87). (42) Jean Ray, 4e Supplement du Commentaire, 1935, Page 10: "On homme d,Etat a dit un tour en parlant de Particle 15 que, s'il s'appliquait, it ne s'appliquerait sans douse, qu'une foist On pout dire la meme chose de tout le mecanisme qui dolt faire obstacle a la guerre."-See also Fischer Williams, Sir John, Sanctions under the Covenant (Br. YB 1935) and McNair, Arnold D., Collective Security. question as to how the League, without openly betraying its constitution, could cross the attacked member, the minor power of Abyssinia, off the list of existing states and recognize it as part of the Italian Empire.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The United States, too, did not enforce the Stimson Doctrine but remained strictly neutral.(43),(44) It is necessary to realize all this; and also to know that the British Government, on 20 February 1935, politely but firmly refused, through Lord Chancellor Viscount Sankey,(45) to accept the logical explications and paid tribute to the old truth: "It is not logic but history that creates law."(46)  On a later occasion, when Secretary of State Cordell Hull had explained the principle of American policy to all the powers on 16 July 1937,(47) the Portuguese Government issued a warning against "the abstract and generalizing tendency of jurists"; it warned against attempts to "find a single formula" and against not studying historic facts sufficiently.(48) We therefore come to the conclusion that in the actual relations between states there existed-quite a number of years prior to 1939-no effective general ruling of international law regarding prohibited war. No such general ruling existed so far as the leading statesmen and the peoples were aware. This is, in fact, the ultimate reason why the system of specific rulings on international law was followed to an ever-increasing extent. Two states would thus conclude treaties, in full knowledge of their particular historical conditions and with a view to guarantee peace between each other. Now, during the second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers, and it later received the assistance of Lend-Lease. The American public recognized this act of assistance as (43) With reference to the Stimson Doctrine and the case of Abyssinia see also the works and papers of Borchard (1933), Fischer Williams (1936), McNair (1933), Sharp (1934), Stimson (1932), Wild (1932), Wright (1932, 1933).
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): (44) With reference to the system of collective security see from the literature concerning the whole position in international law: Brierly (1932); Bourquin (1934); Brouckere (1934); Cuten (1931); Descamps (1930); Eagleton ~930, 1937, 1938); Elbe (1939); Fenwick (1932, 1934, 1g35, 1939); Fischer Williams (1932, 1933, 1935, 1936); Giraud (1934); Garner (1936); Graham (1929, 1934); Hill (1932); Hyde (1941); Jessup (1535); Mandelstam (1934); Politis (1929); Ritgers (1931); Shotwell (1928); Wickersham (1928/29); Whitton (1932); Wright (1942). (45) Parliament Debates H.L. 5th series, Volume 95, Cols. 1007, 1043. (46) Lauterpacht, The Pact of Paris and the Budapest Articles of Interpretation (Transactions of the Grotius Society, XX, 1935, Page 178), draws his conclusions from the fact that the states can accept or refuse, as logically established as law in Budapest. Jessup (Neutrality, Its History, Economics, and Law, Volume IV, Today and Tomorrow, 193G) finds that the states failed to accept the Budapest Articles. (47) See A. J., Volume 31, 1937, Pages 680-693. 48 See the concurring statements by Kuhn, Arthur K., Observations of Foreign Governments upon Secretary Hull's Principles of Enduring Peace (A. J., Volume 32, 1938, Pages 101, 106). being essentially no longer neutral; it was regretted by some, welcomed by others, sometimes attacked and sometimes defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly refrained from justifying them as consistent with neutrality. On the contrary, they took their stand on the Pact of Paris as -interpreted by the Budapest Articles.(49) As we saw, this would, according to Viscount Sankey's indisputably correct conception of the sources of international law, have been wrong as far back as 1935. After the developments which had taken place since Italy's victory over Abyssinia, such discussions were entirely outside the field of legal realities.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Their purpose was to resolve internal dissensions in America and for that very reason could not have been of direct importance for international law. Even had these discussions taken place between states, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, in the midst of the great struggle, a law to attain which so many efforts-efforts which were proved to have been Utopian-were made in vain in peacetime? In this Court many ways of legal thinking meet-ways which are in part very different. This leads to a number of ineradicable differences of opinion. But no manner of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles about whose contents they are of different opinions and if these articles then find no real application in the practice of these governments-which is not to be wondered at considering the circumstances under which they arose-and if logicians then interpret these articles, while the practice of governments rejects these interpretations either expressly or tacitly, then one will simply have to resign oneself to this, inasmuch as one proposes to keep to the task of legal appreciation, however much the goal may seem worth striving for, politically or morally. But let us forget for a moment the bitter realities of those years following upon the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the contracting parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be founded in international law? No-not even the liability of the state to punishment, let alone that of individuals. (49) See Wright in A.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): J., Volume 34, 1940, Page 680 et sequentes; particularly Stimson's speech of 6 January 1941 should be mentioned here. The breach of such a treaty would not be any different, under existing international law, from any other violation of international law. The state violating a treaty would be committing an offense against international law, but not a punishable act.(50) Attempts were occasionally made to deduce from words delis (offense), crime international (international crime), and condemnation de la guerre (condemnation of war) the existence of an international criminal-law dealing with our case. Such conclusions are based on wrong premises.(5l) Every lawyer knows that any unlawful behavior can be called a delis (delictum), not only punishable behavior. And the word crime is used even entirely outside the legal sphere. And this is precisely the case here. When in 1927, on Poland's application, the League of Nations Assembly declared war to be a crime international, the Polish representative expressly stated that the declaration was not actually a legal instrument but an act of moral and educational importance.(52) The endeavor to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties whose purpose it is to preclude wars of aggression between the two partners became inapplicable. One will have to examine whether the parties to the treaty may have made the existence or continued existence of a general machinery of collective security the prerequisite for the validity of the treaty. For unilateral assurances of nonaggression the same holds good as for bilateral treaties. Many bilateral nonaggression pacts were concluded and several unilateral assurances were given. In some cases a political, in others a legal concept of aggression, or even a number of such legal concepts may determine right and wrong. The Reich also concluded a series of such pacts. They have been cited by the Prosecution in argument.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): One must examine whether all these treaties were still in force at the critical moment, and this examination will be left to the individual defendant's counsel. But if the Reich did attack, in some specific case, in breach of a nonaggression pact which was still valid, it committed an offense in international law and is responsible therefor according to the rules of international law regarding such offenses. (50) Fischer Williams also stresses this, (Sanctions under the Covenant, Br. YB, 1936, Page 130 et sequentes). Also Kelsen, Collective and Individual Responsibility... 1943, Page 531. (51) An all too appropriate warning against mistaken conceptions in connection with the term "crime international" is given by Fischer Williams, Sanctions under the Covenant, (Br. YB, 1936, Page 130 et sequentes). (52) Actes de l'Assemb1ee 1927, P., Page 153. Also Jean Ray, Commentaire, Pages 74~75. 4 July g6 But only the Reich-not the individual, even if he were the heat of the State. This is beyond all doubt, according to existing international law. It is unnecessary even to speak about this. For up to the most recent times not even the possibility was mentioned, either in the Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian, or Russian side, for planning, preparing, launching, and conducting the war or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. They were not prosecuted because this cannot take place as long as the sovereignty of states is the organizational basic principle of interstate order.
THE PRESIDENT: I think this would be a convenient time to break off. [A recess was taken.]
DR. JAHRREISS: One thing or another(53)-should things reach the point where, according to general world law, the men who participated in the planning, preparation, launching, and conduct of a war forbidden by international law could be brought before an international criminal court, the decisions regarding the state's final problems of existence would be subject to super-state control. One might, of course, still term such states sovereign; but they would no longer be sovereign. In his paper, written late in 1943, which I have already mentioned several times and which was prepared after the Moscow conference of 1 November 1943, Kelsen again and again repeats that in questions of breach of the peace, the liability of individuals to punishment does not exist according to the general international law at present valid and that it cannot exist because of the concept of sovereignty.(54) For Europeans, at any rate, the state has during the last four centuries, especially following the pronounced advance made by the idea of the national state, achieved the dignity of a super-person. Of course, acts of state are acts of men. Yet they are in fact acts of state, that is, acts of the state carried out by its organs and not the private acts of Mr. Smith or Mr. Muller. What the Prosecution is doing when, in the name of the world community as a legal entity, it desires to have individuals legally (53) Correctly Fischer Williams, Sanctions under the Covenant (Br. YB, 1936). (54) Collective and Individual Responsibility..., Pages 534, 538, 539, 540, 542. .. sentenced for their decisions regarding war and peace, is, when facing the issue from the angle of' European history, to look upon the state as one would look upon a private individual; indeed, more than that: What it is doing is destroying the spirit of the state. Such an indictment, the moral justification of which is not my concern- such an indictment is, as we have already shown, incompatible with the very nature of sovereignty and with the feeling of the majority of Europeans.
DR. JAHRREISS: It seems, indeed, as though not only Europeans feel that way. In 1919, in Paris, it was the American delegates at the War Guilt Investigation Committee who opposed most strongly any legal sentence on the Kaiser for the very reason of the incompatibility of such a procedure with the sovereignty of the State.(55) And it is impossible to underline the idea of sovereignty more strongly than Kellogg did 8 years later during the negotiations in connection with the Pact of Paris, when he declared, as I have already said, 'Every state is the sole judge of its behavior with regard to questions affecting its very existence." There are epochs which idolize the sovereignty of the state; others deprecate it. Certain epochs have done both at the same time-ours does so. Perhaps we are living in a period of transition. Perhaps a transformation of values is taking place. Perhaps world community will become the supreme political value for the peoples in place of their own particular states, which, at any rate, held this position hitherto. Perhaps we shall reach a point where the unleashing of a war deserving moral and also legal condemnation will, for the general legal conscience, constitute high treason against the world community. Perhaps we shall reach a point where it will be permissible, or even compulsory, to betray a government starting such a war to foreign countries without this being termed high treason toward one's own. At the moment there is in no nation a majority, let alone unanimity, in support of this conclusion. The punishment of individuals by the legal community of nations for breach of the peace between states can thus be ordered only provided the fundamental principles of international law as at present valid and the scale of values as for centuries they have been firmly rooted in the feeling of the European nations are abandoned- that scale of values according to which the state, one's own sovereign state, forms the indispensable foundation for free personality.