dtufail/nuremberg-trials-corpus huggingface dataset:
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Germain, Trianon, Neuilly, and Sevres, be it in the camp of the vanquished or in that of the victors, were the very ones who strove after real, lasting peace. When the Governments of the South African Union and Canada, in their replies to Secretary of State Hull's Principles of Enduring Peace of 16 July 1937, indicated in unusually strong language that a revision of unjust and forcibly imposed treaties was an indispensable precondition for real world peace, they took up one of the basic views of the great American President.(7) (5) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the U.S., Volume LXX, Part. 2, Page 1333. (6) See Baker, Ray Stannard, Woodrow Wilson and World Settlement, New York 1922, passim. (7) See Kuhn, Arthur K., Observations of Foreign Governments upon Secretary Hull's Principles of Enduring Peace (A.J., Volume 32, 1938, Pages 101-106). Also: Wilson, Woodrow, War and Peace. Presidential Messages, Addresses and Public Papers, 1917-2d (edited by Ray Stannard Baker and William E. Dodd), New York 1927. Humanity did not follow Wilson. Even for the members of the League of Nations war remained a means for settling disputes, prohibited in individual cases, but normal on the whole. Jean Ray(8), as late as 1930, said: "The League of Nations did not prove to be a guide to the true order of peace, indeed it did not even prove to be a sufficient brake to prevent a complete backward movement into the former state. For the world did in fact slide back entirely." For this is the all-important factor in our problem of law. Before the commencement of the second World War the whole system of collective security, even in such scanty beginnings as it had made, had collapsed;(9) and this collapse was acknowledged and declared expressly, or by equivalent action, by three world powers-and, in fact, declared with full justification. Great Britain clearly stated this at the beginning of the war to the League of Nations. I shall show this immediately.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The Soviet Union treated the German-Polish conflict simply according to the rules of classical international law concerning debellatio. I shall explain this shortly. The United States declared their strict neutrality. I shall also explain the import of this declaration. The system of collective security has been the subject of much dispute. In this matter involving the world's conscience, which is of fundamental importance in this very Trial, it cannot be a matter of indifference that the system, rightly or wrongly, appeared in 1938 to such a prominent specialist on international law as the American, Edwin Borchard, to be absolutely inimical to peace and the offspring of the hysteria of our age(10). The collapse may have had various causes; it is certain that the above-mentioned three world powers testified at the beginning of September 1939 to the collapse-the complete collapse-and that they did not, in fact, do so as a consequence of the German-Polish war. To begin with, on 7 September 1939 the British Foreign Office told the Secretary General of the League of Nations(11) that the British Government had assumed the obligation, on 5 February 1930, (8) Commentaire, Page 74. (9) On the indisputable fact of the collapse, and the guilt of the great powers therein, cf. the bitter statements of Fenwick from the period immediately preceding the second World War. (International Law and Lawless Nat i o n s; A. J., Volume 33, 1939; Pages 734-745.) (10) Neutrality and Unneutrality (A. J., Volume 32, 1938, Page 778 et sequentes.) (11) See also the Memorandum on the Signature by His Majesty's Government in the United Kingdom of the Optional Clause of the Statute of the Permanent Court of International Justice (Cmd. 3452, Miscellaneous Number 12, 1929).
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): to answer before the Permanent International Court of Justice at The Hague whenever a complaint was filed against Great Britain, which would include all cases of complaints which other states might lodge on account of conduct whereby Great Britain in a war had, in the opinion of the plaintiff, violated international law. The British Government had accepted this regulation because they had relied on the functioning of the machinery of collective security created by the League of Nations Covenant and the Pact of Paris-because, if it did function properly, and since Britain would certainly not conduct any forbidden wars, her opponent on the contrary being the aggressor, no collision between Britain and those states that were faithful to the security machinery could possibly be caused by any action of Britain as a seapower.(l2) However, the British Government had been disappointed in this confidence: Ever since the League Assembly of 1938 it had no longer been possible to doubt that the security machinery would not function; on the contrary it had, in fact, collapsed completely. A number of members of the League had already declared their strict neutrality before the outbreak of war: "The entire machinery intended to maintain peace has broken down."(l3) I will proceed to show how right the British Government were in the conclusions they drew. It should not be forgotten that the British Premier, Mr. Seville Chamberlain, had already proclaimed, on 22 February 1938 in the House of Commons, that is, before the so-called Austrian Anschluss, the complete inefficiency of the system of collective security. He said:(l4) "At the last election it was still possible to hope that the League might afford collective security. I believed it myself. I do not believe it now.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): I would say more: If I am right, as I am confident I am, in saying that the League as constituted today is unable to provide collective security for anybody, then I say we must not delude ourselves, and, still more, we must not try to delude small weak nations into thinking that they will be protected by the League against aggression and acting accordingly, when we know that nothing of the kind can be expected." The Geneva League of Nations was "neutralized," as Noel Baker politely expressed it later in the House of Commons.(15) (12) It is the same train of thought developed by Brierly, Some Implications of the Pact of Paris (Br. YB 1929). (13) "Tout le mecanisme prevu pour le maintien de la paix s'est disloque." (14) Parliament Debate, H. C., Volume 332, Column 226 et sequentes. (15) Parliament Debate, H. C., Volume 353, Number 198, Column1178 (21 November 1939). Secondly, in view of the correct conclusions drawn by the British Government and expressed in their note of 7 September 1939 to the League of Nations, it is no wonder that the Soviet Union treated the German-Polish conflict in accordance with the old; rules of power politics. In the German-Russian Frontier and Friendship Pact of 28 September 1939 and in the declaration made on the same day in common with the Reich Government,(l5a) the Moscow Government bases its stand on the conception of the debellatio of Poland, that is, the liquidation of Poland's government and armed forces; no mention is made of the Pact of Paris or the League of Nations Covenant. The Soviet Union takes note of the liquidation of the Polish state machinery by means of war, and from this fact draws the conclusions which it deems right, agreeing with the Reich Government that the new order of things is exclusively a matter for the two powers. It was therefore only logical that in the Finnish conflict, during the winter of 1939-1940, the Soviet Union should have taken its stand on classical international law.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): It disregarded the reactions of the League of Nations when, without even considering the application of the machinery of sanctions and merely pretending to apply an article of the Covenant referring to quite different matters, that body resolved that the Soviet Union had, as an aggressor, placed itself outside the League.(l6) The report of the Swiss Federal Council of 30 January 1940 to the Federal Assembly endeavored to save the face of the League which was excluded from all political realities. Thirdly, the President of the United States stated on 5 September 1939 that there existed a state of war between several states with whom the United States lived in peace and friendship, namely, Germany on the one hand, and Great Britain, France, Poland, India, and two of the British dominions on the other. Everyone in the United States was required to conform with neutrality regulations in the strictest manner. Since the time of the preliminary negotiations, it was a wellknown fact in the United States that Europe, and particularly Great Britain and France, saw the main value of the Pact to Outlaw War in the fact that the United States would take action in case of a breach of the pact. The British Foreign Secretary stated this on 30 July 1928, that is, 4 weeks previous to the signing of the pact. During the deliberations of the American Senate on the ratification of the pact, Senator Moses drew particular attention to this.(l7) (15a) See Jahrreiss Plea, Annex, Exhibit Numbers 35 and 36. (16) Resolutions of the Assembly and the Council of 14 December 1939. (17) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the U.S., Volume LXX Part 2, Pages 1169/99. See also Ellery C. Shotwell, R e s p o n s i b i I i t y o f t h e United States in Regard to International Cooperation for the Prevention of Aggression (A.J., Volume 26, 1932, Page 113).
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Senator Borah affirmed at the time that it was utterly impossible to imagine that the United States would calmly stand by.(18) After the discredit resulting from the failure of the policy of collective security in the case of Manchuria and Abyssinia the world had come to understand the now famous "quarantine" speech of President Franklin D. Roosevelt on 5 October 1937 and his "Stop Hitler!" warnings before and after Munich to mean that the United States would act on the next occasion. The declaration of neutrality of 5 September 1939 could therefore only mean: Like Great Britain and the Soviet Union, the United States accepts as a fact the collapse of the system of collective security. This declaration of neutrality has often been looked upon as the death blow to the system. The Washington Government would be entitled to reject such a reproach as unjustified. For the system had already been-dead for years, provided one is prepared to believe that it was ever actually alive. But many did not realize the fact that it was no longer alive until it was brought into relief by the American declaration of neutrality. By 1 September 1939 the various experiments, which had been tried since the first World War with a view to replace the "anarchic world order" of classical international law by a better, a genuine, order of peace, were over, that is, to create in the community of states a general statute according to which there would be wars which are forbidden by law and others which are countenanced. These experiments, in the opinion of the major powers of the time, had failed. The greatest military powers of the earth clashed in a struggle in which they pitted their full strength against one another. For the proponents of a materialistic conception of history this meant the second phase in a process developing according to inexorable laws, whereby history swept away all diplomatic and juridical artifices with supreme indifference.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The majority of international lawyers throughout the world maintained that in universal international law as at present applied, there exists no distinction as to forbidden and nonforbidden wars. Hans Nelsen set this forth in 1942 in his paper Law and Peace in International Relations, which he wrote after painstaking research into literature. He himself belongs to the minority who are prepared to concede a legal distinction between just and unjust wars, so that his statement carries all the more weight. Now we must ask: Are we in point of fact right in speaking of the collapse of the system of collective security? This would 18 See also Brierly, J.L., Some Implications of the Pact of Paris (Br. YB l929). He thinks that a violation of neutrality is impossible. In 1936 the same thought was expressed by the Englishman McNair: Collective Security (Br. YB). presuppose that such a system at one time existed. Can that really be maintained? This is a question of the greatest importance for this Trial, in which the existence of a world-wide consciousness of right and wrong is taken as the basis for the indictment for breach of the peace. Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from which all those have suffered so much who rejoiced when the pact was concluded and who later, after a first period of depression, hailed the Stimson Doctrine as a long overdue step essential for the achievement of real peace and as an encouraging omen of fresh progress. The United States had a great goal in view in 1927 and 1928, as I already mentioned. In the League of Nations the problem had been tackled only half-heartedly and with half measures, and this had perhaps done more harm than good to the cause of real peace. The Geneva Protocol had failed. Kellogg now wanted to overcome all the difficulties inherent in the problem and bring the world round by vitality and determination.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The pact as published, with its two articles containing the renunciation of war and the obligation of peaceful settlement, seemed to still the yearning of humanity eager for some deed. But the difficulties it was desired to surmount are in part rooted in the problem, and no rules laid down by any legislator will ever fully eliminate them. For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? We do not even possess unambiguous criteria for aggression and defense.(19) This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense. Yet these were not the only difficulties pointed out, explicitly and implicitly, by the French Government in the preliminary negotiations for the pact; they did so with the full title(20) of one who knows Europe and its ancient historical heritage just as the United States Government knows America and its vastly different history. (19) See, for instance, Eagleton, Clyde, An Attempt to Define Aggression (International Conciliation Number 264, 1930). Cuten, A., La notion de guerre permise, Paris 1931. Wright, Quincy, The Concept of Aggression in International Law (A. J., Volume 29, 1935, Page 395 et sequentes). (20) Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 192~3; draft treaty of the 20 April 1928 drawn up by the French Government; Note of the British Secretary of State for Foreign Affairs of 19 May 1928 to the American Ambassador; Note of 23 June 1928 from the U. S. Government to all nine participants in the negotiations; Note of the British Secretary of State for Foreign Affairs of 18 July 1928; Note of the Soviet Commissar for Foreign Affairs to the French Ambassador of 31 August 1928.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): When the world came to know the notes exchanged during the preliminary negotiations with all their definitions, interpretations, qualifications, and reservations, it became manifest to what extent the opinions of the governments differed behind that wording. One saw the Soviet Government's frank-even scathing-criticism of the refusal of the Western Powers to disarm and thus create the essential precondition for an effective policy of peace and generally of the vagueness of the treaty;(21) but especially of the famous British reservation of a free hand in certain regions of the world, that reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine;(22) and one knew that in reality there existed only formal agreement behind the signatures and that no two powers were implying exactly the same thing by the treaty. Only on one thing did complete agreement exist: War in self-defense is permitted as an inalienable right to all states; without that right, sovereignty does not exist; and every state is sole judge of whether in a given case it is waging a war of self-defense. No state in the world at that time was prepared to accept foreign jurisdiction concerning the question of whether its decisions on basic questions of its very existence were justified or not. Kellogg had declared to all the nine states participating in the negotiations, in his note of 25 June 1928:(23) ". . . The right of self-defense . . . is inherent in every sovereign state and is implicit in every treaty. livery nation. . . is alone competent to decide whether circumstances require recourse to war in self-defense." The friends of peace were cruelly disappointed. What was the use of such a treaty anyway? They were only too right. Very soon afterward they heard with even greater grief of the course of the discussions in tie American Senate.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): The ratification was, it is true, passed with 85 votes against 1, with a few abstentions; but if, behind the signatures of the contracting states there was no material agreement, there was even less behind the result of the vote in the Senate of that world power which was, as far as the conception and initiative was concerned, the leading one. The discussions in the Senate, which will remain memorable for all time because of their earnest and profound character, showed- and several senators expressly said so-that the opinions of the senators were oscillating between two poles which were worlds apart. For some the treaty really meant a turning-point in world (21) Note of the Soviet Commissar for Foreign Affairs of 31 August 1928. (22) Note of the Soviet Commissar for Foreign Affairs of 31 August 1928. (23 See also Kellogg, F., 'The War Prevention Policy of the United S t a t e s (A. J., Volume 22, 1923, Page 261 et sequentes). history; to others it appeared worthless, or at best a feeble or friendly gesture, a popular slogan, a sort of international embrace; to yet others as fertile soil for all the wars of the future, a gigantic piece of hypocrisy, as the legalization of war or even of British world control, or as a guarantee of the unjust status quo of Versailles for France and Great Britain. Some senators criticized the utter vagueness of the stipulations of the treaty even more bitterly than the Russian note. And if Kellogg's declaration about the right of self-defense, which, according to the will of the signatory states, was an integral part of the treaty, was taken literally: What kind of war was then forbidden?(24) Sarcastic and ironical words were used in the Senate. Nothing was gained by this Paris Pact if everything were to remain as at its conclusion.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): In the opinion of the great American expert on international law, Philip Marshall Brown, the pact unwittingly engendered by its ineptness the horrible specter of "undeclared war." (25) Those, Germans or non-Germans, who fought against Versailles because progress was blocked, and those, Germans or non-Germans, who criticized the League of Nations because it did more harm than good to the will toward progress, had all rejoiced for nothing at the end of August 1928. The decisive step had not been taken. But above all the one thing which, though not sufficient in itself, is indispensable if a guarantee of peace is really to be created, the one thing that is necessary in the unanimous opinion of all who reckon with human frailty, was never tackled: To create a procedure by which the community of states, even against the will of the-possessor, can change conditions that have become intolerable, in order to provide life with the safety valve it must have if it is to be spared an explosion. The individual state, if at all, can avoid revolutions only by good legislation and an early adjustment of order to changing conditions; and the same is true of the community of states. Wilson also had this fundamental principle in mind, as we saw. One of the great British experts on international law, one of the enthusiastic, unconditional, and progressive adherents of the Paris Pact, McNair, took this into account too when, in 1936, he wanted to see placed beside collective force the collective and peaceful revision of conditions which had become dangerous.(26) And it was also taken into account (24) Congressional Record, Proceedings and Debates of the Second Session of the 70th Congress of the United States, Volume LXX, Part 2 (5 January 1929 to 26 January 1929, Page 1169 et sequentes, Washington 1929). (25) International Lawlessness, (A. J., Volume 32, 1938, Page 775). (26) Collective Security (Br. YB, 1936, Page 150 et sequentes).
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): by the American experts on international law, Borchard (27) and Fenwick,(28) in their warning illustration of the situation as regards international law shortly before the second World War. The Reich Government, by the way, had pointed out this problem, which overshadowed all others, in Stresemann's note to the American Ambassador, dated 27 April 1928, when unconditionally agreeing to Kellogg's proposal.(29) Later, the problem of "collective revision" was never seriously tackled. This is not surprising, if only because the very character of such a procedure would presuppose renunciation of their sovereignty by the states. And can such a renunciation be considered in the times we live in? In Philip Brown's melancholic opinion-"less than ever."(30) For that reason a real forward step in the question as to how war could legally be outlawed was impracticable. In spite of these intricate complications the Government of the United States and the League of Nations did a great deal to comply with the urgent demands of the nations. They subsequently tried to give the pact a precise content, and "teeth." The doctrine of international law provided suggestions for this and checked it. Although it remained completely unsuccessful, we shall have to trace this process briefly, because the seed for the ideas contained in the Indictment are to be found here, insofar as its line of argument is not a political or ethical but a legal one. In its ban on aggression, the Paris Pact unquestionably starts from the political concept of aggression. But that is quite indefinite. Shotwell and Brierly, among others, tried to assist immediately by deducing a legal concept of aggression from the second article of the treaty, which establishes the obligation to follow a procedure of peaceful settlement.(3l) We can leave open the question whether it is permissible to apply this interpretation to the treaty. In practice nothing is gained by doing so; one kind of difficulty is simply put in the place of another. There are no fewer obscurities.