MOTION ADOPTED BY ALL DEFENSE COUNSEL *

19 November 1945
Two frightful world wars and the violent collisions by which peace among the States was violated during the period between these enormous and world embracing conflicts caused the tortured peoples to realize that a true order among the States is not possible as long as such State, by virtue of its sovereignty, has the right to wage war at any time and for any purpose. During the last decades public opinion in the world challenged with ever increasing emphasis the thesis that the decision of waging war is beyond good and evil. A distinction is being made between just and unjust wars and it is asked that the Community of States call to account the State which wages an unjust war and deny it, should it be victorious, the fruits of its outrage. More than that, it is demanded that not only should the guilty State be condemned and its liability be established, but that furthermore those men who are responsible for unleashing the unjust war be tried and sentenced by an International Tribunal. In that respect one goes now-a-days further than even the strictest jurists since the early middle ages. This thought is at the basis of the first three counts of the Indictment which have been put forward in this Trial, to wit, the Indictment for Crimes against Peace. Humanity insists that this idea should in the future be more than a demand, that it should be valid international law.

However, today it is not as yet valid international law. Neither in the statute of the League of Nations, world organization against war, nor in the Kellogg-Briand Pact, nor in any other of the treaties which were concluded after 1918 in that first upsurge of attempts to ban aggressive warfare, has this idea been realized. But above all the practice of the League of Nations has, up to the very recent past, been quite unambiguous in that regard. On several occasions the League had to decide upon the lawfulness or unlawfulness of action by force of one member against another member, but it always condemned such action by force merely as a violation of international law by the State, and never thought of bringing up for trial the statesmen, generals, and industrialists of the state which recurred to force. And when the new organization for world peace was set up last summer in San Francisco, no new legal maxim was created under which an international tribunal would inflict punishment upon those who unleased an unjust war. The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not

* The Tribunal rejected this motion 21 November 1945, ruling that insofar as it was a plea to the jurisdiction of the Tribunal it was in conflict with Article 3 of the Charter.