21 Nov. 45
Germany, Italy, and Japan, in common with practically all nations
of the world, renounced war as an instrument of national policy,
bound themselves to seek the settlement of disputes only by pacific
means, and condemned recourse to war for the solution of
international controversies. This pact altered the legal status of a
war of aggression. As Mr. Stimson, the United States Secretary of
State put it in 1932, such a war:
". . . is no longer to be the
source and subject of rights. It is no longer to be the principle
around which the duties, the conduct, and the rights of nations
revolve. It is an illegal thing.... By that very act, we have made
obsolete many legal precedents and have given the legal profession
the task of re-examining many of its codes and treaties."
The Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, signed by the representatives
of 48 governments, declared that "a war of aggression
constitutes . . . an international crime." The Eighth Assembly
of the League of Nations in 1927, on unanimous resolution of the
representatives of 48 member nations, including Germany, declared
that a war of aggression constitutes an international crime. At the
Sixth Pan-American Conference of 1928, the 21 American Republics
unanimously adopted a resolution stating that "war of aggression
constitutes an international crime against the human species."
A failure of these Nazis to heed, or to
understand the force and meaning of this evolution in the legal
thought of the world, is not a defense or a mitigation. If anything,
it aggravates their offense and makes it the more mandatory that the
law they have flouted be vindicated by juridical application to their
lawless conduct. Indeed, by their own law-had they heeded any
law-these principles were binding on these defendants. Article 4 of
the Weimar constitution provided that: "The generally accepted
rules of international law are to be considered as binding integral
parts of the law of the German Reich" (2050-PS). Can there be
any doubt that the outlawry of aggressive war was one of the
"generally accepted rules of international law" in 1939?
Any resort to war-to any kind of a war-is a resort to means that
are inherently criminal. War inevitably is a course of killings,
assaults, deprivations of liberty, and destruction of property. An
honestly defensive war is, of course, legal and saves those lawfully
conducting it from criminality. But inherently criminal acts cannot
be defended by showing that those who committed them were engaged in
a war, when war itself is illegal. The very minimum legal consequence
of the treaties making aggressive wars illegal is to strip those who
incite or wage them of every defense the law