21 Nov. 95
ever gave, and to leave war-makers subject to judgment by the
usually accepted principles of the law of crimes.
But if it be thought that the Charter, whose declarations
concededly bind us all, does contain new law I still do not shrink
from demanding its strict application by this Tribunal. The rule of
law in the world, flouted by the lawlessness incited by these
defendants, had to be restored at the cost to my country of over a
million casualties, not to mention those of other nations. I cannot
subscribe to the perverted reasoning that society may advance and
strengthen the rule of law by the expenditure of morally innocent
lives but that progress in the law may never be made at the price of
morally guilty lives.
It is true of course, that we have no judicial precedent for the
Charter. But international law is more than a scholarly collection of
abstract and immutable principles. It is an outgrowth of treaties and
agreements between nations and of accepted customs. Yet every custom
has its origin in some single act, and every agreement has to be
initiated by the action of some state. Unless we are prepared to
abandon every principle of growth for international law, we cannot
deny that our own day has the right to institute customs and to
conclude agreements that will themselves become sources of a newer
and strengthened international law. International law is not capable
of development by the normal processes of legislation, for there is
no continuing international legislative authority. Innovations and
revisions in international law are brought about by the action of
governments such as those I have cited, designed to meet a change in
circumstances. It grows, as did the common law, through decisions
reached from time to time in adapting settled principles to new
situations. The fact is that when the law evolves by the case method,
as did the common law and as international law must do if it is to
advance at all, it advances at the expense of those who wrongly
guessed the law and learned too late their error. The law, so far as
international law can be decreed, had been clearly pronounced when
these acts took place. Hence, I am not disturbed by the lack of
judicial precedent for the inquiry it is proposed to conduct.
The events I have earlier recited clearly fall within the
standards of crimes, set out in the Charter, whose perpetrators this
Tribunal is convened to judge and punish fittingly. The standards for
War Crimes and Crimes against Humanity are too familiar to need
comment There are, however, certain novel problems in applying other
precepts of the Charter which I should call to your attention.
The Crime against Peace:
A basic provision of the Charter is that to plan,
prepare, initiate, or wage a war of aggression, or a war in violation
of international