21 Nov. 45
treaties, agreements, and assurances, or to conspire or
participate in a common plan to do so, is a crime.
It is perhaps a weakness in this Charter that it fails itself to
define a war of aggression. Abstractly, the subject is full of
difficulty and all kinds of troublesome hypothetical cases can be
conjured up. It is a subject which, if the defense should be
permitted to go afield beyond the very narrow charge in the
Indictment, would prolong the Trial and involve the Tribunal in
insoluble political issues. But so far as the question can properly
be involved in this case, the issue is one of no novelty and is one
on which legal opinion has well crystalized.
One of the most authoritative sources of international law on
this subject is the Convention for the Definition of Aggression
signed at London on July 3, 1933 by Romania, Estonia, Latvia, Poland,
Turkey, the Soviet Union, Persia, and Afghanistan. The subject has
also been considered by international committees and by commentators
whose views are entitled to the greatest respect. It had been little
discussed prior to the first World War but has received much
attention as international law has evolved its outlawry of aggressive
war. In the light of these materials of international law, and so far
as relevant to the evidence in this case, I suggest that an
"aggressor" is generally held to be that state which is the
first to commit any of the following actions:
(1) Declaration of war upon another
state;
(2) Invasion by its armed forces, with or without a declaration
of war, of the territory of another state;
(3) Attack by its land, naval, or air forces, with or without a
declaration of war, on the territory, vessels or aircraft of another
state; and
(4) Provision of support to armed bands formed in the territory
of another state, or refusal, notwithstanding the request of the
invaded state, to take in its own territory, all the measures in its
power to deprive those bands of all assistance or protection.
And I further suggest that it is the general view
that no political, military, economic, or other considerations shall
serve as an excuse or justification for such actions; but exercise of
the right of legitimate self-defense, that is to say, resistance to
an act of aggression, or action to assist a state which has been
subjected to aggression, shall not constitute a war of aggression.
It is upon such an understanding of the law that our evidence of
a conspiracy to provoke and wage an aggressive war is prepared and
presented. By this test each of the series of wars begun by these
Nazi leaders was unambiguously aggressive.