23 Nov. 45
national Military Tribunal. Article 6, so far as pertinent here,
reads as follows:
"Article 6. The Tribunal
established by the Agreement referred to in Article 1 hereof forthe
trial and punishment of the major war criminals of the European Axis
countries shall have the power to try and punish persons who, acting
in the interests of the European Axis countries, whether as
individuals or as members of organizations, committed any of the
following crimes.
"The following acts, or any of them, are crimes coming
within the jurisdiction of the Tribunal for which there shall be
individual responsibility:
"(a) CRIMES AGAINST PEACE: namely, planning,
preparation, initiation or waging of a war of aggression, or a war in
violation of international treaties, agreements or assurances, or
participation in a Common Plan or Conspiracy for the accomplishment
of any of the foregoing..."
Subparagraphs (b) and (c) of Article 6 are not
pertinent to this aspect of the case. However, the unnumbered final
paragraph of Article 6 is of controlling importance on this aspect of
the case. That paragraph reads:
"Leaders, organizers, instigators,
and accomplices participating in the formulation or execution of a
Common Plan or Conspiracy to commit any of the foregoing crimes are
responsible for all acts performed by any persons in execution of
such plan."
In receiving evidence on this aspect of the case I would request
the Tribunal to have in mind five principles derived from the
portions of the Charter I have just read:
(1) The Charter imposes "individual responsibility" for
acts constituting "Crimes against Peace";
(2) The term "Crimes against Peace" embraces planning,
preparation, initiation, or waging of illegal war;
(3) The term "Crimes against Peace" also embraces
participation in a Common Plan or Conspiracy to commit illegal war;
(4) An illegal war consists of either a war of aggression, or a
war in violation of international treaties, agreements, or
assurances. These two kinds of illegal war might not necessarily be
the same. It will be sufficient for the Prosecution to show that the
war was aggressive irrespective of breach of international treaties,
agreements, or assurances. On the other hand it would be sufficient
for the Prosecution to show that the war was in violation of
international treaties, agreements, or assurances irrespective of
whether