4
Dec. 45
Thus,
there is no doubt that by the time the National
Socialist State of Germany had embarked upon the
preparation of the war of aggression against the
civilized world and by the time it had
accomplished that design, aggressive war had
become, in virtue of the Pact of Paris and the
other treaties and declarations to which I have
referred, illegal and a crime beyond all
uncertainty and doubt. And it is on that
proposition, and fundamentally on that universal
treaty, the Kellogg-Briand Pact, that Count Two
of this Indictment is principally based.
The
Prosecution has deemed it necessary —
indeed, imperative — to establish beyond
all possibility of question, at what I am afraid
may appear to be excessive length, that only
superficial learning or culpable sentimentality
can assert that there is any significant element
of retroactivity in the determination of the
authors of this Charter to treat aggressive war
as conduct which international law has
prohibited and stigmatized as criminal. We have
traced the progressive limitation of the rights
of war, the renunciation and condemnation of`
wars of aggression, and above all, the total
prohibition and condemnation of all wars
conceived as an instrument of national policy.
What statesman or politician in charge of the
affairs of nations could doubt, from 1928
onwards, that aggressive war, or that all war,
except in self-defense or for the collective
enforcement of the law, or against a state which
had itself violated the Pact of Paris, was
unlawful and outlawed? What statesman or
politician embarking upon such a war could
reasonably and justifiably count upon an
immunity other than that of a successful outcome
of the criminal venture? What more decisive
evidence of a prohibition laid down by positive
international law could any lawyer desire than
that which has been adduced before this
Tribunal?
There are, it is true, some
small town lawyers who deny the very existence
of any international law; and indeed, as I have
said, the rules of the law of nations may not
satisfy the Austinian test of being imposed by a
sovereign. But the legal regulation of
international relations rests upon quite
different juridical foundations. It depends upon
consent, but upon a consent which, once given,
cannot be withdrawn by unilateral action. In the
international field the source of law is not the
command of a sovereign but the treaty agreement
binding upon every state which has adhered to
it. And it is indeed true, and the recognition
of its truth today by all the great powers of
the world is vital to our future peace-it is
indeed true that, as M. Litvinov once said, and
as Great Britain fully accepts:
''Absolute
sovereignty and entire liberty of action
only belong to such states as have not
undertaken international obligations.
Immediately a state accepts
international obligations it limits its
sovereignty."