OFFICE OF CHIEF OF COUNSEL 166B
FOR WAR CRIMES
[3] Evidence Division
Library Branch

MILITARY TRIBUNAL NO. IV.

CASE 11

S p e c i a l D o c u m e n t

(Document Book W o e r m a n n X )

Document Woermann 184

(Exhibit 201)

Legal Opinion

of Prof. Dr. Erich Kaufmann

on the

treatment of "Crimes against Peace" in international and

criminal Law.

Presented by

Dr. Alfred S c h i l f

Attorney
Nuernberg

DOCUMENT BOOK X WOERMANN
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Exhibit No.

I.

(1) It is significant that in the proceedings against the leading war
criminals before the IMT both the Chief Prosecutor of the Western Powers
in their statements and the Tribunal itself in its opinion did not
consider it sufficient simply to accept as binding legal basis of the
proceedings the London Agreement of 8 August 1945 and the Charter forming
an integral part of the agreement, which defines the constitution,
jurisdiction and tasks of the Tribunal. On the contrary, they considered
it necessary to examine this basis in the light of more general and
higher principles of Law. Unless they had recognized such general and
higher legal principles, to which the Charter itself is subordinate,
they could have ignored the objections of the Defense against the basis
of the proceedings in the same manner as this was done by the Soviet
Chief Prosecutor in his statement in the session of 8 February
1946:

" In the international field the basic source of law and the
only legislative act is a treaty, an agreement between states....
" .....The International Military Tribunal was established for
the trial and punishment of major war criminals on the basis of
the London Agreement, dated 8 August 1945, signed by the four
countries acting in the interests of all freedom-loving nations.
Being an integral part of this agreement, the Charter of the
International Military Tribunal is to be considered an unquestionable
and sufficient legislative act, defining and determining
the basis and procedure for the trial and punishment of major
war criminals. Provoked by fear of responsibility or, at best,
by insufficient knowledge of the organic nature of international
justice, the references to the principle nullum crimen sine
lege, or to the principle that "a statute cannot have retroactive
power", are not applicable because of the following fundamental,
decisive fact: The Charter of the Tribunal is in
force and in operation and all its provisions possess absolute
and binding force....." ( Official Publication of the IMT
Trial, Vol. VII,p. 147-148).

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(2) The Chief Prosecutor of the United States. Justice JACKSON,
represents a different opinion. In order to escape the application of
those principles, he tries to prove that the Tribunal has only to
apply the Law as it was in force at the time of the facts of the

Indictment:

"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."

It is true that he emphasizes that International Law is concerned
"only with States"; but he adds:

"The principle of individual responsibility for piracy and brigandage,
which have long been recognized as crimes punishable
under international law. is old and well established. That is
what illegal warfare is."

"While it is quite proper to employ the fiction of responsibility
of a state or corporation for the purpose of imposing a
collective liability, it is quite intolerable to let such a
legalism become the basis of personal immunity."

(3) Sir Hartley SHAWCROSS, the Chief Prosecutor of the United Kingdom,
used similar arguments. According to the provisions of the
Charter wars of aggression art international crimes

" Yet, though that is the clear and mandatory law governing
the jurisdiction of this Tribunal, we feel that we should
not be discharging our task in the abiding interest of
international justice and morality unless we showed to the
Tribunal, and indeed to the world, the position of this provision
of the Charter against the general perspective of international
law. For, just as in the experience of our country,
some old English statutes were merely declaratory of the
common law, so today this Charter merely declares and creates
a jurisdiction in respect of what, was already the law of

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He, too, refers to pirates and war criminals, when he emphasizes
that "the principle of international responsibility
of the individual for an offense under International Law is not
altogether new"; the only new feature is that it is now applied
in "far larger fields"; this only "fills a gap in international
criminal procedure".

"In thus interpreting, declaring , and supplementing the existing
law, these states are content to be judged by the verdict
of history. Securus judicat orbis terrarum. Insofar as the
Charter of this Tribunal introduces now law, its authors have
established " precedent for the future - a precedent operative
against all, including themselves,but in essence that law,
rendering recourse to aggressive war an international crime,
had been well established when the Charter was adopted. It
is only by way of corruption of language that it can be described
as a retroactive law."

(4) The weak points in these arguments were evidently clearly felt by
the French Chief Prosecutor de Menthon.

" Acts committed in the execution of a war are assaults on
persons and goods which are themselves prohibited but are
sanctioned in all legislations. The state of war could
make them legitimate only if the war itself was legitimate.
Inasmuch as this is no longer the case since the Kellogg-Briand
Fact, those acts become purely and simply common
law crimes." International Military Tribunal,Proceedings,
vol. V,p.387).

(Official Publication of the IMT Trial,Vol. V,German p.436).
In case of violation of a contract under International Law by
one of the contracting parties the other contracting parties have
the right to hold him responsible; the latter is then under the
obligation to proceed against his nationals, who

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DOCUMENT BOOK X WOERMANN
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committed the act punishable under International Law, especially
if this act has violated the life and property of citizens of
the other contracting party.

"International responsibility normally involves the collective
state, as such, without in principle exposing the individuals
who have been the perpetrators of an illegal act. It is within
the framework of the state, with which an international responsibility
rests, that as a general rule the conduct of the men who
are responsible for this violation of international law may be
appraised. They are subject, as the case may be, to political
responsibility or the penal responsibility before the assemblies
or the competent jurisdictions

The reason for this is that normally the framework of the
state comprises the nationals: The order of the state assumes
the exercise of justice over a given territory and with regard
to the individuals whom it includes, and the failure of the
state in the exercise of this essential mission is followed by
the reaction and the protests of third powers, notably when
their own nationals are involved.

But in the present situation there is no German State.
Since the Surrender Declaration of 5 May 1945 and until the day
when a government shall have been established by the agreement
of the four occupying powers, there will be no organ representing
the German State....."

(l.c., Vol. V,p. 389)

....."Today supreme authority is being exercised over the whole
German territory, in regard to the entire German population,by the
Four Powers acting jointly. It must, therefore, be allowed that
the states which exercise supreme authority over the territory
and population of Germany, can submit this guilt to a Court's
jurisdiction. Otherwise, the proclamation that Germany has violated
the solemn covenant which it has undertaken, becomes meaningless.

There is also involved a penal responsibility incurred for
a series of acts, qualified as crimes, which were committed
against nationals of the United Nations. These acts which are

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DOCUMENT BOOK X WOERMANN
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not juridically acts of war but which have been committed as such
upon the instigation of those who bear the responsibility for the
launching of the so-called war, who have committed aggression upon
the lives and the property of nationals of the United Nations, may,
by virtue of the territorial principle as we have shown above, be
brought before a jurisdiction constituted for this purpose by the
United Nations, even as war crimes, properly speaking, are now being
brought before the tribunals of each country whose nationals have
been victims thereof."

(1.c.p.389)

(5) What is the attitude of the IMT judgment to these fundamentally
divergent arguments?

In a decisive point the Tribunal has adopted the French standpoint.
It also bases its jurisdiction on the power of command of
the Allied powers;accordingly it does not regard itself as an international
Tribunal in the proper sense of the word, but as an

international Occupation Tribunal.

"The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world. The Charter is not an arbitrary
exercise of power on the part of the victorious Nations,
but in view of the Tribunal, as will be shown, it is the
expression of international law existing at the time of its
creation; and to that extent is itself a contribution to international
law." ...

(l.c.p.219)

In other fairly important points the Tribunal, however, differs from
the French argumentation. Concerning the criminal responsibility of
individuals it does not adopt the French thesis, according to which
the Inter-Allied Occupation Tribunal, which takes the place of the
theoretically competent German Courts, must apply only the common
criminal law of the land, but starts from the view that it can base
its judgment on valid rules of International law, and proves the
lawfulness of the use of rules of international law by national
Courts with the practice of the Supreme Court of the United States,
which likewise adopted rules of international law in numerous cases.
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" In the recent case of Ex Parts Quirin ( 1942
317,U.S.l) before the Supreme Court of the
united States, persons were charged during
the war with landing in the United States for
purposes of spying and sabotage. The late Chief
Justice STONE, speaking for the Court, said:

"From the very beginning of its history
this Court has applied the law of war
as including that part of the law of
nations which prescribes for the conduct
of war, the status, rights, and
duties of enemy nations as well as
enemy individuals."
He went on to give a list of cases tried by
the Courts, where individual offenders were
charged with offenses against the laws of
nations, and particularly the laws of war."

(l.c.vol. I,p. 223).

The foregoing brief outline of the arguments of the four
Chief Presecutors and the IMT, which we simply reported
without any critical comment, shows strongly divergent
views, of which it is impossible to say that they support
and complete each other. Rather we gain the impression that
the French thesis rejects the basis of the Soviet thesis
and is looking for a completely new legal basis for the
proceedings, which has only partly been adopted by the
Tribunal.

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DOCUMENT BOOK X WOERMANN
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"All persons belonging to enemy countries, however,highly placed,
without distinction of rank, and including Chiefs of State,who
are responsible for offenses committed in violation of the laws
and customs of war or the laws of humanity,can be subjected to
legal prosecution".

Also in the further course of its arguments the Commission strictly

adheres to the distinction between

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DOCUMENT BOOK X WOERMANN
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a) actes qui ont amene a la guerre mondiale et qui en
ont accompagne le debut

a) acts which led to the world war and which accompanied
its outbreak,

and b) violations des lois et coutumes de la guerre et des
lois de l'humanite.

b)Violations of the laws and customs of war and of the
laws of humanity.

(2) As regards the first category,i.e. the facts designated in the
Charter of the IMT and in Control Council Law No. 10 as "Crimes
against Feace",the commission further distinguishes between the
fact of the "deliberate planning of a war of aggression" and the
violation of the neutrality of Belgium and Luxemburg. As regards
the war of aggression it states that this is

(Kraus-Roediger,II,p.1260)

"un acte que la conscience publique reprouve et que 1'
Histoire fletrit, sons qu' a raison du caractere,purement
facultatif,des institutions pacifiques cries a La
Haya (Commission Internationale d'Enquete, Meditation,
Arbitrage) une guerre d'agression puisse etre consideree
comme un acte regoureusement contraire au droit positif...",
"an act reproved by public conscience and denounced by history,
quite apart from the fact that by reason of the
character, theugh purely optional, of the pacific institutions
established at the Hague (International Commission
of Enquiry, Mediation,and Arbitration) a war of aggression
may be regarded as an act strictly contray to positive
law...".

Accordingly the Commission adds:

(Kraus-Roediger,Il,p.l26l)

"toute enquere approfondie sur les auteurs responsables s*
*terdre a des evenements qui se sent passes pendant un
grand nomere *'annees dans plusieurs pays d'Europe,et
souleveralt forcement beaucoup de prblemes ardus et complexes,
qui releveraient, plutot des recherches d historiens
et d'hommes d'Etat que d'un Tribunal qualifie pour
juger les violations des lois et coutumes de la guerre."

"Notres avis n'est done pas que les actes qui ont amene
1a guerre fassent l'objet d'uns mise en accusation de leurs
auteurs et de leurs ponrsuites devant un tribunal."

DOCUMENT BOOK X WOERMANN
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"Every thorough inquiry into the responsible authors of
the war must extend to events occurring over many years
in several countries of Europe and of necessity posing
many hard and complex problems, which are rather a subject
for "the researches of historians and statesmen, than
of a Tribunal qualified to judge the violations of the
laws and customs of war."

"We therefore do not propose that the acts which have led
up to the war should become the subject of an indictment
of their authors and their activities before a Tribunal".

The case is different according to the Commission as regards
the violation of the neutrality of Belgium and Luxemburg. Here
a violition of the Treaties of 1839 and 1867 exists.

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(Kraus-Roediger,II,p.l26l)

"Ces traites liaient les Hautes Parties Contractantes et entrainent
une obligation qui *st reconnue par le droit des gens.
Les traites de 1839, pour la Belgique, celui de 1867, pour de
Luxembourg, ont ete deliberement violes, non par une Puissance
quelconque, mais par une Puissance qui precisement avait promis,
non seulement de respecter la neutralite , mai meme de la defendre,
si quelque autre Puissance y portait atteinte. L'infidelite du
garant a son devoir de garantie ajoute encore a la gravite du
manquement a la parole donnee: c'est, d'autres part, le mepris absolu
de l'independance d'Etats trop faibles pour exercer une resistance
suffisante, un attentat contre la vie d'une nation lorsqu'
elle resiste, un attentat contre sa personalite, lorsqu'avant qu'
elle resiste, l'agresseur,se faisant tentateur, lui offre des compensations
materielles dont son honneur serait le prix. La violation
du droit international s'aggrave ici de l'atteinte a l'independance
des Etats principe fondamental do droit des gens."

"These Treaties were binding on the high contracting parties and imposed
an obligation which is recognized by International Law.
The 1839 Treaty for Belgium and the 1867 Treaty for Luxemburg were
deliberately violated, not by a power of any description, but by
a power which had precisely promised not only to respect the neutrality,
but even to defend it, in case of violation by any other
power. The failure of the guarantor to carry out his duties further
increases the gravity of the breach of faith; in this way security
is changed into danger, defense into attack, protection into assault.
Such conduct involves on the other hand the absolute contempt for
the independence of States who are too weak to put up a resistance
sufficiently strong, an attempt on the life of a nation in case she
resists, an attempt on her personality if before her resistance the
aggressor by way of temptation offers her material compensations
which can be accepted only at the expense of her honor. The violation
of International Law is in this case aggravated by the violation
of national independence, which is the fundamental principle
of the Law of Nations."

In spite of thus emphasizing in unusually sharp expressions that this
constitutes a grave crime against international Law, the Commission goes
on to state:

"La Commission est cependant d'avis qu'aucune poursuite au crimiminel
peut-etre entamee centre les autorites ou individus responsables,
et notamment centre l'ex-Kaiser, du chef special de la violation
de ces neutralites. Mais la gravite de ces courtages aux
principes du droit de gens et a la bonne foi internationale est
telle que la Commission estime qu'ils doivent etre l'objet d'une
condamnation formelle par la Conference."
"Nevertheless the Commission is of opinion that the responsible
authorities or individuals and more especially the ex-Kaiser
should not be prosecuted as criminals under the special head of
the violation of the neutrality of these countries. But the gravity
of these outrages against the principles of the Law of Nations and
of international good faith is such that the Commission considers
that they should be made the subject of a formal condemnation by
the Conference."

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organ in order to deal as they deserve with the authors
of such acts.

"4.It is desirable that for the future penal sanctions should
be provided for such grave outrages against the elementary
principles of international law".

(Quoted from Charel Cheney Hyde, International Law, Second Revised
Edition, Vol. III, p. 2410).

The significance of the "special organ" recommended by the commission
will be discussed later on. For the time being it may be pointed out
that the Commission regards as the only possible sanction against
breaches of neutrality a "Formal condemnation by the Conference";
furthermore that in the view of the Commission a prosecution under
criminal law is not lawful at least up to that time, even in the case
of the gravest violation of the fundamental principles of International
Law, and that the Commission only makes a suggestion de lege ferenda,
namely to provide for the necessary rules which would make s prosecution
possible in future cases of this sort. Thus the Commission
starts from the view that a criminal sanction presupposes a previous
rule of law, even in the case of strong violations of International
Law.

(3) The situation is totally different according to the Commission as
regards the offenses against the laws and customs of war;

(Kraus-Roediger, II,1262)

"Tout belligerant a,selon des principes du droit international,
le pouveir et l'autorite suffisants pour juger les individus
presumes coupables des crimes dont nous avons donne une enumeration
dans le chapitre II, relatif aux violations des lois et
coutumes de la guerre, si ces individus ont ete faits prisonniers
ou sent autrement tombes en son pouveir.
Tout pays belligerant passede, ou sinon il a la faculte d'instituer,
d'apres sa propre legislation, un tribunal,civil ou
militaire, approprie pour juger les cas de ce genre....."
" According to the principles of International Law each belligerent
has sufficient power and authority to try the individuals presumed
guilty of crimes listed by us in Chapter II on the violations
of the laws and customs of War, if these individuals have been
taken Prisoner or have otherwise fallen into his hands. Every belligerant
country possesses, or at least has the possibility to
establish by its own legislation, a civil or military tribunal
to try and judge such cases...."
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In the case of "war criminals" in the proper sense of the word,\then,
criminal proceedings are considered lawful:

( Kraus-Roediger,II,1263)

"centre toutes autorites civiles ou militaires, appartenant
a des pays ennemis, si haut placees qu'elles aient ete, sans
distinction de rang, chefs d'Etat compris, qui auraient ordenne
des actes en violation des lois ou coutumes de la guerre, ou qui,
en connaissance de cause et ayant le pouvoir d'intervenir, se seraient
abstenues d'empecher ou de prendre des dispositions pour
empecher, arreter ou reprimer de pareils actes, sans que ces cas
d'abstention puissent servir d'excuse aux auteurs directs",.....

"Against all civil or military authorities belonging to enemy
countries,however highly placed and regardless of rank, including
Chiefs of State, who have ordered any acts in violation of
the laws and customs of war or who, in full knowledge of the case
and having the possibility to intervene, failed to prevent or to
take the necessary measures to prevent, to stop or to suppress such
acts, without, however, such failure providing any excuse for the
direct authors of such acts....".

It is true, to make such punishment possible, the Allies must have the
individuals suspected of such crimes in their power. Accordingly the
Commission suggests to include special provisions in the peace treaty,
in virtue of which Germany would be obliged to recognize the Courts to
be established for the investigation of such crimes, to deliver the
individuals to be prosecuted, and to turn over the necessary evidence
to the Allies.

(4) However important these statements of the majority of the Commission
may be, they by no means reproduce in all points the unanimous
opinion of all nations concerned regarding the valid international
law. The delegates of the United States of America considered it necessary
to oppose to this majority report their own dissenting opinion,
and did so, although they had tried from the start of the Commission's
consultations

"d'accomoder les differends qui existaient, de trouver une formule
acceptable pour tous, et de fournir,si possible,un rapport
unanime. Si, ce but ne fut ...
"to harmonize existing differences, to find a formula acceptable
to all, and to produce, if possible,an unanimous report. If this
aim was not
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DOCUMENT BOOK X WOERMANN
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"pas atteint, ce ne fut pas faute d'effort de la part d'
aucun des membres de la Commission. II ne le fut pas parce
que, apres qu'on eut essaye de tous les moyen d'accomodement
franchement et ouvertement, on no put trouver de moyen pratique
de s'entendre sans faire l'abandon,de principes fondamentaux.
Les Representants des Etats-Unis ne purent le faire; ils ne
pouvaient pas d'avantage demander a d'autres de le faire."....

"attained, this was not for any lack of good will on the part of
any member of the Commission. It was not attained, because, after
having tried out all means of compromise frankly and openly, no
practical means could be found to come to an understanding
without abandoning fundamental principles. The representatives
of the United States could not do it; even less could they demand
the others to do it." .....

This remark shows already that the statements of the majority of the
Commission cannot be regarded as the expression of universally recognized
principles of law. The dissenting opinion of the American delegation
deserves all the more attention, since it bears the signatures
of two personalities of the caliber of Robert LANCING and James BROWN
SCOTT.

to
The first argument of the American members is/the effect that
the majority report ignores the fundamental difference between moral
and legal guilt. Only the latter can be tried and judged, since a
Court may judge and impose sentences only in accordance with previously
established rules; moral guilt can only give rise to political or
moral sanctions;

(Kraus-Roediger, II,1313)
"les Delegues americans ent declare qu'il y avait deux categories
de responsabilites, celles d'une nature legale et celles
d'une nature morale,que les infractions prevues par la loi
etaient possibles de jugement et de sanctions par les tribunaux
appropries, muis, que les crimes moraux, tout iniques et
infames qu'ils puissent etre et quelle que puisse etre 1'
horreur de leurs resultats, ne etaient pas du ressort de la
procedure judiciaire et qu'ils etaient seulement possible d'
une sanction morale"...

"The American Delegates declared that there are two categories
of responsibility, those of a legal nature and those of a moral
nature, that offenses for which provision is made by the law are
liable to judgement and sentences by duly appointed tribunals,
but that moral crimes,however iniquitous and infamous and whatever
the horror engendered by their results, could not become

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the subject of judicia1 proceedings, and that they were
only lirble to moral sanctions".

As regards the guilt incurred in the outbreak of the war and the
concomitant violation of the neutrality of Beleium and Luxemburg
they are therefore of opinion:

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(Kraus-Roediger,II,1317)
"Que ces actes doivent etre condamnes on termes explicites,
et que leurs auteurs doivent etres voues a l'execration de
l'humanite."

"that these acts must be condemned in explicit terms, and that
their authors must be given up to the execration of humanity"

Accordingly the American Delegation agrees to the conclusions as far
as they suggest a formal condemnation by a conference; but is is unable
to agree to the following paragraph, which calls for the formation
of an "organe speciale" for the trial of the authors of the
war:

(Kraus-Roediger,II,1320/1321)
"jusqu'ici les auteurs de guerres, quelqu'injuste que cela
puisse etre dans le domaine de morale, n'ont pas ete cites
devant une cour de justifice, sous le coup de poursuites au
criminel pour y etre juges at chaties."

"Les Delegues americains croient que cette conclusion est incompatible
a la fois avec la raisennement de cette partie et
avec la premiere et la seconde conclusion, et que, "dans une
matiere absolument sans precedent", pour cites les termes
exacts de la troisieme conclusion, ils n'ont a faire ni commentaires *les
actes en question sent criminals, en ce seus
qu'ils sent punissables par la loi, ils ne comprennent pas
pourquoi le rapport ne propos serait pas que ces actes soient
punis, d'apres les termes memes de la loi. Si, d'autre part,
il n'y a pas de 1oi qui en fasse des crimes ou qui fixe de
penalite centre leurs auteurs, ce sent des crimes moraux, non
pas legaux, et les Delegues amecricains ne voient pas qu'il soit
opportun ou meme convenable de creer un organisme special pourpour
suivre les auteurs de pareils actes." *ni critiques.Cependant
ils font observer que,si

of
"Up to the present the authors/wars, however unjust such an
act my be in the moral sphere, have not been prosecuted as
criminals and brought to trial before a Court of Law to be
judged and sentenced by it..."

"The American delegates believe that this conclusion is incompatible
at once with the reasoning of this part and with the
first and second conclusion, and that ''in an absolutely new and
unprecedented matter", to quote the exact terms of the third
conclusion, they have to state neither comment nor criticism.
Nevertheless they want to state that, if the acts in question
are criminal in the sense of being punishable by the law, they
do not understand why the report does not propose the punishment
of these acts according to the proper terms of the law. If, on
the other hand, there is no law which renders these acts punishable
and fixes a penalty against their authors, then these acts are
moral, and not legal crimes, and the American Delegates do not
see that it would be opportune or even convenient to create a
special organ for the prosecution of the authors of such acts."

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(5) In view cf these fundamental principles of law they also
consider the punishment of the former German Emperor illegal.
Not only is there no "precedent" in the modern practice of the
nations for the punishment of Heads of State, Such punishment
is also contrary to the principles laid down by Chief Justice Marsha11
in re SCHOONER EXCHANGE vs. MACFADDON (7 Cranch 116).

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(Kraus-Roediger,II,p.l319) 1'
"La loi d'apres laquelle est responsible le chef de/Etat est la
loi de sons pays, non pas la loi d'un pays etranger ou d'un groupe
de pays; le tribunal devant lequel il est responsible,est le tribunal
de son pays,non celui d'un pays etranger ou d'un groupe de
pays, et le chatiment a infliger est le chatiment prescrit par la
loi en vigeur au moment ou l'acte a ete commis, et non pas un
chatiment cree apres l'accomplissement de l'acte."
.....
....."Les Delegues americains creient que les observations ci-
dessus s'appliquent a la responsabilite du chef d'un Etat en ce
qui concerne la violation de la loi positive dans le sens strict
et legal du terme, l'intention n'a pas ete de les appliquer a
ce qu'on pourrait appeler des delits politiques et des sanctions
politiques.
Ce sent la des questions du ressort des hommes d'Etat,et
non des juges, et c'est a eux de determiner si oui ou non les violateurs
des Traites garantissant la neutralite de la Belgique et
du Luxembourg doivent etre soumis a une sanction politique."

"The law,according to which the Head of State is responsible,is the
law of his own country, not the law of a foreign country or group
of countries; the tribunal before which he is responsible is the
tribunal of his own country, not that of a foreign country or group
of countries, and the punishment to be inflicted is the punishment
prescribed by the law in force at the moment when the act was committed,
and not a punishmnent created after the accomplishment of the
act."
.....
....."The American Delegates believe that the above observations
apply to the responsibility of the Head of State concerning the violation
of the positive law in the strict and legal sense of the term;
there has been no intention to apply them to what may be called
political crimes and politicl sanctions.
These are questions for which statesmen and not judges are competent,
and it is up to them to determine whether or not the violators
of the Treaties guaranteeing the neutrality of Belgium and
Luxemburg should be subjected to a political sanction."

(6) For considerations such as these the American Delegates consider also
a conviction for violation of the laws and principles of humanity illegal.

(Kraus-Roediger, II,p.l317/l8):
"... Les lois et coutumes de la guerre sont un criterium certain que
l'on peut trouver dans les livres qui font autorite, et dans l'experience
pratique des Nations. Les lois et principes d'humanite
varient avec les individus, qui, sans che*cher d'autres raisons,
devrait, les soustraire a leur application par une cour de justice,
surtout si cette derniere est chargee de l'application de la loi
criminelle. Les Delegues americains ont done souleve des objections
quant aux references aux lois et aux principes d'humanitd, qui se
trouvent dans le rapport a propos de ce qu'ils croyaient devoir etre
une procedure judiciaire, etant donne qu'a leur avis, les faits
etablis, devaient etre des violations ou infractions des lois et
coutumes de la guerre, et que les individus designes pour passer
en jugement et etre chaties pour les actes commis pendant la guerre,
ne devaient etre que les individus coupables d'actes qui auraient
pu etre commis en violation des his et coutumes de la guerre".....
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DOCUMENT BOOK X WOERMANN
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Exhibit No.

'.... The laws and customs of war are a sure criterion to be
found in authoritative books and in the practical experience
of the nations. The laws and principles of humanity vary
from individual to individual, which, without looking for
other reasons, should exclude them from application by a
Court of Law, above all if the latter is charged with the
application of criminal law. The American Delegates have
therefore raised objections as regards the references to the
1aws and principles of humanity contained in the report
dealing with what they believed should be judicial proceedings,
in view of the fact that in their opinion the established
facts must be violations and infractions of the laws and
customs of war and that the individuals designated to be
tried and punished for acts committed during the war, should
only be individuals guilty of acts which may have been committed
in violation of the laws and customs of war"

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DOCUMENT BOOK X WOERMANN
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Exhibit No.

(7) A further weighty objection against the majority opinion is also
raised by the American Delegates in connection with the majority opinion's
doctrine of crimlnal responsibility,according to which an "indirect responsibility"
is supposed to exist in the sense that criminal responsibility
must be assumed also, where illegal acts have not been prevented.

The American Delegates refused to agree to this "doctrine of negative
crime" (p. 1313/14). It is not permissible to impose a punishment on
persons

(Kraus-Roediger,II,1324)
"parce qu'elles n;avaient ni empeche, ni arrete, ni reprime,des violations
des lois et coutumes de la guerre."
" A ce criterium des responsabilites, les Delegues americains se
sent invariablement opposes. Il existe une grande difference entre
le fait de punir un individu qui a commis ou donne l'ordre, alors,
qu'il avait le pouveir de commettre un acte constituant un crime
et celui de punir un individu qui n'a pas empeche,arrete ou reprime
des violations des lois et coutumes de la guerre. Dans le
premier cas, la personne execoute l'acte ou donne l'ordre de l'
executor, elle commet ainsi une infraction positive; dans le
deuzieme cas on la punit pour les actes commis par d'autres,sans
fournir l* preuve qu'elle etait au courant de l'execution des ces
actes, ou que, si elle etait ou courant, il lui etait possible d'en
empecher l'execution.Il faut d'abord, pour etablir la responsabilite
dans des cas de cette nature, que la personne recherchee ait eut
connaissance de l'execution d'actes d'un caractere criminel, et
qu'elle ait ou le pouvoir et l'autorite de les empecher, de les
arreter, ou de les reprimer."....

"because they had neither prevented, nor arrested,nor repressed
any violations of the laws and customs of war".
"This criterion of responsibility has been invariably opposed by the
American Delegates. A great difference exists between the punishment
of an individual who has committed or given an order when he had
the power to commit an act constituting a crime, and the punishment
of an individual who has not prevented, arrested or repressed any
violations of the laws and customs of war. In the first case the
person executes or gives the order to execute the act, and thus
commits a positive infringement; in the second case the person is
punished for acts committed by others without any proof being provided
that he was kept informed on the execution of these acts,or
that, if he was kept informed, it was possible for him to prevent
their execution.It is first of all necessary, in order to establish
the responsibility in cases of this kind that the investigated person
had no knowledge of the execution of acts of a criminal nature,and
that he had either the power or the authority to prevent arrest
or repress them..."
The principles which accordingly must regulate the appraisal of individual
criminal responsibility, were deemed of such importance by the American
Delegates that they formulated them in a special Memorandum(p.1329/30).
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DOCUMENT BOOK X WOERMANN
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Exhibit No.

(8) It is evident that the American Delegates are untiring in their efforts
to emphasize that a criminal sentence passed by a judge presupposes
a law antecedent to the crime, by which the act is qualified as a
crime and threatened with punishment. Therefore no criminal conviction
for war guilt because of the absence of a rule of law as well as of a
legal sanction in this case; but no criminal conviction even for the violations
of neutrality, because in this case the rule of law exists, but
the penal sanction is missing; the same applies to violations of the
laws of humanity because of the absence of a clear rule of law and of pen
sanctions. Liability to punishment in the case of violations of the laws a
customs of war only in accordance with previous penal laws and in so far
as a positive legal guilt is proved:

(Klaus-Roediger,II,1323,25,26,27)
"Les Delegues americains sent d'avis que les nations doivent employer
un organisme tout pret,qui a ete eprouve et reconnu competent,en
memetemps qu'une legislation et une procedure etablies, par consequent
connues d'avance...."
...."La guerre a ete et est par sa nature meme inhumaine. Nais les
actes conformes aux lois et coutumes de la guerre, quoiqu'ils soient
inhumains, ne sent pas cependant susceptibles d'etre punis par une
Cour de justice. Un tribunal judicaire ne s'occupe que de la loi
existants et n'applique que la loi existante , laissant a un autre
tribunal les infractions a la loi morale et les actions contraires
aux loi et aux principes d'humanite.
..."Ils etaient d'avis qu'un acte ne saurait etre qualifie crime
au sens juridique du mot, a moins de l'etre par la loi, et que le
fait de commettre un acte qui est un crime aux yeux de la loi ne
pouvait tomber sous le coup de la loi que si cette dernire edictait
les peines * infliger. Ils avaient peut-etre plus que leurs
collegues conscience des difficultes que la chose pouvait entrainer,
vu que cette question s'est deja presentee dans l'Union americaine
que se compose d'Etats. Dans le proces des Etats-Unis contre Hudson
(7 Cranch, 32,) jugee par la Cour supreme des Etats-Unis en 1812,
il a ete decide, "que le pouveir

"The American Delegates hold the view that the nations should make
use of a prepared organism of proved and recognized competence, and
at the same time an established legislation and procedure, which in
consequence is known beforehand...."
...."War was and is in its nature inhuman. But all acts conforming
to the laws and customs of war, although they are inhuman, are nevertheless
not punishable by Court of Law. A judicial tribunal deals
only with the existing law and applies only the existing law,leaving
to another tribunal the infringements of the moral law and the action
contrary to the Law and principles of humanity.
...."They are of opinion that an act cannot be qualified as a crime
in the legal sense of the word, unless it is so qualified by the Law,
and that the commission of an act which is a crime in the eyes of the
law cannot fall under the law unless this law prescribes the punishments
to be inflicted. They were perhaps more than their colleagues
conscious of the difficulties inherent in the matter, in view of the
fact that this question has already come up in the American Union
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DOCUMENT BOOK X WOERMANN
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Exhibit No.

"which is composed of States. In the case of the United States
against Hudson (7 Cranch,32), tried by the Supreme Court of the
United States in 1812, it was decided, "that the legislative power
of the Union must first qualify a criminal act, announce the
punishments for it, and determine the Tribunal which is to try
the infringement"....

"legislatif de l'Union doit d'abord qualifier un acts de crime,
on enoncer les peines, et determiner le tribunal qui devra connaitre
de l'infraction"...
...."Ils etaient opposes * la creation d'un tribunal nouveau,d'une
loi et de paines nouvelles qui seraient de nature e x p o s t
f a c t o et ainsi contraires a un article formel de la constitution
des Etats-Unis et on conflit avec la Loi et les pratiques
de communautes civilisees." ....

"... They were opposed to the creation of a new tribunal, of a new
law and new punishments, which in their nature would be ex post
facto and thus contrary to an express article of the constitution
of the United States and in conflict with the law and the practices
of civilized communities...."

The American report concludes by stating:

(Kaus-Roediger,II,1328/29)

"..permettre au sentiment ou a l'indignation populaire d'influencer
leur jugement aurait ete une violation de leur devoir de membres
de la Commission des responsabilites.
"Ils soumettent a la Conference lour opinion que la Commission n'a
pas adoptee, persuades que l'application d'une loi edictee et connue
avant sa violation peut seule arriver d faire prevaleir la justice
dans les relations internationales comme elle a reussi a le faire
dans les relations entre individus chez toutes les Nations civilisees.

"..to permit popular sentiment and indignation to influence their judgment
would have been a violation of their duty on the part of the
members of/the Commission of responsibility".
"They submit to the Conference their opinion which the Commission has
not adopted, in the conviction that the application of a law promulgated
and Known before its violation can alone result in making
justice prevail in international relations, as it has succeeded in
so doing in the relations between individuals in all civilized
nations.

(9) It goes without saying that the German Government had no knowledge of this
American dissenting opinion; it is all the more significant as a confirmation
of the law then in force that the German Government expressed a similar
opinion in its comprehensive reply-note of 29 May 1919:

(Kraus-Roediger,I, p.504):
"In Art. 227 the Allied and Associated powers publicly charge the
former German Emperor with the gravest violation of the international
moral law and of the sacred power of treaties. An emergency tribunal
to be appointed solely by the principal powers is to pass judgment,
"guided by the most exalted principles of international politics",
without being subjected to any limitation regarding the punishment
to be inflicted. To carry through these proceedings the Netherlands
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DOCUMENT BOOK X WOERMANN
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Exhibit No.

Government is to be requested to extradite the defendant."
"Although Germany's cooperation is provided for neither in the
formation of the tribunal nor in the proceedings nor in the
extradition of the defendant, the German Government would be
compelled by signing a Peace Treaty containing Art. 227 to
recognize the legality of such a prosecution, the jurisdiction
of the emergency tribunal and the lawfulness of
extradition. This cannot be done.

The intended prosecution lacks any legal basis. Existing
international law affords no penal sanction to demands and
prohibitions; no law of one of the States concerned threatens
with punishment the violation of international morality or
the breach of political treaties. Therefore according to the
Law as at present valid there is no criminal Court competent
to decide on the charge produced, for this reason the draft
would have to provide for an emergency law, and it would have
to create an emergency law, a penal law with retroactive power,
which would have to form the basis of the judgment".

In the note of the peace-conference of 16 June 1919 issued in reply,
the same legal standpoint is adopted in principle; the note states:

(Kraus-Roediger,I,p.622):
"Finally, they wish to make it clear that the public arraignment
under Article 227 framed against the German ex-Emperor has not
a juridical character as regards its substance but only in its
form. The ex-Emperor is arraigned as a matter of high international
policy, as the minimum of what is demanded for a supreme
offence against international morality, the sanctity of treaties
and the essential rules of justice. The Allied and Associated
Powers have desired that judicial forms, a judical procedure
and a regularly constituted tribunal should be set up in, order
to assure to the accused full rights and liberties in regard
to his defence, and in order that the judgment should be of
the most solemn judicial character"....

Nobody will deny that the American Delegation was right in stating an
"inconsistence", and "incompatibility" between the doctrine that there
exists only a political and moral responsibility on the one hand, and
the nevertheless appointed "special tribunal" on the other hand; the American
Delegation clearly saw that there is an inner contradiction inherent
in the distinction between the "substance" of the question and
the "form" of *s treatment. Be that as it may, the peace conference holds
the view that the arraignment for starting the war under violation of
the treties guaranteeing the neutrality of Belgium and Luxemburg, in its
substance has no "juridical character".

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DOCUMENT BOOK X WOERMANN
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Exhibit No.

(10) However, not only the dissenting opinion of the American
Delegation during the Paris peace conference is of importance as a
testimony for the then current conceptions on international law.
Art. 227 of the VersaillesTreaty has never become an element of
the international order. Quite apart from the fact that the Treaty
was not ratified by the United States of America, this is only a
Treaty ratified by the other victor nations. For the then prevailing
legal conviction the attitude of the Netherlands Government must
above all be pointed out. On 16 February 1920 the Peace Conference
had addressed to this Government the request to extradite the former
German Emperor. The Dutch Government had replied, to this request
as follows on 14 January 1920:

(Lachs, War Crimes,London 1945,p.57)

a) that Holland is not a party to Art. 227 of the Treaty of
Versailles;

b) that Holland could not accept the international duty "of
asspciating herself with an act of high internationa1
politics of the Powers":

c)should however the League of Nations establish an international
body competent to decree in a case of war on facts qualified
as crimes and provide sanctions beforehand, Holland would adhere
to this;

d)the letter invokes the fact that Holland has "at all times"
been " a land of refuge for the vanquished in international
conflicts".

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Document Book X WOERMANN
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Article 227 thus failed, not only because of the inner contradiction
attaching to it, but also by the resistance of Holland, which
coincides exactly with the basic idea of the American special vote.
Its basic idea has not been accepted by the community of civilized
nations. It cannot be referred to as a precedent. But finally I
would point out that Charles Cheney HYDE, in his report on the
*---* negotiations at the Paris Peace Conference, states expressly
(page 2412):

"It is believed that the American position was sound."
This is stated also in the "Second Revised Edition", Boston,
1945 and in the new edition printed in 1947.

III.

We must now examine which rulings were in force before 1939
or 1945 with respect to the question of the position of the individual
according to international law.

(1) Here we are first interested in the question of war crimes
in the narrow and literal sense of the word, that is to say of the
persons who violated the laws and customs of war. A brief and
pertinent reply to this question is given by Paragraph 346 of the
Rules of Land warfare of the War Department of the United States
quoted in Hackworth's "Digest of International Law", Washington,
1944, Vol. VI, page 273:

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that its citizens must expect severe punishment by the enemy's
military tribunals for Violation of the laws and customs of war, if
they are taken prisoner by the enemy. This rule, in accordance
with the severe war conditions, is intended to act as a deterrent.

This authority, therefore is granted only when a state of war
exists, as was emphasized by Sir hartley *---* the British
Chief Prosecutor, in his opening statement (official edition of the
I*T Trial, Volume III, page 107) and by the Concurring Opinion
in the Jurists' Trial before the American Military Tribunal. Indeed,
one must say that this special authority, in accordance with its
sense, may be exercised only as lone as hostilities continue, for,
with the cessation of hostilities, the particular aim of deterring
the enemy ceases to exist. Since hostilities ceased with the unconditional
surrender, the right of the Allies to punish war criminals
by their Military Tribunals also ceased to exist. According to the
customs of war, the Allies would be authorized only to punish
these individuals who committed crimes against the person, the life,
the property and the assets of their own fellow-citizens, not
against citizens of their allies. The American delegates to the
Paris Peace Conference clearly emphasized this point of view and
refused to allow American judges to participate in a military
tribunal which was to punish also non-American citizens for the
commission of war crimes. This idea also underlies Article 228
of the Treaty of Versailles.

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Document Book X WOERMANN
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If, nevertheless, not only the International Military Tribunal,
but out the American Military Tribunals extend their jurisdiction
to other persons, this is further evidence of the fact that the
Nuernberg Military Tribunals arc occupation tribunals which take
the place of the German courts normally competent and which fulfill
the duty, otherwise incumbent upon those German courts, of punishing
war criminals. Therefore, in making their decisions, they have to
apply the international military law which was in force at the time
when the incriminating act was committed, as the Military Tribunals
of all nations have always done when punishing their citizens, and
also the German Reichsgericht, which was entrusted with the punishment
of German war criminals in place of the Allied Military Tribunals
prescribed by Article 227 of the Treaty of Versailles.

Nor does the decision of the Suprene Court in re Ex Parto Quirin
quoted, in the judgment of the IMT say anything to the contrary: this
high tribunal has applied Military law over since its inception, since
it contains that part of international law which prescribes with
respect to the conduct of war the status, the rights and the duties
of enemy nations as well as of enemy individuals. The Quirin case
concerns acts of espionage and sabotage by enemy nationals in United
States territory, that is to say, it does not concern war crimes.
in the sense of violation of the regulations and customs of
military law which every belligerent state is obliged by international
law to punish, but another kind of "war crime", which is
described as "war treason" and which every belligerent state is
authorized by international law to

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Document Book X WOERMANN
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punish. The judgment of the Supreme Court concerns the punishment
of "war crimes" exclusively, and according to existing international law
could not concern anything. else.

(2) Like the punishment of captured military personnel according to
the laws of the captor nation, which is permitted by the rules of
warfare, the treatment of pirates is also a special case arising.
from the particular situation of these persons, in that they are
private individuals, who commit unlawful acts of violence against
persons and property on the high seas "without being authorized
by any sovereign State". A pirate can be seized by any ship which
he encounters and can be punished by the courts of the captor nation
in accordance with its laws. The reference made to pirates by the
two Anglo-Saxon Chief Prosecutors before the IMT as an example of the
fact that international law applies also to private individuals is
therefore completely erroneous. All factors which justify the special
treatment of piracy, the necessary order by the State and the
commission of criminal acts on the high seas, which is a res nullius,
are absent. It is therefore impossible to draw an analogical conclusion.
The IMT itself thus did not use this argument in its judgment.

(3) The fundamental question of the position of individuals in
international law was dealt with in a decision of the Permanent
Court of International Justice in the Advisory Opinion in the
dispute concerning the demands of the Danzig railway officials with
respect to the "Officials Agreement" concluded between Danzig and
Poland.

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Document Book X WOERMANN
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This includes the passage:

"According to an accepted principle of international law,
the Officials Agreement, an international agreement, cannot
in itself established directly the rights and obligations of the
individual... but the actual object of an international agreement
may, in the opinion of the Contracting Parties, be the adoption
of set rules establishing rights and obligations of the
individual, which rules may be applied by the national courts."

Thus, if in principle international law applies only to states
as such and justifies their actions, it is net impossible that in
special cases it confers certain rights or imposes certain obligations
upon individuals in connection with which the competent national
authorities have to make decisions under application of the standards
of international law. If that is the case, it is a question of
interpreting the relevant principles of international law; it depends
Whether the rights and obligations of individuals should be
established in accordance with the purpose of an international
agreement and the intentions of the contracting parties. The German
Reichsgericht takes into consideration whether "contents ,purpose
and wording" of a principle of international law have that meaning.
(4) There is no lack of examples of such applications of international
law to individuals by the national authorities. To these belongs,
for example, the international Foreigners' Law, which gives states
certain rights and imposes certain obligations upon them, but which
demands that they be applied directly by the national authorities
to the benefit or detriment of the individual concerned. To these
belong also,

"Selon un principe do droit international bien etabli,
le Beamtenabkommen, accord international, no peut
come tel creer directement des droits et obligations
pour les particuliers,.... mais l'objet meme d'un accord
international peut, dans obligations des Parties
Contractantes, etre l'adoption de regles determinees
creant des droits et obligations pour les individus
et susceptibles d'etre appliquees par les tribunaux
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Document Book X WOERMANN
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in addition to the above-mentioned rules of the laws and customs
of military law, the international common and contract law concerning
diplomatic and consular representatives, certain norms concerning
the duties of nationals of neutral states, the agreements concerning
the protection of spiritual and tangible property, of extradition,
and concerning international civil law and proceedings, etc.

International law can give states the right to punish certain
acts committed by individuals; thus, apart from war crimes, for
example, the violation of insignia or currency of a state by foreign
nationals. It c n impose upon a state the obligation to punish in
accordance with its own law certain acts which impair the interests
of the community of nations or of other states (slave trade,
foreigners' law, etc.), the so-called "crimes against international
law."

Charles Cheney NYDE corroborates the above statements with respect
to the question of "the Violations of International Law to Private Individuals"
(International Law, 1947, Vol.I, page 33). His statements
are quoted here:

"The commission of particular acts regardless of the
character of the actors, may be so detrimental to the
welfare of the international society that its international
law may either clothe a State with the privilege
of punishing the offender, or impose upon it the
obligation to endeavour to do so. The offender may be
a private individual; and when he is subjected to the
imposition of a penalty, he comes into close contact
with the law of nations. Whenever he commits acts on
account of which a country not his own may not unlawfully
proceed to punish him even though they are consummated
beyond the limits of its territory, and have

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no connection therewith, or whenever he commits acts
which the territorial sovereign of the place where
they are committed is under an obligation to endeavour
to prevent or penalize, he feels the direct consequence
of what that law permits an offending sovereign
to do, or enjoins a law-respecting sovereign to do,
In both situations, it is net unscientific to declare
that he is guilty of conduct, which the law of nations
itself brands as internationally illegal. For it is
by virtue of that law that such sovereign acquires
the right to punish and is also burdened with the
duty to prevent or prosecute."

In this connection HYDE adds the following footnote:

"In the course of the opinion of the Court in the case
of Unites States v. Arjona, 120 U.S. 479, Chief Justice
WEITE declared: "It remains only to consider those
questions which present to point whether, in enacting;
a statute do define and punish an offence against
the law of nations, it is necessary, in order to "define"
the offence, that it be declared in the statute itself
to be an "offence against the law of nations". This
statute defines the offence, and if the thing made
punishable is one which the United States arc required,
by their international obligations to use due
declaration to it is an offence against the law of nations ...
been the offence as defined is an offence against the
law of nations depends on the thing done, not on any
declaration to that effect by Congress. As has already
been seen, it was encumbent on the United States as a
nation to use due dilligence to prevent any injury
to another or its people by counterfeiting its money,
or its public or quasi public securities. This statute
was enacted as a means to that is to say,
as a means of performing duty which had been cast on
the United States by the law of nations, and it was
clearly appropriate legislation for that purpose. Upon
its face, therefore, it defines an offence against the
law of nations as clearly as if Congress had in express
terms so declared" (488) The indictment in this case
was under the Act of May 16,1884, 23 Stat. 22, to prevent
and punish the counterfeiting within the United States of
notes, bonds and other securities of foreign governments."

(5) However, it is always the national courts which, whether on the
basis of powers conferred by .international law or on the basis of
obligations imposed by international law, are called upon to apply
the rules of international law to individuals. That was correctly
acknowledged by the French Chief Prosecutor

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Document Book Woermann
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and in the judgment of the IMT - in both cases the IMT is regarded
as an occupation tribunal. It is true that neither of them
emphasized the prerequisites and the limits for the direct application
of the rules of international norms to individuals, which prerequisites
and limits were shown here with respect to the rulings
of the Permanent Court of International Justice.

The IMT appears not to have seen these prerequisites and limits
at all; it obviously believes that, by referring to the judgment
of the Supreme Court in re Quirin, which concerns only one case of
war treason, it has opened up the way for the unlimited application
of the rules of international law to individuals, including those
rules which, according to their "contents, purpose and wording"
confer rights and impose obligations exclusively upon states as such.

The French prosecutor appears to have seen the problem in its
proper light. He explains the competency of the IMT by subordinating
all counts of the indictment to the standards of ordinary national
penal law. He states rightly that also actual war crimes are
subject to those principles of penal law which govern murder,
manslaughter, infliction of bodily injury, threats, etc., but
that they are legitiiized by the conditions of war, so that, with
respect to the question of criminality, it depends whether they are
covered by the regulations and customs of military law, But he can
justify the application of general penal law to "crimes against the
peace" only inasmuch as he refrains from applying the norms of
military law to a war prohibited by international law.

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This explanation of the competency of the military tribunals is,
however, inadmissible. For it is a principle of international law
which is recognized without exception that the rules of international
military law apply to all wars regardless of whether those wars
are "just" or "unjust", "illegal" or "illegal". Thus all the Nuernberg
tribunals have, of course, applied the norms of military law to the
Second. World War, which they consider illegal.

(6) Therefore, only if the Nuernberg Tribunals are regarded as
occupation tribunals, and therefore to a certain extent national
tribunals, can their competency be recognized. For, apart from the
special case of the punishment of prisoners of war (admitted as a
"means of warfare") who have violated international war law, an
individual who, by order and with the authority of his government,
has committed a "public act" cannot be brought before a foreign
tribunal on account of that act. That is a recognized principle of
international law, of which the "Mac Leod" affair is frequently
quoted as an example, which affair is the sequel to the "Caroline"
case referred to by the IMT in another connection.

In 1832 a rebellion against England took place in Canada, which
received support in the border districts of the United States,
especially by the formation of Volunteer Corps. Because the United
States did not take energetic enough steps, English forces attacked
the steamer "Caroline", which was

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effecting contact with the insurgents, overwhelmed the crew, killed
nine and wounded several passengers and set fire to the ship. Several
years later Nac Leod, a British citizen who had been one of the
officers in the action against the "Caroline", was arrested during
his stay in New York on a charge of murdering an American, and
brought before a court. The British government protested that that
was a "public act", which had been carried out on higher orders
by persons in the service of Her Majesty, for which orders the
British government, if anybody, was responsible. The further
details are of no interest here. He result of the diplomatic
correspondence was that State Secretary WEBSTER recognized the
following as a principle of international law:

"that an individual forming part of a public force
and acting under the authority of his Government
is not hold to be answerable as a private trespasser
or malefactor. This has no connection whatever with
the question whether, in this case, the attack on the
"Caroline" was, as the British Government thinks
if, a justifiable employment of force for the purpose
of defending the British territory from unprovoked
attack, or whether it was a most unjustifiable
invasion in time of peace, of the territory of
the United States as this Government has regarded.
The two questions are essentially distinct and different."

and further:

"After the avowal of the transaction as a public
one by the British Government, there could be no
further responsibility on the part of the agent."

It can be said that the judgments of the Nuernberg Tribunals do
not violate these undisputed principles of international law only if
those tribunals, taking the place of national tribunals, are to be
regarded as

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occupation tribunals, and. if the principles of international law
which they apply would, "in the opinion of the contracting parties"
or according to "contents, purpose and wording" impose upon
Germany the obligation to punish her citizens by her own courts
for violation of international law, as is undoubtedly the case
with respect to offenses against the laws and customs of war.

It must therefore be examined whether in the period following the
Paris Peace Conference international law has developed such new
legal principles.

IV.

(1) Never before in history have problems of international security
and international peace been discussed so widely and thoroughly
by the nations of the world as in the years following the First
World War. He resulting material, running to several thick volumes,
has been collected and assembled by Georg von GRETSCHANINOW and is
in the Institute for Foreign Public Law and International Law under
the title of "Documents concerning the development of the question
of security in the League of Nations". I quote from that edition.
From this material we shall see whether international law as it
existed until then underwent any changes and if so what changes.
The speeches of the Chief Prosecutors and also the judgment
of the IMT refer to documents contained in that material.

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The Government publications, resolutions of commissions, reports,
drafts and discussions had two starting points which were closely connected
with each other. Even during the Peace Conference the French Government
considered these securities which the Constitution of the League
of Nations offered inadequate and endeavored to obtain a supplemantation
by separate Guarantee Pacts between Great Britain and the United
States, the latter of which - as is well known - signed the Treaty
of Versailles simultaneously but did not ratify it. The second occasion
was the execution of the stipulation pertaining to the reduction of
armaments as provided for by article VIII of the Constitution of the
League of Nations and by part V of the Treaty of Versailles which reductions
- not quite correctly - are usually called "disarmament".

Those powers which considered their security particularly endangered
and felt that the Constitution of the League of Nations did not sufficiently
protect it, that is to say, in addition to France, above
all the beneficiaries of the Treaty of Versailles were to subordinate
themselves to armament limitations only after their security was as
sured by the establishment of structure of the League of Nations.

Security before disarmament" became the slogan. The drafts which were
discussed in that connection had the purpose of changing the existing
law, in particular the Law of the League of Nations, which on the one
hand constitutes the prerequisite for disarmament, on the other hand
was to came into force only in the case of disarmament. In the
"Rapport preliminaire sur les travsux de la Conference" ( of the
Disarmament Conference) which Mr. Arthur HENDERSON, its President,
gave in 1936, he says, after mentioning the many attempts to solve
the problem:

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(II, 2, p. 413):

"Il y a lieu de noter qu'au cours de toutes ces **scussions,
il fut reconnu explicitement une fois de plus que tout progres
dans le sens d'une renonciation complete et generale a la guerre
etait it intimement liee a l'acception et a la mise an application
d'une convention generale de reduction des armements".

"It must be noted that in the course of all these discussions it
was once more explicitely recognized that all progress in the
sense of a complete and general renunciation of war was intimately
bound up with the acceptance of the application of a general
convention for the reduction of armaments."

That already proves how much care must be applied when individual stipulations
of the draft or single sentences from reports or addresses are
quoted. It is improper to regard them as an expression of existing international
law. Every expert on this dispute, which has now lasted for more
than a decade, feels the lack of such care with respect to the utilization
of that material by the Prosecution as well as by the judgment of the IMT.

(2) With respect to the first of these drafts, the "Projet de Traite
d'assistance mutuelle" of 1923, it was emphasized by the propositions of
Lord Robert Cecil in the course of the discussions that there exists an
interdependence between disarmament and security ( page 277/78, Vol. II,

1):

" Il reste entendu que 1'ensemble des resolutions qui precedent
depend d'une reduction des armements suivant des bases establies
d'avance et pourvu qu'il soit cree un organisme efficace en vue
d'etablier qu'une telle reduction est realisee et maintenue".

" It remains understood that the preceding resolutions in their
entirety depend on a reduction of armaments according to principles
previously established and with the provision that such
reduction is realized and maintained".

The draft was turned down because it contained changes in the existing
International Law which the majority of the countries were not willing
to accept. ( Compare for example the statement of the Dutch Government,
pages 302,sq, of the Italian Government pages 328 sq, of the .British
Government 381 sq.. of the report of the Third Commission to the IV.
Assembly, pages 358 sq and the interesting answer of the Soviet
Government pages 377 sq.)

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Already the first discussions of the problem raised the twofold
idea that it is impossible to define legally the concept of attack and
that on the other hand the task of the Council of the League of Nations,
namely, to ascertain which nation was the attacker in the individual
case, would change in an unacceptable manner the existing international
law on the basis of which each nation is authorized to answer that question
according to its own discretion. Compare from the Dutch Memorandum:
( II,1 pages 307/08):

" C'est ainsi que l'interpretation donnee au sein de la Societe
aux dispositions du Pacte, concernant la garantie a fournir par
elle, est de nature a laisser aux Membres la plus grande independence,
dans chaque cas ou il s'agit de diterminer s'ils sont,
oui ou non, tenus a donner leur collaboration. L'interpretation
de l'article 10, selon laquelle cet article n'etablit qu'en principe
le devoir de garantie, sons toutefois obliges les Membres
a une garantie effective et, notamment, sans les obliger a une
action militai**, trouva un bon accueil; de meme l'Assemblee
se ralliait a l'interpretation de l'article 16, d'apres laquelle
chaque Membre devra decider lui-meme si l'on se trouve ou non en
presence d'un cas d'aggression illegal et laquelle des parties en
cause est a considerer comme l'Etat en rupture de Pacte,"

"Thus the interpretation given within the League of Nations to the
provisions of the pact concerning the guaranty to be provided
by the League, is of a character which leaves its members the
greatest independence in each case in which it has to be determined
whether or not they are held obliged to render their assistance,
The interpretation of Article 10, according to which this article
establishes only in principle the duty of guaranty , without however
obliging the members to render an effective guarantee, and
notably without obliging them to take military action, found a
good reception; in the same manner the assembly readily accepted
the interpretation of Article 16, according to which each member
must himself decide whether or not there exists a case of illegal
aggression, and which of the parties concerned is to be considered
the treaty-breaking State,"

and from the British answer ( II,. 1, pages 383/34):

" The necessary measures to carry the general guaranty into effect
are, moreover, made dependent upon the explicit consent of each
individual State which may be called upon to render assistance
as a permanent or ad hoc member of the Council" ....
...," The draft treaty further appears to involve an undesirable
extension of the functions of the Council of the League. Under article
16 of the Covenant the Council can only recommend action,
while even under article 10 it can only advise. By article 5 of the
draft treaty the Council are authorized to decide to adopt various
measures. Thus the Council would become an executive body, with
very large powers, instead of an advisory body" ....

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If, in accordance with this, it is not permissible to utilize the
draft as an expression of the existing law, that also applies to Article

1, of course, in which the parties to the treaty

"affirment que la guerre d'agression constitue un crime international
et prennent 1'engagement de ne pas se rendre coupable de ce crime".

"affirm that the war of aggression constitutes an international
crime and engage each other not to render themselves guilty of this
crimes".

But even if that stipulation of the draft had become law, it would not
support the Nuernberg charge. First of all it is improbable whether
the word "crime international" is meant in only a moral sense. We
shall return to this point. But even if it is to be understood in the
legal sense, the formula " international crime" signifies an offense
which one nation commits with respect to another nation. No work pertaining
to International Law which existed then or exists now ever
interpreted this concept in any other way. Therefore the legal-consequence
connected with the draft and pertaining to that "delit" is clearly
and comprehensively formulated in article 2 as follows:

( II,1,page 359):

"Les Hautes Parties contractantes s'engagent individuellement et
collectivement a porter assistance, conformement, aux stipulations
du present Traite, a l'une quelconque d'entre elles, au cas ou
celleci serait victime d'une guerre d' agression, a condition
qu'elle se doit conforme aux dispositions du present Traite, en ce
qui concerne la reduction ou la limitation des armements."

" The High contracting Parties engage themselves individually and collectively
to render assistance in conformity with the stipulations
of the present Treaty, to each one of themselves in the case where
this member is the victim of a war of aggression, on condition that
it must conform itself to the provisions of the present Treaty concerning
the reduction or limitation of armaments".

Elaborating on that Article, Article 5 then enumerates the measures
to which the Council of the League of Nations is said to be empowered
beyond the scope of the authorities granted by the constitution among
which there are, first of all, the

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"sanctions economiques" of Article 16, directed against of particular
nation. The moral guaranty for the desired security is said to lie in
the threatening with those sanctions. In acoordance with the French Government,
which was the only sponsor of the draft among the Great Powers,
the Constitution of the League of Nations wanted to offer such " guarantees
of the moral order". It expected a "happy effect" from the "universal
condemnation of aggressive war" for which the draft provided, for the
protection of political independence as well as the territorial integrity
of the peoples

(II,1, p. 387):
"Sans doute, la valeur pratique, en cas d' agression de l'assistance
generale, seule apparait encore bien faible du point de vue militaire,
en raison meme de son application aleatoire, conditionelle
et progressive et, sous ce rapport, elle ne, suffirait pas a justifier
des reductions importantes d'armement.

Mais elle pourrait neansmoins, par une amelioration des
conditions generales de securite, favoriser plus tard ces reductions.
Elle aurait d'ailleurs une valeur morale indiscutable, doublee d'une
reelle efficacite au point de vue economique et financier." ..

"No doubt the practical value of general assistance in the case of aggression
appears still rather slight from the military point of view,
for the very reason of its uncertain, conditional and progressive
application, and in this respect it would not be sufficient to justify
important reductions of armaments.

But nevertheless it could by an improvement of the general
condition of security, later justify these reductions. For the rest
it would have an indisputable moral value, redoubled by a real effectiveness
from the economic and financial point of view..."

(3) The most comprehensive and far-reaching attempt to solve the question
of disarmament and security was the famous Protocol of Geneva of 2 October
1924. Its system contains still greater changes of existing law than
the draft of the Mutual Assistance Treaty. Article 1 explicitly states:
(II,1,p. 400):

"Les Etats signataires s'engagent a faire tous efforts en leur pouvoir
pour l'introduction dans le Pacte d'amendements conformes au sens des
dispositions contenues dans les article suivants." ...

"The signatories engage themselves to make all efforts in their power
for the introduction into the Pact of amendments conforming to the
provisions contained in the following articles ...."

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Therefore it is again not correct if the IMT Judgment asserts that
the Protocol was signed by "the leading statesmen of the world" who
"represented the large majority of civilized nations and civilized peoples".
The changes in the existing law which it intended were actually
so basic and so far-reaching that no rational person ever expected it
to be accepted. Decisive was above all the sharp rejection by the Government
of the United Kingdom of Great Britain (pages 455 sq), which explained
in the statement of 13 March 1925 in detail why there were,
" insuperable objections to signing or ratifying the Protocol in the
present shape". This significant document of a political nature and of
political insight would have deserved more attention than it actually
received up till now. For the determining of the then existing law it is,
however, of greater importance than the lege ferenda proportions of the
Protocol.

But also the contents of the Protocol do not certify in any way
the doctrine of the Prosecution or of the Judgment, and again it says
in the preamble:

"reconnaissant que la solidarite qui unit les membres de la
communaute internationale, affirmant que la guerre d,agression.
constitue une infraction contre cette solidarity, est un crime
international".

"recognizing the solidarity which unites the members of the international
community, and affirming that aggressive war constitutes
an infringement of this solidarity, and is an international
crime".

But also in the Protocol of Geneva it is probable that those words were
meant in a moral sense and if they had been meant in a legal sense it
is proved clearly by Articles 11 and 15, which define the "sanctions"
for that "international crime", that that concept continued to have its
traditional meaning.

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The British Government did not think anything of the "paper definition"
(page 458) of the attacker which the Protocol draft establishes,
because such a definition "may embarrass the victim of aggression even
more than the aggression (Translator's note:sic)." (Page 457). The British
Government prefers the "unamended covenant" to the "covenant amended by
the Protocol" (page 464). The new system of increased sanctions is criticized
severely. It plans "to preserve peace by organizing war". The
following sentence, for example, shows that the sanctions of the Protocol
have the same traditional character as in accordance with the constitution
of the League of Nations ( II,1,pages 460/I).

"They do not agree indeed that without "sanctions" the League
is powerless and treaties not better than waste paper. Doctrines
like those seem to them not only mischievous, but self-contradictory.
Every "sanction" referred to either in the Covenant or
the Protocol depends on treaties; and if no treaties are of
value, all stations must be worthless. Do what we will, we have
no choice but, in the last resort, to depend upon the plighted
word."

The British Government therefore does not see what changes could be
achieved by increasing the sanctions as proposed by the Protocol(II,l
p. 460):

"His Majesty's Government fail altogether to see how this situation
is bettered by the Protocol" ....
...."The aggressors within the League are traitors in the sight of
all mankind. Their moral position in the face of any opposition
within their own borders will be immensely weakened, while in
neutral countries they will find none to plead their cause. However
low the practical importance of moral considerations such as these
may be rated, the eagerness of competing propaganda in times of international
crisis may convince the most conical that a good cause
counts at least for something"....

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The significance of that British Statement lies in the feet that it
constitutes a turning point in the security policy of the League of
Nations. The lefty attitude of the draft of the Protocol of Geneva
with its constitutional changes neglecting reality and with its attempts
to press political life into legal formula, suppositions and definitions
has never been attempted again. The Rhine Pact of Locarno of 1925 does
utilize several ideas of the Protocol draft for the particular situation
at the German Western Frontier but it does not repeat its legal
definitions and general formulae like "international crime". Neither
was an attempt made at a later date to fill the alleged "gaps" in
the constitution ( "the defect, if defect it was" the British Statement
says on page 455). The so-called gap in article 15, Section IV, of
the Locarno Pact even constituted the starting point for the Friendship
Treaties of France with Poland as well as with Czechoslovakia.

(4) On this new basis the problems will be tackled anew beginning
in the fall of 1927. First in the Comite d'Arbitrage et de Securite
established on 26 September 1927 (II,2,pages 33 sq).

In this connection the "Observations of His Majesty's Government
in Great Britain on the program of work of the Committee of Arbitration
and Security of the Preparatory Commission of the Disarmament Conference"
(see pages 44 ff) are of importance. Then follow the so-called
Memoranda of Prague of 26 January until 1 February 1926; pertaining to
the Arbitration and Conciliation by Holsti, pertaining to the security
question by Politis and above all pertaining to

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Articles 10,11 and 12 of the Constitution of the League of Nations
by Rutgers.

Among the multitude of that material we will quote only
several important sentences:

Politis, who, in addition to Benes, was the main author
of the Protocol of Geneva says in one of the "conclusions" of his
memorandum:

(II,2,p. 93/94):

"Pour donner aux nations une plus grande securite, la conclusion
d'un accord general, ajoutant aux obligations du Pacte, ne peut
pas actuellement etre envisagee".

"The conclusion of a general agreement in in addition to the obligations
of the Fact, in order to give the nations a greater amount
of security, cannot at the actual moment be envisaged."

The following passages of the Rutgers report are particularly important
(II,II,pages 109/10,121,124,125):

"La question des indices d'agression est une de celles qui
ont deja fait l'objet de l'etude la plus approfondie et la
plus attentive de 1' part de la Societe et de divers de ses
Membres. Les conclusions n'ont pas ete identiques, et on est
porte a croire que tout essai d'etablir par avance des criteres
rigides et absolus, pour la determination de l'agresseur,
pourrait difficilment, dans les circonstances actuelles,
mener a un resultat pratique." (p.109)

"On peut estimer que le meme acte cree ou ne cree pas une presomption
d'agression, selon les circonstances dans lesquelles
il est accompli." (p.110)

"On peut dire qu'avant 1'existence de la Societe des Nations
les points de vue natinaux etaient pratiquement les seuls que
connut l'opinion publique en temps de crise internationale.
La publicite des debats du Counseil est de nature assurer que,
non seulement le point de vue de la partie adverse aura des
chances d'etre mieux expose dans l'autre pays, mais surtout
que les recommandations officielles du Conseils aux parties
formeront un element d'appreciation pour l'opinion publique
universelle at que ce facteur ne manquera surement pas d'
orienter les dirigeants dans les divers pays en cause des
solutions pacifiques." (p. 121)

"The question of the marks of aggression is one of those which
have already been the subject of the most thorough and most attentive
study on the part of the League and of several of its members.
The conclusions have not been identical, and one is bound to believe
that every attempt to establish in advance rigid and absolute
criteria for the determination of the aggressor could in the
actual circumstances only with difficulty lead to a practical
result." (p.109)

"One may believe that the same act creates or does not create a
presumption of aggression, according to the circumstances in which
it has been accomplished." (p 110).
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"It may be said that before the existence of the League of
Nations the national points of view were practically the
only ones known by public opinion in the times of international
crisis. The publicity of the Council debates is
such as to assure that not only the point of view of the
adversary party will have chances to be better explained
in the other country, but above all that the official recommendations
of the Councils to the parties concerned will
form an element in the appreciation of the situation by
the public opinion of the world and that this factor will
surely not fail to orient the rulers of the various countries
in favor of peaceful solutions."(p.121) .

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style of the model treaties. One can see that the time of
the Protocol of Geneva, has passed.

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(5)At the VIIIth Assembly of the League of Nations in 1927 the Polish
Delegate proposed a "Declaration pertaining to wars of aggression on
9 September which may be considered as the direct predecessor to the
Kellogg Pact and which on 24 September 1927 was accepted by the Assembly.
It goes back once more to the formula of 1923/24 when it
says in that Declaration

(II,1,page 486):
"L'Assemblee:
"Reconnaissant la solidarite qui unit la communaute internationale;
Animee de la feme volente d'assurer le maintien de la paix
generale;
Constatant que la guerre d'agression ne doit jamais servir
comme moyen de Regler des differends entre Etats et que, de
ce fait, elle constitue un crime international;

Considerant qu'une renonciation solennelle a toute guerre d'
agression serait de nature a creer une atmosphere de conciliation
favorable aux progres des travaux entrepris en vue du
desarmement,

Declare:
1. Toute guerre d'agression est de demeure interdite;
2. Tous les moyens pacifiques doivent etre employes
pour le reglement de differends, de quelque nature
qu'ils soient, qui viendraient a s'elever entre les
Etats.

L'Assamblee declare qu'il y a obligation, pour les Etats
membres de la Societe des Nations, de ce conformer a ces
deux principes."

"The Assembly,
"Recognizing the solidarity uniting the international community;
Animated by the firm will to assure the maintenance of general
peace; stating that aggressive war must never serve as a means
to settle disputes between States and that for this reason it
constitutes an international crime;

Considering that a solemn renunciation of any sort of aggressive
war would be of a character to create an atmosphere of conciliation
favorable to the progressof the work undertaken for disarmament,

Declares:
1. Any war of aggression is and remains prohibited;
2. All pacific means must be employed for the settlement of
disputes of whatever kind which may occur between States.

The Assembly declares that the States who are members of the
League of Nations, are under obligation to conform to these
two principles."

The Polish Motion did not find much response. Scialoja and Lord
Lytton considered it superfluous and even "dangerous". Politis, however,
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wanted to attribute to it a "moral and educational value".
The report of the Commission which recommended the acceptance
of the Motion says: (II, 1,page 486):

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"La Commission a ete d'avis que, dans les circonstances presentes,
une resolution votee solennellement par l'Assemblee
constatant qu'une guerre d'agression ne doit jamais servir
comme moyen de regler des differends entre Etats et la qualifiant
de crime international, est de nature a exercer sur
l'opinion publique une influence bienfaisante et a contribuer
a creer une atmosphere favorable au developpement ulterieur
des travaux de la Societe des Nations dans le domaine de la
securite et du desarmement.

Tout en etant d'accord pour estimer que le projet de resolution
ne constitue pas un instrument juridique proprement dit,
augmentant de facon concrete la securite et se suffisant a
lui-meme, la troisieme Commission a ete unanime a en apprecier
la grande portee morale et educative."

"Votre Commission, a decide de vous recommander l'adoption de ce
projet de resolution, marquant la volonte de tous les Etats
membres de la Societe de renoncer a toute guerre d'agression
est susceptible de renforcer dans l'opinion publiqua le desir
de conciliation international. C'est dans cet esprit que j'
ai l'honneur de proposer a l'Assemblee d'adopter le projet
de resolution".....

"The Commission was of opinion that in the present circumstances
a resolution solemnly voted by the assembly stating that a war
of aggression must never serve as a means to settle disputes
between States and denouncing it as an international crime, is
of a character to exercise a beneficial influence on public
opinion and to contribute to the creation of a favorable atmosphere
for the further development of the work of the League of
Nations in the field of security and disarmament.

While unanimously considering that the draft resolution does not
constitute a legal instrument in the proper sense of the word,
which would in a concrete fashion augment security and would be
self-sufficient, the third Commission unanimously appreciated
the great moral and educative value of this draft."

"The Commission has decided to recommend to you the adoption of
this draft resolution, since it expresses the will of all States
who are members of the League to renounce any sort of aggressive
war, and since it is suitable to strengthen in public opinion
the desire for international conciliation. In this spirit I have
the honor to propose to the Assembly the adoption of the draft
resolution...."

Mr. Jackson (Vol. II, page 270) as well as Sir Hartley Shawcross (Vol.
Ill, page 112) referred to that resolution of 24 September 1927, of
course, however, without mentioning the commentary which was quoted there.
The Judgment of the IMT did very well indeed not to have utilized that
resolution.

In any case one can well see in that authentic commentary of the
resolution an interpretation of the former application of the concepts

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of "international crime". But even if one does not wish to do
that the resolution would still mean that - even if it had had
another significance in the drafts of 1923-24, it finitely did
not have them any longer in 1927. In any case it never had, even
in the former drafts which never came into force, a significance
which either went beyond s moral meaning or which resulted in
sanctions customary according to international law.

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DOCUMENT BOOK X WOERMANN

V.

1) A short time before the Committee for Arbitration and Security had
started to work, in June 1927, the exchange of notes between Briand and
Kelloggon a "pact of perpetual friendship between France and the United
States", had begun. In his note of 28 December 1927, that is, during the
sittings of the committee, Kellogg had given the idea to dispense with war
between the two countries the well-Known turn into a universal pact, which
led, after a prolonged, diplomatic exchange of notes, to the "pact of
peris" of 7 August 1928, the so-called Kellogg Pact, or Kellogg-Briand
Pact.

Considered in the light of its preceding history, the significance
of the pact is to be found in the following points:

(l) The pact is universal. Thus it dispenses with the objections made
earlier, especially by the British, against an extension of the system
which is restricted to the members of the league of Nations. It includes
the two great powers which were then outside the league of Nations, the
United States and the Soviet Union.

(2) In consideration of earlier experiences, the pact avoids the term
"war of aggression", on purpose, as Kellogg thought necessary to point
out in his notes to Briand, who continued to use the term.

(3) It purposely avoids to give a. legal definition of the terns used,
such as "resort to war", "war as an instrument of national policy"

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"pacific means", "changes in their relations with one another",
"promote its national interests".

(4) The term "crime international" is not used. When it says in the
preamble that the powers "condemn recours to war", than this is a
typical formula for a moral condemnation which, as we know from the
reports of the commission of the Paris Peace Conference, is used whenever
a legal condemnation is not feasable. Neither is the pact a "pact
outlawing war?,."outlawry of war", (Translator: English in the original)
i.e., that war is not outlawed, but even a war, waged in defiance of
the pact, comes under the norm of the laws and customs of war. This
disposes of the theory of the French prosecuting counsel de Menthon,
according to which a war in defiance of the pact comes morely under
common, criminal law. The pact is, rather, s war renounciation pact, an
"anti-war" pact, as Kellogg always calls it in his diplomatic exchange
of notes.

(5) The pact does not in any way undertake to enlarge the system of
sanctions of the League of Nations, or to improve it. In the contrary,
conscious of the unsolved difficulties in interpreting Article 16, it
purposely omits "sanctions" in the sense of the statute of the league
of Nations, i.e., in the sense of sanctions which the members of the
league of Nations were pledged to undertake in the case of a war in
defiance of a pact. The preamble only says that "any signatory

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which should hereafter seek to promote its national interests by resort
to war, should to denied the benefits furnished by this Treaty", and
this only threatens the breaker of the pact with the risk, his action
may involve, without the other parties to the pact pledging themselves
in any way to help or to act in any other way.

(6) The decision whether a state acts in accordance with its inalienable
right of self-defense, is left to that state alone; likewise, any state
has to decide for itself whether another state has violated the "anti-war"
pact, and also, whether it intends to take any, and which measures
against the violator of the pact.

(7) The appeal to world public opinion, which had, already in the league
of Nations, been made in the margin, or in the background of the laws
for the prevention of war then valid or then to be created, now comes
to the foreground as the real guarantee of the pact.

(8) The pact is a proper treaty under international law, establishing
binding norms of law, with rights on the one and duties on the other
side. But it is a treaty under political, International law, i.e., it
takes completely into account the individual, political sphere in which
it is to be valid, by considering the complicated nature of the
political conditions and the im-

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possibility to foresee a concrete, future situation exactly and to
regulate it by law, and consequently leaving a broad margin for the
political considerations and eventual decisions of the states concerned.

(2) In order to explain the legal nature of the Kellogg Pact and the
intentional omission of sanctions proper, and to show the significance
of world public opinion as the real guarantee for the pact, the following
will he quoted from the speech of Secretary of State Stimson, made
on 8 August 1932 before the "Council on Foreign delations" (See: Zeitschrift
fuer Auslaendisches Oeffentliches Recht und Voelkerrecht,
volume III, p.588sq.) :

"On its face it is a treaty containing definite promises. In its
preamble it expressly refers to the "benefits furnished by this
treaty" and states that any signatory power violating its promise
shell be denied those benefits. The correspondence of the framers
of the treaty shows that they intended it to be a treaty which
would confer benefits which might be lost by a violation thereof.
During the period when the treaty was under negotiation, Mr. Kellogg
deelered in a public address, made before this very body on March
15, 1928: "If war is to be abolished it must be through the
conclusion of a specific treaty solemnly binding the parties not
to resort to war with one another. It cannot be abolished by a more
declaration in the preamble of a treaty". In drafting the treaty
Mr. Kellogg rightly and tenaciously fought for a clear, tense
prohibition free from and detailed definitions or reservations. In
his own words, he sought "a treaty so simple and unconditional
that the people of all nations could understand it, a declaration
which could be a rallying point for world Sentiment,a foundation
on which to build a world peace." "Any other course would have
opened the door to technicalities and destructive limitations."

"The Briand Kellogg Pact provides for no sanctions of force. It
does not require any signatory to intervene with measures of force
in case the Pact" is violated.Instead it rests upon the sanction
of public opinion

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which can be made one of the most potent sanctions in the world.
Any other course, through the possibility of entangling the
signatories in international politics, would have confused the
broad and simple aim of the treaty and prevented the development
of that public opinion upon which it most surely relied. Its
efficacy depends upon the will of the people of the world to
make it effective. If they desire to make it effective, it will
be irresistible. Those critics who scoff at it have not accurately
appraised the evolution in world opinion since the World War.
From the day of its ratification on July 24, 1929, it has been
the determined aim of American Government to make this sanction
of public opinion effective and to insure that the Pact of Paris
should become a living force in the world."

"Thus the power of the Briand-Kellogg Treaty cannot be adequately
appraised unless it is assumed that behind it rests the combined weight
of the opinion of the entire world united by a deliberate covenant
which gives to each nation the right to express its moral judgment.
When the American Government took the responsibility of sending
its note of January 7 last, it was a pioneer. It was appealing to
a new common sentiment and to the provisions of a Treaty as yet
untested . Its own refusal to recognize the fruits of aggression
might be of comparatively little moment to an aggressor. But when
the entire group of civilized nations took their stand beside the
position of the American Government, the situation was revealed in
its true sense. Moral disapproval, when it becomes the disapproval
of the whole world, takes on a significance hitherto unknown in
international law. For never before has international opinion
been so organized and mobilized."

(3) The significance of the universality of the pact is shown in the
report of Secretary of State Stimson on the activities of the United
States during the conflict between the Soviet Union and China in Summer
1922, and on the collaboration of the United States in the deliberations
of the Assembly of the League of Nations in September 1931, on the
occasion of the Japanese-Chinese conflict, which would have been
impossible before the pact was concluded. Thus, the "consultation"
between the signatories of the pact is a significant symptom of its
universality. In this sense, Stimson said in the speech of 8 August
1932 (Zeitschrift fuer Auslaendisches Oeffentliches Recht, i.l.a.,
p.594):

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"That the Pact thus necessarily carries with it the implication of
consultation has perhaps not yet been fully appreciated by its
wellwishers who have been so anxious that it be implemented by a
formal provision for consultation, But with the clarification which
has been given to its significance by the developments of the last
three years, and the vital vitality with which it has been imbued
by the positive construction put upon it, the misgivings of those
well-wishers should be put at rest."

Norman H. Davis, correspondingly, declared in the "Commission Generale"
of the disarmament conference, on 22 May 1933, in which he took part,
again in considoration of the Kellogg Pact (Zeitschrift fuer auslaen-disches
oeffentliches Recht, vol.II, P.2, 528/29):

"I wish to make it clear, that we are ready not only to do our part
towards the substantive reduction of armaments but, if this is
effected by general international agreement, we are also prepared
to contribute in other ways to the organization of peace. We
are willing to consult, the other States in case of a threat to
peace, with a view to averting conflict. Further than that, in the
event that the States, in conference, determine that a State has
been guilty of a breach of the peace in violation of its international
obligations and take measures against the violator, than,
if we concur in the judgment rendered as to the responsible and
guilty party, we will refrain from any action.",

and, similarly, in other places, (f.i., page 621).

(4) Further consequences of the pact are, first, the .Stimson doctrin,
according to which the States reserve the right not to acknowledge any
changes of the status quo, brought about by violations of the Kellogg
Pact; furthermore, perhaps the most important consequence, the fact
that there is no more obligation to observe the rules, of neutrality
in respect of a violator of the pact. Based upon this interpretation,
the United States considered themselves Justified to put war vessels
at the disposal of the British government and to conclude land-lease
treaties with the belligerents, even before they, themselves, entered
the war. Secretary of State Stimson said, on 16 January 1941, before

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One may have some doubts on what has been said in para. (a). What Stimson
wanted to show was mainly, that the United States ware, by virtue of the
Kellogg Pact, not bound by the provisions concerning neutrality, valid
before the conclusion of the pact, and that they ware, therefore,
justified to take the measures then planned by him.

(Hackworth, Digest, vol. VII, p.681):

When my friends here talk about whether we are going to commit
an act of war, I want them to read this statement made by this
great group of lawyers, when they tried in 1934 to decide
exactly what this treaty meant."

(5) A survey of what has, so war, been said and proven, about the
significance of the Kellogg Pact will show on the one hand that it was
a legal document of the utmost importance for the development of International
law, from which important, new, legal consequences will
result; but, at the other hand, its wording, its history and its
application do not show anything to justify the interpretation that a
violation of the pact has any legal consequences except those arising from
the violation of any international treaties under international law, and
which have been mentioned in the preamble of the pact itself when it
says that the violator of the pact "should be denied the benefits
furnished by the Treaty".

Kellogg wrote during the negotiations of the Kellogg Pact (Hack-worth,
Digest, vol. v., p.345):

"There can be no question as a matter of law that
violation of a multilateral anti-war treaty through
resort to war by one party thereto would automatically
release the other parties from their obligations to
the treaty-breaking state. Any express recognition of
this principle of law is wholly unnecessary."

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To support this, Hackworth also quotes Attorney General Biddle

"That it was unnecessary to, discuss the well established
international practice that violation of a treaty by one
contracting party renders the treaty voidable as to opinion
of another contracting party injured by the violation."

It appears of particular interest that even Justice Robert Jackson
himself said at the "Annual Dinner of the American Association"
in 1941 (Hackworth, vol. VII, p.681):

"This treaty, however, was not wholly sterile despite the absence
of an express legal duty of enforcement. It had legal consequence
more substantial than its political ones. It created substantive
law of national conduct for its signatories and there resulted
a right to enforce it for the general sanctions of international
law. The fact that Germany went to war in breach of its treaty
discharged our own country from what might otherwise have been
regarded as a legal obligation of impartial treatment towards
the belligerents.11

(6) The practice of the states, as it has developed, following the
Kellogg Pact, fully confirms this. In all the cases where it has been
applied, in the Russian-Chinese case, in the Japanese-Chinese case, in
the Italian-. Abessynian case and in the Russian-Finnish case, the
violations of treaties have been dealt with according to the generally
acknowledged norms of international law. when the members of the League
of Nations applied sanctions against Italy, whose action against
Abessvnia. had been called a violation not only of the statutes of the
League of Nations, but also of the Kellogg Pact, it (Italy) remained
a member of the League and the Council, and continued to take an active
part in their work. Surely, the genteel members of the Council of the
League of Nations would not have sat down on the same table with
criminal offenders, When the

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Soviet Union was excluded from the League of Nations for its attack on
Finnland, the Powers did not break off diplomatic relations with her;
surely, their ambassadors would not have cultivated official and
personal relations with criminal offenders. May, the western Powers
even endoavoured to get her as an Ally against Germany. After they had
achieved this, they maintained close and friendly relations with her.
Surely, they would not have done that with criminal offenders. The thesis,
that the defendants in Nuernberg, accused of violating the Kellogg Pact,
could, or even should, have known that they thereby offended criminally,
is based on feet of clay. Whatever the Powers have unterteken against
the respective violators of the pact, was nothing but the usual reactions
under international law in which, as the practice of the states during
these 10 years confirms, no punitive character is inherent .

It was the system of the League of Nations, with its pledges of help
and sanctions, which had been ship-wrecked, not the system of the
Kellogg Pact which refused to introduce sanctions in the proper sense
of the word, and especially any duty to apply sanctions, because it
showed, a proper, political sense of proportion, being a document of the
"political" international law, not of the "penal" international law,
its application could be made to fit the requirements and the respective
facts of the political situation, and it could develop its far-reaching,
practical consequences during the second world War. A penal law demands
that the same application follows the same punishable act., if it wants
to remain n penal law, If it is applied here and. disregarded there,
then its application ceases to remain a punitive measure on a legal
basis; it becomes an act of

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pure exercise of power and is easily regarded as an act of hatred and
revenge, as it is possible only for the powerful to apply against the
weak. Since no state will ever admit having attacked without provocation,
and since once in a while, the aggressor might be victorious, but
hardly inclined to pay reparations to the vanquished or even less, to
hand over his statement and generals to the vanquished, the practical
result of the Nuernberg Status (sic) and Control Council Law No.1O will
be, as fieldmarshall Lord Montgomery said, that the waging of an
"unsuccessful war" has been branded as a crime.

(?) If we base our deliberations or the law valid up to 1945 and on the
practice of the states, then we cannot have any doubt that penal action
against individuals for violation of the *ellogg Pact is completely at
variance with the intentions of the authors and the official interpretations,
may, it would destroy its spirit and basic conceptions: the
pact was to be guaranteed by mobilizing public opinion, and sanctions
proper were not to be provided for. To punish individuals as sanctions.
to enforce the Kellogg Pact, would constitute a violation of this same
pact.

(8) To all this must be added another, pertinent point.

As we said before, the Kellogg Pact avoids, based on experiences
made in the attempts to interpret, or fix and enlarge legally, the
provisions of the statute of the League of Nations, any definition of
the conceptions used. A legal

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definition and precision was unnecessary, if for no other reason,
because it was to be left exclusively to the judgement of the states
concerned which could not be controlled by any instance, how to apply
the conceptions of the pact. The League of Nations always strictly
insisted that resolutions concerning interpretations of conceptions or
norms of the statute should not he binding for the members. The reason
why it was difficult to determine the contents of articles 10 and 16 of
the Statute of the league of Nations has always been that these articles,
at the one hand, imposed on the members duties to protect attacked
nations and to apply sanctions against violators of the pact, but that
it was to be left to their own decision whether, in the individual case
they thought that the given conditions asked for these duties to be
fulfilled, and, if they answered the question in the affirmative, whether,
and to what extent, they wanted, or were in a position to fulfill these
duties. The nations regarded it as incompatible with their sovereignty
to leave the decision in this "political" question to any agencies of
the League of Nations. In the only case when the question of sanctions
was put to the practical test, the principle was strictly *---* to
that the Council as such was not to be concerned with the imposing of
sanctions against Italy, i.e., that every individual state was to decide
on its own whether and to what extent it wanted to participate in them,
and when it would cancel further participation. And this in spite of the
fact that the Council of the League of Nations had decided on a
"directive" providing for an "advice" by the Council. In case of actual
fact, even this modest concern of the Council's was disregarded.

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The win of the states to leave exclusively to their own, uncontrolled
judgement the decision of the "political question" whether an unlawful
act of aggression, or war had taken place, has shipwrecked even the
last attempt, undertaken by the disarmament conference, to insert an
at least advisory, international instance. It was in particular the
representatives of the United States who stressed again and again that
the decision on this question would have to be left to them. So f.i.,
Norman Davis, as the representative of the United. States in the disarmament
conference stated:

"We are willing to consult the other States in case of a threat
to peace, with a view to averting conflict. Further than that, in
the event that the States, in conference, determine, that a State
has been guilty of a breach of the peace in violation of its
international obligations and take measures against the violator,
then, if we concur in the judgment rendered as to the responsible
and guilty party, we will refrain from any action"...
(II 2, p.529)

"In the event that a decision is taken by a conference of the
Powers in consultation in determining the aggressor with which,
on the basis of its independent Judgment, the Government of the
United Staates agreed, the Government of the United States will
undertake...." (II 2, p.537)

"Dans *---* ou la Conference de* Puissances prendrait une
decision concernant la determination de l'agreesour, au sujet
de lacuelle le Gouvern*ment des Wtats-Unis *---* serait
d'accord, an pleine independance de jugement, la derniar
s'engagerait a n 'entreprendre aucune action..." (II 2 p.621).

It seems interesting that this interpretation tallies with that
of the Soviet Union. It is true that Litvinov had thrown a very
detailed and comprehensive definition of what constitutes an attack,
into the debate (s*e II, 2, p.528/9). This definition has been

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quoted by Jackson in his opening speech (Official edition, IMT
Proceedings, vol. II, p.175), and has been called by him one of the
authoritative sources of international law, a "pereception of international
law" and a "general opinion". Sir Hartley Shawcross, too,
quotes it as authoritative (Official edition, IMT Proceedings, vol.
II, p.112). Both speakers did not mention that the conference had not
adopted it. Neither did they state that the multitude of states who
did accept it, consieted exclusively of the states neighbouring the
Soviet Union which the latter intended to combine into a regional group
under its leadership. The IMT verdict was better advised, and did not
mention this definition of Soviet origin.

It is a known fact that such definitions have always been rejected
by the members of the League of Nations. Now, the delegate of the
United States, Gibson, too, had an opportunity to make a statement
concerning the new definition of Soviet origin (II, 2, 550):

"He questioned the utility of a rigid definition, particularly
one like that given under point 1 of the Soviet proposal, since
conditions could readily be imagined in which even some of the
acts listed would not in themselves necessarily constitute an
act of aggression. ..."

"The United States delegation questioned, in all sincerity,
whether it was desirable and advisable to endeavour to put
into words a problem which must in the final analysis be
judged on the basis of more factors than could possibly be
foresee* at the moment, and also on factors the relative
evaluation of which would be different in each concrete case
that would have to be decided."

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But even Litvinov did not think of leaving the decision on whether
an act of aggression might according to the definition suggested by
him, have been committed to any kind of international agency, which
would, of necessity, be composed of representatives of the capitalist
world (vol. II., 2, p.541):

"Ill suffit d'y penser un instant pour se rendre compte pourquoi
l'Union sovietique ne peut consentir a reconnaitre pour
obligations les decisions d'organismes internationaux t*ls que
l'Assemble ou le Conseil de la Societe des Nations, les
tribunaux internationaux existants ou las cours d'arbitrage,
Men qu'elle soit loin de decliner on principe la collaboration
internationale ou l'arbitrage. Cette question se pose
inevitablement pour elle avec une acuite particuliere chaque
fois qu'il s'agit de la creation d'organismes internetionaux *
attributions judiciaires, de controla etc. ....."
*)

Even the Soviet Union did not intend by giving this definition to
resign their right of making their own decisions; the purpose of the
definition was merely to serve as a guide for the nations, making
their decisions. Thus, Dargalevsky stated (II,2, p.545):

"... La difinition de l'agresseur, une fois acceptee par tous,
et, par consequent, obligatoire pour tous, servira par cela meme
de guide a chaque Etat pris" separement ou a tout groupe d'Etats."
**)

(9) The point is that we are confronted with a "political question",
which by its nature cannot be treated juridically or, is "not a
judicial question".

It is a fact, acknowledged by all national codes of law that such
questions are excluded from the cognition of the courts. The same is
true of the constitution of the United States of America, where
judiciary control in itself has been made a particulary extensive use
of. But also in

*) (Translator: English) "One has but to think for a moment in order
to account for the reason why the Soviet Union cannot consent to
acknowledge as obligatory the decisions of international
organizations, such as the Assembly, or the Council of the League
of Nations, the existing international tribunals, or courts of
mediation, even though it is far from refuting international
collaboration and mediation on principle. For it (the Soviet Union),
this question arises very acutely every time an international
organization with juridical or control functions is set up ..."

**) (Translator: English) "... the definition of an aggressor, once
accepted by all and, consequently, obligatory for all, shall
only serve as a guide for any state concerned singly or in a

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the United States the "doctrine of political questions" is acknowledged,
apart from other limitations of the "judicial power" over acts
of the executive. In this respect, professor Hanry *ottschaeffer of
Minnesota University says in his "Handbook of American Constitutional
Law", 1939, p.68/70:

"This doctrine has thus far appeared in two principal forms.
The first is based on the theory that the constitution itself has
given the ultimate decision on certain matters to a department
other than the judicial, and that the court is bound by its
answer thereto if the question arises in a case before the court.
The application of this position is not difficult where the
constitution has expressly so provided, but in the majority of
cases the decision that a question is political in this sense is
inferred from its essential nature. There exists no very definite
test for determiningwh*n that inference is permissible with respect
to any particular act, but historical practice and custom are
important factors in this connection. Among matters held political
in this sense are who is the accredited minister from a foreign
country, the existence of a treaty, the existence of a state of
war, which of competing state governments is the legal government,
and whether a state has a republican form of government."

Each of these examples is supported by court decisions.
Since, as we have stated, and according to the general interpretation,
the question whether an act of aggression has been committed is to be
decided by the governments of the states according to their own
judgement, we here have, again, a typical case of "political question",
removed from any judicial control. In the opinion given by the Permanent
Court of International Justice in re "Free Zones of Upper Savoy and the
District of G*x (second phase)", Kellogg, in his capacity as judge has
asked, in his Concurring Opinion: "What is a political question" and
has answered: "it is a question which is exclusively within in the
competence of a sovereign state." (Publication de la Cour Permanente
de

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Justice Internationale, Srtrie A, no.24,p.4l). The Observations of the
British Government, too, which have been quoted before, make a similar
statement in respect of the work of the Committee d'Arbitrage et de
Securite (II,2,p.47):

"Disputes legal in their nature may arise between two States with
regard to matters falling exclusively within the domestic jurisdiction
of one of them. No State can agree to the submission to
an international tribunal of matters falling exclusively within
the range of its national sovereignty."

As quoted above, the War Crimes Commission of the Paris Peace Conference,
too, has acknowledged that the question of who was responsible for the
beginning of a war is not one to be decided by courts of law, but only
by historians or statemen.

(10) The conclusion, which follows of necessity from the above,is:

The Kellogg Pact as well as the proceeding and following documents are
based on the generally acknowledged, principle that the decision on the
question whether a war is a war of aggression is to be reserved for the
political agencies, and is removed from a verdict in court as a
"political question" in the typical sense of the word.

A court of law, called upon to give such a decision, would,
consequently have to declare itself incompetent, just by reason of the
Kellogg Pact.

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11) This must be particularly true in the case of courts, like the
Nuernberg Tribunals, which, it is true, have to decide as penal courts
on the acts of individuals, but, in fact, are to judge the acts of the
German government without this government appearing in the proceedings
as a party. This led to the result that the documentary and other basic
material of the proceedings which would have belonged into the hands of
the German government, are in the hands of the Allied prosecution
authorities, whereas the documentary and other material of the Allies
which forms the necessary complement for the German material, is non-existent
for the judgement. Several facts which were unknown during the
Main Trial have meanwhile become known through publications and have given
cause for correcting some of the judgements of the IMT. No doubt, future
publications will disclose more and important material.

In a legally and materially much simpler case, when the Permanent
Court of International Arbitration had been asked, by the Council of the
League of Nations, to give only an advisory opinion, namely in the case
of the "Statuts of Eastern Carelia", the court refused to give an opinion
because Russia refused to appear in court, and it added the following
consideration (Publications de la Cour, Serio B, no.5, p.28/29):

"It appears to the Court that there are other cogent reasons which
render it very inexpedient that the Court should attempt to deal
with the present question. The question whether Finland and Russia
contracted on the terms of the declaration as to the nature of the
autonomy of Eastern Carelia is really

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one of fact. To answer it would involve the duty of ascertaining
what evidence night throw light upon the contentions which have
been put forward on this subject by Finland and Russia respectively,
and of securing the attendance of such witnesses as night be
necessary. The Court would, of course, be at a very great disadvantage
in such an enquiry, owing to the fact that Russia refusen
to take part in it. It appears now to he very doubtful whether
there would be available to the Court materials sufficient to
enable it to arrive at any judicial conclusion upon the question
of the fact: What did the parties agree to?"

"The Court is aware of the fact that it is not requested to decide
a dispute, but to give an advisory opinion. This circumstance, however,
does not essentially modify the above considerations. The
question put to the Court is not one of abstract law, but concern*
directly the main point of the controversy between Finland and Russia,
and can only be decided by an investigation into the facts underlying
the case. Answering the question would be substantially equivalent
to deciding the dispute between the parties. The Court, beinf;
a Court of Justice, cannot, even in giving adivisory opinions, depart
from the essential rules guding their activity as a Court."

(12) If one remembers what has been stated as generally acknowledged
teachings as regards the position of the individual within the frame of
international law, then one cannnot be surprised by the official opinions
on the consequences of a violation of the kellogg Pact. Even the Moscow
"Statement on Atrocities" of October 1943 states that only the war
criminals in the true sense of the word should be judged in the courts
of the states against whose members they had offended "according to the
law of these liberated countries"; whereas persons, "whose offences have
no particular, geographical peace", among them particularly "persons
having committed crimes against peace", were not to be held responsible
in courts of law and according to valid laws. In respect of these persons,

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a political act on the part of the governments of the big powers themselves
was provided for, similar to the banishment of Napoleon: "they
will be punished by joint decision of the governments of the Allies." -

Only on the 8 April 1945, Brierly, professor of International Law
and Diplomacy, Oxford, wrote in the "Observer":

"I have dealt so far with war crimes in the strict sense of the
term. But there are two kinds of evil acts that our ennemies
have perpetrated which the term does not cover and for which
retribution, if it is to be exacted at all, must be found in
extralegal thinking, first, of the conduct of the
German leaders in plunging the world into this terrible war, and
secondly of the barbarous cru*lties which they have inflicted on
their own people, Jewish or others.

These acts do not violate the laws of war any other human
laws, not even German laws, for these do not apply to the Nazi
Leaders;they are, therefore, not "crimes" and to deal with them
under the forms of law would be a mockary. Even if it would be
proved, as probably it could, that Hitler has personally committed
or ordered some particular act which is a war crime, yet to
punish him for that when his real offences are so much more awful
would be like punishing a gangster for non-payment of his income
tax.

The Treaty of Versailles did indeed propose that the kaiser
should be tried "for a supreme offence against international
morality and the sanctity of treaties, "but that was one of the
many mistakes which helped to wreck the scheme for desling with
war crimes after the last war. The acts of the Nazi leaders
transcend mere legal justice, and they can be fitly dealt with
only by a high act of policy on the part of the *llied governments.
Napoloon's precedent, except for its leniency, is better then
the kaisor's."

So here we stand before the riddle how and by what means this change
in the basic interpretation is to be explained. For the solution of the
riddle, I am indebted to professor Wahl of Heidelberg University and
his speech in the IG Farben case. According to an article in the
"American Journal of International Law", by George ***inch, he (wahl)
has traced the change back to the influence of the Moscow

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professor Trainin, member of the legal institute of the Moscow academy.
Trainin has signed the London Statute as representative of the Soviet
Union. As has been said before, "crimes against peace" were not
originally intended by the Allies to form a count of the indictment
before a court. But in London, Trainin's book on "The Responsibility
of Hitlerism under penal law" had gained recognition. Trainin there
explains: When punishing the war criminals, Russia could not be limited
by legalisms; if earlier attempts to create an international, penal law,
had met with little success, this was to be explained by the fact that
the capitalist countries had not truly wanted to fight the international
criminals, but to create a united front against the Soviet Union.
(Translator: According to Wahl,) Jackson was strongly influenced by
this statement, and he used almost the some words in his report of 7
June 1945,preceding the signing of the London Status (sic): "*e
cannot permit the legal situation being complicated or obscured by
legalisms which have been developed during the imperialist period in
order to make wars respectable." Even in Jackson's opening statement
we find traces of a Soviet coloured terminology, when he says that even
if a common liability followed from the responsibility of the states
and corporations, it was quite unbearable "to let such a legalism
become the basis of personal immunity." Official(Translator: German)
edition of the IMT Proceedings, vol. II, p.177).

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If the London Agreement of 8 August 1945 and Control Council Law No.10
in their preambles refer to the Moscow Statement of October 1943 and claim
to have been issued in implementation of same, this does not apply to
"crimes against peace". At that time it was recognized clearly that those
crimes could only be expiated by political action on the part of those
powers. The historical, political and moral guilt cannot be weighed on
the scales of judicial justice which has to abide by definite forms and
standards in order to prevent the abuse of their dignity for alien purposes.

Criminal prosecution of those crimes does not constitute an organic
development of the growth of legal ideas, even less if it a declaration
of valid laws or a codification of existing common law: it constitutes,
on the contrary, an opportunist and revolutionary breach with the principles
of law hitherto generally recognized, an influx of a totalitarian legal
concept with Soviet leanings into the judicial thought of Western
civilization.

VI.

(1) The main argument of the Prosecution against the charge of "crimes
against peace" was that the Nuernberg Statute as well as Control Council
Law No.10 were ex-post-facto laws which constitute a breach of the
generally recognized principles of law "nullum crimen sine lege" and
"nulla poena sine lege praevia". The fact that this does indeed
constitute a serious weakness of the indictment whose importance is not
to be underestimated

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can be seen from the somewhat forced attempts on the part of the
Prosecution and the Tribunals to refute that argument.

Hence the efforts to prove that those principles have not been
violated since the law in force at the time of the respective actions
not only prohibited aggressive war but even branded it as an international
crime. By such arguments the principle as such is given recognition in
a most remarkable way by the Prosecution as well as by the Tribunals.
The foregoing statements concerning the development of the law between
1919 and may, however, be assumed to have shown in an irrefutable
manner that there can be no question of valid international law having
provided a punishment to be imposed by courts on individuals for the
initiation or the waging of prohibited war, moreover that there had not
been even a tendency to develop in that direction, as has also been
asserted occasionally in a somewhat modified version of the original
theory. It may rather be considered as proven that the theory, legal
documents and practice of states until 1945 proved the opposite and
that only in 1945 a revolutionary breach with all generally recognized
principles took place; the Statute of 1945 and the subsequent Control
Council Law No.10 constitute neither a declaration of common law nor
are they, as once expressed by Sir Hartley Shawcross (Official version
of the IMT, vol II, page 121) "the long overdue" final phase of a development
which could and might have been brought about by a court of law
on its own authority even without the legislative act of a formal treaty
on international law, in view of the fact that this development took
place in a sphere of law still as uncodified as international law and
with reference toas incompletely organized a social structure as the
community of nations. (Translator's note: The quotation is not to be
found at the page of vol.II referred to. On page 121 in the German
version there is the Opening Speech by Justice Jackson, while on p.121
in the English version Justice Jackson speaks on Crimes against the
Jews.)

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(2) Probably sensing that those do not carry any real power of conviction,
they are coupled with the attempt to show that this principle was valid,
even though it may not be applicable with reference to the Counts of the
Indictment; even though it may not be general; even though it may
certainly not be valid in the sphere of international law. The remark of
the American Prosecutor Jackson that this principle was only valid in
"some legal systems" sounds somewhat strong coming from a Judge of the
Supreme Court, in particular when compared to the most apodictical
statements by Robert LANCING and James Brown SCOTT who on the very
strength of the Constitution of the United States declared themselves
completely incapable of giving their consent to a draft treaty violating
the supreme principle upon which their constitution and laws were based.

Also the theory that those defendants who never paid any attention to
international law could not call upon that principle (sic Jackson,
Official version of the IMT, vol. II, p.168) or that such an appeal
because of lack of legal status would ill become the defendants (sic De
Menthon, Official Edition of the IMT, Vol. V, p.419) might go too far
even if only looked upon as a lawyer's figure of speech. If the principle,
is valid it is part of the inalienable "ordre public", the privileges
of which can not be denied to any defendant in any court of law. This
principle has thus even been described

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right out as the Magna Charta of Crime.

The IMT attempts to deal with these principles quoted by the Defense
by means of the following reasoning: (Official edition, Vol.I, page 245)

"In the first place, it is to be observed that the maxim nullum
crimen sine lege is not a limitation of sovereignty, but is in
general a principle of justice. To assert that it is unjust to
punish these who in defiance of treaties and assurances have
attacked neighboring states without warning is obviously untrue,
for in such circumstances the attacker must know that he is doing
wrong, and so far from it being unjust to punish him, it would
be unjust if his wrong were allowed to go unpunished."

The first thing about this argument that meets the eye is, that the
second of the two theses, "nulla poena sine lege", was ommitted and
only the first one was quoted. But even apart from this the argument
may hardly be considered valid. The thesis, of course, constitutes a
limitation of sovereignty by prohibiting executive acts on the part of
the sovereignty infringing that thesis which constitutes one of the
"principles of justice". The contradiction as seen by the IMT, therefore
does not exist. The question whether it is just or unjust to punish
the violation of treaties or assurances without a previous criminal law
depends on whether the thesis "nullum crimen sine lego", which is
supposed to be a "principle of justice", has been violated or not. The
weakness of that reasoning glaringly illuminates the uncertainty and
embarrassment of the Tribunal in the face of the objections by the
Defense.

(3) Finally the attempt is made without denying the principles of
"nullum crimen" and nulla poena sine lege" as such to restrict their
applicability to constitutional law, to deny their applicability, however,
in the sphere of international law.

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In reply to this it has first of all to be strassed that the principle
has nothing to do with the division of power, namely, the legislative
and the judicial authority which is decisive for the constitution. It
does not matter whether the "lex praevia" takes the form of a statute
of common law of a judicial precedent or of a precedent not pursued to
its final consequences. The only thing that matters is, that at the
time a legal standard existed which recognizably defined the act with
sufficient clarity as a criminal offence, even though this may not have
been realized by the defendant. At any rate this makes it clear that
nothing inherent in the principle as such of necessity restricts its
application in essence to constitutional law. The principles of "nulla
poena sine lege" "nullum crimes sine lege" thus do not originate from
the nature of the constitution but from the nature of the punishment
they have to be obeyed whereever punishment is to be inflicted.

Thus the fact that the principle has been given recognition in the
national legislation of civilized states in no way contradicts its
application to international law. On the contrary if the statute of the
Permanent Court of International Justice and the International Court
of Justice quote among the legal sources of international law also
"the general principles of law recognized by civilized nations" they
refer to a source of law superior to international as well as to national
law, which is common to both. This refers primarily even to legal
principles

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which have been developed and are being recognized in foro domastice of
civilized nations; according to the statute, apart from conventional and
common law they, in particular, are to form an independent standard for
decisions in the sphere of international law. Thus no one would doubt that
this principle also claims recognition in the sphere of e.g. international
legislation concerning foreign nationals. If a heavy punishment were to be
inflicted in a foreign country upon a citizen of the United States by the
courts of that state without previous legislation it may be assumed as
certain that the Government of the United States would intervene on this
account on the grounds of violation of international law and would demand
restitution or satisfaction and it is just as certain that a "mixed claims
commission" having to decide on such a complaint would decide in favor of the
plaintiff.

The fact that certain supreme legal principles, in particular those
laid down in the constitution, are common to international as well as national
law is generally known and was proven by the permanent Court of International
Arbitration in the judgment in the case of "Norwegian Claims
against the United States" (Page 118/119).

"Whether the action of the United States was lawful or not, just
compensation is due to the claimants under the municipal law of the
United States, as well as under the international law, based upon
the respect for private property".

"The fifth Amendment to the Constitution of the United States
provides:
"No person... shall be... deprived of life, liberty.

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or property without due process of law, nor shall private property
be taken for public use, without just compensation."

It is common ground that in this respect the public law of the Parties
is in complete accord with the international public law of all
civilised countries.

What is true of the fifth Amendment is of course also true for Article

1, Section 10 of the Constitution prohibiting ex-post-facto laws.

(4) The Permanent Court of International Arbitration had to deal with
principle of "nulla poena sine lege" in connection with the problem of
the "Consistency of certain Danzig Decrees with the constitution of the
Free City" (Publications de la Cour, Seria A/*, fasc. 65, 1935, page 41 se).
It ruled against the National Socialist tenet of "nullum crimen sine
poena", upon which the Danzig Decrees and the plea of the Danzig representative
were based and upon which also the reasoning of the Prosecution
before the Nuernberg Tribunals is based and decided that only the legal
principles of "nullum crimen sine lege" and "nulla poena sine lege" are
alone in conformity with the principles of a state based on law. We quote
the following parts from the opinion of the judgment which were supported
by the following: personages: Sir Cecil HURST, Baron BOLIN-JAEQUEMYNS,
FROMAGEOT , De BUSTAMANTE, ALTAMIRA, URRUTUA, VAN *YSINGA, WANG:

Instead of applying a penal law equally clear to both the judge
and the party accused, as was the case under the criminal law
previously in force at Danzig, there is the possibility under the
new decrees that a man may find himself placed on trial and punished
for an act which the law did not enable him to know was an offence,
because its criminality depends entirely upon the appreciation of
the situation by the Public Prosecutor and by the judge. Accordingly,
a system in which the criminal character of an act and the penalty
attached to it will be known to the judge alone replaces a system in
which this knowledge was equally open to both the judge and the
accused."

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"The principle according to which the constitutional system of the
Free City corresponds to that of a State governed by the rule of law
(Rechtsstaat) is shown in the first place by the manner in which
the Senate must perform its duties."

"Provisions concerning such rights occur in most of the constitutions
drawn up since the beginning of the XIXth century. They are designed
to fix the position of the individual in the community, and to give
him the safeguards which are considered necessary for his protection
against the State. It is in that sense that the words "fundamental
rights" (Grundrechte) have always been understood."

"The problems of the repression of crime may be approached from two
different standpoints, that of the individual and that of the
community. From the former standpoint, the object is to protect
the individual against the State: this object finds its expression
in the maxim Nulla poena sine lege. From the second standpoint, the
object is to protect the community against the criminal, the basic
principle behind the notion Nullum crimen sine poena. The decrees
of August 29th, 1935, are based on the second of these conceptions;
the Danzig Constitution is based upon the former. For this Constitution
taken as its startingpoint the fundamental rights of the individual;
these rights may indeed be restricted,as already pointed out, in
the general public interest, but only in virtue of a law which must
itself specify the conditions of such restriction, and, in particular,
determine the limit beyond which an act can no longer be justified
as an exercise of a fundamental liberty and becomes a punishable
offence. It must be possible for the individual to know, beforehand,
whether his acts are lawful or liable to punishment."

True, this decision referred to the constitutional law of Danzig.
However, the principles generally recognized in foro domestico are at
the same time, as has also been determined by the judgment of the
Permanent Court of International Arbitration, norms of international law.

(5) According to the concept of the United states of America their
government only possesses "restrained powers". The basic rights are
"essential limitations inherent in the very existence of the American
Government" as it was expressed once in the wellknown

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DOWNESS Case (182 Us 40). According to same there is such a thing as
basic rights of a general and fundamental nature, namely "First principles
of the social compact not intended to limit the powers of the State
Government in respect of their own citizens but to operate upon the
Government alone as it was formulated by the Solicitor General (182,
US, 154/5); or as expressed in the opinion of the court (182, US 282)
there are "certain natural rights" in addition to less important and
"what may be called artificial rights"; as expressed in the concurring
opinion (1*2, US 2*0 sq) there are "inherent principles of so fundamental
a nature that they cannot be transgressed" meaning an "absolute denial
of authority" apart from such principles "which regulate a granted
power". The latter merely regulating or artificial rights are to include
the "uniformity clause" for customs duty or the jury clause (MANKICHI
Case 190, US **7 sq). A examples for the fundamental principles "which
the constitution protects wherever the sovereignty of the United States
extends" (l90 US 201) the Solicitor General quotes in the Downness-Case
the prohibition against "bills of attainder" and "ex-post-facto-laws"
as well as the first Ten Amendments as such.

It may be left open what legal consequences arise from those
essential basic rights inherent in every American governmental authority
for the constitutional law of the United States with respect to the
exercise of supreme authority by American authorities and courts in
occupied German territory. One thing, however, is certain, namely that
what has been said concerning the Danzig Decrees by the Hague Decision,
is also decisive in the sphere of International Law. The fact that
certain supreme principles of law have found general recognition by all
civilized nations in foro domestico

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does not prevent their application in International Law; moreover that
recognition is rather a proof that they to binding upon those states
also from the point of view of International Law, as is shown by the
statute of the Permanent Court of International Justice and the International
Court of Justice **th respect to the source of International
Law, and as was also proven by the Permanent Court of International
Arbitration.

The Nuernberg Military Tribunals have been in the habit of bringing
up and discussing the question officially, whether the provisions of the
law of 5 August 1945 and those of Control Council Law No.10 are in
conformity with higher principles of law. If such a question is thrown
open, the inherent possibility exists of its being negated on the basis
of incisive legal arguments. Especially the court which has to decide that
the defendants ought to have refused to obey a positive law valid for
them, if this law contradicted higher legal principles, will have to
deny the applicability of positive legal norms if they are suffering from
similar contradictions.

Starnberg, 23 October 1948 Signed: Dr. *rich Kaufmann
(Professor of International Law at Munich
University, Membr* de la Institute de
Droit International".

I herewith acknowledge and certify above signature of Professor
Dr. Erich Kaufmann, personally known to me.

Nuernberg, 27 October 1948. Signed: Dr. Alfred Schilf
(Dr. Alfred Schilf)

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Certified true copy.

Nuernberg, 27 October 1948. Signed: Dr. Alfred Schilf
(Dr. Alfred Schilf).

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WOERMANN DOCUMENT BOOK No. 10

CERTIFICATE OF TRANSLATION

4 November 1948

We hereby certify that we are duly appointed translators for the
German and English languages and that the above is a true and
correct translation of DOCUMENT BOOK X WOERMANN.

Index & Pages 1- 20 Ludwig Borinski, AGO-34486

Pages 21-32 Kathleen J. Stout, AGO-25978

Pages 33-45 Peter V. Pohlenz, AGO-D-090317

Pages 46-66 George R. Halkett, AGO-20 193

Pages 67-77 Edith L. Steiner, AGO- 20 150

"END"