Violations of International Treaties
Treaties of Mutual Guarantee, Arbitration and Non-aggression
The Law of the Charter
The Charter defines as a crime the planning or waging of war that is a war
of aggression or a war in violation of international treaties. The
Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this
series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these
aggressive wars were also " wars in violation of international treaties, agreements or assurances." These treaties are set out in Appendix C of
the Indictment. Those of principal importance are the following.
(A) Hague Conventions
In the 1899 Convention the signatory powers agreed: " before an appeal
to arms . . . to have recourse, as far as circumstances allow, to the
good offices or mediation of one or more friendly powers." A similar clause was inserted in the Convention for Pacific Settlement of International
Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities Article I contains this far more specific language:
" The Contracting Powers recognise that hostilities between them must
not commence without a previous and explicit warning, in the form of
either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war." Germany was a party to these conventions.
(B) Versailles Treaty
Breaches of certain provisions of the Versailles Treaty are also relied on
by the Prosecution - "not to fortify the left bank of the Rhine" (Art.
42-44); to "respect strictly the independence of Austria" (Art. 80), renunciation of any rights in Memel (Art. 99), and the Free City of Danzig (Art.
100), the recognition of the independence of the Czecho-Slovak State; and the Military, Naval and Air Clauses against German rearmament
found in Part V. There is no doubt that action was taken by the German Government contrary to all these provisions, the details of which are set
out in Appendix C. With regard to the Treaty of Versailles, the matters relied on are:
1. The violation of Articles 42 to 44 in respect of the demilitarised zone of the Rhineland.
2. The annexation of Austria on the 13th March, 1938, in violation of Article 80,
3. The incorporation of the district of Memel on the 22nd March, 1939, in violation of Article 99;
4. The incorporation of the Free City of Danzig on the 1st September, 1939, in violation of Article 100;
5. The incorporation of the provinces of Bohemia and Moravia on the 16th March, 1939, in violation of Article 81;
6. The repudiation of the military naval and air clauses of the Treaty, in or about March of 1935.
On the 21st May, 1935, Germany announced that, whilst renouncing the disarmament
clauses of the Treaty, she would still respect the
territorial limitations, and would comply with the Locarno Pact.
[With regard to the first five breaches alleged, therefore, the Tribunal finds the allegation proved.]
(C) Treaties of Mutual Guarantee, Arbitration and Non-aggression
It is unnecessary to discuss in any detail the various treaties entered into
by Germany with other powers. Treaties of Mutual Guarantee were
signed by Germany at Locarno in 1925, with Belgium, France, Great Britain and Italy, assuring the maintenance of the territorial status quo.
Arbitration treaties were also executed by Germany at Locarno with Czechoslovakia, Belgium and Poland.
Article I of the latter treaty is typical, providing:
" All disputes of every kind between Germany and Poland . . . which it
may not be possible to settle amicably by the normal methods of
diplomacy. shall be submitted for decision to an arbitral tribunal . . ."
Conventions of Arbitration and Conciliation were entered into between Germany,
the Netherlands and Denmark in 1926; and between Germany
and Luxemberg in 1929. Non-aggression treaties were executed by Germany with Denmark and Russia in 1939.
(D) Kellogg-Briand Pact
The Pact of Paris was signed on the 27th August, 1928, by Germany, the United
States, Belgium, France, Great Britain, Italy, Japan, Poland
and other countries; and subsequently by other powers. The Tribunal has made full reference to the nature of this Pact and its legal effect in
another part of this judgment. It is therefore not necessary to discuss the matter further here, save to state that in the opinion of the Tribunal
this Pact was violated by Germany in all the cases of aggressive war charged in the Indictment. It is to be noted that on the 26th January, 1930,
Germany signed a Declaration for the Maintenance of Permanent Peace with Poland, which was explicitly based on the Pact of Paris, and in
which the use of force was outlawed for a period of ten years.
The Tribunal does not find it necessary to consider any of the other treaties
referred to in the Appendix, or the repeated agreements and
assurances of her peaceful intentions entered into by Germany.
(E) The Law of the Charter
The jurisdiction of the Tribunal is defined in the Agreement and Charter,
and the crimes coming within the jurisdiction of the Tribunal, for which
there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the 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 recognised by the civilised world. The
Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the 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.
The Signatory Powers created this Tribunal, defined the law it was to administer,
and made regulations for the proper conduct of the Trial. In
doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to
set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair
trial on the facts and law.
The Charter makes the planning or waging of a war of aggression or a war in
violation of international treaties a crime, and it is therefore not
strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But
inview of the great importance of the questions of law involved, the Tribunal has heard full argument from the Prosecution and the Defence, and
will express its view on the matter.
It was urged on behalf of the defendants that a fundamental principle of all
law -international and domestic- is that there can be no punishment
of crime without a pre-existing law. " Nullum crimen sine lege. nulla poena sine lege." It was submitted that ex post facto punishment is
abhorent to the law of all civilised nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were
committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try
and punish offenders.
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 those who in defiance of treaties and assurances have attacked neighbouring 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. Occupying the positions they did in the government of Germany, the defendants, or
at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international
disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out the
designs of invasion and aggression. On ,this view of the case alone, it would appear that the maxim has no application to ,the present facts.
This view is strongly reinforced by a consideration of the state of international
law in 1939, so far as aggressive war is concerned. The General
Treaty for the Renunciation of War of 27th August, 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on
sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they
" Deeply sensible of their solemn duty to promote the welfare of mankind;
persuaded that the time has come when a frank renunciation of war
as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples should
be perpetuated .... all changes in their relations with one another should be sought only by pacific means .... thus uniting civilised nations of the
world in a common renunciation of war as an instrument of their national policy ..."
The first two Articles are as follows:-
" Article I: The High Contracting Parties solemnly declare in the names
of their respective peoples that they condemn recourse to war for the
solution of international controversies and renounce it as an instrument of national policy in their relations to one another."
" Article II: The High Contracting Parties agree that the settlement
or solution of all disputes or conflicts of whatever nature or of whatever origin
they may be, which may arise among them, shall never be sought except by pacific means."
The question is, what was the legal effect of this Pact? The nations who signed
the Pact or adhered to it unconditionally condemned recourse
to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an
instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy
necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its
inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an
instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact. As Mr. Henry L.
Stimson, then Secretary of State of the United States, said in 1932:-
" War between nations was renounced by the signatories of the 'Kellogg-Briand
Treaty. This means that it has become throughout practically
the entire world .... an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this
general treaty law .... We denounce them as law breakers."
But it is argued that the Pact does not expressly enact that such wars are
crimes, or set up courts to try those who make such wars. To that
extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to
certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of
flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they
have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention nowhere designates such practices as
criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.
For many years past, however, military tribunals have tried and punished individuals
guilty of violating the rules of land warfare laid down by this
Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment
than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is
not the product of an international legislature, and that such international agreements as the Pact have to deal with general principles of law,
and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states
which gradually obtained universalrecognition, and from the general principles of justice applied by jurists and practiced by military courts. This
law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express
and define for more accurate reference the principles of law already existing.
The view which the Tribunal takes of the true interpretation of the Pact is
supported by the international history which preceded it. In the year
1923 the draft of a Treaty of Mutual Assistance was sponsored by the League of Nations. In Article I the Treaty declared " that aggressive war is
an international crime," and that the parties would " undertake that no one of them will be guilty of its commission." The draft treaty was
submitted to twenty-nine States, about half of whom were in favour of accepting the text. The principal objection appeared to be in the difficulty
of defining the acts which would constitute " aggression," rather than any doubt as to the criminality of aggressive war. The preamble to the
League of Nations 1924 Protocol for the Pacific Settlement of International Disputes (" Geneva Protocol"), after "recognising the solidarity of the
members of the international community," declared that " a war of aggression constitutes a violation of this solidarity and is an international
crime." It went on to declare that the contracting parties were " desirous of facilitating the complete application of the system provided in the
Covenant of the League of Nations for the pacific settlement of disputes between the states and of ensuring the repression of international
crimes." The Protocol was recommended to the members of the League of Nations by a unanimous resolution in the Assembly of the forty-eight
members of the League These members included Italy and Japan, but Germany was not then a member of the League.
Although the Protocol was never ratified, it was signed by the leading statesmen
of the world, representing the vast majority of the civilised
states and peoples, and may be regarded as strong evidence of the intention to brand aggressive war as an international crime.
At the meeting of the Assembly of the League of Nations on the 24th September,
1927, all the delegations then present (including the German,
the Italian and the Japanese), unanimously adopted a declaration concerning wars of aggression. The preamble to the declaration stated:
" The Assembly:
Recognising the solidity which unites the community of nations;
Being inspired by a firm desire for the maintenance of general peace;
Being convinced that a war of aggression can never serve as a means of settling
international disputes, and is in consequence an
The unanimous resolution of the 18th February, 1928, of twenty-one American
Republics of the Sixth (Havana) Pan-American Conference,
declared that " war of aggression constitutes an international crime against the human species."
All these expressions of opinion, and others that could be cited, so solemnly
made, reinforce the construction which ,the Tribunal placed upon
the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the
conscience of the world, finds its expression in the series of pacts and treaties to which the Tribunal has just referred.
It is also important to remember that Article 227 of the Treaty of Versailles
provided for the constitution of a special Tribunal, composed of
representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the
former German Emperor " for a supreme offence against international morality and the sanctity of treaties." The purpose of this trial was
expressed to be " to vindicate the solemnobligations of international undertakings, and the validity of international morality." In Article 228 of the
Treaty, the German Government expressly recognised the right of the Allied Powers " to bring before military tribunals persons accused of
having committed acts in violation of the laws and customs of war."
It was submitted that international law is concerned with the action of sovereign
States, and provides no punishment for individuals; and further,
that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and
liabilities upon individuals as well as upon States has long been recognised. In the recent case of Ex Parte Quirin (1942 317 US 1), 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 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 offences against the laws of nations, and
particularly ,the laws of war. Many other authorities could be quoted, but enough has been said to show that individuals can be punished for
violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international law be enforced.
The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility.
The principle of international law, which under certain circumstances, protects
the representatives of a state, cannot be applied to acts which
are condemned as criminal by international law. The authors of these facts cannot shelter themselves behind their official position in order to be
freed from punishment in appropriate proceedings. Article 7 of the Chanter expressly declares:
" The official position of defendants, whether as Heads of State, or
responsible officials in government departments, shall not be considered as
freeing them from responsibility, or mitigating punishment."
On the other hand the very essence of the Charter is that individuals have
international duties which transcend the national obligations of
obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of
the State if the State in authorising action moves outside its competence under international law.
It was also submitted on behalf of most of these defendants that in doing
what they did they were acting under the orders of Hitler, and therefore
cannot be held responsible for the acts committed by them in carrying out these orders. The Charter specially provides in Article 8:
"The fact that the defendant acted pursuant to order of his Government
or of a superior shall not free him from responsibility, but may the
considered in mitigation of punishment."
The provisions of this Article are in conformity with the law of all nations.
That a soldier was ordered to kill or torture in violation of the
international law of war this never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may
be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the
existence of the order, but whether moral choice was in fact possible.
International Criminal Court
Published online by Equipo Nizkor and Derechos Human Rights - 27 May 2002