Let this also be said, that the Pact of Paris was not a clumsy instrument likely to become a kind of signpost for the guilty. It did not enable Germany to go to war against Poland and yet rely, as against Great Britain and France, on any immunity from warlike action because of the very provisions of the pact. For the pact laid down expressly in its preamble that no state guilty of a violation of its provisions might invoke its benefits. And when, on the outbreak of the second World War, Great Britain and France communicated to the League of Nations that a state of war existed between them and Germany as from the 3rd of September 1939, they declared that by committing an act of aggression against Poland, Germany had violated her obligations assumed not only towards Poland but also towards the other signatories of the pact. A violation of the pact in relation to one signatory was an attack upon all the other signatories and they were entitled to treat it as such. I emphasize that point lest any of these defendants should seize upon the letter of the particulars of Count Two of the Indictment and seek to suggest that it was not Germany who initiated war with the United Kingdom and France on 3 September 1939. The declaration of war came from the United Kingdom and from France; the act of war and its commencement came from Germany in violation of the fundamental enactment to which she was a party.
The General Treaty for the Renunciation of War, this great constitutional instrument of an international society awakened to the deadly dangers of another Armageddon, did not remain an isolated effort soon to be forgotten in the turmoil of recurrent international crises. It became, in conjunction with the Covenant of the League of Nations or independently of it, the starting point for a new orientation of governments in matters of peace, war, and neutrality. It is of importance, I think, to quote just one or two of the statements which were being made by governments at that time in relation to the effect of the pact. In 1929 His Majesty’s Government in the United Kingdom said, in connection with the question of conferring upon the Permanent Court of International Justice jurisdiction with regard to the exercise of belligerent rights in relation to neutral states—and it illustrates the profound change which was being accepted as having taken place as a result of the Pact of Paris in international law:
“But the whole situation . . . . rests, and international law on the subject has been entirely built up, on the assumption that there is nothing illegitimate in the use of war as an instrument of national policy, and, as a necessary corollary, that the position and rights of neutrals are entirely independent of the circumstances of any war which may be in progress. Before the acceptance of the Covenant, the basis of the law of neutrality was that the rights and obligations of neutrals were identical as regards both belligerents, and were entirely independent of the rights and wrongs of the dispute which had led to the war, or the respective position of the belligerents at the bar of world opinion.”
Then the Government went on:
“Now it is precisely this assumption which is no longer valid as regards states which are members of the League of Nations and parties to the Peace Pact. The effect of those instruments, taken together, is to deprive nations of the right to employ war as an instrument of national policy, and to forbid the states which have signed them to give aid or comfort to an offender.”
This was being said in 1929, when there was no war upon the horizon.
“As between such states, there has been in consequence a fundamental change in the whole question of belligerent and neutral rights. The whole policy of His Majesty’s present Government (and, it would appear, of any alternative government) is based upon a determination to comply with their obligations under the Covenant of the League and the Peace Pact. This being so, the situation which we have to envisage in the event of a war in which we were engaged is not one in which the rights and duties of belligerents and neutrals will depend upon the old rules of war and neutrality, but one in which the position of the members of the League will be determined by the Covenant and by the Pact.”
The Chief Prosecutor for the United States of America referred in his opening speech before this Tribunal to the weighty pronouncement of Mr. Stimson, the Secretary of War, in which, in 1932, he gave expression to the drastic change brought about in international law by the Pact of Paris, and it is perhaps convenient to quote the relevant passage in full:
“War between nations was renounced by the signatories of the Kellogg-Briand Pact. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. Hereafter, when two nations engage in armed conflict, either one or both of them must be wrongdoers—violators of this general treaty law. We no longer draw a circle about them and treat them with the punctilios of the duelist’s code. Instead we denounce them as law-breakers.”
And nearly 10 years later, when numerous independent states lay prostrate, shattered or menaced in their very existence before the impact of the war machine of the Nazi State, the Attorney General of the United States, subsequently a distinguished member of the highest Tribunal of that great country, gave significant expression to the change which had been effected in the law as the result of the Pact of Paris in a speech for which the freedom-loving peoples of the world will always be grateful. On the 27th of March 1941—and I mention it now not as merely being the speech of a statesman, although it was certainly that, but as being the considered opinion of a distinguished lawyer,—he said this:
“The Kellogg-Briand Pact of 1928, in which Germany, Italy and Japan covenanted with us, as well as with other nations, to renounce war as an instrument of policy, made definite the outlawry of war and of necessity altered the dependent concept of neutral obligations.
“The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their signatories of the right of war as an instrument of national policy or aggression and rendered unlawful wars undertaken in violation of these provisions. In consequence these treaties destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars . . . .
“It follows that the state which has gone to war in violation of its obligations acquires no right to equality of treatment from other states, unless treaty obligations require different handling of affairs. It derives no rights from its illegality.
“In flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie international law and allow these great treaties to become dead letters. The intelligent public opinion of the world which is not afraid to be vocal, and the action of the American States, has made a determination that the Axis Powers are the aggressors in the wars today, which is an appropriate basis in the present state of international organizations for our policy.”
Thus, there is no doubt that by the time the National Socialist State of Germany had embarked upon the preparation of the war of aggression against the civilized world and by the time it had accomplished that design, aggressive war had become, in virtue of the Pact of Paris and the other treaties and declarations to which I have referred, illegal and a crime beyond all uncertainty and doubt. And it is on that proposition, and fundamentally on that universal treaty, the Kellogg-Briand Pact, that Count Two of this Indictment is principally based.
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