By agreement between the Chief Prosecutors it is my task on behalf of the British Government and of the other States associated on this Prosecution to present the case on Count 2 of the Indictment and to show how these Defendants in conspiracy with each other and with persons not now before this Tribunal planned and waged a war of aggression in breach of the Treaty obligations by which, under International Law Germany, as other States, had sought to make such wars impossible.
That task falls into two parts. The first is to demonstrate the nature and the basis of the Crime against Peace which, under the Charter of this Tribunal, is constituted by waging wars of aggression and in violation of Treaties. The second is to establish beyond doubt that such wars were waged by these Defendants.
As to the first, it would no doubt be sufficient to say this. It is not incumbent upon the Prosecution to prove that wars of aggression and wars in violation of International Treaties are, or ought to be, International Crimes. The Charter of this Tribunal has prescribed that they are crimes and that the Charter is the Statute and the law of this Court. Yet, though that is the clear and mandatory law governing the jurisdiction of this Tribunal, we feel that we should not be fully discharging our task in the abiding interest alike of international justice and morality unless we showed the position of that provision of the Charter against the whole perspective of International Law. For just as some old English Statutes were substantially declaratory of the Common Law, so this Charter substantially declares and creates a jurisdiction in respect of what was already the Laws of Nations.
Nor is it unimportant to emphasize that aspect of the matter lest there be some, now or hereafter, who might allow their judgment to be warped by plausible catchwords or by an uninformed and distorted sense of justice towards these Defendants. It is not difficult to be misled by such phrases as that resort to war in the past has not been a crime; that the power to resort to war is one of the prerogatives of the sovereign State; that the Charter in constituting wars of aggression a crime has imitated one of the most obnoxious doctrines of National Socialist jurisprudence, namely post factum legislation; that the Charter is in this respect reminiscent of Bills of Attainder—and that these proceedings are no more than a measure of vengeance, subtly concealed in the garb of judicial proceedings which the Victor wreaks upon the Vanquished. These things may sound plausible—yet they are not true. It is, indeed, not necessary to doubt that some aspects of the Charter bear upon them the imprint of significant and salutary novelty. But it is our submission and conviction, which we affirm before this Tribunal and the world that fundamentally the provision of the Charter which constitutes such wars as these Defendants joined in waging and in planning a crime is not in any way an innovation. That provision does no more than constitute a competent jurisdiction for the punishment of what not only the enlightened conscience of mankind but the Law of Nations itself constituted an International Crime before this Tribunal was established and this Charter became part of the public law of the world.
So first let this be said. Whilst it may be true that there is no body of international rules amounting to law in the Austinian sense of a rule imposed by a sovereign upon a subject obliged to obey it under some definite sanction, yet for fifty years or more the people of the world, striving perhaps after that ideal of which the poet speaks:
When the War Drums throb no longer
And the Battle Flags are furled,
In the Parliament of Man,
The Federation of the World
have sought to create an operative system of rules based on the consent of nations to stabilize international relations, to avoid war taking place at all and to mitigate the results of such wars as took place. The first such treaty was of course the Hague Convention of 1899 for the Pacific Settlement of International Disputes. This was, indeed, of little more than precatory effect and we attach no weight to it for the purpose of this case, but it did establish agreement that in the event of serious disputes arising between the signatory powers, they would so far as possible submit to mediation. That Convention was followed in 1907 by another Convention reaffirming and slightly strengthening what had previously been agreed. These early conventions fell indeed very far short of outlawing war or of creating any binding obligation to arbitrate. I shall certainly not ask you to say any crime was committed by disregarding them. But at least they established that the contracting powers accepted the general principle that if at all possible war should be resorted to only if mediation failed.