The British chief prosecutor argues as follows, if I understood him correctly:
First, the unrestricted right of states to wage war was abolished in part by the League of Nations Covenant, later as a general principle by the Kellogg-Briand Pact, which continues to be the nucleus of world peace order to this very day. War, thus prohibited, is a punishable violation of law within and toward the community of nations, and any individual who has acted in a responsible capacity is punishable. Secondly, the indictment of individuals for breach of the peace, although novel, not only represents a moral necessity, but is in fact long overdue in the evolution of law; it is quite simply the logical result of the new legal position. Only in outward appearance does the Charter create new law.
And if I understood the British chief prosecutor correctly, he is asserting that since the conclusion of the Pact of Paris there exists a clear legal order based on the entire world’s uniform conviction as to what is right. Since 1927 the United States have negotiated first with France, then with the remaining Great Powers, with the exception of the Soviet Union, and also with some of the smaller powers concerning the conclusion of a treaty intended to abolish war. Secretary of State Kellogg stated (in a note to the French Ambassador, 27 February 1928) with memorable impressiveness what the Government in Washington were striving for, namely:
The powers should renounce war as an instrument of national politics, waiving all legal definitions and acting from a practical point of view, plainly, simply, and unambiguously, without qualifications or reservations.[[1]] Otherwise the object desired would not be attained: To abolish war as an institution, that is, as an institution of international law.[[2]]
After the negotiations had been concluded, Aristide Briand, the other of the two statesmen from whose initiative springs that pact which in Germany is often called the “Pact to Outlaw War,” declared, when it was signed in Paris:
“Formerly deemed a divine right and remaining in international law as a prerogative of sovereignty, such a war has now at last been legally stripped of that which constituted its greatest danger: its legitimacy. Branded henceforth as illegal, it is truly outlawed by agreement....”[[3]]
According to the conception of both leading statesmen, the Paris Pact amounted to a change of the world order at its very roots, if only all, or almost all, nations of the world—and particularly all the great powers—signed the pact or adhered to it later on, which did actually happen.
The change was to be based on the following conception: Up to the time of the Kellogg-Briand Pact, war had been an institution of international law. After the Kellogg-Briand Pact, war was high treason against the order created by international law.
Many politicians and scholars all over the world shared this conception. It is the definite basic conception of that unique commentary on the League of Nations Covenant by which Jean Ray, far beyond the borders of France, stirred the hearts of all practical and theoretical proponents of the idea of preventing war.[[4]] It is also the basic conception of the Indictment at Nuremberg.
Diplomacy and the doctrine of international law found their way back into their old tracks after the first World War, after a momentary shock from which they recovered with remarkable rapidity. This fact horrified all those who were anxious to see the conclusions—all the conclusions—drawn from the catastrophe.