Now, during the second World War the United States Government decided to help Great Britain. Great Britain was able to acquire destroyers, and it later received the assistance of Lend-Lease. The American public recognized this act of assistance as being essentially no longer neutral; it was regretted by some, welcomed by others, sometimes attacked and sometimes defended. The supporters of the measures before the American public, above all Stimson and Cordell Hull, quite rightly refrained from justifying them as consistent with neutrality. On the contrary, they took their stand on the Pact of Paris as interpreted by the Budapest Articles.[[49]] As we saw, this would, according to Viscount Sankey’s indisputably correct conception of the sources of international law, have been wrong as far back as 1935.
After the developments which had taken place since Italy’s victory over Abyssinia, such discussions were entirely outside the field of legal realities. Their purpose was to resolve internal dissensions in America and for that very reason could not have been of direct importance for international law. Even had these discussions taken place between states, they could at most have helped to create law. But is it actually necessary to assert or prove that such discussions could not have created, in the midst of the great struggle, a law to attain which so many efforts—efforts which were proved to have been Utopian—were made in vain in peacetime?
In this Court many ways of legal thinking meet—ways which are in part very different. This leads to a number of ineradicable differences of opinion. But no manner of legal thinking anywhere on earth, from the most ancient times to the most recent, could or can make possible arguments which contradict the very nature of law as a social order of human life arising out of history. If several governments accept articles about whose contents they are of different opinions and if these articles then find no real application in the practice of these governments—which is not to be wondered at considering the circumstances under which they arose—and if logicians then interpret these articles, while the practice of governments rejects these interpretations either expressly or tacitly, then one will simply have to resign oneself to this, inasmuch as one proposes to keep to the task of legal appreciation, however much the goal may seem worth striving for, politically or morally.
But let us forget for a moment the bitter realities of those years following upon the Italo-Abyssinian conflict. Let us suppose for a moment that a general and unambiguous pact had existed, accepted and applied by the contracting parties in fundamental and factual agreement. Would the liability of individuals to punishment for the breach of such a treaty be founded in international law?
No—not even the liability of the state to punishment, let alone that of individuals.
The breach of such a treaty would not be any different, under existing international law, from any other violation of international law. The state violating a treaty would be committing an offense against international law, but not a punishable act.[[50]] Attempts were occasionally made to deduce from words délit (offense), crime international (international crime), and condamnation de la guerre (condemnation of war) the existence of an international criminal law dealing with our case. Such conclusions are based on wrong premises.[[51]] Every lawyer knows that any unlawful behavior can be called a délit (delictum), not only punishable behavior. And the word crime is used even entirely outside the legal sphere. And this is precisely the case here. When in 1927, on Poland’s application, the League of Nations Assembly declared war to be a crime international, the Polish representative expressly stated that the declaration was not actually a legal instrument but an act of moral and educational importance.[[52]] The endeavor to organize a universal world system of collective security on a legal basis failed. But this does not mean that the numerous bilateral treaties whose purpose it is to preclude wars of aggression between the two partners became inapplicable. One will have to examine whether the parties to the treaty may have made the existence or continued existence of a general machinery of collective security the prerequisite for the validity of the treaty.
For unilateral assurances of nonaggression the same holds good as for bilateral treaties.
Many bilateral nonaggression pacts were concluded and several unilateral assurances were given. In some cases a political, in others a legal concept of aggression, or even a number of such legal concepts may determine right and wrong.
The Reich also concluded a series of such pacts. They have been cited by the Prosecution in argument. One must examine whether all these treaties were still in force at the critical moment, and this examination will be left to the individual defendant’s counsel. But if the Reich did attack, in some specific case, in breach of a nonaggression pact which was still valid, it committed an offense in international law and is responsible therefor according to the rules of international law regarding such offenses.
But only the Reich—not the individual, even if he were the head of the State. This is beyond all doubt, according to existing international law. It is unnecessary even to speak about this. For up to the most recent times not even the possibility was mentioned, either in the Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish conflict, of instituting criminal proceedings against those people who were responsible, on the Japanese, Italian, or Russian side, for planning, preparing, launching, and conducting the war, or who simply participated in these acts in any way. And it was certainly not because matters had, paradoxically enough, not been thought out to the end, that they were not prosecuted. They were not prosecuted because this cannot take place as long as the sovereignty of states is the organizational basic principle of interstate order.