Even though war has been previously declared an international crime, especially at the 8th League of Nations Assembly of 1927, it became quite clear in preliminary conversations, as has been proved by documents already submitted to the Tribunal, that this declaration was not meant to make war a crime in the legal sense but that it was an expression of the wish to prevent future international catastrophes of the scale of the first World War. Moreover, neither the United States nor Russia participated in the League of Nations resolution of 1927.
All further plans for outlawing war during the period between the first and second World Wars remained mere drafts, as the British Prosecutor had to acknowledge in his significant argumentation, because practical politics could not follow these moral postulates.
All these experiments—and they are by no means few—clearly show that the problem of finding a definition lies in the difficulty of condensing a political process, dependent upon a host of components, into a legal concept which will cover all the varying cases occurring in practice. The failure to formulate a definition which could be used in international law has led to the fact that, instead of working out general standards and measures applicable in each case, the designation of the aggressor was left to the decision of an organ dominating all the contending parties. In such a way, the question of defining the aggressor became the question: “Quis judicavit?” that is, “Who shall designate the aggressor?” From this decision follows a new difficulty, namely, what is to be done against the aggressor?
Previous to the attempt of settling in a general way the concept of aggression and the sanctions against the aggressor, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory and anarchic situation, the United States, under Secretary of State Bryan...
THE PRESIDENT: [Interposing.] Isn’t this really arguing the same questions that Dr. Jahrreiss has already argued?
DR. HORN: Mr. President, I have tried to omit the matters set forth by Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly to the Kellogg Pact. I am only dealing with the questions pertaining to the legal aspect of wars of aggression.
THE PRESIDENT: Yes, but the Tribunal only granted the right to have an additional counsel deal with the general questions of law on the understanding that the other counsel were not going to deal with the same questions of law. Of course, you are not using the words of Dr. Jahrreiss—I should not expect you to do that—but you are arguing the very same topics.
DR. HORN: Mr. President, it had been agreed originally, as the professor as an expert had stated, that every counsel is entitled to take a different attitude toward the problem argued by him. Professor Jahrreiss concentrated chiefly on the Kellogg Pact and its consequences. I personally am turning my attention to aggressive war, and, as you, Mr. President, emphasized...
THE PRESIDENT: Just a moment. What is involved, then, is that the Tribunal is going to hear 20 arguments upon the general questions of law; and surely it can scarcely have been thought by defendants’ counsel that the Tribunal proposed to hear 20 arguments on the general questions of law and also hear Dr. Jahrreiss on it. The only purpose of hearing one counsel was to have the general questions of law dealt with by one counsel alone, and that the others should not speak upon it.
DR. HORN: Mr. President, may I emphasize once more...