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The Search for World Peace |
PART TWO:
THE AFTERMATH OF WORLD WAR II
(1) The San Francisco Conference and the Birth of the U.N. Charter (Apr. 25-June 26, 1945)
With war raging in Europe, President Roosevelt and Prime Minister Churchill met on board ship and issued "The Atlantic Charter". The declaration of "Four Freedoms" which it contained was reminiscent of Wilson's "14 Points". Once more the hope was expressed that a just social order would be created in which man could live in freedom from fear. In 1942 the Allies met in Washington, endorsed the principles of the Atlantic Charter, and adopted the name "United Nations". Plans were being made to bring before the bar of justice those who had been responsible for the crimes committed. |160|
Proposals for the structure of the new international parliament were considered by the United States, Great Britain, Russia and China when they met at Dumbarton Oaks, in Washington, D.C. in 1944. At Yalta, in 1945, the "Big Three", with victory in sight, summoned the United Nations to send delegates to San Francisco to prepare the final instrument for a new world order to which the United States pledged its full support. |161| The "Dumbarton Oaks Proposals" were taken as the basis for the discussions which were to lead to the United Nations Charter. (DOCUMENT 17 (a))
It was the plan of the Conference to enforce peace and security by assuring the speedy assembly of forces of such magnitude as to deter or suppress any aggression which might arise. The Security Council was to be given a wide grant of authority. The great Powers, which would have to bear the brunt of any military or economic obligations, were to act in the Council by unanimous decision. |162| The shortcomings of the League were to be corrected by giving the Council authority to enforce its decisions – an element of compulsion which was absent from the Covenant.
The primary purpose of the new organization was "to maintain international peace and security; and to that end to take effective collective measures for the prevention and removal of threats to the peace and the suppression of acts of aggression or other breaches of the peace... ". |163| In using the words "other breaches of the peace" in addition to the term "aggression", it was intended to allow the Council to act, even if the unlawful duress was something less than aggression, providing the improper means of coercion posed a threat to the security of a State. |164|
Chapter VIII, Sec. B of the Dumbarton Oaks proposal charged the Security Council with responsibility for determining the existence of aggression, and the means necessary to restore peace. The Committee assigned to make recommendations on that particular article soon came face to face with the problem of defining aggression. |165|
The Czech delegate expressed concern about the danger inherent in allowing the Council to have complete discretion. (DOCUMENT 17 (b)) He drew attention to the Convention on the Definition of Aggression which his government, and others, had signed in July 1933.
The Bolivian representative, in a very perceptive and far sighted declaration, considered that a definition of aggression was absolutely essential to a system of world security. (DOCUMENT 17 (c)) He also saw the need for a mechanism of international justice which would take into account the economic and social well-being of the great masses of the peoples. The definition, which Bolivia proposed be written into the Charter, listed as aggression: "invasion, by armed force, of a foreign territory, declaration of war, attack by land, sea or air forces, aid lent to armed bands for the purposes of invasion, the intervention of a state in the internal or external policy of another, refusal to submit the cause of belligerence to the procedures of peaceful solution, or refusal to comply with a decision pronounced by a court of international justice." |166| The actual wording proposed by Bolivia as amendments to the Charter contained slight variations, but the importance of a definition and its general content was clearly recognized. |167|
The Philippine Delegation proposed that the definition of aggression be written into the Charter, and that it also prohibit attack on public vessels, or supplying any form of aid to any armed band, faction or group, or the establishment of agencies abroad to conduct subversive propaganda. (DOCUMENT 17 (d)) Iran and Egypt agreed that the Charter should include a "clear and exact definition of the term 'aggressor'," but no specific definition was offered. |168|
Greece noted that the existence of the veto power might prevent any determination of who was the aggressor, and therefore recommended that the determination be made by the vote of 7 members of the Security Council and not merely the big Powers. (DOCUMENT 17 (e)) Along similar lines, Mexico submitted that the General Assembly should have a hand in determining which state was the aggressor. |169| New Zealand wanted concurrence by majority vote of the assembly before sanctions could be applied. |170| Peru was concerned about possible "economic aggression", which it felt should be studied by the Assembly. |171|
The four-Powers themselves had proposed an amendment which would have required the Security Council, in determining which state was the aggressor, to take into account any failure to comply with provisional measures recommended by the Council for the restoration of peace. (DOCUMENT 17 (f)) This was interpreted as a partial definition of aggression, for it implied that failure to accept the Council's recommendation might lead to the conclusion that the recalcitrant state was the aggressor. |172| Other participating governments had other suggestions. (DOCUMENT 17 (g))
The definition of aggression, and whether it should be included in the Charter, was given protracted consideration by the responsible committee. (DOCUMENT 17 (h)) The United States and the United Kingdom led the majority in opposition. The conclusion finally reached, as reported by M. Paul-Boncour, was to omit any definition of aggression from the Charter and "to leave to the Council the entire decision as to what constitutes a threat to the peace, a breach of the peace, or an act of aggression." (DOCUMENT 17 (i)) With the closing of the San Francisco Conference, the United Nations Charter was born.
President Harry Truman, addressing the 50 nations assembled, declared: "By this Charter, you have given reality to the ideal of that great statesman of a generation ago – Woodrow Wilson." |173| Jan Christian Smuts, who had been one of the fathers of the League idea, was among those invited to speak. He saw the Charter as a working plan "for a unified front of peace-loving people against future aggressors." The old veteran of both war and peace conferences warned: "Unless the spirit to operate it is there, the best plan or machine may fail." |174| When M. Paul-Boncour, who had pleaded in vain for effective action by the League, rose to speak he echoed the sentiments of the American President, and expressed the conviction than an international force would be formed to enforce the decisions of the Security Council in suppressing aggression. He recalled the words of Pascal: ... "Justice without strength is a mockery." "The United Nations," he said, "and more especially the great nations with a permanent seat on the Council, must remain truly united. The whole efficacy of the Charter depends on this unity." |175| All of the distinguished statesmen assembled at San Francisco knew, or should have known, that the problem of world peace was not one of conceiving plans or Charters, but of implementing them.
(2) The London Conference and The Charter of the International Military Tribunal (June-Aug. 1945)
While the victorious states were busy at San Francisco, preparations were being made for the trial of the major war criminals. The United States had prepared a plan which was accepted in principle by the Foreign Ministers of Britain, the Soviet Union and France. "Launching a war of aggression" would be charged as a criminal act, along with "invasion by force or threat of force ... or initiation of war in violation of international law or treaties." (DOCUMENT 18 (a))
President Truman appointed Robert H. Jackson to undertake the preparations for the United States. Mr. Jackson, having taken leave as an Associate Justice of the U.S. Supreme Court, submitted a comprehensive plan to the new American President. (DOCUMENT 18 (b)) "We propose to charge". said Justice Jackson, "that a war of aggression is a crime." He referred to the Geneva Protocol of 1924, the 1927 League ResolutiononAggression, the Kellogg-Briand Pact, and other international instruments, as ample authority for a strengthened international law whose goal would be "to make less war attractive to those who have governments and the destinies of people in their power." |176|
The four Allied Powers met in London for the purpose of drawing up a Charter setting forth the law and the procedures to be applied by the planned International Military Tribunal. In delineating the range of crimes over which the court would have jurisdiction, the initial draft followed the line of the original United States proposal. (DOCUMENT 18 (c)) Within a few days, however, the United States felt that there should be some clarification of what would constitute "launching a war of aggression", and suggested: "an invasion of another country in the absence of an attack upon, invasion of, or declaration of war against such country." (DOCUMENT 18 (d)) This inartistic formulation implied that aggression was equivalent to invasion and that there could be a legitimate military defense in response to invasion, attack or declaration of war by another country.
Justice Jackson felt that the tribunal should not be drawn into a propaganda discussion by allowing the Germans to argue that they were provoked into war as a defensive action, and that the best way to avoid that hazard was to have an agreed definition of aggression included in the Charter of the Tribunal. He expressed the view that the definition used in the Soviet Treaty of July 3, 1933 would be suitable, but that other treaties might usefully be consulted. (DOCUMENT 18 (e)) The French were prepared to condemn the "policy of aggression" in breach of treaties and in violation of international law, but without any definition. (DOCUMENT 18 (f)) The discussion which followed showed the basic differences in approach among the distinguished international lawyers.
Professor André Gros of France did not believe that aggressive war could be considered a crime since there had never before been any sanctions connected with such an offense. |177| General Nikitchenko, of the Soviet Supreme Court, wanted to avoid any argument which might arise from varying interpretations of what was or was not a crime under international law. His primary concern was not to make international law for the future but to punish the Nazi criminals. He felt that if the San Francisco delegates had been unable to define aggression and had left it to the United Nations, those drawing the IMT Charter should do the same. |178|
Mr. Jackson, having been a former U.S. Attorney General, wanted a precise specification of the elements of the crime being charged. |179| The British tried to find compromise formulas to satisfy the French, and finally submitted a draft which they said was insisted upon by the USSR. (DOCUMENT 18 (g)) In the face of the strong opposition, the United States dropped its proposal for including in the IMT Charter what was essentially the Soviet definition of aggression. (DOCUMENT 18 (h)) After a few minutes of discussion the additional British suggestion was accepted to drop the caption "Crime of War", and substitute "Crimes against Peace," which encompassed the planning, preparation, initiation or waging of a war of aggression. (DOCUMENT 18 (i)) The Charter was agreed and adopted. (DOCUMENT 18 (j)) Aggression was nowhere defined.
The Charter was soon adhered to by 19 nations and was to receive the approval of the General Assembly of the United Nations. |180| It formed the basis for the first criminal indictment in history of leaders of a nation charged with personal responsibility for aggressive war.
(3) The Nuernberg War Crimes Trials (Aug. 1945-June 1949)
The indictment presented to the International Military Tribunal accused the major Nazi war criminals of a common plan or conspiracy to commit crimes against peace, war crimes, and crimes against humanity, as defined in the Charter. (DOCUMENT 19 (a)) "Mobilization for aggressive war", and the initiation of "aggressive war" were among the offenses charged. Specific reference was made to violations of the Hague Agreements of 1899 and 1907, the Versailles Treaty, the Locarno Pacts of 1925, the Pact of Paris of 1928, and various Non-Aggression Agreements. |181|
When Justice Jackson rose to make his opening statement, he denounced aggressive war as "the greatest menace of our times." (DOCUMENT 19 (b)) In outlining the law of the case, Justice Jackson criticized the Charter for having omitted a definition of aggression. He felt constrained to close the gap in the criminal indictment by a recital from the Soviet Conventions of 1933. |182|
In it's judgment, the International Military Tribunal said: "To initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." (DOCUMENT 20) The court was unmoved by the defense arguments that at the time the alleged criminal acts were committed aggressive war was not generally considered a crime, that no statute had defined aggressive war, that no penalty had ever been fixed for its commission, and that no prior court had ever been established try to the offense. The judgment observed that the maxim nullum crimen sine lege was a general principle of justice designed to protect those who did not know they were doing wrong. In the face of the historical record and the wealth of international agreements requiring resort to peaceful means before resort to armed violence, and declaring aggressive war to be a crime, it was the judgment of the court that some of the defendants must have known that they were acting in defiance of law "when in complete deliberation they carried out their designs of invasion and aggression." |183|
Said the Tribunal: "The invasion of Austria was a premeditated aggressive step in furthering the plan to wage aggressive wars against other countries." |184| The action against Austria, not having resulted in the outbreak of war and not having been so charged in the indictment, was not held to be "aggressive war." So too the attack on Czechoslovakia was condemned as an aggressive act, although it was not charged as a crime against peace in the indictment. "The invasion of Poland was most plainly an aggressive war." |185| "The invasion of Belgium, Holland and Luxemborg was entirely without justification. It was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war." |186| Germany's action against Greece and Yugoslavia was described as "aggressive war," |187| and the attack launched against the Soviet Union was called "plain aggression." |188|
On the basis of the facts before the court, the Tribunal concluded that the convicted German leaders had been responsible for premeditated and unprovoked attacks and invasions of peaceful neighboring States, and that by the use of armed force in violation of accepted international obligations, they were, by any permissible standard, guilty of a Crime against Peace. Nowhere did the International Military Tribunal define "aggressive war".
Hitler had committed suicide. Hermann Göring, who was about to do the same, was held to be "the moving force for aggressive war." Rudolph Hess, who was Deputy to the Fuehrer, and General Keitel, Chief of the High Command, together with his deputy Jodl, von Neurath and von Ribbentrop, top foreign policy advisors, were found guilty of the charge of having committed crimes against peace because of their leading role in support of Germany's aggressive actions. Alfred Rosenberg and Admiral Raeder, who helped plan the attack on Norway, were also found guilty. Death by hanging was the sentence imposed on Gbring, Ribbentrop, Keitel, Rosenberg, and Jodl.
Was this only "victor's justice", or was it the beginning of a new rule of law? Surely it was the hope of the American prosecutors, at least, that what was done at Nuernberg would help establish a new era of peace. "The ultimate step in avoiding periodic wars," said Justice Jackson,
"... is to make statesmen responsible to law...While this law is first applied against German aggressors...it must condemn aggression by any other nations, including those who sit here now in judgement...This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against the rights of their neighbors...This trial is part of the great effort to make the peace more secure. One step in this direction is the United Nations organization, which may take joint political action to prevent war if possible, and joint military action to insure that any nation which starts a war will lose it". |189|
In his final report to the President, Justice Jackson expressed the view that '"all who have shared in this work have been united and inspired in the belief that at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right." |190|
The principles laid down by the International Military Tribunal were carried forward in a dozen subsequent trials prosecuted by Justice Jackson' s successor, General Telford Taylor. |191| A new law, enacted by the four occupying powers, Control Council Law No. 10, set out the procedure for continued trials in the different zones of occupation. (DOCUMENT 21) It restated and somewhat expanded the principles of the London Charter of the IMT. "Initiation of invasions of other countries" was specifically listed as a crime against peace, in addition to "planning, preparation, initiation or waging a war of aggression." It was made clear that the offense of Crimes against Humanity could be committed by a government against its own nationals even if there did not exist a state of war. |192|
In four of the subsequent trials held at Nuernberg, 52 defendants were charged with crimes against peace. Only 5 were convicted. One of the tribunals, consisting of American judges charged with carrying out international law, considered the subject at length in a decision against leading officials of the German Foreign Office and other Ministries. (DOCUMENT 22) The court went a step further than the IMT. After reviewing Nazi threats and pressures against Austria, the majority concluded that even though "Austria fell without a struggle...the invasion was aggressive..." |193| The campaign of duplicity and the massing of overwhelming force was recognized as a violation of both the letter and spirit of the Kellogg Pact. "It is not reasonable to assume that an act of war, in the nature of an invasion, whereby conquest and plunder are achieved without resistance, is to be given more favorable consideration than a similar invasion which may have met some military resistance." |194|
In considering the invasion of Denmark the court said: "Military necessity is never available to an aggressor as a defense for invading the rights of a neutral." |195| It was the League which had applied that very principle in ousting the Soviet Union for its invasion of Finland. The arguments of German self-defense and justification were considered and repudiated because of Germany's prior violation of international law. Germany was condemned as an aggressor, and other states were justified in helping those attacked and joining with others who had previously come to the aid of the victim. |196|
One of the judges was unable to agree that invasion without war could constitute a crime against peace. In his dissenting opinion, Judge Leon W. Powers, who had come to Nuernberg from the Supreme Court of Iowa, said: "Many acts may be aggressive that are short of war. They may merit the condemnation of all right-thinking people, but unless they involve a breach of the peace, it would be an abuse of language to call them 'crimes against peace'." |197| Furthermore, the crime, according to him, was the initiation of the war and not the participation in it, and a person could only be held criminally responsible if he knowingly engaged in activity to induce or support his government in initiating a war which he knew to be a war of aggression and if he had some influence in bringing about the action of his government. |198|
In reporting on the subsequent Nuernberg trials, General Taylor, who was to become a Professor of Law at Columbia University, concluded that the major contribution which the Nuernberg trials made to the preservation of peace and the establishment of world order was the framing of certain principles of law, which when applied in the judicial process, added enormously to the body and the living reality of international penal law. "No principle", said Telford Taylor, "deserves to be called such unless men are willing to stake their consciences on its enforcement." |199| Some years later, in denouncing the United States action in Vietnam, he was to criticize his own government for having failed to learn the lessons it sought to teach the rest of the world at the time of Nuernberg. |200|
(4) The Tokyo War Crimes Trial (1946-1948)
While the trial of major Nazi offenders was in progress at Nuernberg, preparations were under way for the trial of Japanese War Criminals in the Far East. A charter of the International Military Tribunal for the Far East, based very largely on the London Charter for the Nuernberg court, was approved on January 19, 1946. (DOCUMENT 23 (a)) In describing "Crimes against Peace" the Tokyo Charter added that a war of aggression could be either "declared or undeclared". This clarification was also to find a place when aggression was to be defined by consensus many years later.
In addition to charges of war crimes and crimes against humanity, the indictment accused 28 defendants of 36 counts of Crimes Against Peace, including conspiracy, and having "planned and prepared a war of aggression and a war in violation of international law, treaties and agreements and assurances", or having "initiated a war of aggression". All the defendants were also accused of having "waged a war of aggression." (DOCUMENT 23 (b)) The particulars were spelled out in two appendixes, including a list of the treaties and international agreements which had been violated.
The Tokyo Tribunal, composed of members from 11 nations, met for almost two years before rendering its very extensive judgment covering some 1500 pages. (DOCUMENT 24) In holding the Charter to be a valid expression of existing international law, the Tokyo court followed the Nuernberg Tribunal. It relied on the Pact of Paris as evidence that aggressive war was a crime. |201| The majority did not feel that the absence of an agreed definition of aggression was a bar to conviction for the offense. Japan's actions were seen as unprovoked attacks prompted by the desire to seize the possessions of the victim states, and by any definition that would have to be characterized as a war of aggression. |202| Eight of the judges fully supported the judgment and verdicts, but Justice Roling of the Netherlands dissented in part, and Justice Pal, of India, was in fundamental disagreement. |203|
Almost all of the defendants were formulators of government policy and were convicted of conspiracy to wage aggressive war, of having waged aggressive war, as well as violations of the laws of war. Seven of the accused were sentenced to death and, after review and appeal, were executed. The others received long prison sentences.
One of the keenest analysts of the Tokyo trials concluded that the greatest contribution of the tribunal was not to succumb to the feeling amidst the tensions of the new post-war conflict, that their task was a futile one. "They elected to reaffirm as an act of faith, their conviction that war was not a necessary concomitant of international life and that acknowledged principles of law and justice were fully applicable to nations and their leaders." |204| We have seen that throughout history man's hope was sustained by his faith. The aspiration for peace could not alone destroy the tradition of war. The suffering of World War I gave rise to the hope that a League of Nations would provide a new order of tranquility and justice, but the refusal to relinquish the practices of the past led to an even greater holocaust. From the ashes of World War II new hope was born, and there arose again in the United Nations Charter and the war crimes trials the yearning that the force of law might finally replace the law of force.
Notes Abbreviations used AJIL - American Journal of International Law
GAOR - General Assembly, Official Records
ICMT - International Conference on Military Trials
IMT - International Military Tribunal
L.o.N. - League of Nations
LNOJ - League of Nations, Official Journal
LNTS - League of Nations, Treaty Series
UNCIO - The United Nations Conference on International Organization
160. See Punishment for War Crimes; The Inter-Allied Declaration signe at St. James's Palace, London, on 13 Jan. 1942, and relative documents (Issued by the Inter-Allied Information Committee, London, 1942), 3-4. See also The Moscow Declaration on German Atrocities, 1 Nov. 1943, U.N. Information Org., London, Information Paper No. 1.; Dept. of State Bull. Nov. 6, 1943, at 308-309. [Back]
161. See U.S. Dept. of State Bulletin, Feb. 18, 1945, London, H.M. Stationary Office, (Misc. No. 5 (1945), Cmd. 6598. [Back]
162. See 11 UNCIO 232-235, Report of Commission III, Doc. 1170, III/13, June 23, 1945. [Back]
163. DOCUMENT 17 (a) at 2. [Back]
164. See 6 UNCIO 703, Doc. 723, I/1/A/19, June 1, 1945. [Back]
165. Committee 3 of Commission III. See Russell, R.B., A History of the U.N. Charter-The Role of the U.S. 1940-1945 (1958)-For U.S. refusal to define aggression see p. 564. [Back]
166. DOCUMENT 17 (c) at 579. [Back]
168. See 3 UNCIO 459, Doc. 2 G/7 (q) (1), and G/14 (m), May 5, 1945. [Back]
169. See 3 UNCIO 376, Doc. 2, G/7 (c) (1) at 13, May 5, 1945. [Back]
170. See 3 UNCIO 486, Doc. 2, G/14 (f) at 3, May 1, 1945. [Back]
171. See 3 UNCIO 596, Doc. 2, G/14 (u), May 6, 1945. [Back]
172. For discussion see 12 UNCIO 341-342, 348-349, May 19, 1945. [Back]
173. 1 UNCIO 718, June 26, 1945. [Back]
176. DOCUMENT 18 (b) at 53. [Back]
177. See DOCUMENT 18 (f) at 295. [Back]
180. For a comprehensive discussion of the legal character of the IMT see Woetzel, R.K., The Nuremberg Trials in International Law, 40-96 (1962). [Back]
181. DOCUMENT 19 (a) at 73-81. [Back]
182. DOCUMENT 19 (b) at 166. [Back]
183. DOCUMENT 20 at 49. [Back]
189. DOCUMENT 19 (b) at 172. [Back]
190. ICMT XII, Dec. 29, 1947. See Sohn, L.B., Cases on World Law (1950), Sec. 5 on War Crimes andthe Crime of War. A bibliography is at 967-974. [Back]
191. See Taylor, T., Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, Washington D.C., 15 Aug. 1949. [Back]
192. Compare Charter Art. 6 (c) with control Council Law No. 10, Art. II (1) (c). [Back]
193. DOCUMENT 22 at 330. [Back]
197. Trials of War Criminal Before the Nuernberg Military Tribunals, Vol. XIV at 882. [Back]
199. See Final Report, note 191 supra. at 112. [Back]
200. See Taylor, T., Nuremberg and Vietnam: An American Tragedy (1970). [Back]
201. See DOCUMENT 24 at 25-26. [Back]
203. For an excellent analysis of the Tokyo trial see Horwitz, S., The Tokyo Trial, International Conciliation No. 465, Nov. 1950. See also International Military Tribunal for the Far East - The Dissenting Judgment of Justice R.B. Pal, published in 1953. [Back]
204. Id. at 575. For comparisons between the Nuernberg and Tokyo trials see Woetzel, op.cit.supra note 180, at 226-232; Keenan and Brown, Crimes against International Law, 1-56 (1950); Appleman, J.A., Military Tribunals and International Crimes (1954). [Back]
Editorial Note: This document corresponds to Part II of "Defining International Aggression - The Search for World Peace", Vol. 1, by Benjamin B. Ferencz.
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