Binoy Kampmark. War & Society. Volume 37, Issue 1. February 2018.
This paper refocuses attention on what has been seen as one of the most important limbs of the Nuremberg Charter—the crime against peace, or aggressive war. It looks at the legal and political dimensions that motivated such a characterisation by figures behind the debate, and the various, at times uncertain steps, in bringing forth the designation based on breaches of the Kellogg-Briand Pact within the milieu of other traditional offences. Particular attention is given to the philosophical underpinnings of the crime against peace regarding individual German guilt, notably members of the Nazi leadership, with an examination of influences that proved critical in creating a punishable crime at international law. This paper argues that, despite being of continuing interest to civic groups, such an offence continues to trouble legislators and lawyers, rooted as it is in the focus on war as itself criminal.
After a considerable period in the judicial doldrums, interest in the crime against peace, also termed, somewhat tautologically, the crime of aggressive war, has been rekindled. Since 1945, there have been sporadic efforts to bring the crime to the fore, though these have tended to fail. The invasion of Iraq in 2003 prompted a flurry of legal briefs and activity on the question of whether the countries of the US-led Coalition of the Willing were responsible for the ‘crime of aggression’. Efforts, mostly by civic groups, to bring the leaders of Australia, the United Kingdom and the United States before the International Criminal Court in The Hague for the crime against peace have been made in the form of petitions and encouragements to the tribunal’s officers. They cite, in particular, Articles 5 of the Rome Statute of the International Criminal Court, referring to ‘crimes against aggression’ though its scope is limited in how the court may exercise jurisdiction over it. That can only happen if a ‘provision is adopted… defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to that crime’.
This paper revisits what has been seen as one of the most important limbs of the Nuremberg charter—the ‘supreme’ offence of the crime against peace, or aggressive war. It looks at the public and political dimensions that motivated such a characterisation, and the various, at times uncertain steps, in crystalising that designation. Particular attention is given to the philosophical underpinnings of the crime against peace, with an examination of the influences that proved critical in realising what would amount to a punishable crime at international law, with the necessary legal machinery to carry out that aim. Notable here are the seminal roles of Colonel William C. Chanler and Justice Robert Jackson, whose correspondence and papers shed much light on the debate of criminalising war, and the theoretical summations of those working in the Office of Strategic Services (OSS) as well as the legal and academic fraternity.
This paper complements the scholarship on state outlawry by suggesting that the concept of states effectively hijacked by warring elites was a product of transatlantic jurisprudence and theory distinct in its analysis of specific forms of international criminality. Eventually, it would be synthesised by such working groups as those of the OSS, which had in its employ sociologists and legal theorists keen on targeting German culpability behind the war.
As the debate about the trial solution in dealing with Germany’s war leaders gained momentum, planners began speculating what categories German aggression might fall under. The Paris Pact (1928), also known as the Kellogg-Briand Pact, along with other initiatives against war that had taken place during the interwar years, became important points of reference. It was the sheer nature of the war, in its vast, savage dimensions, in particular how it was started and subsequently waged, that prompted policy makers in the US to consider viable mechanisms for punishment. These mechanisms would eventually yield Article 6 of the London Charter demarcating the jurisdiction of the International Military Court in Nuremberg. Four charges would feature within a hierarchy of judging Nazi Germany’s acts of war: the crime against peace, traditional war crimes, crimes against humanity, and the crime of conspiracy. Such constructions, deemed highly novel at the time and thereby ex post facto acts of law making, tend to ignore the deeper prior discussions about how those charges were formulated. This paper, in other words, shows that discussion to be a much older jurisprudential project.
Criminalising War: An Ongoing Project
As the German sociologist Hans Joas has observed, the nexus between wars and values remains a perennial one. The idea of criminalising war was not a unique one, though the efforts to do so through an internationalised juridical format were more recent in their radicalism. The moralising mission behind finding in war just or venal qualities has been a preoccupation of cultures since antiquity. Just war theory, a notion considered by such classical thinkers as Cicero, was subsequently elaborated upon by Church authorities. War, argued Cicero, could not be justified except for reasons of self-defence or vengeance. Certain duties were owed ‘even to those who have wronged us’ necessitating that ‘the rights of war… be strictly observed’. St. Augustine of Hippo would subsequently be deemed one of the key formulators of just war theory, though this proposition has been challenged. Subsequent commentators of international law, such as Hugo Grotius, began to shape its dimensions about the use of force and permissible circumstances, yet remained silent about the means by which accountability and punishment might be determined.
What is specific to this discussion is the theoretical refocusing of the problem on how those waging a reprehensible war can be held legally accountable, supplying the necessary tribunal with the rationale for punishing such conflict. Previous authorities were more interested with the idea of what might make a war just or otherwise, rather than what might make a prosecutor behind an unjust war culpable and then feasibly punishable. The mechanics of accountability, in other words, proved to be conspicuously absent.
Much of this was obscured by the notion, discussed extensively at the Nuremberg trials, of the head of state as indelibly sovereign and beyond individual legal accountability. This stood to reason, as legal positivism, very much a creature of nineteenth century imperial power, deemed the moral content of a leader’s actions distinct and separate from their validity in accordance with law, while international law only recognised one genuine subject: the sovereign state. Much of that view was attributed to such thinkers of the nineteenth century as John Austin, who demarcated legal validity from moral content through his command theory of the law and the doctrine of absolute sovereignty. Law, he discerned, is posited by reason of it being brought into existence by a higher legislative power, with the sovereign capable of commanding ‘a habit of obedience or submission’ and is not obligated to any higher power.
As the contemporary international law authority Quincy Wright would note three years after the commencement of proceedings against the Nazi leadership, such a philosophy of law also assumed the state as having no obligations except those it had accepted ‘by valid agreement or clear acquiescence in a general custom’; that such obligations would be narrowly construed so as not to inhibit sovereignty; and that concrete obligations arising out of those agreements ‘cannot be implied even from formal consent to general principles’.
This conceptual basis was extensively relied upon by Germany’s defence counsel at Nuremberg, who embraced a distinctly Austinian view of international relations and war along the lines of absolute sovereignty. Taking after Austin, the defence submission spearheaded by Hermann Jahrreiss, counsel for Alfred Jodl, took issue with the Allied claim that Germany was bound by a higher body of laws, namely, international law. Doing so would make no state, including any of the Allies, sovereign. A consequence of this was that laws posited by the Führer had the force of legitimate law, thereby absolving all state agents from culpability. ‘Thus’, he argued about the formulated laws on crimes against peace and conspiracy that ‘they are criminal laws with retroactive force’.
It followed that illegally launched wars did not necessary entail an accountably guilty agent because they took place in accordance with a legitimate act of state, with no existing rule of individual criminal responsibility for crimes against peace. Besides, argued some of the Third Reich’s top officials, states had been breaking treaties for centuries, an entirely normal, if not essential function, of sovereign power. ‘Why all this fuss about breaking treaties?’ queried Hitler’s former foreign minister Joachim von Ribbentrop to the trial’s leading psychiatrist, Dr. G. M. Gilbert. ‘Did you ever read about the history of the British Empire? Why, it’s full of broken treaties, oppression of minorities, mass murder, aggressive wars, everything’.
It is precisely such thinking that was left behind in the debates leading up to the formation and subsequent operation of the International Military Tribunal. Article 7 of the founding Charter expressly repudiated the absolute sovereignty doctrine, noting that the office of the defendants ‘whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment’. It required the fundamental idea that criminalising war can only be understood as a consequence of criminalising the war maker, a shift which was beginning to gestate in twentieth century political and legal thought. This conceptual leap, one that effectively bypasses, if not pierces the sovereign veil, was the most notable innovation of the Nuremberg Charter. That leap, however, was so sizeable as to challenge orthodox European and US thinking on the subject, causing significant rifts in jurisprudential theory. The conceptual apparatus had to be laid beforehand.
William Chanler and the Paris Pact
The Kellogg-Briand Pact seemed to be the spectre that haunted such sentiments. The attempt to abolish war as an instrument of state policy had come to naught. American policy-makers wanted teeth to be added to its declaratory character, suggesting penal sanctions where there had previously been none. The concept of punishing leaders for initiating and waging a war of aggression with a specific plan for domination (in effect a ‘conspiracy’) was the intellectual offspring of Colonel William C. Chanler, Chief Legal Officer of the Allied Military Government of Italy (with Colonel Robert D. Gorman) who hit upon the idea in 1943 of trying Mussolini for waging aggressive war whilst the Duce was in the custody of the Badoglio Government.
The problem of punishing acts of aggression within a legal framework has been a pressing one. Harvard criminologist Sheldon Glueck, with whom Chanler shared a correspondence of some consequence on the subject of wars of aggression, felt that punishing war as a crime might be desirable at a future date, but was impossible at the present time given that the Kellogg-Briand Pact stipulated no criminal penalties in cases of breach. Some scoffed at the very idea, not least the English author George Orwell, who felt that strafing Mussolini in the courts for acts of international aggression was hypocritical, a self-cleansing measure on the part of the Allies to excuse their support for the dictator’s actions between 1922 and 1940. The most famous rescue operation of the war—the brilliant recapture of the Italian dictator from Gran Sasso by the resourceful SS Officer Otto Skorzeny—deferred prospects for any such charge. Mussolini’s subsequent capture and summary execution by Italian partisans rendered the point moot. But Chanler was not deterred. On his return to the Pentagon in 1944, this time as Deputy Director of Military Government, he had become bolder, seeing the charge of aggression as a political tour de force that could implicate the entire Nazi leadership.
The distillation of his ideas on criminal culpability for illegal wars was clearly shown in December 1944, when Chanler, on reading Glueck’s work on how best to go about punishing war criminals, felt that the eminent academic had dismissed ‘rather cursorily, the possibility of punishing Hitler and his associates ‘for the crime of having initiated an unjust war’, and [instead you] take the position that it is sufficient to punish them for their atrocities’. One had to move beyond the stifling notion of ‘traditional war crimes’ and target the basis of war deemed ‘a natural and lawful enterprise’. Punishment should not be confined to breaches of ‘the principles of chivalry’. Even if the Kellogg-Briand pact had stipulated no penalty, it had certainly declared wars of aggression ‘to be unlawful’.
In May 1945, Chanler would further counter Glueck’s reservations, tiptoeing around the lack of sanctions, and engaging in some deft word play. There may have been no sanctions for a nation in breach of the Pact; but engaging in such war ‘deprives a violator of his rights as a lawful belligerent’. War itself was the issue, having been made ‘pleasant’ by the legal fraternity during the age of colonial conquests the century prior. The rules of war were simply drafted to make it ‘less barbarous’ in the face of colonial conquests.
It is a testament to both the times, and Chanler’s persuasiveness, that Glueck conceded in May 1945 that the Colonel had succeeded in triggering some enthusiasm at seeing ‘the Pact as a living organism in the nature of international constitutional law’, one filled with consequences on violation. But he persisted in expressing irritation at a pact he found unclear in its wording, with its drafters ‘so damned cagey in not indicating exactly what the practical consequences of its violation would be to the guilty High Contracting Party’.
Chanler’s return had occurred amidst a stalling in the entire procedure in determining a coherent war crimes policy, but his audience, initially limited to the War Department, was enthusiastic. It had to be: an alternative to the US Treasury’s Morgenthau plan, which suggested a forced de-industrialisation of Germany, was being sought, offering another assessment of German aggression far more focused on theories of individual punishment. The State Department, in Henry Morgenthau’s view, had provided a ‘contradictory approach’ to punishing Germany, ‘favoring control of the German economic war potential’ while opposing ‘large-scale or permanent impairment of German heavy industry’ in favour of ultimate re-integration of Germany.
The task for devising an alternative, more precise analysis of German guilt fell to Assistant Secretary James T. McCloy; the protagonists on this occasion would be the general staff in the War Department, known as the ‘Special Projects Branch’. Colonel Bernays, a New York attorney at G-1, U.S. Army General Staff Corps, proved receptive to Chanler’s views, and became a key figure in formulating what came to be the troublesomely novel ideas of conspiracy and aggression. Sounding much like former Secretary of State Robert Lansing a generation before, Bernays preferred to see Nazi atrocities as products of a distinct mentality in the making of war. What impressed him were such publications as The Voice of Destruction, a work by a former member of the Danzig senate, Herman Rauschning. For Bernays, Nazism was a barbaric excrescence that required removal by the surgical tools of civilisation. Law seemed to be the logical instrument with war its logical target.
He summarised the objectives in a memorandum in September 1944, regarded by Smith as ‘one of the most significant documents in modern international law’. But the document was also valuable for articulating a particular interpretation of German aggression. To outline the theory of war as a crime, it suggested a vital prerequisite: that state organisations could engage in a criminal conspiracy to commit crimes (murder, terrorism, violations of the laws of war). In time, this would form a separate charge at Nuremberg, but at this point, it was the indispensable theoretical element to demonstrate how an elite, be it constituted of members of cabinet, or a military organisation, might have common plans to wage illegal war.
Punishment was also needed to communicate to the German population ‘a sense of their guilt, and to a realisation of their responsibility for crimes committed by their government’ and the ‘menace of racism and totalitarianism’. Importantly, the defences formed along the lines of services for the state were to be severely circumscribed: heads of government could no longer shelter behind the veil of sovereign immunity. A case of ‘high interests of state’ could no longer be considered ‘acceptable as justification for national crimes of violence, terrorism, and the destruction of peaceful populations’. These arguments furnished the basis for the intergovernmental report to the President.
The OSS and Nazi Criminality
Both Bernays and Chanler worked alongside other members of the Office of Strategic Services, which provided the theoretical backdrop to assessing the criminality of the war. The conceptual footing of its members was twofold: an overall acceptance of the need for punishing a criminal totalitarian leadership and the necessity for establishing guidelines of responsibility for various crimes (the waging of illegal war and committing atrocities pursuant to that object). Their work contrasted sharply with the pessimistic tones that underlay Morgenthau’s plan of industrial emasculation and summary executions.
Employees within the OSS were a pluralistic gathering of minds, including many refugees from Germany and schooled in the sociological doctrines on elite theory that would become prominent after the war. Known in the OSS as the Research and Analysis Branch, its members were legal, economic and historical experts keen on identifying a German system for waging war. The group’s agenda was programmatic, reflecting various perspectives on how to bring Germany’s war effort to book. Their aim was to ‘show a [Nazi] plan to achieve complete domination over Europe; that the plan consists of three steps: (a) a systematic plan to obtain power in Germany covering the period from 1923 to 1933 (b) a systematic plan to impose a totalitarian system in Germany; and (c) a program of German expansion in Europe’. War was the ‘natural consequence’ of undertaking these three steps. The impression given by these documents on Germany’s leadership was one of conspiratorial design, fostered by a specific criminality of global and systematic scope. It had not been an organic manifestation of a culture hungry for war. ‘The proof’, wrote the Commander of the United States Coast Guard Reserve, Sidney J. Kaplan, in a series of sketchy notes, ‘begins prior to 1933. The Nazi program, Mein Kampf, Rosenberg’s The Myth of the 20th Century in 1930. Political seizure of power, elimination of enemies, economic and military preparations’.
One prominent figure of the Research and Analysis group was Franz Neumann, whose analysis of the totalitarian state in 1942 was of critical importance to the OSS in locating and determining figures for subsequent trial. His work was then regarded as ground breaking in demystifying the entangling nature of responsibility within a totalitarian state. The American evaluative framework for assessing who should be tried was influenced by Neumann’s idea that the totalitarian criminality of the Third Reich had not grown from any predisposition towards aggression in the German nation as such. As the jurist Michael Salter has described it, Neumann’s ‘spearhead’ theory of Nazi criminal responsibility argued that, ‘contrary to both Nazi and Allied propaganda, Nazi anti-Semitism does not express the innate character of the German people’. Such racial attitudes and dispositions were contingencies of ideology and nation-building on the part of the Nazi State apparatus. International aggression could be logically seen as the result of cold calculations from the political leadership. Research papers produced by the group reflected this theory of limited criminality in preference to the wholesale destruction of Germany as a political entity. In the wording of one memorandum, America was fighting ‘the reactionary forces all over Germany which have time and again prevented the democratic reconstruction of German society’.
Resonant in such analysis is the language of the inter-war jurists, such as the Spanish lawyer Quintiliano Saldaña, who wrote in 1925 of a criminal ‘active minority’ behind wars, the product of a phenomenon he termed the ‘delinquent state’. A year later, Nicolas Politis, former foreign minister for Greece and jurist of the University of Paris, would deliver a series of lectures at Columbia University in the summer arguing that aggressive wars lay in the province of true international state criminality. Nations, recalled Politis citing Bismarck, do not go to war, only ‘small minorities’. States were mere fictions, whilst individuals and governments were the real beings who caused crime. Such minorities were, according to the Romanian minister to the League of Nations and jurist Vespasian Pella, ‘inspired with distorted truths, idée fixes, and extraordinary conception of reality’.
Beyond the esoteric meditations of the OSS research group, American officials were gradually distilling ideas about punishing German aggression. This political-legal theory of targeting the German leadership through juridical processes demonstrated a particular reading of totalitarianism: closed, dogmatic, criminal and ignorant of the spirit of ‘fair play’ in the peaceful intercourse of nations. The co-authored memorandum for Roosevelt by Secretary of State Cordell Hull, Secretary of War Henry Stimson and Secretary of the Navy, James Forrestal in November 1944 saw the Nazi state as a criminal concern, oiled for waging aggressive war. They were conspirators, mafia-styled rogues who had disturbed the peace. Despite legal problems with trying the whole assortment of offences perpetrated in the course of the war, the overall ‘criminal’ purpose to achieve ‘world domination’ was what mattered. Seeing the Nazi leadership as nothing better than gangsters, albeit globally ambitious and unconventional, the theory of conspiracy seemed logical to those of the common law tradition who had grown accustomed to its extensive reach, and would be tried in one grand trial that would use ‘judicial’ rather than ‘political’ precepts. The entire field of war and statecraft would be assessed by a legal process, neutralising any arguments on the part of the Germans that their punishment could be political (as had been said about the Versailles Treaty) rather than legal.
On 4 January 1945 a memo placed aggressive war into the limelight after making its way through the organisation channels of the OSS. Its authors were Bernays and D.W. Brown. What President Roosevelt’s Special Counsel Samuel Rosenman received was the cornerstone argument of the case for charging the Axis powers for aggressive war. A new appellation had to be devised, one freed of the encumbrances of orthodoxy inherent in the unduly constrictive term ‘war crimes’. Launching the Second World War may not have been a war crime specifically, but, pressed the authors, it certainly could be an international crime. Four public acts were the probative foundations of its criminality: the Geneva Protocol of 1924, the Resolution of the League Assembly of 24 September 1927, the resolution of the sixth Pan-American Conference, and the Paris Pact. Relying on a drafted memorandum from one of Britain’s foremost international jurists of the time, Sir Hersch Lauterpacht, the view that between nations, there could be no punishable aggression had to be rejected ‘with reprobation’.
The reference to Lauterpacht revealed how transatlantic jurisprudence on the philosophy of international aggression had influenced planners in the War Department. A conference organised by the Cambridge Commission on Penal Reconstruction and Development in November 1941, established by the Department of Criminal Science in the University of Cambridge, set up a Committee, under the chairmanship of Sir Arnold McNair, to consider rules and procedure governing the case of ‘Crimes against International Public Order’. In July 1942, Lauterpacht submitted a memorandum to the Committee that would prick the conscience of War Department planners later in the war. He urged a revolution, a facelift for international jurisprudence that would admit the idea of individual liability for acts of state aggression. The German government, Lauterpacht argued, had ‘made itself responsible by resorting to war in violation of its voluntarily undertaken and repeatedly re-affirmed international obligations’. There was, it followed, a marked difference to Germany’s aggression now, relative to its aggression in 1914, which had been considered by the Commission on Responsibilities in 1919 to lack legal heinousness, or be ‘contrary to positive law’. International society would have to accept that aggression between nations could be punished, even if it fell outside the traditional category of ‘war crimes’. Planned violations of the Paris Pact were not merely unlawful; they appropriately lay ‘within the sphere of criminal law’.
On 9 May 1945 Stimson met with the Special Committee of the Senate and House of Representatives which had toured and witnessed the grim detritus of the Nazi State: the concentration camps, cluttered with broken, emaciated bodies. The Congressmen were shaken, and Stimson sought to drive home the moral advantage. He told them in a meeting after considering their findings that the issue at stake was the waging of war, and the type of government responsible for it. The ‘outlaw’ state was logically one which had manifested its criminality in all facets of war. There were, for the Secretary, no clearly drawn distinctions between war crimes and the crime of war. Germany’s waging of war formed the umbrella under which an entire panoply of crimes were committed. Crimes against humanity, or other atrocities, were the natural consequence of an illegal war waged without limits. It was the political system, controlled by a formidable, ruthless leadership behind the waging of war that mattered. Their punishment was regarded as crucial. ‘The prompt punishment of war crimes and similar offences, by fair judicial methods, is clearly a necessary step in the destruction of totalitarianism’.
Robert Jackson and War as Crime
Perhaps no other figure of that time deserves the mantle of ‘salesperson’ of the product called aggressive war more than US Supreme Court justice Robert H. Jackson. He was a very different sort of lawyer to Lansing, one who saw sovereignty as diffuse and abstract, a barrier to the realisation of world peace. Perhaps no other figure, leaving aside Stimson and Bernays, deserves more credit for promoting the idea that World War II was a crime against peace, a phenomenon of aggression writ large against the canvas of international politics. He saw one key manifestation of state sovereignty—the waging of war—as a handicap in international relations that had to be overcome in a post-war order. He had never tired of attacking war as the destructive tool of errant statesmen. American lawyers heard more than once, even in the darkest days of flagging Allied hopes in 1941, about his views on war itself, and its necessary eradication from international politics in any post-war settlement.
His appointment by Roosevelt’s successor, Harry S. Truman, to draft the American brief to be presented at a future international tribunal seemed imminent. Leaving the Supreme Court in disarray, with a backlog of cases and Chief Justice Harlan F. Stone concerned about the onset of judicial deadlocks, Jackson’s appointment was greeted with marked enthusiasm. The press heaped praise. His appointment, wrote a North Carolina paper, apart from being an ‘excellent’ one, would ensure that the legal ritual would be fair ‘and will not degenerate into star chamber proceedings’. Powerful organisations such as the American Jewish Congress and the American Jewish Conference reacted to his appointment with ‘deep satisfaction’. The world, as a wounded client, had retained Jackson as its foremost legal advocate. ‘This is your biggest case, and the world is your client’, explained Joseph W. Kaufman, assistant to the General Counsel in a letter to Jackson after his appointment as prosecutor.
Jackson immediately set to work in developing an approach to the criminality of the Axis leaders which he hoped would restructure the order of international relations through making international aggression the ultimate crime. ‘I really believe’, predicted Jackson in a letter to the Berkeley jurist Max Radin, ‘that we can do something towards cultivating a greater sense of responsibility on the part of those who resort to war as a policy’. It proved a strong belief. When a French international lawyer Professor Jules Basdevant called the case for punishing German leaders for waging aggressive wars ‘très fragile‘, Jackson was indignant. ‘God save us from professors!’ he noted privately in May, 1945. The memorandum of April 30 stripped Nazi criminality to its barest essentials: their international aggression was part of ‘a systematic and planned reign of terror within Germany and within areas occupied by German military forces’. Germany’s leaders ‘and the whole membership of the principal Nazi organisations share responsibility’. Whatever the seriousness of their wars of aggression, their guilt still needed to see the light of the courtroom, the forum of legal justice that would condemn a particular species of warfare and political system. The judicial method was ‘more likely than others to commend themselves to the judgment of history’ and preserve a future peace as a consequence.
At the back of his mind were the stymieing views of the State Department in 1919 on war and leadership responsibility. ‘I don’t think we can take the 1918 view [expressed by Lansing and Scott] on matters of war and peace’. The charge of aggressive war epitomised the assumptions that the German leadership would be held to account for what was considered the most fundamental of crimes: war itself. This symbolised the fracturing of the collective theory of state behaviour in favour of a contractarian theory of personalised rights and obligations—that the state functioned within a constellation of rights and duties that were, ultimately, the product of individual persons, rather than abstract collectives who waged war with impunity. The emphasis in such debates was targeting Germany’s leadership as distinct from the weakened and ‘misled’ population, or the corporatised abstraction of the state, that famed concept of ‘universitas’ that could theoretically commit no crime. ‘He [Jackson] is grounded’, claimed the Milwaukee Journal, ‘on the American idea that guilt is personal—an idea that we do not want to forget’.
The bricks and mortar of the American case against German aggression came in the report Jackson submitted to Truman a month after his appointment. Jackson, somewhat forcedly, saw the international arena as a mirror of domestic law. American officials, he would cite as an instance of this, were regularly brought to task in a courtroom by aggrieved citizens. The resort to force that had been considered the natural expression of a state’s personality in the international arena, and therefore above the scrutiny of enforceable laws, now formed the basis of a personalised indictment. The framework of international politics as an amoral space occupied by abstract philosophies and theories of the state would be transcended, leaving the way open to haul war-making before the legal arena.
Jackson’s report to the President of 7 June 1945 outlining the rationales for trying the German war criminals was hailed, but it was hailed in a very specific way: as a programme that impugned illegal wars and would punish its initiators. Predictably, Stimson saw it as a milestone on a path that had first been laid at Paris, and then by himself in the non-recognition notes of the 1930s. Stimson observed in a June letter to Jackson how he was ‘gratified to see the battle for which we fought in 1932 [in abolishing war] in a fair way to be won’. But the public applause was also resounding. The move to outlawing wars of aggression, argued the Society for the Prevention of World War III, was optimistic, but necessary. Europeans may have been sceptical at the criminalisation of war, but that was due in no small part to the fact that ‘aggressors in war have generally gotten away with it and their acts have been accepted as legal’. Lewis Wood of the New York Times had no doubt about where the report’s main focus lay. ‘I believe I was as much interested in your expression about outlawing wars of aggression as anything else in the document’.
American politicians were even more emphatic. Emmanuel Celler, House member from New York, linked the punishment of Germany’s leading war criminals to the foundations of ‘a just and durable peace’. The entire civilian and military apparatus that had been formulating and implementing the policy of war was, according to another member of the House Ed V. Izac, criminally responsible. To avert another world war, it was essential that ‘a punishment commensurate with the crimes committed [be] meted out’ lest the same individuals in the next generation ‘plunge the world into a holocaust infinitely greater than the one we are now passing through’. From Alaska, Governor Ernest Gruening wrote Jackson that a trial and punishment of the German war criminals would contribute more than anything else to the ‘avoidance of the supreme disaster of another world war’.
Numerous members of the legal fraternity were supportive of Jackson’s philosophy, seeing the punishment of leaders for waging illegal war as an essential element of post-war planning and international relations. An attorney in Jamestown New York wrote of previous failed efforts in punishing leaders for aggression, recalling the aborted proceedings against Wilhelm II. Another saw the report as the ‘Magna Carta of international law’, a restraint against the supposedly infinite powers of statesmen to wage war. War had become the enemy, and, given the ruinous results of global conflict, the sentiment was understandable. It so followed that the modern totalitarian state, geared towards aggression, was a delinquent, the outsider of a peaceful international world order, whose agents had to be punished. American juridical and political policy would strike at the heart of sovereignty itself, holding officials who had represented their state liable for prosecuting an ‘illegal’ war. ‘The criminal minded who might plot future wars must realise’, wrote a New York City attorney to Jackson in May 1945, ‘that inexorable justice will be visited upon war criminals’. J.F.T. O’Connor of the U.S. District Court of the Southern District of California saw the ‘proper disposition of these criminals’ as an equally important aspect to preserving peace along with the establishment of the UN. The issue, argued Martin Popper of the National Executive Secretary of the National Lawyers Guild on the Punishment of War Criminals before the House Foreign Affairs Committee in March 1945, was not merely one of law or justice. Any punishment of the German leadership went ‘to the root of organised aggression and all its works. It is a war measure in virtually the same sense as direct military action’. Law was merely an extension of the battlefield, a ‘touchstone of our intention with respect to the extermination of fascism’.
Holding heads of state responsible for waging a criminal war was a notion that also drew support from some lay and military circles. The press were enthusiastic. Jackson was, according to the Los Angeles Times, striking at ‘the heart of the cancer that has so long afflicted civilisation’. This was ‘a demonstration to the world and in particular to would-be Hitlers and their followers in the future that aggressive warfare is a crime that doesn’t pay’. The News–Review of Anderson Missouri thanked Jackson for his revolutionary assault on the German leadership. From now on, leaders who had formerly ‘sent others out to fight and suffer and die, while they maintained security both during and after the war’ would be ‘taking a chance of being condemned to death and ignominy’. Jackson’s report proved ambrosial for military personnel fearful that the Axis officials would not get their ‘just’ deserts for having started the war. A First lieutenant of the ordinance department in Detroit wanted to register the fears of his men ‘that most of the guilty ones would escape their just punishment’. Confusion reigned, he argued, about what constituted a legitimate war of self-defence, and ‘unjust wars of unprovoked aggression’. Westside T. Larson, Major General in the United States Army wrote of the enthusiasm of American ‘fighting men and women … to see the responsible leaders justly punished, so that by precept and example future generations will know the penalty for like conduct’.
While Jackson drafted the American case against international aggression, the arguments being made on aggressive war at the United Nations War Crimes Commission was more complex. The U.S. Deputy Commissioner to the Theatre, Judge Advocate Colonel Joseph V. Hodgson, who had been assigned to assist Herbert C. Pell in the Commission’s deliberations, sought an expansion of conventional categories of war crimes. ‘The definition of war crime should be expanded to include acts that violate international law and provoke war, such as sabotage and the manufactured Polish and Czech frontier incidents’. He suggested a ‘general codification’ of the laws of war similar to the mammoth task undertaken by Dr. Francis Lieber in 1863, claiming there was widespread ignorance amongst civilians and soldiers of the laws of war. His second suggestion considered that ‘offenses preceding and leading to war, as well as those committed during a war, should be war crimes. Examples are the Japanese policy of distributing opium in China, sabotage, the manufactured Polish and Czech ‘incidents’, etc.’ All in all, ‘The preparation and launching of an aggressive war should be made a crime’.
According to Francis Biddle, the jurist who would become America’s chief Tribunal representative in the intimidating setting of Nuremberg’s courtroom, Jackson had been influenced on this score by the Soviet alternate delegate, Aron N. Trainin. Trainin’s 1944 publication (which made its way into the JAG library) featured a ruthless critique of imperialism and existing international law. Adopting a crude but undeniably effective interpretation of legal convention, Trainin saw the conferences held in Brussels 1926, Warsaw 1927, Paris 1931 as merely ‘political’ moves aimed at ‘the organisation of a peculiar united criminal front against the Soviet Union’. International legal criminality and its lack of study, he surmised, was ‘not accidental’ but ‘due to the general nature of the international legal relations in the imperialistic era’. Imperialism’s addiction to aggression had naturally undermined an investigation into efforts to punish it. Ominously, Stalin’s most famous prosecutor, the devastating A. Y. Vishinsky, emblematic of the purge years, trumped-up charges and show trials, was also noted in the text. Trainin quoted the words from a preface the Chief Prosecutor had written in 1937, when he endorsed the idea that ‘criminal law must be utilised for defending peace, must be mobilised against war and against the instigators of war’.
While the Soviet influence behind the construction of aggressive war culpability was important, Jackson sought inspiration from additional sources. In a subsequent publication dealing with the London Conference, Jackson acknowledged that the tripartite division of crimes was the resulting work of ‘an eminent scholar of international law’. Lauterpacht, according to Jackson’s son, deserves the credit for the entire intellectual corpus for punishing aggression.
The legal framework for punishing German aggression was finally laid down in the London discussions over June 26 to August 2, 1945. It established the Charter of the International Military Tribunal, a complicated process that featured divergences on how the nature of German criminality would be assessed. Jackson’s pressing point was to convince delegates that this was more than a case of showing how ‘these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace’. The French position, led by Professor Gros, was merely that ‘the Nazis were bandits’, while the US was keen to ‘win the trial on the ground that the Nazi war was illegal’. Responsibility from that perspective was not one of starting at the top, but from the bottom. Furthermore, Gros contested a key facet of the proposed Article 6. To declare the launching of a war of aggression criminal would be ‘going farther than the actual law’. To date, there was only an obligation on the part of the belligerent to provide reparations, rather than have its leaders individually punished. Focus instead, insisted Gros, on individual criminal acts.
This did not sway Jackson or his British counterpart, Sir David Maxwell Fyfe. The final provision of Article 6(a) gave the Tribunal jurisdiction to try crimes against peace, including planning, preparation, initiation and waging of war in violation of agreements and assurances. The striking feature of the provision was that of ‘a common plan or conspiracy’. The two subsections that followed stressed traditional war crimes and crimes against humanity, while the final paragraph was the hook of a common plan upon which personal responsibility of German cabinet members might be found for all three enumerated offences. The latter had the express purpose of inculpating those found to be members of proven criminal organisations and covering crimes committed prior to the commencement of war in 1939. It was precisely such formulations that would be the source of criticism, given the total absence of conspiracy as a concept in international law. In creating it, the French judge Henri Donnedieu de Vabres would argue that it gave ‘to the Hitlerian enteprise the cover of a romantic prestige’.
A day before the London agreement was signed, Jackson, with some pride, felt he was witnessing history. Four of the world’s ‘most powerful nations’ had agreed on the principles of liability, the list of crimes, and the concept of ‘individual responsibility for the crime of attacking the international peace’. A nation’s leaders would realise from here on that waging war would be a sure ‘way to the prisoner’s dock rather than the way to honours’. There were persisting problems with structure, and disagreements about order and procedure. But the impasse was broken on 13 August with a Soviet proposal on how the trial would be presented. In a radio broadcast on Christmas Eve in 1945, Jackson told his audience that ‘the world is proceeding [once again] on a basis that power and might are subject to moral responsibility’.
The crime against peace has come with various problems, not least of all from critics of the International Military Tribunal’s judgement itself who had issues with the encumbering nature of ‘policing’ peace, the prosecution case, evident bias and the debilitating issue of retroactivity in setting the charges. These would persist through to the International Military Tribunal of the Far East, which had Japan’s wartime leaders as its prosecutorial reference. Subsequent efforts to focus on international aggression as a culpable, analogously homicidal offence have been piecemeal and sporadic.
For all that, the theoretical apparatus was already in place prior to the trials, formulated in the transatlantic legal and political discussions that took place between 1943 and 1945. Even prior to that, there was a concession to notions of a radicalised criminal elite taking a state to war as an act of outlawry. Even those negotiating the provisions of the Charter admitted that wars could be deemed illegal, though they were reluctant to admit that sanctions should follow for individual planners. Glueck would subsequently write in 1946 that such instruments as the Geneva Protocol of 1924, and the Paris Pact could be ‘regarded as powerful evidence of a widely prevalent custom among civilised peoples sufficient to energise a juristic climate favorable to the regarding of a war of aggression as … downright criminal‘.
However problematic the subsequent legacy of Nuremberg would prove to be in the area of crimes against peace, be it in a court of law, where it has struggled to find judicial recognition for its sheer complexity, or in the debates of informally convened peoples’ tribunals, the offence remains part of the civic and international humanitarian corpus, easy to discern but hard to prosecute. Despite having been rendered ‘comatose’ for much of the cold war, its principles remain relevant. Practical limitations in some cases have, however, dictated a return to old notions of reparation and monetary compensation for acts that would constitute aggressive war. These have included just satisfaction cases within the context of the European Charter of Human Rights. For all its problems occasioned by charges of unwarranted innovation, the provisions charting out the criminal nature of aggressive conflict debated during the Second World War remain significant in efforts to distinguish the ‘good’ legitimately waged war from the ‘bad’, unlawfully initiated one.