The Defence Response to the Crimes against Peacee Charge at the International Military Tribunals

Abstract

The day before the opening of the trial of the German leaders at Nuremberg on 20 November 1945, the defence lawyers jointly presented a motion to the Tribunal addressing the ‘crimes against peace’ charges. In this submission, signed by Goring’s lawyer Otto Stahmer, they stated that while public opinion had demanded that those who waged unjust wars be held to account, this idea had not yet been accepted as international law. This meant that the Nuremberg Tribunal, when dealing with aggression, was imposing ‘a penal law enacted only after the crime’ – and, as a retroactive imposition, this was ‘repugnant to a principle of jurisprudence sacred to the civilized world’.So began the defence assault on the ‘crimes against peace’ charges, first at the Nuremberg Tribunal, and later at the Tokyo Tribunal. At Nuremberg, it was Hermann Jahrreiss, counsel for Alfred Jodl, who led the most sustained challenge to the prosecution’s central argument that the Kellogg-Briand Pact provided the legal basis for the crimes against peace charges, and he who compelled the British Chief Prosecutor, Hartley Shawcross, and Shawcross’s chief legal advisor, Hersch Lauterpacht, to defend their position. Taking a strictly positivist line, he deployed the doctrine of absolute sovereignty against the prosecution’s double premise that aggression was a crime and that individuals were personally liable for it. He rejected the prosecution’s proposition that the Kellogg-Briand Pact represented a major shift from one set of international arrangements (war as an institution of international law) to another (war as ‘high treason’ against international law), because it failed to take into account the signatory states’ reservations on the right to self-defence, which demonstrated their unwillingness to submit to general obligations.At the Tokyo Tribunal, the defence lawyers also took a positivist line, maintaining that because aggressive warfare had not been criminalised before the Second World War, individuals could not be prosecuted for initiating it. Reprising themes that had already been rehearsed at Nuremberg, they maintained that the charges had been retrospectively conceived or were inapplicable within international law. Takayanagi Kenzo, defence counsel for Shigemitsu Mamoru, for example, addressed the Potsdam Declaration, which had promised that ‘stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners’. He argued that the Declaration’s reference to ‘justice’ referred to justice according to the law, ‘administered by established legal rules and principles, not according to the sense of right and justice of the judge, however good or wise he may be’. The Tokyo Charter, with its illegitimate and retroactive charges, betrayed these principles by offering not justice ‘but the Hitlerite “justice” of vague “popular feeling”: the antithesis of justice according to law’.