4 Dec. 45

Thus, there is no doubt that by the time the National Socialist State of Germany had embarked upon the preparation of the war of aggression against the civilized world and by the time it had accomplished that design, aggressive war had become, in virtue of the Pact of Paris and the other treaties and declarations to which I have referred, illegal and a crime beyond all uncertainty and doubt. And it is on that proposition, and fundamentally on that universal treaty, the Kellogg-Briand Pact, that Count Two of this Indictment is principally based.

The Prosecution has deemed it necessary — indeed, imperative — to establish beyond all possibility of question, at what I am afraid may appear to be excessive length, that only superficial learning or culpable sentimentality can assert that there is any significant element of retroactivity in the determination of the authors of this Charter to treat aggressive war as conduct which international law has prohibited and stigmatized as criminal. We have traced the progressive limitation of the rights of war, the renunciation and condemnation of` wars of aggression, and above all, the total prohibition and condemnation of all wars conceived as an instrument of national policy. What statesman or politician in charge of the affairs of nations could doubt, from 1928 onwards, that aggressive war, or that all war, except in self-defense or for the collective enforcement of the law, or against a state which had itself violated the Pact of Paris, was unlawful and outlawed? What statesman or politician embarking upon such a war could reasonably and justifiably count upon an immunity other than that of a successful outcome of the criminal venture? What more decisive evidence of a prohibition laid down by positive international law could any lawyer desire than that which has been adduced before this Tribunal?

There are, it is true, some small town lawyers who deny the very existence of any international law; and indeed, as I have said, the rules of the law of nations may not satisfy the Austinian test of being imposed by a sovereign. But the legal regulation of international relations rests upon quite different juridical foundations. It depends upon consent, but upon a consent which, once given, cannot be withdrawn by unilateral action. In the international field the source of law is not the command of a sovereign but the treaty agreement binding upon every state which has adhered to it. And it is indeed true, and the recognition of its truth today by all the great powers of the world is vital to our future peace-it is indeed true that, as M. Litvinov once said, and as Great Britain fully accepts:

''Absolute sovereignty and entire liberty of action only belong to such states as have not undertaken international obligations. Immediately a state accepts international obligations it limits its sovereignty."