America’s China Policy Is Not Working
The Dangers of a Broad Decoupling
THE time has come when debate over the legality of the Nuremberg trial may perhaps give way to a consideration of the long-range implications of the principles which it established as law. This is not to say that the legality or wisdom of the proceedings should be a closed question; specifically, it is not to dissent in the least from the authoritative and convincing reasoning which has led Mr. Stimson to the conclusion that "This is a new judicial process, but it is not ex post facto law."[i] It is only to point out that the Nuremberg judgment has been made and is now precedent, and that the present task is to consider how its principles can be put to work in the interests of a peaceable and ordered international society. The challenging question now is how to use the doctrine that aggressive war is "the supreme international crime."
It is perhaps not commonly apprehended that the principles of Nuremberg, which are based on the London Agreement and Charter of August 8, 1945, go hand in hand with the organization of the United Nations as the twin foundations of an international society ordered by law. Both deal with the ultimate problem in international relations -- regulation of the use of force as a means of achieving national objectives. In earlier days it was the inarticulate major premise of agreements between nations that they did not touch the "vital interests" (a term much broader than the right of self-defense) of the High Contracting Parties, as determined by each party itself. This was the attitude expressed by many of the Nazis in the dock at Nuremberg, whose argument may be summarized thus: "For what we have done only Germany can judge us. We acted in the interests of Germany alone, and only Germany has the right to decide whether we acted rightly or wrongly. It is no business of any other country what we did." Both Nuremberg and the United Nations have changed this weltanschauung, for the vital interest recognized today is the freedom of the whole society from war rather than the freedom of the nation to wage war as an instrument of policy. A state is no longer the sole judge of its own cause. It may invoke the privilege of self-defense as before, but in now doing so it must be prepared to defend its course before the world and to accept the consequences of exceeding the limits by which foreign policies are now contained.
Both the United Nations and Nuremberg regulate the same evil in different but interdependent ways. To borrow the celebrated metaphor, the one is the carrot, the other the stick, with which to move the donkey. The one aims to prevent, the other to punish. The United Nations was conceived in the hope that the threat of collective sanctions and ultimately of armed interference by the whole community will discourage potential aggressors. But if the system of prevention should fail, it is the function of Nuremberg to tot up the accounts afterward, to assess the personal responsibilities, and to vindicate the laws which have been breached. The hope of Nuremberg is that by utilizing the preventive and deterrent theories of punishment it will place another formidable obstacle, the certainty of the gallows, in the way of statesmen contemplating military adventures.
It would seem especially important that the Nuremberg principles, which establish a rule of law overriding sovereignty and binding on all nations, should remain strong while the United Nations has not achieved full command of its powers. But the assizes of Nuremberg are no longer in being. The sentences have been carried out, the Tribunal has dissolved, the prosecutors have departed, and all the elaborate mechanism of justice is dispersed. The men who conceived it and made it work have all returned to their normal occupations. How, then, can we find effective means of perpetuating the Nuremberg principles so that they may operate as continuing sanctions of peace?
The suggestion has for some time been current that the law of Nuremberg should be codified on the initiation of the General Assembly of the United Nations. A proposal to this effect by Mr. Francis Biddle, American member of the International Military Tribunal, was approved by President Truman. Following a similar recommendation by its Legal Committee, the General Assembly last December established a special committee to study ". . . the methods by which the General Assembly should encourage the progressive development of international law and its eventual codification," and to report to the General Assembly at its next regular session, which will be held in New York in September. This committee has been in deliberation for some time, but at the present writing its conclusions have not been made public.
While the objectives of precision and certainty in the law, which are presumably the purposes of codification, are not lightly to be dismissed, reflection suggests that codification is not the answer to the problem of perpetuating the Nuremberg law, and that, indeed, it involves dangers so great that the attempt might well defeat its own purposes.
It must not be forgotten that the General Assembly is a body of very limited powers. It is not comparable to the American Congress or state legislatures. The United Nations is not a government and has no powers of sovereignty. Its General Assembly cannot make or codify laws binding the conduct of citizens of member nations. These limitations are expressly recognized in the Charter. Article 13 authorizes the General Assembly ". . . to initiate studies and make recommendations . . ." for the purpose, inter alia, of ". . . encouraging the progressive development of international law and its codification." The wording makes it clear that the Assembly is not itself empowered to develop or codify international law but merely to encourage those activities by bodies competent to undertake them. To that end its functions are purely advisory and hortatory. This was illustrated in the Assembly's last regular session, when it adopted a resolution condemning genocide and calling upon member nations to legislate against it. The results of the Assembly's discussions would have little more standing than such pronouncements by other non-legislative groups as the Budapest Articles of Interpretation, or the Harvard Research in International Law's "Draft Convention on Rights and Duties of States in Case of Aggression." While its statement would undoubtedly have value as evidence of custom, it would have no force as a positive commitment or as law, regardless of the eminence of the men whose views it might express, and would represent no advance over what is now in effect.
The question then comes to this: if the General Assembly cannot itself codify international law, is anything to be gained by the Assembly's attempting to formulate a Draft Convention of Codification to recommend to its member governments for acceptance?
There would be not a few things to be said in favor of codification of the Nuremberg principles by a group of men learned in the law, deliberating in the calm and dispassionate atmosphere indispensable to so critical and exacting an undertaking. But the refinement of general principles into clearly defined specific instances is a matter which cannot satisfactorily be accomplished in the "town meeting of the world" which is the General Assembly. The problem is one for skilled technicians. It is not by accident that most of the American states which have overhauled and consolidated their statutes have not attempted to do so in the give-and-take of parliamentary debate, but have entrusted the mandate to commissions of jurists and lawyers. The even greater necessity of following this professional procedure in revising the laws of the international society is emphasized in a cogent remark by Andrei Vyshinsky, Soviet Vice Commissar for Foreign Affairs and a delegate to the General Assembly, during the course of a visit to Nuremberg. The London Charter defining the crimes, he said, was possible because it was negotiated by lawyers instead of diplomats. The lawyers, indifferent to the power relationships of states, were able to reach an agreement on the law unhedged with political compromises and reservations. The judgment of so experienced a lawyer-diplomat as Mr. Vyshinsky, that the formulation of international legal principles is a matter not for statesmen but jurists, is entitled to weight. It may be relevant in understanding some of the underlying reasons for the failure of the League of Nations conference convened at The Hague in 1930 to codify certain branches of international law. Mr. Vyshinsky's advice is reinforced by the considered warning issued several years ago by a group of eminent American lawyers and professors in the report accompanying their Draft Convention on Aggression: ". . . the more the subject is embroiled in political controversy and emotion, the greater is the need for juristic study pursued dispassionately and without reference to the momentary currents of diplomacy, enthusiasms and prejudice."
If the question were approached in the requisite atmosphere of detachment, there are numerous questions to which the attention of codifiers could well be drawn. One of the chief problems would be to reconcile the law of the London Charter, which makes the murder of national minorities before the outbreak of war a crime, with the judgment of the Tribunal, which refused to treat such acts as criminal. Another would be to state with precision the extent of the concepts of conspiracy determining complicity in the crime of plotting or waging aggressive war, which were laid down broadly in the Charter and applied narrowly in the Tribunal's judgment. Recent events have raised other questions requiring sharper delineation of the outlines of aggression. The question whether a "preventive war" is permissible, as is being advocated somewhat furtively, needs to be squarely faced. Other questions which might be examined as to whether or not they involve aggression are such acts as armed attack not constituting invasion, as in the shooting down of friendly aircraft; the refusal of a disputant to arbitrate, accompanied by sanctions against its adversary; and the retention of large numbers of troops on the territory of a former ally long after the cessation of hostilities.
But desirable as it would be, we may doubt whether an agreement on the precise line between self-defense and aggression in various situations could be obtained today. The background of experience in framing the Charter of London, with which some of the proponents of codification are unfamiliar, demonstrates the formidable difficulties which lie in the way of getting international commitment to airtight definitions of abstract principles of law.
One obstacle is the desire of a dominant nation to fashion an instrument for use only against other nations. Thus, one of the sticking points in the negotiations over the London Charter was the Soviet attempt to write a bill of attainder limited to the purpose of getting rid of Nazis. The Soviet negotiator insisted that aggression should be defined as a crime when committed in the past by the Nazis, but that a general and more inclusive definition be avoided. Mr. Justice Jackson, on the other hand, stated unequivocally that unless the Charter contained a general statement of the criminality of aggression the United States would not participate in any international trial, but would proceed alone. Because of their exclusive possession of the twin essentials to a trial -- the leading prisoners and the bulk of captured documents -- the Americans were in a position to hold a trial without the aid of any other nation, while the others were dependent on American assistance. Realization of the strength of the American bargaining position led the Soviets to abandon their particularistic definition and to live up to the principles they had professed since the Litvinov Protocol of 1929. By this means an unrestricted declaration of the crime of aggression was finally obtained. Whether, if the question were reopened, the Soviets would revert to their original notions, and if so what means today might prove effective in moving them, are factors to be given serious consideration.
A further major obstacle is the reluctance of great nations to cross bridges if there is a way around. Again, during the London negotiations Mr. Justice Jackson argued determinedly that it was not enough merely to condemn aggression in general terms, but that the Charter, if it was not to incorporate a possibly basic defect, should clearly define what it meant by aggression. The purpose was partly to rule out as grounds for defense the resort to pretexts, evasions, likelihoods, and such other estimates of a potential enemy's intentions as exist in the eye of the beholder. It was also to avoid diversionary arguments as to the deep-rooted causes of war, and to concentrate on the sole material issue, which was responsibility for starting the war. The Justice's position, based on Russia's own "Litvinov Treaty," [ii] was that a state may legitimately redress its grievances against another state by the use of any means, even including pressures of certain kinds, except resort to various categories of armed force; with a further specific proviso that ". . . no considerations of political, military, economic, or any other matters can serve as an excuse or justification of aggression." Nevertheless, the British, French and Soviet representatives refused to accept the Jackson definition or in fact any definition of aggression. Fortunately, doubt of what constitutes aggression never arose in the Nuremberg proceedings, for the evidence showed the Nazi attacks to have been deliberate and unjustified aggressions under any possible test. But there is no reason to expect that in any attempt at codification today, which would necessarily be set in a theoretical context, the leading European Powers would be prepared to agree to any more exact limitations than they were willing to accept at London, where the focus was on a very specific course of aggressions already committed.
Nor would more minute definition necessarily be an improvement. Despite the goadings of perfectionists, experienced draftsmen are familiar with the perils of attempting an exhaustive catalogue of prohibited acts. The danger is that unforeseen and hence uncatalogued situations will arise and, not being specifically prohibited, will be taken as impliedly permitted. It is the part of wisdom to be satisfied, at times, with rather general statements of large principles, leaving their sweep broad enough to include all possible intended situations, and relying on the case system of the common law for particular application. It was the peril of loopholes created by attempts at exactness that Secretary Kellogg had in mind when he wrote, in reference to the Pact of Paris: "It is not in the interest of peace that a treaty should stipulate a juristic conception of self-defense since it is far too easy for the unscrupulous to mold events to accord with an agreed definition."
These problems are not academic. A striking illustration of their occurrence in practice is found in the German General Staff's "Kriegsbrauch im Landkriege," or Manual of Rules of Land Warfare, which was used in the First World War. This manual expressly recommended to German officers the use of murder, lying, treachery, bribery and fifth column methods, and justified them on the grounds that since international law did not explicitly forbid them, it must be taken implicitly to have sanctioned them.[iii] If we are not to furnish literalists with an opportunity to turn the letter of the law to unscrupulous advantage, we shall do well to recall the words of Sir Austen Chamberlain, who warned against definitions of defense or aggression which might be "a trap for the innocent and a signpost for the guilty."
But there is no need of courting these hazards, for the work of codification has already been done, and with reasonably satisfactory results. The proposals for new codification overlook the fact that the Charter of London was in itself a codification of the treaties, rules and customs of international law previously existing on crimes against peace, war crimes and crimes against humanity. Even before the London Charter, in fact even before the war, the law on these matters was inescapably clear. It was clearly understood by the Nazis at the time they breached it, as the evidence at Nuremberg has shown. They had even gone to the extent of preparing a painstaking list of devious explanations to be given out by their Propaganda Minister in case of protest against the violations which they were planning. They had ordered the armed forces to obey international law only where compliance was beneficial, and to violate it wherever advantageous to do so. If the law was so clear, before the Charter and the trial, that violations were conscious and not unwitting, can it be so desperately in need of clarification now after those two great clarifying acts have taken place?
The unfortunate impression seems to have been given that without some process of codification or ratification the law of Nuremberg will evaporate and cease to be authoritative. That conclusion contains an inherent fallacy. By its very nature, codification presupposes an already existing body of valid law. If none exists, there is nothing to codify. Conversely, codification cannot add one jot or tittle of substance to what already exists. Properly, it does not make new law nor even make law. Codification is merely the procedure of collecting and restating the law already in force.
The essential point is that the principles of the London Charter are today in force and will so remain without the necessity of any supplementary enactment. Regardless of the intricate dispute over the legal consequences of executive agreements generally, the Charter, as an exercise of the President's diplomatic and war powers, clearly falls within the category of executive agreements which the Supreme Court has held to possess "a similar dignity" as a treaty,[iv] fully binding in all respects. Its continuing effectiveness is not prejudiced by the reservation of the right of any signatory to withdraw upon the giving of notice in a specified manner. The right of denunciation customarily included in multi-partite agreements is usually qualified by a provision that denunciation by one party shall not vitiate the agreement with respect to the remaining parties. As a familiar example, Germany's withdrawal from the League of Nations in 1933 did not terminate the League's existence. For this very purpose a saving clause was expressly included in the Charter. The intention of the negotiators, as recorded in the minutes of their conferences, was to make sure that exercise by one party of its right of withdrawal should affect only its own participation at the trial, and should not affect the law declared in the Charter, the proceedings already taken, or the right of the remaining nations to continue. It would have been contrary to customary international usage, as well as lacking in elementary prudence, to have omitted such a safeguard.
The Charter, therefore, remains valid. It is international law, established by the four most powerful nations and adhered to by 19 others, representing the great majority of civilized peoples of the earth. It binds alike the statesmen of all nations, and no veto power can prevail against it. Thus, there is no need to consider the supplementary basis for the continuing outlawry of aggressive war, which is to be found in the international common law precedent created by the judgment of the Nuremberg Tribunal.
It will of course not be denied that the London Charter contains imperfections. It is true that it speaks in generic rather than specific terms. A fully developed and symmetrical system of jurisprudence could not reasonably be expected to spring full-blown from the first authoritative codification of international penal law in history. The law does not run before it can walk. The Charter is a first step. But the question for responsible judgment is not whether the Charter's form is ideal or its conceptions ultimate, but whether it is adequate to the needs of its time. Viewed in this light, the Charter is a satisfactory statement of the categories of lawlessness which now stand condemned. Crimes against peace, as a single example, are defined as follows: ". . . namely, planning, preparing, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." In a single instrument the main features of the law are summed up. The Charter defines the crimes, states the applicable law of conspiracy, rules out the immunizing doctrines once applicable to heads of state and superior orders, sets the range of penalties, and contains elaborate provisions to ensure a fair trial for the accused. Its meaning is plain enough to be unmistakable and is certainly as clear as many rules of law by which the world's affairs are governed. Its provisions are explicit beyond any agreement in history condemning wars of aggression. They are greatly to be preferred to the inevitable and perhaps more serious inadequacies which might well result from the compromise of revision, and to the consequent unsettlement of matters now settled.
But the fundamental trouble with the codification proposal is that it does not go to the heart of the problem. It is more important to apply great principles than to reiterate them. The relation which lack of enforcement bears to disrespect for law was given classic expression in Lord Carson's taunt: "When I am confronted by my pacifist friends with these treaties for the preservation of peace I always ask them: 'Where's your sheriff?'" The criticism is pertinent here. To paraphrase, we have the law, but where is our judge? The crucial need is for a court to enforce the law. The law may be redefined and codified until it is pellucid, and yet it will be but a feeble reed if there is no way of enforcing it when wrong has been done.
The great weakness of the Pact of Paris, which was pointed out with helpless fatalism during the aggressions against Manchuria and Ethiopia, was that it contained no machinery of enforcement or adjudication. As a prohibition without a penalty, it achieved less to discourage lawbreakers from assaults and extortions against the lawabiding than had been hoped. That tragic flaw in the Pact of Paris was remedied by the Charter, but only on an ad hoc basis. The one really regrettable novelty of Nuremberg was not that the law was invoked, but that a special, makeshift court had to be set up to enforce it against a particular group of defendants. This was unavoidable since no competent court was in existence. But that is exactly the situation today, for the International Military Tribunal, having finished its assigned task, has dissolved. What we have, again, is a formidable body of law but no judicial machinery with which to make use of it. In that regard international law is very nearly as helpless today as it was in September 1939, and it is inviting the same kind of respect. In these circumstances, it can hardly be expected that any potential aggressor will take international law more seriously than Hitler did when he announced his decision "to attack Poland at the first suitable opportunity" since "in starting and making a war not the right is what matters but victory -- the stronger has the right."
What we must do, if we are to perpetuate the law of Nuremberg effectively, is not to divert our energies in refurbishing it but to set up, now, procedures to guarantee that it can be swiftly applied if ever again the need should arise. Otherwise we shall be attempting to carry water in a sieve. For a long time prior to Nuremberg international law was scoffed at as pious but impotent. Whether it is to return to that lowly estate depends on whether the United States, which took the lead at Nuremberg, will likewise take the initiative in pressing for the immediate creation of permanent judicial machinery of enforcement.
There are several ways of proceeding. An international convention could grant jurisdiction to try aggressors to the domestic courts of all countries, or of the states aggrieved, in the manner in which other international crimes, such as piracy, white slavery and the narcotic traffic have long been punished. Alternatively, a new International Criminal Court of eminent jurists might be constituted, to be convoked immediately upon the preferring of charges by a state alleging itself the victim of aggression. But for reasons of fairness and practicality, as well as to emphasize that aggression is an offense against the whole family of nations, the most satisfactory course would seem to be to confer jurisdiction over the Nuremberg law on the new International Court of Justice.
By thus enlarging the power of this already existing court its jurisdiction would be brought up to date. The International Court of Justice took over almost verbatim the statute of its predecessor, the Permanent Court of International Justice, and its rôle is dated. The hope of the founders of the Permanent Court was that by settling controversies between nations over such matters as boundaries, claims and the like it might help to prevent wars. And by affording an impartial panel for the settlement of these issues on the merits, without regard to the relative strength of the parties, the first World Court was a notable advance for its day. But the present Court is not constructed in accord with the facts of modern international affairs. The problems which make the difference between peace and war never reached the first World Court, nor are they likely to come before its successor; they were not susceptible to adjudication in a court of law. As in the case of the dispute between the United States and Japan which culminated in Pearl Harbor, the issues were not legal but political. This is, of course, not to argue that boundary disputes, such as the lingering British-Guatemalan controversy over the borders of British Honduras, are not important or should not be arbitrated; nor is it to contend that this function of the Court should be discarded. It is merely to point out that umpiring such disputes no longer touches the supreme issue of international law. Unless greater powers are granted the Court, it is very probably doomed to have no perceptible influence on the maintenance of peace.
As at present constituted, the Court, although it is directed to decide cases on the basis of international law in force, is powerless to apply the law of Nuremberg. That is because its statute permits only states to be parties before the Court, and hence only states can be affected by its decisions. But the law of Nuremberg operates on individuals. The framers of the London Charter rejected the stultifying dogma that international law is concerned only with the rights and duties of states. The difficulty with this traditionalist notion was that there is no effective way of enforcing a judgment against a state except by force. A state cannot be coerced save by war or by sanctions which must, if resisted, ultimately rely upon acts of war for their enforcement. The Charter recognized the facts: that it is people, and not those anonymous entities called states, who plan wars, just as other crime is always committed by individuals. Accordingly, its penalties were directed against persons, for only sanctions which operate on individuals can be enforced effectively, peaceably and with discriminating justice. The jurisdiction of the International Court of Justice should be broadened in a similar fashion if both the Court and the law are to retain vitality.
To put the law of Nuremberg within the jurisdiction of the International Court of Justice it would be necessary for the community of nations which established the Court to amend its statute so as to increase its powers in at least the following respects: (1) Article 35 should be amended to provide that any state which is the victim of aggression, whether or not it is a member of the United Nations, may appear as a complainant before the Court; or, in the alternative, a prosecuting official should be attached to the Court, with power to institute criminal proceedings in the name of the international community. (2) Article 34 should be amended to include individual persons holding high official position in any government as permissible parties defendant before the Court in any case of alleged aggression. (3) Provision should be made for priority of such causes over all other matters on the Court's docket, and for an expeditious hearing. (4) To remove all doubts, Article 38 should be supplemented to include specific reference to the Charter of London in the provisions defining the competence of the Court; and this grant of jurisdiction should be made exclusive with the Court. (5) New articles should be added to provide for the compulsory extradition and surrender by national states of individuals named as defendants, and, in case of non-compliance, for trial and judgment in absentia, such as was rendered against the missing Martin Bormann at Nuremberg; with operation of the judgment to take place upon capture or surrender of the individuals affected. (6) The present weak provisions for enforcement of the Court's decisions by the Security Council (Article 94 of the United Nations Charter) should be enlarged to provide for the execution of judgments against individuals, whether or not the state of which the offender is a citizen has filed a declaration accepting the compulsory jurisdiction of the Court in accordance with Article 36(2) of the statute of the Court.
Adoption of the amendments roughly outlined above would remove many of the obstacles which the ad hoc nature of the Nuremberg Tribunal created for that body. The existence of a permanent and continuously sitting court competent to exercise this law would obviate the disadvantages of setting up a particularistic tribunal after the crime has been committed. Furthermore, the odium attached to a court composed entirely of victors would not be incurred, since the International Court of Justice, composed of members from 15 nations, would amost certainly contain neutral representatives in any case of alleged aggression which might come before it.
Under the United Nations Charter, these amendments would require a two-thirds vote of the members of the General Assembly, followed by ratification by two-thirds of the members of the United Nations, including all the permanent members of the Security Council. This procedure would of course run the risk of possibly following the fate of other measures and becoming the focus of manœuvrings between competing power blocs. But since 23 members of the United Nations have formally committed themselves to the Charter of London, there is reasonable basis for the hope that this issue may be treated as above partisanship. In any event, the chances for adoption and ratification of an amendment of this kind seem bright enough to warrant its consideration.
It is important that the difference between legal and political methods of maintaining order in international affairs, briefly touched upon in preceding paragraphs, be clearly appreciated if good ends are not to fail for want of appropriate means. The prevention of war is a political task. Until war actually breaks out, threats to the peace can be dealt with most effectively by persuading or frightening the potential aggressor to desist, and hence are properly the province of an international political body like the Security Council. Hence, the United Nations Charter authorizes the Security Council to investigate any dispute "likely to endanger the maintenance of international peace and security" and to recommend appropriate remedial action. Conversely, prevention is beyond the competence of the judicial process. The possibility of a successful prewar appeal against an allegedly intending aggressor, by way of injunction, will fall in nine cases out of ten before the overwhelming difficulty of proving aggressive intentions before war is actually launched. After a war, captured documents may lay bare unimpeachable evidence of the illicit plotting. But beforehand the only evidence is likely to be limited to inferences of a circumstantial nature, based on diplomatic conduct, past history, ship and troop concentrations, statements by the nation's leaders, and other matters, all of which will probably be susceptible of conflicting interpretations. The law's ancient reluctance to enjoin an anticipated criminal act is based on its disinclination to reach decisions on fears in the place of facts. For these reasons, among others, there would be insuperable obstacles in all but exceptional cases to application of the Nuremberg principles in advance of actual warfare.
But if the aggression is launched despite all attempts at prevention, the problem then (aside from military resistance to the aggressor or aid to the victim) is a legal one. And it is of the essence that enforcement of the Nuremberg principles be entrusted to a court rather than, as has been suggested, to the Security Council. The aggression, constituting a breach of international law, results in liabilities of a sort which can be determined only by a thorough, dispassionate inquiry based on the facts and law. This is the type of question with which courts are peculiarly and exclusively fitted to deal, and one which must not be left to decision by the Security Council.
The reasons are plain. In the first place, it would be patently irregular to commit the juridical function to a body which could be prevented, by the veto of one of its members, from considering or from reaching a decision. In addition, the processes of the Security Council are open to the type of prejudicial abuses against which courts have erected certain safeguards. In appearing before a court a complainant must make out a case and produce evidence to support his charges. He cannot make loose allegations for propaganda purposes, but must file a specific indictment and prove it. He cannot use the court as a forum in which to make political complaints, not grounded in evidence, for the truth will be marshalled against him and judgment rendered in his adversary's favor. That is a double-edged risk which no nation will lightly take. Unlike the Security Council, a court does not easily lend itself to the machinations of a nation seeking to exert pressure on another. The record shows that, with the single exception of the Greek border incidents, the numerous opportunistic charges of "aggression" which have been laid before the Security Council have been excitedly ventilated and arbitrarily dismissed without the inconvenience of an examination of the facts. This agitated forum, where those who decide issues are themselves embattled partisans, is not the place for a calm and impartial weighing of evidence in an effort to discriminate between the just and the unjust. International courts have generally shown themselves to be independent of policy or nationalistic considerations and devoted to a decision on the merits. But the Security Council, divided into uneasy rival factions, would be more likely to reflect in its decision the views of a dominant bloc. Moreover, the Security Council can make itself an instrument of frustration by simply refusing to take action, thus arming the unscrupulous and penalizing the lawabiding. But a court cannot easily evade its responsibility of rendering a decision once a controversy is brought before it. Regardless of the power of the offender or of its friends, a court cannot by its own inaction permit the cynical spectacle of crime without punishment.
The precarious nature of the new peace is summed up in the oft-heard assertion that in defeating the Nazis we have merely replaced one totalitarian menace with another. Whether or not the pattern of present events is indeed analogous to the pre-Anschluss days of the last decade is a question worth mentioning here only for the sake of emphasizing the one important and hopeful difference between the present era and its tragic predecessor. Between that unhappy day and the present the slowly maturing moral judgment of the nations has found legal expression in the Charter of London. That document is the repository of the crystallized conscience of mankind. Unlike the Nazis in their day, the only nations today capable of waging a large-scale war are squarely committed by their participation at Nuremberg to the principle that a war of aggression is a crime. Their leaders are aware that the scaffold they helped erect for Germans is no respecter of nationalities or persons. In condemning the Nazis they have set standards by which their own conduct will be judged, and have created the means for their own condemnation. They will hardly put their own necks in the noose they fashioned for the Nazis, if a method of enforcement has been established by which the halter may be drawn speedily and surely.
The important rôle of the law of Nuremberg in keeping the peace cannot be realized unless the United Nations show, through the establishment of permanent judicial machinery, that they mean to enforce the law. Now is the time, when the agonies and convulsions of war are not yet effaced, to set about the task. The nations, solemnly joined to safeguard the peace, cannot shrink from completing the outlawry of war. Let them be true to the promise of their Charter. Let them write the Nazis' final epitaph in unmistakable terms, so that, in the words of Mr. Churchill, "an indelible warning may be given to future ages, and that successive generations of men may say, 'So perish all who do the like again.'"
[i]Cf. Henry L. Stimson, "The Nuremberg Trial: Landmark in Law." FOREIGN AFFAIRS, January 1947.
[ii] Convention Defining Aggression, between Afghanistan, Estonia, Latvia, Persia, Poland, Rumania, Turkey and the U.S.S.R., July 3, 1933.
[iii] J. H. Morgan, "Assize of Arms." New York; Oxford University Press, 1946.
[iv] United States vs. Pink, 315 U.S. 203, 230 (1942).