A Court without Law, by Heinrich Haertle — part 8

Permissible War
From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2016

The attempt to construct a “peaceful world order” with such unsuitable means ran aground not only on a so-called “unjust” war but on war as such. No one yet has been able to define what is a good or a bad, a just or an “unjust” war, because victors and vanquished could never agree on this question.

Professor Jahrreiss can therefore state in summation, and this conclusion totally smashes the foundations of the indictment: 

“By 1 September 1939 the various experiments, which had been tried since the first World War with a view to replace the “anarchic world order” of classical international law by a better, a genuine, order of peace, were over, that is, to create in the community of states a general statute according to which there would be wars which are forbidden by law and others which are countenanced. These experiments, in the opinion of the major powers of the time, had failed. The greatest military powers of the earth clashed in a struggle in which they pitted their full strength against one another.” [IMT transcript, 4 July 1946]

Professor Jahrreiss then, invoking all recognized authorities[1] on international law, repeats:

“… that in universal international law as at present applied, there exists no distinction as to forbidden and non-forbidden wars.”

One must thus, he said, speak of the collapse of the system of collective security (what Shawcross calls “peaceful world order”). This is of the greatest significance for the indictment on “breach the peace.”  Here existed difficulties that no prescriptions of any lawgiver could entirely eliminate. 

Even if there were unambiguous standards, no authority able to make a decision would be present in a dispute:

” For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? 

“We do not even possess unambiguous criteria for aggression and defense. This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense.”

One must ask oneself, he said, whether one may speak of the collapse of the so-called system of world-peace, since such a system in practice never existed. As soon as the Kellogg Pact was interpreted, such divergent constructions resulted that “no two powers were implying exactly the same thing by the treaty.”

As the distinction between “just” and “unjust” war will always vary in accord with the interests of victors and vanquished, so will a consensus never be reached among the participants about who is committing aggression and who is waging a defensive war – nor about where aggression changes into defense or defense into aggression. Professor Jahrreiss thinks indeed that there has been complete agreement [only] in this:

“War in self-defense is permitted as an inalienable right to all states; without that right, sovereignty does not exist; and every state is sole judge of whether in a given case it is waging a war of self-defense.”

What kind of state however would take the position that its war is not a defensive war? And where was there ever an authority that would have been able to determine when the defensive war begins or ends? What Professor Jahrreiss affirms was applicable in every case until 1939:

“No state in the world has ever been ready to accept a foreign jurisdiction over the question of whether its decisions in the ultimate questions of existence were justified or not.”

Professor Jahrreiss can invoke in this connection even the very author of the “Treaty for the Renunciation of War.” In a note of 25 June 1928 Kellogg assured all nine partners in negotiation:

“The right of self-defense … is inherent in every sovereign state and is implicit in every treaty. Every nation … is alone competent to decide whether circumstances require recourse to war in self-defense.”

As proof that the Kellogg Pact applied only to certain wars, defense-attorney Dr. Siemers likewise refers to a circular memorandum of the American Secretary of State Kellogg from 23 June 1938 in which it is still asserted:

“There is nothing in the American draft of an antiwar treaty which restricts or prejudices the right of self-defense in any manner. That right is inherent in every sovereign state and is implied in every treaty.” [IMT transcript, 17 July 1946]

That was nothing other than the confession through stipulation of the total failure of the original plan and purpose, which would have been able to fulfill its mission only if it could have subjected every war to the penal law of a supranational legislature and executive.

Professor Jahrreiss therefore states that the friends of peace have been cruelly deceived by the interpretation that Kellogg himself gave to his treaty, What kind of practical effect was such a treaty supposed to have after all? Each of the belligerent parties could invoke these exceptions and nobody was in the position to investigate such an excuse and make a ruling on it. 

During the vote on the Kellogg Pact in the American Senate was uttered already that weighty criticism that later proved all too justified. It was called a “gigantic piece of hypocrisy,” the “legalization of war,” a means for the Versailles Powers to guarantee France’s hegemony in Europe and Britain’s dominance over the world, and a “fertile soil for all future wars.” Kellogg’s interpretation of the right of defense, which according to the will of the signatory states was an integral component of the treaty, necessarily canceled the treaty’s practical effect, since: “What kind of war if any was then forbidden?”

In the view of the American international-law expert Philip Marshall Brown, the Kellogg Pact gave birth to the frightening monstrosity of “undeclared war.”

The deeper cause of the failure ultimately lay in the fact that the treaty offered no means whatsoever for overcoming the deeper causes of wars, which of course have never been an end in themselves, rather explosions in a situation of political tensions. If the treaty was not a guide to revising great injustices between peoples that threatened a people’s right to live and possibility to develop national vigor, and if the treaty was not a guide to making compensation, then this web of paragraphs could never offer a real guarantee of peace.

One treated the problem only legally and thus could not construct a political order of peace. This task Kellogg shirked, so that his treaty-work was able to have only the effect that had been feared in the American Senate: the securing of the privileges of the Versailles Powers. This Versailles “order of peace” however was loaded with the very dynamite that led to the explosion in 1939.

The government of the German Reich explicitly indicated these dangers in the note of 27 April 1928 from Foreign-Minister Stresemann to the American ambassador.

Therefore the Kellogg Pact was able neither legally nor politically to disable war as a lawful instrument of policy. It never succeeded in finding a clear and practically applicable distinction between “aggression” and “defense.”

It is thereby already proven that the aggressor-state in a war receives the same rights and obligations as the aggressed: the traditional rights pertaining to war in international law.

Had the Kellogg Pact really succeeded in prohibiting war and declaring it a crime, this would necessarily have ended the neutrality of each of its signatory states. Each state thereafter would be obliged to treat as a criminal and to fight every other state that started wars. No state could remain neutral toward a belligerent.

The first great test-case, the Abyssinian War, proved precisely the opposite. It showed that no new international law had been created through Kellogg, and that the classic international law was absolutely still in effect. Switzerland declared her absolute neutrality in 1935; Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden made the same declaration on 24 July 1938. That was de jure and de facto the end of the Kellogg Pact.

Professor Jahrreiss finally affirms:

We therefore come to the conclusion that in the actual relations between states there existed – quite a number of years prior to 1939 –no effective general ruling of international law regarding prohibited war. No such general ruling existed so far as the leading statesmen and the peoples were aware.” [IMT transcript, 9 July 1946]

Fundamentally considered the Kellogg Pact was the totally ill-fated attempt indeed still to arrive at the guarantee of peace intended with the League of Nations and in the subsequent treaty-efforts. Germany was already not obligated by these efforts because it had withdrawn from the League of Nations and abrogated the Locarno Pact, which in 1934 had been extended for five years and was not extended by any of the signatory states after this term had run its course. Only the Kellogg Pact had not been abrogated, and indeed for the simple reason that politically it no longer existed. It had died from the fact that it wanted to make a distinction between aggressive and defensive war, and therewith left it to each signatory power to allow defensive war for itself.

The famous English historian and jurist F.J.P. Veale therefore states that the much prized distinction between aggressive and defensive war belongs to the greatest lie and deception that the international semantics of modernity has bestowed upon us. The American professor H. W. Lawrence already on the 10th of October 1934 in the periodical Christian Century indicated that with this restriction one only provided for oneself a fabricated moral alibi for securing the privileges of the affluent nations.

The American historian Harry Elmer Barnes in his book History of Western Civilization designates the formal distinction between aggressive and defensive war as “the saddest and greatest monument to the foolishness of those who adhere to formulae.”

Since there were no special punishments for violations of the treaty, in other words since no arrangements for the implementations of punishments were envisaged, the pact remained an abstraction that could not be applied to any concrete historical case: “It is quite clear,” writes Veale, “that every sharpwitted diplomat was capable of justifying almost any conceivable war under the sanction of one or the other of these excepted categories.”

The important American international-law expert Professor Edwin M. Borchard of Yale University declared before the college of politics in Williamstown, already during the signing, that the pact was worthless for keeping war contained. Instead, he said, for the first time in the history of humanity it silently invited the moral forces of the world to approve all wars that would eventuate.
[1]. According to the official English-language transcript, Jahrreiss did not quite say “all” but rather: “the majority of international lawyers throughout the world.”

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