THE EXPERT WITNESS: The general treaty for the renunciation of war

By John F. Sase, Ph.D.
Gerard J. Senick, general editor
Julie Gale Sase, copyeditor

“August indeed is T’ien (God, heaven, sky) on High;
Fearful too when he draws near;
When He surveyed the world,
Sought peace for all the folk,
In Hsia and Shang, these two,
He found bad government...
T’ien took them then in hand,
Hating their lavish life,
And turned his gaze toward the west
And gave their land to Chou.”

—Lao Tzu, “Odes” (241:1), from The Way of Life by Lao Tzu, translated by R.B. Blakney (Penguin, 1955)

Last month, we explored the darker side of national complacency through examples from the Pre-War Third Reich of the 1930s. Though history abounds with examples of change through purely physical brutality, more often we see that such transformation has been the result of well-planned strategic political, economic, and legislative action. This month, we address the fields of International Policy and Diplomacy as we consider how one specific treaty has helped to address the issue of war crime and criminals at the end the end of the Second World War and has provided a foundation for current international war-crime trials.

The Kellogg-Briand Pact

On 14 July 2017, President Donald Trump celebrated Bastille Day in France. He proclaimed, “The ties between the United States and France stretch back almost as far as our shared history as democratic republics. France is America’s first and oldest ally. In 1778, our two countries signed a treaty of friendship and alliance. We have remained joined in common purpose ever since.” (https://www.whitehouse.gov/the-press-office/2017/07/14/statement-president-donald-j-trump-bastille-day-2017)

One of the greatest treaties derived from the friendship and alliance to which President Trump refers is the Kellogg-Briand Pact of 1928. Much of the following summarization regarding the creation of this treaty draws upon the book “Peace in Their Time: The Origin of the Kellogg-Briand Pact” by Professor Robert H. Ferrell (Yale University Press, 1952). Throughout lengthy negotiation, two diplomats—American Frank B. Kellogg and Frenchman Aristide Briand—championed a Pact that is known officially as the General Treaty for Renunciation of War as an Instrument of National Policy. Kellogg served as the United States secretary of state during the (Republican) administration of Calvin Coolidge while Briand served eleven terms as prime minister of France and was a co-laureate of the Nobel Peace Prize in 1926. The treaty that they authored emerged as the culmination of the Pacifist Movement that flourished during the late nineteenth century. This movement received a boost at the turn of the twentieth century from the founding of the World Peace Foundation and the Carnegie Endowment for International Peace, which was charged to use its funds to hasten the abolition of international war. The movement failed to stop the first part of the World War of 1914 to 1918, which concluded with an armistice that would last for two decades. The League of Nations was formed in 1920. During the latter half of the decade, representatives of the countries that had formed the League struggled through a series of bilateral and multilateral negotiations to create a treaty for ongoing peace. A final round of efforts resulted in an acceptable proposal.

Though the original signatories were members of the League, the proposed treaty among sovereign states was created apart from the now-defunct organization. These signatories included Australia, Belgium, Canada, Czechoslovakia, France, Germany, British India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Africa, the United Kingdom, and the United States. The final draft received strong approval: for example, the U.S. Senate approved the treaty by a margin of 85 to 1. As the Pact states, these fifteen signatory nations, “Having communicated with one another, their full powers, found in good and due form, have agreed upon the following articles [as summarized below]:”

Article I

The Contracting Parties solemnly declare that they condemn recourse to war and renounce it as an instrument of national policy.

Article II

The Parties agree that the settlement or solution of all disputes or conflicts, which may arise among them, will be sought only through peaceful means.

Article III

In accordance with constitutional requirements, the Treaty will take effect as soon as all Parties deposit the instruments of ratification in Washington, D.C. The Treaty will remain open as long as may be necessary for adherence by all other Powers of the world.

By the date that the Pact took effect on 24 July 1929, thirty-one additional nations, including China and the Soviet Union, had deposited instruments of definitive adherence to it. By the 1970s, more than sixty countries had declared their accession to this treaty.

In the year before the Enabling Act of 1933, legislation that gave dictatorial power to Adolf Hitler in Germany, United States Secretary of State Henry L. Stimson reminded us, “War between nations was renounced by the signatories of the Kellogg-Briand Pact. This means that it has become, throughout practically the entire world, an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law.... We denounce them as law breakers” (quoted in “Turmoil and Tradition: A Study of the Life and Times of Henry L. Stimson” by Elting E. Morison [Houghton Mifflin, 1960]).

Those who had labored to develop the Pact of 1928 hoped that this multilateral agreement would prevent future wars. Unfortunately, the treaty failed to stop the breaking of the armistice by Germany and the commencement of the more costly and destructive second part of the Great War in 1939. Nevertheless, the principles contained in Kellogg-Briand would resurface in the realm of International Law by clarifying the legal foundation for the actions brought against major war criminals by the International Military Tribunal (IMT) at Nuremberg in November 1945.

The principles of the Kellogg-Briand Pact formed a critical part of the legal basis of the Nuremberg War-Crime Trials. In its charter, the Nuremberg Tribunal recognized the principles delineated in the Pact as a foundation of International Law. These principles were tested in fire when twenty-four of the surviving leaders of the Third Reich appeared before the Tribunal. In common defense, they claimed that they only were following the orders of their superior(s). At that time, their highest superior, Chancellor Adolf Hitler, had been presumed dead. Nevertheless, the elements of Kellogg-Briand refuted that line of defense.

During this first round of trials that commenced in late 1945, the Tribunal dismissed two of the twenty-four. These included Gustav Krupp, CEO of Friedrich Krupp AG, who remained medically unfit due to paralysis since 1941, and Robert Ley, head of the German Labour Front, who committed suicide before standing trial. Only three of those tried were acquitted—Hans Fritzsche, director of the Reich Ministry of Public Enlightenment and Propaganda; Franz von Papen, vice-chancellor under Hitler; and Dr. Hjalmar Schacht, president of the Reichsbank and Economics Minister. The judges found the remaining nineteen defendants guilty as charged. Twelve of them received the death sentence. However, Reichsmarschall Hermann Goring committed suicide the night before his scheduled execution. The secretary of the Nazi Party, Martin Bormann, sentenced to death in absentia; he was presumed to have been killed while attempting to escape Germany in the final days of the war. The remaining seven defendants received prison sentences of ten years to life. The trials of lesser defendants continued into 1946.

The Nuremberg Tribunal commented on the Kellogg-Briand Pact and concluded, “After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such war is illegal [under] international law and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing.” The Tribunal continued, “The charges in the indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime. It is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Discussion of the Trials

Defense attorneys for the twenty-four leaders of the Reich denounced the list of offenses against their clients under the jurisdiction of the International Military Tribunal (IMT) as having no solid foundation in International Law. Per Article 6(a)), the Statute of the IMT provided for crimes against peace and, particularly, against criminalized wars of aggression. The defense at Nuremberg argued that, until that time, no leading statesperson ever had been held accountable for launching a war. In his article “The Legacy of Nuremberg,” Christian Tomuschat, Professor of Public Law, International Law and European Law at Humboldt University, Berlin, reminds us that it was obvious that the prosecution lacked the normal ingredients of customary international law—practice and opinio juris as originally specified in the Statute of the Permanent Court of International Justice (PCIJ) and later in the Statute of the International Court of Justice (Article 38).

Setting aside this legal deficiency constituted the principal novelty of the trial. However, the IMT was, in the words of Tomuschat, “not unaware” of the weakness of its legal basis. The Tribunal attempted to overcome this gap by emphasizing that the Kellogg-Briand Pact of 1928 (of 27 August 1928, LNTS 94, at 57) had outlawed aggression. Furthermore, the Pact continued to remain an international instrument to which Germany was a part. Kellogg-Briand states that wars are conducted by human beings, not by states as abstract entities. If the war is unlawful, then it must entail consequences for the individuals who are responsible for preparing the war and for making the relevant determinations to launch it (Journal of International Criminal Justice 4, 2006).

To the present day, critics cite that this reasoning is far from convincing. They recant that it remains a distinct action to declare that war is unlawful in respect to the relationships between sovereign states. On the other hand, acknowledgment of war as an offense that entails individual criminal responsibility is a separate matter. Furthermore, most rules of international law that bind states do not produce direct effects on individual human beings. In respect to these challenges, the IMT had made a dramatic leap. It derived the criminality of aggression between sovereign states from its character as a wrongful act, according to International Law, as a system of rights and obligations among those sovereign states. Critics and supporters of the Tribunal continue to argue the viability of this legal deduction.

Aftermath

Support for the prosecution arose when the UN General Assembly adopted four principles derived from the Nuremberg Tribunal decisions of 1946 along with three additional ones from the Tokyo War-Crime Tribunal decisions of 1948 as the Universal Statutory War Law. Further support solidified when the United Nations recognized these principles in their Judgement of the Tribunal with Commentaries in 1950.

These Principles include:

1. Any person who commits an act that constitutes a crime under international law is responsible therefor and liable to punishment.

2. The fact that internal law does not impose a penalty for an act that constitutes a crime under international law does not relieve the person who committed the act from responsibility.

3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility.

4. The fact that a person acted pursuant under the order of his Government or a superior does not relieve him from responsibility under international law provided a moral choice was, in fact, possible to him.

5. Any person charged with a crime under international law has the right to a fair trial on the facts and law.

6. The crimes herein after set out are punishable as crimes under international law, including crimes against peace, war crimes, and crimes against humanity.

7. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as outlined in Principle 4 is a crime under international law (summarized from “The Laws of War” by Chris Coverdale, English author and international war-law expert, http://www.makewarshistory.co.uk/, 2009).

Professor Tomuschat reminds us that Nuremberg Trials have left a tangible legacy in the contemporary world order along with a legal toolkit containing many instruments. However, implementing a workable system has continued to be a political power-struggle. He notes that, crimes against peace did not exist as a legally consolidated class of offenses in 1945. However, Tomuschat states that this does not mean that similar judgments would be valid today. He concludes, “In order to clarify the legal position, the practice as it has developed since 1946 must be evaluated.”

The Kellogg-Briand Pact Today

The Kellogg-Briand Pact of 1928 outlawed war. Though unfamiliar to many readers, this Pact remains in effect. However, some observers assert that its importance may have diminished greatly. In his blog at the site for the Council on Foreign Relations, James M. Lindsay, senior vice president, director of studies, and Maurice R. Greenberg chair, cites his colleague Professor Matthew C. Waxman, adjunct senior fellow for law and foreign policy. The latter reminds us that this treaty has no mechanism for enforcement. Most states that use military force claim that they are doing so as a matter of self-defense under the authorization of the UN Security Council or as another justification that overrides the Pact. More importantly, Waxman states that the basic prohibition on aggressive force remains enshrined in the UN Charter (“TWE Mailbag: Is the Kellogg-Briand Pact Still in Effect?,” https://www.cfr.org/blog/twe-mailbag-kellogg-briand-pact-still-effect).

Wrapping Up

As an economist, I (Dr. Sase) must look at this still-effective Pact in an economic light. The cost of producing the original treaty required some years of development, the talents of high-ranking officials from numerous countries, many hours by them and their support personnel, and related overhead across multiple continents. As the Kellogg-Briand Pact has not prevented future wars, one may claim that it has not met its design objectives. However, some things that humans develop for one purpose occasionally are found to have greater value for other applications. For example, low doses of aspirin have given way to shelves of other products intended for the treatment of headaches. However, we now look to 81mg aspirin to reduce the chances of having heart attacks.

The Kellogg-Briand Pact helped to form a multinational foundation for human behavior. This foundation provided the insights that emerged as principles for the war-crime trials that began in 1945. Built on these principles, the decisions of the Tribunals provided a solid floor for the United Nations to establish our international war laws. Even if our current institutional superstructures erode, the basic principles of human behavior that are rooted in Kellogg-Briand will endure if we need to rebuild our global economy on this planet again.
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Dr. John F. Sase teaches Economics at Wayne State University and has practiced Forensic and Investigative Economics for twenty years. He earned a combined M.A. in Economics and an MBA at the University of Detroit, followed by a Ph.D. in Economics at Wayne State University. He is a graduate of the University of Detroit Jesuit High School (www.saseassociates.com).

Gerard J. Senick is a freelance writer, editor, and musician. He earned his degree in English at the University of Detroit and was a Supervisory Editor at Gale Research Company (now Cengage) for over twenty years. Currently, he edits books for publication (www.senick-editing.com).

Julie G. Sase is a copyeditor, parent coach, and empath. She earned her degree in English at Marygrove College and her graduate certificate in Parent Coaching from Seattle Pacific University. Ms. Sase coaches clients, writes articles, and copyedits (royaloakparentcoaching.com).