Ask the Scholar
Page 13 of 17
I can add historical knowledge about this page.
Page image
OCR
(a) Atrocities an ffenses against persons or pro "ty constituting viola-
tions of International Law, including the laws, rules, anu customs of land and naval
warfare. The rules of warfare are well established and generally accepted by the
nations. They make offenses of such conduct as killing of the wounded, refusal of
quarter, ill treatment of prisoners of war, firing on undefended localities, poison-
ing of wells and streams, pillage and wanton destruction, and ill treatment of in-
habitants in occupied territory.
(b) Atrocities and offenses, including atrocities and persecutions on racial
or religious grounds, committed since 1933. This is only to recognize the princi-
ples of criminal law as they are generally observed in civilized states. These
principles have been assimilated as a part of International Law at least since 1907.
The Fourth Hague Convention provided that inhabitants and belligerents shall remain
under the protection and the rule of "the principles of the law of nations, as they
result from the usage established among civilized peoples, from the laws of humanity
and the dictates of the public conscience."
(c) Invasions of other countries and initiation of wars of aggression in vio-
lation of International Law or treaties.
The persons to be reached by these charges will be determined by the rule of
liability, common to all legal systems, that all who participate in the formulation
or execution of a criminal plan involving multiple crimes are liable for each of
the offenses committed and responsible for the acts of each other, All are liable
who have incited, ordered, procured, or counselled the commission of such acts, or
who have taken what the Moscow Declaration describes as "a consenting part" therein.
IV.
"NATION
ANCNIVES AND
RECORDS
The legal position which the United States will maintain, being thus based on
PAYMENT
the common sense of justice, is relatively simple and non-technical. We must not
permit it to be complicated or obscured by sterile legalisms developed in the age
of imperialism to make war respectable.
Doubtless what appeals to men of good will and common sense as the crime which
comprehends all lesser crimes, is the crime of making unjustifiable war. War nec-
essarily is a calculated series of killings, of destructions of property, of op-
pressions. Such acts unquestionably would be criminal except that International
Law throws a mantle of protection around acts which otherwise would be crimes, when
committed in pursuit of legitimate warfare. In this they are distinguished from
the same acts in pursuit of piracy or brigandage which have been considered
punishable wherever and by whomever the guilty are caught. But International Law
as taught in the Nineteenth and the early part of the Twentieth Century generally
declared that war-making was not illegal and is no crime at law. Summarized by a
standard authority, its attitude was that "both parties to every war are regarded
as being in an identical legal position, and consequently as being possessed of
equal rights." This, however, was a departure from the doctrine taught by Grotius,
the father of International Law, that there is a distinction between the just and
the unjust war-the war of defense and the war of aggression.
International Law is more than a scholarly collection of abstract and immutable
principles. It is an outgrowth of treaties or agreements between nations and of
accepted customs. But every custom has its origin in some single act, and every
agreement has to be initiated by the action of some state. Unless we are prepared
to abandon every principle of growth for International Law, we cannot deny that our
own day has its right to institute customs and to conclude agreements that will
themselves become sources of a newer and strengthened International Law. Inter-
national Law is not capable of development by legislation, for there is no continu-
ously sitting international legislature. Innovations and revisions in International
Law are brought about by the action of governments designed to meet a change in
circumstances, It grows, as did the Common-law, through decisions reached from
time to time in adapting settled principles to new situations. Hence I am not dis-
turbed by the lack of precedent for the inquiry we propose to conduct. After the
shock to civilization of the last World War, however, a marked reversion to the
earlier and sounder doctrines of International Law took place. By the time the
Nazis came to power it was thoroughly established that launching an aggressive war
or the institution of war by treachery was illegal and that the defense of legiti-
mate warfare was no longer available to those who engaged in such an enterprise.
It is high time that we act on the juridical principle that aggressive war-making
is illegal and criminal,
-6-
MORE
Page data
- Page
- 13
- Source index
- 0
- Type
- photo
- Media ID
- 7050ff24d9d19293
- Size
- unknown
Document data
- ID
- 313081727
- Core
- doc
- Type
- document
DTO data
{
"id": "313081727",
"sourceUrl": "https://catalog.archives.gov/id/313081727",
"contentType": "document",
"title": "Memorandum, \"The War Crimes Trials\" with Attachments",
"citationUrl": "https://catalog.archives.gov/id/313081727",
"collections": [
"Eben A. Ayers Papers",
"Subject Files"
],
"iiifBase": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"thumbnailUrl": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"largeImageUrl": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"imageCount": 17,
"hasImages": true,
"source": "import",
"hasTranscription": false
}
Context sent to Scholar
Document identity
{
"localId": "313081727",
"label": "Memorandum, \"The War Crimes Trials\" with Attachments",
"core": "doc",
"dtoType": "document",
"citationUrl": "https://catalog.archives.gov/id/313081727"
}
Document source metadata
{
"id": "313081727",
"sourceUrl": "https://catalog.archives.gov/id/313081727",
"contentType": "document",
"title": "Memorandum, \"The War Crimes Trials\" with Attachments",
"citationUrl": "https://catalog.archives.gov/id/313081727",
"collections": [
"Eben A. Ayers Papers",
"Subject Files"
],
"iiifBase": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"thumbnailUrl": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"largeImageUrl": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-001.tif",
"imageCount": 17,
"hasImages": true,
"source": "import",
"hasTranscription": false
}
Document source extras
{
"url": "https://catalog.archives.gov/id/313081727",
"naId": 313081727,
"levelOfDescription": "item",
"recordType": "description",
"ocrSource": "nara-archive"
}
Page context
{
"seq": 13,
"pageIndex": 0,
"type": "photo",
"url": "https://s3.us-east-1.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-eaa/201201/2805398/2805398-02-013.tif",
"mediaId": "7050ff24d9d19293",
"ocrText": "(a) Atrocities an ffenses against persons or pro \"ty constituting viola-\ntions of International Law, including the laws, rules, anu customs of land and naval\nwarfare. The rules of warfare are well established and generally accepted by the\nnations. They make offenses of such conduct as killing of the wounded, refusal of\nquarter, ill treatment of prisoners of war, firing on undefended localities, poison-\ning of wells and streams, pillage and wanton destruction, and ill treatment of in-\nhabitants in occupied territory.\n(b) Atrocities and offenses, including atrocities and persecutions on racial\nor religious grounds, committed since 1933. This is only to recognize the princi-\nples of criminal law as they are generally observed in civilized states. These\nprinciples have been assimilated as a part of International Law at least since 1907.\nThe Fourth Hague Convention provided that inhabitants and belligerents shall remain\nunder the protection and the rule of \"the principles of the law of nations, as they\nresult from the usage established among civilized peoples, from the laws of humanity\nand the dictates of the public conscience.\"\n(c) Invasions of other countries and initiation of wars of aggression in vio-\nlation of International Law or treaties.\nThe persons to be reached by these charges will be determined by the rule of\nliability, common to all legal systems, that all who participate in the formulation\nor execution of a criminal plan involving multiple crimes are liable for each of\nthe offenses committed and responsible for the acts of each other, All are liable\nwho have incited, ordered, procured, or counselled the commission of such acts, or\nwho have taken what the Moscow Declaration describes as \"a consenting part\" therein.\nIV.\n\"NATION\nANCNIVES AND\nRECORDS\nThe legal position which the United States will maintain, being thus based on\nPAYMENT\nthe common sense of justice, is relatively simple and non-technical. We must not\npermit it to be complicated or obscured by sterile legalisms developed in the age\nof imperialism to make war respectable.\nDoubtless what appeals to men of good will and common sense as the crime which\ncomprehends all lesser crimes, is the crime of making unjustifiable war. War nec-\nessarily is a calculated series of killings, of destructions of property, of op-\npressions. Such acts unquestionably would be criminal except that International\nLaw throws a mantle of protection around acts which otherwise would be crimes, when\ncommitted in pursuit of legitimate warfare. In this they are distinguished from\nthe same acts in pursuit of piracy or brigandage which have been considered\npunishable wherever and by whomever the guilty are caught. But International Law\nas taught in the Nineteenth and the early part of the Twentieth Century generally\ndeclared that war-making was not illegal and is no crime at law. Summarized by a\nstandard authority, its attitude was that \"both parties to every war are regarded\nas being in an identical legal position, and consequently as being possessed of\nequal rights.\" This, however, was a departure from the doctrine taught by Grotius,\nthe father of International Law, that there is a distinction between the just and\nthe unjust war-the war of defense and the war of aggression.\nInternational Law is more than a scholarly collection of abstract and immutable\nprinciples. It is an outgrowth of treaties or agreements between nations and of\naccepted customs. But every custom has its origin in some single act, and every\nagreement has to be initiated by the action of some state. Unless we are prepared\nto abandon every principle of growth for International Law, we cannot deny that our\nown day has its right to institute customs and to conclude agreements that will\nthemselves become sources of a newer and strengthened International Law. Inter-\nnational Law is not capable of development by legislation, for there is no continu-\nously sitting international legislature. Innovations and revisions in International\nLaw are brought about by the action of governments designed to meet a change in\ncircumstances, It grows, as did the Common-law, through decisions reached from\ntime to time in adapting settled principles to new situations. Hence I am not dis-\nturbed by the lack of precedent for the inquiry we propose to conduct. After the\nshock to civilization of the last World War, however, a marked reversion to the\nearlier and sounder doctrines of International Law took place. By the time the\nNazis came to power it was thoroughly established that launching an aggressive war\nor the institution of war by treachery was illegal and that the defense of legiti-\nmate warfare was no longer available to those who engaged in such an enterprise.\nIt is high time that we act on the juridical principle that aggressive war-making\nis illegal and criminal,\n-6-\nMORE"
}