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Parent Item (5) April 9, 1948
Date 9 April 1948
Language English
Collection Tavenner Papers & IMTFE Official Records
Box Box 6
Folder General Reports and Memoranda from April 1948
Repository University of Virginia Law Library
INTERNATIONAL PROSECUTION SECTION Legal Division 9 April 1948 Memorandum for: Summation Committee. (Completing memorandum dated 8 April 1948) From: Captain J. J. Robinson The defense state that "the perpetration of aggressive war is the crux of the charges here brought," and that "the burden of proof . . . as to all the facts and circumstances essential to the guilt of the accused including the criminal intent are upon the prosecution. On these propositions the prosecution agrees with the defense. The defense, however, fall to agree among themselves on what facts and cir¬cumstances constitute aggressive war. At least one defense counsel takes the defeatist attitude that the offense can not be defined and never can be defined until a world-state is created, but others have no difficulty in identifying the essential elements of the offense. The latter group, however, emphasize the necessity of criminal intent and declare that the defendants acted without criminal intent. The prosecution, as it has indicated elsewhere in this Summation, considers that the essential legal elements of the crime or crises in¬volved In making aggressive war are made dear by the controlling authorities. In general, a war of aggression may be viewed with Oppen-heim as "a war undertaken in defiance of existing legal rights of other states.a This statement, like the statement that a war crime in gen¬eral is "a violation of the laws and customs of war," does net draw any definite lines showing the few specifications of fact and circumstance which must be alleged in the indictment and must be proved at the trial to establish guilt of the crime or crimes involved in making aggressive war. Specifying these essential items as stated in the authoritative treaties, decisions and writers, it is observed that a war crime, includ¬ing the making of aggressive war and related offenses, if properly to be a. Oppenheim, International Law (6th ed., Lauterpacht, 1944) II, 147; see also p. 155, note 1, for the "Definition of Aggression" in the Russian Treaties of 1933.