International Criminal Law

I5
THE PROBLEM OF AN INTERNATIONAL

CRIMINAL LAW
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GEORG SCHWARZENBERGER
INTERNATIONAL lawyers—with the exception of those immunised

by the atmospheric conditions prevailing in the legal departments
of Foreign Offices—are prone to suffer from a professional disease
against which other members of the legal profession are remark-
ably immune. They appear to be highly susceptible to current
fashions in the realm of political ideology.
The reasons for this idiosyncrasy are not far to seek. The
inherent weakness of international law in an overriding system
of power politics ; an understandable temptation to hide this state
of affairs from oneself and others by means of elaborate images ;
the inflated position of doctrine among the law-determining
agencies in this field ; and a revivalist movement towards a new
naturalism which lacks so conspicuously the innocence of mind
of the early naturalists—all bear their measured share in
producing the phenomenon of the evangelist international lawyer.
When, therefore, there is a new dernier cri, such as suggestions
for the development of an international criminal law, it is
advisable not to follow uncritically in the train of the enthusiastic
protagonists of such an idea, but to pause and reflect on the
meaning and value of it all.
It may be asked whether there are no more urgent problems
than that of an international criminal law with which inter-
national lawyers could occupy their time. Much is to be said
for this view. It must not, however, be overlooked that, even
in official quarters, this movement has received a modicum of
hesitant support. Thus, by a Resolution of November 2I, 1 947
the General Assembly of the United Nations charged the Com-
mittee on Codification of International Law with the formula-
tion of the principles of international law recognised in the
,
Charter of the Nuremberg Tribunal and in the judgment of the

ibunal In the second part of this Resolution a direct link
263
264 Current Legal Problems 195o
was established between the Nuremberg principles and inter-
national criminal law. The Committee—in the end, the Inter-
national Law Commission—was asked to formulate these prin-
ciples in the context of a general codification of offences against
the peace and security of mankind or of an International
Criminal Code '. During its Third Session of 1948, the General
Assembly returned to the subject. By forty-one votes in favour,
none against, and with six abstentions, it adopted a further

Resolution. In it the conviction was expressed that in the course
of development of the international community, there will be an
increasing need of an international judicial organ for the trial
of certain crimes under international law '. The Assembly asked
the International Law Commission to study the desirability and
possibility of establishing an international judicial organ for the
trial of persons charged with genocide or other crimes over which
jurisdiction will be conferred upon that organ by international
conventions '. The Commission was further requested to pay
attention to the possibility of establishing a Criminal Chamber of
the International Court of Justice '. 1
It may also be mentioned that in September, 1948, the
Inter-Parlamentary Conference stated in the Preamble to a
Resolution on Principles of International Morality that the
Nuremberg Charter for the prosecution and punishment of the
main war criminals has endowed international penal law with
principles that are also worth codifying '.
Thus, the question of international criminal law has entered

a formative stage in which it may claim to be a current legal
problem.
I—THE SIx MEANINGS OF INTERNATIONAL CRIMINAL LAW

It would be unduly optimistic to assume that International
Criminal Law ' has now been established unequivocally as a
technical term. It is used in at least six different meanings by
those who consider international criminal law to form part of the
existing law of nations.
(a) International Criminal Law in the Meaning of the
Territorial Scope of Municipal Criminal Law. It follows from
the principle of the independence of States that, to any extent
1 See further United Nations, International Law Commission. The Charter
and judgment of the Niirnberg Tribunal, 1949, p. i i et seq.
International Criminal Law 265
to which subjects of international law are not limited by prin-
ciples of international law, they are free to determine as they
see fit the territorial scope of their municipal criminal laws. They
may limit the scope of their criminal laws to acts committed in
their own territories and territorial waters, on ships sailing under
their own flag or on aeroplanes of their own nationality. They
may, however, extend their criminal jurisdiction to acts com-
mitted by their own subjects or by foreigners abroad. In the

words of the Permanent Court of International Justice in the
Lotus Case (ig27), all or nearly all these systems of law extend
their action to offences committed outside the territory of the
State which adopts them, and they do so in ways which vary
from State to State 2 For our purposes it is unnecessary to
.
attempt to determine the exact point at which the claim of a

State to extend the applicability of its own criminal law to acts
of foreigners committed abroad amounts to a violation of the
rights of other subjects of international law. What is important
is to realise that there is a wide field in which the various systems
of municipal criminal law claim concurrent or conflicting juris-
diction.
In practice, the chaos that might result from such concurrent
and conflicting claims is reduced to manageable proportions by
,
one definite prohibitive rule of international law. In principle, 3

at least, the actual exercise of criminal jurisdiction in concrete
.
instances must take place within a State's own territory or in

places assimilated to it.'
Within these limits it is left to every system, of municipal
criminal law to determine for itself whether, and to what extent,
it applies to crimes with a foreign element, that is to say, to
crimes with a locus delicti abroad. In this respect, the situation
is analogous to that in the field of private international law.
International criminal law in this sense, a terminology widely
2 Series A, No. i o, p. 20 ; cf. also Naim Molvan v. Attorney-General for

Palestine 948] A.C. 351.
3 Exceptions may be based on special rules of international customary law,
as, for instance, in the case of jurisdiction of belligerents regarding war
crimes, of criminal jurisdiction over members of armed forces abroad in
peace and war, or on treaties, such as capitulation treaties.
Conversely, rules of international law may exclude the exercise of local
criminal jurisdiction, as in the case of foreigners enjoying diplomatic
immunity.
4 L.c. in note 2 above, p. i8.
18
accepted in nineteenth century Continental Doctrine,' belongs
not to international but to municipal law. As in the case of
rules of private international law, rules of conflict of criminal
laws may, however, be incorporated into a treaty and thus
become rules of international conventional law.'
(b) International Criminal Law in the Meaning of Inter-
nationally Prescribed Mu:nicipal Criminal Law. The term
international criminal law' is used in a second meaning when

it refers to instances in which a State is bound under international
law to visit upon acts of individuals the sanctions of its own
municipal criminal law. Obligations of this kind may arise from
treaties or from duties of States under international customary
law.
In the late Middle Ages it was customary among the princes
of Christendom to bind themselves by reciprocal treaties to
prevent and punish piracy or the spoilage of shipwreck. On the
initiative of Great Britain, in the course of the nineteenth century,
a number of bilateral and multilateral conventions were con-
cluded, by which slave-trading was assimilated to piracy. Into
the same category belong treaties such as the International
Phylloxera Convention of September i7, 1878, the International
Convention on the Traffic in Women of Full Age of October
1933, or the Convention for the Regulation of Whaling of
June 8, 1937.
To the extent to which such conventions impose a duty on
5 Already in their collisio statutorum, the Glossators and Postglossators dealt
with the substance of the problem. The best work on the historical as-
pects of international criminal law is still H. Donnedieu de Vabres,
Introduction á rrtude du Droit Pénal International, 1922. Cf. also
F. Meili, Lehrbuch des Internationalen Straf rechts und Strafprozessrechts,
1910, p. 25 et seq., and J. Kohier, Internationales Strafrecht, 1917, p. 19
et seq.
For nineteenth century literature, cf. L. von Bar, Das Internationale
Privat-und Strafrecht, 1892 ; W. von Rohland, Das Internationale Straf-
recht, 1877 ; F. von Martens, Vakerrecht, 1883, Vol. 2, p. 358 et seq.;
J. B. Moore, Report on Extraterritorial Crime and the Cutting Case,
1887.
Among more recent works in this field, cf. M. Travers, Le Droit Pénal
International, 1920-1922 (5 vols.), F. Donnedieu de Vabres, Les Principes
Moderne: du Droit Pénal International, 1928, and the Harvard Research
Draft on jurisdiction with Respect to Crime, 29 A.J.I.L. 1935, Special
Supplement, p. 435 et seq., especially the exhaustive bibliography, p. 447
et seq.
6 See, for instance, the Treaty on International Penal Law between Argen-
tina, Bolivia, Paraguay, Peru and Uruguay of January 23, 1889 (18
Martens, Nouveau Recueil Général des Traités (2me sér.), p. 432.
International Criminal Lazer 267
States to enact municipal criminal legislation or to punish certain
acts committed by their subjects or within their territorial jurisdic-
tion, such conventions may be said to prescribe municipal criminal
law. If, however, States should fail to live up to their treaty
obligations, they themselves do not commit any international
crime', but are merely responsible for breach of their treaty
obligations.
Similarly, international customary law may prescribe the

existence of rules of municipal criminal law. Some of the crimes
which, in his Commentaries on the Laws of England,' Blackstone
described as offences against the law of nations are relevant
instances. Actually, this terminology is of a much earlier date.
In a Manifest of the English Parliament against the United
Provinces of July 31, 1652, an attack on one of the English
ambassadors in The Hague was branded as a crime contra
omnium Gentium, immo ipsius humanitatis,jura'. 8
Piracy is listed by Blackstone as the first of these offences. It
will be more fully discussed under a subsequent heading.' The
two other offences against the law of nations, which Blackstone
enumerated, are violation of safe-conducts and infringement of
the rights of ambassadors. These offences are not, however,
crimes under international law. The law of nations merely bids
States to do everything in their power to ensure the observance
of rules of international law such as the inviolability of
ambassadors, the immunity of subjects of enemy States under
safe-conducts or the treatment of foreigners in accordance with
the minimum standards of international law. In the case of
attacks on foreign envoys or on nationals of other States, a State
has fulfilkd its own duties under international law when it
provides for adequate protection of such foreigners by its police.
If, nevertheless, outrages occur, it must do everything in its power
to bring the guilty, whether civil servants or private citizens, to
justice. It cannot plead the insufficiency of its own criminal law
or the inadequacy of its administration of criminal justice. In
this and other respects, international law prescribes certain
minimum standards." Yet again, when a State fails to live up to
7 Book 4, Chap. 5. Cf. also below under i (d).
8 J. de Dumont, Corps Universel Diplotnatique du Droit des Gens, Vol. 6,
Part 2, p. 28.
9 See below under i (c).
10 See further the present writer's International Law, Vol. 1, 5949, p. 236
et seq.
268 Current Legal Problems 1950
these standards, it does not commit an international crime. It
becomes responsible for its own violation of rules of international
customary law, that is to say, it has committed an international
tort. Thus, these offences of individuals against the law of
nations ' are not crimes under international law, but offences
against rules of internationally postulated municipal criminal
law.
In the case of, for instance, municipal statutes of a penal

character for the protection of the status of a country as a
neutral power international law does not even require the protec-
tion of municipal criminal law. On their own, for their own
convenience and in order to demonstrate their international
bona fides, some States have enacted such statutes as the British
Foreign Enlistment Acts of 1819 and 1870. It is left to each
State to secure effectively the fulfilment of its own obligations
under international law.
The situation is similar when, in the interest of good neigh-
bourly and peaceful relations with other powers, States enact
criminal legislation against acts likely to discredit the good repute
of sovereigns and other dignitaries of foreign States, because such
acts may endanger amicable political and commercial relations
with other States." At the most, such municipal criminal law
is required by international comity as distinct from international
law.
Offences against the law of nations in the meaning of rules
of municipal criminal law which are postulated by international
law or comity, do not constitute evidence for the existence of an
international criminal law. States which fail to enact such
statutes may, however, be liable for breach of treaty or for the
commission of an international tort.
(c) International Criminal Law in the Meaning of Inter-
nationally Authorised Municipal Criminal Law. This is the
proper place to discuss the examples which, so aften, are adduced
as evidence par excellence of the existence of international
'criminal law : piracy jure gentium and war crimes.
(i) Piracy jure gentium. On the basis of a multitude of
treaties, two different principles have gradually grown into
principles of international customary law.
11 See, for instance, King v. Gordon (1787-22 State Trials, 213) ; King v.
Vint (1(799-27 ibid., 627 ; King V. Peltier ( I 803-28 How. State
Trials, 530), and Respublica v. De Longchamp (1784) 1 Dal. 3.
The first is that every State is under an international obliga-
tion to suppress piracy within its own territorial jurisdiction. If
a State should fail to do so or should associate itself persistently
with piratical ventures, it would certainly violate this rule. It
is liable for the commission of an international tort and, in an
extreme case, may even forfeit its own international personality
and be treated as an international outlaw." To the extent to
which, for the purpose of countering piracy, a State requires of

necessity the assistance of its municipal criminal law, such law
may be considered to be internationally prescribed.
In addition, there is the second rule which is summarised by
the term piracy jure gentium. It means that, in the interest of
the freedom of the seas, every State is authorised to assume juris-
diction on the high seas over pirate ships. If it does so it may
mete out to pirates any condign punishment, including the death
penalty. Yet the recognition of acts of piracy as constituting
crimes, and the trial and punishment of the criminals, are left
to the municipal law of each country '. 13 The grant to States,
under international law, of jurisdiction over pirates is an apparent
exception to the principle of the freedom of the seas, according to
which, in time of peace, States exercise on the high seas only
jurisdiction over ships sailing under their own flag. The excep-
tion is, however, only apparent. Pirate ships are not under the
protection of any subject of international law, but are res nullius,
floating chattels which are not allocated to any subject of inter-
national law.
(ii) War Crimes. It is the purpose of the rules of warfare,
as developed by the laws and customs -of warfare and by inter-
national conventions, to draw the dividing line between legal
and illegal forms of warfare. Every belligerent State is under an
international duty to do everything in its power to ensure respect
for the rules of warfare on the part of its armed forces and to
punish such infractions as may occur. To this extent the law of
war crimes embodies internationally prescribed rules of municipal
criminal law. If members of armed forces observe these rules
and happen to fall into the enemy's hands, they are only liable
12 See further the present writer's International Law and Totalitarian
Lawlessness, 1 943, P. 82 et seq.
13 In re Piracy jure Gentium [ 1 934] A.C. 586, at p. 589. See further the
Harvard Research Draft on Piracy (26 A.J.I.L., 3932, Spec. Suppl.,
p. 739 et seq.).
to detention as prisoners of war, but are immune from personal
responsibility for hostile acts committed by them prior to cap-
tivity. If they have transgressed these rules, they are outside the
protection granted by international law to ordinary prisoners of
war. On the basis, however, of the general principles of law
recognized by civilised nations, rules of international customary
law have developed which limit the absolute discretion of enemy
States with regard to war criminals. The enemy State may apply

any punishment, including the death penalty, to such individuals.
It must, nevertheless, grant them some kind of trial, however
summary. Only in this way is it possible to establish whether
a breach of the rules of warfare has been committed by the
prisoner and, therefore, whether he falls under this extraordinary
jurisdiction. Belligerents usually comply with this minimum
requirement by providing for simplified proceedings in their own
military courts and under their own municipal laws." To con-
sider the objects of such an internationally authorised extra-
ordinary criminal procedure, under municipal law as subjects of
international duties ' 15 or to regard war crimes—or espionage-
as evidence of the existence of an international criminal law,
requires a remarkable gift of abstraction from reality.
The rules of international law both on piracy jure gentium
and war crimes constitute prescriptions to States to suppress
piracy within their own jurisdiction and to exercise proper control
over their own armed forces, and an authorisation to other States
to assume an extraordinary criminal jurisdiction under their own
municipal law in the cases of piracy jure gentium and of war
crimes committed prior to capture by the enemy.
(d) International Criminal Law in the Meaning of Municipal
Criminal Law Common to Civilised Nations. In the Constitution
of the United States the term offences against the. law of
nations ' is used." It covers acts which international law
prescribes, or authorises, to be treated as criminal under the
municipal law of the United States 17 and crimes which, owing
to their general noxious character, are punishable in most
14 See further S. Glueck, War Criminals, .Their Prosecution and Punish-
ment, 1944, and /.c. above in nate 12, p. 57 et seq.
15 H. Lauterpacht, The Subjects af the Law of Nations, 64 L.Q.R. (194 8 ),
p. r Ic, and Oppenheim's International Law (ed. by H. Lauterpacht),
Vol. 1, 5948, p. 323, note 1.
ls Article 1, section 8, cl. 50.
17 Ex parte Quirin et Al. (5942) 317 U.S. I.
civilised countries. 18 Again,. such crimes can be described only
in the loosest sense as offences against the law of nations. They
fall into one of two categories.
If a State should fail to punish common offences against life,
liberty or property, its criminal law is below the minimum
standards of international law. In this case the home State of
foreigners who suffer from such a state of affairs . may hold such
a State responsible for the commission of an international tori.

Within these limits, a civilised ' type of municipal criminal law
is internationally prescribed."
There is a second type of offence, such as the forgery of
foreign coins or banknotes. Considerations of international
comity, and consciousness of the reciprocity of favours in inter-
State relations, may make it advisable for a State to make such
acts punishable under its municipal criminal law. International
customary law does not, however, impose any obligation on
States to take such action. Conversely, nothing prevents States
from voluntarily limiting their freedom of action by the con-
clusion of conventions to this effect. This was done, for instance,
by the parties to the Convention for the Suppression of Counter-
feiting Currency of May 1, 1929.
On closer examination, this type of offence against the law
of nations dissolves into one of two categories. They either belong
to the category of municipal criminal law which is prescribed
by international law or they are principles of municipal criminal
law which civilised States have de facto in common or consider
it opportune to assimilate to a common standard by means of
international conventions or by parallel municipal legislation.
(e) International Criminal Law in the Meaning of Inter-
national Co-operation in the Administration of Municipal
Criminal justice. Those who use the term international criminal
law in the first-mentioned meaning of the territorial scope of
international criminal law, usually deal under this heading, too,
with extradition treaties and other conventions by which States
assist each other in the administration of criminal justice.
The raison d'être of such treaties is the territorial limitation
of national sovereignty. Without international co-operation
between States criminals could defy the municipal criminal laws
18 United States v. Arjona (1887) 120 U.S. 479.
19 See above under (b).
of most States with relative impunity. Thus, the verg purpose

of this type of treaty is to strengthen and lengthen, on a basis
of reciprocity, the arms of national justice. Some States do not
decide ex officio whether a prisoner should or should not be
extradited, but leave it to him to raise in a special judicial
proceeding any objection he may wish to make against being
extradited. Where, as is the case in Great Britain, municipal
law permits a prisoner to take such an active part in extradition

proceedings, he becomes the means by which it can be con-
veniently determined whether the demand of another State keeps
within the reciprocal framework of an extradition treaty, and
the limits within which the legislature has permitted the executive
to hand over accused or convicted persons to the authorities of
another State. It would, however, be a travesty of the real
situation to imagine that States intended an extradition treaty
to be the Magna Carta of the criminal profession, or to be
based on any principles of international law which prisoners
are entitled to invoke in their own right' ." Even in 1878, in
the Report of the Royal Commission on Extradition, the typical
intentions of parties to extradition treaties had been described as
being, firstly, the common interest of States in the punishment of
offences which threaten the wellbeing of society and, secondly,
the interest of the State into whose territory the criminal had
come that he should not remain at large therein.
Little haren is done if such mutual limitations of the exercise
of State jurisdiction by means of treaties are classified as a body
of international criminal law. It is necessary, however, to
remember that extradition treaties are not concerned with the
substance of municipal criminal law, but with the administrative
question of foiling the attempt of an accused or convicted person
to obstruct by his evasive action the due course of municipal
criminal justice.
(f) International Criminal Lazen in the Material Sense of the
Word. It remains to explore whether, beyond municipal criminal
law which is prescribed or authorised by international law, inter-
national criminal law in a sense comparable to municipal
criminal law exists. In any social group in which a criminal law
exists the highest values and interests are protected by rules of
criminal law. International crimes would, therefore, be in all
20 H. Lauterpacht, /.c. in note 15 above, p. zoo.
likelihood only acts of subjects or objects of international law

which strike at the verg roots of international society." Such
rules would have to be of a prohibitive character and would have
to be strengthened by punitive sanctions of their own.
The simple issue is whether international law knows of such
rules which alone would constitute an international criminal law
in the true meaning of the word.
The diametrically opposite views which are held on this

subject in the doctrine of international law can be conveniently
illustrated by reference to the mutations through which, since its
fifth edition, Oppenheim's International Law has gone.
In the editions of his treatise for which Oppenheim, Rox-
burgh and Sir Arnold McNair were responsible, a sharp distinc-
tion was drawn between international delinquencies and inter-
national crimes, the former being recognised in international
customary law and the latter being incompatible with the
structure of the law of nations : An international delinquency
is not a crime, because the delinquent State, as a Sovereign,
cannot be punished, although compulsion may be exercised to
procure a reparation of the wrong done'. Furthermore, the
nature of the Law of Nations as a law between, not above,
Sovereign States excludes the possibility of punishing a State for
an international delinquency and of considering the latter in the
light of a crime. The only legal consequences of an inter-
national delinquency that are possible under existing circum-
stances are such as create a reparation of the moral and material
wrong done '.22
In the fifth edition of Oppenheim's International Law, the
first edited by Professor Lauterpacht, all of the first passage and
the first sentence of the second passage were deleted. The second
sentence was changed to read as follows : The principal legal
consequences of an international delinquency are reparation of
the moral and material wrong done'. In a footnote the learned
editor expressed his doubt whether the views of Oppenheim and
21Similarly, A. N. Trainin, Hitlerite Responsibility under Criminal Law,
1945, p. 37, and Qu. *right, The Law of the Nuremberg Trial (41
A.J.I.L., 1947, p. 56).
22 Oppenheim's International Laz.v, Vol. 1, 1905, pp. 201 and 204.
In the third and fourth editions, the first of the two quoted passages
was slightly modified. After punished ', the following words were
inserted : in the same way as a delinquent individual ' (Vol. 1, 1920,
p. 246 ; ibid., 1928, p. 291).
the previous editors accorded either with principle or practice."
By the sixth edition these doubts were resolved, and a new passage
emerged : The comprehensive notion of an international
delinquency ranges from ordinary breaches of treaty obligations,
involving no more than pecuniary compensation, to violations of
international law amounting to a criminal act in the generally
accepted meaning of the term '." The seventh edition does not
contain any further evolution of the position taken by Professor

Lauterpacht in the previous edition of Oppenheim."
It would be too simple an explanation of these changes to
hold that they were necessarily due to new developments in
international law since the time when Sir Arnold McNair edited
Oppenheim's treatise. As becomes evident even from the pub-
lished extracts of a memorandum written in 1944 by Sir Arnold
for the United Nations War Crimes Commission, he then still
adhered to the view that a State cannot be the subject of criminal
liability '."
Thus Lauterpacht v. Oppenheim and Sir Arnold McNair
sums up conveniently the real problem of international criminal
law. Used in any other sense this term is rrkerely a loose and
misleading label for topics which comprise anything but inter-
national criminal law, that is to say, rules germane to inter-
national law with two essential characteristics. Such rules must
be of a prohibitive character and be endowed with specifically
penal sanctions. Is there any evidence for the existence of such
rules of international criminal law ?
II-THE EVIDENCE FOR THE EXISTENCE OF AN INTERNATIONAL
CRIMINAL LAW
As in other fields of international law, a detached approach
to the subject has been made difficult by apodictic and
contradictory a priori assertions. It was held, for instance, by
Politis that as long as international law was a law between
sovereign States it could not have a proper penal system. 27
23 Oppenheim's International Law, Vol. 1, 1937, pp. 275 and 285.
24 Ibid., Vol. 1, 1947, P. 3 0 7.
25 Ibid., Vol. 1, 3948, p. 307.
26 United Nations War Crimes Commission , History of the United Nations
War Crimes Commission and the Development of the Laws of War,
1948, p. 181.
27 Les Nouvelles Tendances du Droit International, 1927, p. 95. Cf. also
Sir John Fischer Williams, Same Chapters on Current International Law
and the League of Nations, 1929, p. 232 et seq.
International Criminal Law 2 75
Similarly, in his Aspects of Modern International Law, published

shortly before the outbreak of the Second World War, Sir John
Fischer Williams maintained that in so far as States are the
subjects of international law they cannot be the subjects of
criminal penalties for misdoing. . . . In fact the conditions of
international life being what they are, it is fair to say that
punishment or attempted punishment of a State is itself an
offence against international order '. 28

To this, Professor Lauterpacht retorts,: It is impossible to
admit that individuals, by grouping themselves into States and
thus increasing immeasurably their potentialities for evil, can
confer upon themselves a degree of immunity from criminal
liability and its consequences which they do not enjoy when
acting in isolation '."
Actually, there is no preconceived reason why international
law should, or should not, recognise the existence of international
crimes. If, on the basis of rules of international customary law
or by means of treaties, States have limited their independence
by acknowledging the existence of acts of their own or of
individuals which other States may treat as international crimes,
then such a state of affairs is compatible with their sovereignty ;
for this only exists within the limits drawn at any time by inter-
national law. Similarly, the group character of the subjects of
international law does not decisively militate against the pos-
sibility of an international criminal law.. Criminal liability of
corporations under municipal law is not an entirely unknown
phenomenon. Finally, the question whether the individual must
be regarded as a subject or object of international law is neither
here nor there. It is probably correct to hold that, so far, the
evidence adduced in favour of the individual as an actual subject
of international law is rather slender. Yet it would be an
unwarranted assumption to hold that only if the international
personality of the individual were recognised could the - individual
be treated as the object of proceedings of an international
criminal character. It is possible to imagine a situation in which
States mutually agreed on penetrating the monad of the
sovereign State and to institute criminal proceedings against such
28 Aspects of Modern International Law, 5939, pp. 84 and 88.
29 L.c. in notes 24 and 25, p. 322. In substance, this passage was already
contained in a footnote of the previous edition (i.c. in note 23 above. .
p. 286).
duty-objects of international law. The criminal liability of claves
in Roman law and the criminal proceedings against anima's in
medieval penal law offer possible analogies.
Whether any subjects or objects of international law are the
addressees of rules of international criminal law depends on a
very simple criterion : the evidente produced by those who assert
the existence of an international criminal law. It is advisable to
treat first the position under international customary law and

only then to proceed to the examination of relevant treaties.
(a) International Criminal Law as Part of International
Customary Law. So-called offences against the law of nations,
piracy jure gentium and war crimes, can be eliminated from the
outset. In these cases international law limits itself to prescribe
or to authorise the assumption of criminal jurisdiction by States
under their own municipal law." If it should be argued that,
owing to the primitive state of international law, such a delega-
tion of functions to States does not militate against the description
of these rules as being in substance principles of international
criminal law, then this is only a circuitous way of saying that
international criminal law in any proper sense does not exist.
In the absence of any more direct evidence, it is necessary to
explore the attitude of elements of law-determining agencies in
the field to the problem of international criminal law. In
accordance with their proper hierarchic order," the decisions
of international courts and tribunals and the practice of individual
States require to be examined. As so often happens, the doctrine
of international law, self-contradictory as it is, is of relatively
little assistante in determining the issue.
(i) International Courts and Tribunals. There is not a single
instance in which international judicial institutions, deciding on
the basis of international customary law, have classified an act
of State as an international crime. It is not good enough to
dispose of this rather relevant fact by reference to the voluntary
character of international arbitration and adjudication. Sufficient
cases have been submitted to international courts and tribunals
in which, if they had felt so inclined, such international judicial
institutions would have been free to describe violations of inter-
30 See above under i (b) and (c).

31 See further /.c. in note Ic) above, p. 8 et seq.
national customary law as international crimes instead of treating
them as international torts or delicts.
In some cases the award of damages might be considered to
be of punitive character if the tribunals concerned had not taken
pains to point out that such damages had been awarded as moral
or immaterial damages." Furthermore, a good many of these
awards of damages, especially in cases involving death, contain
necessarily a considerable discretionary element. To imply that

this is of a primarily punitive character is a petitio principii. In
cases in which restitutio in integrum is impossible, such damages
still partake of the character of reparation as distinct from that
of a penalty. Against such rather subtle inferences stand express
dicta of international tribunals in which, after full consideration,
claims for punitive damages were outright rejected. These
awards derive their especial significance from the fact that, in the
opinion of the claimants, limitations of the arbitration agree-
ment' 33 would not have prevented the tribunal concerned from
awarding punitive damages.
In the Lusitania Cases (1923) the German-United States
Mixed Claims Commission drew attention to the fact that counsel
for the United States had failed to point us to any money award
by an international arbitral tribunal where exemplary, punitive,
or vindictive damages have been assessed against one sovereign
nation in favour of another presenting a claim on behalf of its
nation als '." In spite of the fact that, after the sinking of the
Lusitania, this act had been labelled in Allied diplomatic notes
and public statements with all the epithets so dear to the
protagonists of international criminal law—ranging from the
description of this illegal measure of unrestricted submarine war-
fare as piracy to its denunciation as an international crime "—
it was held by the Commission A sufficient reason why such
damages cannot be awarded by this Commission is that it is
32 Cf. M. Whiteman, Damages in International Law, Vol. 1, 1937, p. 717.
In the considered view of Miss Whiteman, as expressed in the con-
cluding third volume (1943) of her exemplary study, there is an apparent
desire on the part of international tribunals to avoid punitive or ex-
emplary damages. The assessment of damages is a civil and not a penal
act ' (p. 1874).
33 H. Lauterpacht /.c. in note 25 above, p. 320.
34 18 A.J.I.L. (1924), p. 361, at p. 37o.
35 See, for instance, the views expressed by President Wilson in his Address
to the Joint Session of the two Houses of Congress of April 2, 1917

(II A.J.I.L. 1917, Supplement, pp. 144 and 15o).
without the power to make such awards under the terms of its
charter—the Treaty of Berlin '."
In the Naulilaa Case (1930) the Special Arbitral Tribunal
between Germany and Portugal disallowed the Portuguese claim
for punitive damages for the illegal acts committed by Germany
against Portugal while the latter was still a neutral power. In the
opinion of the Tribunal it had neither been the intention of the
parties to the compromis to endow the arbitrators with any

repressive power' nor the intention of the Peace Treaty of
Versailles to give such a wide meaning to the Article in question. 37
If any further evidence were required it is furnished by the
Corfu Channel Case (1949). In the Security Council (Feb-
ruary 18, 1947), Sir Alexander Cadogan described Albania's
clandestine, mining of the Corfu. Channel as an international
crime '. The Australian member of the Security Council
characterised this act as an international crime of the most
serious sort ' and as amounting in substance to something verg
much of the character of mass murder ' (February 24, 1947).
The French and United States representatives called it an
offence against humanity
On March 25, 1947, seven members of the Security Council
(Australia, Belgium, Brazil, China, Colombia, France and the
United States) voted in favour of a British draft resolution.
According to this the laying of mines in peace-time without
notification was held to be unjustified and an offence against
humanity'. Owing to the exercise of his veto by the Sovjet
representative this resolution did not become operative.
In the preceding diplomatic correspondence between Great
Britain and Albania, the British Government had described the
incidents in the Corfu Channel as deliberate and outrageous '
breaches of international law and maritime custom. In its
note of December g, 1946, the British Government emphasised
the general character of the issue. In its opinion it did not
only affect the two countries directly concerned, but was a matter
of general safety of life at sea Albania's action was a
criminal disregard for the safety of innocent seamen of any
nationality lawfully using an international highway
36 L.C.in note 34 above, p. 371.
37 United Nations. Reports of International Arbitral Awards, Vol. 2, 1 949,
pp. 1076-1077.
When, however, these alleged crimes or offences against

humanity were subjected to legal scrutiny, the claimant govern-
ment described the action of the. Albanian Government as a
deliberately hostile act ', which called for reparation and an
assurance from the Albanian Government that there should be
no repetition of this unlawful action '. In the United Kingdom
Memorial submitted to the International Court of Justice the
Albanian action was classified as an international delinquency'

and, in the special circumstances of the case, as an offence
against humanity which most seriously aggravates the breach
of international law and the international delinquency com-
mitted by that State'.
What was to be the liability which, in the view of the
claimant State, attached to such an international delinquency or
offence against humanity ? According to the British Memorial,
a State found to be delinquent under either (a) or (b) is liable
under international law to make reparation for the damage
resulting to others from the delinquency'. In so far as the
measure of reparafion or compensation was concernel, the United
Kingdom accepted expressly the principles laid down by the
Permanent Court of International Justice in the case of the
Factory at Chorzów (1928), that is to say, the principles which
apply in cases of breach of treaties and of international torts.
The decision of the International Court of Justice in the
Corfu Channel Case (Merits—ig4g) followed the same lines. It
affirmed Albanian responsibility under international law for the
mining of the British men-of-war and for the damage and locs
of human life which resulted from the explosion of the mines.
The crime against humanity' was treated like any other inter-
national tort upon which, in the past, international courts and
tribunals had adjudicated. 38
The fact is that not in a single case has any international
court or tribunal openly avowed that a State has committed a
crime under international customary law as distinct from a
breach of treaty or from the commission of an international
tort, or visited such an act with at least the sanction of frankly
admitted punitive damages. With the exception of international
war crime trials which require separate discussion," the practice
38 I.C.J. Reports, 1949, p. 23. Cf. also I.C.J. Pleadings, The Corfu
Channel Case, Vol. 1, 1949.
39 See below under 4.
2 8o Current Legal Problems 195o
of international courts and tribunals cannot be adduced as
evidence of the recognition in international customary law of
anything even faintly resembling the phenomenon of inter-
national crimes or of an international criminal law stricto sensu.
(ii) British State Practice. In the present state of research
into the practice of individual States it would be presumptuous
for any one to pretend that he is able to speak of State practice
as such. All that will be attempted here is to deal with some

relevant instances from British practice. Especially in the nine-
teenth century, British State practice has shown in unmistakable
language—and action—its concern with behaviour of States
which public opinion in Great Britain considered to be out-
rageous, if not criminal.
In 1833 Palmerston was roused to action by a Brazilian law
of 1831 and a decree of 1832 by which all negroes, imported
or attempted to be imported into Brazil for the purposes of the
slave trade, were to be re-exported to Africa. There was good
reason to fear that such slaves would be killed by the slavers on
the return journey or by African tribes if those slaves were ever
to reach their destination. The British Foreign Secretary, there-
fore, maintained that, irrespective of Brazilian treaty obligations
which made such legislation illegal, on the ground of humanity
alone His Majesty's Government feel that they would be justified
in pressing this subject upon the consideration of the Brazilian
Government '." All that Palmerston asked for was a repeal of
the obnoxious Brazilian enactments.
Ten years later Stratford Canning protested to the Porte
against the revival of the practice of the trial and execution of
apostates from Islam. In the particular case in question a Greek
youth who had been originally a Christian, had been executed.
Canning demanded explanations and an unqualified assurance
that in future the recurrence of such unwise and odious acts '
should be precluded."
At the Peace Conference of 1856, Clarendon admitted the
principle of non-intervention in the internal affairs of other
States, but affirmed that there were cases where the exception to
40 Palmerston to Fox (Rio de Janeiro), June 5, 1833 (22 British and Foreign
State Papers ( 18 33 -18 34), P. 74).
41 Letter to M. Pisani (Dragoman), Constantinople, December 16, 1843 (32
(1843-1844) ibid. p. 914). Cf. also Aberdeen's Dispatches to Canning
,
of January 16, 5844 (ibid., p. 915) and of March 19, 1844 (ibid., p. 924).
this rule became equally the right and duty of foreign powers.
The particular case before the Conference was the misrule in
Naples which was lending fervour to the revolutionary nationalist
and democratic movement. Clarendon asked the Conference to
demand from the Government of The Two Sicilies an improve-
ment in its system of government and an amnesty in favour of
those condemned or detained without judgment for political
offences. 42

The atrocities perpetrated a few years later against the
Christian population in Syria led to collective action by the
Powers, based on a convention with the Forte for the pacification
of Syria." The Ottoman officials and Druses responsible for
these pogroms were tried before a tribunal established by the
Porte at the request of the European Powers, and a commission,
composed of all the Treaty Powers, supervised the trials."
With the passive assistance of the Chinese Government, the
Boxer Movement committed crimes which shocked public
opinion abroad. The German minister was murdered. The
German Legation was attacked and kept in a state of siege. The
Chancellor of the Japanese Legation was murdered. Foreign
civilians were killed and tortured, and foreign cemeteries were
desecrated. These deeds led to the intervention of the European
Powers, the United States and Japan. In their joint nate of
December 24, 1900, the Powers listed these crimes unprece-
dented in human history, crimes against the law of nations and
against civilisation . . . committed under peculiarly odious
circumstances ' and demanded expiation and guarantees against
their repetition. China accepted her responsibility and, by way
of reparation, agreed to the dispatch to Berlin of an extraordinary
mission, headed by an imperial prince, to express regret ; the
creation of a monument on the place where the murder of the
German minister had been committed, with an inscription
expressing the Emperor's regret for the murder ; the severest
punishment of the persons listed by the Powers and repeated in
an imperial decree ; the suspension for five years of official
42 Protocol No. 22 of the Peace Conference of Paris, April 8, 1856 (46
(1855-1856) ibid., p. 127).
43 Convention of September 5, 186o (50 (1859-186o) p. 6).
44 Protocol of the 2 I st Meeting of the Conference between the Representa-
tives of the five European Powers and the Ottoman Porte, January 29,
1861 (51 (1860-1860, p. 414).
19
examinations in all towns where foreigners had been ill-treated or
massacred ; the erection of monuments in the foreign cemeteries
which had been defiled ; the right of each Power to maintain
a permanent guard over its legation and to put the legation
quarter in a defensible position, Chinese being prohibited to
reside in such quarters and, finally, equitable indemnities to all
the Powers. 45
In other cases, international disapprobation of reprehensible

acts of States has taken forms other than those of diplomatic
remonstrance or of intervention. Refusal of recognition and the
rupture of diplomatic relations offered means which, in the eyes
of British Statesmen, were a suitable reply to outrageous
behaviour on the part of foreign powers. 46
What are the essential features of this practice ?
First, it appears that States are not necessarily indifferent to
acts which are incompatible with the most elementary dictates of
humanity and civilisation.
Secondly, in defence of such values, States do not appear to
appeal to any alleged international criminal law.
Thirdly, they do not appear to be aware of the existence of
any specific international criminal procedure, but apply general
devices which they use equally for the defence of their own rights
and interests. In doing so without distinction between rights
accruing to them from breach of treaty, from the commission of
an international tors or from an international crime', they
acknowledge the fact that international customary law has not
yet led to that specialisation which permits a distinction to be
drawn between international civil ' and criminal' law. The
degree of reprobation is not expressed by reference to rules of
international law of a special character, but in the strength
of the diplomatic language used and in the severity of otherwise
unwarranted interference with rights sacrosanct in time of peace :
the independence and territorial integrity of States.
Thus, the analysis of two of the most important elements of
law-determining agencies does not appear to offer any evidence
for the existence of either the concept of international crime or
for rules of a specifically penal character in the body of inter-
national customary law. The position is still, as it was summed
45 United States, Foreign Relations, 590o, p. 244, and 5905, App., p. 306.
46 See further this Annual, Vol. I (5948), p. 559 et seq.
up by the Committee•on the Permanent Court of International
Justice of the First Assembly of the League of Nations in 1920
There is not yet any international penal law recognised by all
nations '."
(b) International Criminal Law as Part of International
Treaty Law. In their mutual relations States are free to develop
international customary law. Nothing prevents them from
establishing on a treaty basis new branches of international law

with principles and standards of their own." If they desire to
do so they may evolve rules of ars international criminal law
which apply to themselves, to any of their own organs or to any
individual under their jurisdiction. The only question which
arises de lege lata,, is whether they have actually done so.
Piracy by treaty, the criminal jurisdiction of international
institutions, the Convention against Terrorism of May, 1937,
and pertinent developments of international law within the frame-
work of the United Nations call for examination.
(i) Piracy by Treaty. An early instance of the assimilation
to piracy of acts of foreigners which, otherwise, would have been
beyond the cognisance of municipal criminal law, and whose uni-
lateral punishment might have led to international complications,
is offered by the Jay Treaty between Great Britain and the United
States of November 19, 1794. By its Article 21, Great Britain
was permitted to treat as pirates citizens of the United States
who had taken commissions as French privateers.
The most celebrated case, however, is the gradual assimilation
by means of bilateral and multilateral treaties of slave trading
to piracy jure gentiurrz, a policy steadfastly pursued by Great
Britain since the beginring of the nineteenth century as part of
her campaign to outlaw this peculiar form of free enterprise."
The transformation in this case of a moral principle into a
rule of international treaty law is of more than historical signifi-
cance. The respect shown by British statesmen and courts 5° ta
47 League of Nations, Records of the First Assembly. Meetings of the
Cormnittees, Vol. 1, 1920, p. 589.
Cf. also the penetrating remarks on this subject in H. Kelsen, Law
and Peace, 1942, p. 103 et seq.
48 See further the present writer' The Province and Standards of Inter-
national Economic Law (2 International Law Quarterly, 1948, p. 406
et seq.).
4 9 , See further /.c. in note 46 above,,pp. 157-1458.
5 ° Cf. The Le Louis (1817) 2 Dodson 210. See also The Antelope (1825)
50 Wheat. 66.
the rights of other States under international law compares rather

favourably with the impetuosity of contemporary reformers.
They apparently think that the apodictic statement of cherished
views in the form of alleged rules of existing international law
will achieve more than to obscure the actual state of international
law and to cast doubts on the scientific integrity of the doctrine
of international law.
In a Declaration of February 8, 1815, the Congress of Vienna

had denounced the Slave Trade as being repugnant to the
principles of humanity and universal morality '. The Conference
of Aix-la-Chapelle of 1818 solemnly declared that the negro
slave trade was an odious crime, the disgrace of civilised nations,
and that it was a matter of urgency to put an end for ever to this
scourge which had so long desolated Africa, degraded Europe
and afflicted humanity '. The plenipotentiaries of the five
European Powers reiterated their condemnation of these criminal
operations ' in a Resolution of the Congress of Verona of
November 28, 1822.
Neither statesmen nor writers, however, dreamt of asserting
that a change in the existing position under international
customary law had been brought about by declarations of this
kind. They realised that such modifications of international law
as were required depended on the free consent of every sovereign
State concerned. Great Britain bought the limitation, and
subsequent total prohibition, of the Spanish slave trade at the
price of considerable financial sacrifices. In the same way she
obtained the Portuguese renunciation of slave-trading north of
the Equator. In some of the bilateral treaties concluded by Great
Britain the African slave trade was stigmatised as piracy. In
others Great Britain was content to secure the co-operation of
contracting parties without such formal denunciation. When
treaties in this field provided for adjudication of suspect vessels
the mixed tribunals were authorised only to adjudicate on the
ships involved and, in appropriate cases, to set free the slaves
found in such vessels. The tribunals did not exercise any criminal
jurisdiction over the owners and crews of these ships. This task
was left to the municipal courts of the flag-States concemed.
Under the multilateral Treaty of December 20, 1841, by which
the slave trade was declared to be piracy, detained vessels and
their crews were handed over to the flag-States to be dealt with
by them in accordance with the municipal criminal laws of the
contracting parties.
Even this justly celebrated venture in international legislation
by means of bilateral and multilateral treaties did not, however,
lead to the creation of international crimes in the strict sense of
the word. All that the Powers attempted to do was to establish
an exceptional jurisdiction for the visit and search of suspected
ships ; in the case of some of the bilateral treaties, to decide on an

international level on the character of the vessels as slave traders,
and to apply to slave-traders relatively uniform rules of municipal
criminal law, prescribed in some cases by international treaties.
In the light of present-day over-statements in which actions of
foreign governments are too readily decried as crimes against
humanity ', the most remarkable feature of this collective effort
made a century ago is the clearheadedness and intellectual
honesty with which these reformers went about their task. They
were aware of their limitations under international law and used
persistently the one straightforward way of overcoming these
obstacles. At a time when the British Government, and its
Minister in Washington, were doing everything in their power
to induce the United States to conclude a treaty with Great
Britain as a further link in the chain of Britain's bilateral treaties
for the suppression of the African slave trade, Stratford Canning
wrote to his namesake in the Foreign Office : There is no deny-
ing that the general concurrence of Maritime Powers is necessary
to constitute slave trade piracy as part of international law, but
it is also evident that before that general consent be obtained
it is competent to any two Powers to carry the principle by
mutual agreement into practice, as far as they are themselves
concerned, and to apply it reciprocally with all its consequences
to their respective subjects '. 51 Even after the conclusion of the
multilateral Treaty of 1841, Great Britain did not ascribe to it
any mythical legislative effect regarding non-signatories. In
relation, for instance, to the Ottoman Porte, it was bluntly
admitted that, in the absence of a treaty with the Porte it
would be illegal to issue orders to British naval farces in the
51 Letter of April 22, 1823 (I I British and Foreign State Papers (1823—
1824), P. 409, at p. 410).
Black Sea to detain Turkish vessels conveying slaves from Georgiá.

and Circasia '."
It was the salutary effect of' this law-abiding practice that
States were' induced to set an example by raising their own
standards of conduct in concord with like-minded States or in
co-operation with States which, for other reasons; considered it
worth while to live up to the standards expected by the ‘world's
leading Power. Although the anti-gavery treaties failed to make

any notable contribution to the development of international
criminal law, they are an object lesson to contemporary
enthusiasts—and professionals—in this particular field.
The attempts made in the inter-war period to develop piracy
by way of analogy bore littIe fruit. The effort to assitnilate
illegal submarine warfare to piracy proved to be abortive.
Admittedly the reasons for this failure were unconnected with
Article 3 of the unratified Washingtón Treaty, relating to the use
of submarines and noxious gases in warfare, of February 6, 1922,.
Yet even the draft, as it stood, merely provided for the optional
trial of any such as if ' pirate before the civil or military
authorities of any Power within the jurisdiction of which he may
be found '."
The Nyon Agreement of September 14, 1937, characterised
in its Preamble the submarine attacks on merchant ships of other
than the conflicting Spanish parties as measures which should be
justly treated as acts of piracy '. This, however, merely provided
the background and justification for the collective and repressive
measures on which the signatories had agreed. Thus, from the
point of view of international criminal law, neither of these
treaties constituted any further development towards the creation
of an international criminal law. In Professor Lauterpacht's
view the Nyon Agreement of 1937 has a special significance as
its signatories claim to assume jurisdiction over offenders of
whatever nationality '. Here we are confronted with the direct
subjection of individuals to international law in a manner which
,cannot be interpreted as a mutual concession of jurisdictional
52 The Secretary to the Admiralty to Lord Wodehouse (Foreign Office),

December 2, 1854 (45 ibid. ( 18 54-18 55), P. 1145). See also the Note
from Lord Aberdeen to M. Lisboa (Brazil) of August 6, 18 45 (34 ibid.
(1845 - 1846), P. 71 I ).
53 See further /.c. in note 12 above, pp. 96-97.
rights '. 54 In the light of what should be common knowledge
to any student of international relations and of the hardly Bidden
intentions of the contracting porties, this apparent difficulty
resolves itself without undue difficulties. It must only be remem-
bered that these submarines were of, at most, three possible
nationalities. For the sake of politeness, these countries were not
specifically named. It was dear that if any such submarine were
met and sunk its home State would not claim any connection with

such a pirate ' submarine. Yet to base any development of rules
of international law on a typical instance of politesse diplomatique
is a feat of remarkable mental acrobatics. It confirms how much
ingenuity is needed to defend an untenable proposition.
(ii) Criminal Jurisdiction of International Institutions. On
an embryonic scale, developments towards an international
criminal law may be detected in the case of some international
institutions.
International river commissions, such as the European
Danube Commission, the Central Commission of the Rhine and
the International Commission of the Elbe had some limited
powers of punishing contraventions of their regulations for river
police. In the case of the Rhine and Elbe Commissions, appeal
from the court of first instance could alternatively be made to
the Commission or to local courts. 55 In all three cases these
rights of jurisdiction were in substance police powers and, at the
most, nominally of a penal character.
The Mixed Courts in Egypt and Tangier are of little interest ;
for they only substitute an abstraction from European criminal
codes and procedures for a local criminal law and administration
which were not considered to give sufficient guarantees of fair
treatment to nationals of Western States. 56 In any case they are
54 The Subjects of the Law of Nations, 63 Law Quarterly Review (1947),
.
P. 442.
55 See, for instance, Article 44 of the Elbe Convention of February 22,
1922 (M. 0. Hudson, International Legislation, Vol. 2, 1931, pp. 851—
852).
56 The standard work is still J. Y. Brinton, The Mixed Courts of Egypt,
193o. See further the Montreux Convention for the Abolition of
Capitulations in Egypt of May 8, 1937 (Treaty Series, 1937, No. 55);
the authoritative anonymous article on the Convention in 19 British
Tear Book of International Law, 1938, p. 161 et seq.; A. McDougall,
The Termination of the Egyptian Mixed Courts (25 ibid., 5948, p. 386
et seq.); and G. H. Stuart, The International City of Tangier, 1931,
p. 193 et seq., and The Problem of Tangier (1 Tear Book of World
Affairs, 1947, p. 92 et seq.).
a relic of the past. On October 14, 1949, the Mixed Courts in
Egypt came to an end. The chief value of their penal practice
now lies in the material which they provide for the comparative
study of Western criminal laws and procedures as applied in a
Near Eastern setting.
The courts of the Inter-Allied Rhineland Commission, the
courts of the Governing Commission of the Saar Basin, the
Plebiscite Courts in Upper Silesia of 1921 and in the Saar of

1935, and the Control Commission Courts in post-1945 Germany
do not contribute much more to the elucidation of our subject.
They either applied their ad hoc statutes and orders, replaced the
local criminal law by that of the respective occupying powers or
themselves administered the local law. Their function did not
consist in the evolution of an international criminal law. It was
their task to apply an internationally agreed, or their own,
municipal criminal law in cases in which the foreign powers
concerned were not prepared to entrust such jurisdiction to the
ordinary organs of local criminal justice." Like the Mixed
Courts, these instances are exceptional cases of the temporary
substitution of one municipal criminal law by that of other
powers. They are freaks which confirm the general rule.
Much play has been made of the, in part, penal character
of Article 16 of the Covenant of the League of Nations. Actually
this Article stated very clearly the legal consequences of a dis-
regard by a member State of its obligations under Articles 12,
13 or 15 of the Covenant. Such a pact-breaker shall ipso facto
be deemed to have committed an act of war against all other
members of the League '—and not an international crime.
It has been suggested that this qualification was supplied by
the Resolution of the Eighth Assembly of the League of Nations,
by which aggressive war was branded as an international crime'.
Yet, whatever the legal significance of this resolution may have
been, the members of the League showed by their actual policies
57 See further P. Huguet, Le Droit Pénal de la Rhénanie Occupée, 1923 ;
E. Fraenkel, Military Occupation and the Rule of Law, 1944, p. 171
et seq.; F. L. Carsten, The British Summary Court at Wiesbaden, 1926-
1929 (7 Modern Law Review, 1944, p. 215 et seq.); Ordinance No. 2
(1945) on Military Government Courts of the Military Government for
Germany (Military Government Gazette, 1945, p. 7) and the British
Ordinance No. 68 on Control Commission Courts of January 1, 1947
ibid. 1947, p. 437 et seq.; S. Wambaugh, Plebiscites Since the World
War, Vol. 2, 1933, p. 218 and The Saar Plebiscite, 194o, pp. 228 et seq.
and 401 et seq.
towards Japanese aggression in China and by the farce of their
sanctions experiment against Italy that, at the most, they
regarded these violations of the Covenant in the same light as
any other breach of treaty obligations. To hold differently now
would appear to be a manifest case of venire contra factum
proprium on the part of any State which, during the Appease-
ment Period, even granted de jure recognition to the fruits of
Italy's aggressive war against Ethiopia.

(iii) The Convention against Terrorism. The much advertised
Convention for the Prevention and Punishment of Terrorism of
November i 6, 1937, contained an engagement on the part of the
contracting parties to make acts of terrorism of an international
character, that is to say, committed on the territory of another
contracting party, punishable under municipal criminal law. It
also extended the scope of traditional extradition in the case of
political crimes and provided for police co-operation between the
signatories against terrorists. A supplementary convention of the
same date, which never came into operation, provided for an
auxiliary type of an international criminal court. Its jurisdiction
was to be limited to cases in which a signatory to the main con-
vention refused to try a terrorist in its own courts or to extradite
him to another contracting party. Again, the Convention
against Terrorism extended merely the scope of crimes which, by
treaty, were prescribed as punishable offences under municipal
law and the customary range of extradition treaties.
(iv) International Law within the Framework of the United
Nations. Has this situation been in any way changed since the
inauguration of the United Nations ?
In its Resolution on the Extradition and Punishment of War
Criminals of February 13, 1946, the General Assembly recom-
mended to members and non-members the extradition of war
criminals to the countries where they had committed their crimes
for the—twice stated—purpose of trial and punishment accord-
ing to the laws of these countries'.
The trials of the major German and Japanese war criminals,
however, before international military courts have been hailed
as major departures from traditional patterns. The legal stan-
dards—or their absence—of the Tokyo Trial were such as
to make lawyers wish to forget all about it at the earliest
2 90 Current Legal Problems 1950
possible moment." Such criticism cannot be levelled against

the judges of Nuremberg. Apart from the fact that the
acquaintance of the Bench and of the Prosecution with inter-
national law had been somewhat recent," the proceedings were
conducted with scrupulous regard for the rights of the Defence.
In form, the law applied by the tribunal was international law :
'international customary law, in so far as jurisdiction regarding
war crimes in the technical sense was concerned, and newly

established treaty law regarding crimes against peace and
humanity. 6 ° It emerges from the British Aide-Mémoire of
April 23, 1945, how dubious the British Government feit about
these war crimes in the wider sense. In so far as crimes against
peace were concerned, it was not at all clear to the British
Government whether they could properly be described as crimes
under international law '." In a further memorandum of
May 28, 1945, and in an Aide-Mémoire of June 3, 1945, these
doubts were laid at rest." In a different form, however, they
again came to the surface at the meeting of the Four-Pow er
Conference of June 29, 1945. Sir David Maxwell Fyfe pointed
out that one thing was essential What we want to abolish at
the trial is a discussion as to whether the acts are violations of
international law or not. We deciare what the international law
is so that there won't be any discussion on whether it is inter-
national law or not '." Nevertheless, the four Powers were fully
entitled to take the action on which they had decided both
regarding the German and Japanese war criminals. As was pointed
out in the Nuremberg Judgment, the signatories to the Charter
of the Tribunal only did jointly what each of them, if in sole
control of Germany, could have done alone. In the exercise of
their condominium over Germany, the occupying Powers were
not limited to the application to Germany of the customary laws
of wart are. In their capacity as co-sovereigns of Germany they
were free to altree on any additional legal principles which they
58 See further, Lord Hankey, Politics, Trials and Errors, I95o, p. 8o et seq.,
and G. Ireland, Uncommon Law in Martial Tokyo (4 Tear Book of
World Affairs, 195o, p. 54 et seq.).
59 Cf. i.c. in note zo above, pp. 312-313 and 323 324.
-
60 Cf. ibid., p. 387 et seq.

61 United States. Department of State. International Conference on
Military Trials, London, 1 945, 5949, p. 59.
62 Ibid., PP- 39 and 41.
63 Ibid., p. 99.
'cared to apply. Similarly, the unconditional surrender of Japan
provided a sufficient legal basis for trying the Japanese war
crirninals in accordance with legal principles which went beyond
the scope of international customary law. For these verg reasons,
however, both these international military tribunals were in
substance more akin to municipal war crime courts than to truly
international tribunals.
By a Resolution of December II, 1946, the General Assembly

affirmed the principles of international law recognised by the
Charter and Judgment of the Nurernberg Tribunal. The
maximum of legal significance that can be attributed to this
Resolution is that, in future, any member of the United Nations
will be estopped from contesting the validity of these principles
as rules of international law. This means that in future wars
the extraordinary jurisdiction of belligerents regarding war crimes
in the technical sense will be extended to crimes a.gainst peace and
humanity committed in connection with such wars. Thus, the
sphere of extraordinary State jurisdiction under municipal
criminal law has been vastly enlarged and still tighter ropes been
drawn in advance round the necks of the losers of any other
world war.
Another effort of the United Nations which calls for comment
is the draft Convention on the Prevention and Punishrnent of the
Crime of Genocide of December 9, 1948. The term was first
proposed by Dr. Lemkin in the course of the war 64 and incor-
porated on his suggestion into the United States Indictment of
the Major German War Criminals. The Assembly Resolution
on Genocide of December II, 1946, and the Draft Convention of
1948, too, are the result of a remarkable one-man campaign.
The shades of the victims of Auschwitz and Basen haunted the
conscience of those who knew better, but who considered it to
be statesmanship to submit to the pressure of unremitting lobby-
ing.
Genocide is described in the Convention as' a crime under
international law' and includes a number of acts committed
with intent to destroy, in whole or in' part, a national, ethnical,
racial or religious group, as such'. The contracting parties
undertake to enact the necessary legislation to provide effective
punishment for persons guilty of the offences which are
64 Axis Rule in Occupied Europe, 1 944, P. 79 et seq.
enumerated in the draft Convention. The Convention applies
to any persons committing genocide, whether they are con-
stitutionally responsible rulers, public officials or private
individuals'. Persons charged with genocide are to be tried by
the courts of the State in the territory of which the act was
committed or by an international penal tribunal as may have
jurisdiction with respect to these contracting porties which shall
have accepted its jurisdiction

'.
In order to appreciate the value of this draft it may be

permissible to look at the reality of the situation.
The worst offender in this field in recent years hos been
Hitlerite Germany. The occupying Powers and the other United
Nations had plenty of opportunity to bring these criminals to
justice. The same applies to any crimes of this character which,
in China and elsewhere, the Japanese had committed. In the
case of the forcible deportations of Germans from Czecho-
slovakia, Eastern Germany and Poland, there is little doubt
regarding the inhumanity with which many of these deportations
have been carried out. There would not, however, be sufficient
evidence to prove intent of committing genocide on the part of
those who were responsible for these acts. In the case of the
mass deportations of Baltic nationals by the Soviet Union the
intention of those responsible for these deportations was probably
primarily strategic. Finally, Pakistan and India, as well as
Israel and the Arab States have accused each other of the com-
mission of this crime.
If the Convention were applied to any of these cases it would
be for Czechoslovak, Indian, Iraqi, Israeli, Pakistani, Polish,
Russian and Jordan courts to Eind on the acts committed by their
own governments. Hardly any of these alleged crimes have been
committed spontaneously by irresponsible individuals. Yet the
whole Convention is based on the assumption of virtuous govern-
ments and criminal individuals, a reversion of the truth in
proportion to the degree of totalitarianism and nationalism prac-
tised in any country. In any event, even if this assumption were
correct, the criminal law of every civilised State provides
sufficiently against any individual act of the kind which are
enumerated in the Convention. As it was once put by Sir Hartley
Shawcross, murder remains murder whether committed against
one or a million. In either case a criminal can be hanged only
once.
international Criminal Law 2 93
Thus, the Convention is unnecessary where it can be applied

and inapplicable where it may be necessary. It is an insult to the
intelligence and dangerous, because it may be argued a contrario
by brazen upholders of an unlimited raison dTtat that acts
enumerated in the Convention, but not committed with the
intent of destroying groups of a people as such' are legal. The
Convention—like the Universal Declaration of Human Rights-
is, as it has been formulated politely by Professor Brierly,

symptomatic of a tendency to seek a sort of compensation for
all that is so terribly discouraging in the international outlook
of today by dissipating energies to achieve results which prove
on examination to mark no real advance '."
III—THE PROB LE M OF INTERNATIONAL CRIMINAL LAW
de lege ferenda
International law prescribes municipal criminal law in
circumstances in which, without such limitations of unrestricted
State sovereignty, municipal criminal law might fall below inter-
nationally accepted minimum standards. It authorises the
exercise of criminal jurisdiction under municipal law in circum-
stances in which, otherwise, such jurisdiction might be lacking or
remain controversial. But international law has not yet evolved
a branch of criminal law of its own.
To any one who does not conceive of law in a vacuum, but
is aware of the interrelationship between law and its specific
social background, such a result will not be surprising ; for inter-
national society still lacks any of the conditions on which the rise
of criminal law depends.
The origin of criminal law in primitive communities is still
the subject of controversy. 6 ° It is probably still advisable
to avoid the risk of undue generalisation.
For some primitive communities the sacral origin of criminal
law is a plausible hypothesis. Yet even in such communities,
from an early stage onwards, serious breaches of military
discipline were branded as crimes. Other offences, however, may
well have been treated as crimes because this was thought to be
the only means of averting the vengeance of the gods on the
65 The Genocide Convention (The Listener, 1949, P. 401).
66 See further B. Malinowski, Crime and Custom in Savage Society, 1932;
A. S. Diamond, Primitive Law, 1935 ; J. Lambert, La Vengeance Privée,
1936.
whole tribe. Awe of the gods, and fear of the priests, who
ministered to them, provided a substitute for the lack as yet of a
strong central power, which was to be the firm foundation of
criminal law in a later phase of its evolution. Unfortunately,
world society has no common gods, and the high priests of inter-
national law do not inspire the holt' terror of the magicians
of old.
There were, however, other primitive communities in which

criminal law owed its origin to more rational causes. In such
social groups, acts which, from the point of view of the com-
munity, were considered to be most reprehensible and dangerous
were treated as crimes, that is to say, as acts which could not be
left to be settled by blood feuds or by way of composition. Yet
for a long time such communities did not consider themselves
strong enough to insist on punishment proper. They first chose
outlawry instead of, or as an alternative to, punishment." In
the formulation of Pollock and Maitland, early English law
could not measure its blows ; he who defied it was outside its
sphere ; he was outlaw. He who breaks the law has gone to war
with the community ; the community goes to war with him ' 68 .
International outlawry as a means of retaliation on the part of

subjects of international law against persistent lawlessness on the
part of other States is at least a feasible proposition. Doubts which
at the present stage of the evolution of world society arise on the
wisdom of applying this device in inter-State relations are
primarily connected with the present division of the world into
two diametrically opposed camps. Each of the antipodes is likely
to hold its protecting shield over the black sheep within its own
fold, and little would be gained if the two camps were ever
mutually to outlaw each. other.
Yet we need not concern ourselves only with primitive com-
munities. The rise of the modern State, too, has its lessop to teil.
After the princes of Europe had established their absolute power
within territorially defined States, then, in the words of Hobbes,"
they firmly held in their hands both the swords of war and of
justice. Both swords were annexed to the Sovereign Power '.
In the words of the old English forms of indictment, crimes were
67 See further /.c. in note 12 above, p. 85 et seq.
68 Sir Frederick Pollock and F. W. Maitland, The History of English Lazy,
Vol. 2, 1 923, P. 449.
69 De Corpore Politico, 1684, Part 2, Chap. 1, 8.
committed against the peace of our Lord, the King, his Crown
and Dignity
Here lies the explanation why, in the present state of world
society, international criminal law in any truc sense does not
exist.
In the Atomic Age, most of the sovereign and equal ' mem-
bers of the United Nations have lost their political sovereignty
and know their humble station in the international hierarchy. In

form, they all are subject to the Charter of the United Nations,
and its Chapter Seven, which, like Article 16 of the Covenant
of the League of Nations, embodies provisions that are, according
to Professor Lauterpacht, in part, of a penal character '." There
are, however, some powers who are not only in fact immune to
the application of collective enforcement measures, but who, in
law, too, are in a privileged position. By the reservation of their
veto power, they have made sure that only paper swords of war
and justice can be wielded against them by the international
quasi-authorities of the United Nations." They are fully con-
scious of the fact that the real swords of war and justice are still
annexed to the Sovereign Power '.
In such a situation an international criminal law that is
meant to be applied to the world powers " is a contradiction in
terms. It presupposes an international authority which is superior
to these States. In reality, however, any attempt to enforce an
international criminal code against either the Sovjet Union or
the United States would be war under another name. Thus,
proposals for a universal international criminal law fall into the
category of the one-way pattern for the reorganisation of inter-
") L.c. above in note 25, p. 322. See allo above under I Ib (2).
71 Thus, by implication, Professor Lauterpacht himself gives the verdict on
the position taken by him : It is clear that unless the criminal respon-
sibility of States is to be reduced to the vanishing point of law, its
enforcement must be placed in the hands of impartial international
agencies operating within the orbit of a politically organised international
society' (/.c. in note 25 above, p. 323, note 1).
72 See, for instance, V. Pella, La Criminalité Collective des Etats et le Droit
Pénal de l'Avenir, 1926. For 'further referenties to proposals de lege
ferenda, see H. von Weber, Internationale Strafgerichtsbarkeit, 5934
G. Weis, International Criminal justice in Time of Peace (28 Transac-
tions of the Grotius Society, 1943, p. 38 et seq.); M. A. Caloyanni, Les
Criminels de Guérre et le Nouveau Droit Pénal International; F. B.
Schick, International Criminal Law—Facts and Illusions (I i M.L.R.
1948, p. 290 et seq.), and United Nations, International Law Com-
mission, Historica! .Survey of the Question of International Criminal
Jurisdiction, 1949.
2 96 Current Legal Problems 195o
national society. 73 With other schemes of this type they share

the deficiency of taking for granted an essential condition of their
realisation, a sine qua non which cannot easily be attained : the
transforrnation of the present system, of world power politics in
disguise into at least a world federation. 74 If, and when, the
swords of war are taken from their present guardians, then, and
only then, will the international community be strong enough
to wield the sword of universal criminal justice.

73See further the present writer's Manual of International Law, 1947,
pp. 146-147.
A more promising, though less ambitious, line of development might
be the creation of international criminal law within each of the two
halves of present-day international society. If either side were content
to look not primarily at the international crimes ' committed by the
other, but set to work to remedy the deficiencies within its own world,
then proposals for an international criminal law might lose some of their
less attractive ideological features and even claim a certain educational
value. International criminal law might then contribute to the articulate
formulation of the positive values for which the Western and Eastern
worlds stand.
In Hitlerite Responsibility under Criminal Law, 3945, Professor
Trainin ascribes the extremely poor development ' of international
criminal law to the general character of international juridical relations
during the epoch of imperialism ' (p. II).
While the epoch of imperialism is an especially violent form of power
politics, the chances for international criminal law do not appear to have
been more brilliant in pre-imperialist phases of power politics. This
applies irrespective of whether the term is understood in the specific
Marxist connotation in which Professor Trainin uses it or as it is used
in the general language of sociology and of international relations. In
any case, does Professor Trainin imagine that the territorial expansion of
the Soviet Union in the course of, and since, the Second World War is
symptomatic of a post-imperialist period? It would be of equal interest
to have his views on the identity of present-day aggressive imperialist
rulers ' (ibid.).
74 It is to the credit of Lorimer that, more than half a century ago, this
lonely figure perceived clearly the intrinsic connection between schemes
for an international criminal law stricto sensu and for an international
government. Cf. his Institutes of the Law of Nations, Vol. 2, 1884,
p. 279 et seq.

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I5

THE PROBLEM OF AN INTERNATIONAL

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INTERNATIONAL lawyers—with the exception of those immunised

Charter of the Nuremberg Tribunal and in the judgment of the

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Thus, the question of international criminal law has entered

I—THE SIx MEANINGS OF INTERNATIONAL CRIMINAL LAW

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attempt to determine the exact point at which the claim of a

one definite prohibitive rule of international law. In principle, 3

instances must take place within a State's own territory or in

2 Series A, No. i o, p. 20 ; cf. also Naim Molvan v. Attorney-General for

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of most States with relative impunity. Thus, the verg purpose

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likelihood only acts of subjects or objects of international law

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Similarly, in his Aspects of Modern International Law, published

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30 See above under i (b) and (c).

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to the Joint Session of the two Houses of Congress of April 2, 1917

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When, however, these alleged crimes or offences against

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the rights of other States under international law compares rather

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Black Sea to detain Turkish vessels conveying slaves from Georgiá.

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52 The Secretary to the Admiralty to Lord Wodehouse (Foreign Office),

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possible moment." Such criticism cannot be levelled against

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60 Cf. ibid., p. 387 et seq.

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In order to appreciate the value of this draft it may be

Thus, the Convention is unnecessary where it can be applied

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International outlawry as a means of retaliation on the part of

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national society. 73 With other schemes of this type they share

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