1 U.N. Doe. A/AC.48/4, Sept. 5, 1951. The text of the draft statute is reprinted in the Supplement to this Journal, p. 1.

2 This material has been conveniently assembled in a pamphlet, prepared by the Secretariat of the United Nations and utilized by the Geneva meeting, entitled “Historical Survey of the Question of International Criminal Jurisdiction” (Lake Success, 1949). This pamphlet discusses and reprints texts concerning the proposal at the Paris Peace Conference for Tribunals to Try the Kaiser and World Criminals (1919), the proposal for a High Court of International Justice made by the Advisory Committee of Jurists which framed the Statute of the Permanent Court of International Justice (1920), the Geneva Convention for an International Criminal Court to Punish Acts of Terrorism (1937), the proposal for a court to try war criminals prepared by the United Nations War Crimes Commission (1944), the Statute and Opinion of the Nuremberg Tribunal (1945), the Statute and Opinion of the Tokyo Tribunal (1946), discussion in the General Assembly, in the International Law Commission, and in other United Nations organs of a tribunal to implement the “Nuremberg Principles” (1947), and discussions and proposals in United Nations organs of a tribunal to punish the crime of genocide (1948). In addition, unofficial proposals such as those made by the International Law Association (1927), the Interparliamentary Union (1925), the International Congress of Penal Law (1926), the London International Assembly (1943), and the International Commission for Penal Reconstruction and Development (1942) are considered. See also Hudson, Manley O., International Tribunals, Past and Future (Washington, 1944), pp. 180 ffGoogle Scholar.; and V. Y. Pella, Memorandum on Establishment of an International Criminal Court, U.N. Doc. A/AC.48/3, July 17, 1951, and “Towards an International Criminal Court,” this Journal, Vol. 44 (1950), p. 37.

3 Wright, Quincy, “War Criminals,” this Journal, Vol. 39 (1945), pp. 262 ffGoogle Scholar.; “The Law of the Nuremberg Trial,” ibid., Vol. 41 (1947), p. 55.

4 Stewart, J. H., “The Imprisonment of Napoleon: A Legal Opinion by Lord Eldon,” this Journal, Vol. 45 (1951), pp. 574, 576 Google Scholar.

5 The report of the Commission of the Powers on May 12, 1815, before Waterloo, declared that by violating the convention which established him in Elba, Napoleon became “an enemy and a disturber of the tranquillity of the world ‖ liable to public vengeance,” British and Foreign State Papers, Vol. 3, p. 200. Actually he was kept on St. Helena as a permanent prisoner of war in conformity with Eldon’s theory. See Wright, Q., “The Legal Liability of the Kaiser,” American Political Science Eeview, Vol. 30 (February, 1919), p. 127 Google Scholar.

6 “ … the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.” Judgment of the International Military Tribunal, interpreting Articles VII and VIII of its Charter of August 8, 1945, Trials before the International Military Tribunal, Nuremberg, 1947, Vol. I, pp. 12, 223; this Journal, Vol. 41 (1947), p. 221. See comments in U. N. International Law Commission and Sixth Committee of the General Assembly, 1950, Yuen-li Liang, this Journal, Vol. 45 (1951), pp. 515–520.

7 “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Trials before the International Military Tribunal, Nuremberg, Vol. I, p. 223.

8 Wright, Q., A Study of War (Chicago, 1942), p. 1345 Google Scholar.

9 Report (op. cit. note 1), pars. 10, 14, 20, 103.

10 At its second session the International Law Commission voted, eight to one, with two abstentions, that the establishment of an international criminal court was desirable, and, by a vote of seven to three, with one abstention, that it was possible. See Liang, Yuen-li, “Notes on Legal Questions Concerning the United Nations,” this Journal, Vol. 45 (1951), p. 524 Google Scholar; also report of Commission, ibid., Supp., Vol. 44 (1950), p. 134.

11 Report, par. 21.

12 The Congress of the United States, for example, is constitutionally prohibited from exercising judicial power, yet it has established and maintains, with exception of the Supreme Court, the Federal judicial system.

13 “The Signatory Powers created this Tribunal, denned the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer [international criminal] law.” Trial of Major War Criminals, Vol. I, p. 218. The context indicates that the words in brackets were implied. International law does qualify the right of states to exercise criminal jurisdiction over aliens for offenses committed abroad other than offenses against the law of nations. Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, this Journal, Supp., Vol. 29 (1935), pp. 439 ff.

14 Under United Nations Charter, Art. II, pars. 5 and 6.

15 See below, notes 29, 30, 31.

16 Wright, Q., “The Law of the Nuremberg Trials,” this Journal, Vol. 41 (1947), pp. 45–46 Google Scholar.

17 M. O. Hudson, International Tribunals, p. 180; Q. Wright, A Study of War, p. 914.

18 Art. 25.

19 Report, par. 90.

20 This was provided in the Nuremberg Charter (Art. VII), though in fact the defendants at Nuremberg and Tokyo were ex-officials and this would usually be the case.

21 Art. 28. This was inserted to prevent a few states from making agreements among themselves to confer jurisdiction upon the court for unimportant or novel types of crime.

22 Art. 31.

23 Art. 2. See United Nations, Historical Survey of the Question of International Criminal Jurisdiction (1949), p. 88.

24 Art. 6.

25 Art. 1.

26 Art. 3.

27 Moore v. Illinois (1852), 14 How. 1319; U. S. v. Lanza (1922), 260 TJ. 8. 377. The Harvard Research in International Law includes the principle “non his in idem” in the case of concurrent jurisdiction between two states (Art. 13), but admits the rule is not fully established in eustomaty international law. This Journal, Supp., Vol. 29 (1935), pp. 602, 607, 615.

28 Art. 2.

29 This Journal, Supp., Vol. 44 (1950), pp. 125–134, Vol. 45 (1951), pp. 123–132; Liang, Yuen-li, “Notes on Legal Questions Concerning the United Nations,” this Journal, Vol. 45 (1951), pp. 514 ffGoogle Scholar.; United Nations Bulletin, Sept. 1, 1951, p. 230.

30 In re Henfleld, Fed. Cas. 6360; Wright, Q., The Control of American Foreign Relations (New York, 1922), p. 196 Google Scholar.

31 United Nations, Historical Survey of the Question of International Criminal Jurisdiction, p. 9.

32 Wright, Q., “The Law of the Nuremberg Trial,” this Journal, Vol. 41 (1947), p. 57 Google Scholar. Distinction has also been made between offenses against the law of war, against the law of peace, and against universal law. See Wright, Q., “War Criminals,” ibid., Vol. 39 (1945), pp. 274 ffGoogle Scholar. This resembles the classification in the Nuremberg Charter distinguishing offenses against the law of war, against peace, and against humanity.

33 Wright, Q., “The Law of the Nuremberg Trial,” this Journal, Vol. 41 (1947), p. 56 Google Scholar.