¹ Cf. PresidentRoosevelt's, message of September 17 to Congress on the progress of the war (New York Times, Sept. 18, 1943, p. 4).Google Scholar In his letter of August 25, transmitting the quarterly lend-lease report as required by Congress, the President stated: “Except for the responsible Fascist leaders, the people of the Axis need not fear unconditional surrender to the United Nations…” (ibid., Aug. 26, 1943, p. 11). Vice-President Wallace expressed similar views when listing “the immediate objectives of the common man” in his address of September 11, in Chicago, before a meeting held under the auspices of the United Nations Committee to Win the Peace (ibid., Sept. 12, 1943, p. 32). Cf. the Vice-President's commencement speech at the Connecticut College for Women on June 6 (ibid., June 7, 1943, p. 7). See also the radio address by Secretary of State Cordell Hull, on September 12, outlining the policies of the State Department (ibid., Sept. 13, 1943, p. 4). On the anniversary of the German invasion of Poland four years earlier, the British and American Governments again proclaimed their intention to see the atrocities in Poland atoned for. Secretary Hull stated on that occasion: “The United States Government reaffirms its resolve to punish the instigators and actual perpetrators of these crimes …” (ibid., Aug. 30, 1943, p. 3). Under-Secretary of State Sumner Welles, at Arlington. May 30, 1942: “…But I believe they [the men who will make our victory possible] will likewise wish to make certain that no element in any nations shall be forced to atone vicariously for crimes for which it is not responsible, and that no people shall be forced to look forward to endless years of want and starvation” (“War and Peace Aims. Extracts of Statements of United Nations Leaders,” Special Supplement No. 1 to United Nations Review, Jan. 30, 1943, p. 32). Cf. Wright, Quincy, “Human Rights and World Order,” International Conciliation, Apr., 1943 (No. 389), pp. 238–262Google Scholar, passim.

² An interesting appraisal of the principle that a “universitas” cannot commit a crime and reasons for the failure hitherto to adopt it in the realm of international affairs are presented by ProfessorHocking, in Man and the State (New Haven, 1926), pp. 355 ff.Google Scholar Pope Innocent IV gave practical expression to his sentiments by explicitly forbidding the excommunication of corporate bodies at the Council of Lyon in 1254 (in C.5, VI^° 5, 11). Gierke, Otto, Das deutsche Genossenschaftsrecht (Berlin, 1868, 1873, 1881, and 1913)Google Scholar, has indicated the sway which the principle espoused by Innocent IV and that espoused by Bartolus (rather sweeping acceptance of vicarious responsibility) have held, with various modifications in the narrower and wider realms of law (Vol. 2, pp. 817–820; Vol. 3, pp. 234–236, 342–349, 402–410, 491–497, 738–744; Vol. 4, pp. 8, 19–20, 44–45, 78–79, 93, 96–103 passim, 140–142, 258–260, 359–360, 528). The position of the classical writers in international law on the choice between individual and corporate (criminal) responsibility in their particular discipline forms part of a study now under preparation by the author of this article.

³ “It is not the intention of this Government or of the Governments associated with us to resort to mass reprisals,” and “the number of persons eventually found guilty will undoubtedly be extremely small compared to the total enemy population” (Department of State Bulletin, Oct. 10, 1942, Vol. 7, p. 797, quoted by Finch, G. A., in “Retribution for War Crimes,” Amer. Jour. of Internat. Law, Vol. 37 (1943), at p. 84Google Scholar). That this involves no less than the separation for punishment of a “guilty” government or “guilty” leaders from their “innocent” or misled populace has been well recognized by writers of the Third Reich. E.g. Schmitt, Carl, “Die Wendung zum diskriminierenden Kriegsbegriff,” Schriften, Akad. f. Deutsches Recht, Gruppe Völkerrecht No. 5 (Munich, 1938), pp. 45 ff.Google Scholar

Public opinion in the United States generally appears to support the Government's policy on this question. Cf. Mgr. John A. Ryan, director of the National Catholic Welfare Conference, writing in the Louis, St.Post-Dispatch for Feb. 27, 1943Google Scholar, that punitive measures upon the entire Axis populations would be “at once unwise and difficult to justify,” but declaring that “the men responsible for the dastardly attack upon freedom and civilization should not be permitted to go free after the war; they should get what is coming to them” (New York Times, Feb. 28, 1943, p. 17). On April 29, in a statement entitled “Retributive Justice after the War,” the ethics committee of the Catholic Association for International Peace declared: “… The ‘imputation theory,’ which holds that all members of a political community automatically share the guilt of their criminal rulers is illogical and immoral” (ibid., Apr. 30, 1943, p. 23), See also the joint declaration of July 3 by the German-speaking branch of the Social-Democratic Federation of America and the German Labor Delegation in the United States (ibid., July 4, 1943, p. 11); Senator Warren R. Austin's address before the Republican Party Post-War Policy Association, which met in New York on July 19 (ibid., July 20, 1943, p. 1); the recommendations of the panel on military affairs, headed by Rear Admiral Yates Sterling Jr., retired, of the Emergency Conference to Save the Jewish People of Europe, formulated in New York on July 21 (ibid., July 22, 1943, p. 7); the resolution passed by the Lions Clubs on July 22, at the close of their annual international convention in Cleveland (ibid., July 23, 1943, p. 6); the joint statement of the views of organized labor, addressed to Secretary of State Hull on September 24 by President William Green of the American Federation of Labor, President Philip Murray of the Congress of Industrial Organizations, President David Dubinsky of the International Ladies Garment Workers Union, and Chairman Adolph Held of the Jewish Labor Committee (ibid., Sept. 25, 1943, p. 6). Cf. also Mr. Murray's statement of December 25, 1942, issued “in the full knowledge that it reflects the thought and feeling of millions of our fellow-workers,” and asking that “the Axis murderers” be “tried and punished with the utmost severity” (ibid., Dec. 26, 1942, p. 4).

⁴ For this established doctrine in international law, cf. Eagleton, Clyde, The Responsibility of States in International Law (New York, 1928).Google Scholar

⁵ A modern interpretation of the principle of mens rea is furnished by Sayre, Francis B., in “The Present Significance of Mens Rea in the Criminal Law,” Harvard Legal Essays 1934 (Cambridge, 1934), p. 399.Google Scholar Professor Mannheim has justly lamented the view which international lawyers have generally taken in the past: “The whole conception of ‘crime’ is foreign to the theory and practice of international law. Crime, even in national law, is applicable only to the action of ‘natural persons’; the ‘composite person,’ the ‘body corporate,’ cannot be possessed of that ‘guilty mind’ which is still in general an essential element of crime.” War and Crime (London, 1941), p. 174, quoting the Report on International Sanctions, published by the Royal Institute of International Affairs in 1938. This traditional view would make it appear as though we were still in a rather primitive stage of development as regards the treatment of crime in international relations. The community of nations, however, appears to have developed to a sufficient degree in (all) other respects that an international criminal law and procedure could now be instituted. That crimes thereunder can be properly defined, and that individuals are subjects of international law, are prerequisites which will be considered subsequently in this study.

⁶ As quoted by Sighele, Scipio, in La Folla Delinquente (Turin, 1895), p. 110.Google Scholar

⁷ New York Times, Jan. 14, 1942, p. 6, quoted by Finch, op. cit., p. 85. Earlier official statements on the determination of the United Nations to call the perpetrators of atrocities and war crimes to account at the proper time are summarized in “War and Peace Aims, etc.,” op. cit., pp. 31–33.

⁸ Finch, op. cit., p. 84.

⁹ Ibid., p. 86.

¹⁰ Details may be found under “Texts and References” in recent issues of the monthly United Nations Review.

¹¹ When Rudolf Hess took up residence in the British Isles, the Russian Commissar for Foreign Affairs was among those who called for an immediate trial of any responsible Nazi leader upon capture, while the majority of the United Nations statesmen preferred to hold trials at the end of the present conflict and possibly before an international tribunal. “The War Criminals” (Spectator, Oct. 23, 1942. Vol. 169, pp. 375–376). (For the first comprehensive official account of the Hess episode, see the statement made by Secretary of State for Foreign Affairs Eden in the House of Commons on September 22 (New York Times, Sept. 23, 1943, p. 10). This statement was timed to coincide with efforts to pave the way eventually for a Roosevelt-Churchill-Stalin conference.) As regards the forum for war crime trials, the following may illustrate the diversity of extant views:

Russia: Inter bellum-trials as called for by Commissar Molotov could take place only before national tribunals. Cf. note 12, infra. The Russian press has since repeatedly echoed Commissar Molotov's views, e.g., in the editorials on the execution of eight Russian traitors at Krasnodar in the summer of 1943 (New York Times, July 19, 1943, p. 6, and July 20, 1943, p. 5). On the other hand, Professor A. N. Trainin, outstanding criminologist of the Moscow Law College and author of one of the principal essays to appear in a symposium on war crime trials now in preparation by the Institute of Law of the Academy of Sciences of the U.S.S.R., desires to provide for both national and international courts to deal with the war criminals. See Elizov, N., “Soviet Jurists Study Question of Prosecution of Hitlerites for War Crimes,” Information Bulletin, Embassy of the U.S.S.R., Washington, D.C., Dec. 5, 1942, No. 145, p. 5.Google Scholar

Great Britain: In the debate on war crime trials, precipitated by the former Lord Chancellor, Viscount Maugham, in the House of Lords on October 7, 1942, Viscount Simon, present Lord Chancellor, as well as Lord Maugham and the Marquess of Crewe, favored eome kind of national (military) court for postwar proceedings (New York Times, Oct. 8, 1942, p. 11). Cf. also note 8, supra. Writing early in 1943, Viscount Sankey likewise preferred trials by national courts, or national courts and a special court (“War Criminals,” The Fortnightly, Jan., 1943, No. 913 [New Series], p. 4, at p. 5). On February 18, Viscount Simon stated that while the British Government was prepared to discuss the setting up of international courts in addition to the United Nations Commission for the Investigation of War Crimes, he felt that trial by military tribunals would prove the better system (New York Times, Feb. 19, 1943, p. 10). Hector Munro presented the argument for an international tribunal in “War Crimes and Criminals,” The New Commonwealth, May, 1943, Vol. 8, p. 224, at pp. 225–226. On July 9, 1943, Sir Cecil Hurst, judge of the Permanent Court of International Justice since 1929 and its president in 1934, was appointed the British member of the United Nations Commission for the Investigation of War Crimes (New York Times, July 10, 1943, p. 6).Google Scholar Sir Cecil's instructions concerning the forum question, however, had not been made public at the time of this writing.

United States: At the end of 1942, it was rumored that an international (criminal) court was about to be established (in London) and that Professor Sheldon Glueck, criminologist of Harvard University and member of the Advisory Committee to the United States Supreme Court on Rules of Criminal Procedure, was favored by the President and the Secretary of State as candidate for the post of consulting adviser to this court. Official quarters in Washington, however, did not confirm this rumor (New York Times, Dec. 29, 1942, p. 3). On June 29, 1943, the White House announced the appointment of the Hon. Claiborne Pell, former American minister to Portugal and Hungary, as the representative of the United States on the United Nations Commission for the Investigation of War Crimes. In the announcement, hope was expressed “that the Commission, which will have its headquarters in London, will be able to take concrete steps looking to the punishment of agents of the Axis powers who have perpetrated atrocious crimes against their innocent victims” (Department of State Bulletin, July 3, 1943, Vol. 9, p. 3; New York Times, June 30, 1943, p. 16). It may appear doubtful, however, whether the United States Government at present favors the establishment of an international tribunal by, or in addition to, this Commission, since the President warned, on July 30, 1943, “that the time will come when they [the (Axis) war criminals] shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts” (ibid., July 31, 1943, p. 3). Italics supplied. Cf. also Manner, George, “The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War,” Amer. Jour. of Internat. Law, Vol. 37 (1943), p. 407.CrossRefGoogle Scholar Among the advocates of trials before an international tribunal, other than those cited subsequently in this study, can be mentioned SenatorThomas, Elbert D., “What We Must Do with the War Criminals,” The American, Feb., 1943, p. 88Google Scholar, and ProfessorEagleton, Clyde, “Punishment of War Criminals by the United Nations,” Amer. Jour. of Internat. Law, Vol. 37 (1943), p. 495.CrossRefGoogle Scholar Cf. also ProfessorRadin's, Max interesting “preview,” The Day of Reckoning (New York, 1943).Google Scholar

China: The plan for the punishment of Japanese war guilty outlined by Dr. Sun Fo, president of the Legislative Yuan of the Chinese Government in Chungking, does not provide for any type of court, but for acts of high policy (New York Times Magazine, July 11, 1943, pp. 10, 38). For its American counterpart, cf. note 43, infra. The Chinese plan does not deal with the European enemies of the United Nations.

Governments-in-Exile: Among these, the Polish Government-in-Exile has been pictured as intending to hold trials of the war criminals in Polish municipal courts, while no mention was made of any intentions of the United Nations to hold such trials before an international tribunal jointly. Hershey, Bernet, “Hang the Führers!” (Saturday Evening Post, June 12, 1943, pp. 16 ff.)Google Scholar

Such accounts as the last-quoted might compel us to attempt holding World War II trials with a World War I public opinion; or, if we should really repeat the procedure eventually employed after the last war (trials before national tribunals alone), we may again witness a general failure of the prosecutions and such painful cases as that of General Nathusius in 1924–25. Cf. Toynbee, Arnold J., Survey of International Affairs, 1924 (Oxford, 1926), pp. 401–403.Google Scholar

¹² Violations of the Laws and Customs of War. Carnegie Endowment for International Peace, Div. of International Law, Pamphlet No. 32 (Oxford, 1919). It will be noted that this Commission was established by the victorious Powers after the Armistice, and that the prosecutions which the Commission was to recommend later were to take place after the conclusion of the Treaty of Peace. In other words, the victors intended to hold the war crime trials at a time when customary international relations had been restored sufficiently to forbid the victors unlimited interference with their defeated enemy's internal affairs. Prosecutions and trials for war crimes thus depended from the outset upon the good-will and coöperation of the defeated enemy. In case of refusal on the part of the former enemy to coöperate, the victors could only choose between compromise (which meant virtual acquiescence in the refusal) and reopening of hostilities to secure compliance.

Only at the time of the armistice can the victor(s) make his (their) enforcement of the law and the judicial administration of punishment effective. This appears to have been recognized in the present conflict, since the organization of the United Nations Commission for the Investigation of War Crimes was begun while hostilities were still in progress, and the trials seem to be scheduled to take place upon the conclusion of the armistice or the surrender of the enemy. Said the Lord Chancellor in the House of Lords on October 7, 1942: “Named criminals wanted for war crimes should be caught and handed over at the time of, and as a condition of, the armistice, with the right, of course, to require the delivery of all others as soon as supplementary investigations are completed” (London Times, Oct. 8, 1942, p. 8, quoted by Finch, op. cit., pp. 85–86). Cf. also New Statesman and Nation, Oct. 17, 1942, Vol. 24, No. 608, p. 249, and notes 8 and 11, supra. The foregoing applies only to trials which the United Nations may prepare to hold before an international tribunal. While the war is still in progress, the belligerents can try and punish singly, but fighting must cease before communications can be sufficiently reëstablished to permit the arrangement of the trial of war crimes before an international court. The United Nations appear to have reserved for trial before an international tribunal at least those cases where the individuals involved are “wanted” by more than one state, and/or where the crimes were committed on the enemy's own territory to overcome special problems of local jurisdiction. Cf. the statement on atrocities, signed by President Roosevelt, Prime Minister Churchill, and Premier Stalin, and published on the occasion of the Moscow Conference; note the reservation contained in the last paragraph of the declaration. New York Times, Nov. 2, 1943, p. 14.

¹³ The neutrality of Belgium was guaranteed by the treaties of Apr. 19, 1839, and that of Luxembourg by the treaty of May 11, 1867.

¹⁴ Violations of the Laws and Customs of War, op. cit., p. 16.

¹⁵ The violation of Belgian neutrality, however, may be said to have been subject to more than moral censure. Cf. Wright, Quincy, “The Outlawry of War,” Amer. Jour. of Internat. Law, Vol. 19 (1925), at p. 86, n. 44.Google Scholar

¹⁶ Ibid., pp. 17–18.

¹⁷ Ibid., pp. 19–20. This applied to violations of the laws of war. The Commission of Fifteen made also special provision for the possibility of trying the ex-Kaiser before a High Tribunal. Consent of the German Government to this piocedure was to be secured by articles in the Treaty of Peace. For the law on the subject, cf. Wright, Quincy, “The Legal Liability of the Kaiser,” in this Review, Vol. 13 (1919), pp. 120–128.Google Scholar

¹⁸ Violations of the Laws and Customs of War, op. cit., pp. 23 ff.

¹⁹ Ibid., p. 23.

²⁰ Ibid., The law on this particular aspect of the question of war-crime trials has not materially changed since the first World War. Cf. Mérignhac, A. and Lémonon, E., Le Droit des Gens et la Guerre de 1914–1918 (Paris, 1921), Vol. 2, pp. 590 ff.Google Scholar; Garner, James W., International Law and the World War (London, 1920), Vol. 2, p. 474 ff.Google Scholar; Finch, George A., “Jurisdiction of Local Courts to Try Enemy Persons for War Crimes,” Amer. Jour. of Internat. Law, Vol. 14 (1920), p. 218.CrossRefGoogle Scholar Also Elbridge Colby, “Court-Martial and the Laws of War,” ibid., Vol. 17 (1923), p. 109, and the review of law and past practice in the per curiam decision of the Supreme Court of the United States in the case of the German saboteurs, rendered on July 31, 1942, and reprinted in 37 ibid. (1943), p. 152 ff. Specific comments on this decision are furnished by one of the authors of the Government's brief, Cushman, Robert E., “Ex parte Quirin et al., The Nazi Saboteur Case,” Cornell Law Quarterly, Vol. 28 (Nov., 1942), p. 54Google Scholar, and by Munson, F. Granville, “The Arguments in the Saboteur Trial,” University of Pennsylvania Law Review, Vol. 91 (Nov., 1942), p. 239.CrossRefGoogle Scholar Of a more general nature is the article by Battle, George Gordon, “Military Tribunals,” Virginia Law Review, Vol. 29 (Dec., 1942), p. 255.CrossRefGoogle Scholar

²¹ Violations of the Laws and Customs of War, loc. cit., and p. 24.

²² Ibid.

²³ Ibid., pp. 56 ff.

²⁴ Ibid., p. 64. Cf. also the study of George A. Finch, Memorandum Regarding the Responsibility of the Authors of the War and for the Crimes Committed in the War, in Miller, David Hunter, My Diary at the Conference of Paris, Vol. 3, p. 458Google Scholar (Document No. 213). The length, however, to which such arguments in the realm of international law are driven can spell either progress or doom of the science. If we are working in the direction of a “world law” (and more will be said of this anon), we must crystallize rather than criticize the concept of the laws of humanity. Otherwise we might unwittingly furnish support to the opponents of a better organization of the world community for the maintenance of peaceful relations between the several states, e.g. to those writers who would base the conduct of their state's foreign policy upon rights of “superior” over “inferior” races: “…Das Massgebende ist die Zurückführung allen Rechtes in einer gemeinsamen Rechtsordnung auf die Vernunftvorstellungen der einzelnen Menschen ohne Unterschied der Rassen. Es wurde jedoch schon … gezeigt, dass bei der Mannigfaltigkeit der rassischen Zusammensetzung der Menschheit und der infolgedessen lebensgesetzlich (biologisch) bedingten Verschiedenheit in der Denkweise der einzelnen Völker ein gemeinsames Rechtsgefühl unter allen Menschen undenkbar ist….” Lindner, Werner R., Die Strafe im Völkerrecht (Frankfurt, a.M., Dissert., 1934), p. 39.Google Scholar

²⁵ Violations of the Laws and Customs of War, op. cit., p. 80.

²⁶ Reprinted in Amer. Jour. of Internat. Law, Vol. 13 (1919), Supplement, p. 250. Cf. the preceding with Articles 173 in the Treaty of Peace with Austria, 118 in the treaty with Bulgaria, and 157 in the treaty with Hungary. Oppenheim, L., International Law (London, 1940), 6th ed. by Lauterpacht, H., Vol. 2, p. 453, n. 2.Google Scholar

²⁷ George A. Finch, “Retribution for War Crimes,” op. cit., p. 83, n. 4.

²⁸ The effects of this and the following Articles of the Treaty of Versailles have recently been reviewed by Glueck, Sheldon, in “Trial and Punishment of the Axis War Criminals,” Free World (Nov., 1942), Vol. 4, p. 140.Google Scholar

²⁹ This refers mainly to trials before Allied joint military tribunals, not to the very small number of trials which actually did take place, for inetance, in French (military) courts during and at the end of the war. James W. Garner, op. cit., pp. 487 ff.

³⁰ Cf. “German War Trials. Report of Proceedings before the Supreme Court in Leipzig,” Cmd. 1450 (London: His Majesty's Stationery Office, 1921). Interesting background material may be found in Temperley, H. W., History of the Peace Conference (London, 1920–1924), Vol. 2, pp. 304–308Google Scholar, and Cohn, Ernst J., “The Problem of War Crimes Today,” Transactions, Grotius Society, Vol. 26 (1940), p. 125.Google Scholar

³¹ Cmd. 1450, Appendix II, pp. 18 ff. Sheldon Glueck, op. cit., p. 142.

³² Cf. note 12, supra. Also Foreign Relations of the United States, 1919. The Paris Peace Conference (Washington: Government Printing Office, 1942), Vol. 1, pp. 341, 354 (Allied policies and proposals); Vol. 2, pp. 71–75 (German peace proposals).

³³ Sheldon Glueck, op. cit., p. 146.

³⁴ During the first World War, this question was considered by Bellot, Hugh H. L. in a section of his pioneer study on “War Crimes: Their Prevention and Punishment,” Transactions, Grotius Society, Vol. 2 (1917), at pp. 34 ff.Google Scholar After the war, it was again reviewed by Lord Cave, in “War Crimes and Their Punishment,” ibid., Vol. 8 (1923), at p. xxx.

³⁵ China has been fighting Japanese armies ever since the fateful evening of July 7, 1937, when Japanese troops began holding illegal maneuvers at Lioukouchiao, a railway junction of strategic importance near Peiping, where their presence could not be defended under any existing treaty or agreement; indeed, actual hostilities were in progress at all times between China and Japan, in one area or another, ever since the outbreak of the “first Sino-Japanese controversy” in 1931. On December 12, 1941, the Chinese Government in Chungking released to the press the texts of its two declarations of war (one against Germany and Italy jointly, effective as of December 9, 1941, and the other against Japan). Reprinted in Amer. Jour. of Internat. Law, Vol. 37 (1943), Supplement, pp. 1–2.

The Government of the U.S.S.R. took note of Hitler's proclamation of June 22, 1941, and of von Ribbentrop's statement which was issued simultaneously and was “supposed to constitute a declaration of war.” But Commissar Molotov's statement in reply to that of von Ribbentrop confined itself to noting Germany's aggression. Indeed, the Russian statement, by avoiding a declaration of war, built up a much better case: Russia was fighting in self-defense, and to uphold the sanctity of the provisions of the Pact of Paris. A declaration of war, with debatable usefulness for municipal purposes in a total war, would only detract from this position. For the events of the summer of 1941, cf. New York Times, June 23, 1941, pp. 4, 6, and 10; and ibid., p. 5, for the Italian declaration of war on Russia. An examination of the Chronicle of International Events in the recent issues of the American Journal of International Law, as well as of the daily press and the Information Bulletin issued by the Embassy of the U.S.S.R. in Washington, D.C., did not reveal a formal declaration of war by the Government of the U.S.S.R. against Germany and Italy up to the present time. Cf. also note 37, infra.

For the arguments which follow, it might be of value to ask at this point: Is there a clear test case where, e.g., a state first joined the United Nations in opposing the aggression of the Axis and the violation of the Pact of Paris, and only later issued a formal declaration of war (which, at that later date, was to all intents and purposes primarily of municipal legal importance)? One of the most recent cases in point is that of Ethiopia. On October 9, 1942, an exchange of messages between Emperor Haile Selassie and President Roosevelt was announced by which Ethiopia joined the United Nations. New York Times, Oct. 10, 1942, p. 4. It was not until December 1, 1942, however, that Ethiopia proclaimed [sic!] a state of war with Italy, Germany, and Japan. Department of State Bulletin, Dec. 19, 1942, p. 1009. Cf. the policy of Iran, which became a virtual ally of the United Nations after the Anglo-Russian invasion of August, 1941, and more particularly by the signature of the military pact with Great Britain and the U.S.S.R. on January 30, 1942 (New York Times, Jan. 31, 1942, p. 7). The Iranian Government did not declare war on Germany until Sept. 9, 1943 (ibid., Sept. 10, 1943, p. 3).

³⁶ Quoted by Wright, Quincy, in “The Meaning of the Pact of Paris,” Amer. Jour. of Internat. Law, Vol. 27 (1933), at p. 51.Google Scholar Italics supplied.

³⁷ Ibid. Cf. Rappard, William E., The Quest for Peace (Cambridge, Mass., 1940), pp. 171–172.Google Scholar

³⁸ 7 Moore, Digest, pp. 153–154; Wright, Quincy, “When Does War Exist?,” Amer. Jour. of Internat. Law, Vol. 26 (1932), at p. 363Google Scholar; and Briggs, Herbert W., The Law of Nations (New York, 1938), p. 720Google Scholar, quoting a report of the Secretary-General of the League of Nations in 1927. A state of war implies the jurai equality of the belligerents, as expressed in their equal right to prosecute hostilities and to benefit from the observance of neutrality on the part of third states. This jural equality, however, is incompatible with the concept of aggression.

A declaration of war is thus concerned with legal status, not with a condition. The concepts of a declaration of war and the existence of hostilities apparently have never been synonymous. The hostilities incident to a police action (advisedly we refrain from using the term “reprisals” or the like) under the Briand-Kellogg Pact can be conducted without a declaration of war. Cf. also the provisions of the (Argentine) Anti-War Treaty of Non-Aggression and Conciliation, signed at Rio de Janeiro, October 10, 1933, and the (unofficial) Budapest Articles of Interpretation of the Pact of Paris, adopted by the International Law Association in 1934. U.S. Treaty Series, No. 906, and 38 International Law Association (1934), pp. 1–70, respectively.

³⁹ E.g. the belligerent's municipal rights of restraint, seizure, and destruction of property of the national subjects; prohibition of trade with the enemy; issuance of special licenses to trade with the enemy, of passports and safe-conducts; grant of licenses to cartel ships; permission or prohibition of ransom; prohibition of export of articles subservient to warlike uses; and so forth. Owen, Douglas, Declaration of War (London, 1889), pp. 254–310Google Scholar; Mérignhac, A., De la Déclaration de Guerre (Paris, 1907), pp. 299–369Google Scholar, passim; Burgsdorff, Alhard von, Die Kriegserklärung und ihre Wirkungen (Düsseldorf, 1914), Dissert., pp. 29–70Google Scholar, especially pp. 44 ff. Article 9 of the Harvard Draft on Rights and Duties of States in Case of Aggression: “State assumes the status of a co-defending State by giving notice of that fact to all other States.” And the comment: “…Since other States may have to regulate their conduct to conform to the status of State A as a co-defending State, it seems obviously desirable that State A be required to give notice.” Amer. Jour. of Internat. Law, Vol. 33 (1939), Supplement, p. 901; to the same effect, Article 11, ibid., p. 902, for supporting States.

Cf. also Robert Kempner, M. W., “The Alien Problem in the Present War,” Amer. Jour. of Internat. Law, Vol. 34 (1940), p. 443CrossRefGoogle Scholar; William W. Fitzhugh, Jr., and Charles Cheney Hyde, “The Drafting of Neutral Aliens by the United States,” ibid., Vol. 36 (1942), p. 369.

⁴⁰ Wright, Q., “The Enforcement of International Law through Municipal Law in the United States,” University of Illinois Studies in the Social Sciences, Vol. 5, No. 1 (Mar., 1916).Google Scholar Cf. L. Oppenheim, op. cit., pp. 236–237. The Hague Conventions of 1899 and 1907 laid down rules of international law, but the effectiveness of these rules lies in the fact that states govern the actions of their agents by municipal regulations so as to comply with the standard established by international law. If the standard has changed in some respect, the municipal legal provisions which were formerly required to enforce it may have become obsolete for the purposes of international law. Thus, the Briand-Kellogg Pact (to be made effective) must render obsolete the provision of Article 1 of Hague Convention III of 1907. This does not mean, however, that any of the humanitarian rules of the Hague Conventions still representing standards of international law (together with earlier and later conventions) have likewise been rendered obsolete by the Pact of Paris; they refer to the conduct of hostilities, not a legal state of war, and therefore are standards just as well in a police action under the Briand-Kellogg Pact as in a formally declared full-fledged war of another day. Article 7 of the Budapest Articles of Interpretation, cited. Also Harvard Draft Convention on Rights and Duties of States in Case of Aggression, Article 14 and comment, op. cit., p. 905, and L. Oppenheim, op. cit., pp. 174–175.

It has been suggested that in the present conflict punishment be meted out only to the aggressors' soldiers who violate the rules mitigating the severity of warfare, not to those of the United Nations. Advocates of this idea point out that the authorized agents of a political community have the right to suppress the law-breaker (here of the Pact of Paris) by all available means. This argument may prove difficult to support. Article 14 of the Harvard Draft Convention on Aggression provides that “nothing in this Convention shall be deemed to excuse any State for a violation of the humanitarian rules concerning the conduct of hostilities prescribed by international law or by a treaty to which it is a party.” The use of the words “any State” is in consonance with other provisions of the Convention, e.g. that of Article 3 (1): “Subject to Article 14, an aggressor does not have any of the rights which it would have if it were a belligerent….” Op. cit., p. 886. Italics supplied. The responsible officials of the aggressor states are to be held responsible for violating the Pact of Paris. But if, besides this, the aggressors' soldiers alone are punished for violations of the humanitarian rules concerning the conduct of hostilities, it might in fact imply a vicarious punishment of these individuals for the (different) crime(s) of their rulers and leaders. That the latter, if they have acted both as civilian officials and military leaders, may be guilty of both kinds of violations (Pact of Paris, and rules mitigating the severity of warfare) should not obscure the principal distinction.

Concerning wars which have been fought previously without declarations of war and/or without being followed by a treaty of peace, cf. Maurice, J. F., Hostilities without Declaration of War, 1700–1870 (London: His Majesty's Stationery Office, 1883)Google Scholar; Alhard von Burgsdorff, op. cit., Appendix I; Wright, Quincy, A Study of War (Chicago, 1942), Vol. 1, p. 638Google Scholar, and the tables contained in Appendix XX.

⁴¹ “…On pourrait dire [wrote Judge Caloyanni in 1931], sans être accusé d'aller trop loin, que le Pacte de Paris est un embryon d'un droit constitutionnel international, car, en défendant le recours à la guerre, il domine le droit de déclaration de guerre inscrit dans les diverses Constitutions.” Caloyanni, Megalos A., “L'organisation de la Cour Permanente de Justice et son avenir,” 38 Recueil des Cours (1931, IV), p. 655, at p. 734.Google Scholar

The immediate repercussions of the conclusion of the Briand-Kellogg Pact upon several municipal law systems were pointed out as early as 1930 by the oustanding jurist who drafted both the new Roumanian penal code and one of the first plans for the establishment of a regular international penal court. Pella, Vespasian V., in “La répression des crimes contre la personnalité de l'État,” 33 Recueil des Cours (1930, III), at pp. 805 ff.Google Scholar

⁴² “We have been forced to call out the sheriff's posse to break up the gang in order that gangsterism may be eliminated in the community of nations.” President Roosevelt at Ottawa, Ont., on August 25, 1943 (Department of State Bulletin, Aug. 28, 1943, Vol. 9, pp. 122–123; New York Times, Aug. 26, 1943, p. 2). See also the remarks of Lord Howard of Penrith in the House of Lords, on February 20, 1935, 95 H.L.Deb., 5 s., cc. 1018–1019. Lord Howard, while British ambassador to the United States, participated in the negotiations for the Pact of Paris.

⁴³ The incidental advantages for postwar reconstruction to be derived from preserving the idea of the police action and abstaining from the conclusion of a treaty of peace are many: for instance, there will be no “carving up” and redistribution of territories by the victors at a peace conference. Rather, at the end of the police action all territories and property titles return to the status quo ante crimen (bellum) commissum. Cf. the principle of precariousness in occupation as developed by Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation (Washington, 1942). This is to demonstrate that nothing in international relations shall be gained by sheer force without right. Harvard Draft Convention on Aggression, Article 4, op. cit., pp. 888–896. Cf. Lauterpacht, H. on the maxim ex injuria jus non oritur, in Legal Problems in the Far Eastern Conflict (New York, 1941), pp. 140 ff.Google Scholar But promptly after the criminals have been brought before the international tribunal with which we shall deal in the following pages, and as soon as a law-abiding government of the enemy can be recognized (and we can do no more here than point out that the handling of the tool of recognition by the United Nations ought to be in accord with over-all postwar policy), a conference can be held where equals may thrash out their difficulties. (This would be a conference among equals, and not a peace conference which the defeated enemy might regard as a continuation of military contest by diplomatic means.) To vindicate the reputation of the police action and the principle that grievances should not (because they need not) be resolved by force, this conference must produce results! It would require then at that time a maximum of good-will on all sides for reaching a reasonable (compromise) agreement. It will be an honorable task for propaganda and education everywhere to gain the support of an enlightened public opinion for such a settlement in the interest of peace. The burden of this task will be somewhat lightened from the outset by the absence of a (prior) peace treaty or Diktat; on this, propaganda should capitalize. Cf. Pillsbury, W. B., “Propaganda and the Democratic State,” Scientific Monthly (June, 1943), p. 549.Google Scholar

⁴⁴ Cf. note 12, supra.

⁴⁵ Cf. note 40, supra, concerning the violations of the laws of war.

⁴⁶ A forerunner of the Pact of Paris and of municipal provisions for enforcing its rules may be found in Senator Borah's resolution of February 13, 1923. S. Res. 441, 67th Cong., 4th s. Comp. S. Res. 45, 70th Cong., 1st s., Dec. 12, 1923. As it was then apparent that “war between nations has always been and still is a lawful institution, so that any nation may, with or without cause, declare war against any other nation and be strictly within its legal rights…,” the resolution proposed that “…Every nation should be encouraged by solemn agreement or treaty to bind itself to indict and punish its own international war breeders or instigators and war profiteers under powers similar to those conferred upon Congress under Article I, Section 8, of our Federal Constitution which clothes the Congress with the power to define and punish offenses against the law of nations.” The Borah resolution thus called for “the development of the standard of state responsibility under international law for acts injurious to other states taking place under its authority or in its territory.” Quincy Wright, “The Outlawry of War,” op. cit., at p. 80. Today we tend to prefer the direct responsibility of individuals under international law as a more effective method. We have also become more cautious in ferreting out the “international war breeders or instigators and war profiteers.” Viner, Jacob, “Political Aspects of International Finance,” Jour. of Business, Apr., July, 1928Google Scholar; Southw. Polit. and Soc. Sci. Quar., Mar., 1929; Staley, Eugene, War and the Private Investor (New York, 1935).Google Scholar

⁴⁷ Cf. pp. 6–7, supra.

⁴⁸ Among the most recent surveys of the history of international criminal jurisdiction are the following: Sottile, Antoine, “Le terrorisme international,” 65 Recueil des Cours (1938, III), p. 91, at pp. 139 ff.Google Scholar; Hudson, M. O., “The Proposed International Criminal Court,” Amer. Jour. of Internat. Law, Vol. 32 (1938), pp. 549 ff.CrossRefGoogle Scholar; Philip M. Brown, “International Criminal Justice,” ibid., Vol. 35 (1941), p. 118, at pp. 119 ff. Hudson, Judge also devotes a chapter to the International Criminal Court in his study of The Permanent Court of International Justice, 1920–1942 (New York, 1943).Google Scholar

⁴⁹ These and the following arguments are so briefly summarized that they can in no way do justice to the many learned discussions published on special aspects of the question. A more detailed study should take into careful consideration at least the material indicated in the bibliography accompanying Sottile's article, op. cit.

⁵⁰ International Law Association, Vol. 34 (1926), p. 118, Art. 21 as amended at the Vienna Conference.

⁵¹ William E. Rappard, op. cit., pp. 137–156, passim.

⁵² According to Judge Caloyanni, one of the first suggestions to this effect was made by Fontaine, M. La early in the twenties: “An International Criminal Court,” Transactions, Grotius Society, Vol. 14 (1928), pp. 69–70.Google Scholar

⁵³ Pella, Vespasien V., La Criminalité Collective des États et le Droit Pénal de l'Avenir (Bucharest, Imprimerie de l'État, 1926)Google Scholar, 2nd ed., and the authorities reviewed by Reliquet, Jean, in De l'Utilité et de l'Organisation d'une Jurisdiction Criminelle Internationale (Rennes, 1928)Google Scholar, thèse. Also Saldaña, Quintiliano, “La Justice Pénale Internationale,” 10 Recueil des Cours (1925, V), pp. 225–429Google Scholar, passim.

⁵⁴ Thus the exchange of question and answer between ChairmanCaloyanni, and SirBrewer, Graham at the Vienna meeting of the I.L.A. in 1926. International Law Association, Vol. 34 (1926), p. 154.Google Scholar Similarly, Vadasz, Emeric in his critique of the Vienna proceedings, “Jurisdiction Criminelle Internationale,” Rev. Droit Int. et de Sc. Dipl., Vol. 5 (1927), at p. 278.Google Scholar

⁵⁵ The limitations of the unification idea as such can be seen in the Official League Document on the “Gradual Unification of Criminal Law and Coöperation of States in the Prevention and Suppression of Crime,” of May 30, 1933. L. of N., Office. No. A.7.1933 V.

⁵⁶ Cf. the examples cited by Pella, “La Répression des Crimes, etc.,” op. cit., pp. 806–809; notes 1 and 2, p. 809. Article 229 of the Roumanian penal code project of July, 1928, e.g., provided: “Seront punis de la détention simple de deux mois à un an tous ceux qui, dans le but de forcer l'État roumain à déclarer une guerre d'aggression, inciteront l'opinion publique à une pareille querre par une propagande faite à l'aide des moyens indiqués á l'article 138 [press, etc.]….” Cf. Art. 508 of the Brazilian penal code project (V. de Sa Pereira) and 107 of the Polish penal code project of November, 1929.

⁵⁷ As late as 1929, Professor Levitt's draft of an international criminal code made such provision (Arts. 2 and 6). Levitt, Albert, “A Proposed Code of International Criminal Law,” Rev. Int. de Droit Pénal, Vol. 6 (1929), pp. 18–32.Google Scholar Cf., however. Art. 7, p. 26.

⁵⁸ This is not meant to imply that the League Council and Assembly never condemned wars of aggression. Cf. the “Declaration Concerning Wars of Aggression,”. Sept. 23, 1927, L. of N., Official Document No. A.109.1927.IX. Engel, S., “League Reform; An Analysis of Official Proposals and Discussions, 1936–1939,” Geneva Studies (Geneva Research Center), Vol. 11, Nos. 3–4 (Aug., 1940).Google Scholar

⁵⁹ Article 16 of the League Covenant appears to contain a contradiction. It provides: “1. Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13, or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake to subject it to the severance of all trade or financial relations, … and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not.” (Italics supplied.) The second paragraph of the Article cited makes provision for possible military measures. But if an act of aggression is styled a “resort to war” and considered to initiate a “state of war,” giving the aggressor full legal status as a belligerent with rights equal to those possessed by the state attacked, the economic and military sanctions to which League members are obligated in such cases can have no foundation in law as a police action. The amendment to Article 16 (1), now awaiting ratification, does not remedy the flaw.

⁶⁰ The term “instrument,” as used in the Pact, should be interpreted as meaning “utensil,” “implement,” employed by natural persons. Cf. Caes. B.G. 6, 30; Just. 38, 10, 4; Ov. M. 3, 698.

⁶¹ Cf. note 40, supra. The aggressor, however, does not have any of the rights which it would have as a lawful belligerent (conscription of property, etc.). Harvard Draft Convention on Aggression, cited, Arts. 2–4 incl.

⁶² The “High Contracting Parties” of the General Pact for the Renunciation of War are: “the president of the german reich, the president of the united states of america, his majesty the king of the belgians, the president of the french republic, his majesty the king of great britain, ireland and the british dominions beyond the seas, emperor of india, his majesty the king of italy, his majesty the emperor of japan, the president of the republic of poland, the president of the czechoslovak republic….”

These parties, in the first Article of the Pact, “…solemnly declare in the name of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” Text of Pact as reprinted in International Conciliation, Oct., 1928 (No. 243), pp. 521–523.

If these sovereigns (and the governments of their states), in a manner binding upon themselves and their successors, “declare in the name of their respective peoples” that resort to war shall henceforth be unlawful, it may be construed that these rulers and officials cease to represent (and speak in the name of) their peoples if they do resort to (an aggressive) war, now that the Pact is in force. The same applies to the later adhering parties of the Pact. Rulers and governments who employ war as an instrument of national policy despite solemn promises to the contrary thus become “outlaws” under international law. These “outlaws” may be accused of an act of high treason committed on the international community. (The only party to the Pact which can automatically become an international outlaw is the Japanese Government, due to the reservation it made when signing the agreement: the Japanese Emperor became a party to the Pact in his own right; he did not act “in the name of his people.”) Professor Glueck writes, not referring to the Pact alone: “The doctrine that a “chief of state” is immune from trial and punishment no matter how heinous and numerous his crimes requires serious re-examination. A sound argument can be made to the effect that it is a doctrine of municipal law and does not necessarily apply to international law nor to the jurisdiction of the proposed International Criminal Court.” Op. cit., p. 145.

The feasibility of the initial suggestion of Professor Glueck may be proved more readily than he appears to be aware. In municipal law, cf. the trial of Mary Queen of Scots under 27 Eliz.c.1 (1585), and of Charles Stuart (Jan. 3–4, 1649), 4 Howell, , State Trials, pp. 989 ff.Google Scholar In modern times, the penal responsibility of a chief of state was recognized, e.g., by Article 68 of the French Constitution of 1848 (making dissolution of the National Assembly by the President of the Republic high treason). In international relations, precedents can likewise be found as early as the tenth, eleventh, and twelfth centuries, e.g., the trial of Henry the Lion, and the case of John Lackland, whose criminal trial scholars have much neglected as compared with the feudal trial. Cf. Mitteis, Heinrich, “Politische Prozesse des früheren Mittelalters in Deutschland und Frankreich,” Sitzungsber., Heidelb. Akad. d. Wissensch., Philosophisch-hist. Klasse (1926–1927), 3. Abhandlung, pp. 48 ff.Google Scholar, and pp. 88 ff.

⁶³ In 1924, Philip Marshall Brown called for “a thorough reappraisal and revision of the principles of the law of nations in order to regulate properly all the complicated relationships in international society and to facilitate justice within the family of nations….” “The Individual and International Law,” Amer. Jour. of Internat. Law, Vol. 18 (1924), at p. 534. Wrote Professor Jitta early in 1925: “…C'est en somme le genre humain qui est la base de tous les devoirs at de tous les droits internationaux. Cette thèse, que j'ai cru devoir adopter est loin d'être généralement admise. Abstraction faite de ma santé chancelante, je ne m'attends à le voir prédominer de mon temps, mais, pour l'avenir, je ne désespère pas.” “Nation et Individu,” Grotius, Annuaire international pour l'année 1925 (The Hague, 1925), at p. 84. Cf. also Politis, Nicholas, The New Aspects of International Law (Washington, 1928), pp. 20 ff.Google Scholar; Spiropoulos, Jean, “L'individu et le droit international,” 30 Recueil des Cours (1929, V), p. 195Google Scholar; Hambro, Edvard I., “Individuals before International Tribunals,” Proceedings, Am. Soc. Int. Law, Vol. 35 (1941), p. 22Google Scholar; Aufricht, Hans, “Personality in International Law,” in this Review, Vol. 37 (1943), p. 217.Google Scholar The idea of giving individuals direct access to international courts appears to have taken concrete form for the first time in the Convention for the Establishment of a Central American Court of Justice (Art. 2). Reprinted in Amer. Jour. of Internat. Law, Vol. 2 (1908), pp. 231 ff.

⁶⁴ For details, cf. Antoine Sottile, op. cit., pp. 142 ff.; Kuhn, Arthur K., “The Assassination of King Alexander,” Amer. Jour. of Internat. Law, Vol. 29 (1935), p. 87CrossRefGoogle Scholar; Liais, Michel, “L'affaire hungaro-yugoslave devant le Conseil de la Société des Nations,” Rev. Gen. de Droit Internat. P., Vol. 42 (1935), p. 127.Google Scholar

⁶⁵ L. of N., Official Documents Nos. C.547.M.383.1937.V and C.547.M.384.-1937.V.

⁶⁶ Hudson, Manley O., The Permanent Court of International Justice, 1920–1912, pp. 86–87.Google Scholar

⁶⁷ Cf. L. of N. Document No. C.547.M.384.1937.V., Art. 1.

⁶⁸ For confirmation of the feasibility of such a code, cf. Cohn, Georg, Kriegsverhütung und Schuldfrage (Leipzig, 1931), p. 49Google Scholar; Dumas, Jacques, “Y a-t-il des crimes internationaux?,” Rev. de Droit Internat. et de Légis. Comp., Vol. 13 (1932), pp. 721 ff.Google Scholar

With regard to the treatment of violations of the laws and customs of war at the Hague Conference of 1907, Professor Garner quotes Professor Renault as having stated shortly before his death that the draft of the règlement was “hastily passed over by the Conference, a few changes of detail being made here and there, and that the question of penal sanctions was overlooked.” Garner, op. cit., p. 467. This lacuna may then be filled by provisions of the proposed code. Cf. also Quincy Wright, Study of War, op. cit., Vol. 2, pp. 1345–1347. In note 62, supra, I spoke of the crime of high treason on the community of nations. Such a crime, defined in an international criminal code, could exist along with the crime of high treason defined by national codes much as citizens of the old German Empire could be prosecuted for both Reichs-Hochverrat and Landes-Hochverrat. Cf. Grolman, Karl von, Grundsätze der Criminalrechts-Wissenschaft (Giessen, 1825), 4th ed., par. 331.Google Scholar

⁶⁹ Thus the German St.G.B. may be utilized in coping with the bothersome penal problem of “violations of the basic laws of humanity,” p. 24, supra. “Eine Liste der Verbrechen deren sich die Nazis nach ihrem Strafgesetzbuch schuldig machten,” Aufbau, Dec. 25, 1942, p. 1. Care must then be exercised to avoid improper exculpations under the “escape paragraph” 51, St.G.B. The unbelievable latitude of recent revisions of the German penal code may likewise prove useful. Kempner, Robert M. W., “Hitler's Criminal Code,” Free World, Vol. 1, p. 395.Google Scholar Cf. also Pella, op. cit., pp. 707 ff., for a review of various national penal code provisions.

⁷⁰ Ernst. J. Cohn, op. cit., p. 148, suggests establishment of international penal institutions in a League state (with a status similar to that of the Vatican) as ultimate goal.

⁷¹ The “police actions” are, to all intents and purposes, full-fledged “just wars.”. The establishment of an international police force as such has not been considered here, since the usefulness of one general police force might at best appear doubtful. It would seem a long step from the kinds of police force which Wehberg found already enforcing special international (often regional) conventions to that mentioned by Keeton, whose police force would repress crimes of aggression. If a case of real aggression occurs, hostilities will break out in any event. But why should a standing international army (often equated to the term “police force”), possibly caught half prepared after long years of peace, be more conducive to the maintenance of world order than the legal obligation of all states to come to the rescue of the attacked, so to speak, in a just war “ordered” by the new court, or in execution of one of its decisions? A legal order must conform to the natural characteristics of those whom it purports to rule. The functions of a police force to suppress aggression seem to be better taken care of by the utilization of the “just war” idea in a world where states are to persist. Wehberg, Hans, Theory and Practice of International Policing (London, 1935), pp. 43–55Google Scholar; Keeton, George W., National Sovereignty and International Order (London, 1935), p. 159Google Scholar, both New Commonwealth Institute monographs. Cf. Hermann Mannheim, op. cit., Chap. 7, pp. 176 ff. Professor Mannheim, however, would support the redefinition of parts of the criminal law to exclude the requirement of mens rea, and thus to make collective persons also in international law criminally responsible (ibid., pp. 199–200). While I fully subscribe to the utilization of the just war idea, I cannot recommend, in view of our earlier arguments, that mens rea be abandoned here.

⁷² Corresponds to the provision in Part III, Art. 229, Treaty of Versailles.

⁷³ Congress has the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” U.S. Constitution, I, 8 10. Under this provision, Congress could provide that certain offenses, over which the United States now has or could take jurisdiction, should be subject to the jurisdiction of the International Criminal Court. Sheldon Glueck, op. cit., p. 145; cf. note 46, supra.

⁷⁴ Schwarzenberger, Georg, “War Crimes and the Problem of an International Criminal Court,” Czechoslovak Yearbook of International Law, 1942, p. 75.Google Scholar Manner, op. cit., note 11, supra. White, Thomas R., “War Crimes and Their Punishment,” Yale Review, June, 1943, Vol. 32, p. 706, at p. 718.Google Scholar Professor Charles Cheney Hyde reëxamined the questions involved in his paper on “Punishment of War Criminals,” read before the meeting of the American Society of International Law, on May 1, 1943. Cf. also the transactions of the second conference of the Inter-American Bar Association, which opened on August 7, 1943, in Rio de Janeiro, and the report of the subcommittee studying the subject of war crimes to the American Bar Association on August 24, 1943, at its Chicago meeting, submitted by the subcommittee's chairman, Mr. Edwin D. Dickinson.

⁷⁵ Schwarzenberger, op. cit., p. 81, n. 5.

⁷⁶ Among the commentaries on the new German military penal code, written before and after its enactment respectively, the following are elucidating: Schmidt, Eberhard, Die militärische Straftat und ihr Täter (Berlin, 1936)Google Scholar, and Gösser, Fritz, Der Missbrauch der Dienstgewalt (Berlin, 1939).Google Scholar

⁷⁷ The most recent edition of the British Manual is dated 1929; the thirty-two amendments to this edition, issued to March, 1943, leave the article in question untouched. Section 366 of the American Rules, 1917 edition, reappears (as concerns the crucial “no trial passage”) in Section 347 of the 1940 edition of the Rules (Field-Manual 27–10). The only support among international lawyers for these provisions was the statement in Oppenheim's International Law, Vol. II, par. 253.Google Scholar In the sixth edition (1940) of Oppenheim's work, however, Lauterpacht has undertaken to revise the argument.

⁷⁸ Bills of attainder and bills of pains and penalties, as differing from impeachments, have been used in English constitutional history generally (though not always) “on occasions of great moment and urgency,” according to John Earl Russell: “…Two circumstances seem to be requisite to all bills of this kind:—First, That it is impossible to convict the offender by due course of law. Secondly, That his escape would be in the highest degree injurious to the State. Great indeed must be the mischief that would arise from the impunity of a criminal, to overbalance the evil of shaking the common security of the subject, disturbing the regular course of justice and affording an example of punishment inflicted on one who cannot be convicted of a crime.” An Essay on the History of the English Government and Constitution (London, 1865), 2d ed., pp. 119–120. For instances of bills of attainder passed by Parliament, cf. ibid., pp. 120–123.

⁷⁹ Quincy Wright, op. cit., Vol. 2, p. 915.