DISSENTIENT JUDGEMENT OF R.B. PAL, TOKYO TRIBUNAL
As far back as 1934 at a conference of the International Law Association held in Budapest views were expressed that the Pact of Paris had brought in a revolution in international law—not a revolution in the sense that war had ceased—but that, while war waged as an instrument of national policy prior to 1928 was lawful, and gave rise to belligerent rights and neutral duties, such a war waged after 1928 had become unlawful and, consequently, could not give rise to rights and duties: ex injuria non oritur jus. Similar views were reiterated at the Fortieth Conference of the Association held at Amsterdam in 1938. Some of the international lawyers asserted that no party to the Pact of Paris, which would violate the Pact, would have any rights whatever as a belligerent, as regards either the state attacked or neutrals, and that it would render itself in law liable for every injury done, whether to the state attacked and its members or to a neutral state and its members.
This view as to the effect of the Pact on the legal character of war was not shared by all and certainly did not in any way reflect the changes that might take place amongst nations in their practical regard for the Pact. If the effect of the Pact were to render war illegal depriving its author of belligerent rights there would be no duty of neutrality in any nation on the occasion of any such war.
Dr. Scheuner of Vienna examined the practice of nations with regard to neutrality since 1928, and the result of his examination was presented before the Conference at Amsterdam referred to above. The learned Professor traced the development of neutrality first since the foundation of the League of Nations up to 1928 and then since the Kellogg-Briand Pact. For the first period he considered how much regard the several nations paid to the Articles of the League Convention and summed up the result thus:
“In practice ... all the states have acted during this period as though the law of the neutrality had continued to exist.”
He then cited instances in support of this view.
Coming to the second period Dr. Scheuner found “that the governments since 1928 have in their treaties as well as in their political declarations and actions accepted the point of view that neutrality in its traditional sense is not incompatible with the obligations of the members of
the League and of the signatories of the Briand-Kellogg Pact of Paris. A number of governments have not hesitated to declare themselves neutral, to undertake obligations to remain neutral in the event of a war, or to declare that in the event of war they wish to remain neutral.
Though not decisive, this throws some light on the question as to what changes took place amongst nations in their PRACTICAL REGARD FOR THE PACT. Nations do not seem to have behaved as if war after 1928 became an illegal thing. At least they preferred to recognize belligerent rights even in the case of a war in violation of the Pact. As I shall show later, both the U. S. A. and the U. IC. entertained this view of the incidents of belligerency attaching to such a war. On February 27, 1933, Sir John Simon, discussing in the House of Commons the embargo on the shipments to China and Japan spoke of Great Britain as a “neutral government”, and of the consequent necessity of applying the embargo to China and Japan alike. So, at that time Japan’s war in China was not considered to be an illegal thing.
As has been pointed out by Mr. Finch:
1. In January 1933, during the alleged aggression of Japan upon China in violation of the Nine Power Treaty, the covenant of the League of Nations and the Pact of Paris, Secretary of State Mr. Stimson, recommended that Congress “confer upon the President authority in his discretion to limit or forbid, in co-operation with other producing nations, the shipment of arms and munitions of war to any foreign state when in his judgment such shipment may promote or encourage the employment of force in the course of a dispute or conflict between nations.” No congressional action was taken upon this recommendation, but two years and a half later Congress passed the Neutrality Act of August 31, 1935, placing an embargo on the export of munitions of war to every belligerent state.
2. This law was put into effect by President Roosevelt in the War of Italy upon Ethiopia.
3. The Neutrality Act of 1935 was of a temporary character. It was replaced by permanent legislation in the Neutrality Act of May 1, 1937. This Act continued the embargo on the shipment of arms etc. to ALL belligerents . . .
4. War in Europe started by the invasion of Poland on September 1, 1939.
Three weeks later, on September 21, President Roosevelt sent a message to Congress requesting the repeal of the embargo and a return to the “historic foreign policy” of the U. S. based on the “age-old doctrines of international law”, that is “on the solid footing of real and traditional neutrality”, which, according to John Quincy Adams "recognizes the cause of both parties to the contest as just—that is, it avoids all consideration of the merits of the controversy.
Mr. Finch points out that in the light of this legislative history of the official attitude of the government of the U. S. toward the interpretations of the pact, it is impossible to accept the thesis that a war in violation of the Pact was illegal in international law on September 1, 1939.
My own view is that war in international life remained, as before, outside the province of law, its conduct alone having been brought within the domain of law. The Pact of Paris did not come within the category of law at all and consequently failed to introduce any change in the legal position of a belligerent state or in the jural incidents of belligerency.
If the Pact of Paris thus failed to affect the legal character of war, either directly or indirectly, the next question is WHETHER ANY CATEGORY OF WAR BECAME CRIME OR ILLEGAL THING in international life in any other way.
Dr. Glueck answers this question in the affirmative and says that a CUSTOMARY INTERNATIONAL LAW developed making an aggressive war a crime in international life.
For this purpose Dr. Glueck relies on the following data:
1. The time has arrived in the life of civilized nations when an international custom should be taken to have developed to hold aggressive war to be an international crime.
2. It is familiar law in the international field that custom may, in the words of Article 38 of the statute of the Permanent Court of International Justice, be considered “as evidence of a general practice accepted as law”.
( a ) All that is necessary to show is that during the present century a widespread custom has developed among the civilized states to enter into agreements expressive of their solemn conviction that unjustified war is so dangerous a threat to the survival of mankind and mankind’s law that it must be branded and treated as criminal.
3. In addition to the Pact of Paris, the following solemn international pronouncements may be mentioned as the evidence of this custom and of this conviction:
(a) The agreements limiting the nature of the deeds permissible in
the extreme event of war: The Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1929 regulating the treatment of prisoners of war.
(b) The draft of a treaty of mutual assistance sponsored by the
League of Nations in 1923, solemnly declaring (Article l) that aggressive war is an international crime, and that the parties would undertake that no one of them will be guilty of its commission.
(c) The preamble to the League of Nations 1924 Protocol for the
Pacific Settlement of International Disputes (Geneva Protocol) referring to aggressive war as crime.
(d) The declarations made at the Eighteenth Plenary meeting of the Assembly of the League of Nations held on September 24, 1927.
(e) The unanimous resolution, February 18, 1928, of the twenty- one American Republics at the Sixth (Havana) Pan American Conference declaring that “War of aggression constitutes an international crime against the human species”.
(f) The preamble of the general convention signed by the representatives of all the republics at the international conference of American states on conciliation and arbitration held at Washington in December 1928, containing the statement that the signatories desired “to demonstrate that the condemnation of war as an instrument of national policy in their mutual relations set forth in the Havana Resolution constitutes one of the fundamental bases of inter-American relations . . . . ”
(g) The preamble of the Anti-war Treaty of Non-Aggression and conciliation signed at Rio de Janeiro, October 10, 1933, stating that the parties were entering into the agreement “to the end of condemning wars of aggression and territorial acquisitions . . . . ”
(h) Article 1 of the notable Draft Treaty of Disarmament and Security prepared by an American group and carefully considered by the Third Committee on Disarmament of the Assembly of the League of Nations 1924, providing that “The High Contracting Parties solemnly declare that aggressive war is an international crime.
Senator Borah’s Resolution introduced on December 12, 1927.
As evidence of the suggested custom Dr. Glueck refers to a few solemn international pronouncements noticed above. These pronouncements, it may be observed, are mostly in agreements between states.
Agreements between states no doubt may have the significance attached to them by Dr. Glueck. Besides creating rights and duties inter-partes, they may have the significance of being the pronouncement of some GROWING POPULAR CONVICTION and may thus ultimately contribute to the growth of a rule as an international customary law.
There is however some difficulty in determining the value of usages professing to be the groundwork of rules derogating from accepted principles. As has been pointed out by Hall, in some cases their universality may establish their authority; but in others, there may be a question whether the practice which is said to uphold them, though unanimous as far as it goes, is of value enough to be conclusive; and in others again it has to be decided which of two competing practices, or whether a practice claiming to support an exception,
is strong enough to set up a new, or destroy an old, authority.
In the present case the alleged customary law, if established, would destroy a well-established fundamental law, namely, the sovereign right of each national state. Before the alleged custom was established this right was recognized as a fundamental one in the international system and THE REASON WHY THIS HAD TO BE RECOGNIZED as an essential one still exists.
“The interests protected by international law are not those which are of major weight in the life of states. It is sufficient to think of the great political and economic rivalries to which no juridical formula applies, in order to realize the truth of this statement. International law develops its true function in a sphere considerably circumscribed and modest, not in that in which there move the great conflicts of interests which induce states to stake their very existence in order to make them prevail.”
This is what Anzilotti says about the sphere of international law as it now stands. It may not be an accurate statement from the point of view of the actual content and scope of international law in so far as it wants to say that international law is concerned only with minor issues between states. The major questions of the existence of states and their rights as members of the international community certainly form the subject matter of that law. But even now questions of very great weight in the life of states are left OUTSIDE the system and no state would agree to make them justiciable. It is an undeniable fact that such major questions of international relations have been regarded as pertaining to the domain of politics and not of law. No customary law can develop in respect of them until they are brought within the domain of law. So long as states persist in retaining their own right of judgment as to whether or not a certain requirement is necessitated by their self-defense, the matter remains outside the domain of law.
I have already quoted from the views expressed by Professor Quincy Wright in 1925 to show that in his view no war was crime up to that time.
In December 1927, Senator Borah in his resolution before the United States Senate stated that until then “War between nations has always been and still is lawful institution, so that any nation may, with or without cause, declare war against any other nations and be strictly within its legal rights. Dr. Glueck refers to this resolution but omits to notice this statement of the then existing law.
These statements, in my opinion, correctly give the law then existing. The question, therefore, is when did the alleged customary law develop? It did not certainly develop during the few months preceding the date of the Pact of Paris. In my opinion it never developed even after that date. CUSTOMARY LAW DOES NOT DEVELOP ONLY BY PRONOUNCEMENTS. Repeated pronouncements at best developed the custom or usage of making such pronouncements.
Before we can accept pronouncements referred to by Dr. Glueck as evidence of proposed customary rule we must remember that these pronouncements relate to the very foundation of the present international system which keeps such issues outside the domain of law.
NATIONAL SOVEREIGNTY is, even now, the very basis of the so-called international community. States are not only parties but also judges and executors in their own cases in relation to certain matters. The dangers of a too rigid application of the doctrine of national sovereignty and of the principles of “self-determination” are not even now fully appraised. It is still considered better to run the risk of sacrificing the directing influence of any central authority, than to allow its operations to be extended into the sphere of the internal activity of states.
The division of mankind into national states dates from the time when the idea of the World Empire had disappeared, and all the states confronted one another independently, and without supreme authority.
The division was indispensable: ITS JUSTIFICATION had been that the members of the different states could develop their qualities and talents without being hindered by the contradictory views and endeavours of others who might be dominated by an entirely different view of life. Such a national formation is of special value, because it is the only way in which a uniformly gifted national group can develop its own life, its own talents and abilities to the utmost. It is the vocation of a national society to thoroughly develop every capability inherent in any people and its justification is its affording an opportunity for the profitable employment of everyone’s activity everywhere.
A national society, from the very circumstances of its origin and development, is aware of the bearing of the interests of its own members upon the universal objects of general humanity and consequently is bound to regard other national societies not only as entitled to rights equal with its own, but as supplementing itself. National states thus cannot seek any absolute seclusion, nor strive after any absolute self-sufficiency; and IN THIS SENSE the period of national states is also marked by the period of international society. But this international society is anything but a society under the reign of law.
No doubt the national state cannot be considered so definite and perfect a policy amongst the societies as to form THE UTMOST BOUNDARY OF their development . Every class of the population has its own onesidedness; it will remain stationary on a certain plane of education and knowledge unless it receives impulses from without and feels the influence of foreign images and ideas; so that a constant exchange between its own development and between the assimilation of, and adaptation to, external ideas takes place. In this way nations have developed and are developing in state communities.
The federation of mankind, based upon the external balance of national states, may be the ideal of the future and perhaps is already pictured in the minds of our generation. But until that ideal is realized, the fundamental basis of international community, if it can be called a community at all, is and will continue to be the national sovereignty.
INTERNATIONAL ORGANIZATION has not, as yet, made any provision for full realization of this very essence of national sovereignty. Its realization is left to the POWER of the national state. There has not, as yet, been any organization for real international peace. Peace, hitherto, has been conceived of only as negation of war and nothing more. In such circumstances, so long as
the application of “ power” remains the fundamental principle, PRONOUNCEMENTS LIKE THOSE REFERRED TO BY DR. GLUECK WOULD, in my opinion, FAIL TO CREATE ANY CUSTOMARY LAW.
But what are really these pronouncements? And before we attach any value to them we must not ignore the fact that whenever called upon to declare a war to be a crime states did not adequately respond.
The states have always been careful in retaining their right to decide WHAT THEY WOULD CONSIDER TO BE WAR IN DEFENSE. None as yet is prepared to make the question whether a particular war is or is not " in defense ” justiciable. So long as a state retains its own decision as final in this respect, no war is made criminal.
After a careful consideration of all these facts and circumstances I am of the opinion that NO INTERNATIONAL CUSTOMARY LAW COULD DEVELOP through the pronouncements referred to by Dr. Glueck and relied on by the prosecution.
The pronouncements at most only amounted to expressions of the conviction of persons making them. But these are not yet attended by any act on the part of any of the states. Custom as a source of law presupposes two essential elements:
1. The juristic sentiments of a people.
2. Certain external, constant and general acts by which it is shown. It is indicated by identical conduct under similar external circumstances. THE CONDUCT OF NATIONAL STATES during the period in question rather goes the other way.
It may be that Dr. Glueck is thinking of “customary law” in a specific SENSE. It cannot be denied that in one sense customary law, statute and juristic law are all shoots from the same slip, namely, POPULAR consciousness. In this sense the center of gravity of the development of all law—not only of customary law—can be placed into the legal consciousness, “the natural harmony of the conviction of a people, which is a popular universal conviction”. For this purpose its emergence in usage is not essential to the origin of law. In this sense there need be no other prerequisites to the origination of customary law than a common popular conviction, We are, however, not much concerned with customary law in this SPECIFIC SENSE. No doubt it has its own scientific value. But we are concerned with customary law in a sense in which it becomes applicable by a judge.
There are prerequisites to its applicability by the judge. Puchta was not concerned with such prerequisites in his scientific evaluation of customary law, but he recognized them: “But if we take prerequisites to mean something else, e.g., if we take it in the sense of a prerequisite to the application by the judge, to his acceptance of customary law, then that whereof we are speaking no longer is a prerequisite to customary law itself. In this case the question to be answered is: What must the judge take into account when a party litigant appeals to customary law or when for any other reason he is called upon to consult this source of law? What are the presuppositions under which customary law can actually be assumed to exist?” There is thus a sharp distinction between the question as to the origin of customary law
in the mere popular conviction and as to its applicability by a court. There may be customary law in the sense that it exists in the conviction of the people; yet it may not be law applicable by a court because the prerequisites to its applicability by the court are lacking. Herein comes THE USAGE which is wanting in the present case. The people should not merely be conscious of their law but they must live their law, —they must act and conduct themselves according to it.
This living according to law is required not as a mere form of manifestation but also as a means of cognition of customary law. When the conduct of the nations is taken into account the law will perhaps be found to be THAT ONLY A LOST WAR IS A CRIME.
I may mention here in passing that within four years of the conclusion of the Pact there occurred three instances of recourse to force on a large scale on the part of the signatories of the Pact. In 1929 Soviet Russia conducted hostilities against China in connection with the dispute concerning the Chinese Eastern Railway. The occupation of Manchuria by Japan in 1931 and 1932 followed. Then there was the invasion of the Colombian Province of Leticia by Peru in 1932. Thereafter, we had the invasion of Abyssinia by Italy in 1935 and of Finland by Russia in 1939. Of course there was also the invasion of China by Japan in 1937.
Dr. Lauterpacht points out that it is arguable that a war or a succession of wars between a considerable number of important signatories would remove altogether (i.e., also for other signatories) the basis of a Pact in which a substantial degree of universality may appropriately be regarded as being of the essence. But we may leave this question alone for the present.
In my opinion, no category of war became illegal or criminal either by the Pact of Paris or as a result of the same. Nor did any customary law develop making any war criminal.
Mr. Comyns Carr for the prosecution appealed to what he characterized as the very foundation of international law and invited us to apply what he called well-established principles to new circumstances. He said:
“International law like the legal system of . . . all of the English speaking countries . . . consists of a common law and a more specific law, which in the case of individual countries is created by statute, and in the case of international law is created by Treaties. But the foundation of international law, just like the foundation of legal system ... of English speaking countries is, common law. That is to say, it is the gradual creation of custom and of the application by judicial minds of old established principles to new circumstances. It is unquestionably within the power, and, . .. the duty of this Tribunal to apply well-established principles to new circumstances, if they are found to have arisen, without regard to the question whether precise precedent for such application already exists in every case.”
I would presently consider how far this so-called foundation of international law will carry us towards declaring any category of war as having been a crime in international life. The context in which Mr. Carr made this appeal
only goes to indicate that the well-established principle referred to by him relates to a “nomenclature”. Mr. Carr is there dealing with the defense contention as to the import of the expression “war criminal” as used in the Potsdam Declaration. He refers to Article 227 of the Treaty of Versailles as “laying down the principle and applying what was already a well-established principle to new circumstances”. The Article in question of the Treaty of Versailles is the one wherein “the Allied and Associated Powers” proposed “publicly to arraign” the German Emperor “ for a supreme offense against international morality and the sanctity of treaties”. The only principle or principles that can possibly be gathered from this Article seem to be:
1. That the Allied and Associated Powers may place on trial the head or heads of the defeated state.
2. That such powers may constitute a Tribunal for such trial.
3. That such a Tribunal is to be guided by the highest motives of international policy, with a view to vindicating the solemn obligation of international undertakings and the validity of international morality.
As I read the Article it contains no principle making the war a crime or obliging the tribunal set up by the victors to declare such a war illegal or criminal.
Analogous to Mr. Carr’s appeal seems to be the appeal of Lord Wright to the progressive character of international law and to the creative power of an international tribunal. Similarly there have been appeals to the developed character of international community, to the laws of nature as also to a widening sense of humanity.
Lord Wright says:
“It may be said that for ages it has been assumed, or at least taken for granted in practice, among the nations that any state has the right to bring aggressive war as much to wage war in self-defence and that the thesis here maintained is revolutionary. In fact, the evil or crime of war has been a topic of moralists for centuries. It has been said that ‘ one murder makes a felon, millions a hero’. The worship of the great man, or perhaps the idea of sovereignty, paralyses the MORAL SENSE OF HUMANITY. But INTERNATIONAL LAW IS PROGRESSIVE. The period of growth generally coincides with the period of world upheavals. THE PRESSURE OF NECESSITY stimulates the impact of natural law and of moral ideas and converts them into rules of law deliberately and overtly recognized by the consensus of civilized mankind. THE EXPERIENCE OF TWO GREAT WORLD wars within a quarter of a century cannot fail to have deep repercussions on the senses of the peoples and their demand for an International Law which reflects international justice.
I am convinced that International Law has progressed, as it is bound to progress if it is to be a living and operative force in these days of widening sense of humanity . An International Court, faced with the duty of deciding if the bringing of aggressive war is an international crime, is, I think, entitled and bound to hold that it is, for the reasons which I have briefly and imperfectly here sought to advance. I may add to what I have said,
that the comparatively minor but still serious outrages against the Pact, such as the rape of Manchuria in 1931 and the conquest of Abyssinia in 1935 were strongly reprobated as violations of the Pact of Paris; indeed though the Pact did not provide for sanctions, the latter outrage provoked certain sanctions on the part of some nations. In addition there is a strong weight of legal opinion in favour of the view here suggested.”
He then proceeds: “An International Court, faced with the duty of deciding the question, would do so somewhat on the same principles as a municipal Court would decide the question whether a disputed custom has been proved to exist. It would do so on the materials before it. These materials are of course different in character where the dispute is whether the existence of a rule of International Law has been established as part of the customary law between the nations. I have indicated my view as to what such materials are. A Court would also seek to harmonize the customary rule with the principles of logic or morality and of the conscience of civilized mankind. The law merchant (to compare small things with great) existed as law enforceable by its proper courts before it was accepted as part of the national legal system. The Court would bear in mind that time and experience bring enlightenment and that obsolete ideas and prejudices become outworn.”
The reference to the PROGRESSIVE CHARACTER OF INTERNATIONAL LAW is really an appeal to the ultimate vital forces that bring about the development of legal institutions.
The observations made in this connection are very valuable contributions to a theory of the sources of law and certainly are of permanent value as such. They expose the real workshop of the law.
No doubt it is the function of a theory of the sources of law to discover the vital forces that bring about the development of legal institutions. But these are yet to pass through some adequate social process in order to develop into law. I do not consider trials of the defeated nationals to be the just and adequate social progress of this purpose. At least in international life, in developing legal relations, the feeling of helplessness should not be allowed to serve as the basis. A mere Might’s grip cannot long elude recognition as such and pass for Law’s reach.
Like Lord Wright, Prof. Wright, Mr. Trainin and Dr. Glueck also appeal to this progressive character of the law and to a widening sense of humanity.
According to Dr. Glueck the time has arrived in the life of civilized nations when an international custom should be taken to have developed to hold aggressive war to be an international crime. He insists that an issue of this kind ought not to be disposed of on the basis of blind legalistic conceptualism; it should be dealt with realistically in the light of the practical as well as logical result to which one or the other solution will lead.
Mr. Trainin relies principally on the Moscow Proclamation of October 30, 1943 and emphasizes that this marks a new era of development of social life in international community. According to him to facilitate this process of
development and to strengthen these new ideas, juridical thought is obliged to forge the right form for these new relations, to work out a new system of international law, and, as an indissoluble part of this system, to direct the conscience of nations to the problem of criminal responsibility for attempts on the foundations of international relations.
In my view, international society has not yet reached the stage where the consequences contemplated by these learned authors would follow.
Even after the formation of the League of Nations we had only a group of COORDINATED STATES with their sovereignty intact. The best account of the developments of international society is given by Professor Zimmern in his book entitled “The League of Nations and the Rule of Law”. Dr. Schwarzenberger also takes the same view.
“People learned from the war only “to substitute the notion of organic association between independent, self-governing and cooperatively minded peoples.” Democracy and centralization do not, it is said belong to the same order of ideas. They are, in essence, as incompatible as freedom and slavery. The League of Nations thus “while morally a great effort of faith was administratively a great effort of decentralization.”
It was simply a system of international cooperation.
“The high contracting parties in order to promote international cooperation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honorable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another, agreed to this covenant of the League of Nations.”
No international community of any higher order came into being. The League showed particularly scrupulous regard for national sovereignty and laid special emphasis on such sovereignty by adopting the PRINCIPLE OF UNANIMOUS VOTE. National sovereignty and national interest continued to play the fundamental part in this organization.
There has no doubt been, since the outbreak of the World War, a feeling on the part of many writers that there should be some restatement of the fundamental principles of international law in terms of international life.
At the same time it must be said that THIS IS YET TO HAPPEN. The international organization as it now stands still does not indicate any sign of abrogation of the doctrine of national sovereignty in the near future.
As to the “WIDENING SENSE OF HUMANITY” prevailing in international life, all that I can say is that at least before the Second World War the powerful nations did not show any such sign. I would only refer to what happened at the meeting of the Committee drafting resolutions for the establishment of the League of Nations when Baron Makino of Japan moved a resolution for the declaration of the equality of nations as a basic principle of the League.
Lord Robert Cecil of Great Britain declared this to be a matter of highly controversial character and opposed the resolution on the ground that it “raised extremely serious problems within the British Empire.” The resolution was declared lost: President Wilson ruled that in view of the serious objections on the part of some it was not carried.
Coupled with this, if we take the fact that there still continued domination of one nation by another, that servitude of nations still prevailed unreviled and that domination of one nation by another continued to be regarded by the so-called international community only as a domestic question for the master nation, I cannot see how such a community can even pretend that its basis is humanity. In this connection I cannot refrain from referring to what Mr. Justice Jackson asserted in his summing up of the case at Nuremberg. According to him, a preparation by a nation to dominate another nation is the worst of crimes. This may be so now. But I do not see how it could be said that such an attempt or preparation was a crime before the Second World War when there was hardly a big power which was free from that taint. Instead of saying that all the powerful nations were living a criminal life, I would prefer to hold that international society did not develop before the Second World War so as to make this taint a crime.
THE ATOM BOMB during the Second World War, it is said, has destroyed selfish nationalism and the last defense of isolationism more completely than it razed an enemy city. It is believed that it has ended one age and begun another—the new and unpredictable age of soul.
“Such blasts as leveled Hiroshima and Nagasaki on August 6 and 9, 1945, never occurred on earth before—nor in the sun or stars, which burn from sources that release their energy much more slowly than does Uranium.” So said John J. O’Neill, the Science Editor, New York Herald Tribune. “In a fraction of a second the atomic bomb that dropped on Hiroshima altered our traditional economic, political, and military values. It caused a revolution in the technique of war that forces immediate reconsideration of our entire national defense problem”.
Perhaps these blasts have brought home to mankind “that every human being has a stake in the conduct not only of national affairs but also of world affairs”. Perhaps these explosives have awakened within us the sense of unity of mankind,—the feeling that: “We are a unity of humanity, linked to all our fellow human beings, irrespective of race, creed or color, by bonds which have been fused unbreakably in the diabolical heat of those explosions.”
All this might have been the result of these blasts. But certainly these feelings were non-existent AT THE TIME WHEN the bombs were dropped. I, for myself, do not perceive any such feeling of broad humanity in the justifying words of those who were responsible for their use. As a matter of fact, I do not perceive much difference between what the German Emperor is alleged to have announced during the First World War in justification of the atrocious
methods directed by him in the conduct of that war and what is being proclaimed after the Second World War in justification of these inhuman blasts.
I am not sure if the atom bombs have really succeeded in blowing away all the pre-war humbugs; we may be just dreaming. It is yet to be seen how far we have been alive to the fact that the world’s present problems are not merely the more complex reproductions of those which have plagued us since 1914; that the new problems are not merely old national problems with world implications, but are real world problems and problems of humanity.
There is no doubt that the international society, if any, has been taken ill. Perhaps the situation is that the nations of the international group are living in an age of transition to a planned society.
But that is a matter for the future and perhaps is only a dream.
The dream of all students of world politics is to reduce the complex interplay of forces to a few elementary constants and variables by the use of which all the past is made plain and even the future stands revealed in lucid simplicity. Let us hope it is capable of realization in actual life. I must, however, leave this future to itself with the remark that this future prospect will not in the least be affected even if the existing law be not strained so as to fix any criminal responsibility for state acts on the individual authors thereof in order to make the criminality of states more effective. The future may certainly rely on adequate future provisions in this respect made by the organizers of such future.
During and after the present war, many eminent authors have come forward with contributions containing illuminating views on the subject of “War Criminals—their Prosecution and Punishment”. None of these books and none of the prosecutions professed to be prompted by any desire for retaliation. Most of these contributors claim to have undertaken the task because “miscarriage of justice” after World War 1 shocked them very much, particularly because such failure was ascribable to the instrumentality of jurists who deserved the epithets of being “stiff-necked conceptualists”, “strict constructionists”, and men “afflicted with an ideological rigor mortis”.
These Jurists, it is said, by giving the appearance of legality and logic to arguments based on some unrealistic, outworn and basically irrelevant technicality caused the greatest confusion in the minds of ordinary laymen with regard to the problems of war criminals. Thses, it is claimed, were the chief present-day obstacles to the just solution of the problem and these authors have done their best to remove such obstacles and to supply “not a mere textbook on some remote technically intricate phrase of a branch of law, ” but “a weapon with which to enforce respect for the tenets of international law with its underlying principles of international justice.”
Some of these authors have correctly said that law is not merely a conglomeration of human wisdom in the form of rules to be applied wherever and whenever such rules, like pieces in a jigsaw puzzle, may fit in. “Law is instead a dynamic human force regulating behaviour between man and man and making the existence and continuity of human society possible. ”
Its chief characteristic is that it stems from man’s reasonableness and
from his innate sense of justice.
“Stability and consistency are essential attributes of rules of law, no doubt,”
says such an author:
“Precedent is the sine qua non of an orderly legal system. But one must be certain that the precedent has undoubted relevancy and complete applicability to the new situation or to the given set of facts. And if applicable precedent is not available, a new precedent must be formed, for at all times law must seek to found itself on common sense and must strive for human justice."
With all respect to these learned authors, there is a very big assumption in all these observations when made in connection with international law. In our quest for international law are we dealing with an entity like national societies completely brought under the rule of law? Or, are we dealing with an inchoate society in a stage of its formation? It is a society where only that rule has come to occupy the position of law which has been unanimously agreed upon by the parties concerned. Any new precedent made will not be the law safeguarding the peace-loving law-abiding members of the Family of Nations, but will only be a precedent for the future victor against the future vanquished. Any misapplication of a doubtful legal doctrine here will threaten the very formation of the much coveted Society of Nations, will shake the very foundation of any future international society.
Law is a dynamic human force only when it is the law of an organized society; when it is to be the sum of the conditions of social co-existence with regard to the activity of the community and of the individual. Law stems from a man’s reasonableness and from his innate sense of justice. But what is that law? And is international law of that character?
A national society, as I have pointed out above, from the very circumstances of its origin and development, is aware of the bearing of the interests of its own members upon the universal objects of general humanity, and is thus bound to regard other national societies not only as entitled to rights equal with its own, but as supplementing itself. A national state cannot therefore seek any absolute seclusion, or strive after an absolute self-sufficiency. In this sense, from the very moment of the origin of national states, international society also came into existence. This also accounts for the circumstance that the period of national states is also marked by the development of the system of international law.
Yet it is difficult to say that this international society is a society under the reign of law. I shall quote extensively from Professor Zimmern, where he very ably and truly characterizes international society.
For anyone , says Professor Zimmern, “trained in the British tradition, the term International Law embodies a conception which is, at its best, confusing and at its worst exasperating. It is never law as we understand it, and it often, as it seems to us, comes dangerously near to being an imposter, a simulacrum of law, an attorney’s mantle
artfully displayed on the shoulders of arbitrary power.
A satisfactory political system, in British eyes, is the offspring of
a harmonious marriage between law and force It is the essence of what we call British Constitutionalism. By it is ensured working of two processes, separable in theory for the analysis of the political scientist, but inextricably blended in practice, the observance of the law, or, to use the language of post war controversy, ‘ sanctions ’ and ‘ peaceful change’. Thus the judge, the legislator and the executive throughout its range, from the Prime Minister to the policeman, form interdependent parts of a single system.
“This constitutional system does not function because it is wound up from outside or impelled from above. Its driving force is supplied from within. It derives its validity from consent; and its energy is constantly renewed and refreshed by contact with public opinion. It is the popular will which the legislature is seeking to embody in appropriate statutes. It is the popular will which the judge is engaged in interpreting and the policeman in enforcing. All these are performing what is felt to be social function. They are adapting the organization of the state, which is the most continuous and potent agency of social service in the community to the permanent and changing needs of society.
Seen as a part of this larger whole, law may be defined as social habit formulated into regulations. When these regulations, if any part of them, are felt to be anti-social, no longer in accordance with the general sentiment of the day, or even repugnant to it, they are changed. Thus the notion of law and the notion of change, so far from being incompatible, are, in fact, complementary. The law is not a solid construction of dead material, a fixed and permanent monument, it is an integral part of a living and developing society created and transmitted by men.
“Turn now to international law, what do we find? A situation almost exactly the opposite of what has just been described.
“To begin with, where are we to look for the rules and obligations of international law? We shall not find them embodied in the habits of the will, still less in the affections, of a society.
“International law, in fact, is a law without a constitution. And since it is not grounded in a constitution it lacks the possibility of natural growth. Unconnected with a society, it cannot adjust itself to its needs. It cannot gather itself together by imperceptible stages into a system.
'The reason for this is very simple. The rules of international law, as they existed previous to 1914, were, with a few exceptions, not the outcome of the experience of the working of a world society . They were simply the result of the contacts between a number of self-regarding political units—stars whose courses, as they moved majestically through a neutral firmament, crossed one another from time to time. The multiplication of these external impacts or collisions rendered it mutally con-
venient to bring their occasions under review and to frame rules for dealing with them.
In my judgment this is where the international law stands even now and will stand unless and until the political units agree to yield their sovereignty and form themselves into a society. As I have shown elsewhere, the post war United Nations Organization is certainly a material step towards the formation of such a society. I know that as a judge, it is not for me to preach the need for a wider social consciousness or to propound practical solutions for the problems involved in the material interdependence of the modem world. Yet the international relation has reached a stage where even a judge cannot remain silent though the task that is given him is only one of formulation, classification and interpretation. I believe with Professor Lauterpacht that it is high time that international law should recognize the individual as its ultimate subject and maintenance of his rights as its ultimate end. “The individual human being—his welfare and the freedom of his personality in its manifold manifestations—is the ultimate subject of all law. A law of nations effectively realizing that purpose would acquire a substance and a dignity which would go far toward assuring its ascendency as an instrument of peace and progress. ” This certainly is to be done by a method very different from that of trial of war criminals from amongst the vanquished nations. An international organization of the kind recommended by Dr. Lauterpacht would not permit a dominating foreign power to claim its dealings with the dominated nation as its “domestic affairs” outside the jurisdiction of the organization.
Inducements to the exercise of CREATIVE JUDICIAL DISCRETION in the field before us do not inspire much enthusiasm in me. The decision would not create anything new: It would only create precedent for a victor in war to bring the vanquished before a tribunal. It can never create precedent for the sovereign states in general unless such states voluntarily accept such limitations. Certainly this is open to them to do by treaties or conventions.
I am told that if the persons in the position of the present accused are not made responsible for acts such as are alleged against them, then the Pact of Paris brings in nothing useful. I am not sure whether that is the position. Law, no doubt, ends by being what it is made to be by the body which applies it to concrete situations: Yet the body called upon to apply it should not force it to be what it is not even at the risk of missing the most attractive opportunity for contributing towards the development of a temptingly significant concept of international law —I mean “the legal concept of the crime against peace”.
I doubt not that the need of the world is the formation of an international community under the reign of law, or correctly, the formation of a world community under the reign of law, in which nationality or race should find no place. In an organization like that it would certainly be most conducive to the benefit of the community as a whole and to the necessity of stable and effective legal relations between its members to chastize activities like those alleged in the present case. But, until then it serves no useful purpose. When
the fear of punishment attendant upon a particular conduct does not depend upon law but only upon the fact of defeat in war, I do not think that law adds anything to the risk of defeat already there in any preparation for war. There is already a greater fear—namely, the power, the might of the victor. If law is not to function unless the violating party succeeds in violating the law effectively and then is overwhelmed by power or might, I do not find any necessity for its existence. If it is really law which is being applied I would like to see even the members of the victor nations being brought before such tribunals. I refuse to believe that had that been the law, none of the victors in any way violated the same and that the world is so depraved that no one even thinks of bringing such persons to book for their acts.
I cannot leave the subject without referring to another line of reasoning in which reference is made to the various doctrines of natural law and a conclusion is drawn therefrom that “the dictates of the public, common, or universal conscience profess the natural law which is promulgated by man’s conscience and thus universally binds all civilized nations even in the absence of the statutory enactment” . A wealth of authority, both ancient and modern, is requisitioned to establish that public international law is derived from natural law. The authorities cited for this purpose range from Aristotle to Lord Wright. That this natural law is not a mere matter of history but is an essential part of the living international law is sought to be established by reference to the preamble of the Hague Convention of 1907 (Convention No. 4) as also to the text of the American Declaration of Independence.
The Hague Convention in its preamble, it is pointed out, refers to the laws of humanity and the dictates of the public conscience. The American Declaration of Independence refers to “the laws of nature and nature’s God”. From these and various other authorities it is concluded “that public international law” is based on natural law: It is said “the principles of international law are based on the very nature of man and are made known to man by his reason, hence we call them the dictates of right reason. They are, therefore, not subject to the arbitrary will of any man or nation. Consequently, the world commonwealth of nations forms one natural organic, moral, juridical and political unity”. It is further said, “From what has been said so far it follows that the world commonwealth must needs enjoy an inherent authority to enact positive law for the promotion of the common good. For, on the one hand, the dictates of right reason are only general provisions that must be applied and determined according to the particular circumstances of any given case. Thus, the positive legal enactments or agreements which govern international relations represent the political interpretations and applications of the general principles of the natural and moral law .... On the other hand, unified cooperation of all can only be obtained by issuing binding rules.”
It is not for me to question the relevancy of this appeal to natural law. There may be deep-seated reason that in all ages and countries the idea of natural law, that is, one founded on the very reality of things and not on the simple “placet” of the legislature has been cultivated. There have no doubt been fundamental divergencies in the doctrine of natural law. The relations
between the dictates of natural justice and juridical norms have also been variously conceived, depending upon diverse speculative tendencies and historical phases. Often a wide and impassable separation arose between the two systems of determination, while at other times the difference seemed one of genus and species, or two views of the same object. These divergencies however should not prevent the recognition of the deep-seated unity of the conception containing all the characteristics of a psychological necessity. What is a source of difficulty for science does not cease to exist in reality; and it would be a vain illusion to ignore a need because we cannot satisfy it.
The war against natural law, which many have declared in our day, is a reaction against the errors and omissions of the philosophical systems of the past. Indeed “for many the term ‘natural law’ still has about it a rich, deep odor of the witches’ caldron, and the mere mention of it suffices to unloose a torrent of emotions and fears.” It would certainly be unjust and irrational, if, under the pretext of correcting errors and omissions, this hostility is carried to the destruction of the very object of these systems.
We must not however forget that this doctrine of natural law is only to introduce a fundamental principle of law and right. The fundamental principle can weigh the justice of the intrinsic content of juridical propositions; but cannot affect their formal quality of juridicity. Perhaps its claim that the realization of its doctrines should constitute the aim of legislation is perfectly legitimate. BUT I DOUBT IF ITS CLAIM THAT ITS DOCTRINES SHOULD BE ACCEPTED AS POSITIVE LAW is AT ALL SUSTAINABLE. At any rate in international law of the present time such ideal would not carry us far. I would only like to refer to Hall’s International Law, Eighth Edition, Introductory Chapter where the learned author discusses what international law consists in and gives his views as to its nature and origin. The learned author gives in the footnote the fundamental ideas of the writers who have exercised most influence upon other writers or upon general opinion and assigns two weighty reasons for discarding this theory of natural law as a guide in determining what the law is at present.
His conclusion is given in the following terms:
“States are independent beings subject to no control, and owning no superior; no person or body of persons exists to whom authority has been delegated to declare law for the common good; a state is only bound by rules to which it feels itself obliged in conscience after reasonable examination to submit; if therefore states are to be subject to anything which can either strictly or analogically be called law, they must accept a body of rules by general consent as an arbitrary code irrespectively of its origin or else they must be agreed as to the general principles by which they are to be governed . . . Even if a theory of absolute right were universally accepted, the measure of the obligations of a state would not be found in its dictates but in the rules which are received as positive law by the body of states .... However useful ... an absolute standard of right might be as presenting an ideal towards which law might be made to approach continuously nearer ... it can only be source of confusion and mischief when it is regarded as a test of
the legal value of existing practices. ”
I respectfully agree with this view and therefore do not consider that the various theories of natural law should detain me any longer. I should only add that the international community has not as yet developed into “ the world commonwealth” and perhaps as yet no particular group of nations can claim to be the custodian of “the common good”.
International life is not yet organized into a community under a rule of law. A community life has not even been agreed upon as yet. Such an agreement is essential before the so-called natural law may be allowed to function in the manner suggested. It is only when such group living is agreed upon, the conditions required for successful group life may supply some external criteria that would furnish some standard against which the rightness or otherwise of any particlar decision can be measured.
IN MY JUDGMENT no category of war became a crime in international life up to the date of commencement of the world war under our consideration. Any distinction between just and unjust war remained only in the theory of the international legal philosophers. The Pact of Paris did not affect the character of war and failed to introduce any criminal responsibility in respect of any category of war in international life. No war became an illegal thing in the eye of international law as a result of this Pact. War itself, as before remained outside the province of law, its conduct only having been brought under legal regulations. No customary law developed so as to make any war a crime. International community itself was not based on a footing which would justify the introduction of the conception of criminality in international life.
It is not quite relevant for the purposes of this case to examine whether there has been any development of international law in this respect SINCE THE SECOND WORLD WAR. Even if law has since developed so as now to make such a war a crime, that in my opinion would not affect the present accused.
Apart from the suggested progress of international law by its own inherent nature TWO POSSIBLE SOURCES OF DEVELOPMENT of the law during this period seem to have been suggested: Mr. Trainin suggested the Moscow DECLARATION OF 1943 and Dr. Glueck suggested THE WILL of the victor and its product, THE CHARTER. I have already expressed my views why I consider that if there was any such attempt on the part of the victor nations it would fail to produce the desired effect. The same principle would apply to the suggested consequences of the Moscow Declaration. If this declaration has really started any new era in international life and if, as a result, any new rule of law has come into being, I do not see any principle of justice that would entitle us to invoke the aid of any such ex post facto development in condemning the long-past acts of the accused.
After the answer that I give to the question whether war of the alleged category became crime in international life, it becomes somewhat unnecessary for me to discuss WHETHER THE INDIVIDUALS FUNCTIONING AS ALLEGED HERE WOULD INCUR ANY CRIMINAL RESPONSIBILITY IN INTERNATIONAL LAW. As, however, much has recently been said about this matter by various learned jurists and politicians I prefer to notice these authorities and express my view of the
question ON THE ASSUMPTION that aggressive war, whatever it is, is crime in international life.
The indictment in this respect alleges that the accused planned and prepared for aggressive war in their capacity as leaders, organizers, etc. of the Japanese Government. In other words their act in this respect would ordinarily be an act of state.
As REGARDS THE INDIVIDUAL RESPONSIBILITY in respect of acts of state, Mr. Keenan has very rightly emphasized that this question is the crucial one. The question whether those individuals committed any international crime by working the constitution of the government of their nation is really of grave moment in international relations, The answer to the question would largely depend upon what answer we can give to the other questions, namely, whether in their international relations the covenanting nations agreed to limit their sovereign right of non-intervention from outside in the matter of working their own constitution and whether in any event they can be found as having yielded to the common will of all so as to hand over to an international tribunal the persons entrusted with the working of their own machinery of government for having worked the same badly. The question is, not how badly they behaved and thus brought their own nation to grief, but whether thereby they made themselves answerable to the international society.
THE QUESTION OF THE RESPONSIBILITY OF THE AUTHORS OF THE FIRST GREAT WAR was made the subject of an elaborate REPORT BY A COMMISSION of the Peace Conference. This report is printed in English by the Carnegie Endowment for International Peace. The Commission reported that:
1. The war was premeditated by the Central Powers together with their Allies, Turkey and Bulgaria.
2. It was the result of acts deliberately concocted in order to make it unavoidable.
3. That the war was carried on by these powers by barbarous methods in violation of:
(а) The established laws and customs of war.
(b) The elementary laws of humanity.
YET, while dealing with the question of personal responsibility of individual offenders against the laws of nations, the Commission could not recommend their trial.
As to the acts which provoked the war, although in the opinion of the Commission the responsibility could be definitely placed, it advised that the authors thereof should not be made the object of criminal proceedings. The same conclusion was arrived at in respect of the violation of the neutrality of Belgium and Luxembourg. Nevertheless, in view of the gravity of the outrages upon the principles of the law of nations and upon international good faith, it was recommended that they should be made the subject of a formal condemnation by the Peace Conference.
IT WAS RECOMMENDED that as to the acts by which the war was provoked it would be right for the Peace Conference in a matter so unprecedented to adopt special measures and even to create a special organ in order to deal as
they deserve with the authors of such acts. FINALLY, it was suggested that for the future it was desirable that penal sanctions should be provided for such grave outrages against the elementary principles of international law.
THE TWO AMERICAN MEMBERS of the Commission, Messrs Lansing and Scott, who dissented from certain conclusions and recommendations of the Commission, declared that they were as earnestly desirous as the other members that those persons responsible for causing the war and those responsible for violations of the laws and customs of war should be punished for their crimes, moral and legal, and that the perpetrators should be held up to the execration of mankind, but that they did not consider that a judicial tribunal was a proper forum for the trial of offenses of a moral nature. They objected to the proposal of the majority to place on trial before a court of justice persons charged with having violated the principles of humanity or the “laws of humanity”. They also objected to the “unprecedented proposal to put on trial before an international criminal court the heads of states not only for having directly ordered illegal acts of war but for having abstained from preventing such acts”.
Mr. Quincy Wright, writing in 1925 on the “Outlawry of War” pointed out:
“THE MAIN DIFFICULTY found by the commission was that international law did not recognize war-making as positively illegal; but even if it had, there would be doubt whether any particular individual, even a sovereign, could be held liable for the act of the state.
According to the learned author:
“With the complexity of modern state organization, it would be difficult to attribute responsibility for declaring war to any individual or group of individuals. There are few absolute monarchs. Ministers act under responsibility to legislatures which are in turn responsible to electorate. In an age of democracies an effort to hold individuals responsible for a national declaration of war would frequently involve an indictment of the whole people. This practical difficulty coupled with the theory of state independence has brought about recognition of the principle of state responsibility in international law, with a consequent immunity from international jurisdiction of individuals acting under state authority. ”
Judge Manley O. Hudson, in his treatise entitled “international Tribunals, Past and Future” published in 1944, while dealing with the question of “The Proposed International Criminal Court” in Chapter 15, says:
“International law applies primarily to states in their relations inter se. It creates rights for states and imposes duties upon them, vis-a- vis other states. Its content depends very largely upon the dispositions of interstate agreements and upon deductions from the practices of states.”
According to the learned Judge this is why it reflects but feebly a community point of view and why the halting progress made in international organization has not facilitated its protection of community interests as such.
“Historically”, says the learned Judge, “international law has not developed any conception of crimes which may be committed by states. From time to time certain states have undertaken to set themselves up as guardians of community interest and have assumed competence to pronounce upon the propriety of the conduct of other states. Yet, at no time in history have condemnations of states ’ conduct, whether before or after the event, been generally FORMULATED by legislation FOR INTERNATIONAL CRIMES. Only in quite recent times have official attempts been made to borrow the concept of criminality from municipal law for international purposes. In the abortive Geneva Protocol of 1924 “a war of aggression” was declared to be “an international crime” and this declaration was repeated by the assembly of the League of Nations in 1927, and by the Sixth International Conference of American states in 1928; no definition was given to the terms, however, though the 1924 Protocol was designed to ensure the repression of international crimes . At no time has any authoritative formulation of international law been adopted which would brand specific conduct as criminal, and no international tribunal has ever been given jurisdiction to find a state guilty of a crime.”
Coming to the question of individual responsibility, Judge Hudson says:
“If international law be conceived to govern the conduct of individuals, it becomes less difficult to project an international penal law. It was at one time fashionable to refer to pirates as enemies of all mankind and to piracy as an offense against the law of nations. ” The United States Constitution of 1789 empowered Congress to define and punish “piracies and felonies committed on the high seas and offenses a- gainst the law of nations”. Unanimity does not obtain upon the meaning to be given to these terms, but modern opinion seems to be inclined to the view that a broad category of armed violence at sea is condemned by international law as piratical conduct, with the consequence that any state may punish for such conduct and that other states are precluded from raising the objections which might ordinarily be advanced against the assumption of jurisdiction.”
He then points out that:
“It is in this sense that the conception of piracy as an offense a- gainst the law of nations has been seized upon, BY WAY OF ANALOGY, for the service of other ends. Various treaties of the Nineteenth Century provided for the possibility of states punishing persons engaged in the slave trade as pirates.”
The learned Judge then points out:
“Despite the employment of such analogies no authoritative attempt has been made to extend international law to cover the CONDEMNED AND FORBIDDEN CONDUCT OF INDIVIDUALS. States have jealously guarded their own functions in the repression of crime, and differences in national and local outlooks and procedures have precluded the development of an international or supernational criminal law.
He concludes the topic by saying:
“Whatever course of development may be imminent with reference to political organization, THE TIME IS HARDLY RIPE FOR THE EXTENSION OF INTERNATIONAL LAW TO INCLUDE JUDICIAL PROCESS FOR CONDEMNING AND PUNISHING ACTS EITHER OF STATES OR OF INDIVIDUALS.”
It may be noticed in this connection that whenever in international relations it has been considered desirable to control the conduct of individuals, care has been taken to make adequate provision for the same in the treaty itself.
Numerous treaties of recent date contain condemnations of the anti-social conduct of individuals and the states parties agree to adopt their national penal laws to serve common ends.
The treaties do not directly apply to individuals, and their impact on individual conduct will depend upon each state’s performance of its treaty obligations by the incorporation of the provisions into national law or otherwise.
This view was clearly expressed in the 1899 and 1907 Hague Convention on the laws and customs of war on land, by which the states parties undertook to give their armed forces instructions conforming to regulations annexed to the Convention. Neither of the Conventions operated directly on individuals; but the 1907 Convention provided that a state would be responsible for acts committed by persons belonging to its armed forces in violation of the provisions of the regulations and would be liable for indemnities. The same view was taken in the numerous suggestions which were made for dealing with violations of the 1929 Geneva Convention on the treatment of sick and wounded soldiers, but Articles 29 and 30 of the Convention are not clear on the point.
This is how INFRINGEMENT ON NATIONAL PREROGATIVES in this field has always been avoided.
AN APPARENTLY CONTRARY VIEW is expressed by Professor Hans Kelsen of the University of California who says:
“When the Second World War broke out, the legal situation was different from that at the outbreak of the First World War. The Axis Powers were contracting parties to the Kellogg-Briand Pact by which resorting to a war of aggression is made a delict; and Germany has, by attacking Poland and Russia, violated, in addition to the Kellogg- Briand Pact, non-aggression pacts with the attacked states. Any inquiry into the authorship of the Second World War does not raise problems of extraordinary complexity. Neither the questio juris nor the questio facti offers any serious difficulty to a tribunal. Hence, there is no reason to renounce a criminal charge made against the persons morally responsible for the outbreak of World War II. In so far as this is also a question of the constitutional law of the Axis Powers, the answer is simplified by the fact that these states were under more or less dictatorial regimes, so that the number of persons who had the legal power of leading their country into war is in each case of the Axis States very small. In Germany it is probably the Fuehrer alone; in Italy, the Duce and the King; and in Japan, the Prime Minister and the Emperor. If the assertion attributed to Louis XIV “L’Etat c’est moi” is applicable to any dictatorship, the punishment of the dictator amounts almost to a
punishment of the state.
THIS IS HOWEVER, ONLY APPARENTLY CONTRARY, as will appear from what I have already quoted from Professor Kelsen elsewhere. The learned Professor prefaces the above statement thus:
“If the individuals who are morally responsible for this war, the persons who have, as organs of their states, disregarded general or particular international law, and have resorted to or provoked this war, if these individuals as the authors of the war shall be made legally responsible for the injured states, it is necessary to take into consideration that general international law does not establish individual, but collective responsibility for the acts concerned, and that the acts for which the guilty persons shall be punished are acts of state—that is, according to general international law, acts of the government or performed at the government’s command or with its authorization.”
Professor Kelsen then proceeds to examine the meaning of the expression “act of state” and says:
“The legal meaning of the statement that an act is an act of state is that this act is to be imputed to the state, not to individual who has performed the act. If an act performed by an individual—and all acts of state are performed by individuals—must be imputed to the state, the latter is responsible for this act ... If an act is to be imputed to the state and not to be imputed to the individual who has performed it, the individual, according to general international law, is not to be made responsible for this act by another state without the consent of the state whose act is concerned. As far as the relationship of the state to its own agents or subjects is concerned, national law comes into consideration. And in national law the same principle prevails; AN INDIVIDUAL IS NOT RESPONSIBLE FOR HIS ACT IF IT IS AN ACT OF STATE, i.e., if the act is not imputable to the individual but only to the state . . . THE COLLECTIVE RESPONSIBILITY OF A STATE FOR ITS OWN ACTS EXCLUDES, according to general international law, THE INDIVIDUAL RESPONSIBILITY OF THE PERSON WHO, AS
A MEMBER OF THE GOVERNMENT HAS PERFORMED THE ACT.
This is a
consequence of the immunity of one state from the jurisdiction of another state.”
According to the learned Professor, “this rule is not without exceptions but any exception must be based on A SPECIAL RULE OF CUSTOMARY OR CONVENTIONAL INTERNATIONAL LAW RESTRICTING the former. ” He then points out:
“In this respect there exists no difference between the head of state and other state officials .... THERE IS NO SUFFICIENT REASON TO ASSUME
THAT THE RULE OF GENERAL CUSTOMARY LAW UNDER WHICH NO STATE CAN CLAIM JURISDICTION OVER THE ACTS OF ANOTHER STATE IS SUSPENDED BY THE OUTBREAK OF WAR, and consequently that it is not applicable to the relationship between belligerents.”
According to the learned Professor:
“If individuals shall be punished for acts which they have performed as acts of state, by a court of another state, or by an international court, the legal basis of the trial, as a rule, must be an international treaty concluded with the state whose acts shall be punished, by which treaty jurisdiction over individuals is conferred upon the national or international court. If it is a national court, then this court functions, at least indirectly as an international court.”
He is positive that:
“The law of a state contains .no norms that attach sanctions to acts of other states which violate international law. Resorting to war in disregard of a rule of general or particular international law is a violation of international law, which is not, at the same time, a violation of national criminal law, as are violations of the rules of international law which regulate the conduct of war. The substantive law applied by a national court competent to punish individuals for such acts can be international law only. Hence the international treaty must determine not only the delict but also the punishment, or must authorize the international court to fix the punishment which it considers to be adequate.
ALL THAT I NEED ADD TO THESE OBSERVATIONS of the learned author is that in the present case there has been no treaty of the kind contemplated by him as I have noticed already.
The learned author is clear in his view:
1. That for such acts as are alleged in this case, international law, by itself, does not make their individual authors criminally responsible.
2. That such acts do not constitute crime in any individual in international law as it now stands.
3. That a victor nation cannot, on the mere strength of conquest:
(a) Make such acts criminal with retrospective effect.
(b) Punish in law the individual authors of such acts.
4. That a victor nation may derive such authority by appropriate treaty from the state for which the individuals in question acted.
His summarization of the position after the Second World War does not thus differ from the view expressed by Judge Manley O. Hudson. Only Professor Kelsen thinks that with the help of an appropriate treaty such a trial and punishment would have been made legitimate. As I have already indicated above, this view of his may or may not be supportable on principle, and in my opinion, it is not. But so far as the present case is concerned it would suffice to say that there is no such treaty.
This view finds support in what Professor Glueck says in his treaties on “War Criminals, their Prosecution and Punishment” published in September 1944 after the Moscow Declaration of 1943 and after the learned Professor had served on the commission on the trial and punishment of War Criminals of the London International Assembly. In Chapter III of his book, the learned Professor defines “war criminals" as “persons—regardless of military or political rank—who, in connection with the military, political, economic or industrial preparation for or waging war, have, in their official capacity, committed acts contrary to ( a ) the laws and customs of legitimate warfare or ( b ) the principles of criminal law generally observed in civilized states; or who have incited, ordered, procured, counseled, or conspired in the commission of such acts; or, having knowledge that such acts were about to be committed, and possessing the duty and power to prevent them, have failed to do so.”
We need not stop here to examine the correctness or otherwise of this definition with reference to the norms of international law. The learned author, after giving his definition makes certain observations which will be pertinent for our present purpose. He says:
“Observe certain features of this definition. First, it is not intended to include the “crime” of flagrantly violating solemn treaty obligations or conducting a war of aggression. The Commission of Fifteen appointed by the Preliminary Peace Conference at the close of the World War 1 to examine the responsibility for starting that war and for atrocities committed during its conduct, found former Kaiser Wilhelm II and other high placed personages “guilty” of “gross outrages upon the law of nations and international good faith”, BUT CONCLUDED that“no criminal charge” could be brought; although the outrages should be the subject of a formal condemnation by the Conference. ”
They emphasized it to be “desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law”. BUT THROUGHOUT THE QUARTER CENTURY BETWEEN THE TWO WORLD WARS NOTHING HAS BEEN DONE BY THE NATIONS of the world to implement this recommendation. The Kellogg-Briand Pact, signed in Paris in 1928, condemned recourse to war for the solution of international controversies, renounced it as an instrument of national policy, and bound the signatories to seek the settlement of all disputes by pacific means only. BUT THAT PACT TOO FAILED TO MAKE VIOLATIONS OF ITS TERMS AN INTERNATIONAL CRIME punishable either by national courts or some international tribunal. Therefore, the legal basis for prosecutions for violations of the Pact of Paris may be open to question, though the moral grounds are crystal clear.
“Besides, to prosecute Axis leaders for the crime of having initiated an unjust war, or having violated the “sanctity of treaties”, would only drag a red herring across the trail and confuse the much clearer principle of liability for atrocities committed during the conduct of a war, be it a just or an unjust one. The Germans would surely argue that the Allies had first violated the Treaty of Versailles in not disarming; and learned historians would insist, as they did at the close of World War 1, that only lengthy historical and economic investigations could really fix responsibility for “causing” the war.
“For these reasons, the origination of an unjust war ought, for the present, not to be included among the acts triable as “war crimes”, however desirable it would be to establish judicially the principles involved.”
DR. GLUECK, however, IN A RECENT BOOK PUBLISHED IN 1946 and entitled
“The Nuremberg Trial and Aggressive War” has EXPRESSED THE OPPOSITE OPINION. The learned Professor in this new book says:
“During the preparation of my previous book on the subject of war crimes, I was not at all certain that the act of launching and conducting an aggressive war could be regarded as “international crime”. I finally decided against such a view, largely on the basis of a strict interpretation of the Treaty for the Renunciation of War (Kellogg-Briand Pact) signed in Paris in 1928. I was influenced also by the question of policy . . . However, further reflection upon the problem has led me to the conclusion that for the purpose of conceiving aggressive war to be an international crime, the Pact of Paris may, together with other treaties and resolutions, be regarded as evidence of a sufficiently developed custom to be acceptable as international law. ”
THE LEARNED PROFESSOR STILL SAYS that “The case for prosecuting individuals and states for the “crime” of launching an aggressive war is not as strong as the case for holding them responsible for violations of the recognized laws and customs of legitimate warfare” . He, however, considers it “strong enough to support the relevant count in the Nuremberg Indictment”.
The count in question stands thus:
“All the defendants, with diverse other persons, during a period of years preceding 8th May 1945, participated in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances.”
The revised opinion of the learned Professor is based on the following data in addition to those already given by me while considering his view that war became crime by an international customary law:
1. The United Nations could have executed the Nuremberg defendants
without any judicial procedure whatsoever; “summarily by executive or political action without any consideration whatsoever of whether the acts with which the accused were charged had or had not previously been prohibited by some specific provision of international penal law”.
(а) The law of an armistice or a treaty is, in the final analysis, the will of the victor.
(b) Although duress may be a good ground for repudiation of an international contract entered into during a period of peaceful relationships between law-observing states, compulsion is to be expected and is an historic fact in the case of international agreements imposed by a victorious belligerent state upon the vanquished.
2. The Fact that the contracting parties to a treaty have agreed to render aggressive war illegal does not necessarily mean that they have decided to make its violation an international crime. Even a multinational contract and one dealing with a subject so vital to the survival of nations as the Kellogg-Briand Pact is not a penal statute;
and the remedy for breach of contract does not consist of prosecution and punishment of the guilty party, but rather of obtaining compensation for its breach.
3. ( a ) THE CHARTER constituting the Tribunal gives dogmatically affirmative answers to the two following questions:
(i) Whether aggressive war can be denominated an international crime..
(ii) Whether individuals comprising the government or general staff of an aggressor state may be prosecuted as liable for such crime.
(b) There is no question but that, as an ACT OF THE WILL of the conqueror, the United Nations had THE AUTHORITY to frame and adopt such a charter.
4. Assuming modern aggressive war to be a crime, i. e., an offense against the Family of Nations and its international law, then THE DEFENDANT MUST NORMALLY BE THE IMPLICATED STATE.
(a) BUT, action against a state must necessarily be ineffective in reducing international criminalism, compared to the imposition of penal sanctions upon members of a cabinet, heads of a general staff, etc., who have led a state into aggressive war.
(i) There are sound reasons for the familiar application of the act-of-state doctrine to the normal, peaceful intercourse of nations, without it necessarily following that it is also to be applied to the situation presented by the acts of Nazi ringleaders ....
(ii) An issue of this kind ought not to be disposed of on the basis of blind legalistic conceptualism; it should be dealt with realistically in the light of the practical as well as logical result to which one or the other solution will lead.
(iii) As Blackstone pointed out, a sovereign would not willingly ally himself with the criminal acts of his agents.
(iv) It is perfectly obvious that the application of a universal principle of non-responsibility of a state’s agents could easily render the entire body of international law a dead letter.
(iv) This is a doctrine contrary to reason and justice and it is high time the error were remedied .... Since law is supposed to embody the rule of reason in the interests of justice, and the unqualified act-of-state doctrine emasculates both reason and justice, it cannot be regarded as sound law.
5. Individuals are liable under international law in many instances; the relevant principles of the law of nations may and do obligate individuals.
(a) The traditional view, that “individuals are not subjects of the law of nations”, is open to question historically and in a practical sense: (The learned author cites the instances of piracy and the like).
THE TWO FUNDAMENTAL ELEMENTS in Dr. Glueck’s approach here are:
1. The unlimited power of the victor under international law.
2. The growth of the customary law in the international system.
If the learned Professor is correct in his first proposition, then there is no doubt that the United Nations can adopt any procedure for the exercise of this power, and, though quite unnecessary, may introduce a sort of definition of a crime covering the acts alleged to have been committed by the accused and on a finding of the constituent facts, thus specified, execute them. Dr. Glueck’s authority for this proposition, as far as I could see, is the statement of Mr. Justice Jackson in his report to the President of the United States. I cannot accept this proposition either ratione imperii or imperio rationis. I have already expressed my own view of the question. In my opinion, the view taken by the learned author, as also by Mr. Justice Jackson, has no support in the modern system of International Law.
It may be that Dr. Glueck and Mr. Justice Jackson are thinking of the right of the belligerent to kill such persons during belligerency. But the right of killing ceases as soon as they are taken prisoners. From the date of their seizure they become entitled to the protection of the rule that more than necessary violence must not be used.
The learned author cites the case of Napoleon and points out how the powers there declared that Napoleon had put himself outside “civil and social relations and that, as enemy and perpetrator of the world, he has incurred liability to public vengeance”. Had the Allies followed the recommendation of the Prussian Field Marshal Blucher, Napoleon would then have been shot on sight as one who, under the above declaration, was an “outlaw”.
I need not stop here to examine this view with reference to the provisions of International Law. It would be sufficient to say that International Law in this respect does not still stand where it might have been in those days and that THE PROCLIVITIES OF THE VICTORS unhindered as they may be by the weaknesses of their adversary may reveal determinations that are uninfluenced by a sense of legal obligation; such determinations, however, should never be confused with law.
I believe Dr. Glueck did not ignore the fact that even in those days considerable doubts were entertained and difficulties felt about the legality of the steps taken in respect of Napoleon. We may refer to Dr. Hale Bellot’s article on “The Detention of Napoleon Bounaparte” published in the Law Quarterly Review Vol. XXXIX, pp. 170-192.
The Prussian Project referred to by Dr. Glueck did not find favour with the Duke of Wellington. The Duke disputed the correctness of the Prussian interpretation of the Viennese declaration of outlawry and asserted that it was never meant to incite the assassination of Napoleon. According to the Duke
the victors did not acquire, from this act of outlawry, any right to order Napoleon to be shot.
Then, again, a considerable difficulty was felt about Napoleon’s status. Napoleon himself never assented to the proposition that he was a Prisoner of War, and never claimed any rights as such. Before surrender, when arrangement for his escape on board a Danish vessel was completed, he refused to go and made up his mind to surrender to the British, saying, “There is always danger in confiding oneself to enemies, but it is better to take the risk of confiding in their honour than to fall into their hands as a prisoner according to law. ” After his surrender he repeatedly denied that he was a prisoner of war although he was aware of the rights of such a prisoner in international law. He professed to consider himself as a simple individual seeking asylum in Great Britain.
Apart from Napoleon s own view of his status, grave difficulties in this respect were felt by the then British authorities also. Legal opinion was sharply divided on the question. The first legal advice was that Bounaparte should be regarded as a rebel and surrendered to his Sovereign. This view was taken by the Master of the Rolls and was adopted by Lord Liverpool. Lord Ellenborough and Sir W. Scott saw following alternative possibilities.
Either 1. He was a subject of France and Britain was at war with France, or 2. He was a French rebel and Britain was assisting the Sovereign of France as an ally.
The war had not yet been put to an end by any treaty.
Lord Ellenborough suggested that he should be regarded as an individual of the French nation, at war with Great Britain, and consequently in common with the French nation an enemy to Great Britain. He thought that it would be possible to exclude him from the benefit of a treaty of peace that might be made subsequently with the French nation. Sir William Scott could not agree with this view. According to him, Great Britain could surrender him to France as a rebel subject; but to Great Britain he was a Prisoner of War and there was a clear general rule of the law of nations, that peace with the Sovereign of a State was peace with all its subjects. Lord Eldon raised the question whether Bounaparte could in fact be considered as a French subject: Great Britain had not been at war with France as France. He said: “We have acted upon the notion that we are justified by the law of nations in using force to prevent Bounaparte’s being Governor of France—that we have made war upon him and his adherents—not as French enemies—not as French rebels—but as enemies to us and the allies when France was no enemy to us— that in this war with him, he has become a prisoner of war, with whom WE CAN MAKE NO PEACE, because we can have no safety but in his imprisonment— no peace with him, or which includes him.”
In the House of Lords, Lord Holland considered that the case involved inter alia the following questions:
1. Could any person be held as a prisoner of war, who was not the subject of any known state?
2. Could any man be detained who was the subject of a state with whom we were not at war?
3. Whether any person could be considered as an alien enemy, who was not the subject of any state with which we were at war?
At the Congress of Aix- la-Chapelle, 1818, the Protocol by which Napoleon s matter was brought before the Congress described Bounaparte in 1815 as merely “the chief of a shapeless force, without recognized political character, and consequently, without any right to claim the advantages and the courtesies due Public Power by civilized nations . . . Bounaparte, before the battle of Waterloo, was a dangerous rebel; after the defeat, an adventurer whose projects were betrayed by fate .... In this situation, his fate was submitted to the discretion of the governments which he had offended; and there existed then in his favour (with the exception of the rights inseparable from humanity) no positive law, no salutary maxim applicable to him ...”
Certainly what happened to Napoleon cannot be cited as adding to or detracting from international law in any respect.
The regulations annexed to The Hague Convention No. 4 of 1907 respecting The Laws and Customs of War on Land, the Geneva (Prisoners of War) Convention of 1929, the War Rules of the several national states, especially the U. S. War Department Rules of Land Warfare of 1940, all point to a direction contrary to what Mr. Justice Jackson, and following him, Dr. Glueck, assert to be the legal position of a conqueror. Charles Cheney Hyde in his treatise on “International Law Chiefly as Interpreted and Applied by the United States” states: “According to the Instructions for the Government of the Armies of the United States in the Field”, of 1863, and the Rules of Land Warfare of 1917, the Law of War disclaims all cruelty, as well as all acts of private revenge, or connivance at such acts, and all extortions. NOR DOES IT ALLOW PROCLAIMING either an individual belonging to the hostile army or a citizen or a subject of the hostile government, AN OUTLAW, who may be slain without trial by any captor, “anymore than the modern law of peace allows such intentional outlawry; on the contrary it abhors such outrage”.
The Hague Regulations expressly forbid a belligerent to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion, or to declare that no quarter will be given.
The Hague Convention No. 4 of 1907 no doubt does not apply except between the Contracting Powers and then only if all the belligerents are parties to this convention. But the regulations annexed to this convention purport to incorporate only the existing principles of the law of nations resulting from the usages established among civilized peoples.
As THE LAW NOW STANDS, it will be a “war crime” stricto sensu on the part of the victor nations if they would “execute” these prisoners OTHERWISE THAN UNDER A DUE PROCESS OF INTERNATIONAL LAW, though, of course, there may not be anyone to bring them to book for that crime at present.
Dr. Glueck takes the view that the Pact of Paris, itself, does not make its violation an international crime. His third proposition as given above,
therefore, is only a corollary to his first proposition. The “dogmatically given affirmative answer” referred to in his third proposition would not stand if his first proposition fails. In my view if the alleged acts do not constitute any crime under the existing international law, the trial and punishment of the authors thereof WITH A NEW DEFINITION OF CRIME given by the victor would make it a “war crime” on his part. The prisoners are to be dealt with according to the rules and regulations of international law and not according to what the victor chooses to name as international law.
I need not stop here to examine the proposition regarding the law of armistice and treaty propounded by Dr. Glueck. For my present purposes it would be sufficient to notice, as I have noticed already, that there is nothing in the terms of the armistice or surrender here which would confer on the victor nations any such unfounded authority as is enunciated by Dr. Glueck. The international law, itself, does not vest in the victor any boundless authority.
Dr. Glueck in his fourth, fifth, and sixth propositions, as analyzed above, seeks to establish that “aggressive war” is an international crime not because it is made so by any pact, convention or treaty, but by what he calls the CUSTOMARY INTERNATIONAL LAW. In his seventh and eighth propositions he develops individual responsibility.
I have already examined this part of Dr. Glueck’s reasoning and given my view that no such customary international law developed during the relevant period.
At any rate the alleged “custom” or “customary law” does not touch the individuals. The body of growing custom to which reference is made is, at most, custom directed to sovereign states, not to individuals.
I believe, what Mr. Finch has said very recently about the individual criminal responsibility in international law while commenting on the Nuremberg judgment will supply an answer to Dr. Glueck’s thesis. I would summarize what Mr. Finch says on the point. Mr. Finch says:
1. The charge of crimes against peace is a new international criminal concept.
(a)
(i) It was not envisaged in the warnings issued by the Allies before hostilities ended.
(b) nor made part of the original terms of reference to the United Nations War Crimes Commission established in London during the war.
(c) In Dr. Lachs’ collection of texts there is an aide memoire of the British Government issued August 6, 1942, stating that “in dealing with war criminals, whatever the court, it should apply the laws already applicable and no special ad hoc law should be enacted”.
(d) It may be traced to the influence of Professor A. N. Trainin of the Institute of Law of the Moscow Academy of Science, who, in 1944, published a book entitled “Ugolovnaya Otvetstvennost Gitlerovtzev”.
2. The crux of the argument by which it is sought to establish personal responsibility for crimes against peace centre around the Pact of Paris for the Renunciation of War.
(i) The Pact itself makes no distinction between aggressive.
defensive, or other kinds of war but renounces all wars.
(ii) Kellogg in the negotiations with France preceding the signature of the Pact definitely declined to accede to the French proposal that the Pact be limited to the renunciation of wars of aggression..
(iii) According to him “from the broad standpoint of humanity and civilization, all war is an assault upon the stability of human society, and should be suppressed in the common interest”.
(b) The Pact does not mention SANCTIONS for its enforcement other than statement in the preamble that “any Signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this treaty”.
(i) This provision is not imperative but conditional in the discretion of each signatory.
(ii) In identic notes submitting the draft treaty to the other signatories, Kellogg stated that the preamble “gives express recognition to the principle that if a state resorts to war in violation of the treaty, the other contracting parties are released from their obligations under the treaty to that state”.
(iii) Both by the preamble and Secretary of States 1 (Kellogg’s) interpretation, any action which might result from a violation of the Pact was to be directed against.
THE VIOLATING GOVERNMENT:
(iv) PERSONAL CRIMINAL RESPONSIBILITY WAS NOT STIPULATED NOR EVEN IMPLIEDLY SUGGESTED:
(c) In the years immediately following its conclusion, the meaning of the Pact became the subject of discussion in other countries.
(d) When the British Government signed the optional clause of the statute of the Permanent Court of International Justice in 1929, it published a memorandum explaining its view of the position created by the acceptance of the Covenant of the League of Nations and the Pact of Paris:
According to this British Memorandum: “The effect of those instruments, taken together is to deprive nations of the right to employ war as an instrument of
national policy, and to forbid States which have signed them to give aid or comfort to an offender. As between such states there has been in consequence a fundamental change in the whole question of belligerent and neutral rights.”
(e) Upon receipt of the British Memorandum, Mr. Stimson, the then Secretary of State made public a statement in which he denied that this British argument applied to the position of the United States as a Signatory of the Pact. “As has been pointed out many times, ” he emphasized, “the Pact contains no covenant similar to that in the covenant of the League of Nations providing for joint forceful action by the various signatories against an aggressor. Its efficacy depends SOLELY UPON THE PUBLIC OPINION OF THE WORLD and upon the conscience of those nations who sign it.”
(f) In September 1934, the International Law Association in its meeting at Budapest, adopted articles of interpretation of the Pact. This interpretation of these distinguished international law experts DOES NOT CONTAIN THE REMOTEST SUGGESTION OF CRIMINAL ACTION AGAINST INDIVIDUALS for the violation of the Pact.
(i) They expressed the view that in case of a violation the other signatories would be justified in modifying their obligations as neutral states so as to favour the victim of the aggression against the state making war in violation of the Pact.
(ii) This interpretation was relied upon in part in support of the modification of the attitude of the U. S. EARLY in 1941 (Lend Lease Act, March 11, 1941) from that of traditional neutrality to the furnishing of official aid to the countries whose defense was considered necessary to the defense of the U. S.
(iii) Earlier attempts made in the U. S. to implement the Pact of Paris by legislation which would have authorized the Government to discriminate between the belligerents in future war, all failed and resulted in the passage of more rigid laws to preserve the neutrality and peace of the United States.
(f) (£) In the light of the legislative history of the official attitude of the Government of the United States toward the interpretations of the Pact, from January 1933 to the passing of the Neutrality Pact of November 4, 1939, it is impossible to accept the thesis of the Nuremberg Tribunal that a war in violation of the Pact was illegal in international law on September 1, 1939, and
that those who planned and engaged in it were guilty of international criminal acts at the time they were committed etc.
(ii) The Budapest articles of interpretation were cited in support of the Lend Lease legislation.
3. It requires an attenuated legal conceptualism to go further and deduce dehors the written instrument PERSONAL CRIMINAL LIABILITY for non-observance of the Pact never before conceived of in international law as attaching to violation of treaties regulating state conduct.
4.
(a) It cannot be denied that beginning with the establishment of
the League of Nations the concept of preventing aggressive war has been growing.
(b) All such efforts deserve the utmost praise, sympathy and support.
(c) But unratified protocols cannot be cited to show acceptance of their provisions, and resolutions of international conferences have no binding effect unless and until they are sanctioned by subsequent national or international action; and treaties of non-aggression that are flagrantly disregarded when it becomes expedient to do so cannot be relied upon as evidence to prove the EVOLUTION OF AN INTERNATIONAL CUSTOM OUTLAWING AGGRESSION.
Dr. Glueck, however, does not rely on any customary law in fixing the criminal responsibility on the individuals. He admits that the alleged customary law will only take us to the state concerned. He correctly says that if war is crime the criminal responsibility attaches to the state concerned. He however reaches the individuals by a process of reasoning which seems to indicate as if we must get hold of them anyhow. Individuals must be got hold of in order to make the responsibility effective. This he considers to be the realistic view in the light of the practical as well as logical result to which one or the other solution will lead.
Even keeping in view the very harsh reproaches to which one must subject himself if he is not prepared to share this view of Dr. Glueck, I am afraid, I cannot induce myself to this view of the law.
I cannot forget that SO LONG AS NATIONAL SOVEREIGNTY REMAINS THE FUNDAMENTAL BASIS OF INTERNATIONAL RELATION, ACTS DONE WHILE WORKING A NATIONAL CONSTITUTION WILL REMAIN UNJUSTICIABLE IN INTERNATIONAL SYSTEM and individuals functioning in such capacities will remain outside the sphere of international law. I, myself, am not in love with this national sovereignty and I know a strong voice has already been raised against it. But even in the postwar organizations after this Second World War NATIONAL SOVEREIGNTY STILL FIGURES VERY LARGELY.
One great authority relied on by Dr. Glueck is the Right Honourable Lord Wright. His views are expressed in an article on “War Grimes Under
International Law”, published in the Law Quarterly Review in January 1946. After all, as daily experience shows, the success of a thought in every field of human activity including the legal field does not always depend exclusively upon its inner value but also upon certain outward circumstances, particularly upon the weight generally attached to the words of the person who has given utterance to the thought. I must say with due respect that Lord Wright’s utterances deserve special weight on both these grounds and these must be examined very carefully before we can decide one way or the other. I would quote from Lord Wright s article at some length.
Lord Wright does not base his conclusion on any unlimited power of the victor. He is rather against the view that any judiciary should be instrumental to the mere manifestation of the victor’s power, if the trial is to be such a manifestation only. His thesis is that such acts constitute crime in the individuals concerned under the international law.
Lord Wright says:
“War crimes are generally of a mass or multiple character. At one end are the devisers, organizers, originators, who would in many cases constitute a criminal conspiracy; at the bottom end are the actual perpetrators; in between these extremes are the intermediate links in the chain of crime.”
He then quotes from Professor Trainin’s work on “Hitlerite Responsibility under the Criminal Law”, where the learned Professor observes that all members of the Hitlerite clique were not only participants in an international band of criminals but also organizers of a countless number of criminal acts and concludes that “all the Hitlerite criminals are liable without exception from the lance-corporal in the Army to the lance-corporal on the throne”. Accepting this view of Professor Trainin and referring to the several acts ascribed to the Hitlerite group, Lord Wright proceeds to observe:
“A
'political’ purpose does not change murder into something which is not murder. Nor do they cease to be crimes against the law of war because they are also crimes against the moral law or the elementary principles of right and wrong. Law and morality do not necessarily coincide, though in an ideal world they ought to. But a crime does not cease to be a crime because it is also an offense against the moral code.”
With “the above thought in mind” Lord Wright approaches the question “whether the initiation of war, the crime against peace, which the Agreement of the four Governments pillories, is a Crime calling for the punishment of individual criminals. ” He then proceeds to consider the question from two different viewpoints, namely:
1. That “the war was ushered in by the most brutal and blatant announcements that it WOULD BE CONDUCTED with every possible atrocity in order to strike terror”; and thus it became criminal;
2. That “even WITHOUT THE CALCULATED SYSTEM OF TERRORISM” the war was criminal as it aimed at aggression and world domination.
Coming to THE SECOND ASPECT OF HIS APPROACH, Lord Wright says:
“But the category of crimes against peace which is one of the counts in the Indictment of 1945 and includes the planning, preparation and initiation of aggressive or unjust war, requires a short further discussion. It does raise one of the most debated questions of international law. I have stated why I think it is an international crime and indeed the master crime. It is the source and origin of all the evils of war-—-modern war, even without the calculated system of terrorism exhibited by the Germans and their Allies in the war just ended, is about the greatest calamity which can be inflicted upon mankind. No one can doubt that to bring this about with cold, calculated villainy, for the purpose of spoliation and aggrandisement, is a moral crime of the foulest character.”
Lord Wright then points out how legal writers are fond of distinguishing moral from legal crime, and says:
“There is, however, no logical distinction in the character of the act or its criminality; the only question is whether the crime can be punished on legal grounds, that is WHETHER THE OFFENSE HAS ACHIEVED THE STATUS OF BEING FORBIDDEN BY LAW.”
He then proceeds:
“To punish without law is to exercise an act of power divorced from law. Every act of punishment involves an exercise of power, but if it is not based on law it may be morally just, but it is not a manifestation of justice according to law, though some seem to think that if the justice and morality of the decision are incontrovertible, it may serve as a precedent for similar acts in the future and thus establish a rule of International Law. Thus the banishment of Napoleon I to St. Helena by the executive action of the Allies may, according to that way of thinking, be taken in some sort to create a precedent for the similar executive action for the punishment of deposed or of abdicated sovereigns. But the idea of an International Law between different members of the community of nations would not be thus developed.”
Lord Wright then points out:
“The punishment of heads or other members of Governments or national leaders for complicity in the planning and initiating of aggressive or unjust war has not yet been enforced by a Court as a matter of International Law.”
In this connection he also refers to the fact that:
“The 1919 Commission did not recommend that the act which brought about the war should be charged against their authors. ” According to Lord Wright, however:
“between then and the commencement of the war just ended, civilized nations, appalled by reviewing the destruction and suffering caused by the First Great War and appalled by the thought of the immeasurable calamities which would flow from a Second World War, gave much thought to the possibility of preventing the second war. The
Covenant of the League of Nations did contain certain machinery for that end. Certain conventions were summoned to declare that unjust or aggressive war was to be prohibited; one of these actually declared that it was a crime.”
Lord Wright then considers THE EFFECT OF THE PACT OF PARIS in this respect and says:
“In 1928 the Pact or the Kellogg-Briand Pact was signed or adhered to by over sixty nations. It was a solemn treaty. Its central operative clause was brief, unusually brief for an international document, but its terms were plain, clear and categorical. The nations who signed or adhered to it unconditionally renounced war for the future as an instrument of policy. There would seem to be no doubt or obscurity about the meaning of this. There seems to be no room for doubt that the Pact was, as is clear by its very terms, intended to declare war to be an illegal thing: This which is plain enough on its face has been declared to be the fact by the most eminent statesmen of the world.”
Lord Wright then seeks to explain away the want of any provision in the Pact with regard to sanctions and machinery for the settlement of differences between nations. He says:
“The concert of the nations evidenced by the Pact had the sanction of being embodied in a Treaty, the most formal testimony to its binding force. As a treaty or agreement it only bound the nations which were parties to it. But it may be regarded from a different aspect. It is evidence of the acceptance by the civilized nations of the principle that war is an illegal thing. This principle so accepted and evidenced, is entitled to rank as a rule of International Law.”
So far the criminal responsibility is traced to the aggressive nation. The reasoning with which Lord Wright justifies fixation of responsibility on the individuals finds expression thus:
“It may be that before the Pact the principle was simply a rule of morality, a rule of natural as contrasted with positive law. The Pact, which is clear and specific, converts the moral rule into a positive rule comparable to the laws and customs of war, and like these laws and customs binding on individuals since the principle that individuals may be penally liable for particular breaches of International Law is now generally accepted. Thus violation of the principle that war, if unjust, is illegal and is not only a breach of treaty on the part of the nation which violates it, carrying with it all the consequences which attend a treaty-breaking, but is also a crime on the part of the individuals who are guilty as conspirators, principals or accessories of actively bringing it about, as much as a violation of the customary laws of war. Nations can only act by responsible instruments, that is by persons. If a nation, in breach of a treaty, initiates aggressive war the guilt of the responsible agents of the nation who bring this about, being able to do so by reason of their high position in the State, is a separate, independent and different liability, both in its nature and penal consequences.
"This
is merely an illustration of the thesis that international crimes are of a multiple character; even violations of the laws of war will, unless the case is one of purely individual wrongdoing, generally involve multiple penal liability. Here the nation breaks the treaty, but the heads of the State who bring about the war are by their acts personally guilty of doing what the Pact declares to be illegal. That is a crime on their part like the crime of violating the laws of war. The nation is liable as a treaty-breaker, the statesmen are liable as violating a rule of International Law, namely, the rule that unjust or aggressive war is an international crime. The Pact of Paris is not a scrap of paper. This, in my opinion, is the position when the Pact of Paris is violated. It is on this principle, as I apprehend, that crimes against peace may be charged personally against the leading members of the Nazi Government.”
Lord Wright’s last appeal is to the progressive character of international law, already noticed by me.
THE AUTHORITIES such as I have referred to above or hereafter may have occasion to refer to are only of PERSUASIVE VALUE to us and in spite of what I have said as to why a special weight is due to his view, I should at once say with due deference that for the reasons given below I do not feel inclined to the view supported by the Right Honourable Lord Wright.
The passages wherein Lord Wright quotes from Professor Trainin and concludes that however “high his rank in the hierarchy”, a member of the Hitlerite clique “is still only a murderer, robber, torturer, debaucher of women, liar and so on”, need not detain us long. These are mere expressions of indignation roused by the remembrance of recent abominable acts during war. It may not be possible for one to avoid such feeling who had to study the tale of Nazi atrocities. But such a feeling must be avoided by a Tribunal sitting on trial for such alleged acts.
LORD WRIGHT approaches the question in two different ways. His first line of approach is dependent on A SPECIAL FACTUAL FEATURE of the case before him, namely, that the war in question was not only an aggressive war but that it was expressly designed to be conducted in a criminal manner—it was ushered in by the most brutal and blatant announcements that it would be conducted with every possible atrocity in order to strike terror. In my opinion, this fact, if established, would make these persons responsible for war crimes stricto sensu. Legal or illegal, war is to be regulated in accordance with the regulating norms of international law. Those who actually violate such regulations and those who direct their violations are equally war criminals stricto sensu. This line of approach, therefore, does not help us in answering the question raised before us.
In his second line of approach, Lord Wright takes up the case of war without the calculated system of terrorism and this is what we are concerned with for our present purpose.
So far as the question before us is concerned, Lord Wright’s real reasons for declaring individual responsibility will be found to be the following:
1. In order that there may be international crime, there must be an
international community.
(a) There is a community of nations, though imperfect and inchoate.
(b) The basic prescription of this community is the existence of
peaceful relations between states.
2. War is a thing evil in itself: It breaks international peace.
(a) It may be justified on some specified grounds.
(b) A war of aggression falls outside that justification.
(c) To initiate a war of aggression is therefore a crime.
3. Granted the premises:
( a ) That peace among nations is a desirable thing.
(b) That war is an evil in itself as it violates that peace.
(c) That there is a criminal international law affecting individuals.
It follows that individuals responsible for planning, preparing, starting and waging war are criminally liable under the international law.
4. Whatever might have been the legal position of war in an international community, the Pact of Paris or the Kellogg-Briand Pact of 1928 clearly declared it to be an illegal thing.
Reasons 1, 2, and 4, specified above, relate to the question whether aggressive war is at all a crime in international law. I have already considered that question and have answered it in the negative. The question now under our consideration is, assuming such a war to be a crime, what is the position of the individual state AGENTS responsible for bringing about this war condition? Lord Wright touches this question only in his reason 3 (c) as specified by me.
He, himself, points out that the punishment of heads or other members of governments or national leaders for complicity in the planning and initiating of aggressive or unjust war has not yet been enforced by a court as a matter of international law.
The cases of criminal international law affecting individuals referred to by Lord Wright are also referred to and discussed by Judge Manley O. Hudson, Professor Glueck and Professor Hans Kelsen. Those are all cases where the act in question is the act of the individual on his own behalf committed on high seas or in connection with international property. Most of these cases are expressly provided for. I do not see how the existence of such international law helps the solution of the present question. It may be that even the present case could have been provided for, either in the several national systems or in international law. In fact, Senator Borah in 1927 placed a Resolution before the Senate to that effect. As has been pointed out by Professor Glueck, that has not been done by any of the nations for reasons best known to them. It may only be added here that during the period intervening between the two World Wars recommendations in this respect came from various unofficial bodies but all these seem to have gone unheeded by the several states.
Considering (1) that sovereignty of states has been the fundamental basis
of hitherto existing international law; (2) that even in the post-war organizations this sovereignty is being taken as the fundamental basis; and (3) that so long as sovereignty of the states continues to play this important role, no state is likely to allow the working of its constitution to be made justiciable by any agency, I cannot hold that this omission on the part of the states in respect of the present question was not deliberate. I doubt if the states would even now agree to make such acts of their agents justiciable by others.
I have already given the view expressed by Prof. Quincy Wright in 1925. This is the place where I should notice what he now says while endeavouring to support the Nuremberg judgment. Prof. Wright says:
1. “The Tribunal reached the conclusion that THE CHARTER declared pre-existing international law when it provided that individuals were liable for crimes against peace.
2. "In coming to this conclusion the Tribunal emphasized the development of an international custom which regarded the initiation of aggressive war as illegal and which had been given formal sanction by substantially all the states in the Pact of Paris of 1928.
3.
"
(a) The nexus between the obligation of states not to resort to aggressive war and the criminal liability of individuals who contribute to the violation of this obligation was illustrated by analogy to the generally recognized individual liability for War Crimes Stricto Sensu.
"(4) If an individual act is of a criminal character, that is, mala in se, and is in violation of the states’ international obligation, it is crime against the law of nations.”
Professor Wright supports this view and for this purpose relies on the authority of Lord Wright, who, according to Prof. Wright, pointed out that the Pact of Paris converted the principle that “aggressive war is illegal” from a rule of “ natural law” to a rule of “ positive law”, which like the rules of war is binding on individuals as well as states. I have already given my reasons why I could not accept this view of the effect of the Pact of Paris.
Lord Wright in arriving at his conclusion placed great reliance on the views of Mr. Trainin of the U. S. S. R. who with Mr. I. T. Nikitchenko signed the London agreement for the Government of the U. S. S. R. for the establishment of the International Tribunal for the trial of the major war criminals of the European Axis.
MR, TRAININ, it must be said, frankly points out the real urge for these trials. He says:
“The question of the criminal responsibility of the Hitlerites for the crimes that they have committed is therefore of the greatest importance; it has become a very pressing problem, as the monstrous crimes of the Hitlerite butchers have aroused the most burning and unquenchable hatred, thirst for severe retribution in the hearts of all the honest people of the world, the masses of all liberty-loving people. ”
MR. TRAININ’S ARTICLE is entitled “The Criminal Responsibility of the
Hitlerites”. The learned author starts with the following propositions:
1. The problems of international criminal law have not hitherto been dealt with clearly.
(а) There is no clear definition of the fundamental meaning of international criminal law or international crime.
(b) No orderly system of institutes of international criminal law is recognized.
2. In the existing literature all problems of international criminal law usually boil down to one question—that of jurisdiction.
(a) The policy of aggressive imperialistic supremacy, a constant threat to peace, a policy systematically giving ample scope for the use of force in the sphere of international relations, naturally could not contribute to the development and strengthening of international law as a system of rules protecting the liberty, independence and sovereignty of nations.
(1) But it would be a serious mistake to draw the general conclusion from this fact—that the introduction of the problem of international criminal law was inopportune or fruitless.
(2) Two conflicting tendencies of the historical process had
been visible even before the Second World War; namely:
(а) the collision of imperialistic interests, the daily struggle
in the field of international relations and the futility of international law—the tendency reflecting the policy of the aggressive nations in the imperialistic era.
(b) the struggle for peace and liberty and independence
of nations—a tendency in which was reflected the policy of a new and powerful international factor.
3. The present great war has given the latter tendency extraordinary scope and enormous power.
(а) Liberty-loving nations have agreed that they respect the right
of all nations to choose their own form of government and will strive to attain complete cooperation among all nations in the economic field in order to guarantee a higher standard of living, economic development and social security.
(b) The Declaration of the Four Nations on general security proclaimed in Moscow on October 30, 1943 replaced “the period of full play of imperialistic plundering, and of the weakness of international legal principles” by a period which strengthens the laws which are the basis of international relations and which consequently leads to the strengthening of the battle against all the evil elements.
(c) That is why there is an indissoluble organic tie between the beginning of the creation of a new system of international legal relations and the fight against the Hitlerite crimes and against the international misdeeds of the aggressors.
4. To facilitate this process of development and to strengthen these new ideas, juridical thought is obliged:
(a) to forge the right form for these new relations.
(b) to work out a system of international law, and (c) as an indissoluble part of this system to dictate to the conscience of nations the problem of criminal responsibility for attempts on the foundation of international relations.
Towards the end of the first chapter Mr. Trainin considers it to be “the most serious problem and the honourable obligation of the Soviet jurists to give legal expression to the demand for retribution for the crimes committed by the Hitlerites” . He then proceeds in his second chapter to enumerate “German crimes in the First World War and the Treaty of Versailles”.
In chapter three he takes up the discussion of “The Concept of International Crime”. The learned author points out that though the War of 1914- 1918 showed the great importance of the problem of the responsibility of the aggressor, juridical thought still continued to wander in formal, unrealistic abstractions.
He points out that the problem in this respect is quite different in the field of international law from that in any national system. Here in the international field “there is no experience, no tradition, no prepared formulae of crime or punishment. This is a field in which criminal law is only beginning to penetrate, where the understanding of crime is only beginning to take form ”.
He then examines certain existing definitions and international conventions relating to certain crimes and rejects the definitions, observing that in them “the concept of an international offense as a particular kind of infringement upon sphere of international relations disappears completely, being dissolved in the mass of crimes provided against in national laws and committed on the territory of different states”.
As regards the international conventions the learned Professor points out that “the selection of this or some other crimes as the object of the provisions of international conventions is necessitated, not by theoretical considerations concerning the nature of international crime, but by various political motives; the interests of one country or a group of countries in the combat a- gainst a given crime, material facilities for organization of such combat, and other reasons of that nature”. These do not help the solution of the problem now raised. “Because of their juristic nature and because of their factual significance, conventions for certain common criminal offenses appear to be one of the various forms of reciprocal support for criminal law by governments having in view a realistic combat against crime. This reciprocal action of governments is not connected directly with the problem of international crimes.”
MR. TRAININ points out that such international conventions do not make
these crimes international crime. Again, simply because there is no international convention relating to something that does not mean that this might not constitute international crime.
The learned author then takes up the League Conventions, and finds in them mere attempts at “classifying certain acts as criminal” and concludes that these also failed to establish a concept of "international crime”.
He then proceeds to give his own views thus:
1. The conception of international crime and the combating of international crimes should be henceforth constructed on the basis:
(a) Of experience of the “Fatherland Defense War”.
(b) On principles imbued with a real solicitude for the strengthening of the peaceful cooperation of the nations.
2. An international crime is an original and complex phenomenon. It differs in quality from the numerous crimes provided for by the national criminal legislations. Crimes in national systems are connected by one common basic characteristic—they are infringements upon social relations existing within a given country.
3. The epoch when governments and peoples lived isolated or practically isolated from each other is long past.
(a) The capitalistic system specially developed complicated relations between nations.
(1) A steady international association has developed.
(2) Despite the conflicting interests of various nations, despite the differences in patterns of the political systems of countries, this international association forms innumerable threads connecting peoples and countries and represents, in fact, a great economic, political and cultural value. [...]
4. An international crime is an attempt against the abovementioned achievement of human society—an international crime is directed toward the deterioration, the hampering and the disruption of these connections.
(a) An international crime should be defined as infringements on the bases of international association.
5. The legal regime of international relations rests on its own peculiar basic source of law, namely a treaty which is the only law-creating act.
(a) It is wrong to say “that because the states accepted for themselves, by voluntary agreements, the rules of their conduct, they themselves are also the final judges to decide if they can recognize these rules for a long time, or due to changed conditions, they will regulate in a new way the vital rights of the nation”.
6. The rule that criminal law has no retroactive force can be provided against BY THE TERMS OF A TREATY. The treaty itself may supply the
basis for the acknowledgment of the retroactive effect of such a rule of law.
In chapter four, the learned author gives a classification of international crimes. He begins by defining an international crime to be “a punishable infringement on the bases of international associations”, classifies such crimes into two groups, the first group being “interference with Peaceful Relations between Nations”; and the second, “Offenses connected with War”. In the first group he places seven items, namely:
1. Acts of aggression.
2. Propaganda of aggression.
3. Conclusion of agreements with aggressive aims.
4. Violation of treaties which serve the cause of peace.
5. Provocation designed to disrupt peaceful relations between countries.
6. Terrorism.
7. Support of armed bands (Fifth Column).
According to him, with the exception of terrorism, none of the others are covered by international conventions.
Chapter five is devoted to “Crimes of the Hitlerites against Peace” and the learned author concludes his enumeration by saying that “the Hitlerites, having criminally exploded the world, transformed war into an elaborately thought out system executed according to plan, a system of militarized banditry” .
In the next chapter he again enumerates “War Crimes of the Hitlerites” giving war crimes stricto sensu committed during the last war.
IN CHAPTER SEVEN, Mr. Trainin proceeds to find out “the PERPETRATOR of an international crime”. His propositions here seem to be the following:
1. The central problem in the sphere of criminal justice is the problem of guilt; there is no criminal responsibility without guilt. Guilt is expressed in two forms: In the form of intention and in the form of negligence.
2. A state as such cannot act with intention or negligence: This brings in the criminal exemption of a state.
3. For criminal acts committed in the name of the state or under its authority, the physical persons who represent the government and act in its name must bear the responsibility.
(а) The criminal responsibility of persons acting in the name of the state is natural under any form of government, but it is specially appropriate in Germany, ruled by tyranny.
(b) The criminal responsibility of physical persons acting on be half of juridical persons is recognized in criminal legislations in force now; (e.g., Art. 172 of the Swiss Criminal Code of 1937 making directors of a company criminally liable for some act of the company).
(c) The physical persons are criminally responsible because it is they who infringe the relations based on international law— it does not matter that such individuals are no party in such
international relations.
THIS IS THE WHOLE THESIS OF MR. TRAININ. The remaining four chapters are not relevant for our present purpose.
Unlike the other authors named above, MR. TRAININ DOES NOT BASE HIS
CONCLUSION EITHER ON ANY PACT OR CONVENTION OR ON ANY CUSTOMARY LAW. He does not say that international law, as it stood before World War I, did contemplate such acts as criminal. It is not his case that any particular pact, including the Pact of Paris, made such acts criminal. He does not even claim that the criminality developed as a customary law. On the other hand, he seems to point out that it will be a false analogy to rely on the cases of crimes hitherto recognized in international relations and, from such recognition, to attempt the introduction of the present crime.
It may sometimes be legitimate to apply the juristic concept of a legal proposition to phenomena which were not within the original contemplation of the proposition. But I doubt if it is legitimate to pour an altogether new content into such a proposition, a content which is not even approximately similar to its original content.
Mr. Trainin’s thesis seems to be that since the Moscow Declaration of 1943 and as a result of the same, a NEW INTERNATIONAL SOCIETY has developed. To facilitate this process of development and to strengthen these new ideas, juridical thought is obliged to forge the right form for these new relations, to work out a system of international law and, as an indissoluble part of this system, to dictate to the conscience of nations the problem of criminal responsibility for attempt on the foundations of international relations.
Mr. Trainin speaks of some “HONOURABLE OBLIGATION” of the Soviet jurists to give legal expression to the demand of retribution for the crimes committed by the Hitlerites. I hope this sense of obligation to satisfy any demand of retribution did not weigh too much with him. A judge and a juridical thinker cannot function properly under the weight of such a feeling. Yet, it cannot be denied that Mr. Trainin’s is a very valuable contribution to deep juridical thinking.
The rules of law, no doubt, to a great extent, flow from the facts to which they apply. Yet an attempt to find such rules directly by such a consideration alone is likely to lead one to lose his way in a sort of labyrinth. The theoretical legal principles involved in this manner are not likely to stand the test of real life.
The Moscow Declaration is only a Declaration that a new epoch of international life is going to begin.
Even assuming that this new epoch has commenced, that will only mean the “reason” for the suggested law has come into existence. But the reason for the law is not, itself, the law.
The legal rule in question here is not such as would necessarily be implied in the state of facts related by Mr. Trainin and would thus originate simultaneously with those facts. International relations, even as premised by the
Moscow Declaration, will still constitute a society in a very specific sense. It would be under the reign of law also in a specific sense, and, however much it may be desirable to have criminal law in such a life, such a law would not be its necessary implication.
At most, Mr. Trainin has only established a demand of the changing international life. But I doubt whether this can be a genuine demand of that life and whether it can be effectively met by the introduction of such a criminal responsibility which would under the present organization only succeed in fixing such responsibility upon the PARTIES TO A LOST WAR.
The learned author ignores the fact that even now national sovereignty continues to be the basic factor of international life and that the acts in question affect the very essence of this sovereignty. So long as submission to any form of international life remains dependent on the volition of states, it is difficult to accept any mere implication of a pact or agreement which would so basically affect the very foundation of such sovereignty.
In any case, even assuming that such a criminal law flows naturally from mere reason, it is difficult to see how it is carried back to the past.
If Mr. Trainin is thinking of any treaty eliminating this difficulty as to retroactivity, it would suffice to say, as I have said already, that in the case before us there is no such treaty.
THE MOST VALUABLE CONTRIBUTION OF MR. TRAININ in this respect is his view of the place of criminal responsibility in international life. He rightly points out that piracy, slavery and the like that have hitherto been included in international system as crimes cognizable by international law are really not international crimes in the correct sense of the term. He points out that “In reality, the selection of this or some other crimes as the object of the provisions of international conventions is necessitated, not by theoretical considerations concerning the nature of international crimes, but by various political motives: The interests of one country or a group of countries in the combat against a given crime, material facilities for organization of such combat and other reasons of that nature .... Because of their juristic nature and because of their factual significance, conventions for certain common criminal offenses appear to be one of the various FORMS OF RECIPROCAL SUPPORT for criminal law by governments having in view a realistic combat against crime. This reciprocal action of governments is not a loss of practical attributes, but it is not connected directly with the problem of international crimes.”
Mr. Trainin points out that the conception of criminal responsibility in international life can arise ONLY WHEN THAT LIFE ITSELF REACHES A CERTAIN STAGE IN ITS DEVELOPMENT. Before we can introduce this conception there, we must be in a position to say that that life itself is ESTABLISHED ON SOME PEACEFUL BASIS : International crime will be an infringement of that basis—a breach or violation of the peace of pax of the international community.
I fully agree with Mr. Trainin in this view. What I find difficult to accept is his meaning of the term peace in this context; as also his view of the nature of the international community as it stood before the Second World
War. Further, I doubt if it would at all be expedient to introduce such criminal responsibility in international life.
The question of introduction of the conception of crime in international life requires to be examined from the viewpoint of the social utility of punishment. At one time and another different theories justifying punishment have been accepted for the purpose of national systems. These theories may be described as (l) Reformatory, (2) Deterrent, (3) Retributive and (4) Preventive. “Punishment has been credited with reforming the criminal into a law-abiding person, deterring others from committing the crime for which previous individuals were punished, making certain that retribution would be fair and judicious, rather than in the nature of private revenge, and enhancing the solidarity of the group by the collective expression of its disapproval of the law-breaker.” Contemporary criminologists give short shrift to these arguments. I would however proceed on the footing that punishment can produce one or the other of the desired results.
So long as the international organization continues at the stage where the trial and punishment for any crime remains available only against the vanquished in a lost war, the introduction of criminal responsibility cannot produce the deterrent and the preventive effects.
The risk of criminal responsibility incurred in planning an aggressive war does not in the least become graver than that involved in the possible defeat in the war planned.
I do not think anyone would seriously think of reformation in this respect through the introduction of such a conception of criminal responsibility in international life. Moral attitudes and norms of conduct are acquired in too subtle a manner for punishment to be a reliable incentive even where such conduct relates to one’s own individual interest. Even a slight knowledge of the processes of personality-development should warn us against the old doctrine of original sin in a new guise. If this is so, even when a person acts for his own individual purposes, it is needless to say that when the conduct in question relates, at least in the opinion of the individual concerned, to his national cause, the punishment meted out, or, criminal responsibility imposed by the victor nation, can produce very little effect. Fear of being punished by the future possible victor for violating a rule which that victor may be pleased then to formulate would hardly elicit any appreciation of the values behind that norm.