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Published online by Cambridge University Press: 25 April 2017
The problem of war criminals has aroused controversy between those who insist that enemy persons guilty of acts which have shocked the conscience of mankind shall be punished and those who insist that the United Nations must observe principles of civilized justice. Those principles require that an individual shall not be punished for an act, however shocking, unless the act was a crime under the law applicable at the time and place where it was committed (nulla poena sine lege), and unless the guilt of the individual has been established by a competent court utilizing fair procedures (due process of law).
1 See Sheldon, Glueck, War Criminals, Their Prosecution and Punishment,New York, 1944 Google Scholar; Georg Schwarzenberger, “War Crimes and the Problem of an International Criminal Court,” Czechoslovak Year Book of International Law,London, 1942, p. 67; George Finch, “Retribution for War Crimes,” this Journal, Vol. 37 (1943), p. 8; Proc. Am. Soc. Int. Law,1943, p. 57; Report adopted by the National Executive Board of the National Lawyers Guild, Dec. 16, 1944, Lawyers Guild Review,Vol. IV (Nov.-Dec, 1944), p. 18; Levy, Albert G. D., “The Law and Procedure of War Crime Trials,” Am. Pol. Set. Rev.,Vol. 37 (1943), p. 1053, note 3.Google Scholar
2 Hyde, C. C., “Punishment of War Criminals,” Proc. Am. Soc. Int. Law,1943, p. 39 Google Scholar; George Manner, “The Legal Nature and Punishment of Criminal Acts of Violence contrary to the Laws of War,” this Journal, Vol. 37 (1943), pp. 407, 433. The American Members of the Commission of Responsibilities of the Paris Peace Conference (1919) were especially insistent on this point, quoting from the case of U. S. v.Hudson (7 Cranch 32, 1812), “the legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense” and commenting “what is true of the American States must be true of this looser union which we call the Society of Nations.” They did not, however, regard the lack of international legislation defining war crimes an “insurmountable” difficulty (Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919, Violation of the Laws and Customs of War, Carnegie Endowment for International Peace, Pamphlet No. 32,1919, p. 75). It should be noticed that President Washington in his neutrality Proclamation of April 22, 1793, and the Federal Courts in the cases of In re Henfield (Fed. Cas. 6360, 1793) and U. S. o. Ravara, (2 Dall. 297; Fed. Cas. 16,122, 1793) had earlier assumed that federal courts had a common law jurisdiction to punish offenses against the law of nations. See Q. Wright, The Enforcement of International Law through Municipal Law in the United States,Urbana, 1916, pp. 114-116.
3 “No one shall be convicted of crime except for violation of a law in effect at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that applicable at the time of the commission of the offense.” Report on Essential Human Rights,received by American Law Institute, February 24, 1944, Art. 9, said to be included in substance in the constitutions of thirty countries. Changes in the competence and procedure of the trial court after the offense was committed and judicial discretion in determining penalties are often regarded as permissible. (Beazell v.Ohio, 269 U. S. 167, 1925; “Retroactive Legislation,” Encyclopedia of the Social Sciences.)
4 “ Everyone has the right to have his criminal and civil liabilities and his rights determined without undue delay by fair public trial by a competent tribunal before which he has had opportunity for a full hearing:” Essential Human Rights,Art. 7, said to be included in substance in the constitutions of fifty countries. This principle and that stated in note 3 together imply that there should be no unreasonable discrimination in the initiation of prosecutions of those probably liable under the law and that defenses available to the accused when the offense was committed should not be unreasonably altered. These implications, however, necessarily leave a margin of flexibility. The accused cannot object to a reasonable selectiveness in initiating prosecutions or to reasonable modifications of procedural technicalities between the time the offense was committed and the case is adjudged.
5 Glueck, p. 10. Frederick Kuh reported to the Chicago Sun from London on September 23, 1944, that members of Parliament were complaining that “the paralytic approach” of the United Nations War Crimes Commission was “making a mockery of the justice which free peoples are demanding be meted out to Germans guilty of outrages.” See also the same Journalist in P.M., Sept. 17, 1944, p. 3, and Samuel Grafton in Chicago Sun,November 2, 1944. A British writer warns against “strict interpretation of the letter of the law” and hopes “common sense will prevail” and “the common law of nations” will be applied by special courts if “technicalities” prevent the ordinary courts from applying it. Royal Institute of International Affairs, “Treatment of War Crimes,” Bulletin of International News,Vol. 22 (1945), p. 206.
6 Charles Warren in Proceedings of the American Society of International Law,1943, p. 51 ; George Finch, in same, p. 57; Glueck recognizes the “right” of the United Nations to follow such a procedure (p. 126) but considers it inexpedient (p. 78). The American members of the Commission of Responsibilities (1919) objected to holding the Kaiser responsible “for violations of positive law” but not for “what may be called political offenses and to political sanctions” (work cited, p. 66). On treatment of Napoleon see Glueck, p. 223; Wright, Q., “The Legal Liability of the Kaiser,” in American Political Science Review,Vol. 13 (1919), p. 127.CrossRefGoogle Scholar
7 U . S . Constitution, Art. 1, Sec. 9; Art. 3, Sec. 3; C. H. Mcllwain, “Attainder,” in Encyclopedia of the Social Sciences.
8 Max Lerner, “Political Offenders,” in same; V. V. Pella, La repression des crimes contre la personnalité de l’élat,in Académie de droit international, Recueil des cows,Vol. 33 (1931), p. 671.
9 Political offenses are usually excluded from extradition. See Draft Convention on Extradition, Harvard Research on International Law, this Journal, Vol. 29 (1935), Supplement, p. 107.
10 “ It is said that in the case of the Russian ambassador, when Lord Holt sat in the King's Bench, the offenders were, after conviction, detained in prison, from term to term, without judgment, till the Czar Peter was satisfied, the reason for this procedure being that the Czar would not have considered any sentence adequate short of death, which the court could not pronounce.” McKean, Ch. Justice, in Respublica vs. DeLongchamps, Court of Oyer and Terminer at Philadelphia, 1784, 1 Dall. III , 117; Moore's Digest,Vol. 4, p. 622. See also cases of attack on Legations in Peking by Boxers, 1900 (Moore's Digest,Vol. 5, p. 495); murder of Austrian Archduke at Sarajevo in 1914 (Naval War College, Int. Law Docs.,1917, p. 30); murder of Sir Lee Stack, Sirdar of the Sudan, in 1922; murder of Italian General Tellini in Greece, 1923 (Q. Wright, this Journal, Vol. 18 (1924), pp. 536, 543); murder of U. S. Vice-Consul Imbrie in Iran, 1924 (Hackworth, Digest,Vol. 4, p. 710; E. C. Stowell, this Journal, Vol. 18 (1924), p. 768; murder of King Alexander of Yugoslavia in France, 1934 (A. K. Kuhn, this Journal, Vol. 29 (1935), p. 87). See also Q. Wright, Enforcement of International Law,p. 75; Clyde Eagleton, “The Responsibility of the State for the Protection of Foreign Officials,” this Journal, Vol. 19 (1925), pp. 293, 310, and The Responsibility of States in International Law,New York, 1928, p. 184.
11 “Whoever offers any violence to him (a public minister) not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world.” Respublica v.DeLongchamps, 1 Dall. III , 116. See also U. S. note of Sept. 22, 1900 “in regard to the exemplary punishment of the notable leaders in the crimes committed in Peking against international law:” Moore's Digest,Vol. 5, p. 495.
12 Above, notes 10, 11. The principle applies to offenses against aliens even when there is no political element involved. “The failure to prosecute those who are guilty of offenses against aliens constitutes an international delinquency and justifies the intervention of the alien's government:” Stowell, E. C., International Law,New York, 1931, p. 169.Google Scholar See also Harvard Research, Draft Convention on Responsibility of States,this Journal, Vol. 23 (1929), Special Supplement, p. 166; Janes Case, U. S.Mexico, General Claims Commission, 1927, p. 114; Moore's Digest,Vol. 6, p. 806.
13 Harvard Research, Draft Convention on Responsibility of States,Art. 4, as cited, p. 146; Eagleton, Responsibility of States,p. 15; Q. Wright, International Law in its Relation to Constitutional Law,this Journal, Vol. 17 (1923), p. 241, and “The Outlawry of War” in same, Vol. 19 (1925), p. 80.
14 Some sociologists question whether such punishment can be rationally justified. Noting that “in the controversial realm of social policy we are tempted to judge our actions in terms of logical abstractions or sentiments and to reject the pragmatic test,” and judging by past history, criminological theories, and the findings of sociology and psychology, C. Arnold Anderson concludes: “if we are seeking to assist in the abolition of war, the trial of defeated leaders by their conquerors is inappropriate. The justifications that may be offered for such trials do not touch the basic causes of war. Future leaders who might lead another war are not eliminated. The attitudes that the victors would have to adopt, in this day of mass democracy, in order to assume so heavy a responsibility contradict the conditions of international relations upon which peace must rest. The defeated nations would not be conciliated. The trials would drive victor and vanquished farther apart than they were at the end of hostilities.” (“The Utility of the Proposed Trial and Punishment of Enemy Leaders,” Am. Pol. Sci. Rev.,Vol. 37 (1943), pp. 1081, 1098-9). Philosophers and criminologists have differed as to the social justification for any criminal punishment (see Wines, F. H., Punishment and Reformation,New York, 1910, p. 281 Google Scholar). The following objectives have been suggested for punishing war criminals. 1) Vindicationof principles of civilized justice and promotion of the rule of law. The rule of law would not be promoted if those guilty of acts generally regarded as atrocities were not punished. 2) Preventionof further crimes or leadership by the criminals. There may be real danger of renewed leadership by the Nazi and Fascist leaders if alive or if martyrized. 3) Retributionsatisfying popular demands of liberated peoples for revenge and of enemy peoples for a scapegoat. Peace would not be promoted by mass massacre of innocent enemy peoples or by indiscriminate branding of all enemy peoples as criminals thus reuniting them for a war of revenge. 4) Deterrenceof potential war criminals in the future from committing similar offenses. Impunity of war criminals might encourage further leaders to try it again; (see Glueck, p. 16). These objectives seem to require scrupulous care for the principles of criminal justice and avoidance of identification of the war criminals with the enemy people or state i.e.symbolic indictment and conviction of the entire enemy population in the war criminal trials, and punishments which are not commensurate with the offenses. Anderson's criticism of such trials springs partly from his scepticism as to the possibility of realizing these conditions.
15 Hyde, C. C., “Punishment of War Criminals,” Proc. Am. Soc. Int. Law,1943, p. 39 Google Scholar and comments by E. D. Dickinson, same, p. 46. It is “better … to judge irreproachably a limited number of cases which can be held as good precedents than to obtain by means of hasty mass-trials a heap of convictions which in the eyes of the public would carry no weight and which would discredit the whole scheme… . The cases tried will form the basis of international criminal law, and it is essential that the proceedings should be of the highest standing.” Royal Institute of International Affairs, Bulletin of International News,as cited, p. 205.
16 U. S., Rules of Land Warfare,1940, Sees. 346, 357, and index; Cowles, Major Willard B. “Trial of War Criminals in Military Tribunals,” American Bar Association Journal,June, 1944.Google Scholar
17 In the Declaration of the Governments in Exile in London, on January 13, 1942, war criminals referred to persons responsible for “a regime of terror” in occupied territory as well as those who had violated the rules of war. Earlier (April, 1941) President Benes of Czechoslovakia had referred to the “political punishment of those who are responsible for this war” and President Roosevelt had denounced “the practice of executing innocent hostages” (Oct. 25,1941) a statement in which Prime Minister Churchill concurred (October 27, 1941). The Moscow Declaration of November 1, 1943, referred to “unspeakable crimes and atrocities” the perpetrators of which would be sent back to the countries where their “abominable deeds” were done and would be “punished according to the laws of the liberated countries and of the free governments which will be created therein.” It also referred to “major criminals whose offenses have no particular geographical localization.” to be punished by “joint decisions of the Allies.” On July 17, 1942, President Roosevelt said perpetrators of crimes against the Jews would be held to “strict accountability” and on March 24, 1944, “none who participate in those acts of savagery shall go unpunished.” He included “all who knowingly take part in the deportation of Jews to their death in Poland, or Norwegians and French to their death in Germany are equally guilty with the executioners.” On August 21, 1942, he referred to the “barbarous crimes of the invaders in Europe and Asia.” Summarizing these statements on February 1, 1945, Acting Secretary of State Grew said that current discussions “ provide for the punishment of German leaders and their associates for their responsibility for the whole broad criminal enterprise devised and executed with ruthless disregard of the very foundation of law and morality, including offenses wherever committed against the rules of war and against minority elements, Jewish and other groups, and individuals.” (United Nations Information Office, War and Peace Aims,Jan. 30, 1943, pp. 31, 116 and Dec. 1, 1943, p. 22; U. S., Department of State Bulletin,Feb. 4, 1945, p. 154-55).
18 Glueck 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 of, 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” (p. 37). This he says does not include violation of treaties, initiation of aggressive war, acts of members of armed forces in their “private, non-official capacity,” or acts of resistance by individuals in occupied territory (war treason, espionage, etc.).
19 Art. I, Sec. 8, par. 10; U. S. v.Arjona, 120 IT. S. 479, 1887.
20 Ernst Fraenkel distinguishes “war crimes” or “military measures, pursued in the course of actual fighting, which are contrary to accepted rules of warfare” from “occupation crimes, committed in the course of belligerent occupation of enemy territory” by occupying forces against civilians, as murder, assault and theft (Military Occupation and the Rule of Law,New York, 1944, p. 47). He thus includes offenses against the law of war and against national criminal law. Glueck's definition (above note 18) seems to include offenses in both interthese classes as well as some offenses against universal law. Hyde includes only offenses against the law of war (as cited p. 42). Dickinson suggests also offenders against universal law when he writes the “principles of criminal law generally accepted among the different nations are a proper source of international law” (as cited p. 48). Similarly Warren refers to “crimes against humanity” in addition to “violations of the rules of war.” Levy (as cited p. 1069) includes “the employment of war as an instrument of policy” as well as violations of the laws of war.”
21 Oppenheim was especially insistent that individuals are not subjects of international law and that soldiers acting under state authority are exempt from foreign jurisdiction except for breaches of the law of war (International Law,Vol. I, Sees. 20, 289-92, 445). See also Manner, as cited p. 407. In 1925 the present writer expressed the opinion:” It may eventually be possible to hold individuals responsible under international law for committing acts productive of war in time of peace and war crimes in time of war. The accurate definition of such international crimes in addition to piracy and the establishment of an international court for their enforcement might be useful. Such a step, however, would involve a considerable modification of the present doctrine of independence of states “ (“The Outlawry of War,” this Journal, Vol. 19 (1925), p. 80).
22 Jurisdiction of the Courts of Danzig in the matter of Pecuniary Claim of Danzig Railway Officials, Publications,Ser. B, No. 15, p. 171. Lauterpacht, H. (The Development of International Law by the Permanent Court of International Justice,London, 1934, p. 52 Google Scholar) says of this opinion: “The postulated insurmountable barrier between the individual and international law is ignored.”
23 See especially Suarez, De Legibus ac Deo Legislatore,II, c. xix, sec. 9, and comments by Scott, J. B., The Spanish Origins of International Law,Washington, 1928, p. 90.Google Scholar
24 E. D. Dickinson, “Changing Concepts and the Doctrine of Incorporation,” this Journal, Vol. 26 (1932), p. 254; Picciotto, C. M., The Relation of International Law to the Law of England and the United States of America,London, 1915, p. 76.Google Scholar The idea that National Courts are obliged to apply international law to the benefit of individuals in certain types of cases also exemplifies this theory. See below, n. 96, 97.
25 Scott, as cited; Dickinson, E. D., Equality of States in International Law,Cambridge, 1920, p. 31 Google Scholar; James, Bryce, Studies in History and Jurisprudence,London, 1901, p. 602 Google Scholar; Wright, Q., Mandates under the League of Nations,Chicago, 1930, p. 348.Google Scholar That the world community was considered by the classical international jurists to be a natural society, not only among states but also among individuals, is indicated by Vattel's statement: “Moreover, independence is necessary to a State, if it is to fulfill properly its duties toward itself and its citizens and to govern itself in the manner best suited to it. Hence, I repeat, it is enough that Nations conform to the demands made upon them by that natural and world-wide society established among all men.” (The Law of Nations or the Principles of Natural Law,1758, Carnegie Ed., Preface, p. 10a, See also Intro. Sec. 10, p. 5.)
26 As the Central American Court of Justice, 1907; the proposed International Prize Court, 1907; and the Mixed Arbitral Tribunals set up after World War I. See Borchard, E. M., Diplomatic Protection of Citizens Abroad,New York, 1919, p. 17 Google Scholar
27 Scott, J. B., ‘'The Individual, the State, and the International Community,” Proc. Am. Soc. Int. Law,1930, p. 1 Google Scholar; Politis, N., The New Aspects of International Law,Washington, 1928, p. 23 Google Scholar; Wright, Q., Research in International Law since the War,Washington, 1930, pp. 32-33Google Scholar; A Study of War,Chicago, 1942, pp. 350-51, 909-11; Eagleton, The Responsibility of States in International Law,p. 221.
28 Above note 25.
29 Q.Wright, “The Outlawry of War,” this Journal, Vol. 19 (1925), p. 96; “Enforcement of Treaty Obligations,” Proc. Am. Soc. Int. Law,1926, p. 112 Google Scholar; A Study of War,pp. 912-15, 941; Levy, as cited, p. 1052; Schuman, Frederick L., “The Dilemma of the Peace Seekers,” American Political Science Review.,Vol. 39 (1945), p. 16.CrossRefGoogle Scholar
30 Wright, Study of War,pp. 904, 910, 1007; Manners, as cited p. 429.
31 Angelo Sereni, The Italian Conception of International Law,New York, 1943, p. 58.
32 Q. Wright, Mandates under the League of Nations,p. 274 and Study of War,p. 899.
33 Same, pp. 150-9 and 885.
34 Same, pp. 340-41 and 902.
35 Study of War,pp. 1007-9.
36 Mandates,pp. 340, 345, and War,pp. 943-4.
36a Niemeyer, G., Law Without Force,Princeton, 1941, p. 77 Google Scholar; Wright, Q., “International Law and the Totalitarian States,” American Political Science Review,Vol. 35 (1941), p. 741 Google Scholar; A Study of War,pp. 338 ff., 760 ff. 1088; “International Law and the Balance of Power,” this Journal, Vol. 37 (1943), p. 97.
37 The demand that human freedom be protected by the world community, as well as that individuals be held responsible to the world community for war crimes, has appeared in many United Nations pronouncements. See Atlantic Charter, Arts. 4, 5; Declaration of United Nations, Jan. 1, 1942; Dumbarton Oaks Proposals, Chap, ix, Sec. 1; Report of Commission to Study the Organization of Peace on “International Safeguard of Human Rights,” International Conciliation,No. 403 (Sept. 1944), p. 552.
38 Wright, Q., “Human Rights and the World Order,” International Conciliation,No. 389 (April, 1943), p. 238; above, note 27.Google Scholar
39 Buron v.Denman, 2 Ex. 167, 1848; Harrison Moore, W., Act of State in English Law,New York, 1906, pp. 32, 94, 128Google Scholar; Manner, as cited, p. 416.
40 Dicey, A. V., Introduction to the Study of the Law of the Constitution,London, 1915 (8th ed.), pp. 335, 341-3.Google Scholar
41 Luther v. Borden, 7 How 1, 35,1849; Post, Charles G. Jr., The Supreme Court and Political Questions,Baltimore, 1936, p. 17 Google Scholar; Q. Wright, Control of American Foreign Relations,172-4.
42 Moore, Act of State,p. 1.
43 Harvard Research in International Law, Draft Convention on Diplomatic Privileges and Immunities,Art. 18 and Legal Position and Functions of Consuls,Art. 21: this Journal, Vol. 26 (1932), Supplement, pp. 97, 338.
44 Moore, Act of State,p. 120.
45 See Daniel Webster, See. of State, in McLeod Case, in same, p. 128 and J. B. Moore, Digest,Vol. 2, p. 25.
46 Digest of International Law,Vol. I, p. 67.
47 See People v.McLeod, New York, Hill 377, and Greville's Memoirs,2nd ser., Vol. I, p. 384, cited in Wharton's Digest,Vol. I, Sec. 21; Moore, Act of State,p. 130; below, note 72.
48 Q. Wright, Study of War,p. 891; “Outlawry of War,” this Journal, Vol. 19 (1925), p. 75.
49 Q. Wright, Study of War,p. 877.
50 Same, p. 885; “Changes in the Conception of War,” this Journal, Vol. 18 (1924), pp. 757, 764.
51 Q. Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), p. 403; Study of War,pp. 892-94; below, note 133.
52 BudaPest Articles of Interpretation, International Law Association, 38th Conference, 1934, p. 66; Harvard Research in International Law, Draft Convention on Aggression,this JOT/BNAL, Vol. 33 (1939), Supplement, p. 827.
52a Freeland v.Williams, 131 U. S. 405, 416, 1891; below, note 74. See also Harvard Research, Draft Convention on Aggression,Art. 14, as cited, p. 905
53 Report of Commission of Responsibilities, p. 77; J. B. Scott, in House, E. M. and Charles, Seymour, What Really Happened at Paris,New York, 1921, p. 237; Glueck, p. 121.Google Scholar
54 Report of Commission of Responsibilities, p. 80.
55 Wright, Q., “The Legal Liability of the Kaiser,” Am. Pol. Sci. Rev.,Vol. 13 (1919), p. 120.Google Scholar
56 Mighell vs. Sultan of Johore, 1 Q. B. 149, 1894.
57 Harvard Research in International Law, Draft Convention on Competence of Courts in Regard to Foreign States,this Journal, Vol. 26 (1932), Supplement, pp. 476-79. The American Member of the Commission of Responsibilities (1919) asserted “that in the exercise of sovereign powers which have been conferred upon him by the people, a monarch or head of state acts as their agent; that he is only responsible to them; and that he is responsible to no other people or group of people in the world” (pp. 76-77).
58 Harvard Research, Competence of Courts,Art. 7, p. 527. The American Members of the Commission of Responsibilities (1919) said: “The essence of sovereignty consists in the fact that it is not responsible to any foreign sovereignty” (p. 76). The majority of the commission, however, referring to “the alleged immunity, and in particular the alleged inviolability of a Sovereign of a State,” said: “But this privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a Sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different” (p. 19).
59 Harvard Research, Competence of Courts,Art. 7, as cited, p. 527.
60 This was the basis of the American dissent in 1919; work cited, pp. 61-66, and above, note 57.
61 “These observations the American Representatives believe to be applicable to a head of a state actually in office and engaged in the performance of his duties. They do not apply to a head of a State who has abdicated or has been repudiated by his people. Proceedings against him might be wise or unwise, but in any event they would be against an individual out of office and not against an individual in office and thus in effect against the State” (same, p. 66). The British Court of Appeal treated the property of the ex-Tsar of Bulgaria as private enemy property during World War I. (In re Ferdinand, 1 Ch. 107, 1921.)
62 Above, note 58.
63 Chief Justice Marshall suggested, in the case of the Schooner Exchangethat in certain circumstances “a prince … may be considered as so far laying down the prince, and assuming the character of a private individual” (7 Cranch 116, 1812). See also Harvard Research, Competence of Courts,Arts. 9-13.
64 Same, Art. 26.
65 Above, notes 46 and 47; Q. Wright, Study of War,pp. 911-15; Levy, as cited, p. 1054.
65a The prince tends to be something more than an agent of the state: see Q. Wright, Study of War,pp. 346, 900.
66 Publications,Ser. A, No. 10, 1927.
67 Harvard Research, Draft Convention on Jurisdiction with Respect to Crime,Arts. 7, 8, this Journal, Vol. 29 (1935), Supplement, pp. 543, 561. The liability of prisoners of war for “crimes committed against the captors army or people” before he was captured has been recognized irrespective of the place where committed: Lieber's Code, Art. 59, Moore's Digest,Vol. 7, p. 220; Ernst Fraenkel, Military Occupation and the Rule of Law,New York, 1944, p. 49.
68 Thus confiscations of property by foreign governments, within their own territories, have been held to give good title. Luther v.Sagor, 3 K. B. 532, 1921. See also below, note 75.
69 Harvard Research, Jurisdiction with Respect to Crime,Art. 3, as cited, p. 480.
70 Hague Regulations,Land Warfare, 1907, Art. 43. The present conception of military occupation does not involve a temporary transfer of sovereignty and even if it did the existing civil and criminal law would continue until expressly changed by the succeeding sovereign: Fraenkel, pp. 51-52.
71 Above, note 52. Belgian courts assumed jurisdiction under Belgian law over acts by Germans during the occupation of Belgium in World War I on the theory that, because of Belgian neutralization, Germany was violating international law in being there. Fraenkel, p. 55.
72 Thus excluding breaches of the law of war (note 76 below) and acts outside the state's jurisdiction (notes 47 above and 75 below).
73 As suggested by Webster in the McLeod case, Moore's Digest,Vol. 2, pp. 25, 29.
74 Webster seemed to go that far when he said in the McLeod case: “That an individual, forming part of a public force, and acting under the authority of his Government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute” (Moore's Digest,Vol. 2, p. 25; Oppenheim, International Law, Vol. I, Sec. 445; Manners, p. 422; Lord Atkins, The Times,London, Dec. 30, 1943). Fraenkel (p. 49) says the Anglo-American view is that “courts of formerly occupied territory have no jurisdiction over dismissed members of the occupying army” for alleged crimes during the occupation, citing Coleman vs. Tennessee, 97 U. S. 509, 1878, Dow vs. Johnson, 100 U. S. 158, 1879, and Freeland vs. Williams, 131 U. S. 405, 1891. These cases if considered with Ford v.Surget, 97 U. S. 594, 606,1878, give very weak support to this position. See Moore's Digest,Vol. 7, p. 177. Only in the Coleman case was a criminal act involved. A Union soldier had committed a murder in Tennessee during the occupation of that state by Union forces and had been convicted by court martial. The judgment, however, had not been carried out and he was tried and found guilty by the Tennessee court after the war, his case coming to the Supreme Court of the United States on writ of error. Justice Field speaking for the Court held that under the law of war the occupants’ military tribunals have exclusive jurisdiction over their soldiers. In a strong dissenting opinion, Justice Clifford argued that the offense against United States Military law and the offense against Tennessee criminal law were different and that since the U. S. Army had apparently abandoned the case the state could exercise jurisdiction over the crime against its law. The other three cases were civil actions for damages because of property destroyed by soldiers or civilians under military orders during the Civil War. Justice Field wrote the opinion in Dow v,Johnson, which concerned such destruction by a Union officer, and exempted him from liability, using the same argument as in the Coleman case. Clifford again dissented, joined by Miller. In the other two cases, which dealt with the destruction of property under Confederate military authority, a different line of argument was taken, acceptable to the dissenting justices. The court held that the Confederate armies enjoyed belligerent rights and that persons were not liable for acts under military order if in accord with the law of war. Justice Harlan wrote the opinion in Ford v.Surget and Clifford concurred. Justice Miller wrote the opinion in Freeland v.Williams and Harlan dissented, but on the ground that the state court had jurisdiction to decide whether the act in question was permissible under the law of war and that the Supreme Court ought not to question its judgment on the matter. The doctrine of the cases was thus stated by the court (p. 416): “Ever since the case of Dow v.Johnson, 100 U. S. 158, the doctrine has been settled in the courts, that in our late Civil war each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare, under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority.” Coleman v.Tennessee was not mentioned and it appears that the court had silently abandoned the broad immunity there set forth.
75 In recognizing the immunity of a Venezuelan general the court was careful to confine it to acts done in his own territory. (Underhill vs. Hernandez, 168 U. S. 250, 1897, Moore's Digest,Vol. 2, p. 31.) Chief Justice Marshall, in the case of the Schooner Exchangeconfined the immunity to cases where custom or agreement justified the public vessels or forces being where they were (7 Cranch 116, 139, Moore, Digest,Vol. 2, p. 399). Though Webster said the question of the immunity of McLeod because of his status as a British soldier and the question of the propriety of the British attack on the Carolinein United States territory were “essentially distinct and different” (Moore, Digest,Vol. 2, p. 25) this was denied by Calhoun, by the New York Court, and by Wharton, all of whom agreed that McLeod would not be entitled to immunity unless the British force could justify its presence in New York by a necessity of self defense: notes 46, 47 above, and Moore, Vol. 2, p. 27. See also Horn vs. Mitchell, 223 Fed. 549, 232 Fed. 819; Hackworth, Digest of International Law,Vol. 2, p. 406; Hyde, International Law,Vol. I, p. 435; Fraenkel, pp. 51-2.
76 That immunities of soldiers applied only to acts of “legitimate war” was insisted upon in Underhill vs. Hernandez (above); see also Mitchell v.Harmony, 13 How 115; Q. Wright, Control of American Foreign Relations,pp. 169, 299. According to Francis Wharton “Belligerent rights when pleaded in the civil courts as a defense, can not be set up to protect acts which are outside of legitimate warfare“: Treatise on Criminal Law,Philadelphia, 1880, Sec. 1800 (Vol. 2, p. 543).
77 See Calhoun's comment on the MoLeod Case, Moore's Digest,Vol. 2, p. 27, and notes 75 and 76 above.
78 Above, note 61.
79 Above, notes 63, 64; but see 65a. v
80 See Underhill vs. Hernandez, above.
81 For trials of ex-chiefs of state see Q. Wright, “Legal Liability of the Kaiser,” as cited.
82 Above, note 52.
83 See Lawyer's Guild Report, as cited, p. 20. Many neutral states have actually declared that they will not give asylum to persons guilty of atrocities, Department of State Bulletin,Vol. 12, No. 294 (Feb. 11, 1945), p. 190.
84 Glueck excludes such acts from his definition of war crimes (p. 190, note 2). See Oppenheim, International Law,Vol. 2, Sees. 252, 254-56; U. S. Rules of Land Warfare,1940, Sees. 202, 204-8, 344, 348-54.
85 Oppenheim, Sec. 162; U. S. Rules,Sees. 38, 203.
86 Oppenheim, Sees. 254-56; U. S. Rules,Sees. 123, 203, 212, 348-50.
87 Hague Regulations,Arts. 30, 31; U. S. Rules,Sec. 212.
88 Hyde, International Law,Vol. 2, p. 365. While the U. S. rules say that “it is not necessary for traitors to be caught in the act in order that they may be punished” (Sec. 213) this seems to apply to treason by members of U. S. forces (Sec. 205) and may be applied to enemy nationals guilty of “war treason” only in so far as consistent with the “unwritten laws of war applicable to occupied enemy territory” (Sec. 205 c).
89 U. S. Rules,Sec. 347; Manners, pp. 420-25.
90 Royal Institute of International Affairs, Bulletin of International News,Vol. 22 (1945), p. 95; Glueck, p. 19. The offenses are listed in Commission of Responsibilities, 1919,p. 29-57.
91 Cowles, as cited; Manners, 423. U. S. law clearly permits the punishment of prisoners for war crimes committed anywhere: above, note 67.
92 Opinion of Am. Members, Commission of Responsibilities, 1919,p. 70; Ex parte Quirin, 317 TJ. S. 1, 1942; Cowles, as cited.
93 Discussion of the jurisdiction of military commissions have seldom considered this question but one American member of the Commission of Responsibilities, 1919, wrote: “It seemed elementary to the American Representatives that a country could not take part in the trial and punishment of a violation of the laws and customs of war committed by Germany and her Allies before the particular country in question had become a party to the war against Germany and her Allies; that consequently the United States could not institute a military tribunal within its own jurisdiction to pass upon violations of the laws and customs of war, unless such violations were committed upon American persons or American property, and that the United States could not properly take part in the trial and punishment of persons accused of violations of the laws and customs of war committed by the military or civil authorities of Bulgaria or Turkey” (with whom the U. S. was not at war) (pp. 75-6). Cowles writes: “Military tribunals have jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond by treaty agreement.” Military commissions are normally agencies of military government in enemy territory. (U. S. Rules,Sees. 6, 7; U. S. Manual of Military Government and Civil Affairs,Dec. 22, 1943, Sees. 39, 42.) See also Elbridge Colby, “Courts Martial and the Law of War,” this Journal, Vol. 17,1923, p. 109; Wright, Q., Control of American Foreign Relations,New York, 1922, p. 168.Google Scholar The international law basis of the jurisdiction of military commissions seems to be territorial, national, and protective jurisdiction rather than “universal jurisdiction” (Harvard Research, Jurisdiction over Crime)but in applying protective jurisdiction they are, like prize courts, bound to apply international law (see below, notes 96, 97).
94 Art. 229 of the Treaty of Versailles provided: “Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned.” Such mixed military commissions were approved by the American members of the Commission of Responsibilities (Report,p. 71).
94a Manners, p. 407-10.
95 Though in fact the international law of war is drawn on to supplement national regulations even in such cases. Colby, as cited.
96 Ex parte Quirin, 317 U. S. 1, 1942; Cowles, as cited; E. D. Dickinson, in Proc. Am. Soc. Int. Law,1943, p. 47.
97 The Maria,1 C. Rob. 340,1799; The Zamora,2 A. C. 77,1916; The Paguete Habana,175 U. S. 677, 1900.
98 By Art. 228 of the Treaty of Versailles Germany recognized “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war … notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.”
99 Underhill vs. Hernandez, 168 IT. S. 250, 1897, Moore's Digest,Vol. 2, p. 31; Ex parte Quirin, 317 U. S. 1, 1942; above, note 76.
100 Oppenheim, Vol. 2, Sec. 253; The Llandovery Castle, German Court at Leipsic, Annual Digest,1922-24, p. 235; Glueck, p. 140; Schwarzenberger, p. 72; Lawyers Guild, Report,p. 21; George Finch, “Superior Orders and War Crimes,” this Journal, Vol. 15, 1921, p. 440 quotes on the point, Chief Justice Marshall in The Flying Fish,2 Cranch 170, J. F. Stephens, History of Criminal Law of England,pp. 205-206, and the case of Henry Wirz, executed after the U. S. Civil War for brutal treatment of Union prisoners at Andersonville in spite of a plea of superior orders. See also Little vs. Barreme, 2 Cranch 170, 1804. American and British rules of land warfare give greater weight to superior orders (U. S. Rules,Sec. 347).
101 U. S. Rules,Sec. 347.
102 Swarzenberger, p. 74-75; Q. Wright, Legal Liability of the Kaiser, as cited.
103 See Sec. 4, above.
104 The execution of hostages seems to be prohibited by Hague Regulations Art. 50 and Geneva Convention on Prisoners of War, 1930, Art. 2; U. S. Rules,Sees. 73, 343, 358 (d), final sentence, and 359, though it is permitted as a measure of reprisal by U. S. Rules,Sec. 358 (d), first two sentences.
105 Re Bzeta, 62 Fed. Rep. 972, 1894, Harvard Research, Draft Convention on Extradition,Arts. 5, 6, in this Journal, Vol. 29 (1935), Supplement, p. 117.
106 “Military offenses” are not usually included in treaties either as extraditable or as non-extraditable; same, p. 119.
107 Many states have manifested a willingness to refuse asylum to war criminals; above, note 83.
108 See Hyde, Wright, Proc. Am. Soc. Int. Law,1943, pp. 43-i, 55-6.
109 Above, Sec. 3.
110 Above, note 19.
111 See Q. Wright, Control of American Foreign Relations,pp. 179-191.
112 See Harvard Research, Draft Convention on Piracy,this Journal, Vol. 26 (1932), Supplement, pp. 754-60.
113 Same, pp. 751-54. This assumes that the exercise of national jurisdiction may be limited by international law, i.e. that a state may have jurisdiction, in certain circumstances, to apply and enforce the law but not to make it. It must apply and enforce international law (see above, notes 96, 97). The opposite opinion assumes that the jurisdiction of a sovereign state, if possessed at all, must be complete, i.e. it must include legislative, as well as judicial and executive power; there is no inherent necessity for such an assumption.
114 As, for example, slave-trading, illegal destruction of whales or other maritime resources, cable cutting, illegal trade in narcotic drugs or arms, and acts of international aggression.
115 Respublica vs. Delongchamps, 1 Dall. III , 117, 1784, Moore's Digest,Vol. 4, p. 623; Q. Wright, The Outlawry of War,pp. 80-83. Laws penalizing propaganda hostile to foreign states have been based on both grounds: Vernon Vandyke, “The Responsibility of States for International Propaganda,” this Journal, Vol. 34 (1940), p. 70.
116 Above, notes 46, 47, 68, 75, 76.
117 Grover Clark, “The English Practice with regard to Reprisals by Private Persons,” this Journal, Vol. 27 (1933), p. 694.
118 See Unratified convention on Submarines, Washington Conference, 1922 (this Journal, Vol. 16 (1922), Supplement, p. 57) and Nyon agreement during Spanish Civil War (same, Vol. 31 (1937), p. 179). Art. 22 of the London Naval Agreement (Trenwith, Treaties of the U. S.,Vol. 4, p. 5281) forbade submarine sinking of merchant vessels without putting passengers, crew, and papers in a place of safety but did not characterize violations as “piracy” as did the other two agreements referred to. See Proc. Am. Soc. Int. Law,1938, p. 160. Raoul Genet (“The Charge of Piracy in the Spanish Civil War,” this Journal, Vol. 32 (1938), p. 253) and Manners (pp. 412-14) disapprove this use of the word “piracy.”
119 Above, note 75.
120 Above, notes 76, 99.
121 Above, Sec. 3, and note 52a.
122 Above, note 77.
123 Above, Sec. 4.
124 Above, note 83.
125 Above, Sec. 3.
126 Above, notes 25 and 26.
127 Above, notes 113 and 114.
128 Acts of that character can be ascertained by reference to extradition treaties. A general definition is suggested in the Harvard Research, Draft Convention on Extradition,Art. 2, this Journal, Vol. 29, 1935, Supplement, p. 72. See also list of extraditable offenses in U. S. and other treaties: same, pp. 244-74. A number of general conventions and proposals have included such lists: p. 279.
129 Levy, p. 1069. This theory has been confused with the idea of holding individuals criminally liable for breach of the Pact of Paris. (Lawyers’ guild, Report,p. 18; Glueck, pp. 38, 190, note 4.) The Pact created obligations for states, not for individuals. Its significance for the war crimes problem is not that it created a crime of initiating hostilities, but that by “outlawing war” it made a “state of war” no longer a defense for acts which, apart from such a state have always been universal crimes. Just as a permitted killing in a duel became murder as soon as duelling was “outlawed” by legislation, so permitted killing and destruction of property in a war become piracy and murder as soon as war is outlawed. But the outlawry of war does not abolish the right of self defense, and thus, with war outlawed, killings and depredations by the forces of the aggressor become crimes and those of the defender acts of legitimate self defense. ( Stoner, John E., S. 0. Levinson and the Pact of Paris,Chicago, 1943, pp. 191, 196.Google Scholar) See, however, the exception referred to in note 52a.
130 Dept. of State Bulletin,Vol. 12, No. 297 (Feb. 4, 1945), p. 155.
131 Harvard Research, Piracy,Art. 3, this Journal, Vol. 26 (1932), Supplement, p. 769.
131a The Three Friends,166 U. S. 1, 1897; Q. Wright, Study of War,pp. 695-696; above, note 52a.
132 Harvard Research, Aggression,Art. 1 (c), this Journal, Vol. 33 (1939), Supplement, pp. 847, 871.
133 Above, note 51. See also Q. Wright and others, Legal Problems in the Far Eastern Conflict,New York, 1941, pp. 117, 129, 145, 182.