On March 16, 1935, the Chancellor of the German Reich promulgated a law for the introduction of a system of general compulsory military conscription with a view to increasing the strength of the German army to twelve corps consisting of thirty-six divisions, aggregating, it was estimated, a total of 600,000 men. On the same day he convened the diplomatic representatives of the European Powers at Berlin and delivered to them the text of the law.

Mugesera v. Minister of Citizenship and Immigration.

Immigration and Refugee Board (Appeal Division) of Canada, November 6, 1998.

In its landmark ruling of September 2, 1998, in the Akayesu case, the International Criminal Tribunal for Rwanda (ICTR) reviews the background of genocide in that country, noting in particular the role that hate propaganda played in preparing the tens of thousands of “willing executioners” who participated in the crimes of April to July, 1994. According to the Rwanda Tribunal, the “most notorious” propaganda agent was “a certain Leon Mugesera,” an extremist pamphleteer who gave a public speech in November 1992 calling for the extermination of the Tutsi. Mugesera fled Rwanda in the weeks following die incident. With the help of a network of aid workers, academics and diplomats that he had nurtured over many years, he was able to flee to Canada and obtain permanent resident status there.

In his instructions to the American delegation to the Second Hague Conference, Secretary of State Root pointed out as the weakness of the present system of arbitration the prevalence of diplomatic ideals instead of purely judicial ideals in practice and procedure, and stated it as his opinion that the creation of a truly permanent international court composed of professional judges, who should act under a sense of judicial as distinguished from diplomatic responsibility, would increase the confidence of nations in arbitration and render the recourse to this method of settling international disputes much more frequent. Secretary Root’s statement is so important in itself, the reasoning is so clear and unanswerable, the proposal to establish a permanent international court of justice so cleancut and precise, and the details which he specifies so simple and apparently self-evident, that I shall quote and comment briefly upon this passage in the instructions. “There can be no doubt,” he says, “that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them, under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process.”

Under what circumstances is a state entitled to claim immunity from suit in the courts of another state? It is an old problem which assumes new importance in the face of the steadily enlarging scope of governmental commercial enterprise. Considerable difference of opinion has manifested itself. In England and the United States, where the principle of the immunity of the sovereign before the courts of its own state has long been firmly entrenched, there has been a decided reluctance to open the door to suits against foreign states, however commercial in character the controversy may be. On the Continent a more liberal tendency has long been making itself felt. On general principles, the subject would seem to be one to invite regulation by international agreement.

Viewed from the functional attitude, few aspects of international government offer more difficult problems than the constitutional process for negotiating, ratifying, executing and revising interstate agreements. Defects in the organizations for international cooperation are matched by imperfections in the internal machinery for asserting the will of states in collective undertakings. Certainly the constitutional development of the control of foreign policy has not kept pace with recent progress in international government as typified by the League of Nations and the International Labor Organization. The World War brought a more liberal control of foreign affairs in Germany and Austria. But in most countries, constitutional development in the supervision of the foreign office moves more slowly than in other fields of public law; and in all countries proposed changes in the mechanism of the regulation of international relations meets the powerful resistance of conservatism and national prejudice.

By all rights, Prosper Weil's 1983 cri de coeur should be one of many best-forgotten law review articles. It targets, after all, concepts that few dispute today (namely jus cogens and erga omnes obligations, as well as shortcuts to finding universally applicable customary law based on “quasi-universal” treaties). Its other direct target—the distinction between international crimes and delicts—refers to once contentious debates over whether states can be charged with ordinary international delicts as well as international crimes. This has since been eclipsed by the International Law Commission's (ILC's) decision to include, in its Articles of State Responsibility, Article 41 (enumerating the consequences of “serious breaches” resulting from the violation of preemptory norms). And insofar as Weil's foil was the premise that international “delicts” can have a “variable geometry,” that too has been overtaken by events: neither the ILC's turn to “serious breaches” nor the far older proposition that individuals can be prosecuted for international crimes remains the subject of much controversy today.