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Document:-A/CN.4/15 and Corr.1

Report on the Question of International Criminal Jurisdiction by Ricardo J. Alfaro,

Special Rapporteur

Topic:Question of international criminal jurisdiction

Extract from the Yearbook of the International Law Commission:-1950 ,vol. II

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(http://www.un.org/law/ilc/index.htm)

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I N T E R N A T I O N A L L A W COMMISSIONDOCUMENTS OF THE S ECOND S ES S ION, I N C L U D I N G THE R EPOR T

OF THE C OMMISSION TO THE G E N E R A L ASSEMBLY

QUESTION OF INTERNATIONALCRIMINAL JURISDICTIONDOCUMENT A/CN.4/15

Report by Ricardo J. Alfaro Special Rapporteur[Origina/ Text: English}[3 March 1950}

CONTENTS PageI. I N T R O D U C T I O N ....................................................................... 2

II . E V O L U T I O N or THE I D E A OF AN I N T E R N A T IO N A L C R I M I N A L J U R I S D I C T I O N .................... 2 1) Hum an reaction to the hor ro r s of the First World War .......................... 2 2) Action by the Peace Conference The Commission on the Responsibility of theAutho rs o f the War and o n Enfo rcement of Penalties, 1919 ........................ 2O ) The Advisory Committee of Jurists 1920 ........................................ 3 4) The International Law Association, 1922-1926 .................................. 45) The Inter-Parliamentary Union, 1925 ............................................ 4 6) The International Association of PenalLaw 1926-1928 .......................... 4 71 T he Geneva Conventions for the Prevention and Punishment o f Terrorism and forthe Creation of an International Criminal Court, 1937.......................... S 8) The London International Assembly, 1941...................................... S P) The Internatio nal C ommission for Penal Reco nstruction and Dev elopment 1942 .... S

1 0 ) The St. James Declaration, 1942 .............................................. S 1 1 ) The M oscow Declaration,1943 .................................................. 6 1 2 ) The United Nations War Crimes Commission,1943.............................. 6 1 3 ) The Nrnberg and Tokyo International M ilitary T ribunals, 194S, 1946............ 7 1 4 ) T he United Nations Committee on the Progressive Development o fInternational L awan d its Codification, 1947...................................................... 7 15 ) T he International Criminal Jurisdiction as discussed in connexion with the GenocideConvention, 1946-1948 .......................................................... 8 1 6 ) The Commission on C o m m o n InternationalLaw 1948.......................... 9 17 ) Correlation of the questions of International Criminal Jurisdiction, formulation of theNrnberg Principles and elaboration of an International Code of Offences .......... 9

III. THE C O N T E M P O R A R Y O P I N IO N ON THE Q U E S T I O N OF U N I V E R S A L REPRESSION OF I N T E R N A T I O N A LCRIMES AND THE C R I M I N A L I T Y OF WAR 9Basic concepts 1) The concept of war as a crime ................................................ 9 2) Internatio nal crimes other than war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3) Necessity to define by international convention all crimes against mankind........ 14 4) The necessity to have an internatio nal jurisdiction vested w ith power to try andpunish persons responsible of international crimes .............................. IS

IV . C O N C L U S I O N S . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . 16T he three questions 1) Desirability of the International Judicial Organ ................................ 162) Possibility of the International Judicial Organ .................................. 16 ?) Possibility of Establishing a Criminal Chamber of the W orld Co urt .............. 17

V. F I N A L W O R D S ........................................................................ 17

Incorporating documentA/CN.4/lS/Corr. 1.

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Y earbook of the International Law Commission Vol. III. INTRODUCTION

1. The General Assembly of the United Nations, byresolution 260 B (III), adopted 9 December 1948,requested the International LawCommission to studythe desirability and possibility of establishing an inter-national judicial organ for the trial of persons chargedwith genocide or other crimes over which jurisdictionwill be conferred upon that organ by internationalconventions , and in carrying out this task, to payattention to the possibility of establishing a CriminalChamber of the International Court ofJustice .

2. TheInternational LawCommission, in turn, at itsmeetingof 3June1949, charged J udgeA.E.F.Sandstrom,of Sweden, and myself topresent reports on the questionstated in the resolution, forconsideration at the secondsession of the Commission, to be opened at Geneva,5June 1950.3. According to the terms of reference, the topic ofmy report comprises the followingpoints:1) TheCommission muststudywhether it is desirableand possible to establish an international judicial organ

for the trial of certain crimes;2) The General A ssembly contemplates the trial ofpersons chargeda with genocide; andb) with other crimes over which jurisdiction will beconferred upon the judicial organ by internationalconventions;3) The Commission must also study the possibil ity ofestablishing a Criminal Chamber of the InternationalCourt ofJustice.4. It seems right to assume that with regard to thecrimes referred to in 2 b), the General Assemblyhad inmind those which are the subject matter of the charter

of the Nurnberg Tribunal and its judgment, as well asthose liableto bedefined in acodeofoffences againstthepeace andsecurity of mankind. The formulation of suchprinciples and the drafting of such a code were entrustedto the International Law Commission, by resolution 177I I ) of 21 November 1947. The inference is that theGeneral Assembly had in mind, besides genocide, thecrimes dealt with by the Nurnberg Tribunal and itsjudgment, to wit: crimes against peace; war crimes;crimes against humanity.5. Therefore, the three points of the resolution consti-tute in fact the broad question of the creation of aninternational criminal jurisdiction for thetrial of crimesaffecting the supreme interests of mankind. Such a

question is answered by me in the terms set forth inthe following pages.I I . EVOLUT ION OF THE IDEA OF AN INTE RNAT IONAL CRIM INAL J URISDICT ION1) H U M A N R E A C T I O N T O T H E H O R R O R S O F T H E FIRST

W O R L D W A R6. A fter the termination of theFirstWorld War, theconviction crystallized in the minds of thinking peoplethat the horrors of war must be spared to men,thatwaris a crime against humankind and that such a crimemust be prevented and punished. Great was the clamour

against the atrocities perpetrated in violation of the lawsand customs of war, as embodied in the unwritten lawof humanity and civilization as well as in the positiveprovisions of The Hague and Geneva conventions andother international agreements. But, after all, theatro-cities resulting from the actual conduct of hostilities andthe occupation of invaded countries werean effect of thebasic crimeofplanningand waging a war inviolation ofinternational law. Thiscrime constitutes the root of theproblem. It is this crimethat the communityof Statesmuststamp out of international life.2) A C T I O N BY THE P E A C E C O N F E R E N C E . THE COM-M I SS I O N O N T H E R E S P O N S I B IL I T Y O F T H E A U T H O R S

O F T H E W A R A N D O N E N F O R C E M E N T O F P E N A L T I E S19197. The reaction against the crime of bringing aboutthe war of 1914-18 and its attendant horrors took aconcrete expression in the efforts made during the PeaceConference of 1919 to set up an international tribunalfor the trial of crimes committed by the Central Powersand by their civil and military authorities. A body was

created for thepurposeofconsideringthequestion, underthe name of Commission on the Responsibility of theAuthors of the War and onE nforcementofPenalties andthis Commission divided such crimes into two classes,namely:a) Acts which provoked the World WTar and accom-panied its inception.b) Violationsof the lawsand customs of war and thelaws of humanity.8. Long and interesting debates took place in whichno agreement was reached among the victorious powerson the subject of establishing the proposed tribunal forthe exercise of an international jurisdictionof a generalcharacter. Therewas agreement, however, on the pointthat the German K aiser should be arraigned as respon-sible for the war and its horrors, and such agreementwasembodied inarticle 227of theTreatyofVersail les, whichreads as follows: The Allied and Associated Powers, publiclyarraign Wil liam II of Hohenzollern, formerly GermanE mperor, for a supreme offence against internationalmorality and the sanctity of treaties.A special tribunal will be constituted to try theaccused, thereby assuring him the guarantees essentialto the right of defence. It will be composed of fivejudges,oneappointedby eachof the followingPowers:namely, the United States of America, Great B ritain,

F rance,Italy and Japan. In its decision the tribunal will be guided by thehighest motivesof international policy, with a viewtovindicating the solemn obligations of internationalundertakings and the validity of international morality.It will be its duty to fix the punishment which itconsiders should be imposed.The Alliedand Associated Powers wil l address arequest to the Governmentof the Netherlands for thesurrender to them of the ex-E mperor in orderthat hemaybe put ontrial.

9. This provision of the Versail lesTreaty became adead letter, for William of Hohenzollern took refuge in

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uestionof internationalcriminaljurisdictionDutch territory and the Government of the Netherlandsrefused to deliver the ex-Emperor to the Allied andA ssociated Powers.10. Two other articles of the Versailles Treaty dealtwith the question of war crimes.A rticle 228stated:The German Government recognises the right ofthe A ll ied and A ssociated Powers to bring beforemilitary tribunals persons accused of having committedacts in violation of the laws and customs of war.Such persons shall, if found guilty, be sentenced topunishments laid downby law . . . .A rticle 229provided:Persons guilty ofcriminal acts against thenationalsof one of the Allied and A ssociated Powers will bebrought before the military tribunals of that Power.Persons guiltyofcriminalacts against thenationalsof more than one of the Alliedand A ssociated Powerswill be brought before military tribunals composed ofmembers of the military tribunals of the Powersconcerned . . . .

11. These provisions were not applied wi th mucheffect. Professor Pella in his book entitled The Inter-national Association of Penal Law and the Safeguarding Peace, quoting a study by Jacques Descheemaker,gives the following statistics of the trials of criminals ofthe First WorldWar: Number of Germans accused inthe first A lliedlist: 896; number of German defendantsin the list recognised by Germany: 45; number of personstried by the Supreme Tribunal of Leipzig: 12; numberof defendants condemned: 6 .1

12. However meagre these results mayhave been,thefact remainsthat the Treaty of Versailles recognised inprinciple that crimes against the peace and war crimesshould be punished, and that international tribunalsshould be set up for the punishment of such crimes.Furthermore, despite the serious differences of opinionamong the members of the Commission on the Responsi-bility of the A uthors of the War and on EnforcementofPenalties, the following conclusion was reached by theCommission:

It is desirable that for the future penal sanctionsshould be provided for such grave outrages against theelementary principles of international law. 213. Public opinion in favour of the establishment ofan international criminal jurisdiction continued to mani-fest itself through the thought and action of officialbodies, scientific institutions and leading jurists.3'V.V .Pella, op.cit.,Paris, 1947,p. 2.2Report of the Commission, extract in Historical Survey of theQuestion of International Criminal J urisdiction, United NationsPublications. Saes No.: 1949. V.8, pp. 47-49.3It seems pertinent in this connexion to transcribe in Englishthe following note from the above quoted book by Professor Pella(pp. 3-4):Among the plans designed to outlaw war,reference is made tothe plan elaborated in 1921 by M r. S. O. L evinson, of Chicago.In 1922 Professor Bellot presented to the Conference of theInternational Law A ssociation held in Buenos A ires a Reportrelative to the creation of an international criminal jurisdiction.In the same year L ord Phi ll imore deals with the same subjectin The B ritish Y ear-Book of International Law (vol.Ill, 1922-1923 pp. 79-86).

(3) THE A D V I SO R Y C O M M I T T E E or JURISTS, 192014. A n A dvisory Committee ofJurists was appointedby the Council of the League of Nations in February 1920,to draw up plans for the establishment of an InternationalCourtofJ ustice. M embersofthat Committee were sucheminent men as A datci, of Japan; A ltamira, of Spain;Fernandes,of Brazil; Descamps, ofBelgium; Hagerup, ofNorway; L apradelle, of France; L oder, of the Nether-lands; Lord Phillimore, of Great Britain; Ricci-Busatti,of Italy; El ihu Root, of the United States.15. Baron Descamps formulated a draft for theestablishment of a High Court of International J usticeempowered to try those responsible for offenses againstinternationalpublic order and the universal law of nations.The Advisory Committee discussed the problem of aninternational criminal jurisdiction. Several observationswere made regarding the difficulties of the problem.Nevertheless, a resolution wasadopted, inter alia,by theCommittee, recommending to the consideration of theCouncil of the Leagueof Nations the proposal containedin the following articles:

1. A High Court of International J ustice isherebyestablished.2. This Court shall be composed of one member foreachState,to be chosen by the group of delegates of eachState at the Court of A rbitration.3. The High CourtofJusticeshall becompetenttotry crimes constituting a breach of international publicorder or against the universal law of nations, referred toit by the Assembly or by the Council of the League ofNations.4. The Court shall have the power to define thenature of the crime, to fix the penalty and to decide theappropriate meansofcarryingout the sentence. It shallformulate its own rules of procedure. '*

16. A fter the resolution of the A dvisory Committeewas considered by the Council of the League and by theThird Committee of the A ssembly, this Committee finallydeclared to the A ssembly:The Committee is of the opinion that it wouldbeuseless to establish side by side with the Court ofIn September 1924, Professor Bellot presents a Draft Statuteto the StockholmConference of the International Law A ssociation.In October 1924, Professor Donnedieu de Vabres published alearned paper on The Permanent Court of International Justiceand its vocation for criminal matters.In A ugust 1925,on the occasion of a course of lectures given atthe A cademy of I nternational Law of The Hague, Professor

Saldaa formulated a Draft International Penal Code.In November 192S, Counsellor Caloyanni published an interestingstudy on The Permanent Court ofInternational Criminal Justice.It must be recalled in conclusion that the Romanian Inter-Parliamentary Group,on theoccasionof thepublicationofProfessorPella's work on The Collective Criminality of States and the PenalLaw of the Future (J anuary 1926) made an extended investigationamong statesmen and specialists in international law and penal law,and the investigation resulted in the unanimous concurrence ofthose consulted, as all of them opined in favour of the creation ofan international penal jurisdiction. The principal opinions werethose of Barthou, Bellot, Barthlmy, Caloyanni, Carton deWiart,Donnedieu de V abres, E. Ferri, Garofalo, P. Garraud, Guerrero,Hugueney,L a Fontaine, Lapradelle, G. Le Bon, Loder,R .Poincar,Politis,Rappaport,Roux,Saldaa, Schcking,Spears and A .Weiss.Ibid., p. 10.

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Y earbook of the International Law Commission Vol IIInternational Justice another Criminal Court, andthatit is best to entrust criminal cases to the ordinarytribunals as is at present the custom in internationalprocedure. // crimesof this kind should injuture bebrought within the scope of international penal law,a criminal department might be set up in the Court ofInternational J ustice. In any case, consideration ofthis problem is, at the moment, premature. 517. Thisaction reflected the views of thosewhohadopposed the establishment of an international jurisdictionfor the trial of the First World. War criminals, forcertain legal reasons, to wit: that there was no definednotion of international crimes; that there was no inter-national penal law; that the principle nulla poena sinelege would be disregarded; that the different proposalswere not clear; and that inasmuch as only States weresubjects of international law, individuals could only bepunished in accordance with their national law. But nostatement was ever made to the effect that it was notdesirable orpossible toprevent and punish crimes againstthe international public order. The inference of every-thing that was said in those early debates, isthat if the

difficulties could be overcome, an international criminaljurisdicton was necessary and desirable to prevent thecalamities of war and to consolidate peace amongnations.(4) THE I N T E R N A T I O N A L LA W A S S O C I A T I O N , 1922-1926

18. The first unofficial body to take up the questionwas the International L awA ssociation, at its Conferenceof 1922, in Buenos A ires. Dr. Hugh H. L . Bellot readan extensive report in which he advocated the esta-blishment of a permanent international criminal court,whereupon a resolution waspassed in these terms: In the opinion of this Conference the creation ofan International Criminal C ourt is essential in theinterests of justice, and the Conference is of theopinion that the matter is one o urgency. 619. A draft statute of the proposed criminal courtwas presented by Dr. Bellot to the A ssociation at themeeting held in Stockholm in 1924. H is idea was thatan international penal court should be established as adivision of the Permanent Court ofInternational Justiceand that the jurisdiction of the proposed criminal courtshould cover the following offences:

(a) V iolations of international obligations of a penalcharacter committed by the subjects or citizens of oneState or by a stateless person against another State orits subjects or citizens; >) Violations of any treaty, convention or declaration

binding on the States adhering to the Court, andregulating the methods and conduct of warfare;(c) Violationsof thelawsand customsof wargenerallyaccepted as binding by civilized nations.20. The Bellot draft was referred to a special Com-mittee, which in reporting back to theA ssociation at theV ienna Conference of 1926, declared: thatafteracareful studyof thequestion,it hadcome to the conclusion that the creation of a permanent

international criminal court was not only highlyexpedient, but also practicable.7(5) THE I N T E R -P A R L I A M E N T A R Y U N I O N , 192521. The Inter-Parliamentary Union, gathered inconference in Washington in 192S, after hearing a reportof the eminent penologist Professor V . V . Pella on thesubject of an international criminal jurisdiction, resolved: To institute apermanent sub-committee withintheCommittee for the Study of Juridical Questions;(a) To undertake the study of all the social, poli tical,economic and moral causes of wars of aggression tofind practical solutions for thepreventionof that crime;(b) To draw up a preliminary draft of an Inter-national L egal Code.

22. The Pella report wasaccompanied by an annexlaying down fundamental propositions of penal law, suchas the responsibility of individuals, as well as of States;the application of the principle milla poena sine lege tointernational penal law, and other important detailsdesigned to meet objections of previousdebates.8(6) THE I N T E R N A T I O N A L A S S O C I A T I O N OF P E N A L L A W ,1926-1928

23. A nother authoritative expression of the world'slegal thought in the matter of an international criminaljurisdiction isfoundin the voluminous work accomplishedby the International A ssociation ofPenal L aw, aspecial-ized scientific organization presided by the above-mentioned Professor Pella, of the University of Bucharest,author of a large number of substantial works on inter-national penal law.9

Ibid., p. 12.'Ibid., p. 12.

7Ibid., pp.12-13. The full text of the resolution and the annex may be consultedinIbid.,p. 70, which took itfrom Union interparlementaire, Compterendu de laXXIIP Confrence, Washington, 1925, pp. 46-50.9A list of the works of Professor Pella, up to 1947, may befound in his book L'Association Internationale de Droit Pnal et laProtection de la Paix, Sirey, Paris, pp. 2-3.A bibliography on International C riminal Law and J urisdiction,compiled by the L egal Department of the UnitedNations,liststhefollowing authors of monographs and studies on the differentaspects ofthat subject: A lderman, A nderson, A pril,A rguas, A ron-neau,Balazs, Barciskowski, Basu, Bauer, Bellot, Bernays, Bernstein,Berger, Bial, Biddle, Birkett, Blakeney, Boissarie, Boissier, Brandt,Brown, Brierly, Bustathiades, Caloyanni, Calvocoressi, Carter, L ordCave, Claughton, Cohn, Colby, Coll, Commyns-Carr, Cooper,Coste-F loret, C owles, Creel, Daniel, Dautricourt, Dodd, Doman,Donnedieu de V abres, Descheemaeker, Dimock, Dumas, Eagleton,Eccard, van Eck, Efremoff, Egbert, Ehard, Engelson, Ferencz,F inch,File, Forbes, F ranklin, F reeman, Garner, Garofalo, Gaspard,Gault, Genton, Givanovitch, Glaser, Glueck, Goldstein, Goodhart,Graven, Gregory, Gross, H erzog, von Hoffmansthal, H onig, Hoover,

H ugueney, H ula, H udson, H yde, Ireland, J ackson (R.H.), Jaspers,Jessup, K allab, Kellock, Kelsen, Kuhn, Kuntz, Lacconia, L achs,de Lapradelle, L arnaude, L auterpacht, L ord Lawrence, L azard,L emkin, L eventhal, L evy, Leyrat, L ippman, M alezieux, von M an-goldt, Manner, M axwell-F yfe, M aynard, M elteer, Merignhac,M ignone, Montero, Morgan, Mosier, M outon, M uszkat, M yerson,Neave, Nispen tot Sevenaer, Ni zer, L ord O aksey, O ttolenghi,Paoli,Paston, Pela, Peritch, Philli ps, L ord Phillimore, Politis, Poljokan,von Puttkammer,Quentin-Baxter, Quintero-RipoIIes, Radin, Rappa-port, Reeves, Reguefeiros, Reliquet, Renault, Reuter, Rey, Rodr-guez von Sobotker, Roux, Rowson, Ruiz Moreno, Sack, Sagone,Saldaa, Sawicki, Scelle, Schwartzenberger, Schick, Schneeberger,Schwelb,vanShaick, Smith, Sokalski, Sottile, Stillschweig,Stimson,Storey, Stransky, Stuyt,Taylor, Teitgen, Trainin, Travers, Vadasz,Veicopoulos, Verdross, Wall, Walkinshaw, von Weber, Wechsler,Weis, White, Wilding-White, Winfield, Wright (Q.), Wright(R.A .W.), Zeck.

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uestionof international criminal jurisdiction24. A t the Congress of the A ssociation in Brussels,in1926, papers were submitted by no less than thirteenjurists, among them D onnedieu de Vabres and Pella,whose conclusions were adoptedby the Congress,asthe basis for its discussions.10 A resolution was passedcomprising twelve points,., the most substantial of whichwere:a)That the Permanent Court of International J ustice

should have criminal jurisdiction; (art.1)b) That the Court should have competence to tryStates for an unjust aggression and for all violations ofinternationallaw; (art.3)c) That the Court should also be competent to tryindividuals for international criminal responsibilities;arts. 4, 5, 6) d) That offences and penalties should be defined andpre-establishedbyprecise texts,(art.6)25. The Congress further charged Professor Pellawiththe preparation of a draft statute of an InternationalCriminal Court, atask whichhe satisfactorily performed.His draft was adopted by the A ssociation in 1928and

communicated to the League of Nations and to Govern-ments represented in the Congress. This draft wasrevised by its author in1946and it might be used bythe International L aw Commission as a basis for discus-sion of the concrete problem of the organization of thecourt.12 7 ) T H E G E N E V A C O N V E N T IO N S F O R T H E P R E V E N T I O NA N D P U N I S H M E N T O F T E R RO R IS M A N D F O R TH EC R E A T I O N O F A N IN T E RN A T I O N A L C R I M I N A L C O U R T ,1937

26. AConvention for the Creation of an InternationalCriminal C ourt was opened for signature at Geneva on16 November 1937,and signed by thirteen States. Itprovided for the trial ofpersons accusedof crimesdefinedin another convention, namely, the Convention for thePrevention and Punishment of Terrorism; and whi le thesetwo conventions did not deal with crimes incidental towar, theyaresignificant for the fact thatthey embodiedthe principle of the universality of repression of offenceshaving an international scope and liable to disturb inter-national peace. This was the first time in which Statesagreed on the establishment of an international criminalcourt, having a permanent character and in which thefeasibility and expediency of such jurisdiction wasofficially recognized.8) THE L O N D O N IN T E R N A T I O N A L A S SE M B L Y , 1941

27. The London International A ssembly was an unoffi-cial body set up in the British capital in the year 1941,Paperswere submittedby H.Bellot,J. E.Colland J. P.Ramos,P. Cardenas, F. Segura, E . Regueiferos, A .Saldaa, H. Donnedieude Vabres, N. Politis, R. Garofalo, V. V.Pella, J . K allab andJ . Peritch. Ibid., p. IS, note.)V. V . Pella, The International Association of Penal Law andthe Safeguarding of Peace,Paris, 1947, pp.5-6.Its full text in French is found in V. V.Pella, La Guerre-Crime et les Criminelsde Guerre,Paris, 1946,pp. 129 etseq., andan E nglish translation is inserted in Historical Survey of theQuestion of International Cr iminal J urisdiction, pp. 75-88.

but its members were designated by the A llied Govern-ments, and it adopted in June 1943a series ofconclusions , the substance of which is as follows:That an International Criminal Court shall be insti-tuted, and that it shall have jurisdiction over thefollowing categories of war crimes; a ) Crimes in respect of which no national court ofany of the United Nations has jurisdiction;b) Crimesin respect ofwhicha national courtof anyo f the United Nations has jurisdiction, but which theState concerned elects not to try in its owncourts;c) Crimes which have been committed or whichhavetaken effect in several countries or against nationals ofdifferent countries; and d) Crimes committed by Heads ofState.28. In harmony with these principles, the Inter-national Assembly prepared a draft Convention for theCreation of an International CriminalCourt.139) THE I N T E RN A T I O N A L C O M M I SS IO N FOR P E N A LR E C O N S T R U C T I O N A N D D E V E L O P M E N T , 1942

29. A nother body of a semi-official character was setup in L ondon under the name of International Commis-sion for Penal Reconstruction and Development. W ithregard to the trials of persons accused of crimes perpe-trated in connexion with the Second WorldWar,whichwasbeing fought at the time, this body expressed seriousdoubts and objections, the main one being that theapplication of a new code of penal law to the warcriminals would be open to the criticismthat it was anex post facto law. Nevertheless, the Commissioncate-gorically stated its belief that the time is ripe for theestablishment of a Permanent International CriminalCourt .410) THE ST. JAMES D E C L A R A T I O N , 194230. In the evolution of the idea of an internationalcriminal jurisdiction, there are two acts of the A ll iedPowers which have a deep significance, namely, theSt.James Declarationof1942and the MoscowDeclara-tionof 1943.

31. A t a time when the belligerent and neutral coun-tries were overrun by the victorious forces of the Berlin-Tokio Axis, and the most shocking atrocities A v re beingsystematically perpetrated by them in the battlefields, onthe high seas, in the prison camps and in the occupiedcountries, the powers who were victims of the aggressioncould not but be dominated by a strong sense ofretribution. Yet,theydid notclamourfor vengeance .They asked for justice . O n 13 J anuary 1942, nineAllied Governments signed in the palace of St. James, inL ondon, the Inter All ied Declaration on Punishment ofthe War Crimes. After referring to the war crimesthathistoric documentstates:International solidarity is necessary in order toavoid the repression of these acts of violence simply

The full text of the conclusionsand of the draft conventionmay be seen in Historical Survey of the Question of InternationalCriminal J urisdiction, pp. 97-112.Ibid.,p. 19.

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Y earbook of the International Law Commission Vol IIby actsof vengeance on the part of the general public,and in order to satisfy the sense of justice of thecivilised world.32. Further on, the signatory powers declare: (They) place among their principal war aims thepunishment, through the channel of organised justice,of those guilty of or responsible for these crimes,whether they have ordered them, perpetrated them orparticipated in them , (and resolve)To see to it in a spirit of international solidarity,that(a) those guiltyorresponsible, whatever their nation-ality, are sought out,handedover tojusticeand judged;b) that the sentences pronounced are carriedout. 1533. It is clear that condemnationof theatrocities ascrimes under law a condemnationto bepronounced injudicial proceedingswas a prime objective of theSt. J amesDeclaration, quiteasimportantas, if not moreimportant than,thepunishmentof individual perpetratorsof atrocities. And the viewthat war crimes should be

handledbylegal processwasechoedby theUnited States,Britainand the Soviet Union intheiracknowledgments ofthe St.James Declaration. Roosevelt warned those guiltyof atrocities that ' the time will come when they shallhaveto stand in courtsof law . . .and answer fortheiracts', Churchill declared that the accused 'will have tostand up before tribunals', and the Soviet reply statedthat the Nazi leaders must be 'arrested and tried undercriminallaw . 1634. Perhaps nowhere is the spirit of the St. JamesDeclaration sovividlyandeloquently expressedas in thewords spoken by L ord Simon in December 1943, in theHouse ofL ords: From ourpoint ofview,the British point ofview,we must never fail, however deeply we are tried, andhowever fundamentally we are moved by the sufferingsof others, to do justice according to justice. Theremust be no mass executions of great numbers ofnameless people merely because there have been fright-ful mass executions on the other side. We shall neverdo any good to our own standards, to our ownreputation and to the ultimate reform of the world ifwhatwe do is not reasonably consistent with justice...whatever happens, do not let us depart from theprinciplethatwarcriminals shallbedealt with becausethey are proved to be criminals, and not because theybelong to a race led by a maniacand a murdererwhohas brought this frightful evil upon theworld. 17

(11) THE M oscow D E C L A R A T I O N , 194335. During the Conference held at Moscow in Octoberand November 1943,the United States, Great Britainand

15Punishment for War Crimes. The Inter-A ll ied Declarationsigned at St. J ames Palace. London, on 13 J anuary 1942, andrelated documents (issued by the Inter-Al lied I nformationCommittee, L ondon, 1942), pp. 2-4.IOTelford Taylor, Brigadier Grerai, U .S.A., Chief of Counselfor War Crimes, The Nuremberg War Crimes Tri als,InternationalConciliation, N o. 4SO, A pril , 1940, New Y ork, pp. 245-246.Louise W. Holborn (comp. and d.), War and PeaceAims ofthe United Nations (Boston: World Peace Foundation, 1943, 1948)V o l . II, pp. 449-450, quoted by Taylor, op. cit., pp. 247-248.

theSoviet Union issued a Declaration onGerman A troci-ties in Occupied Europe in which they stated:A t thetimeof thegrantingof anyarmisticeto anygovernment which may be set up in Germany, thoseGerman officers and men and members of the Nazipartywho have been responsible for or have taken aconsenting part in the above atrocities, massacres andexecutions will be sent back to the countries in whichtheir abominable deeds were done in order that theymay be judged and punished according to the laws ofthese liberated cotmtries and of theFree Governmentswhich will be erected therein.

The above declaration is without prejudice to thecase of the major criminals whose offences have noparticular geographical location and who will bepunished by a joint decision of the Governments oftheAllies. 18 1 2 ) T H E U N I T E D N A T I O N S W A R C R I M E S C O M M I S S I O N ,1943

36. The first official body created for the exclusivepurpose of investigating the war crimes and providingfor their punishmentbymeansof an international judicialorgan, was the United Nations War Crimes Commission,set up as the result of aconference of the Allied Govern-ments which met in London in October 1943. ThisCommission approved a draft of a Convention for theEstablishment of a United Nations War Crimes Court, inSeptember 1944. Chief provisions ofthis draft Conven-tion were the following:Article1

1.There shall be established a United NationsWar Crimes Court for the trial and punishment ofpersons charged with the commission of an offenceagainst the laws and customs of war.2. The jurisdiction of the Court shall extend tothe trial and punishment of any person irrespectiveof rank orposition who hascommitted,orattemptedto commit, or has ordered, caused, aided, abetted orincited another person to commit, or by his failure tofulfill a duty incumbent upon him has himself commit-ted, an offence against the laws and customs of war. 3. The jurisdictionof theCourt as defined aboveshall extend to offences committed by the members ofthe armed forces, the civilian authorities or otherpersons acting under the authority of, or claim orcolour of authority of, or in concert with a State or

other political entity engaged in war or in armedhostilities withany of the High ContractingParties,orin hostile occupation of territory of any of the HighContracting Parties.Article18

The Court shall apply: (a) General international treatiesorconventions decla-ratory of the laws of war, and particular treaties or18The Charter and J udgment of the Nrnberg Tri bunal H istoryand Analysis, United Nations Publ:cations. Sales No. : 1949.V .7,pp. 87-88.

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uestion ofinternational crimnal jurisdictionconventions establishing laws of war between the partiesthereto;

(e) International customs ofwar,as evidence of ageneral practice accepted as law; (c) The principles of the law of nations, derived fromthe usages established among civilized peoples, from thelaws of humanity and from the dictates of the publicconscience ; (d) The principles of criminal law generally recog-nized by civilized nations; (e) Judicial decisions as subsidiary means for thedetermination of the rules of the laws ofwar. 19

(13) TH E N U R N B E R G A NDTOKY OI N T E R N A T I O N A L M IL ITARY T R I B U N A L S 1945-194637. Official action passed from mere desiderata orplans to actual deeds, when in A ugust 1945, and inconformity with the aims stated in the St. J ames andM oscow Declarations, the Governments of the UnitedStates, France, Great Britain and the Soviet Union,concluded in L ondon the A greement providing for theestablishment of an International M il itary Tribunal, forthe trial of war criminals of the E uropean A xis whoseoffences had no particular geographical location. N ine-teen other Governments of the United N ations didsubsequently adhere to the agreement. A Charter annexedto the A greement defined and detailed the constitution,principles, jurisdiction and functions of the Tribunal.Theheartof the Charter as pointedout by Taylor was A rticle 6, definingthe crimes within the juris-diction of theTribuna. These crimes, corresponding tothe 'legal charges' outlined in Justice Jackson's report(andlater included in the four counts of the indictment),were described as crimes against the peace'(theplan-ning or waging of aggressive war, or conspiracy for the

accomplishment thereof),'warcrimes (violationsof thelawsandcustomsofwar),and 'crimes against humanity '(atrocities and other inhumane acts committed againstany civilian population, before or during the war,orpersecutions on political, racial or religious grounds inexecution of, or in connexion with, any crime within thejurisdiction of theTribuna). 2038. This was the Tribunal which functioned inN rnberg, Germany, tried the major criminals of theSecond WorldWar,convicted nineteen of them,con-demned them to penalties ranging from death to prisonterms of from tenyears to life and acquittedthree of theaccused.39. I am not unmindful of the criticisms that havebeen levelled against the Nrnberg trial, but of course,it would be out of the scope of this paper to discussthem. M y purpose here is simply to advert to the factthat an international criminal jurisdiction has alreadyoperated in the world and that its feasibility has beendemonstrated. Verily, the N rnbergTribuna was onlya temporary institution and serious objections have beenraised against it, chief among them the following:

18For text of this draft convention, with an explanatory note,see Ibid, pp. 112-119.0TelfordTaylor, op.cit.,pp. 257-258.

1.That it was an ad hoc tribunal;2.That it was more political than juridical;3.That only the four major victor powers constitutedthe tribunal, and consequently, it did not represent theinternational community;4.That it disregarded the principle nullum crimen,nulla poena sine lege.40. L eaving aside the question of whether some orall of these objections, or any others, are right or wrong,I will merely remark herethat the creation of an inter-national criminal jurisdiction as advocated in this paper,is predicated on propositions which eliminate previousobjections, because1. The tribunal exercising the international criminaljurisdiction would be permanent;2. The tribunal would be organized on a strictly legalbasis in every respect;3. The judges would be jurists specialized in penal lawand chosen without distinction as to nationality;4. The tribunal would exercise its jurisdiction overoffences defined in an international penal statute or inparticular treaties between States.41. A nother International M il itary Tribunal was setup in Tokyo in accordance with a D eclaration signed atPotsdam on 26July 1945 by the United States, Chinaand Great Britain, to which the Soviet Union adheredlater on. The Declaration stated that stern justiceshall be meted out to all war criminals, including thosewho have visited cruelties upon our prisoners . Inpursuance of the vast powers conferred upon the SupremeCommander of the A llied Forces by the Instrument ofSurrender signed on 2 September 1945n the Bay ofTokyo by Japan and nine A llied N ations, GeneralM acA rthur established the Internationa M ilitary Tri-

bunal for the FarEast by a special proclamation dated19January1946. J udges representing eleven nationalitiessat on this Tribunal. It functioned in a manner andunder principles almost identical with those of theN rnberg Tribunal. The remarks previously made withregard to that tribuna areapplicablemutatismutandisto the oneestablished in the Far East.42. For the first time in the history of the world,two international tribunals exercising a criminal juris-diction and composed of judges from different nations,tried persons accused of crimes against the peace of theworld and the dictates of humanity. It was done bymeans of judicial proceedings in which the defendantshad thebenefit ofcounseland all theguarantees necessary

to prove themselves not guilty, and in which they weregiven a fair trial by judges bent upon doing, asL ord Simon said, justice according to justice .(14) TH E U N I T E D N A T I O N S C O M M I T T E E ON THE PRO -G R E S S I V E D E V E L O P M E N T O F I N T E R N A T I O N A L L A W

A N D ITS C O D I F IC A T I O N 194743. This body was set up by the General A ssemblyof the United Nations by resolution 94 (I ) of 11 Decem-ber1946. It consisted of seventeen M embers, represent-ing the following States: A rgentina, A ustrali a, Brazil,China, Colombia, E gypt, France, India, The N etherlands,Panama, Poland, Sweden, Soviet Union, United K ingdom,

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8 e rbook of the nternational LawCommssion,Vol. IIUnited States, Venezuela and Y ugoslavia. By resolution95 (I ) of the same date, the General A ssembly directedthe Committee totreatas amatterofprimary impor-tance plans for the formulation,in the context ofageneralcodification of offen es against the peace and security ofmankind, or oj an International Criminal Code, of theprinciples recognized in the Charter of the NrnbergTribunal and in the judgment of theTribunal .

44. The debates of the Committee on the ProgressiveDevelopment of International Law and its Codificationgave rise to significant developments in the considerationof the question of establishing an international criminaljurisdiction. Donnedieu de Vabres, who representedFrance, presented avery substantial memorandum21 inwhich hesaid:The repression,pursuant to the principles of theNrnberg judgment, o\ international crimes againstpeaceandhumanity . . . canonly beensuredby theestablishment of aninternational criminal court.

His concrete recommendation was the establishment of1. A Criminal Chamber in the International Court of

J ustice to deal with (a) certain juridical matters;(b) crimes against peace; and (c) crimes against huma-nity; and2. A special International Court of Justice to deal with(a) international offences capable of being committed intime of peace; (b) war crimes; and (c) all offencescommunis juris connected with crimes against humanitycommitted by Heads of States.45. A long debate took place within the Committeewhen the question was taken up during its session held12May-17 June 1947. Most of the debate, as well asthe dissenting vote one thefinal decision of the Committee,dealt with the question of whether or not the Committeewas acting wi thin the terms of reference. For the purposeof this paper, the important fact to record is that theCommittee, on thesubstantial point at issue, reported asfollows:3. The Committee also decided by amajority todraw the attention of the General A ssembly to the factthat the implementation of the principles of theNrnberg Tribunal and its judgment, as well as thepunishment of other international crimes which maybe recognized as such by international multipartiteconventions, may render desirablethe existence of aninternational judicial authority to exercise jurisdictionoversuch crimes. 22

(15) THE I N T E R N A T I O N A L C R I M I N A L J U R I S D I C T I O N ASD I S C U S S E D I N C O N N E X I O N WITH T H E G E N O C I D EC O N V E N T I O N 1946-194846. Long and arduous debates preceded the adoptionof the Convention on the Prevention and Punishment ofthe Crime of Genocide. Those debates gave rise tosignificant declarations and decisions in connexion withthe question of establishing an international criminaljurisdiction.

21For text o the memovandum,see ibid.,pp. 119-120SA/AC.10/S2 orA/332p. 2

47. It ispertinent to recall the manner inwhich theGenocide Convention was finally adopted by the unanimous vote of the thirdsession of the General Assemblyof the United Nations. A draft resolution on therepression of genocide, proposed by the Delegations ofIndia,Cuba andPanama,was acted uponby theGeneralAssembly on 11 December 1946 by requesting theE conomic and Social Council to undertake the necessarystudies for the drafting of a convention. The Council inturn instructed the Secretary-General to accomplish sucha task in the manner set forth in its resolution 47 ( IV).A draft convention was prepared by the Secretary-General and referred to the Committee on the ProgressiveDevelopment of International Law and its Codification.The Committee returned the draft to the Secretary-General without expressinganyopinionin thematter andrecommending that M ember Governments be consulted.The E conomicand Social Council established an ad hocCommittee which was charged with the preparation of thedraft convention. The ad hoc Committee prepared thedraft convention and submitted it to the seventh sessionof the Economic and Social Council, which in turntransmitted it foraction to the General Assembly.48. The matter was fully debated by the L egalCommittee of the third session of the General Assemblyand on thebasis of the Committee s report, the GeneralAssembly, by resolution 260(III) of 9 December1948unanimously approved the Convention on the Preventionand Punishment of the Crime of Genocide. Both thedraft of the Secretary-General and the draft of the ad hocCommittee contained proposals for the establishment ofan international criminal jurisdiction to deal with thecrime of genocide, although differing as to form andscope. There was lengthy discussion in the Committeeitself and in the E conomic and Social Council on thepros and cons of the proposal. The ultimate result,however, was that the draft approved by the ad hocCommittee contained this provision: (article VII, laterrenumbered V I)

Persons charged with genocide or any of the otheracts enumerated in article IV shal be tried by acompetent tribunal of the State in the territory ofwhich the act wascommitted or by acompetent inter-national tribinal.49. The draft was referred to the Sixth Committeeofthe General A ssembly. A n intensive debate took place inthe Committee arising out of objections to the finalphrase, or by a competent international tribunal .At one time there was a majority decision to delete it,but the decision was reconsidered. Several delegates

made the categorical statement that they had voted forthe deletion not because they were opposed in principleto an international criminal jurisdiction, but because thephrase objected to expressed a hope and not a reality,since it referred to a jurisdiction which did not exist.A conciliation formula was proposed by the delegationof the United States and after painstaking discussion ofseveral amendments proposed by the delegations ofFrance, Belgium,Indiaand the United States, thearticlewas finally adopted in these terms:Persons charged with genocide or any of theotheracts enumerated in articleIII shal be tried by acompetent tribunal of the State in the territory of

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Questionofinternationalcriminaljurisdictionwhich the act was committed, or by such internationalpenal tribunal as may have jurisdiction with respectto those Contracting Parties which shall have acceptedits jurisdiction. 2;i(16) T H E C O M M I S S I O N O N C O M M O N I N T ER N A T I O N A LL A W , 194850. This private scientific body, denominated inFrench Commission du droit commun international, wasset up inParis by the Mouvement National J udiciaire.In 1948 this Commission formulated a draft conventioncontaininga definitionof the crimesagainst humanityreferred to in the judgment of the Nurnberg Tribunal,and proposed confermentof jurisdiction over them on aspecial international penal court also proposed by theCommission to deal with violations of human rights inconformity with another draft convention denominatedConvention Internationale sur les droits de l'homme.A draftstatute of the court was also produced by thisorganization.24

1 7) C O R R E L A T I O N O F T H E Q U E S T I O N S O F I N T E R N A T I O N A LC R I M I N A L J U R I S D I C T I O N , F O R M U L A T I O N O F T H EN U R N B E R G PRINCIPLES A N D E L A B O R A T I O N O F A NI N T E R N A T I O N A L C O D E O F O F F E N C E S51. In view of the above stated facts and circum-stances, it is my belief that the United Nations shouldconsider and decide as inseparable and mutually comple-mentary, the three questions of the international criminaljurisdiction, the formulation of the Nurnberg principlesand the elaboration of an International Penal Code. Itmaynot beamiss to quote in this connexion a statementcontained in the Secretary-General s memorandum, andmade with reference to the representative of F rance in

the Committee on the P rogressive Development ofInter-national L aw and its Codification:He further arguedthat therewas acloseconnexionbetween the Nurnberg principles and an internationalcrimnal jurisdiction. 25

52. In another passage relative to a proposal by therepresentative of the Netherlands:The question of an international criminal court wasso closely connectedwith the Nurnberg principles thatits mentionwasinevitable. 26

53. In conclusion, it may be recalled that the GeneralA ssembly resolution 177 (II) of 21 November 1947charged the International L aw Commission with theformulation of the principles recognized in the Charterof the Nurnberg Tribunal, as well as the preparation ofa draft code of offen es against peaceand security.

'aFor an excellent and well detailed account of the debates inconnexion with the Genocide Convention and the formulation ofthe Nurnberg principles, see theHistoricalSurvey,op. cit.,pp.2S-46. ~*lbid., pp. 25-26, note.Ibid.,pp. 27-28. Ibid., p. 29.

I I I . THE CONTEM PORARY OPINION ON THEQUESTION OF UNIVERSAL REPR ESSION OFINTERNATIONAL CRI M ES AND THE C R IM INAL ITY OF WAR asicconcepts

54. In the preceding pages we can see an imposingarray of official and unofficial thought and action whichfor thelast thirty years has manifested itself in favourof the establishment of an international criminal juris-diction for the prevention and punishment of crimesagainst humanity. The proposals of jurists, statesmen,thinkers, governmental bodies and scientific institutionsreflect the feelings of a generation whichstill shudders atthe recollection of the atrocities of the last war and isgripped by the fear of a new conflagration. They alsorepresent the considered opinion of the world with regardto war and its attendant horrors and respecting theimperative need of delivering humanity from thosefrightful evils.

55. The proposals are indeed widely diversified,butin their great majority they coincide in certain funda-mental concepts, to wit:1.That war is a crime against the human race;2.That there are crimes, other than war, of whichmankind isalso the victim;3.That it is necessary to define by internationalconvention all crimes against mankind;4.That it is also necessary to have some form ofinternational criminal jurisdiction, vested with power totry and punish those responsible for crimesdefined in aninternational code of offences.

L et us examinethesepropositions.(1) THE CONCEPT OF WAR AS ACRIME

56. The notion of war from a legal standpoint, showsa fundamental change which has been evolving for thelast three decades. Contemporary legal thought hasmanifestly forsaken the standards of international lawgenerally accepted until the beginningof the first worldconflagration, that waging war is simply an unrestrictedattribute of sovereignty, the legality of which was notquestioned. A fter the advent of the new internationalorder created by the Covenant of the L eague of Nations,theworld witnessedthe tremendouseffort of Governmentsand public opinion to eliminate the possibility of war bythe strengtheningof the methods ofpacific settlement, bythe adoption of measures designed to guarantee theindependence and integrity of nations, by the definitionand condemnation of aggression, and by the outlawryof war.

57. The outrages of the Second World War, perpetra-ted on a gigantic scale, with an unprecedented display ofcruelty combined with scientificefficiency, intensifiedthestruggle for the suppression of war and the consolidationof systems of pacif ic settlement. It also caused a decidedreversion to the conception of the old masters of inter-national law, who classified wars as just and unjust,thereby implyinga condemnation of the unjust war.58. V itoria, who, as stated by J ames Brown Scott,was the unconscious founder of the modern law of

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10 e rbook of the InternationalLawCommission Vol. IInationsasGrotiuswas itsconscious expositor ,wasverycategorical in his condemnationof unjustwars. Of themVitoria gave these specific examples:

I. Difference of religion is not a cause of justwar. II . Extensionofempireis not ajust causeofwar.

III. Neither thepersonal glory of the prince norany other advantage to him is ajust causeofwar.59. And he rounded up his thought when he said:There is but a singleand only just cause for commen-cing awar, namely, awrongreceived . In this sentenceVitoria didsimply proclaim the right of self-defence, thelegitimacy of a defensive war.2760. In line with this doctrine, Surez in DisputationXIII of his works, stresses the difference betweenaggressive and defensive war and ends his discourseOnWar in theseterms:

Our fourth propositionisthis: inorderthat a warmay be justly waged,a numberof conditions must beobserved, which may be grouped under three heads.First, the war must be waged by a legitimate power;secondly, the cause itself and the reason must bejust;thirdly, the method of its conduct must be proper,and dueproportion mustbeobserved at its beginning,during its prosecution and after victory. A ll of thiswill be made clear in the following sections. Theunderlying principle of this general conclusion, indeed,isthat,while a war is not in itself evil, nevertheless,onaccount of themany misfortunes whichit brings inits train, it is one of those undertakingsthat are oftencarried on in evil fashion; and that therefore, itrequires many (justifying) circumstances to make itrighteous. 2861. Grotius, who was greatly influenced by the oldSpanishprecursors, distinguished betweenjust andunjustwars. The whole structure of his treaties on the lawof war is predicated on the conception that war may bewaged only to redress a wrong, to defend justice, toresist attack. At the beginning of Chapter I I of hisBookI he says:

Having seen what the sources of law are, let uscome to the first and most general question, which isthis: whether any war is lawful, or -whether it is everpermissible towar.Further on, in the samechapter, he adds:6. It isnot,then,contrary to thenatureofsocietyto look out for oneself and advance one s owninterests, provided the rights of others are not in-fringed; and consequently, the use of force whichdoesnot violatetherightsofothersis notunjust.

62. On thespecific pointof the legitimacyof defensivewar, Grotius quotes Cicero assaying:

Sincethereare two ways of settling a difference,the one by argument, the other by force, and sincethe former ischaracteristic ofman,thelatterofbrutes,weshould have recourse to the second only when it isnot permitted to use the first. What can be doneagainst force without force?39Bynkershoek commentingon his own definition of war,says: The definition also specifies for thesake of assert-ing their rights'. In other words, the only correctground for war is the defence or recovery of one'sown. 30

63. Even among modern writers and despite thedoctrine generally accepted in the XIX century, we findthe distinction between just and unjust wars; betweenright or wrong wars; between wars of aggression anddefensive vfars; between jurai and non-juralwars; between a legal or legitimate war and an illegal or illegitimate war; betweena warthatcanbe justified and one that cannot be justified. Thefollowing excerpt from Woolsey is very much in point: War may be defined to be an interruption of astateofpeace for thepurposeof attemptingto procuregood or prevent evil by force; and a just war is anattempt toobtain justice orprevent injustice by force,or, in other words to bring back an injuringparty toa rightstateofmind and conduct by the inflictionofdeserved evil. A justifiable war, again, is only onethat is waged in thelast resort, when peaceful meanshave failed to procure redress, or when self-defencecalls for it. We have no right to redress our wrongsin a war of violence, involving harm to others, whenpeaceful methodsofobtaining justicewouldbesuccess-ful. 3164. However, the contemporary trend hasbeenin the

sense of suppressing not only aggression but also thosewars which might becalled ust , legal , uraior justifiable . Modern conscience condemns in prin-ciplethe use of forcefor thesettlementof any controversy,evenif theStateresorting to war can provethata wronghasbeen committed against it.65. This line of thought is strengthened by the factthat in the days of old, wars were justified for theredress of wrong, because there did not exist in theinternational communityan authority vested with powerto decide controversies betweenStates. The only justi-fication forwar, in the opinionofenlightened theologians,from St. Augustine down ,says Scott was thatbetween equal states there was not and could not be inthe thenstateof affairs, a court of the superior. We oftoday have solved the difficulty by creating a court ofthe superior, the superior in this instance being noneother than the international community and to this

37J. B. Scott, F rancisco de Vitoria and his Law of Nations, ed.Carnegie Endowment, Oxford, The Clarendon Press, 1934, pp. 196,208-209.28F. Surez,Selections from Three Works, Translation Williams,Waldron and Davis, ed. Carnegie Endowment, Oxford, TheClarendonPress, 1944,p. 80S.

28H. Grotius, De J ure Belli ac Pacts, Translation by FrancisKelsey, ed. Carnegie Endowment, Oxford, The Clarendon Press,1925, pp. 51-54.30C. van Bynkershoek, Questionum Juris Publia, Translationand ed. Carnegie Endowment, Oxford, The Clarendon Press, 1930,p. IS.Woolsey, Introduction to the Study of International Law,6th d.,New Y ork, 1891, p. 176,para.115.

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Question of internationalcriminal jurisdiction supreme tribunal all States of the world may appeal fora redress of their legal wrongs. 32

66. The fight for the outlawry of war began whenthe great majority of the civilized States becamepartiesto the Covenant of the League of Nations. Humanityhad been deeply impressed with the dramatic utteranceof Wilson that the conflagration of 1914-1918 was awar to end all wars . When the States of the worlddecided to organize the community of States on aconventionalbasis the feeling became stronger than everthat a society where the members can take justice intheir hands is bound to disintegrate and that even inthe case of a just war even when a nation waged warto redress a wrong that nation is taking justice in herown hands.

67. That sentimentwas reflected in Article 11 of theCovenant:Any war or threat of war whether immediatelyaffecting any of theM embers of the League or not ishereby declared to be a matter of concern to thewholeLeague and theL eague shall take any actionthat maybe deemed wise and effectual to safeguard the peace

nations...68. This provision of the Covenant is remarkable inthat it does not distinguish between kinds of war. Itrefers to any war or threat of war and declares it amatter of concern to virtually the whole community ofnations since the L eague was its living organ. War isnotoutlawed inwords but it isoutlawed in fact. Resortto war in violation of the obligation to submit controver-siesto methods ofpeaceful settlement as per A rticles 1213 and IS of the Covenant ispronounced by Article 16to be an act of war against all other M embers of theLeague , which is tantamount to aggression against thecommunity of States. Such an aggression in violationof international law customary as well as positive andagainst the supreme interest of humanity can only beconceived as a crime against humanity.69. That such a conception existed in early Leagueand Governmental circles iswitnessed byArticle1 of theTreaty of M utual Assistance of 1923 which reads asfollows:

Art. 1. The High Contracting Parties solemnlydeclare that aggressive war is an international crimeand severally undertake that no one of them will beguilty of its commission.70. As expressed in the preamble this treaty wasnegotiated for the chief purpose of facilitating theapplication of A rticles 10 and 16 of the Covenant andthe reduction and limitation of armaments .71. The same conception governed the Geneva Pro-tocol of 1924 officially denominated Protocol for thePacific Settlement of International Controversies. In itspreamble we read:Recognising the solidarity which unites all mem-bers of the international community;

Affirming that war o aggression constitutes aninfraction of such solidarity and an internationalcrime .72. A sstatedby Edouard Benes wi th reference to theCommissionhandling the matter in theL eague Assemblyourpurpose was to makewar impossible to annihilateit to kill it , and it was only logical that for thosepurposes war had to be declared a crime as it was in

express terms. The Protocol was unanimously recom-mended to the General A ssembly by the vote of forty-eight delegations but the subsequent opposition of theBritish Government to the extension given the systemof arbitration caused the failure of both the Protocol andthe Treaty of M utual Assistance.73. However the principles and aspirations whichinspired the two instruments did not die. Quite thecontrary theyremained aliveand active in the conscienceof statesmen and the common people. The concept ofthecriminality of war was categorically expressed by theInter-Parliamentary Union in its Conference of 1925when it instructed the permanent Sub-Committee of itsCommittee for the Study of J uridical Questions

to undertake the study of all the social politicaleconomic and moral causes of wars of aggression tofind practical solutions for the prevention of thatcrime .3S74. Those same principles animated the treaties ofLocarno concluded in 1925 which constituted a nobleand constructive effort to strengthen and fortify peacefulsettlement among the great European powers as the bestmethod of preventing the scourge of war from againbringingwoeunto mankind. Repudiationof war was thegoverning principle of those celebrated agreements four-teen years later trampled upon by the criminal actionof aggressors and treaty-violators.75. Thesame psychologyhadprevailedin thecouncils

of the Western Hemisphere.3d A resolution of the FirstPan-American Conference of Washington 1889-1890,condemned the principle of conquest and proclaimed thenon-recognition of territorial acquisitions made by forceor threat of force. A nother resolution upheld the prin-ciple of obligatory arbitration in very ample terms.76. In the Sixth Conference held at Havana inJ anuary 1928 a resolution was passed whereby theAmerican republics declared that they adopted the prin-ciple of obligatory arbitration for the solution of theirdifferences and called an arbitration and conciliationconference to be held in Washington next December.The first consideration of that resolution read:

The American republics do hereby express thatthey condemn war as an instrument of national policyin their mutual relations.77. A second resolution on the subject of aggressionwas more explicit in proclaiming the criminality ofaggressive war as per these terms:

Considering . . .

31J . B. Scott The Spanish Conception of International Law ando Sanctions Carnegie Endowment Washington B.C., 1934 pp. 88-89.

33Hi storical Survey, op. cit. p. 71.31Cf.Conferencias internacionales ameri canas 1889-1936 DonacinCarnegie para la Paz Internacional Washington 1938; PrimerSuplemento, 1938-1942 Washington, 1943.

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2 Y earbook oftheInternationalLaw Commission Vol. IIThat war o aggression constitutes a crimeagainstmankind,

Resolves: I. All aggression is declared illicit, and, therefore,it is declared prohibited.II. TheAmerican States shall employall peacefulmeans for the settlement of conflictsthat may ariseamong them.

78. In the third consideration of another resolutionadopted by the seventh Pan-A merican Conference, ofM ontevideo, 1933, relative to the ratification of pacificsettlement agreements, this statement is found: Such) conventions, treaties andagreements . . .would suffice to avoid the crimeof war , .

79. The Anti-W ar Treaty of Non-Aggression andConciliation, signed at Rio de J aneiro in 1933, statedinArticleI:The High Contracting Parties dosolemnly declarethat they condemn warsof aggression in their mutualrelationsorwith otherStates . .

80. The Declaration of American Principles made bythe Eighth Conference in Lima, in 1938, contained thisclause:3. The use of force as an instrument of nationalor international policyis illicit.

81. A resolution of the same Conferenceon teachingrecommended inter alia,the study of agreementsdeclar-ing the outlawry of war.82. The Inter-A mericanTreaty of M utual Assistanceconcluded in Rio de J aneiro in 1947, in a specialconference held in pursuance of the agreements anddecisions of the Conference on the Problems of Peaceand War Chapultepec Conference) of 1945, provides inArticleI:TheHigh Contracting Partiesdoformally condemnwarand bind themselves in their international relationsnot to resort to war or threat of war in any mannerincompatible with the provisions of the Charter of theUnitedNationsor ofthisTreaty.

83. The whole international life of the A mericancontinent is pervaded by thought and action inspired bytheconceptionthat international conflicts mustbesettledby peaceful methods only; that war is a crime againstmankind; andthat as a crime it is repudiated, declaredillicit, outlawed.84. Somesix months after the Havana resolution of1928had been subscribed to by theA merican republics,the announcementwas made of the signing in Paris of

thePact for the Renunciation of War, otherwise knownas the Briand-K elloggTreaty, article I of which reads:The High Contracting Parties solemnly declare inthe names of their respective peoples that they condemnrecourse to war for the solution of internationalcontroversies, ana renounce it as an instrument ofnational policy in their relations with one another.85. With regard to the B riand-K ellogg Treaty, andgiving up as unnecessary a repetition of its well knownhistory, its aims and its scope, the following remarksmay be made for the purposes of this report:1. The Pact did not interfere with the right of self-defence;

2. I t was not inconsistent with such coercive action ascould be taken by the community of States under theCovenant of the L eague of Nations;3. It was not inconsistent with the use of force underthe Locarno treaties, for such use was authorized againstspecificacts defined as aggression;4. No distinction was made between classes of war,as it renounced war, any form of war, as an instrumentof national policy;5. Renunciation of war, in the terms of the treatyand in accordance with its manifest intention, was insubstance the outlawry ofwar.

86. A close harmonyisapparent betweenthetreatmentof war by the Briand-K ellog Pact and the Charter ofSan Francisco. It is thus evident that by the time theSecond World War broke out, there was a well-definedconsensus of universal public opinion that war, and afortiori aggressive war, was an international crime. Insupport of the conception of aggressive war as aninternational crime we can invoke the opinion of theprecursors, founders and early expositors of the law ofnations and the consistent thought and action of Govern-ments, institutions and jurists during the thirty yearselapsed since the termination of the First World War.As stated by Justice Jackson in his famous report onthe proposal to set up theNiirnberg Tribunal:

Doubtless what appeals to men of good will andcommon sense as the crime which comprehends alllesser crimes, is the crime of making unjustifiablewar.... By thetimetheNazis cametopowerit wasthoroughlyestablishedthat launchinganaggressivewaror the institution of war by treachery was illegal andthat the defense of legitimate warfarewas no longeravailable to those who engaged in such an enterprise.It is high timethat we act on the juridical principlethataggressive war-making is illegal andcriminal. 3587. It may berecalled in this connexionthat in 1919,in the memorandumof reservations of the United Statesto the report of the Commissionon the Responsibility ofthe A uthors of the War and on Enforcement of Penalties,the A merican representatives had declared:Theybelieve thatany nation goingto warassumesa grave responsibility, andthat a nation engaging inawar ofaggressioncommitsacrime. 36

88. The new international order created after thetermination of the Second World War is consonant withthe principles which animated all the anti-war pacts,agreements, declarations, movements, studies and pro-posals of the previous decades. According to theSan Francisco Charter, to maintain peace and securityis the supreme purpose of the community ofStates, andfor therealization ofthatpurposei tmusttake collectivemeasures for the prevention and removal of threats tothe peace and for the suppression of acts of aggressionor other breaches of thepeace article 1,paragraph 1).

89. According to article 2, paragraph 4,A ll Members shall refrain in their internationalrelations from the threat or use of force against the35Department ofStateBulletin, Vol.12 194S),pp. 1076-1077. Historical Survey, op.cit., p. 54.

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u stion of international criminal jurisdiction 3territorial integrity or political independenceof anystate, or in any other manner inconsistent with thePurposesof theUnited Nations.90. A ccordingto this provision,war,any formof war,is illegal, prohibited, outlawed. A Nation can only useforce in exercise of the inherent right of individualorcollective self-defence, if an armed attack occurs , andeven this permissible use of force must cease a? soon as

the Security Councilhas taken themeasures necessaryto maintain international peaceandsecurity (article51).91. For these reasons, I have always thought thatthe difficultyheretofore considered insuperable ofdefining aggression, could perhaps beovercome today bysimply introducing into the definitionthe elementofself-defence, and making lack ofthat element the test ofaggression. Without attempting any enumeration ofspecific acts constituting aggression, I wouldproposethisdefinition: A ggression is the use of force by one Stateagainst another State under conditions which do notconstitute self-defence against armedattack.92. Force could also be used by the United Nations

under the provisions of Chapter VII of the Charter onAction with respect to threats to the peace, breachesof the peace andactsofaggression (articles 39 to50).93. It isincontrovertible, therefore, that the conceptof the criminality ofwar,affi rmed by the principles ofthe Niirnberg Tribunal and its judgment, is part of theinternational law of ourday. Whatever wordsare usedincondemning war; whether it is called illegal or declaredoutlawed, renounced as an instrumentof national policyor branded as a crime; whether war is divided in thetwocategories ofjust and unjust, or contemplated in anabstract manner as simply the recourse to force andviolence for the solution of controversies between States,the fact stands that in the minds of Governmentsand

peoples, statesmen and jurists, and in conformity withthe positive provisions of the world's Magna Charta,war is a crime. If the use of force ispronounced an actagainst international order, and war a scourge whichhas brought untold sorrow to mankind ; if war isrepudiated, condemnedand renouncedas an instrumentofnational policy,it isbecausewar, .e.,theunauthorizeduse of force, is an international crime, a crime againstmankind.94. It is notnecessary tomakeaspecificreference toaggression or aggressivewar,as in several of the officialutterances of the recentpast. The contemporary inter-national order does not recognize the legitimacy of warwaged for the purpose of redressing a real or allegedwrong. There are no just ,or jurai ,or legal ,or justifiable wars in the new international order.The only justifications for the use of force, as abovestated, are self-defence or coercive action by the com-munity of States. When either of these two elementsislacking, all war is illicit, all war is a violation of theCharter of the United Nations, all war is aggression,all war is an international crime.

2 ) I N T E R N A T I O N A L C R I M E S O T H E R T H A N W A R95. Besides the crime ofwar,there are other crimeswhich affect the communityof States and hence shouldbesubject to an international jurisdiction. The planning

and wagingofaggressivewar,ofcourse, is the principalcrime mentioned in the first category of the Niirnbergcharter, designated under the heading of crimesagainstpeace . Then there are the crimes comprised withinthe second and third categories, i.e., -wa r crimes(violations of the laws and customs of war) ; and crimesagainst humanity (atrocities andother inhumaneactscommitted against any civilian population, before orduring a war,or persecutions on political, racial orreligious grounds, when such acts are done or suchpersecutions are carried out in connexion with crimes ofthe first and second categories).

96. Thenwe have the crime of genocide, as definedin the Genocide Convention, which might also comewithin the jurisdiction of an international criminal court,in respect of those States which should accept suchjurisdiction, as per article VI of the Convention.97. Andlastly, there are certain offences which havealways been knownas crimes againstthe law ofnations ,such as piracy, slave trade, traffic in women and children,traffic in narcotics, currency counterfeiting, injury to

submarine cables. To these might be added terrorism ofan international character, as defined by the Conventionof1937on the Prevention and Punishment ofTerrorism.98. It is pertinent to recall, furthermore,that theInternational Law Commission has been calledupon, byresolution 260B(III) of the General A ssembly, tostudy the desirabilityandpossibility ofestablishingan international judicial organ for thetrial of personscharged with genocide or other crimes over whichjurisdiction will be conferred upon that organ byinter-national conventions .99. On the other hand, General Assembly resolution177(II) of 21November1947nstructs the Commission

to (a) Formulate the principles of international lawrecognized by the charter of the Niirnberg T ribunal andits judgment; and(b) Preparea'draft codeof offences against the peaceand security of mankind, clearly indicating therein theplace that should be accorded to the Niirnberg principles.100. Therefore, having in mind the resolutions of theGeneral Assembly and the possible scope of the prospec-tive international penal code, itseems logical toconcludethat the international criminal jurisdiction may have todeal with the following crimes:(a) Crimes against the peace;(b) War crimes;(c) Crimes against humanity; d) Genocide; Convention(e) Other undetermined crimes over which jurisdictionbe conferred upon the international criminal court byinternational conventions, among which might be thefollowing:Piracy;Slave trade;Traffic in women and children;Traffic in narcotics;Currency counterfeiting;

Nrnbergprinciples

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14 Yearbook of the International Law Commission Vol. IICirculation of obscene publications;Injury to submarine cables;Terrorism.101. In connexion with items (c)and (d); it must beborne in mind that while genocide by its nature is acrime against humanity, it is not comprised within theenumeration made by the charter ofNrnberg under thecaption Crimes against humanity . Thisthird categoryof the charter refers to persecutions on political, racialor religious grounds in execution of or in connexion withany crime within the jurisdiction o the Tribunal . Thecharter, therefore, referred only to specific persecutionscarried out in connexion with crimes against the peaceand war crimes. The statements hereinbefore made areintended only to mention the offences that may comeunder the proposed system of universal repression, butof course,theydo not mean an attempt to deal with thespecific subject matter of the international penal code,which is to be covered by aseparate report.

3) NECESSITY T O D E F I N E B Y I N T E R N A T I O N A LC O N V E N T I O N A L L C R I M E S A G A I N S T M A N K I N D102. When the powers, victims of the aggressionstarted in1939,after fiveyearsof terrific fighting, finallywon the war and decided to arraign those responsiblefor its horrors, there was a great deal of discussion asto the manner in which the war criminals should bepunished; as to whether war was or was not a crimeunder international law;as to whether individuals couldbe tried in an international tribunal for acts committedby them as representatives of Governments; and finally,as to whether the proposed exercise of criminal juris-diction did or did not constitute a violation of theprinciple nullum crimen,nulle poena sine lege.103. With regard to the International M il itary Tri-

bunal created by the London A greement of 1945, therehas been criticism of the charter, of the trials, and ofthe judgment. It is obviously impossible for me todiscuss the copious literature that has appeared on thesubject. Fully one hundred monographs and studies arelisted on the subject of Nrnberg in the bibliographyprepared by the Legal Department of the United Nationsin December 1949. M oreover, such discussion would beuseless and out ofplace in thispaper. For the purposesof my report it suffices to advert to the fact thatviolation of the principle mentioned above has been thegravest charge formulated against the Nrnbergtrial andthe one most insistently and abundantly made; that thenorm nullum crimen, milla poena sine lege is a dogmaof penal science; that it is universally recognized as abasic guarantee of the individual; and that it has beensolemnly reaffirmed by the United Nations in its Uni-versal Declaration of Human Rights, A rticle 11 ofwhichreads as follows (paragraph 2 ) :

No one shall be held guilty of any penal offenceon account of any act or omission which did notconstitute a penal offence, under national or inter-nationallaw,at thetime when it wascommitted. Norshall a heavier penalty be imposed than the onethatwas applicable at the time the penal offence wascommitted.104. While many learned and authoritative opinions

might be quoted in support of the proposition that warof aggression was a crime under international law at thetime the war wasbegunbyHitler in1939, many equallylearned and authoritative writers maintain the contraryview. A s a sample I will quote from one of the lateststudies I have read on the subject: I believethat these facts and considerations mustlead to the conclusionthat the punishable character of

the war of aggression stipulated in the Charter doesnot correspond to a general legal conviction in forcein1939, but that it is new law and that to this extentthe principle of nullum crimen sine lege has beenviolated. 37105. While it is a fact that there is controversyregarding the past, there can be no doubt regarding thegeneral legal conviction of our day that launching a waris a crime both under customary and conventional inter-national law and that this crime, together with otherhideous crimes against the peace and security of mankind,must be prevented and punished.106. It wouldbeunthinkable toplan for theestablish-ment of a universal system of prevention and punishmentofsuch crimes withouta law to beapplied by thejudicialorgan created for that purpose. The necessity for adefinitionof alloffences against mankind seems imperativein theinternational orderof ourday. Assaid thirty-oneyears ago by the Commission on the Responsibili ty ofthe A uthors of the War and on E nforcement of Penalties, It is desirable that for the future, penal sanctionsshould be provided for such grave outrages against theelementary principles of international law .38107. And the Third Committee of the League ofNationsA ssembly in 1920, remarked:

There is not yet any international penal lawrecognizedby allnations. ... 30108. The necessity for a criminal law in therepression of crimes against peace is ably expressed byFinch in these words:

The prime requisite to the establishment of acommunity of S tates under the protection of anenforceable international peace is the unambiguousdenouncement of breaches of the peace and acts ofaggression as violations of the law of the community.To leave the definition of such violations to ex postfacto determination by a political group, one of whichmay veto the very existence of a violation howeverflagrant it may be, or to ex post bello decision by avictor against the vanquished only, is a perversion ofprocess which by no stretch of the imagination canI called dueprocessoflaw. 40109. A resolution of the Inter-Parliamentary Union,

31 The Nuremberg Trial against the Major War Criminals andInternational Law by Dr. Hans Ehard, Minister-President ofBavaria, in American J ournal of InternationalLaw,vol. 43 (1949),p. 239.88Historical Survey, op.cit.,p. 49.33Ibid., p. 11. GeorgeA. Finch, The North Atlantic Pact in InternationalLaw,address before the American Society of International Law,29 April1949.

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uestion of international criminal jurisdiction 5passed during its W ashington session of 1925, containedthe following recommendation:

To draw up a preliminarydraft of anInternationalLegal Code .41A gain, at the 37th Conference of the Union in Rome in1948, it was declared:That the collectivity of States must adopt as soonaspossibleaninternational penal code. ... 43

110. In the first International Congress of Penal Lawheld in Brussels in1926, the following aspiration (vu)was expressed:A ll offences whichmay be committedby States orindividuals must be specified and approved. Inter-national conventions shall define offences within thecognizance of the court and shall specify which penaland security measuresmay beemployed.4S

111. In aletter dated 12November 1946, PresidentTrumansaid:That tendency (toward peace) will be fostered ifthe nations can establish a code of international

criminal law to deal with all who wage aggressivewar.The setting up of such acode...is indeed an enormousundertaking, but it deserves to bestudied and weighedby the best legal minds theworld over. It is a fittingtask to be undertaken by the governments of theU nited Nations. 44112. By resolution 95 (I) of 11 December1946,theGeneral Assembly directed the Committee on the Pro-gressive Development of International Law and itsCodification,totreat as a matter of primary importance plansfor the formulation,in the context of a general codi-fication of offen es against the peace and security ofmankind, or of an International Criminal Code, of theprinciples recognized in the charter of the NiirnbergTribunal and in the judgment of the Tribunal .113. Subsequently, by the oft-quoted resolution 177(II) of 21November 1947,theGeneral Assembly chargedthe InternationalLawCommissionwith the formulationof the Nrnberg principles,as well as,

the preparation of a draft code of offen es againstthepeaceandsecurity of mankind . .. .114. Now, in order to comply w ith the manifestdesire of the General Assembly of the U nited Nations;in order to avoid in the future thecriticisms of thepast;in order to establish an international criminal jurisdictionupon sound and solid bases of penal law;in order to

enable an international criminal court of the future toapply pre-established law to those who are found guiltyof international crimes, it is obviousthat an internationalcode of offences mustbeadopted, enacted and promulga-ted by the United Nations, by means of such conventionorconventions as may be deemed necessary and adequate. Historical Survey, op.cit.,p. 71.11Ibid., p. 14, note.43General Outline of the Proposals and Resolutions adopted inthe Congresses of the International Association of Penal Law ,Revue InternationaledeDroit Pnal,1948, p.414.Department of State Bulletin,Vol.IS (1946), p.954.

(4) THE N E C E S S I T Y TO H A V E AN I N T E R N A T I O N A L JURIS- D I C T I O N V E S T E D W I T H P O W E R T O TRY A N D PUNISHP E R S O N S R E S P O N S IB L E O F I N T ER N A T I O N A L C R I M E S

115. The factsstated inPart II ofthis report showthat for the last thirty years the public opinion of theworld has been clamouring for the establishment, in oneform or other, of an international jurisdiction competentto deal with international crimes.116. During that time the following official andunofficial entities representing the world s legal andpolitical thought have strongly advocated the creation ofan international criminal jurisdiction:The Advisory Committee of J urists, 1920;The International L aw Association, 1922,1924, 1926;The Inter-Parliamentary Union,1925 and1948;The International A ssociation of Penal Law, 1926,1928;The League of Nations, 1937;The London International A ssembly,1941The International Commission for Penal Reconstruc-

tion and Development, 1942;The U nited Nations W ar Crimes Commission, 1943;The U nited Nations, 1945;The U nited Nations C ommittee on the ProgressiveDevelopment of International Law and its Codifi-cation, 1947;The Commission on Common InternationalLaw, 1948.117. The League of Nations actually proceeded tothe creation of an international criminal jurisdiction bythe Convention of1937for the trial of persons accusedof offences defined in the Convention for the Preventionand Punishment ofTerrorism. The U nited Nations, onthe other hand, did set up the International M ilitary

Tribunals ofNiirnberg and Tokyo, which exercised theirpenal jurisdiction in a complete and effective manner.118. Draf t statutes of an International Penal Courthave been formulated, presented to or adopted by,The International LawAssociation;The International A ssociation of PenalLaw;The L eague of Nations;The London International A ssembly;The United Nations War Crimes Commission;The U nited Nations Committee on the ProgressiveDevelopment of International L aw and its Codifica-tion;45andThe Commission on Common International Law.119. O f all these drafts I consider as the mostcomplete and up to date, the one prepared in1926forthe International A ssociationof Penal Law by ProfessorPella, and revised in 1946.46120 After the shocking experiences of the SecondWorld War and amidst the restlessness and alarmprevailing in our day, the establishment of an inter-

48For full text of these drafts, see Historical Survey, op. cit.,Appendices, pp. 47-147.16Ibid.,pp. 75-88.

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16 Y earbook of the International Law Commission Vol IInational criminal jurisdiction would be received by thepeoples of the earth as a new ray ofhope in their questfor peaceandsecurity, as apledgeby theUnited Nationsthat it will not allow another catastrophe to befallhumanity.

121. The cynic .and the skeptic will surely remarkthat wars are not stopped by means of internationaltribunals and penal codes. Perhaps that is true, up toa certain point. In the municipal organization it maybe observed also that there are murderers and thievesdespite the fact that there are criminal courts and penalcodes, but only God knows how many murders androbberies are not committed precisely because there arejudges and penalties.

122 When the individual head of State, governmentofficial or army commander knowsthat the planning andwagingof a war is acrimeforwhichhe may bepersonallytried by an international tribunal and sentenced if heis found guilty, he will surely be deterred by thatconsideration if he should some day feel tempted tofollow the path that leads only to death, savagery,misery and ruin.123 In 192S Raymond Poincar asserted:A judicial penal organisation and the applicationof sanctions to crimes that may be committed, thatis the aim which humanity must pursue if it desiresthat its beautiful dream of universal peace become anenduringreality. 47124. In the same year the French jurist J. A.Roux,speaking of an International Criminal Court, said:

Time works for it, because history, justice andcommon sensestand by its side. To an interna