¹ See the report (Sapporteur, Mr. J. Spiroponlos) of the Sixth Committee of the General Assembly, U. N. Doc. A/760, Dee. 5, 1948.

² The amendments leading to the final text quoted above were proposed by the French representative, Professor Bené Cassin. See U. N. Docs. A/C.3/244/Rev.1, Oct. 12, 1948, and A/C.3/SR.116, Oct. 30, 1948. It is submitted that Art. 11 of the Declaration has affirmed the validity in international law of a fundamental principle of juridical security which in domestic law has been recognized not only in many criminal codes or legislative acts but also in the constitutions of some states. On the principle nulla poena sine lege in international law, see Pella, V. V., La Guerre-crime et les Criminels de Guerre, pp. 68–108 Google Scholar. A clause similar to that of Art. 11 of the Declaration has been inserted in the Draft International Covenant on Human Rights prepared by the Committee of Human Bights of the United Nations, May–June, 1949. See U. N. Doc. E/CN.4/332/Add.2. June 18, 1949.

³ See report of the 23rd Interparliamentary Conference, p. 798.

⁴ The insignificant result of the Treaty of Versailles insofar as concerns criminal responsibility in the international sphere is well known. The former German Emperor was declared by Art. 227 guilty of supreme offenses against international morality and the sanctity of treaties, but he was never tried or punished. The repression of war crimes provided for in Arts. 228 and 229 proved to be trivial in practice. Out of 896 persons figuring on the first list of the Allies, the German Court of Leipzig condemned only 6. As to the preparatory work of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, see its Report in this Journal, Vol. 14 (1920), pp. 95–154. The work of the Advisory Committee of Jurists created in February, 1920, by the Council of the League of Nations was no more profitable. The League of Nations did not give any consideration to the so-called Descampe Draft for the creation of a high court of offenses against international public order and the universal law of nations. The Assembly, in adopting in 1920 the report of the Third Committee, deemed that the question of an international criminal court was not ripe and meanwhile the Council decided in conformity with a report by Mr. Caclamanos, that the problem should be first studied by some international organization. See Manley, O. Hudson, “The proposed International Criminal Court,” this Journal, Vol. 32 (July, 1938), pp. 549–551 Google Scholar, and Quintiliano, Saldana, “La Justice criminelle internationale,” in Acts of the First International Congress of Penal Law, pp. 377–383.Google Scholar

⁵ Aside from the text of the “Fundamental Principles of a Penal Code of Nations,” annexed to the resolution adopted in 1925 in Washington by the Conference of the Interparliamentary Union, attention must be called to the draft Statute of an International Criminal Court adopted by the 34th Conference of the International Law Association (Vienna, 1926), Report, pp. 130–142, on the basis of texts by Professor H. Bellot; and the draft Statute of an International Criminal Court prepared by the International Association of Penal Law on the basis of the writer’s draft, Revue internationale de Droit pénal, 1928, No. 3, pp. 293 ff. In 1935 the same review (pp. 348 ff.), published the Plan for a World Criminal Code drafted by the present writer to serve as a basis for the work of the International Law Association, of the Interparliamentary Union and of the International Association of Penal Law. The text of this Plan was reproduced in English in the Revue internationale de Droit pénal, 1946, Nos. 3–4, pp. 248–262.

⁶ Regarding the origins of this convention it must be recalled that after the assassination on Oct. 9, 1934, of King Alexander of Yugoslavia and M. Barthou, the French Government proposed the creation of an international criminal court together with a convention for the international repression of terrorism. The text of the Convention of November 16, 1937, followed a first draft drawn up by the writer and presented in May, 1935, to the first session of the League of Nations Committee for the International Repression of Terrorism. This draft was submitted to the governments as a proposal of the Belgian, French, Rumanian and Spanish members of said Committee. It was then adopted by the Committee at its Second Session in January, 1936. After submission to the ordinary session of the Assembly of the League of Nations in October, 1936, and revision at the third session of the Committee in April, 1937, it was adopted with little change by the Intergovernmental Conference that met in Geneva, Nov. 1–16, 1937, with Count H. Carton de Wiart as President. See Sasserath, , Revue belge de Droit pénal et de Criminologie, November, 1937 Google Scholar; Caloyanni, , “Deux conventions: prévention et répression du terrorisme, création d’une cour pénale internationale,” Revue de Science criminelle et de Droit pénal comparé, July–Sept., 1938 Google Scholar; Donnedieu de Vabres, H., “La Répression du terrorisme,” Revue de Droit international et de Législation comparée, 1938, pp. 37 ffGoogle Scholar.; Bouzat, , Chronique, Revue de Science criminelle, July–Sept., 1938, pp. 563 ffGoogle Scholar.; Sottile, , “Compétence de la Cour pénale internationale,” in Le Terrorisme international (Paris, Sirey), pp. 86 ff.Google Scholar; also Pella, V. V., “La Cour pénale internationale et la répression du Terrorisme,” Union belge de Droit pénal, Brussels, 1938 Google Scholar.

⁷ See Manley, O. Hudson, “The Proposed International Criminal Court,” this Journal, Vol. 32 (1938), p. 554 Google Scholar; Jessup, Philip C., A Modern Law of Nations, p. 179 Google Scholar.

⁸ See Politis, Rapport sur l‘institution d’une juridiction criminelle internationale, Acts of the First International Congress of Penal Law, p. 413. Referring to the Great Powers of the European Axis, a French jurist averred that the organization of an international penal justice was difficult to conceive in presence of “a totalitarism triumphing precisely in the States susceptible of becoming those aggressors which were intended to be subjected to an international criminal justice by the new penal law; and the notion of a totalitarian state represents a kind of hypertrophy of the old theory of sovereignty which, even in democratic countries, does not permit the foundation of an international jurisdiction on anything better than a contractual agreement freely accepted and easily attachable.” See Marc, Ancel, in Revue de Science criminelle et de Droit pénal comparé (1946), Nos. 2–3, p. 330 Google Scholar.

⁹ This exclusive conception had been in dispute for many years. See the valuable “Survey of International Law in Relation to the Work of Codification of the International Law Commission,” U. N. Doc. A/CN.4/1/Rev.1, Feb. 10, 1949, pp. 19–22.

¹⁰ See George, A. Finch, “Retribution for War Crimes,” this Journal, Volume 37 (1943), p. 81 Google Scholar. The charters for the organization of the International Military Tribunals of Nürnberg and Tokyo must be looked at in the light of the experience of the second World War. The same with some drafts such as those of the London International Assembly and of the United Nations War Crimes Commission. Mention must also be made of the fact that in 1944 Professor Hans Kelsen published in the annex to his book, Peace Through Law, a draft under the title of “Treaty Stipulations establishing individual responsibility for violations of international law” (international criminal jurisdiction). In May, 1947, following a resolution of the Economic and Social Council, the Secretary General of the United Nations prepared a draft convention on genocide with the assistance of three experts on international and criminal law, Professors Donnedieu de Vabres, Lemkin and the writer. Two of them considered that a permanent international criminal court was desirable. An agreement was reached on the basis of presenting two alternative drafts to the United Nations, one aiming at the creation of a permanent international criminal court, the other at the creation of an ad hoc international criminal court. Two drafts prepared by the present writer for this purpose, closely followed the Convention of 1937 for the Creation of an International Criminal Court. These texts, with alterations, were adopted by the other two experts, and appeared as Annexes 1 and 2 of the Draft Convention on Genocide prepared by the Secretary General. See U. N. Doc. E/447, June 26, 1947, with excellent introductory remarks by Professor Emile Giraud. In 1948 the Commission française du droit commun international, on the basis of texts drawn up by Procureur General Boissarie, prepared a draft statute for an international criminal court called upon to insure the repression of crimes against humanity. See Revue internationale de Droit pénal, 1948, pp. 385 ff.

¹¹ The resolution of Dec. 11, 1946, adopted unanimously by the General Assembly, originated in a famous letter from President Truman in reply to the Report of Nov. 9, 1947, of the American Judge to the International Military Tribunal of Nürnberg. See Francis, Biddle, “The Nürnberg Trial,” Proceedings of the American Philosophical Society, Vol. 91, No. 3 (August, 1937), p. 296 Google Scholar. In the United Nations Committee for the Progressive Development of International Law and its Codification, Professor Donnedieu de Vabres was the most active supporter of the new tendencies. (See his memorandum presented on the creation of an International Criminal Jurisdiction, Doc. A/AC.10/21, May 15, 1947, and, on proposals concerning the principles of the Charter and Judgment of Nürnberg, U. N. Doc. A/AC.10/34, May 27, 1947.) In the same Committee Professor Philip C. Jessup delivered a statement in which, after admitting that the Committee had to deal with methods and waa not charged with the actual formulation of the Nürnberg rules or principles, he nevertheless recognized that in view of the importance of the proposals of the French Delegation as to an International Criminal Court, “the report of the Committee should contain special mention of this subject and should recommend that the attention of the Commission of Experts be called thereto.” U. N. Doc. A/AC.10/36, May 23, 1947, pp. 4–5.

¹² As early as Sept. 30, 1947, in a communication to the Secretary General, the U. S. Government had proposed a text inviting the Parties to the Convention on Genocide to take “steps, through negotiation or otherwise, looking to the establishment of a permanent international penal tribunal, having jurisdiction to deal with offenses under this Convntion.” See U. N. Doc. A/401/Add.2 (English), Oct. 18, 1947, Art. VII, pp. 19–20. The creation of an international criminal jurisdiction was supported by the representatives of France and the United States in the special committee on genocide which met at Lake Success, May 5–10, 1948, with Mr. John Maktos as Chairman. The statements by the Chairman as representative of the United States, and by Mr. Pierre Ordonneau, delegate of France, were particularly interesting. Further, Mr. Maktos presented a proposal contemplating the jurisdiction of an International Criminal Court in the case where the state on whose territory genocide was committed did not take the proper measures for its punishment. See Report of the Special Committee on Genocide, U. N. Doc. E/794, May 26, 1948. When the Economic and Social Council at its Seventh Session in Geneva, July 19–Aug. 29, 1948, discussed the draft and the report of the Special Committee, the delegates of France and the United States emphasized the need for the creation of an International Criminal Court. The representative of the United States, Mr. Thorp, said that the establishment of an international tribunal would constitute a new and significant step in international law. Finally, the delegates of the United States and France to the General Assembly insisted on the inclusion in the Convention of a clause defining the jurisdiction of the International Criminal Court in cases of genocide. See report of the Sixth Committee, U. N. Doc. A/760, Dec. 5, 1948, and Summary Records of its meetings, U. N. Docs. A/C.6/SR.93, 95, 98, 99, 130 and 180.

¹³ See U. N. Doc. A/760, p. 13.

¹⁴ See resolution No. 177 (II), General Assembly, Official Documents, 2nd Sess. On the formulation of Nürnberg principles and all questions connected with this formulation, see a comprehensive and fully documented study by Yuen-li, Liang, “The General Assembly and the Progressive Development and Codification of International Law,” this Journal, Vol. 42 (1948), at pp. 91–93 Google Scholar.

¹⁵ See U. N. Doc. A/332, July 21, 1947.

¹⁶ See Bouzat, P., “Considérations sur une communication concernant les fonctions pacificatrices du droit pénal supranational,” Revue internationale de Droit pénal, 1948, p. 64 Google Scholar.

¹⁷ See editorial comment, “International Criminal Jurisdiction,” this Journal, Vol. 41 (1947), p. 433. Mention must be made that in the searching article “The Law of the Nuremberg Trial,” Mr. Quincy Wright also states that the trial of Nürnberg has “manifested the practicability of a fair trial of war crimes in an international tribunal, and may encourage the establishment of a permanent tribunal with a wider jurisdiction for the trial of such crimes and other offenses against the law of nations not dealt with by national tribunals.” See this Journal, Vol. 41 (1947), p. 42.

¹⁸ See Judge Basdevant’s declaration in Acts of the Conference for the Repression of Terrorism, League of Nations Doc. C.94.M.47.1938.V., p. 59.

¹⁹ This jurisdiction will be able to coöperate in the development of international law and in the defense by means of international law of some vital legal rights now under the protection of the United Nations. Dr. Ivan Kerno said that a special responsibility rests on the International Court of Justice “when questions of international law are referred to it, and on the whole body of international lawyers throughout the world, to interpret and apply fairly and impartially, recognized rules of international law, so as, in the words of our Charter, to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” See Proceedings of the First Conference of the International Bar Association, New York City, October, 1947. It is thought that similar considerations call for an international criminal jurisdiction and for the cooperation of all jurists learned in international criminal law.

²⁰ See “La Juridiction Pénale internationale,” in Revue de Droit international (Sottile), 1948, No. 1, p. 30. It must be remembered that the Congrès international du mouvement national judiciaire français was composed of jurists from 22 countries, including France, the U.S.S.R., the U. K. and the U. S., which met in Paris, Oct. 24–27, 1946, and unanimously adopted a resolution recommending that “the punishment of crimes against humanity should be provided for in an international code and that an international criminal jurisdiction should be set up as soon as possible.” See Revue internationale de Droit pénal,” 1948, Nos. 3–4, p. 384. The International Permanent Committee for the Study of the Punishment of Crimes against the Law of Nations, which met in Luxembourg May 14–16, 1947, recognized that “the diversity of the methods of repression in various countries responsible for the prosecution of war crimes under domestic law makes it clear that it would be desirable to now assign the trial of war criminals to a permanent international criminal jurisdiction, where not only judges from the countries victims of the aggression would sit, but also judges from neutral countries and even perhaps from the countries of which the accused are nationals.” See Revue de Droit pénal et de Criminologie, 1948, N0. 9, p. 826. The 8th International Conference for the Unification of Penal Law, held in Brussels, July 10–12, 1947, adopted a resolution recommending that the punishment of crimes against humanity “should be organized on an international level and ensured through an international criminal jurisdiction, whenever the delinquents are governing officers, organs of the State or protected by a State and also when the punishment on a domestic level is failing.” See Acts of the Conference, p. 288. The 5th International Congress of Penal Law held in Geneva July 28–31, 1947, also called for the creation of “a permanent international jurisdiction to decide conflicts of jurisdiction in penal matters either positive or negative and to take cognizance in particular of crimes against peace, of war crimes and of crimes against humanity.” See Revue internationale de Droit pénal, 1948, Nos. 3–4, p. 410. In a communication to the United Nations, the World Federation of United Nations Associations recommended that “an international criminal tribunal be set up to try cases of genocide.” See U. N. Doc. A/C.2/81, March 1, 1948. The 2nd Conference of the International Bar Association, held at The Hague, Aug. 16–21, 1948, submitted to its symposium on international penal law, the question of the procedure to be applied for the arrest, trial, judgment and punishment of persons charged with offenses under international criminal law. The symposium unanimously voted a resolution calling for the creation of an international criminal jurisdiction. See Revue de Droit pénal et de Criminologie, 1948, No. 1, pp. 58, 59. The International Conference of the Bed Cross held in Stockholm, Aug. 20–30, 1948, by its resolution 23 directed the International Committee of the Bed Cross to proceed in its work on the question of punishment for violations of humanitarian conventions. The Committee drafted a variety of projects which, inter alia, contemplated the possibility of an international court to take cognizance of such crimes. The 37th Interparliamentary Conference which met in Rome Sept. 6–11, 1948, in a unanimous resolution stated that “the collectivity of States must adopt as soon as possible an international criminal code and create an international criminal court for the punishment of crimes against peace, war crimes and crimes against humanity, including in particular the crime of genocide.” This resolution was communicated to the United Nations. See U. N. Doc. A/C.3/221, Oct. 5, 1948.

²¹ The importance of a codification of substantive law was also recognized at the meeting of May 24, 1949, of the International Law Commission. Following a statement by Mr. Roberto Cordova concerning the need for making charges precise, Mr. A. E. F. Sandström urged that all questions connected with the principle nullum crimen sine lege should be resolved, “in view of the fact that the Commission was called upon to prepare a draft code of crimes against the peace and security of mankind whieh would contain a list and definition of such crimes.” See U. N. Doc. A/CN.4/SR.26, p. 7. The International Bar Association on Aug. 6, 1949, set up a committee for the study of a draft code of crimes against peace and security of mankind and that to insure the functioning of a permanent jurisdiction whose creation was contemplated by the 2nd Conference of the International Bar Association at The Hague, 1948, as fundamental for the maintenance of peace.

²² Crimes against the peace might be assimilated to murder for purposes of applying domestic law. On the choice of the applicable law, see, for instance, Art. 17 of the draft for an international criminal court established by the Committee of Experts of the League of Nations, Doc. C. 222. M. 162. 1937, and Art. 21 of the Convention for the Creation of an International Criminal Court, League of Nations Doc. C. 94. M.47. 1938. V. Following the same consideration on the legality of the punishment, nulla poena sine lege, Mr. Ricardo Alfaro proposed on May 26, 1949, to the International Law Commission “to establish at least the maximum sentenee for criminals in the formulation of the principles.” See U. N. Doc. A/CN.4/SR.28, p. 14.

²³ See Politis, N., Les Nouvelles Tendances du Droit international, p. 135 Google Scholar. Starting from a different point of view and without referring to an international criminal court, Mr. Vladimir Koretsky proposed at the meeting of the International Law Commission of May 26, 1949, that any person committing acts which constitute crimes under international law should be held responsible for such acts, subject to the existence of appropriate international agreements, whether or not the acts in question constitute crimes under the domestic law of the country on whose territory they had been committed. See U. N. Doc. A/CN.4/SB.25, p. 17.

²⁴ See N. Politis, op. cit., Ch. III : Le Droit pénal international.

²⁵ See Politis, N., Acts of the Congress, p. 418 Google Scholar. It is noteworthy that Professor Donnedieu de Vabres did not intend always to exclude individual responsibilities before an international court. In his various works he has recognized the need for trying rulers accused of international crimes in an international court. See, in particular, Principes modernes du Droit pénal international, p. 417; Traité de Droit criminel, pp. 1036 ff.; Cours de Droit criminel approfondi, pp. 39 ff.

²⁶ For bibliography see Pella, V. V., La Guerre-crime et les Criminels de guerre, pp. 58–67 Google Scholar.

See the resolution quoted above, adopted in 1925 by the Interparliamentary Conference of Washington, and the resolution voted in 1926 by the First International Congress on Penal Law, Brussels, 1926. See also the drafts for an international criminal court adopted in 1926 by the International Law Association, and in 1928 by the International Association of Penal Law.

²⁸ U. N. Doc. A/AC.10/34, May 27, 1947.

²⁹ See Draft for the Creation of an International Criminal Jurisdiction, memorandum from France, U. N. Doc. A/AC.10/21, May 15, 1947.

³⁰ See U. N. Doc. A/C.6/236, Oct. 16, 1948. The U. K. Delegation, together with the Belgian Delegation, then presented a joint amendment in which only the civil responsibility of the state was contemplated. Since the British Delegation wished that the International Court of Justice should decide first of all upon the international responsibility of the state, after which practical measures could be considered, it is obvious that the Court at present has no jurisdiction to determine the penal responsibility of states. See U. N. Doc. A/C.6/SR.103, Nov. 13, 1948.

³¹ See a list of penal sanctions and measures of safeguard applicable to states in the “Plan d’un Code répressif mondial,” Revue internationale de Droit pénal, 1935, pp. 348 ff.

³² See Roux, J. A., “La responsabilité pénale des collectivités,” Revue de Droit international (Sottile), 1948, p. 51 Google Scholar.

³³ See this Journal, Supp., Vol. 39 (July, 1945), p. 182. Cf. Sheldon, Glueck, The Nürnberg Trial and Aggressive War, pp. 47–49 Google Scholar, and Alexander N. Sack, War Criminals and the Defense of Act of State in International Law.

³⁴ See Jessup, Philip C., A Modern Law of Nations, p. 179 Google Scholar. The “Plan d’un Code répressif mondial,” loc. cit., proposed the primacy of international criminal law for the punishment of international crimes even when they result from an obligation under domestic law.

³⁵ See a luminous study by Alexander N. Sack, War Criminals and the Defense of Superior Orders in International Law. See also Coste-Floret, P., “La répression des crimes de guerre et le fait justificatif tiré de l’ordre supérieur,” Dalloz, July 12 and 19, 1945.Google Scholar

³⁶ See, on crimes against the peace, some very interesting questions raised by the Chairman of the International Law Commission, Judge Manley O. Hudson, at the meeting of May 25, 1949, U. N. Doc. A/CN.4/SE.27, p. 3.

³⁷ See also the definition of crimes against humanity proposed at the 8th International Conference for the Unification of Penal Law (Brussels, 1947), in the General Report by M. J. Y. Dautricourt, and in various national reports, Acts of the Conference, pp. 47–64, 108–175 and 227–228; and an outstanding article by Egon, Schwelb, “Crimes against Humanity,” in the British Year Book of International Law, 1946, pp. 178–226 Google Scholar.

³⁸ International Law Commission, Summary Record, May 26, 1949, U. N. Doc. A/CN.4/SR.28, p. 7.

³⁹ No discrimination should be made between belligerents. The justice or injustice of the cause has no connection with violations of the law of war. See Donnedieu de Vabres, in U. N. Doc. A/AC.10/34, May 27, 1947, p. 9, and Pella, Y. Y., La Guerrecrime et les Criminels de guerre, pp. 47–49 Google Scholar. Supporting this view, Mr. Shuhsi Hsu made a proposal to the International Law Commission at the meeting of May 31, 1949. U. N. Doc. A/CN.4/SB.30, p. 3. On the punishment of war crimes in general see two excellent articles by Manfred, Lachs, “Crimes de guerre-Délits politiques,” Revue de Droit international (Sottile), 1945, pp. 10 ff.Google Scholar, and Herzog, J. B., “Les principes juridiques de la répression des crimes de guerre,” Revue pénale suisse, 1946, pp. 277 ff.Google Scholar See also Pierre, Boissier, “La répression des petits crimes de guerre,” Revue internationale de Droit pénal, 1948, Nos. 3–4, pp. 293–309 Google Scholar, and Gaspard, A., “La répression des attentats aux conventions humanitaires,” ibid., pp. 385–390 Google Scholar.

⁴⁰ See draft convention for the protection of premiers droits de l’homme prepared by the Commission française du droit commun international, Revue internationale de Droit pénal, 1948, pp. 385 ff. See also René, Brunet, La Garantie internationale des Droits de l’Eomme, Ch. V: “Les garanties d’ordre pénal,” pp. 342–357 Google Scholar, and his note on the proposals of Frangulis, A. to the League of Nations for an international judicial safeguard of human rights, Dictionnaire diplomatique, Vol. IV, pp. 337–339 Google Scholar. In connection with these questions, a significant address was delivered by A. A. Berle, Jr., at Freedom House, New York, May 4, 1949, in the presence of Mrs. Eleanor Roosevelt, under the auspices of the International League for the Rights of Man.

⁴¹ See Pella, V. V., La Guerre-crime et les Criminels de guerre, p. 35 Google Scholar.

⁴² See id., and also observations by MM. Gilberto Amado and Ricardo Alfaro at the meeting of the International Law Commission, May 26, 1949, U. N. Doc. A/CN.4/SB.25, pp. 17–18.

⁴³ See the opinion of Professors Donnedieu de Vabres and V. V. Pella as general rapporteurs on the question of international jurisdiction at the First International Congress of Penal Law, concurred in by the Congress. Acts of the Congress, pp. 597–601.

⁴⁴ Insofar as concerns “true piracy,” jurisdiction primarily belongs to the captor state. As to universal jurisdiction in this case, see Pella, V. V., “La répression de la piraterie,” Recueil des Cours de l’Académie de Droit International de La Haye, Vol. 15 (1926)Google Scholar.

⁴⁵ Some of these cases could have been resolved by means of a system such as was proposed by the United States Delegation in matters of genocide. Accordingly, failing proper national courts, the jurisdiction of an international tribunal “shall be subject to a finding that the State in which the crime was committed had failed to take appropriate measures to bring to trial or had failed to impose suitable punishment upon those convicted of the crime.” U. N. Doc. A/C.6/235.

⁴⁶ See the opinion of Professor Jean Spiropoulos at the meeting of the International Law Commission, May 31, 1949, mentioning that there may be crimes against peace and security of mankind other than those listed in the Charter of the Nürnberg Tribunal, U. N. Doc. A/CN.4/SE.30, pp. 10, 11.

⁴⁷ In the expression “inter-State,” state is intended to refer only to states having an independent international personality.

⁴⁸ See Donnedieu, de Vabres, Droit pénal approfondi, pp. 2–4 Google Scholar. In maintaining the term “inter-State Penal Law” applied by the writer to this new branch of law as early as 1925 in his book, La criminalité collective des Etats, M. Donnedieu de Vabres recognized that “the expression has the advantage of emphasizing the autonomy and special character of international penal law as traditionally understood. The distinction between international criminal law considered in its classical aspect and interstate criminal law is just as useful as that between private international law and public international law on which it is founded. The first has to do with the sanction of private relations. The second with the sanction of international relations under public law.” It is obvious that, as soon as a juridical order is set up, the best name for this new branch of law would be supernational criminal law. See the writer ‘s communication to the Academie des Sciences morales et politiques de l’Institut de France: “Fonctions pacificatrices du droit pénal supranational et fin du système traditionnel des traités de paix,” Feb. 17, 1947, p. 15. See also two most valuable studies by Joseph Dautricourt, “Le Droit pénal dans l’ordre public universel,” Revue de Science criminelle et de Droit pénal comparé, 1948, No. 3, pp. 481–519, and by Antoine, Sottile, Les Criminels de Guerre et le Nouveau Droit Pénal International, pp. 17 ff.Google Scholar

⁴⁹ The option by the states between national or international criminal jurisdictions was provided in Art. 2 of the 1937 Convention for the Creation of an International Criminal Court and in Art. 6 of the 1948 Convention for the Prevention and Repression of Genocide. The London International Assembly in 1941 proposed also, besides some cases of compulsory jurisdiction, other cases of optional jurisdiction of an international criminal court over crimes in respect of which a national court of any of the United Nations had jurisdiction, but which the state concerned did not wish, for political or other reasons, to try in its own courts. An optional jurisdiction of the International Criminal Court could be contemplated also for certain offenses that some states would have already defined in their own domestic legislation, such as war propaganda, diffusion of false documents or false news of such a nature as to endanger international relations, as well as crimes prepared on the territory of a state, and directed against the independence and territorial integrity of another state. For many years a powerful opinion has supported the idea of the protection of international peace through domestic legislation. See proposals of E. St. Rappaport for the repression of war propaganda presented in 1927 at the First International Conference for the Unification of Penal Law, held in Warsaw. See Acts of the Conference, pp. 39 ff. See also: Pella, , “Mémo-randum élaboré à la demande de la Conférence du Désarmement, sur l’adaptation des législations nationales au stade actuel du développement de la vie internationale,” (Doc. Conf. D.-C. D. M. 20, June 23, 1932)Google Scholar, and an important survey by Mirkine-Guet-zévitch, , Le Droit Constitutionnel et l’organisation de la paix, Ch. IV.E: “Le droit interne de la paix,” Recueil des Cours de l’Académie de Droit International de La Haye, Vol. 45 (1933), pp. 746–766 Google Scholar.

⁵⁰ This text was adopted by the First International Congress of Penal Law in July, 1926, on the proposal of Prof. Donnedieu de Vabres and the present writer as general rapporteurs of the congress, and with an amendment by Mr. Henri Rollin concerning the revision of incompatible sentences. See Acts of the Congress, Voeu No. 2, p. 634; and the note by the French delegate in the Commission for the Progressive Development of International Law and its Codification, U. N. Doc. A/C. 10/21, May 15, 1947.

⁵¹ See Scelle, , Droit international public (3rd ed.), p. 958 Google Scholar.

⁵² See Voeu No. 5 of the Resolution of the International Association of Penal Law.

⁵³ As to the preparatory work for the creation of the International Military Tribunal which sat at Nürnberg, it is interesting to recall the statements of Sir David Maxwell Fyfe, Eobert H. Jackson, Eobert Falco, André Gros, I. T. Nikitchenko and A. N. Trainin, in International Conference on Military Trials, London, 1945 (Department of State Publication 3080, February, 1949).

⁵⁴ See U. N. Doc. E/447, June 26, 1947, Draft No. 2, Arts. 2–6.

⁵⁵ See article by Prof. Donnedieu, de Vabres, “La Cour Permanente de Justice Internationale et sa vocation en matière criminelle,” Revue internationale de Droit pénal, 1924, Nos. 3–4 Google Scholar.

⁵⁶ See Pella, V. V., La criminalité collective des Etats, pp. 281 ff.Google Scholar

⁵⁷ See U. N. Doc. A/AC.10/21, May 15, 1947.

⁵⁸ The International Association of Penal Law studied at length what would be the impact of extreme pressure of business upon an international criminal court and offered some interesting solutions in a draft statute. If the number of judges were insufficient to man all the divisions, vacancies could be filled by drawing of lots from an electoral list of members of the international criminal court, such as is provided for the International Court of Justice in Art. VII of its Statute. See International Association of Penal Law, Draft Statute for an International Criminal Court, Arts. 13, 14 and 36, and report. See also Pella, V. V., La criminalité collective des Etats, pp. 284–285 Google Scholar, and Art. 43, Annex No. 1 for the creation of an international criminal court, in documents on the crime of genocide prepared by the Secretariat of the United Nations, Doc. E/447, June 26, 1947.

⁵⁹ Of historical interest is a suggestion of the Advisory Committee of Jurists of 1920 to the League of Nations for the creation of a High Court of International Justice competent to try crimes constituting a breach of international public order or against the universal law of nations, and providing that this court should be composed of one member for each state, to be chosen by the group of delegates of each state to the Court of Arbitration. See Report of the Proceedings of the Advisory Committee of Jurists, 1920, p. 748.

⁶⁰ See Revue internationale de Droit pénal, 1948, Nos. 3 and 4.

⁶¹ In order to insure the international independence and the authority of the judges, the electoral body should be composed of representatives of most of the members of the international community. Therefore any system restricting the right to elect judges to a limited number of Powers, such as appears in the draft of a Convention for the Establishment of a United Nations Joint Court, approved on Sept. 24, 1944, by the United Nations War Crimes Commission, should be rejected. Of course, direct appointment of the judges by governments, as provided in the charters of the Nürnberg and Tokyo Tribunals must equally be rejected.

⁶² Specialists in international criminal law were to be appointed according to the drafts of the International Association of Penal Law (Art. 2), and of the Commission française du Droit commun international (Art. 4). Professor Kelsen provided in his draft (Art. 4) “twenty-four members, seventeen members being experts in international law, seven members experts in criminal law.” See Kelsen, Peace Through Law, Appendix.

⁶³ See a similar system in the draft of the International Association of Penal Law (Arts. 4–6).

⁶⁴ See also remarks by Sir John Fischer Williams and observations by Judge Basdevant and the writer in Acts of the Conference, League of Nations Doc. C.94.M.47. 1938.V., pp. 124, 163.

⁶⁵ For these reasons the Conference of 1937 selected The Hague as the seat of an international criminal court and provided that the Begistry would be incorporated with that of the Permanent Court of International Justice. See Arts. 4 and 13 of the Convention.

⁶⁶ See Pella, V. V., La criminalité collective des Etats, “Organisation d’un Ministère public international,” 1925, pp. 287 ff.Google Scholar

⁶⁷ See Voeu No. 7 of the Resolution, Acts of the Congress, p. 364.

⁶⁸ See in the Charter annexed to the London Agreement of Aug. 8, 1945, duties of the General Prosecutors (Art. 15), and similar provisions in the Tokyo Charter of Jan. 19, 1946.

⁶⁹ U. N. Doc. E/623/Add.1, Feb. 5, 1948, Arts. 5 and 6.

⁷⁰ See also Arts. 20 and 26 of the Draft Statute of the International Association of Penal Law.

⁷¹ See U. N. Doc. E/447, June 26, 1947, Art. 2, p. 67.

⁷² See further details of the functioning of this system in Arts. 11–16 of the Draft International Convention on Crimes against Humanity, drafted by the Commission française du droit commun international, Revue internationale de Droit pénal, 1948, Nos. 3–4, pp. 382 ff.

⁷³ See Art. 40 of the draft of the International Association of Penal Law.

⁷⁴ See Art. 27 of the 1937 Convention for the Creation of an International Criminal Court.

⁷⁵ See Art. 29 of the Convention quoted above. On the proposal of MM. Ricardo Alfaro and Georges Scelle, the International Law Commission at its meeting of May 26, 1949, recognized the international value of the right of defense of all accused persons. U. N. Doc. C/CN.4/SB.28, pp. 14–17. See also Manfred, Simon, Mémoire relatif à la Convention des Droits de l’Homme et au Droit pénal international, August, 1949 Google Scholar, to the International Association of Penal Law. The author properly stressed that the right to be defended on an international plane as well as on a national plane is more than a procedural guarantee. It is a fundamental principle of justice and a basic human right.

⁷⁶ See Art. 31 of the 1937 Convention for the Creation of an International Criminal Court.

⁷⁷ See also Art. 46 of the draft of the International Association of Penal Law.

⁷⁸ Art. 26 of the 1926 draft of the International Law Association, and Art. 47, of the 1928 draft of the International Association of Penal Law both provided for the right of the court to require from states the communication of all documents whose exhibition would be of assistance in the trial, and to call all witnesses except chiefs of state, as well as all experts, such as military experts, diplomats, scientists, etc.

⁷⁹ See also Art. 44 of the draft of the International Association of Penal Law, and Art. 34 of the 1937 Convention.

⁸⁰ Art. 22 of the draft of the International Law Association, and Art. 62 of the draft of the International Association of Penal Law.

⁸¹ See Art. 64 of the draft of the International Association of Penal Law and Art. 43 of the 1937 Convention.

⁸² See Art. 68 of the draft of the International Association of Penal Law.

⁸³ See Art. 40 of the 1937 Convention.

⁸⁴ Art. 37 of the draft of the International Association of Penal Law provided that the international penal court, however, should not have to condemn anyone to death.

⁸⁵ See Art. 39 of Draft No. 1 for the creation of an international criminal court, U. N. Doc. E/447, June 26, 1947, and Donnedieu, de Vabres, Rapport sur l’organisation d’une juridiction pénale internationale, Institute of International Law, Brussels, 1948, p. 6 Google Scholar.

⁸⁶ See Yepes, J. M., “Les accords régionaux et le droit international,” Recueil des Cours de l’Académie de Droit International de La Haye, Vol. 71 (1947), pp. 238 ff.Google Scholar

⁸⁷ In connection with these questions, see an interesting article by Yuen-li, Liang in Tulane Law Review, Vol. XXII (March, 1948), No. 3, p. 378 Google Scholar.

⁸⁸ The Great Decision, p. 227.

⁸⁹ See Feller, A. H., “We Move, Slowly, Toward World Law,” The New York Times Magazine, June 5, 1949, p. 37 Google Scholar.

⁹⁰ See Blocq-Mascart, , “La loi internationale à Nuremberg,” Le Monde français, Vol. IV (1946), p. 27 Google Scholar.

⁹¹ See Le Monde, July 26, 1949.

⁹² See a suggestive statement by Prof. Thomas Givanovitch, at the First International Congress of Penal Law, Acts of the Congress, p. 575.

⁹³ See A. H. Feller, loc. cit., p. 10.

⁹⁴ Address on the “Progress of International Criminal Law under the United Nations,” delivered in Washington on July 27, 1949, to the United Nations League of Lawyers.

⁹⁵ Carton, de Wiart, “Grands criminels de guerre,” Le Soir, May 29, 1946.Google Scholar