Jessup

:}

It has already been noted that the trial of the major war crimi- nals has set a pattern for the future in* regard to the substantive law 4nd the general theory in accord with which procedures will need to be established.42 Among the precedents which will be utilized will undoubtedly be the conference convened under League of Nations auspices to study the international suppression and punishment of terroristic crimes. This effort was the result of the assassination of

King Alexander of Yugoslavia in Marseilles in 1934. It led to the drafting of two conventions dealing with the definition of such crimes and the trials of their perpetrators before an international criminal court, but the conventions were never brought into force.48

One of the difficulties which will confront the enforcement of an

international criminal code will be the fact that punishment cannot take place until the criminals have been detected and apprehended.

If they are successful in initiating a war, they must first be defeated by the use of collective international action. If their conspiracy to initiate a war is to be detected before the war breaks out, one must

contemplate the existence of an international Bureau of Investiga-

tion and international power to arrest persons who may be directing the government of one of the states which is a member of the inter-

national organization. It is hardly necessary to point out that the organization of the world for peace has not yet progressed to the point at which a solution of such difficulties seems feasible.

Antiforeign sentiment has inspired numerous instances of mob violence against particular alien groups. Some of the most lamentable cases have taken place in the United States with Chinese and Italian nationals as the victims.44 Such cases have been considered in inter-

42 In view of the position taken in this book, as explained in the Introduc-

tory Chap, and Chap. II, it is unnecessary to argue here the accuracy of the statement of the Nurnberg Tribunal that it has long been recognized that

international law imposes duties and liabilities on individuals as well as on states.

The Tribunal cited in support of its view the decision of the Supreme Court of the United States in Ex parte Quirin, 317 17.S. i (1942); see Fite, op. cit.9

supra note 18, p. 12.

43See League of Nations Doc. A.24(b). 1936. V., V. Legal 1938. V. 2. and

C. 94. M. 47. 1938. V., V. Legal 1938. V. 3; Hudson, International Tribunals,

Past and Future (1944), 185; Sottile, "Le Terrorisme international," 65 Recueil des cours (1938), 91.

44 See 2 Hyde, sec. 290.

national law with reference to the responsibility of the state in whose

territory the atrocity takes place. The state is considered responsible

When it has failed to use the means at its disposal to prevent the out- rage or to punish leaders of the mob. The question of state responsi- bility for injury to aliens has been considered in Chapter V and will not be reconsidered here. The procedure for the punishment of the individual leaders of the mob would not be different in principle from the procedure for punishing individuals for violations of other rules of international law. In mob violence cases, where th? mob is

definitely inspired by hostility to persons of another nationality, inter- national law should posit the liability of the individual for a breach of that law. The practical difficulty is that in such cases it is fre- quently difficult to identify the members of the mob or to find wit- nesses who are willing to testify to such identity. The established

procedure of holding the state responsible in such cases is probably the only way in which atonement can be made to the injured indi- viduals or their families. In most countries it may be assumed that if

the guilty individuals can be identified, the injured person or his representative can institute a civil suit and may recover damages. The problem from the point of view of a revised international law recognizing the position of the individual is rather one of the juris- diction of the courts of other countries on the principle of univer- salism which is utilized in case of piracy, or one of the establishment of international criminal courts. The general arguments in favor of the territorial theory of criminal jurisdiction, such as the availability of witnesses, lose their force when it is apparent that an antiforeign bias pervades a community and makes it impossible to find locally a jury which will convict or even a judge who will impartially preside and sentence in case of conviction. But given the difficulties of proof and the natural reactions of judge or jury in the state of which the victims were nationals, it is by no means certain that a fair trial would be obtained in that state if the crime of mob violence were made an

extraditable one from the state where the outrage occurred to the state of which the victims were nationals. It is, indeed, the distrust

of the impartiality of the courts of other states that frequently inspires the unwillingness of governments to remit their citizens to the final judgment of such courts. The problem of the establishment of international criminal courts has already been considered, and nothing

needs to be added with reference to this particular type of inter- national crime.

Where antiforeign bias results in outbreaks of mob violence, there is little occasion for sympathy with the members of the mob or the motives that inspire them. The situation is different in a number of historic instances of boycotting foreign goods and commercial establishments. The most familiar cases are those of the Chinese boycotts of Americans, British, and Japanese and the Turkish boycotts of Austrians and Greeks.45

There seems to be general agreement that where individuals merely exercise their liberty to refrain from buying particular goods

or from working at particular tasks, and do not accompany their acts with violence or intimidation, international law cannot charac-

terize the acts as illegal or hold the government responsible. If the government supports or instigates the action, it may be re-

sponsible, particularly under usual obligations expressed in treaties of commerce. In 1901 Secretary of State Hay denied liability

of the United States for injuries suffered by Chinese in boycotts

ported in the press of longshoremen declining to load ships with cargoes for the Franco Government of Spain or for the British and

Dutch forces engaged in hostilities with the nationalists in Java, a type of pressure used in the Turkish boycotts of 1908 and 1909. From the standpoint of new international law characterizing certain violent acts of individuals as criminal, it may be suggested that an appropriate standard would be that which the local law utilizes for

Boycotts (Tentative Draft), Japanese Council, Institute of Pacific Relations

(1933). The Chinese boycotts are discussed by Bouve, "The National Boycott as an International Delinquency," 28 Am. J. Int. L. (1934)* 19^ The Turkish boycotts of 1008 and 1009 are described in Laferriere, "Le Boycott et le droit international," 17 Revue generale de droit international public (1910), 288; see also Sefe*riades, Reflexions sur le boycottage en droit international (1912).

48 6 Moore, op. cit., supra note 15, p. 675.

47 League of Nations, Doc. A (Extr.). 22. 1933. Vn, VH. Political 1933.

vn. 2.

criterion is the use of coercion of other individuals to bring about a loss of trade.48 The injured individual may bring a civil action for

damages and may secure an injunction to restrain the conspiratorial action; but unless violence is used the boycotting action will prob- ably not be the basis of a criminal prosecution.

From the viewpoint of international relations it is clear that organized boycotts are generally likely to be attended by violence

and to have a directly injurious effect on international relations. It is doubtful whether in such cases a modernized international law

should seek to distinguish between tort and criminal law. If individ- uals resort to any form of violence inspired by hostility to another people or government, their acts should be characterized as illegal and they should be subject to trial in whatever international forum is established for that purpose. In the case of a boycott, procedures might be adopted whereby the action could be instituted by the persons damaged, and if the boycotters were found guilty any fine assessed might be collected for the benefit of the injured party.

Realistically, however, it must be recognized that in cases of boycott and of mob violence the guilty persons may be judgipent-proof so

far as adequate compensation to the damaged party is concerned, and that if punishment is to serve as a deterrent some penalty other than a fine may be necessary.

On the substantive side it is necessary to ask whether a modern- ized international law should content itself with cognizance of cases of violence inspired by an antiforeign bias. The international reper- cussions of such cases give them a special character, but history indi- cates that anti-racial bias as the instigation of group violence is equally likely to rouse international issues irrespective of nationality.

This has been due in part to a general humanitarian sentiment which is shocked by such outrages and in part to the distribution of mem- ber^ of racial groups through a number of countries. Thus the lynching of Negroes in the southern states of the United States may arouse a humanitarian revulsion in other countries as well as in the United

States itself, but there are not large, organized, politically active groups of Negroes in other states to take up the cudgels on behalf of the fellow members of their race. On the other hand, anti-Jewish

pogroms in any part of the world stir other Jewish groups sufficiently

41 Bouv, op. cit., supra note 45, p. 24.

well organized to make their voices heard. Aside from any racial bond, the religious factor may have the same consequences, as in the response of Christian groups in various countries to the massacres of Christian Armenians in Turkey.

Granted the acknowledgment of individual rights protected ,by international law, all such cases must be considered to be matters of

international concern, and those who use violence against national,

racial, or religious minorities should be considered "violators of the laws of nations," to use the old phrase of the famous Act of 7 Anne, which in 1708 provided penalties for those who violated the immuni- ties of ambassadors and other public ministers.

A major step was taken in this direction by another resolution of the General Assembly of the United Nations adopted on December

13, 1946 relative to the crime of genocide. This term has attained wide currency since it was coined by Dr. Lemkin and described in his book "Axis Rule in Occupied Europe," published by the Car- negie Endowment for International Peace in 1944. Lemkin defined

the term as meaning "the destruction of a nation or of an ethnic group." The General Assembly expanded the definition in declar-

ing:

Genocide is a denial of the right of existence of entire human groups, as homicide is a denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to

humanity in the fornj of cultural and other contributions rep- resented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been

destroyed, entirely or in part.

The punishment of the crime of genocide is a matter of international concern.

The General Assembly therefore

Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission

of which principals and accomplices whether private individ- uals, public officials or statesmen, and whether the crime is

committed on religious, racial, political or any other grounds

are punishable;

Invites the Member States to enact the necessary legisla-

tion for the prevention and punishment of this crime;

Recommends that international cooperation be organized between States with a view to facilitating the speedy preven-

'tion and punishment of the crime of genocide; and, to this end,

Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft con- vention on the crime of genocide to be submitted to the next regular session of the General Assembly.4*1

The fact that this resolution mentions "political groups" as well as racial and religious groups among those which may be the victims

of genocide suggests very broad applications of the principle. There is also much significance in the fact that the task of elaborating a convention on the subject is entrusted to the Economic and Social Council, perhaps for consideration by its Commissioji on Human

Rights. But it is also notable that at this stage the General Assembly suggested that enforcement and punishment should be left to the states, which are urged to enact national laws on the subject. It is true that "international cooperation" is also recommended, but there is no repetition of the language used in the resolution on the crime of aggressive war relative to an International Criminal Code. It remains to be seen whether proposals will be submitted for the trial before an international tribunal of persons or groups accused of committing

or plotting genocide.

CIVIL WARS AND REVOLUTION

As suggested in Chapter III, the problem of international legal regulation of civil war and revolution is a difficult one. As organized societies gain in stability the suppression of forcible changes in gov- ernment becomes a normal and natural task of the community. Thus,

in the United States, political leaders no longer repeat the words of

Thomas Jefferson: "I hold it that a little rebellion now and then is a

49 UN Journal, No. 58 Supp. A-A/P.V./55, 476.

rights are being disregarded. If the state has relinquished its right to resort to war, so the individual must relinquish any right to over- throw his o^jm government by force. This, in pragmatic terms, means merely that he adds to the usual risks of rebellion the risk of international aid to the government he attacks. From the point of view of the ethical right of revolution, the right is inalienable; its

exercise is forgone when government provides the processes for cor- recting abuses by nonviolent means. Such a conclusion would throw upon the international community, now organized in the United Nations, a heavy burden. The international community would have to take cognizance of and remedy situations within states which are provocative of rebellion. It would have to be prepared, as the federal government of the United States is prepared, to render armed assist- ance to any of its members whose local forces are inadequate to pre- serve domestic peace and tranquillity. But, as has been pointed out

in Chapter III, the history of the recognition policy of states, and particularly of modern trends toward collective interest in the non- recognition of governments which assume or maintain power by violence, teaches that international interference in such imatters may lead to undesirable domination of the internal situation in a state and

be productive of more international friction than it eliminates. The

difficulty is one of organization and procedures; as these develop, desirable international results may be achieved through such collec-

tive interventions. The United Nations as now organized is not capable of exercising such a role. The recent debates on Franco Spain are illustrative of this weakness. Until international organiza- tion or international government reaches a stage of greater political maturity, international law must avoid stretching its arm into a state in case of civil war. As under traditional international law, the situa-

tion may come under legal regulation when in its preparation or in

its operation it projects its disturbing influence outside the bound- aries of a single state. Such a situation may be said to exist where a

territory is already under a form of delegated international control e.g. the mandated territory of Palestine or where the case in-

volves nonself-governing peoples to whom the obligations of 'Chapter

XI or XII of the Charter apply. Even the first rudimentary forms of world government, as that term is commonly used by its proponents, would necessarily leave to the subordinate political units a large

measure of responsibility for the maintenance of local peace. In a political unit as large and complex as is this terrestrial globe, a local civil war might well be conceived to have only the magnitude of an individual murder in the United States today.