duce a new principle into the public law of Europe, viz., that the victorious Power has the right to demand the extradition of persons merely accused of violations of the laws and usages of war, without first submitting the presumptive evidence to the national jurisdiction with which, under existing principles and practice, the granting of extradition lies. It does not even profess to grant trial by an independent tribunal not even a tribunal independent within the national area, but declares that the trial shall take place before " military tribunals." Nor does it distinguish what law is applicable. The guilty are to be " sen- tenced to punishments provided by law." The word " military," as has been shown, was suppressed. What law? The subjects of any state are bound by the laws of that state, not by laws of a foreign state which may be different from their domestic laws, unless the incriminated acts have been committed within the jurisdiction of the foreign state.
The Report of the Commission of the Allied and Associated Powers on the Enforcement of Penalties recommended the creation of a High Tribunal to be composed of representatives of such Powers exclusively, and that the punishment applicable should be such as " may be imposed for such an offence or offences by any court in any country represented on the High Tribunal or in the country of the convicted person." (Annex 4.) The Japanese delegates on the commission placed a reserva- tion on record. "A question," they said, " may be raised whether it can be admitted as a principle of the law of nations that a High Tribunal constituted by belligerents can, after a war is over, try an individual belonging to the opposite side, who may be pre- sumed to be guilty of a crime against the laws and customs of war. It may further be asked whether international law recog- nizes a penal law as applicable to those who are guilty."
In a closely reasoned memorandum of reservations by the American representatives on the commission, Mr. Robert Lan- sing and Dr. James Brown Scott, it was pointed out that a " judicial tribunal only deals with existing laws," and that " an act could not be a crime in the legal sense of the word unless it were made so by law, and that the commission of an act declared to be a crime by law could not be punished unless the law pre- scribed the penalty to be inflicted "; and they concluded their memorandum as follows: " They submit their views, rejected by the Commission, to the Conference, in full confidence that it is only through the administration of law, enacted and known before it is violated, that justice may ultimately prevail inter- nationally, as it does between individuals in civilized nations."
Nevertheless, they submitted a statement of the principles which seemed to them should determine what may be con- sidered inhuman and improper acts of war.
This statement is valuable as a thoughtful resume for future guidance :
1. Slaying and maiming men in accordance with generally accepted rules of war are from their nature cruel and contrary to the modern conception of humanity.
2. The methods of destruction of life and property in conformity with the accepted rules of war are admitted by civilized nations to be justifiable and no charge of cruelty, inhumanity, or impropriety lies against a party employing such methods.
3. The principle underlying the accepted rules of war is the necessity of exercising physical force to protect national safety or to maintain national rights.
4. Reprehensible cruelty is a matter of degree which cannot be justly determined by a fixed line of distinction, but one which fluctuates in accordance with the facts in each case, but the mani- fest departure from accepted rules and customs of war imposes upon the one so departing the burden of justifying his conduct as he is pritna facie guilty of a criminal act.
5. The test of guilt in the perpetration of an act, which would be inhuman or otherwise reprehensible under normal conditions, is the necessity of that act to the protection of national safety or national rights measured chiefly by actual military advantage.
6. The assertion by the perpetrator of an act that it is necessary for military reasons does not exonerate him from guilt if the facts and circumstances present reasonably strong ground for establishing the needlessness of the act or for believing that the assertion is not made in good faith.
7. While an act may be essentially reprehensible and the perpe- trator entirely unwarranted in assuming it to be necessary from a military point of view, he must not be condemned as wilfully vio-
lating the laws and customs of war or the principles of humanity unless it can be shown that the act was wanton and without reason- able excuse.
8. A wanton act which causes needless suffering (and this includes such causes of suffering as destruction of property, deprivation of necessaries of life, enforced labour, etc.) is cruel and criminal. The full measure of guilt attaches to a party who without adequate reason perpetrates a needless act of cruelty. Such an act is a crime against civilization, which is without palliation.
9. It would appear, therefore, in determining the criminality of an act, that there should be considered the wantonness or malice of the perpetrator, the needlessness of the act from a military point of view, the perpetration of a justifiable act in a needlessly harsh or cruel manner, and the improper motive which inspired it.
When the Powers handed in their list of persons accused and called upon Germany to deliver them up for trial, it became evident that no German Government would be powerful enough to override the refusal of the police and military to act, or of the public to cooperate in the necessary arrests. Maturer con- sideration of the question led the Powers to agree that it would be better to leave the trial of the accused to the Supreme Court of Germany herself. Trials eventually took place, and certain convictions were rendered and acquittals granted.
It is of the greatest value to mankind that crimes of war should be made punishable after its termination, but circumstances have shown, what was apparent from the first to unprejudiced observers, that the only proper jurisdiction before which they can be brought is one in which the final word would rest with judges accepted by both parties.
The advisory committee of jurists which was created by the Council of the League of Nations, and which sat at The Hague from June 16 to July 24 1920, recommended the institution of a world court competent to try criminals against international public order. Their .resolution was for the establishment, by the Council and Assembly of the League of Nations, of a new court called the " High Court of International Justice," with jurisdiction over offences " against international public order and the universal law of nations " which shall be referred to it by the assembly or council. This court to consist of one member for each State, to be selected by the state groups in the panels of the Court of Arbitration, and to have power to determine the rules of procedure, define the crime, fix the penalty and prescribe the means of enforcing the judgment.
12. Permanent Court of Justice. Article 14 of the covenant for the establishment of a League of Nations provides also for the establishment of a " Permanent Court of International Justice." The creation of such a court had been proposed by the United States at the Hague Conference of 1907, and a plan for its constitution and working was appended to the Protocol of the Convention there adopted. Under the article in question, the court is to be competent to hear and determine any dispute " which the parties thereto may submit to it." l
Early in 1920 the Council of the League took the question in hand, and a committee of jurists was appointed, which met at The Hague (June i6-July 24 1920) to prepare plans for the establishment of the court. The committee had before it the plan which was in principle approved by the second Hague Conference in 1907, but which had been blocked by inability to frame an acceptable method of choosing 15 judges in a man- ner satisfactory to small as well as great nations. In addition to this plan, n official projects of recent date and a larger number of non-official projects were presented to the com- mittee. The work of the committee was urgent, the Treaty of Versailles in several places having provided for appeals to a court of international justice (cf. Part XII. of the Treaty,
'Article 14 reads as follows: " The Council shall formulate and submit to the members of the League for adoption plans for the establishment of a permanent Court of International Justice. The ^ourt shall be competent to hear and determine any dispute of an .international character which the parties thereto submit to it. The -ourt may also give an advisory opinion upon any dispute or ques-
- ion referred to it by the Council or by the Assembly." The French
- ext is different. It reads, instead of as printed in italics, " gue les
Parties lui soumettront." The German translation follows the French text. The word " thereto " in the English text leaves no doubt as to the real meaning.
