The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 9780191635717, 2013942200, 0191635715

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OXFORD STUDIES IN MODERN EUROPEAN HISTORY General Editors SIMON DIXON MARK MAZOWER

and JAMES RETALLACK

The Birth of the New Justice Lhe Internationalization of Crime

and Punishment, 1919-1950

MARK LEWIS

OXFORD

UNIVERSITY PRESS

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Mark Lewis 2014 The moral rights of the author have been asserted

First Edition published in 2014 Impression: 1

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Acknowledgments This book began as a dissertation in European history at the University of California, Los Angeles. I was very fortunate to work with an outstanding group of scholars, Ivan T. Berend, Saul Friedlander, and Russell Jacoby of the History Department, Maximo Langer of the Law School, and David C. Rapoport of the Political Science Department. I thank them for reading and critiquing my draft proposals and chapters and offering strong encouragement at all stages. As I expanded the project into a book, researching new areas and writing new chapters, Profs. Berend and Langer again read my work and offered suggestions for improvements. I feel deeply indebted to them. A group of other scholars, including Mark Mazower, Peter Holquist, and David P. Forsythe, deserve special thanks for reading proposals and/or chapters,

critiquing my work, and suggesting other works to read. As a graduate student, I benefited from the advice of Ritika Prasad and Pablo Vivanco, both of whom read my work. All the aforementioned individuals, themselves very dedicated and creative, gave me the confidence to proceed. My thanks also extend to scholars at the City University of New York and the College of Staten Island, which I joined in 2009. I was very fortunate to participate

in the Faculty Fellowship Publication Program, participating in a writing group with Cristina Balboa, Aaron Freundshuh, Jennifer Onyedum Johnson, Teresita Levy, Isabel Martinez, Megan Moran, and our inspiring mentor Virginia SanchezKorrol. This group of creative scholars, all coming from different fields, read several chapters of this book, offered a wealth of comments, and helped keep me on track during the revision process. My colleagues in the History Department at the College of Staten Island—Zara Anishanslin, John Dixon, Marcela Echeverri, Ben Mercer, and John Wing—critiqued an early draft introduction to this book, helping me rethink the enterprise. Catherine Lavender provided some excellent references concerning U.S. history. I would especially like to thank Jonathan Sassi, chair of the History Department at the time, and Associate Provost Deborah Vess for arranging financial assistance for a trip to Switzerland, which allowed me to add a chapter about the revision of the Geneva Conventions in 1946-49. Other institutions also provided financial support for my research and writing: the Bernard and Audre

Rapoport Fellowship (Jacob Rader Marcus Center of the American Jewish Archives), the Center for European and Eurasian Studies at UCLA, the University of California Institute on Global Conflict and Cooperation, and the UCLA/Mellon Program on the Holocaust in American and World Culture, made possible by a grant from the Andrew W. Mellon Foundation. Many archivists helped me in my search for materials. I thank the following individuals and their institutions: Hans-Robert Ammann (the Cantonal Archives of Valais, Switzerland), Fabrizio Bensi (Historical Archives of the International Committee of the Red Cross, Geneva), Rémi Dubuisson (Records and Management Section of the United Nations Office, New York), Michaela Follner (the

vi Acknowledgments Austrian State Archives, Vienna), Carol Leadenham (Hoover Institution Archives, Stanford), Bernhardine Pejovic (now retired from the League of Nations Archives, Geneva), Kevin Proffitt (the Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati), Kati Radics (Young Research Library, UCLA), David P. Rosenberg (Center for Jewish History, New York), Lyn Slome (Archives of the American Jewish Historical Society, New York), Esther Trippel-Ngai (the Records and Archives Sub-Unit of the United Nations Office, Geneva), and John Wilson (UCLA Law Library). I also wish to thank the Inter-Library Loan staff at the College of Staten Island’s Library, the New York Public Library, Bobst Library at New York University, and the Manhattan Research Library Initiative. At Oxford University Press, Christopher Wheeler, Stephanie Ireland, Cathryn Steele, and Emma Barber were consistently supportive and helpful. I gratefully acknowledge the useful comments and suggestions of the anonymous readers who critiqued my manuscript. Additional thanks go to copy editor Nicholas Bromley and proofreader Andrew Hawkey for their diligent work. Many people offered warm hospitality and friendship during my travels abroad, including Rémi Dubuisson in Switzerland, Bernhard Tuider in Austria, and the Spiropulo-Tschudi family (Alejandra, Pierre-Alain, Paloma, Nico, and Julia) in Switzerland. Finally, my family, including Betsy Garfinkle, Karen Lewis, and Sue Reith, persistently encouraged me and took an interest in my work. I especially want to acknowledge the multi-faceted help of my wife, Kimi Reith. She read various parts of this work, listened to me read and explain sections, and offered several insights which caused me to include certain new angles. I appreciate her magical creativity.

lable of Contents

Abbreviations ix Footnote Key Xi Introduction 1

Criminal Legal System 14

1. Nineteenth Century Precursors of an International

2. The Birth of the New Justice at the Paris Peace Conference 27 3. Crimes against Humanity and Crimes of Denationalization:

The Victory of Political Expediency Over Justice 64

4. Blueprints for International Criminal Courts and

Their Political Rejection in the 1920s 78

5. International Terrorism in the 1920s and ’30s: The Response of European States through the League of Nations and

the Attempt to Create an International Criminal Court 122 6. The Search for a Victim-Centered New Justice, 1942-1946:

The World Jewish Congress and the Institute of Jewish Affairs 150

Measures, 1946—48 181

7. The Genocide Convention: The Gutting of Preventative

Epilogue 274 Conclusion 290

8. Revising the Geneva Conventions, 1946-49:

Synthesizing the Old and New Justice 229

Bibliography 301 Index 335

Blank Page

Abbreviations AJA American Jewish Archives AJHS American Jewish Historical Society AIDP Association Internationale de Droit Pénal (International Association of Penal Law)

CICR Comité international de la Croix-Rouge (French name of the International Committee of the Red Cross)

CRT Committee for the Repression of Terrorism (in the League of Nations) ECOSOC — Economic and Social Council (of the United Nations)

ICPC International Criminal Police Commission, Vienna (Internationale Kriminalpolizeiliche Kommission)

ICRC International Committee of the Red Cross (English name of the Comité international de la Croix-Rouge)

ILA International Law Association ILC International Law Commission

IMT International Military Tribunal at Nuremberg LNA League of Nations Archives, Geneva OSS United States Office of Strategic Services

PV Procés-verbaux (minutes)

UN United Nations UNWCC — United Nations Commission for the Investigation of War Crimes

WFUNA World Federation of United Nations Associations

WIC World Jewish Congress

Blank Page

footnote Key In citing works in the notes, short titles have generally been used after the first reference. Works and archives frequently cited have been identified in the following way:

AICRC, CR. 238-6 Archives of the International Committee of the Red Cross, Box number-Folder number.

AJHS/P-154/2/12 Raphael Lemkin Collection, P-154/Box No./Folder No., Collection of the American Jewish Historical Society, Newton Centre, MA, and New York, NY.

Cour permanente. Procés-verbaux League of Nations, Cour permanente de justice internationale. Comité consultatif de juristes. Procesverbaux des séances du comité, 16 juin—24 juillet 1920, avec annexes. Permanent court of international justice. Advisory committee of jurists. Procés-verbaux of the proceedings of the committee, June 16th—July

24th, 1920, with annexes (La Haye: Van Langenhuysen fréres, 1920).

C.R.T./PBYV. 3(1), 21 League of Nations, Comité pour la Répression Internationale du Terrorisme. Premiére Session tenue du 30 avril au 8 mai 1935. Procés-verbaux revises, C.R.T/P.V. Meeting No., page number.

Drayton Report Report of the Bulgarian Atrocities in Serbia, William A. Drayton Papers, Box 1, Folder: “Bulgarian Military Occupation of Serbia, 1915-1918.” Hoover Institution Archives. ICRC/CR.94-1/Examen, Doc. No. — International Committee of the Red Cross Archives, CR.94-1, Examen des violations Conv. de Genéve

pendant la guerre (Circ. 203) 1921-1922, Document Number.

La Documentation Internationale, La Documentation Internationale. La Paix de La Paix de Versailles. Responsabilités Versailles. Responsabilités des auteurs de la guerre des auteurs de la guerre et sanctions et sanctions. Edited by Albert de Lapradelle. Vol. 3. Paris: Les Editions Internationales, 1930.

Lemkin-AJA/60/1/3 Raphael Lemkin Papers, Manuscript Collection No. 60, 1942-1959, Box No./Folder No., Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati Campus, Hebrew Union College, Jewish Institute of Religion.

LNA/586/10481/9557 League of Nations Archives, Geneva, Box No., Document No., Dossier No.

Report of the Ad Hoc United Nations. Economic and Social Council.

xii Footnote Key Committee on Genocide Ad Hoc Committee on Genocide, Report to the Economic and Social Council on the Meetings of the Committee Held at Lake Success, New York, from 5 April to 10 May

1948, 26 May 1948 (Lake Success, New York), UN Document E/794. UN Archives, Geneva, SOA 318/2/03 A United Nations Office Geneva, Records and Archives Sub-Unit, File Reference Code.

United Nations. General Assembly, United Nations. General Assembly. Official Sixth Committee, Summary Records (1948) Records of the Third Session of the General Assembly, Part I. Legal Questions. Sixth Committee. Summary Records of the Meetings,

21 September-10 December 1948. Paris, 1948.

WJC/C174/10 World Jewish Congress Collection, Manuscript Collection No. 361, Box No., Folder No., Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati Campus, Hebrew Union College, Jewish Institute of Religion.

Introduction Historians, legal scholars, and political scientists present different reasons why states began to support war crimes trials after World War One. Extrapolating from the British historian, Geoffrey Best, late Enlightenment thinkers wanted to reduce

suffering in war, international lawyers codified this idea during the nineteenth century, and it therefore seemed logical to enforce the laws after World War One.! According to U.S. historian, James Willis, the atrocities of World War One stimulated a public demand for trials in Allied countries, but so did a change in percep-

tion, in which the press and public clamored that the war itself was a gigantic crime.” Contrary to Willis, German historian Walter Schwengler argues that the European Allies applied victors’ justice against a fragile German republic, an ex post facto exercise that completely broke with the legal traditions of hospitality and amnesty of the early modern period.’ Swiss historian Daniel Marc Segesser explains that the notion of prosecuting violations of the laws and customs of war was not merely a reaction to World War One: the Geneva Convention of 1864 established protections for wounded and sick soldiers, and when these rules were violated in the Franco-Prussian War of 1870, certain Red Cross figures proposed that an international tribunal should be established in the future to punish, and thereby prevent (repress) violations of the convention. After this, generations of legal scholars and academics debated the concept of war crimes and the best means to punish them with impartiality and fairness.* For U.S. political scientist, Gary Bass, the western Allies wanted to implement trials after World Wars One and Two to project the liberal principles of “fair play” and legal retribution in order to demonstrate the

legitimacy of their institutions and norms—while the actual implementation of trials depended on political conditions.’ Legal scholar, Gerry Simpson, argues that the origin of the concepts of the war criminal, international outlaw, and terrorist

are rooted in the concept of the pirate, whom states in the early modern period ' Geoffrey Best, Humanity in Warfare (New York: Columbia University Press, 1980). * James E Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Westport, Connecticut: Greenwood Press, 1982). > Walter Schwengler, Volkerrecht, Versailler Vertrag und Auslieferungsfrage. Die Strafverfolgung wegen

],

Kriegsverbrechen als Problem des Friedensschlusses 1919/20 (Stuttgart: Deutsche Verlags-Anstalt, Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen

in der internationalen wissenschaftlichen Debatte 1872-1945 (Paderborn: Ferdinand Schéningh, 2010). . ‘Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, N.J.: Princeton University Press, 2000).

2 The Birth of the New Justice defined as a violator of the law of nations. Further, counter to Bass, he contends that war crimes trials are negotiations between “liberal cosmopolitanism (emphasizing individual responsibility, the rule of law, internationalism, tolerance of one’s adversaries) and an illiberal or romantic nationalism (emphasizing collective guilt, national prerogatives, procedural anti-formalism, and exemplary justice for outlaws).”° Finally, legal scholar Duncan Kennedy proposes a framework of two periods of the globalization of legal consciousness in 1850-1968: the second phase was the effort by Western European/Anglo-American lawyers to disseminate a “social consciousness” concerned with social welfare and social stability.’ One might apply

this concept to the post-World War One period and argue that attempts to prosecute the laws and customs of war after World War One were part of this trend. However, a study of new forms of criminal prosecution and punishment in the international arena should look beyond the question of, “Why trials?” and expand the inquiry to crimes other than “war crimes.” First, between 1919 and 1950, legal organizations and international bodies experimented with different strategies to deal with these crimes: adding criminal prosecution to existing international laws while expanding their interpretation of restraints based on customary warfare; drafting new laws and adding new mechanisms of criminal enforcement; drafting plans for permanent international criminal courts; and creating new directives in international law that states would then enforce through their own courts. Second, efforts to structure the international system with criminal enforcement dealt with more than war crimes and the laws of war. The projects that came off the drafting table and were put before governments and international conferences between 1919 and 1950 addressed diverse problems, not only war crimes. Taking some of the concepts roughly in the order they appeared, the historian finds: “the crime of violating international treaties;” “violations of the laws and customs of war;” “violations of the laws of humanity;” “crimes against humanity;” “crimes of denationalization;” “crimes against the international order;” “crimes creating a common danger;” “international terrorism;” “crimes of barbarity;” “crimes of vandalism;” “crimes against the peace;” “the collective conspiracy to exterminate a group;” “genocide;” “grave breaches of the law of nations;” “grave breaches of the laws of war;” and “crimes against international peace and security.” These did not all represent the same types of problems, nor did they all stem from the same historical conditions. Therefore, a historical explanation for the advent of individual criminal liability and the creation of international criminal courts must account for the historical responses to different types of social and political violence. Although jurists often used certain legal concepts to argue that all these crimes should be subject to an international or universal jurisdiction, the purposes of their arguments varied, including humanitarian moral concerns, political goals (such as protection against the revolutionary left or radical right), nationalist objectives, ° Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Cambridge: Polity Press, 2007), 24. ” Duncan Kennedy, “Two Globalizations of Law and Legal Thought: 1850-1968,” Suffolk University Law Review 36 (2003): 631-79.

Introduction 3 utopian concepts of international order, and the establishment of historical interpretations of past crimes. From the end of World War One until the beginning of the Cold War, was there one legal consciousness that simply spread the imperative to punish violations of the laws and customs of war to other areas, such as aggressive war, terrorism, and genocide? Was this a liberal legalism? This was not the case, because certain propo-

nents who called for new international laws (backed by criminal enforcement) were not necessarily liberal, and some of their plans for new criminal jurisdictions might have had illiberal consequences. In some cases, the groups and figures behind these plans had goals that were different from either creating a liberal legal order or forming an international system simply to serve the interest of their own states. The liberal—conservative dichotomy is too limited to explain the intellectual milieu

and historical situations that led different groups to formulate their ideas. One should go beyond the question of war crimes, and beyond the polarity of liberal cosmopolitanism versus romantic nationalism and ask: “Why was the concept of prosecution and punishment applied to so many different areas, ranging from war,

war crimes, terrorism, genocide, cross-border crimes, and crimes affecting the international order?” “Were the projects linked or separate?” “Can they be attributed to one central set of concepts that were then transformed for new situations, or did they come from many directions and many contexts, independently of each other?” Finally, “What were the actual historical situations that catalyzed these new applications and transformations, and why were some legal organizations more successful than others in transforming the international system?” The Birth of the New Justice argues that there was a central set of concepts that emerged from World War One, which was then heavily modified and applied to many new situations in the decades that followed. This was a result of the fact that different legal groups, with different values, historical missions, and goals took them up, as well as the fact that historical situations changed. Proponents of new criminal laws and new jurisdictions did not always have the same historical intentions, and every plan for an international criminal court did not aim to solve the

same problems. There was no one legal liberal template in which the domestic institutions of crime and punishment were simply internationalized; there were multiple transformations coming from different directions. This book proposes that European jurists at the Paris Peace Conference created a set of concepts, which I call the “new justice.”® Other legal organizations, sometimes consciously, sometimes only by way of receiving these ideas through other sources, expanded, contracted, or changed them to address various historical crises and legal—political problems during the inter-war period, during World War ‘Two, and after World War Two. The “new justice” meant more than simply trials instead of summary execution or banishment. It included the ideas that: individual criminal

® Chapter 2 explains the origin of the term, which came from a debate in the Dutch press about whether the Dutch government should extradite former German Kaiser Wilhelm II to stand trial before an international tribunal formed by the World War One victors, or whether he was entitled to political asylum.

4 The Birth of the New Justice liability for violations of international law was valid; prosecuting a head of state, government ofhcial, or military officer was legitimate; a state should extradite certain types of perpetrators after a war if it wanted to return to the community of nations; international tribunals conferred more advantages than national tribunals (more legitimacy, a grander stage to present an historical interpretation, or perhaps more impartiality); and international law could be altered according to social and political demands, even if there was no positivist basis on which to do so. The concepts comprising the “new justice” were repeatedly transformed by various legal organizations between 1919 and 1950 to fit distinct political and social problems. These included the reconstruction of 19th century morality, the establishment of a new international system after World War One, the protection of the post-Versailles borders, the search for stability during the economic and political crises of the 1930s, the construction of a grand trial of the Nazis after World War Two to convey special political and historical messages, the attempt to solve the problems of the old League of Nations’ system to protect national and religious minorities, and the reconfiguration of the international system after World War Two to give states the symbolic opportunity to declare their opposition to certain serious crimes, such as genocide and “grave breaches” of the Geneva Conventions. At the same time, many of the groups involved in these projects were linked: one group responded to the problems left by a previous group. Certain individuals worked on multiple projects in different groups, creating a network effect. Different groups shared certain intellectual concepts, which they wanted to apply to specific problems that most concerned them. The composition of these groups, their legal bases, methods of working, and goals were widely different in the 1919-1950 period. First, some were ad hoc organizations convened for a particular task while others had a permanent existence (or their founders hoped they would). Second, their composition and relationships to centers of legal and political power were different. Some organizations were comprised of state representatives (the League of Nations and the United Nations); some were non-governmental “scientific organizations” (the International Law Association and Association Internationale de Droit Pénal); one was a minority-rights/pressure group (the World Jewish Congress); and one, the International Committee of the Red Cross (ICRC), was a private Swiss charity that was part of the Red Cross movement, comprised of national Red Cross Societies and other organizations that competed with the ICRC for power. Third, all had different types of relationships with governments, as well as different relationships with the League of Nations and United Nations—open avenues, blocked paths, or a parallel existence. Because of the differences one cannot treat them all as one type of organization with similar structural features, but one can compare the legal ideas generated by these organizations and their success or failure in implementing criminal enforcement projects. This book considers five factors that contributed to the success or failure of the different projects: the extent of the problem the groups wished to address (whether it was specific or dealt with a broad system change); the level of credibility and legitimacy of their ideas in the eyes of governments, other legal organizations, and domestic societies; the

Introduction 5 groups strategies for lobbying governments, the League, and/or the UN, and their strategies for involving the public (if they tried at all); the existence of competing projects that could hinder them; and the level of obligation their solutions placed on states. There is a tendency in contemporary thought and journalism to assume that movements devoted to the pacific settlement of inter-state disputes, the development of the laws of war, the development of international criminal law, and the promotion of political and civil rights shared the same objectives and philosophies,

and therefore can be wrapped into one history. Actually, what I term the four strands of international legal movements (pacific, rights, laws of war, and international criminal law) were largely separate movements from 1919 to 1950, and in

many cases, continued to be so through the Cold War. While there were some points of convergence, legal organizations involved in these four different strands were aware of their differences. ‘The pacific strand contained a multitude of organi-

zations devoted to pacifism, the reduction of armaments, and the creation of the Permanent Court of Arbitration and the League of Nations. They stemmed from many different political ideologies and are not the subject of this book. However, their demands and plans for new international organizations and pacts to maintain peace and prevent war formed the pre-history of some of the movements discussed in this book and intersected with debates on international criminal prosecution in the 1920s—30s.’ The rights strand was similarly diverse and cannot be characterized as a single progressive history leading from the natural law theory of the Enlightenment to the human rights organizations of the post-1945 and Cold War periods.'° They too are largely left out of this book because, during 1919-1950,

> See Segesser, Recht statt Rache oder Rache durch Recht, 245-51 and 261-82, for summaries of the positions of legal scholars on whether the outlawry of war under the Geneva Protocol of 1924 and the Kellogg-Briand Pact of 1928 created a new crime of aggression and whether national or international courts could prosecute individuals for this crime. A few jurists discussed the use of diplomatic and economic sanctions against states that violated the Kellogg-Briand Pact, though most did not analyze

the question of criminal liability for individuals in detail. A small minority of jurists considered whether the laws and customs of war were still necessary if war itself was outlawed, with the most realistic analysts recognizing that since defensive wars under the League of Nations Charter were still legal, the laws of war were still important. '0 This is clearly argued by Jean H. Quataert, Advocating Dignity: Human Rights Mobilizations in Global Politics (Philadelphia: University of Pennsylvania Press, 2009) who explains that the multitude of groups in the nineteenth and early twentieth century that mobilized for rights did so with different objectives and legal concepts, and emerged from various social contexts. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press, 2010) makes a similar argument about pre-World War Two rights organizations, and then argues that the rights agenda was effectively taken over by Catholic organizations after the war as an anti-communist ideology. Effective human rights enforcement was denied in the U.N. because anti-colonial movements and former colonies that gained

statehood supported popular sovereignty under the nation-state concept rather than a system to defend universal guarantees against torture, political imprisonment, and civil liberties. However, Moyn does not deal with criminal enforcement, contending that the significant change in the 1970s was that human rights organizations represented a replacement utopia for capitalist democracy and communist egalitarianism. He admits that human rights movements during that time had little practical impact (and ignored the Cambodian genocide); he claims their main impact was to substitute “morality” for politics, which of course was insufficient for post-World War Two jurists who believed in international criminal enforcement.

6 The Birth of the New Justice they were not the prime movers of new ideas of international criminal prosecution, universal jurisdiction, or the “new justice” generally. The quest for minority rights is one segment of the rights history, and even here, only certain groups involved with this, such as the World Jewish Congress, made a substantial contribution to the “new justice.” Legal organizations concerned with the laws of war form another strand, which also supported diverse objectives. One of the main organizations concerned with creating and maintaining international legal conventions designed to protect military combatants and eventually civilians, the International Committee

of the Red Cross, had a checkered history during 1919-1950 when it came to investigating violations of the Geneva Conventions.'' As the chapter on the Geneva Conventions shows, it had a variety of interests that made it take a dim view of the Allies’ war crimes trials after World War Two. The fourth strand includes criminological jurists who began building the field of international criminal law during the interwar period. This group, led by Vespasien Pella, a Romanian jurist, was largely occupied with the prevention of aggressive war and the reform of penal law accord-

ing to a reformist doctrine known as “social defense,” not with new systems to guarantee the rights of minorities. In fact, as the chapter on the Genocide Conven-

tion discusses, the creator of the concept of genocide, Polish-Jewish attorney Raphael Lemkin, emerged from the margins of this movement. Some of his ideas were actually first laid out by other jurists, and even his idea of various modes of genocide was first described by lawyers working for the research division of the World Jewish Congress. The four strands of legal movements (pacific, rights, laws of war, international criminal law) did not converge in one legal agenda in this period. The fact that some were not involved in criminal enforcement at all, and others were more interested in international agreements and civil processes, indicates that this was not a mono-directional process of building one type of liberal institutionalism aimed at ending impunity for serious crimes.'* Additionally, since the criminological jurists, who did much of theoretical work in the 1920s—30s, were not involved with international guarantees for civil and political rights, the history related in this book

should be considered separately from the debate about whether human rights began with the French Revolution, in the nineteenth century, during 1945-48, or in the 1970s. The legal theories and activism that propelled “new justice” ideas aimed at different problems. Although some of the jurists wanted to use international criminal enforcement to defend Great Power political interests and supported the creation of homogenous nation-states—just as some jurists and

'! Rainer Baudendistel, Between Bombs and Good Intentions: The Red Cross and the Italo-Ethiopian

War, 1935-1936 (New York: Berghahn Books, 2006) effectively argues the [CRC was manipulated by the Italian fascists into not taking a forceful stand against the Italian air attacks against Red Cross hospitals and use of poison gas, but the ICRC also took an excessively legalistic approach and was too influenced by its ties to the Swiss government, which did not want to disturb relations with its Italian neighbor. '2 For the view that all the legal developments formed a single “river” of development, see Benjamin

J. Senitt Building the International Criminal Court (New York: Cambridge University Press, 2008),

Introduction 7 statesmen who created the League of Nations and United Nations did'’—other organizations and jurists had distinct concerns and objectives. I am therefore reluctant to interpret the history merely as an expression of self-interest and colonial imperialism, just as I am critical of the view that the legal organizations all acted out of humanitarian, pacific, reformist, or utopian motivations. The historical presentation in this book is informed by several other concepts and theories in historical, legal, and social science scholarship. First, the construction of legal systems is not a neutral undertaking that occurs in a historical vacuum, drawing only from pure legal theory and legal texts: each has its own political and social context. Government authorities may deploy justice against political opponents or use it to establish the legitimacy of successor regimes. They may use it to

create historical interpretations about the past and attempt to set out the proper values that must be upheld in the future.'* While this can be done with trials, this book contends that this process also occurred when jurists formed new laws, international conventions, and draft statutes for international criminal courts. However, justice in its historical context is not always exclusively a political instrument; often the construction of new laws and new legal theories is an attempt to deal with historical crises and legal shortcomings. They can therefore be construed as ways to repair the social fabric and alter the political system to prevent the recurrence of problems. When analyzing the construction of legal solutions in this way, the historian must account for the underlying political and social values in legal arguments. These have changed as different legal schools of thought adopted new

views about the basis and purpose of international law. In the nineteenth and twentieth century, these included: assumptions about the historical validity of the state as a logical and desirable form of rational, national development; the imperialist assumption that non-Western people had to be trained and educated by European colonizers before they could assert themselves as sovereign nations and gain certain legal rights; the belief that economic and social interdependence necessarily created a form of international solidarity that must be codified in law; the view that the individual must be protected under international law, particularly after two world wars in which the belligerents had trampled the individual’s security and dignity; and the skeptical, real-political view that international law after World War Two was a matter of technique and interpretation, where the international system was actually built on hegemonic power relations.” The concept of sovereignty must also be contextualized to consider the nature of the political authorities that use it to advance a particular legal solution, the interests of the legal organizations that seek to challenge it or accommodate it, and the

'S For the argument that the UN rehashed World War One-era colonialism, and the Great Powers intentionally constructed a system that would not interfere with racist policies in their own countries and empires, see Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of

the United Nations (Princeton: Princeton University Press, 2009), 28-65. ' Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, N.J.: Princeton University Press, 1961). 'S Martti Koskenniemi, 7he Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002).

8 The Birth of the New Justice particulars of the historical situations that brought up the question in the first place.’® The negotiations between advocates of state sovereignty and proponents of international law, as well the intersections between political interests and justice,

are not historical constants. Attempts to implement war crimes trials are conditioned by debates over where trials should be held, whose national needs must be met, which cultural priorities should be fulfilled, and which political interests must be accounted for.'” Similarly, these questions influence legal projects to create new international criminal laws and new international legal directives that call for national and international criminal prosecution. ‘The task of an historical inquiry is to determine how those influences have changed and why. Since the seventeenth century, the state’s financial, bureaucratic, military, educational, and judicial capac-

ities have expanded.'® Territorial states have gradually absorbed the power of defining crimes and meting out punishment, functions formerly held by feudal lords, religious officials, and towns. During the constitutional era, states developed different types of jurisdictions (based on territory, the national identity of the individual, and security and economic interests). Prior to World War One, some international lawyers sought to restrict state power in international relations, while at other times they sought to justify new arrangements of state power. This book does not assume that between the second half of the nineteenth century and the first half of the twentieth century, there was a consistent transformation in which state sovereignty was restrained and limited. While that was theoretically true in certain areas, the period is filled with complex interchanges in which certain states

wanted to extend their power outside their borders while limiting the power of others. State representatives made joint decisions at certain international conferences to accept restrictions in warfare, followed by actual wars in which they were violated. After World War One, they attempted to create a new system of collective security and open diplomacy without going so far as to create automatic obligations of inter-

national intervention or criminal prosecution of state officials. Additionally, the jurists and legal organizations that supported enforcement through criminal prosecution were often minority voices within the field of international law. Some of the most significant individuals did not come from Western Europe, but Eastern Europe

and the Balkans, where the problems of war, irredentist nationalism, and mixed ethnic populations had produced social and political crises." Importantly, the developing field of international criminal law, as well as the idea of setting criminal penalties in international law for violating Red Cross conventions, was controversial between 1919 and 1950. Rather than attempting to assert an absolute historical process in the period—that sovereignty was definitely restricted and all the rules of the game had changed by 1950—there were zig-zags '© Hent Kalmo and Quentin Skinner, eds., Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (New York: Cambridge University Press, 2010), 7-14. '7 Simpson, Law, War and Crime, 30-53.

'§ Paul Miinch, “The Growth of the Modern State,” in Sheilagh Ogilvie, ed., Germany: A New Social and Economic History. 1630-1800 (New York: Arnold, 1996), 2: 196-222. ' Ivan 'T. Berend, Decades of Crisis: Central and Eastern Europe before World War IT (Berkeley, Calif:

University of California Press, 1998).

Introduction 9 and sometimes retreats in the process. The main accomplishments in the period were the development of arguments, ideas, and plans. Certain legal conventions were passed that could be invoked in the future, though they often contained terms that intentionally did not place extraordinary obligations on states. By the early 1950s, the prospects for implementing “the new justice” in its maximal form—a complete global penal code backed by a permanent international criminal court—did not look promising. Instead, the new justice was synthesized with the old justice: international directives that established certain types of international crimes and obligations to punish, with implementation left to states, using, in theory, courts that guaranteed rights for defendants. The European focus of this book is due to the fact that “new justice” projects between 1919 and 1950 often (but not exclusively) originated in Europe, as jurists and non-governmental legal organizations interested in internationalizing crime and punishment responded to wars, mass killings, assassinations, and terrorism in Europe, which they then conceptualized as international problems of interest to all. I do not claim that their ideas were the only important ones. A broader study could also include the development of the customs and laws of war in the Ottoman Empire and in imperial Japan and their jurists’ responses to the idea of individual criminal liability. I have had to limit the inquiry geographically, however. My European focus also stems from the fact that I concentrated on those legal projects that

prominently asserted new ideas about the criminal enforcement of international law, and on projects that were brought to the point of near or successful fruition at the Paris Peace Conference, the League of Nations, the United Nations, and the conferences to revise the Geneva Conventions. I wanted to study attempts to realize

the ideas, and especially the viewpoints and historical trajectories of the nongovernmental organizations, not only the development of legal discourse. Still, as this book notes in various places, non-European and non-U.S. ideas were often excluded or given little weight because the European and U.S. victors of the two world wars asserted their own interests over those of others. The Western intellectual viewpoint held that Western legal ideas represented higher, supposedly more advanced standards of impartiality and humanity; and many non-governmental legal organizations that claimed to be international actually had limited afhliations with groups outside of Europe and North and South America. Furthermore, concerning the development of the idea of the international criminal court and the concept of criminal enforcement for international offenses, lawyers and legal organizations from Europe and the U.S. considered their own views and needs to be the most important, even when they opposed their own governments’ positions that state sovereignty was sacrosanct and new laws governing warfare should not go too far. Although some non-European lawyers in the nineteenth century began to appropriate Western legal concepts of state sovereignty and the equality of states to challenge European and American military intervention, colonization, and extraterritorial jurisdiction,” more historical investigation is needed to assess the degree to which °° Arnulf Becker Lorca, “Universal International Law: Ninteenth-Century Histories of Imposition and Appropriation, Harvard International Law Journal 51, no. 2 (2010): 475-552.

10 The Birth of the New Justice international lawyers from Central and South America, China, and Japan critiqued and/or developed ideas about international criminal law to advance their own states’ claims to sovereignty and inclusion into the community of “civilized” states, or whether they too believed that a better system of enforcement of international law would protect the general peace and security across borders. Furthermore, the post1950 period is ripe with opportunities to investigate how international criminal law has been championed, criticized, and transformed in Africa.*' This, however, is beyond the temporal scope of this book. Finally, this book is informed by the concept that particular forms of political violence (uncoordinated scattered attacks, the ritualized violence of executions and blood feuds, state-sponsored mass violence, and other types) may be transformed into other forms of political violence depending on the social actors involved and the state authorities’ level of control over domestic politics.’ However, it does not appear that all collective violence stems from contentious politics, in which differ-

ent political groups make competing claims against each other and come into conflict due to their set identities and us/them boundaries. Some of the victim groups in this book were not involved in contentious politics but were perceived as threats and internal enemies. Numerous factors set constraints that determine the level of co-ordination of political violence and its extent. These include the degree of government control, the resources available to networks of potentially violent actors, and the coherence of these networks. Chapter 1 outlines some of the basic nineteenth century precursors to an international criminal system and argues that both state sovereignty and the historical formation of the constitutional state hindered its development. Chapter 2 explains the emergence of “new justice” ideas at the Paris Peace Conference, arguing that a group of Allied jurists and diplomats, the Commission on the Responsibility of the

Authors of the War and on the Enforcement of Penalties, formulated the basic concepts for special political, moral, and historical purposes. Chapter 3 deals with two types of crimes raised at the Paris Peace Conference, “crimes of denationalization” and “crimes against humanity,” arguing that these did not become funda-

mental components of the “new justice” in the inter-war period because of the implementation of alternative solutions and special problems in the Balkans. Chapter 4 argues that multiple organizations after World War One sought to deal with the legal problem of war, and violations of the laws of war, in different ways:

the new League of Nations charged the Advisory Committee of Jurists, a body of international jurists, with writing the rules for a permanent international court (a non-criminal court) in 1920; the Red Cross movement attempted to form an *! On this subject, see Tim Allen, Trial Justice: The International Criminal Court and the Lords Resistance Army (London: Zed Books, 2006), who shows why the Ugandan government turned to the International Criminal Court in The Hague after trying a general amnesty for members of the Lord’s Resistance Army, and why some Ugandans believe that international criminal prosecutions are necessary. Thierry Cruvellier, Court of Remorse: Inside the International Tribunal for Rwanda, trans. Chari Voss (Madison: University of Wisconsin Press, 2010) exposes many of the political and prosecutorial shortcomings of this tribunal. *2 Charles Tilly, Zhe Politics of Collective Violence (New York: Cambridge University Press, 2003).

Introduction 11 international commission to investigate violations of the Geneva Conventions committed by all sides during World War One; the International Law Association (ILA), a group of practicing, business-minded lawyers, worked in the 1920s on a plan for an international tribunal for war crimes prosecutions; and the Association Internationale de Droit Pénal (AIDP), comprised of criminal law specialists, worked

on a plan in the interwar period for a permanent international criminal court to prevent aggression and solve jurisdictional conflicts between states. ‘This period saw

the formation of a new field (international criminal law) and the development of several statutes for international criminal courts, but also a transformation of the “new justice” away from some of the original intentions to repress war crimes and ageressive war. Chapter 5 explains the genesis of a 1930s League of Nations antiterrorism convention and the proposal for an optional international criminal court to prosecute accused terrorists. It argues that this project, which was not implemented for political reasons, had illiberal aspects, challenging the notion that the “new justice” was purely a liberal undertaking. Chapter 6 argues that an organization originally concerned with minority rights, the World Jewish Congress, created a “victim-centered” new justice in order to counter silence about anti-Jewish crimes in Europe committed before and during World War Two. The organization transformed “new justice” ideas in ways that the criminological jurists of the 1930s had largely ignored. The World Jewish Congress sup-

ported post-war national prosecutions in some cases but wanted international tribunals to deal with Nazis and collaborators in Axis states in part to create a legal precedent that could be used when constructing a new system to replace the failed League of Nations’ system to protect minorities. Chapter 7 traces the formation and negotiation of the United Nations Convention on the Prevention and Punishment of Genocide of 1948, arguing that the original drafters’ goal of creating a legal instrument to prevent genocide was thwarted because of their legal disagreements, political disputes in the UN about the exercise of international authority, and the willingness

of certain non-governmental organizations to accept a convention that did not include an international criminal court. Chapter 8 explains the formation of the “grave breaches” provisions in the revised Geneva Conventions of 1949, which codified individual criminal liability for violations of the laws and customs of war for the

first time. The chapter argues that the International Committee of the Red Cross only embraced this idea reluctantly, then helped steer the project in accordance with its own interests and those of certain Great Powers. A short summary chapter follows

about the grim prospects for the formation of a permanent international criminal court in the 1950s, arguing against the view that the wave of war crimes trials after World War Two fundamentally changed the international legal system. This book is based on published and unpublished institutional records from the League of Nations and United Nations, unpublished archives of the International Committee for the Red Cross, unpublished archives of the World Jewish Congress,

private papers of jurists (including Nicolas Politis, Raphael Lemkin, and Jean Graven), diplomatic archives of the Swiss Federal Government, private papers in the Hoover Institution Archives, and published proceedings of the International Law Association, Association Internationale de Droit Pénal, and International Bureau

12 The Birth of the New Justice for the Unification of Criminal Law. I also synthesize material from previous studies that deal with the positions of governments and non-governmental organizations toward war crimes trials, international law, and international criminal law. Although the main argument of the book concerns the development of the “new justice,’ I wish to alert the reader to some smaller unique findings. Nicolas Politis, a Greek international jurist who was a strong advocate of an international tribunal after World War One for Bulgarian crimes against its Balkan neighbors, also drafted an international agreement for a compulsory population transfer between Greece and Turkey at the Lausanne Conference in 1923, showing both the progressive and illiberal aspects of international law.*? Raphael Lemkin was not the first jurist to propose criminal prosecution under international law for violence against minorities: an obscure Welsh lawyer (Frederick Llewellyn Jones) advocated international prosecution for perpetrators of pogroms several years before Lemkin called for an

international law to prohibit attacks against religious and national groups. One interesting figure who called on the League of Nations to prosecute an international terrorism case in the 1930s was Leon Trotsky, who asked the League Secretariat to prosecute Josef Stalin for ordering the assassination of Trotskyites around the world. ‘The Secretariat ignored the request, since it did not want to disturb relations with the USSR. In 1945, the Institute of Jewish Affairs (the research branch of the World Jewish Congress) wrote an important criminal indictment of major Nazi criminals that was used by the U.S. Office of Strategic Services; this suggests that arguments about the impact of intelligence services on war crimes prosecutions may need to be revised to reflect the input of non-governmental organiza-

tions.“ This book also includes new information about why Vespasien Pella remained a diplomat in Romania’s foreign ministry through 1944, despite the fact that Romania sided with the Axis. Evidence from the Swiss Federal Archives (not only from Pella’s post-war correspondence) shows that he hoped to negotiate with the Western Allies and take Romania out the war, though he was then fired by Marshal Ion Antonescu. Pella’s controversial position may help explain some of the complex reasons for the bitter relations that developed between Pella and Lemkin after World War Two. Both had worked together on international criminal law

projects since the 1920s and helped write the first draft of the U.N. Genocide Convention in 1947, which includes concepts that they had developed in the 1930s. Pella’s role in this is somewhat underappreciated.” Finally, ICRC records

*> Eric D. Weitz, “From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations, and Civilizing Missions,” American Historical Review 113, no. 5 (2008): 1313-43, also discusses this dichotomy. He argues that the construction of the post-World War One system of mandates, minority rights, population transfers, and homogeneous nation-states was based on a concept of “population politics” that developed from both liberalism and colonialism in the nineteenth century. *4 Compare with Michael Salter, US Intelligence, the Holocaust and the Nuremberg Trials: Seeking Accountability for Genocide and Cultural Plunder (Boston: Martinus Nijhoff, 2009), vol. 1, 1-55, who argues that the main information channel was between the US Office of Strategic Services and US war crimes prosecutors. *> John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave

Macmillan, 2008), 19, 89-91, 131-2, 194.

Introduction 13 suggest that its legal department in 1949 played a role in ensuring that the revised Geneva Conventions would not require the use of an international criminal court; instead the organization preferred the use of national tribunals. This indicates that the British government was not the only party responsible for cutting an explicit reference to an international criminal court.”°

*6 Geoffrey Best, War and Law Since 1945 (New York: Oxford University Press, 1994), 162-3.

I Nineteenth Century Precursors of an International Criminal Legal System During the long nineteenth century, there were several forerunners to the concept of an international criminal legal system, though they were aimed at specific problems and their ultimate application, if successful at all, was limited. These included mixed courts to suppress the slave trade, the development of international conven-

tions establishing rules of war, a proposal for an international criminal court, attempts to institute international arbitration to solve inter-state disputes, and the beginnings of transnational police co-operation to repress anarchist and socialist terrorism. Different social groups, including government representatives, upper middle-class lawyers, businessmen, and police officials, supported these projects, inspired by Enlightenment ideas of progress, paternalistic humanitarianism, the notion that human affairs could be regulated by rules and bureaucracy, and a fear of social revolution. This chapter will present a brief overview of the main precursors in order to show that although various groups advanced internationalist ideas in the field of law and international order, attempts to marry international law with criminal prosecution were considered premature or risky for several reasons. The ideological tenet of state sovereignty was dominant in international relations: the standard practice after a war was to exchange prisoners and grant amnesty, not prosecute them for violations of the laws and customs of war. The idea that states should share legal principles for collective security in their own self-interest was a new concept that was only gradually incorporated into international institutions. The basis of criminal prosecution was the municipality, imperial state, or nation-state,

not an international authority. The courts of mixed commission that Britain established with Portugal, Spain, the Netherlands, Brazil, and the United States between 1817 and 1871 were interesting forerunners to a sort of multi-national legal system. These bi-national courts

were designed to repress the slave trade, which these countries had outlawed between 1807 and 1830. ‘The courts, sitting in Rio de Janeiro, Havana, Surinam, Freetown (Sierra Leone), and elsewhere, decided whether the seizure of a slave ship was legal and whether the African prisoners on board could be liberated. According to historian Leslie Bethell, the courts had considerable success, taking over six hundred ships out of commission and liberating almost 80,000 slaves. However, the actual implementation of the system was not international: Britain provided the naval patrols to find slave ships, and only Britain halted and searched ships outside its territorial waters. The mixed courts had no power to prosecute or punish

Nineteenth Century Precursors 15 the captains, crews, or ship owners, who were supposed to be delivered to their own states for trial. Furthermore, after 1839, British vice-admiralty courts, not the mixed commissions, became the main bodies that decided the legality of seizures. This occurred because Anglo-Portuguese negotiations for a new treaty to suppress the Portuguese slave trade to Cuba and Brazil broke down, and Portuguese slavers began sailing without flags and papers, leading Britain to take matters into its own hands and seize Portuguese ships unilaterally. Additionally, the mixed commissions became unreliable, because non-British commissioners favored vessels owned and

operated by their co-nationals and were opposed to the British idea that ships merely outfitted for slaving could be seized, even if they had no prisoners aboard. Thus this was an international idea whose enforcement largely depended on the actions of the world’s major sea power, acting unilaterally, and there was no component of an international court that punished the people responsible for slavetrading. !

Some basic rules of warfare, aimed at ensuring the neutrality of medical corps and prohibiting further injury to soldiers who were sick and wounded, were codified in the mid-nineteenth century. In 1859 a Swiss businessman, Henri Dunant, witnessed the harsh reality of warfare at the Battle of Solferino, where 6,000 soldiers were killed in a major battle that was part of the Italian struggle for unification against the Austrian empire. For Dunant, who organized a makeshift hospital to care for a portion of the wounded (there were a total of 40,000), the central problem was the lack of organized relief to care for the dying and wounded: they were left for days in the field because transportation was insufficient, there was a shortage of doctors, and the nearby villages were overwhelmed with suffering combatants. Two years later, Dunant published a famous book that proposed the idea that neutral organizations, recognized by an international convention, could care for the wounded. The idea was not to eliminate warfare, which Dunant and others did not think realistic, but to reduce the suffering of combatants and convince belligerent states that it was in their interest to agree officially to treat volunteer medical corps as non-combatants. Dunant, along with Swiss jurist Gustave Moynier and other private Swiss doctors of Calvinist background from prominent Geneva families, formed a “Geneva Committee” to assist the victims of warfare. Inspired by the values of Christian charity and dependent on Swiss government neutrality in international relations, this group became the International Committee of the Red Cross. It drafted and help negotiate a very basic, yet important, set of rules contained in the Geneva Convention of 1864—prohibiting attacks on wounded and sick soldiers, requiring a belligerent state to care for enemy sick and wounded who were captured, and forbidding all attacks on medical personnel wearing a white armband with a red cross insignia.’

' Leslie Bethell, “The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century,” The Journal of African History 7, no. 1 (1966): 79-93. * Francois Bugnion, The International Committee of the Red Cross and the Protection of War Victims, trans. Patricia Colberg, Edward Markee, and Nicolas Sommer (Oxford: Macmillan Education, 2003),

6-28.

16 The Birth of the New Justice Yet there were some fundamental limitations to this new legal system and the role of the International Committee, which are important to bear in mind when understanding the later evolution of the idea of international criminal prosecution for violations of the laws and customs of war. First, the Geneva Convention of 1864 offered no explicit protections to prisoners of war (this only came into being with a separate convention, the Hague Conventions of 1907), nor did it offer any protections for civilians who were under occupation or found themselves in a war zone during hostilities. (Rudimentary rules in that area also only came into being

with the Hague Conventions of 1907 and, even then, they did not forbid the taking of hostages or the use of reprisals against a civilian population.) Second, the International Committee's main task in the nineteenth century was delivering aid and urging respect for the rules, not enforcing them with criminal penalties. Its work was highly practical, transporting supplies to the sick, the wounded, and prisoners of war in the Franco-Prussian War of 1870. It was also a legal guardian, defending the 1864 Convention when various parties wanted to revise it (and weaken it). However, its nineteenth century efforts to enforce the convention were piecemeal and ineffective. During the Russo-Turkish War of 1875-78, it tried to use private diplomacy to urge the Ottoman Empire to adhere to the convention, but when this failed, it went public with a one-sided, unverified set of accusations against the Turkish army. According to Red Cross authority, Francois Bugnion, this “resulted only in a macabre and sterile controversy; it doesn’t seem as though anything was done to establish the facts, nor to punish those guilty of violating the convention.” Prior to World War One, the organization did not have a consistent policy for violations of the convention.* During the war it simply published the complaints and answers of each belligerent, taking the position that to do anything else would jeopardize its neutrality and hinder its ability to carry out its main tasks of delivering supplies and tracking the wounded, sick, and prisoners of war, which required good relations with all sides. The third great problem regarding the enforcement of the Geneva Convention of 1864 was significant resistance from both government officials and certain international lawyers to creating an international tribunal that would investigate violations of it. On the one hand, two prominent jurists supported the idea. As historian Daniel Marc Segesser describes, Gustave Rolin-Jaequemyns, a Belgian lawyer and liberal-radical politician, proposed in 1871 that either an international tribunal or an international investigating committee could examine violations of the convention, an idea inspired by ardent German accusations in 1870 that the French had misused the red cross insignia, and French accusations that the Germans had failed to respect it. In 1872, Moynier, then President of the International Committee of the Red Cross, wrote a statute for an international tribunal in which judges (comprised of representatives from the belligerent states, plus neutral ones) would hear cases brought forward by a belligerent state that alleged the 1864 Convention had been violated. The court would have ruled on the guilt or innocence of individuals > Bugnion, The International Committee of the Red Cross, 39-Al. * Bugnion, The International Committee of the Red Cross, 51.

Nineteenth Century Precursors 17 (an important first) while the state that had taken them into custody would carry out the punishment. Only two governments, the Spanish and the Italian, supported further discussion of the idea, and several prominent jurists at the time— Francis Lieber, who had written famous rules of warfare for the Union Army of the United States at President Abraham Lincoln's request, and John Westlake, a founding English member of the Institute for International Law—raised critical questions. Wouldn't the court limit state sovereignty? And wouldn't witnesses who had been traumatized by the battlefield provide unreliable testimony in court? Franz von Holtzendorff, a German international lawyer, welcomed the idea but noted a hard reality in the world of constitutional states: governments were not willing to extradite their nationals to another state to stand trial in peacetime, so they were hardly likely to do so in wartime.’ The overall reasons for the lukewarm reception to Moynier’s idea were threefold. This was the age of strong nationalism and the relatively recent build-up of the state’s legal bureaucracy, whose power should not be challenged. Additionally, the

sovereign state was the basis of the nineteenth century international order, and disrupting that with an unpredictable international institution was risky.° Finally, there was no existing legal institution that already served some type of international judicial function (such as commerce or international relations) that could be extended to the conduct of warfare. The bourgeois lawyers’ distrust of old imperial institutions, arbitrary and unchecked, haunted their consciousness. The more extensive Hague Convention of 1899 (the Convention with Respect

to the Laws and Customs of War on Land) limited the types of weapons and attacks that could be used against enemy soldiers, and forbid pillaging and attacks on civilians.’ These rules were extended by the 1907 Hague Convention, which was signed by forty-four states. However, that convention did not specify that a state or military could put an enemy individual on trial for violating these rules. It only stated that a belligerent would pay compensation to another belligerent if its armed forces committed violations. Louis Renault—France’s leading international jurist and an important contributor to the two Hague conventions—noted in 1918 that Hague delegates in 1907 had passed over the question of penal liability too quickly. They only thought of enforcement in terms of civil responsibility, not international crime, which would incur an individual penalty. Renault thought that applying criminal penalties against enemy forces during a conflict was more

just than reprisals, arguing that the idea of criminal liability had already been implied in 1874, when a French general at an international conference in Brussels proposed that states harmonize their military codes and apply proportional penalties. But this was an esoteric legal argument, not the practice of the time. Renault acknowledged in 1918 that reprisals could be used in extreme cases, but the danger > Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen

in “ internationalen wissenschaftlichen Debatte 1872-1945 (Paderborn: Ferdinand Schéningh, 2010), Segesser, Recht statt Rache oder Rache durch Recht’, 140-1. ’ Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace—A Documentary

History and Analysis (Dobbs Ferry, N.Y.: Oceana Publications, 1980), vol. 1, 9-15.

18 The Birth of the New Justice was that if the French employed them, they would soil their reputation in the eyes of neutral states, which would forget who had initiated the violations of the laws and customs of war in the first place. France would then run the risk of being confused with Germany, “the propagators of Kultur,” he concluded ironically.® The provision that a state should pay reparations for violations of the laws of war was actually introduced by the German delegation at the Hague Conference in 1907, because Germany had been sharply criticized for a book that its Great General Staff had issued in 1902. This work, Kriegsbrauch im Landkriege, disparaged the nineteenth century trend to “humanize warfare,” arguing that the commander’s decisions and reliance on “knightly” custom trumped international legal codes of war. In fact, the author cynically claimed that all attempts to create a binding set of laws of war had “completely failed.”’ Reprisals, the use of violent countermeasures, were the only measures that the enemy understood. Although the book did state that the Geneva Convention of 1864 absolutely had to be obeyed, and that prisoners of war had to be interned in decent conditions, the book also suggested that the Hague Regulations, including the rules dealing with the treatment of a civilian population, were really voluntary, not obligatory.'° For international lawyers who opposed the most ardent European militarists (who were not only German), this was an outrage. During the Hague Conference of 1907, therefore, Germany proposed financial sanctions for states that violated the Hague rules to show that it took the obligatory character of the rules seriously.'' But the Hague rules had a convenient loophole for all the powers who pledged their allegiance to them. They only had to be obeyed “as far as military requirements permit”—a defense used by both the Allies and Central Powers in the First World War. Furthermore, five belligerents in the First World War—TIurkey, Italy, Greece, Serbia, and Bulgaria—had either not accepted or not ratified the two Hague Conventions. This created a legal problem because the Fourth Hague Convention of 1907 stated that the convention's rules of war only applied if all the belligerents were parties to the convention.'* Allied Jurists and statesmen at the Paris Peace Conference in 1919 conveniently circumvented this fact by claiming that those conventions had simply “declared” the existing laws and customs of war, which were already part of the “law of nations.”! ® Louis Renault, “De lapplication du droit pénal aux faits de guerre,” Revue Générale de Droit International Public 25 (1918): 29. ° Grosser Generalstab. Kriegsgeschichtliche Abteilung I, Kriegsbrauch im Landkriege, vol. 31, Kriegsgeschichtliche Einzelschriften (Berlin: Ernst Siegfrief Mittler und Sohn, 1902), 2. '© Tbid., 1-3, 9, 15, 25. For the transmission of these ideas into German officer training, see John Horne and Alan Kramer, German Atrocities, 1914: A History of Denial (New Haven and London: Yale University Press, 2001), 148-51.

'' Louis Renault, “War and the Law of Nations in the Twentieth Century,” American Journal of International Law 9, no. 2 (1915): 6-7; Geoffrey Best, Humanity in Warfare (New York: Columbia University Press, 1980), 146, 176-9. 2 Article 2, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, October 18, 1907. '3 Plenary session, Commission on Responsibilities, March 24, 1919, La Documentation Internationale, La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions, ed. Albert de Lapradelle

(Paris: Les Editions Internationales, 1930), 3: 419-22.

Nineteenth Century Precursors 19 Although Moynier’s attempt to generate serious consideration of his idea for an international court to prosecute violations of the Geneva Convention was not successful, international lawyers in the later nineteenth century advocated the creation of a sort of international court that would hear cases involving disputes between states. Ihe fundamental idea was that in case of disputes over the right to seize ships, the location of borders, or the interpretation of treaties, an impartial body of learned legal and political authorities could hear evidence from both sides and then issue a ruling which both states would voluntarily accept—and avoid going to war. This idea gained traction because European, North American, and South American states had increased their business connections during the nineteenth century. In light of the colonial wars of the eighteenth century and the Napoleonic wars and economic blockade of the nineteenth century, lawyers, government officials, and bankers recognized that wars disrupted trade, caused shortages, and led to a loss of investments. Plus, intellectually, international lawyers believed that the processes used to settle disputes in capitalist society—analyzing contracts, bringing parties before a legal authority to give evidence in a case, using legal professionals to inform a judge about how similar cases had been handled according to custom and tradition—could be applied on the international level. Various national legislatures passed resolutions in favor of compulsory arbitration, and a few treaties

supported the concept of arbitration, such as the 1871 Treaty of Washington between the United States and Britain (requiring arbitration to settle a dispute over Civil War damages caused by an American Confederate ship built by Britain), and the 1890 Pan American Treaty of Arbitration. Between 1815 and 1900, two hun-

dred interstate disputes were submitted to arbitration and were settled without recourse to war,'* and this trend gave international lawyers and some diplomats the hope that the process could be regularized and even required for certain types of disputes. Thus in 1899, as part of a large-scale peace and armaments-reduction

conference at The Hague, twenty-six states negotiated the Convention on the Pacific Settlement of International Disputes, which established the Permanent Court of Arbitration. This was not a true permanent court, however, as its mediation was not binding,

meaning governments did not have to accept its decisions, and its scope only included disputes “involving neither honor nor essential interests.” If the dispute involved a state’s security, economic needs, or status, the state did not have to use the Permanent Court, which was actually a panel of judges that states could call upon as arbitrators. In 1907, forty-four states met at The Hague and tried to extend the panel into a true court, but they could not agree to make the court compulsory or expand the definition of justiciable disputes.'’ Purely “legal disputes,” based on treaties, for example, were considered suitable for legal judgment, while “political disputes” dealing with national aspirations or essential interests were deemed

4 EP. Walters, A History of the League of Nations (Westport, Connecticut: Greenwood Press, 1986

[1952]), 9-10. '> On the First and Second Hague Conferences, see Ferencz, An International Criminal Court: A Step Toward World Peace—A Documentary History and Analysis, 1: 5-20.

20 The Birth of the New Justice outside the scope of a court.'° In 1907, states did succeed in negotiating a Code of Naval Law and an International Prize Court, designed to hear cases concerning the search and seizure of neutral ships, but no state ratified the agreement. The supreme test of arbitration came in the summer of 1914, when the British Foreign Minister, Edward Grey, belatedly proposed that Austria and Serbia use arbitration to settle their volatile dispute over Serbian responsibility for the Franz Ferdinand assassination. Yet the main powers behind them, Germany and Russia,

did not lean on them to accept arbitration. The multiple factors leading to the war—Germanys internal social conflicts and drive for world-political status, Austria’s interest in crushing Serbia as a Balkan upstart, the simmering colonial conflicts outside Europe, the polarization of the alliance systems—made it unlikely

that international arbitration would have been accepted. Nevertheless, some international lawyers expressed the view after 1918 that, if only the major states had been able to establish a court prior to 1914, the whole catastrophe could have been avoided. ‘Thus the determination to regulate international diplomacy through international legal processes was actually strengthened by the colossal carnage of World War One.

Diplomats and international lawyers were not the only ones interested in creating an international legal system. Police officials in the nineteenth century from around the world were interested in formalizing bilateral contacts, escaping the constraints of legal jurisdictions, and dealing firmly with the socialists and anarchists who traveled through Europe and North and South America. After 1848, police co-operation was mainly based on individual police contacts, though German states formed a Police Union to track liberals, nationalists, and communists, all considered threats to absolutist rulers. By the 1860s, some European police forces were gaining administrative independence from their political overseers and wanted to establish formal systems to exchange information that did not have to travel through government ministries, which was time-consuming and subject to legal restrictions. In the 1880s and ’90s, police began routinely using photographs, head and face measurements of suspects, and fingerprints—information they could share by mail and telegraph.'” Simultaneously, they faced a new revolutionary threat: Russian socialist revolutionaries; Russian and German anarchist bomb-throwers; and the growing power of trade unions. Then, when an Italian anarchist assassinated the Austrian Empress Elizabeth in Geneva in 1898, police and state officials decided to hold the “International Conference in Rome for Social Defence against Anarchism.” ‘There, government and police officials

from twenty-two states called for the deportation of foreign anarchists and expressed the desire to share more surveillance information.

Yet there were major legal, procedural, and cultural obstacles to creating an international legal regime that would crack down on bomb-throwers, anarchist '© On the history of the debate concerning legal versus political disputes, see Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Oxford University Press, 1933), 51-60, particularly the views of Goldschmidt and Trendelburg. '7 Mathieu Deflem, Policing World Society: Historical Foundations of International Police Cooperation

(New York: Oxford University Press, 2002), 49-51, 57-62, 93-4.

Nineteenth Century Precursors 21 worker groups, and pamphlet publishers. First, every state had its own legal jurisdiction and in some cases claimed jurisdiction over its nationals when they committed a crime abroad. There was no universal system of extradition, and some states were not willing to deliver a suspect if the act was not a crime according to their legal code. Furthermore, in trying to devise an overarching plan to expel anarchists and strengthen laws against them, state officials and police had to agree whether publishing anarchist writings and holding meetings to discuss anarchist ideas were crimes. The Swiss and British governments, coming from liberal traditions, opposed this. Finally, Swiss neutrality created a special problem, because Switzerland was willing to grant asylum to foreign anarchists and socialists if they were willing to abjure all violence against their homeland while residing in Switzerland. All these hurdles meant that police were unable to develop a centralized international police agency or an international legal jurisdiction—one legal framework giving different police forces and national courts that same power of arrest, detention, and prosecution—for “terrorists.”!®

Apart from these diverse legal projects, two organizations, the Institute of International Law (the /nstitut de droit international, founded in 1873) and the International Union of Criminal Law (the /nternationale Kriminalistische Vereintgung, founded in 1888), contributed a set of ideas, moral values, and interest in political engagement that spread to later generations devoted to developing international criminal law. The Institute developed international law as a new discipline based on a sociological intent to help European public law progress according to social changes, rather than remain static and deal only with the mechanisms and formalities of diplomatic relations. The group was formed by liberal-minded European publicists, lawyers, humanitarians, and politicians, some of whom were shocked by the harshness of the Franco-Prussian War of 1870-71. Others were seized by a new spirit of internationalism that accompanied the second wave of European industrialization, urbanization, transnational migration, and trade liberalism in the later nineteenth century. Its founding figures included the abovementioned Rolin-Jaequemyns, Westlake, and Moynier, as well as a Dutch lawyer, Tobias Asser, the German international lawyer, Johann Caspar Bluntschli, and the Italian Foreign Minister Pasquale Mancini. This constellation of lawyers, activists, and politicians sought to liberalize states by abolishing servitude, establishing the right to free assembly, and reforming harsh penal laws; they also wanted to codify private law to establish international rules for contracts and disputes among individuals from different countries. Regarding colonialism, they were opposed to private companies ruling colonies as their sovereign territories, which they believed led to excesses and inter-state conflicts. Instead, they believed that states had a duty to occupy and directly govern colonial regions in the interest of “civilizing” the colonial subjects. This was supposed to have the benefit of both imparting the cherished European legal concept of sovereignty to them, as well as supposedly preventing the power conflicts that arose when states did not “effectively” occupy '§ Hsi-huey Liang, The Rise of Modern Police and the European State System from Metternich to the Second World War (Cambridge: Cambridge University Press, 1992), 155-69.

22 The Birth of the New Justice their colonies.'” They did not reject nationalism as a destructive or exclusivist force, but embraced it as a positive development that existed universally in all peoples. However, World War One dissolved the movement, which separated into nationalist camps and multiplied into new intellectual trends in international law.*° Although the Institute’s thinkers and activists were involved in different projects,

three elements from their politics, ideology, and cultural viewpoint are important for later developments after the First World War. The first was their liberalconservative orientation. On the liberal side, they believed international law should progress according to changing social values (and they saw themselves as the keepers, or the “conscience” of those values), while on the conservative side, they were staunchly anti-revolutionary and opposed to socialism. Second, although Institute members did not share a single theory about the operation of a state, its relationship to its citizens, and the foundation of its laws, they viewed the state as a positive development in the history of civilization. While their liberalism left room for the protection of individual rights, the contemporary postmodern view of the state— that it is an institution of control, brutality, and violence—was a far cry from their concepts. Third, the nineteenth century international lawyers believed in gentlemanly conduct in international affairs (among European nations, the only group that truly qualified as equals), and war as a matter of honor (especially since it had to be fought according to civilized rules). This was vastly at odds with the actual

politics and conduct of the time, but this belief in an elite, civilized manner of conducting the business of governance and diplomacy persisted in later jurists’ ideology that systems and laws could regulate the world’s problems.

While the Institute expressed its spirit of internationalism by attempting to codify private law and reform European states along liberal lines, the International Union of Criminal Law (die Internationale Kriminalistische Vereinigung) wanted to reform criminal laws so that punishment would “correct” the criminal’s behavior and render him or her safe for society, rather than merely imposing retribution to uphold principles of right and wrong.’' ‘The group was founded in 1888 by three professors of criminal law: the Austrian, Franz von Liszt (1851-1919, active in

Germany), the Dutchman, Gerardus van Hamel (1842-1917), and the Belgian, Adolphe Prins (1845-1919). Earlier in the nineteenth century, European countries had reacted to the social effects of industrialization and urbanization by adding

new crimes and harsher penalties to their penal codes. For the founders of the '? Martti Koskenniemi, Zhe Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002), 144-55. °° On the history of the Institute, see Koskenniemi, 7he Gentle Civilizer of Nations, 65-79, 95-7. On the fate of the Institute, see Martti Koskenniemi, “Nationalism, Universalism, Empire: International Law in 1871 and 1919” (paper presented at “Whose International Community? Universalism

ane he Legacies of Empire,” Columbia University, Department of History, April 29-30, 2005), “1 -J.A. Van Hamel, “The International Union of Criminal Law,” Journal of the American Institute of

Criminal Law 2, no. 1 (1911): 22-7; Marc Ancel, “The Collection of European Penal Codes and the Study of Comparative Law,” University of Pennsylvania Law Review 106, no. 3 (1958): 356; Elisabeth

Bellmann, Die Internationale Kriminalistische Vereinigung (1889-1933) (Frankfurt am Main: Peter Lang, 1994), 14-31.

Nineteenth Century Precursors 23 International Union, the classical school of penal law failed to consider the sociological causes of crime, the make-up of the criminal and his intentions, and the role punishment should play in preventing crime and recidivism. The group grew

to over two hundred jurists, lawyers, doctors, and psychiatrists from around Europe. By organizing congresses and publications, they helped develop the idea that juveniles should be treated differently from adults, the state should employ reformatory schools and workhouses, not only prisons, and repeat offenders should be removed from society to prevent them from doing further damage to it. Between the end of the nineteenth century and the first decades of the twentieth, jurists were influenced by this school of “social defense” and integrated its concepts into European legal systems.” Although the Union fell apart due to tensions between the German-Austrian and French-Belgian sides during World War One, the group’s intellectual views influenced jurists who wanted to build a new field of international criminal law in the 1920s and ’30s. While some of the International Union’s ideas sound enlightened and “liberal” to the modern sensibility—the notion that punishment should be tailored to the criminal’s age and past record, and that in many cases, reduced sentences and probation may modify behavior more than a penitentiary sentence— many of the jurists, who were liberal in the sense that they supported parliamentary democracy, still gave a strong role to the state as an administrator and controller of behavior. For example, von Liszt hoped that the new “socialist” orientation (meaning the idea of protecting society, not Marxist socialism) would overcome liberalism and lead to a reformed criminal code in Germany. In 1893, he wrote: “Liberal individualism, which affirms the interests of the individual against the collective, the spirit of the Enlightenment and the great French revolution that emerged from it|,] have brought us a sharp limitation of penal authority; will this be able to resist the incoming socialist current? I welcome this current and I would

then welcome it if it should wash away the [old] penal code together with its authors and its adherents.”*° The Union also debated whether “habitual criminals,” vagrants, and “inebriates” could be imprisoned before they actually committed a crime, because they allegedly posed a danger to “common safety.” The German members of the Union sup-

ported these measures, while the French and Russian members argued that the rights of the individual should be protected against “elastic formulas or arbitrary confinements.”** During the 1920s and ’30s, international criminal lawyers continued this same debate about taking preventative measures to guarantee public safety, but they discussed the problem in the context of how best to repress and punish cross-border terrorism, human trafickers, and drug smugglers. Hence internationalism had another side. It was not only the liberalism of international institutions devoted to peace, arbitration, and the regulation of warfare. It was also the development and refinement of repressive mechanisms that could be used for * Ancel, “The Collection of European Penal Codes and the Study of Comparative Law,” 358-68. °° Quoted in Bellmann, Die Internationale Kriminalistische Vereinigung (1889-1933), 17. *4 Van Hamel, “The International Union of Criminal Law,” 26.

24 The Birth of the New Justice a variety of social and political purposes by states, as a collective group, to maintain their internal social structure and moral boundaries.

Another important consequence stems from the demise of the International Union and its division into a Francophone/Eastern European camp and a Germanic camp after World War One. French jurists started a new organization, the International Association of Penal Law (Association Internationale de Droit Pénal),

in 1924, but did not invite German and Austrian jurists to join.” The German government refused to send delegates to the association's first congress in Brussels in 1926, and this continental separation persisted during the interwar period. The greatest separation, however, came as a result of the Paris Peace Conference and the Versailles Treaty system. As the next chapter will explain, Allied jurists and diplomats advanced the concept of an international tribunal to punish German violations of the laws and customs of war (as well as the unleashing of the war itself), which meant that imperial Germany became the basic model for the type of state and military that would order and condone such actions. ‘The issue is not whether it was fair to exclude the German delegates and jurists from the Peace Conference negotiations, or whether the Allied attempt to punish was one-sided. Rather, the use of Germany as the model of an aggressive state whose rulers and generals disregarded international laws meant that the German case became the yardstick for the development of legal theories and legal machinery. Jurists focused on ordergivers, order-followers, military stafts, and occupation policies, but did not analyze non-military organizations or the exact connections between ideological political parties and the perpetration of mass crimes. These problems had existed during the 1890s—the Turkish massacre of Armenians in 1895, the formation of Balkan terrorist groups and irregular armed bands, the influence of xenophobic nationalist and religious hatred on collective violence—but they became even more widespread in Europe during the 1930s—40s. Certain theories of criminal behavior and war-time conduct that emerged between the 1880s and the 1920s did not fit them particularly well. Thus, one of the intellectual-historical problems that this work will later address is how particular historical situations shaped a set of legal ideas,

and jurists then tried to fit these ideas to new political situations and expanded forms of collective violence, usually with mixed success. kK K K K K

Stepping back from the individual internationalist projects in the pre-World War One period, there are some general reasons why criminal prosecution remained national and municipal in this period, and why, in an age of expanding colonialism, postal unions, telegraph unions, transcontinental railways, and transoceanic passenger ships, an international concept of prosecution and punishment did not decisively emerge. First, the independence of the sovereign ruler had been an accepted part of diplomacy since the end of the Thirty Years War in Europe (1648),

when it was agreed that territorial rulers had the right to undertake their own diplomacy (separately from the Holy Roman Emperor) and that they had the right ° Bellmann, Die Internationale Kriminalistische Vereinigung (1889-1933), 138-46.

Nineteenth Century Precursors 25 to determine the religion in their territories. The absolutist state of the seventeenth and eighteenth centuries strove to expand its borders, regularize military service,

and centralize taxation for the purposes of fighting wars and protecting trade routes. Legal theorists and publicists distinguished between a state’s right to make war and the rules that the military should follow when conducting the war. ‘The military was under the control of the monarch, and only with the gradual intro-

duction of constitutional regimes was it placed under parliamentary control, in some cases (such as Germany) not until after World War One. This meant that military discipline and punishment for violations of military legal codes were strictly internal matters, not subject to the legal processes of other states. Following wars, states customarily exchanged prisoners and granted amnesty; they did not prosecute enemy soldiers for acting dishonorably, failing to follow customs, or violating the victorious state’s military regulations. Second, the military in Europe, even after the bourgeois constitutional revolutions of 1848-49, remained a powerful caste, holding great status and authority. Its leaders held that certain rules of warfare were acceptable as long as commanders in the field could exercise their judgment about when they should be applied. They did not want their hands tied when the possibility of quick victory was in sight, or

when it seemed legitimate to take reprisals against the enemy to punish him for some violation of customary law. In the nineteenth century era of guerrilla warfare, when partisans, villagers, and bandits formed their own self-defense organizations (common in the Spanish war of liberation against Napoleon in 1808, the Serbian revolution of 1804, and the Greek revolution of 1821), military leaders did not want to recognize irregular soldiers as deserving protection as prisoners of war unless they were under a centralized command, wore a distinctive insignia, and carried their weapons openly. Additionally, between 1890 and 1914, military leaders claimed that if they had the freedom to conduct a war “according to military necessity,” they could fight a faster war, which would mean a shorter war with supposedly fewer casualties. This required that the military leader should have discretion over which “customs” of warfare should be followed. As the German manual stated, the officer must use all means necessary to achieve his objective; secondary considerations came from “the precepts of religion, civilization, and honor,” not international law.*° The reality, however, was that in colonial wars, such as the German military’s scorched earth and genocidal policy against the Herero and Nama people in southwest Africa in 1904, German military commanders shared an insti-

tutional culture that prioritized the total destruction of the enemy, believing that the only way to eliminate the causes of colonial rebellion root and branch was to take no prisoners and deliberately murder the civilian population.’ Third, European lawyers and legislators reformed their penal codes within the framework of the state and municipality's authority. Unifying the principles of criminology and punishment across the European continent did not mean creating *° Grosser Generalstab. Kriegsgeschichtliche Abteilung I, Kriegsbrauch im Landkriege, 31: 9. *” Isabel V. Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany

(Ithaca, NY: Cornell University Press, 2005), 2-3, 28-33.

26 The Birth of the New Justice a universal jurisdiction or an international legal system. The reason for this was that municipal prosecution developed from the privileges and the rights of the town, and the town’s patricians, merchants, and craftsmen had fought to maintain these rights against the expanding power of the prince or king in the early modern period. Additionally, after the revolutions of 1848-49 and the new constitutions that followed, states gradually introduced new penal codes and bureaucratized their legal systems. The educated male bourgeois believed that the legal safeguards over trial and punishment should be the same for all, irrespective of social caste or class. This hard-won right became part of the core of the national tradition and its institutions. The legal process was housed in the cherished hall of justice (proudly displayed in most European cities), not the lord’s manor or the king’s court. Therefore, it was both a conceptual leap and a risk to propose that individuals, who had only gained definite legal safeguards in criminal proceedings over the last century, should now become subject to international law and possibly an international court. [his was further backed up by the central doctrinal concept of international law prior to World War One: the law of nations dealt with sovereign states, not the subjects and citizens who actually peopled them.

The Birth of the New Justice at the Paris Peace Conference The atrocities of the First World War, the political requirements of the peace settlement, and the war's destruction of European legal ideas and moral conventions catalyzed three approaches to deal with war and war crimes between 1919 and 1922. The first was the Allies’ attempt in 1919-20 to establish post-war international war crimes trials, the subject of this chapter. There were two other political-legal responses as well, which Chapter 4 will analyze: the Hague negotiations to write the statute for

the Permanent Court of International Justice in 1920, when an official Committee of Jurists debated creating a permanent international criminal chamber, and a proposal by certain national Red Cross societies in 1921—22 to create a neutral international commission which would investigate violations of the laws and customs of war committed by any belligerent during the First World War.

Previous historians have analyzed the facts and cultural interpretations of German atrocities, the history of the Paris Peace Conference negotiations, the work of the Commission on Responsibilities (a body of legal advisors which formulated two competing plans for post-war punishment), the extradition negotiations, and the failure to implement the penalty clauses of the Versailles Treaty.' My analysis

concentrates on the Commission on Responsibilities, a technical body which advised the Paris Peace Conference on the issue of criminal penalties, in order to demonstrate the variety of motives and moral positions at work and the difficulties the delegates faced in hammering out legal and political solutions.” The European ' James Morgan Read, Atrocity Propaganda 1914-1919 (New York: Yale University Press, 1941); James E. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First

World War (Westport, Connecticut: Greenwood Press, 1982); Walter Schwengler, Volkerrecht, Versailler Vertrag und Auslieferungsfrage. Die Strafverfolgung wegen Kriegsverbrechen als Problem des Friedensschlusses

1919/20 (Stuttgart: Deutsche Verlags-Anstalt, 1982); John Horne and Alan Kramer, “German ‘Atrocities’ and Franco-German Opinion, 1914: The Evidence of German Soldiers’ Diaries,” Journal of Modern History 66 (1994): 1-33; Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes

Tribunals (Princeton, N.J.: Princeton University Press, 2000); Nigel J. Ashton and Duco Hellema, “Hanging the Kaiser: Anglo-Dutch Relations and the Fate of Wilhelm H, 1918-20,” Diplomacy and Statecraft 11, no. 2 (2000): 53-78; John Horne and Alan Kramer, German Atrocities, 1914: A History of Denial (New Haven and London: Yale University Press, 2001); Binoy Kampmark, “Sacred Sovereigns and Punishable War Crimes: The Ambivalence of the Wilson Administration towards a Trial of Kaiser of Wilhelm II,” Australian Journal of Politics and History 53, no. 4 (2007): 519-37. 2 At least four sources contain the Commission minutes and documents. The French version, La Documentation Internationale, La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions,

ed. Albert de Lapradelle, vol. 3 (Paris: Les Editions Internationales, 1930) contains subcommission and plenary session minutes from 3 February through 29 March, memos on crimes (submitted to the

28 The Birth of the New Justice jurists on the Commission sought post-war trials for the German ex-Kaiser and many major German military and political figures, who were to be prosecuted for violating the laws and customs of war and the “laws of humanity.” This would have required that Holland extradite the ex-Kaiser and Germany extradite high-ranking military figures, which had never before occurred after a war. American jurists and

legal advisors to the Peace Conference were opposed, arguing that a sovereign could only be held responsible by his people (not a group of outside states) and that the punishment of enemy officers and soldiers could best be handled by the military tribunals of each sovereign state. Behind both legal positions were a variety of political and moral justifications for and against post-war prosecution, demonstrating that punishment was closely connected to divergent visions of the post-war international order and the construction of the history of the war. During their debates at the Paris Peace Conference, the European jurists and politicians did not speak with one voice, as there were many complex legal prob-

lems they had to work out. However, those who supported post-war trials advanced a new type of criminalizing imperative: the domestic institutions of criminal liability, trial, and punishment should be applied to the international state system. There are several reasons why I term this a criminalizing imperative, rather than merely referring to it as the application of liberal legal institutions, or

legalism, as American political scientist Gary Bass does in his analysis of war crimes trials and as Swiss historian Daniel Segesser, following Bass, does in his analysis of legal scholars’ debates over the definition of war crimes and what types of legal processes should be used to deal with them.’ First, there were numerous signs in the planning for trials that they were to serve multiple, sometimes contradictory purposes, not merely legitimize liberal ideas and express “universal humanitarianism,” as Bass claims.* These purposes included: Subcommission on Criminal Acts), and draft and final versions of the Commission's overall reports. The minutes represent the delegates as speaking in the first person and include longer statements and exchanges (except for 24 March, which probably is not a verbatim transcription). The American version in English, Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties.

Minutes of the Meetings of the Commission, in Yale University Library, Manuscripts and Archives, Frank

L. Polk Papers (MS 656), Box 30, summarizes the delegates’ remarks and puts them into the third person; they are considerably shorter than the French version. It also does not contain the minutes of the first subcommission (on Criminal Acts). However, this version contains materials not in the French version, such as certain documents used by subcommissions, subcommission draft reports, and plenary sessions from July (dealing with the Balkan tribunal). My analyses rely on these two versions. A third set, Conférence de la Paix 1919-1920. Recueil des actes de la Conférence, Partie IV: Commissions de la Conférence (Procés-verbaux, rapports et documents), B. Questions générales, (2) Commission des responsabil-

ités des auteurs de la guerre et sanctions (Paris 1922), was the official version released by the French For-

eign Ministry in 1922. This also contains condensed delegate statements in the third person. (See Schwengler, Volkerrecht, 91, n. 89.) A fourth version is the unedited stenographic minutes, found in the

National Archives and Records Administration, Washington, D.C., RG 256, used by Peter Holquist,

““Crimes Against Humanity’: Genealogy of a Concept (1815-1945),” 31-40, paper presented to “Europe, 1815-1914. Between Restoration and Revolution, National Constitutions and Global Law: An Alternative View on the European Century 1815-1914.” Helsinki, March 6, 2012. > Bass, Stay the Hand, 20-34; Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872-1945 (Paderborn: Ferdinand Sch6ningh, 2010), 20. * Bass, Stay the Hand, 23.

Birth of the New Justice 29 redefining the war so it would not appear to be a colossal waste to the populations on the winning side; a political means of dismantling the German Great General Staff and discrediting the German Kaiser; and a cultural—moral process of rebuild-

ing and crucially expanding international law. Second, trial plans proposed by jurists at the Paris Peace Conference and the discussions by the Council of Four show that safeguards for the accused were a secondary consideration, when they were considered at all. The British delegation had put forward a detailed plan for an international tribunal, guaranteeing a number of rights for the defendants: public trials in which the accused would have the right to legal representation; the right to know in advance the charges, a summary of the evidence, and the witnesses; and the right to cross-examine the witnesses.’ Yet the final European report made no mention of any of these, and penalty clause 229 of the Versailles Treaty only stated the right of the defendant to appoint his own counsel.° This does not mean that I accept the view of German historian, Walter Schwengler, who argues that the attempt to extradite German nationals after the war was a Prench—British act of vengeance that completely violated pre-existing international law and custom.’ Nor do I contend that the European jurists who supported the use of post-war trials intended to hold “show trials.” As legal theorist Otto Kirchheimer argues, a political power can hold a political trial to rebuke or warn its political enemies, reinterpret the past, or construct a wall of morality between past and present regimes.® In doing this, the trial does not have to go so far as to involve forced confessions or a pre-determined verdict; it can still have many elements of “fair play.” Fur-

ther, I agree with German legal historian Gerd Hankel, who argues that the Allies’ demands for post-war prosecution were not a stage play to quiet the public or wreak vengeance, but stemmed from a sincere desire to prevent crimes, such as massacres in Belgium or the use of unrestricted submarine warfare, in the future.’ However, I would like to explain and analyze several ideas within the European jurists project to expand the notions of crime and punishment to international law in order to show their eventual contribution to what became the new field of international criminal law. This requires a historical analysis that does not only analyze the issue of trials as part of the legal—political history of the post-war peace

settlement, or only answer the question, “Why trials instead of executions or > Memorandum submitted by the British Delegates, Annex IV to Minutes of the Second Meeting of the Plenary Commission, February 7, 1919, Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties. Minutes of the Meetings of the Commission, 31—2 in Yale Uni-

versity Library, Manuscripts and Archives, Frank L. Polk Papers (MS 656), Box 30. Future references to these minutes will be cited as Commission, Polk Papers. ° Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports

of Majority and Dissenting Reports of the American and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919 (Oxford: Clarendon Press, 1919), viii, 24-5.

” Schwengler, Volkerrecht, 50-5, 71-80, 150-5, 190-4, 343. * Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, N.J.:

Princeton University Press, 1961), 46-118, 308-19. When creating a moral dividing line between past and present, a political power may also limit prosecutions to prevent them from getting out of control and creating an unstable political situation. > Gerd Hankel, Die Leipziger Prozesse. Deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung

nach dem Ersten Weltkrieg (Hamburg: Hamburger Edition, 2003), 14-15.

30 The Birth of the New Justice banishment.” Instead, I will argue that the European jurists (from the Allied side) on the Commission on Responsibilities outlined a set of rough proposals to transform several aspects of the international system. ‘They wanted to convert violations of customs and legal conventions into crimes incurring individual penal liability, restrict a sovereign head of state’s immunity, limit the power of the military and state in certain situations, and advance a blueprint for an international tribunal for crimes whose victims were nationals of multiple countries. I call this new type of enforcement regime, “the new justice.” The term comes

from a Dutch debate in the popular press in 1919 about the legitimacy of the Allies’ demand that Holland extradite Wilhelm II, but I have expanded its meaning.

Originally, Joost Adriaan van Hamel, a Dutch law professor, political editor-inchief of the weekly De Amsterdammer, and a legal advisor to the new Secretariat of the League of Nations, published an article that stated that the Dutch government should not go down in history as shielding the ex-Kaiser from a court of nations.

He admitted there were technicalities in the interpretation of Dutch asylum law, and some in Dutch government circles wanted the Allies to guarantee an impartial proceeding. But van Hamel thought all these problems should be cast aside. The situation demanded “justice according to the spirit....It must be understood also

by jurists that this matter cannot be dealt with according to set rules, made for entirely other circumstances. This is an enormous historical and moral problem concerning millions of people. It is a question of responsibility of a ruler... for the misery of the world war and for the injustice with which it was commenced.”'? But a Handelsblad article on October 25, 1919 forcefully took issue with van Hamel

and the “new justice,” which the anonymous author defined as the demand for punishment for violating treaties and waging war. What would happen to the principles of the “old justice,” which were hard-won and equally important? “There

is the principle that punishment may be inflicted only by a judge guaranteeing absolute impartiality; that the accuser and the judge may not be the same person; that nobody may be punished other than for specified crimes after a proper investigation of the proof submitted; that no extradition may take place on the ground of so called political offences.”"!

Van Hamel had called for “justice according to the spirit,” in which the old rules had to be adjusted to fit a “new morality,”!* while his opponent defended the '© Robertson (Ihe Hague) to Curzon, July 3, 1919 (Doc. 17) in Michael L. Dockrill, ed., British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print. Part IL. From the First to the Second World War. Series I. The Paris Peace Conference of 1919. Vol. 5. Reports of the

Peace Conference Commissions: Internal Conditions in Germany; Saar Valley Question; France and the Conference (Frederick, Maryland: University Publications of America, 1989).

'! “The Legal Position of the Emperor and Crown Prince,” translated from Handelsblad, January 30, 1919 (Doc. 18) in Dockrill, ed., British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print. Part II. From the First to the Second World War. Series I. The Paris Peace Conference of 1919. Vol. 5. The date in the translation must be incorrect, because the text refers to the

signing of the peace treaty and mentions that General Smuts had expressed discontent about the Allies’ intention to prosecute the ex-Kaiser. It was probably published in the fall of 1919.

'2 Van Hamel used the phrase “new morality and a new law” in a League of Nations memo, February 6, 1920, League of Nations Archives, Geneva, R1273, Document No. 2944, Dossier No. 2944. Future references to these archives will be abbreviated as LNA/1273/2944/2944.

Birth of the New Justice 31 European burghers’ idea of constitutional protections. Advocates of the new justice wanted to transform the concept of violations (as defined by international

law) into crimes, utilize prosecution instead of moral censure, employ trials instead of political condemnation, and replace absolute state sovereignty with limited sovereignty. But defenders of the old justice wanted to preserve the ideals of impartial criminal trials, maintain national traditions, uphold the state’s right to grant political asylum, and protect its nationals against politically-motivated prosecution. Due to these complexities, one should resist seeing this historical process as a simple one of innovation versus conservation or an expansion of law versus the retention of state power. The “new justice” was an attempt to prosecute individuals, regardless of their rank, under international law and even broader standards (“the laws of humanity”), yet it was also filled with political decisions and moral messages about the meaning of the war. When Allied political leaders attempted to implement it, they were more interested in redressing injuries and

injustices sustained by the past war than creating a complete mechanism that would prevent future aggressive war and violations of the laws of war.

THE ALLIES’ REASONS FOR POST-WAR INTERNATIONAL PROSECUTIONS Historians have offered various reasons why the Allies sought to impose punish-

ment after the war, when post-war trials had never been imposed before and victors had never demanded the extradition of enemy nationals. James Morgan Read, an American scholar, contends in a 1941 book, Atrocity Propaganda 1914— 1919, that the European demand for punishment was stimulated by atrocity propaganda, most of which was exaggerated, save for the massacres of Belgian civilians

by German forces, the deportation of Belgian workers to Germany, and the Armenian massacres, as the genocide of 1915-16 was then called. Writing before U.S. involvement in World War Two, Read suggests that a moderate peace could have prevented the resurgence of German militarism.'* James Willis, an American diplomatic historian, recognizes the role of propaganda, domestic political outrage over certain high-profile atrocities, and the late nineteenth century trend of seeing aggressive war as a crime.'* German historian, Walter Schwengler, holds that the push for post-war trials and extradition was advanced by the British and especially the French, who sought severe peace terms to satisfy domestic public opinion rather than for legitimate legal or humanitarian reasons. Emphasizing that these demands were unprecedented in European history, he maintains that granting amnesty to German soldiers and commanders would have been more just and in accordance with existing international law. Since the U.S. opposed

an international trial of a head of state and the international prosecution of individuals for alleged war crimes on the legal grounds that heads of state were

'S Read, Atrocity Propaganda 1914-1919, 285. 4 Willis, Prologue, 4-15, 27-32.

32 The Birth of the New Justice only responsible to their domestic populations, and that positive international law at the time did not specify the criminal prosecution of individuals before an international tribunal, Schwengler believes that the American political-legal foundation at the Peace Conference was more just than the European Allies’ demands." Gerd Hankel, a German legal scholar, disagrees with this view, arguing there were three broad reasons for the Allies’ insistence on legal punishment. First, Germany's militarism, disruption of the European balance of power, and unlawful violation of Belgian neutrality turned it into an outcast nation. Second, he claims that before the war, peace movements influenced government circles in liberal parliamentary states to support the creation of a permanent international court, but Germany allegedly opposed this more fervently than other states. This is a

problematic argument, since Hankel does not explain the influence of peace movements on the punishment issue specifically. Third, the progressive develop-

ment of the laws and customs of war, such as the Hague Convention and the 1906 Geneva Convention (which permitted the application of punishments to soldiers who robbed and mistreated the wounded and sick), erected binding international norms.'® This is quite true, but it does not explain why the European

victors sought international tribunals, rather than domestic courts or military commissions, to enforce international law. As a matter of war-time practice, after the Battle of the Marne, French military tribunals tried and sentenced German soldiers who fell into their hands, but the French government halted legal proceedings when Germany instituted reprisal measures against French prisoners of war. In August 1916, the two governments

sought to end this escalation, so they negotiated an agreement that stated that sentences imposed before September 1, 1916 would not be carried out until after the war. They also agreed that they would give the same treatment to prisoners of war found guilty of war crimes and “normal” prisoners of war. In April 1918, judicial sentences that had been handed down after September 1916 were sus-

pended until after the war.'’ Thus the imperative to prosecute and punish was moderated in the interest of protecting prisoners held by the enemy. The British also had to change their war crimes policy during the war to adapt to military exigencies. On February 4, 1915 Germany announced that it would sink enemy merchant ships without guaranteeing that subs would warn merchant crews and passengers in advance. In response, when the British navy destroyed U-boats, it arrested and imprisoned German crews, but instead of holding them as normal prisoners of war to be released when the conflict ended, it treated them as violators of international law who would eventually be put on trial. Germany, however, claimed its crews were simply acting under orders and should not be treated as criminals. Retaliating against British policy, Germany changed its treatment of '° Schwengler, Volkerrecht, 103-6. '© Hankel, Die Leipziger Prozesse, 34-40. '’ French politicians and jurists also discussed codifying the Geneva and Hague conventions into French domestic criminal law, as well as ways to try German soldiers and officers in absentia, but neither was realized. Schwengler, Volkerrecht, 63-5.

Birth of the New Justice 33 British war prisoners and transferred British army ofhcers (who came from notable families) to military detention barracks, which the British considered dishonorable. Britain was forced to soften its policy toward U-boat crews: it agreed to treat them as “normal” prisoners of war, but the government declared that it would still take up the issue of charging them with individual criminal violations at the end of the war.'®

By the end of the war, Allied governments rekindled the demand for punishment to mitigate domestic political cleavages and social unrest. In the fall of 1918, nationalist and reactionary forces in Britain and France supported a Carthaginian peace, including post-war punishment. By listening to these demands and accepting some of them, the governments hoped to stave off more extreme factions, channel popular discontent, and show that they were not going to capitulate to the domestic demands of the “forces of movement,” which sought labor and social welfare reform.'? In France and Belgium, there was intense resentment about the German invasion, atrocities against civilians, the devastation of agriculture, and the enemy's military rule in occupied areas. In Britain, Canada, and the U.S., highprofile atrocities, such as the German military execution of Nurse Edith Cavell for treason, the execution of British merchant ship captain Charles Fryatt, and the sinking of hospital and passenger ships propelled a demand for punishment.” The British were also consistently concerned about reports that their prisoners of war had been maltreated. Historians John Horne and Alan Kramer argue that German massacres, deportations, and arson during the invasion of Belgium and France in 1914 set a mental framework against which the Belgian and French public created a cultural interpretation of the German military as perpetrators of atrocities and the enemy German nation as brutal and uncivilized. Furthermore, in 1917-18, when the British and French state needed to remobilize their populations to continue supporting the war, these states supported civilian organizations, such as the Ligue Souvenez- Vous and the National War Aims Committee, that reanimated the concepts of atrocity developed in 1914—15.7' In Serbia, there was intense resentment against Austria for its invasion and occupation. ‘This feeling extended to Bulgaria, as

the Great War in the Balkans was actually a continuation of the Balkan Wars of 1912-13, whose atrocities had been investigated, but not adjudicated. But why was there a desire to prosecute at the international level, rather than simply use domestic military tribunals for the limited situations in which they were recognized as legitimate? The legal culture of international law, in which the European powers had agreed to protect civilians and prisoners and war, limit the use of certain weapons, and refrain from certain battlefield and sea practices, created an expectation that the rules were valid and should have been followed.” Despite the fact that various belligerents violated some of them (the Germans, '8 Schwengler, Volkerrecht, 66-7. '? Arno J. Mayer, Politics and Diplomacy of Peacemaking: Containment and Counterrevolution at Versailles, 1918-1919 (New York: Alfred A. Knopf, 1967), 132-5, 151-7, 184-6. © Willis, Prologue, 30-1. 21 Horne and Kramer, German Atrocities, 190—5, 212—14, 317-21, 3235. * Hankel, Die Leipziger Prozesse, 38-40.

34 The Birth of the New Justice British, and French all used poison gas, for example),” the Western European victors believed they had fought as honorable, “civilized nations,” while Germany had conducted a war of terrorism, intentionally violating the laws of war as a matter of policy. By characterizing themselves as civilized and the Germans as barbarians, they helped legitimize a devastating war that had lasted over four years, disrupted trade relations, mobilized the full productive capacity of the domestic population, caused massive labor unrest, and practically wiped out a generation of young men. The Allied governments also tried to define the purpose of the war as a titanic ideological struggle. This was succinctly expressed by Poincaré in his opening speech at the Paris Peace Conference. The war was not fought because of the scramble for Africa, the influence of the military on politics, or regional rivalries (Austria versus Serbia or France versus Germany). It was an ideological conflict, a struggle “for the

dominion of the world,” in which the Allies, representing “the idea of justice,” fought against the autocratic Central Powers, representing “the idea of sovereign force, which accepts neither control nor check.” During the war, lawyers, criminologists, and academics from the Entente and the Central Powers had debated whether soldiers could be prosecuted by an enemy

court for international violations (German lawyers generally did not think they could), whether violations of the Hague and Geneva Conventions could be recognized as crimes under military or domestic criminal legal systems, and whether it would be possible to erect an international tribunal. There was obviously little agreement between the two sides.” But there was also an overarching difference about what should be done generally to re-establish international order, moral norms, and ideals of civilization. In 1916, for example, Franz von Liszt, the founder of the International Union of Criminal Law, argued in favor of regional legal agreements, the reconstruction of the rules of maritime warfare (since Germans considered the British blockade illegal), and a strengthened Hague Court of Arbitration. International criminal prosecution was not part of the diagnosis. In fact, he claimed (incorrectly) that “the rules for the conduct of war on land have, generally speaking, been lived up to.”’° These arguments, contained in “The Reconstruction of International Law,” were translated into English and addressed to American intellectuals, since the U.S. was still neutral at the time. Von Liszt obviously wanted it to remain that way, arguing that Britain and Germany could only abide by the laws of maritime warfare if a powerful neutral remained to exert an influence. Beyond that, he encouraged the U.S. to develop “American international law,” based on “political, commercial, and cultural interests” (presumably in

its Monroe Doctrine area), while Germany and Austria-Hungary would do the *3 Ulrich Trumpener, “The Road to Ypres: The Beginnings of Gas Warfare in World War I,” The Journal of Modern History 47, no. 3 (1975): 460-80. *4 See the English translation of Poincaré’s speech, printed by the London Times on January 20, 1919 and reproduced in the American Association for International Conciliation, Documents Regarding the Peace Conference (New York, 1919), No. 139, 807-13. *> Segesser, Recht statt Rache, 160-3, 194-201. *° Franz von Liszt, “The Reconstruction of International Law,” University of Pennsylvania Law Review and American Law Register 64, no. 8 (1916): 771.

Birth of the New Justice 35 same with Turkey and Bulgaria; the Entente powers would form a third group. How these groups would link together to form a new stronger international law was vague; it would depend on a “will to peace.” Much sterner measures were required than that, according to Hugh H. L. Bellot, a British international jurist. Post-war prosecution, led by a war crimes tribunal comprised of civilian judges from the Entente Powers, was necessary to deal with Germany. In his view, Germany had callously violated Belgian neutrality, disregarded the distinction between civilian and combatant, and used “frightfulness” as a method of warfare—a technique he claimed was most commonly used by “the Empires of the East.” The root of the problem, he wrote, was the historical development of the German state, which had supposedly returned to the violence of medieval Europe and the lower state of development which Europeans believed existed in Asia. Europe had a duty to stamp out this dangerous type of German

state by taking two steps. All states had to agree that international right was superior to national right, and violators of the laws and customs of war should not be allowed to plead the defense of superior orders.** Louis Renault, the leading French international jurist of his generation, acknowledged that, during the war, there were situations in which French military courts should be used to prosecute enemy violators. As for post-war extraditions, he stated that he understood the sentiment that inspired the demand—‘“men hungry for justice, revolted by what had happened, longing that the monstrosities which had

victimized the French and Belgians do not go unpunished.” But he warned in 1918 that if the Allies tried to extradite German soldiers and military officials after the war, the attempt would fail, since no vanquished state would ever turn over military men accused by a victor power. “This would be the abdication of all dignity, all the more because, nearly always, infractions of the law of nations have been committed by superior order,” he wrote, reflecting the Allied view that the German

military had ordered violations of the laws and customs of war as a method of fighting the war.” His prediction that extradition attempts would fail turned out to be correct, as this is precisely what happened in 1920. The Dutch international jurist, J. de Louter, wrote that after 1914, “war is now demoted and relegated to offenses against law and to crimes against humanity.” On the one hand, the war had shown that violence knew no limits, rendering the distinction between the laws of peace and the laws of war completely invalid. Yet he maintained that there would still be a place for war—as a method of repression against a violator state—which is the concept that was ultimately drafted into the Covenant of the League of Nations. He advocated a permanent international court and a council of inquiry which could investigate future disputes (not crimes) 27 Von Liszt, “The Reconstruction of International Law,” 773. *8 Hugh H. L. Bellot, “War Crimes and War Criminals. Some Practical Proposals (IH),” Canadian Law Times 37, no. 9 (1917): 20-1. See also Hugh H. L. Bellot, “War Crimes and War Criminals (1),”

Canadian Law Times 36, no. 10 (1916): 754-68 and Hugh H. L. Bellot, “War Crimes and War Criminals (I]),” Canadian Law Times 36, no. 11 (1916): 876-86. »” Louis Renault, “De l’application du droit pénal aux faits de guerre,” Revue Générale de Droit International Public 25 (1918): 25.

36 The Birth of the New Justice between states, but the sovereign state, resting on public opinion, always had to give

its consent in agreeing to a decision. Thus, he made no mention of international prosecution as a means of re-establishing international order and was opposed to creating an international police force. Representing the liberal-conservative, colonialist viewpoint in European international law, Louter saw nationalism as a positive,

sustaining force that would bring sovereign nations together in solidarity, yet he claimed that granting independence to Ireland and India would bring the world “close to suicide.”°°

Therefore, there was no consensus among international lawyers from the Central Powers, Allies, and neutrals that post-war prosecution was the definitive answer to rebuilding trounced moral standards or a community of states. But at the Paris Peace Conference, where the victors were in control, the European Allies made punishment one of their priorities. The reason why they sought international punishment may be explained by their interpretation of the war, the incomplete state of international law, and their post-war political and moral goals. With the outbreak of the war, European Allied jurists believed that the German invasion of

Belgium and Luxembourg violated the treaties guaranteeing those countries’ neutrality. Although violations of international treaties carried no international penalty, European jurists and statesmen on a special commission at the Paris Peace Conference, called the Commission on the Responsibility of the Authors of the

War and the Enforcement of Penalties, held that if there were no punishment, international law would have no value. Moreover, they maintained that Germany had fought the war by intentionally ordering violations of the Hague and Geneva Conventions, and here again, the punishment of those in positions of power was the only way to re-establish the validity of the standards. ‘The legal advisors interpreted the war as a state-ordered crime, the execution of civilians in Belgium and northern France as intentional policy (not as a reaction to an illegal “People’s War,” as the Germans believed and officially claimed),*' and the policy of unrestricted submarine warfare as an intentional violation of international law. European jurists and political leaders on the Allied side also believed that international trials would have a greater symbolic value than piecemeal national trials. International trials would have more political impact, carry greater cultural weight, and garner more press attention. “To deliver [a judgment] against the crimes which

demand the solemn and purifying sanction demanded by public conscience, a more elevated jurisdiction is required, with more resounding debates, a grander scene, wrote the French legal advisors at the Paris Peace Conference, arguing that Wilhelm II could only be tried by an international tribunal.°** International trials were not aimed at changing the culture and character of the defeated societies but 9 See J. de Louter, “La Crise du Droit International,” Revue Générale de Droit International Public

26 (1919): 87, 91-5, 103-8. 31 Horne and Kramer, German Atrocities, 74-7, 140-53, 237-47. °° Ferdinand Larnaude and Albert de Lapradelle, “Examen de la Responsabilité Pénale de ’Empereur Guillaume II,” in La Documentation Internationale. La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions, ed. Albert de Lapradelle (Paris: Les Editions Internationales, 1939), Supplement to vol. 3, 15.

Birth of the New Justice 37 were supposed to symbolically resurrect moral standards shattered by the war— and prove they could not be callously trampled. However, as a vehicle of symbolism and historical representation, a trial would have to be controlled. For this reason, limits in the charges and the handling of the cases had to be established. For example, the British delegation on the Commission on Responsibilities successfully argued that the Allies should limit the prosecution of ex-Kaiser Wilhelm I to the violations of the laws and customs of war—not premeditating the war or deciding to invade Belgium, whose neutrality was protected by international treaty. A trial designed to show that the war was premeditated might degenerate into an opportunity for the ex-Kaiser, former top German officials, and their lawyers to assail the Allies with political counter-charges and uncomfortable diplomatic documents from the previous two decades. Moreover, the British held that so many advisors had been involved in the decision to execute the Schlieffen Plan that it was a question of national politics, not individual will.*? There was therefore a dose of realism here. ‘The trial of ex-Kaiser Wilhelm II was, nevertheless, designed to be international because the autocratic power of the German imperial state could be symbolically torn down and discredited. The republican revolution within Germany

was not sufficient. Moreover, the trial of other monarchs could be sacrificed for various political and national reasons. Yet there was a tension between the notion of an international trial as a juridical event that could resurrect international law, and an international trial that would be controlled so that German defense lawyers would not use the courtroom as a soapbox, and judges from neutral countries would not pronounce judgments that were antithetical to the victors’ expectations of guilty verdicts. An international trial would be a political trial, but not in the sense of a treason trial or a trial of lése-majesté, in which a government tries to destroy political enemies by taking the defendant’s actions out of context.** In a political trial, a single event can be put under the microscope in order to seek “standards of judgment,” while events in a war crimes trial are magnified to prove the criminal character of war-time actions, demonstrating how they go beyond the acceptable conventions of violence in war. They are meant to show the perpetrators’ intentional disregard for non-combatants or for the wounded, an unwillingness to fight “cleanly,” within given boundaries. At the same time, the war crimes trial can be used to denigrate or de-legitimize a toppled, defeated regime or military. In this case, the individual perpetrator is a token placeholder for the crimes of the regime as a whole. There were two types of political trials, a contemporary French one and a British historical one, that Allied leaders wanted to use as models but which proved problematic. Before the Paris Peace Conference, at an Inter-Allied Conference, held in London on December 2-3, 1918, French Premier Georges Clemenceau referred to an “important political trial” when arguing in favor of a high trial for the ex-Kaiser. This was the treason trial of Joseph Caillaux, the pro-peace former French finance °> Minutes of the Second Subcommission, February 17, 1919, La Documentation Internationale, La Paix de Versailles, 3: 270. 34 Kirchheimer, Political Justice, 110.

38 The Birth of the New Justice minister and premier, whose parliamentary immunity had been stripped in 1917 and who had been arrested in 1918. Caillaux’s arrest and prosecution had been engineered by French President Raymond Poincaré, who had joined forces with his former enemy Clemenceau in an effort to destroy French leftists who had sought a negotiated peace with Germany in 1917.° By the time the European Allies met in London in late 1918, the Caillaux case had been transferred from a military judge to the French Senate. Clemenceau maintained that just as the French Senate “was a sovereign body and made its own law,” the Allies, sitting as a political body, had the same right to set the terms of the trial for Wilhelm IJ. This meant they could exclude neutral powers from a tribunal, since “they had not intervened in the war, and had undergone no sacrifice.”°° The British government also had a political trial in mind, but a much older one: the trial of Warren Hastings, the eighteenth-century British Governor-General of India who was impeached by the House of Commons, tried before the House of Lords, and

acquitted in a case that lasted seven years (1788-95). Sir Frederick E. Smith, the British Attorney General, referred to the Hastings trial in November 1918 when he told the Imperial War Cabinet that the ex-Kaiser had to be prosecuted. Smith quoted from a speech that Whig Parliamentarian Edmund Burke had delivered at Hastings’ trial: Hastings was “the head of the whole body of eastern offenders; a captain-general

of iniquity, under whom all the fraud, all the peculation [embezzlement], all the tyranny in India are embodied, disciplined, arrayed, and paid.”*’ Just as Hastings was cast as the ultimate colonial tyrant whose devious system had to be exposed to the

British public, the ex-Kaiser had to be prosecuted because he was the German commander-in-chief whose alleged ultimate responsibility for the heinous acts committed by the German military had to be demonstrated to the Allied public. However, the political trial of a top colonial administrator, who had fallen due

to political rivalries and the consequences of the imperial wars of the late 1770s and early ’80s, fits different domestic political needs from the trial of a foreign autocrat following a devastating modern war that had more directly affected the European continent. What about the German submarine commanders who had attacked hospital ships and commandants of prisoner-of-war camps who had mistreated Allied soldiers? What would happen if they pleaded a defense of superior orders? For this reason, the ex-Kaiser did not merely have to be punished as the chief representative of German militarism and might over right. He had to be punished to ensure that his underlings would not go free, because if they were, the entire system of German military autocracy could not be exposed as backward and uncivilized. For Britain, France and their allies, it was certainly morally necessary to prosecute those who had committed real crimes, but it was also necessary to demonstrate to the European Allied domestic populations that the war had been fought for valid reasons. °° Kirchheimer, Political Justice, 63-76.

0 pavid Lloyd George, The Truth about the Peace Treaties (London: Victor Gollancz Ltd., 1938), 1: °” See Smith’s speech in Lloyd George, The Truth about the Peace Treaties, 1: 104—5.

Birth of the New Justice 39 Therefore, the constructions of judicial process, prosecution, and the applicable law were important considerations. The model of political trial had to be tailored to prevent it from turning into a long, drawn-out affair in which various legal arguments and presentations of witnesses might dilute the moral and political messages which the Allies wanted to promote. The British Foreign Secretary, Arthur Balfour, a Conservative, stated at the Inter-Allied Conference that if complicated political questions were introduced at the trial—such as Germany’s pre-war fear that Russia would soon complete its strategic railways (financed by France in early 1914)°**— then a political trial would drift away from the presentation of the ex-Kaiser as “the ringleader in the greatest crime against the human race.”*’ As previously mentioned, the established form of the political trial based on charges of treason and lése-majesté could not be the precise model for this new situation, in which war was now viewed as a crime. In a domestic treason trial, the offended power was the monarch or the government of a constitutional state, but an international political trial for aggressive war would have to deal with multiple offended powers, as well as the broken system of international law and shattered European moral norms. Additionally, post-war trials for violations of the laws and customs of war required a new model because the Allies did not have the enemy commanders in their hands at the end of war the war, and because it was not clear if war councils or military tribunals would still have the authority to prosecute enemy violators once the armistice was signed.

THE COMMISSION ON RESPONSIBILITIES: THE EUROPEAN-U.S. DIVISION During the war, Bellot had already begun to take action to revise the laws of war. Bellot’s own idea was that appropriate punishments should be attached to viola-

tions and either a new Hague Court of Criminal Appeal might be created, or the then-current Hague Court (the arbitration panel) might be invested with the power to prosecute and punish. Despite the near-collapse of international jurists’ doctrines and their recondite intellectual domain, they still saw themselves as a potential force for transformation. Bellot recommended that jurists in national organizations concerned with international law should prepare draft conventions, exchange them, and critique them in preparation for an international conference. The Société Francaise de Droit International had agreed to collaborate with the

Grotius Society on such a project. (Ihe Grotius Society was a British body of international jurists to which Bellot belonged.) The Carnegie Endowment for International Peace was working on a similar project, and Bellot wanted to gain the co-operation of the American Society of International Law in the U.S., the American Institute of International Law, and the Société Bresilienne de Droit °8- D.N. Collins, “The Franco-Russian Alliance and Russian Railways, 1891-1914,” The Historical

Journal 16, no. 4 (1973): 787-8. *” Lloyd George, The Truth about the Peace Treaties, 1: 142.

40 The Birth of the New Justice International in Brazil. Such expert advance opinion would supposedly lead to a more effective result “than a set of rules adopted after interminable wrangling” by delegates who were more concerned with national self-interests than international interests.*° Interestingly, Bellot did not rule out the participation of the Central Powers, though he was skeptical about German sincerity unless “her present rulers vanish from the scene, and a real democracy takes their place.” Turkey should not be excluded either; the European Turk had “fought like a gentleman,” though Bellot excluded “those responsible for the Armenian massacres.”* But the legal body that ended up having greater sway, at least from an advisory point of view, was the Commission on Responsibilities, a group of legal advisors at the Paris Peace Conference. At the Inter-Allied Conference in London in December

1918, Lloyd George and Clemenceau had already decided to hold post-war war crimes trials, to try the ex-Kaiser, and to exclude the participation of neutrals from tribunals. At the time, post-war punishment was not part of U.S. policy (and was not part of the Fourteen Points), and the U.S. stated that it would make no decisions until Wilson arrived in Paris.*? When the Paris Peace Conference began, the Western European Allies, particularly France, asserted a moral prerogative for the value of penalty and punishment. While this stemmed from the French sense of injury (going back to the defeat at Sedan and the loss of Alsace-Lorraine in the war

of 1870-71), severe economic losses and debt, and a need for retribution, the French concept of morality was bound to the dispensation of “justice.” Justice was supposed to guide all the delegates’ decisions for creating a new post-war order,

according to French President Poincaré in his opening speech. Justice required “restitution and reparation for the peoples and individuals who have been despoiled or maltreated,” and “the punishment of the guilty and effective guaranties against an active return of the spirit by which they were tempted.” Certainly his speech had many rhetorical exaggerations and outright falsehoods, in that he claimed that “what justice banishes is the dream of conquest and imperialism, contempt for national will, the arbitrary exchange of provinces between states as though peoples were but articles of furniture or pawns in a game.’*’ Numerous decisions were taken by the Council of Four that were imperial in nature and involved political bargaining over borders and populations; the principle of “autonomous national development” was only applied selectively. Yet Poincaré’s concept of justice contained a whole set of moral ideas and cultural beliefs which European politicians and jurists on the Allied side shared when they sought to apply the idea of criminal prosecution following a major war. At the urging of Clemenceau, the Conference

40 Bellot, “War Crimes and War Criminals (I),” 19-20. “ Bellot, “War Crimes and War Criminals (I),” 18. © See Schwengler, Volkerrecht, 80-4; Lloyd George, The Truth about the Peace Treaties, 1: 137-45;

Lansing to House, December 8, 1918, reproduced as Paris Peace Conference 182/18: Telegram, in United States Department of State, Papers Relating to the Foreign Relations of the United States, H 91 ie The Paris Peace Conference (Washington: United States Government Printing Office, 1942), i American Association for International Conciliation, Documents Regarding the Peace Conference, No. 139, 812.

Birth of the New Justice 4] created the Commission on Responsibilities to determine the legal framework for this special call for “justice.” First, the commission was to determine whether the “authors” of the war could be held legally responsible: in contemporary parlance, this meant the legal advisors were to determine if heads of state and high officials could be prosecuted for aggressive war. Second, the commission was to report on violations of the laws and customs of war committed by the Central Powers. Thus it would have to gather all the allegations of the violations of the laws and customs of war from all the various fronts and occupied areas. The Belgian, French, and British had been the most ambitious about preparing memos and white books starting in 1915,** but the other states had to catch up very quickly. Third, it had to determine the degree of responsibility carried by members of “general staffs” and other individuals (“no matter how highly placed”) for violations directed at the Allied forces. This meant it had to assess whether commanders, government officials, and even heads of state were also responsible for some of these violations. Moreover, could they be held legally liable for ordering them as well as failing to prevent them from occurring? And finally, the Commission was supposed to figure out what kinds of courts and rules could be used for prosecutions.*” This was an incredibly ambitious set of tasks, especially considering the grey areas: there was no specific international convention that said a head of state or members of a government could be criminally prosecuted by other states for starting a war or violating a treaty of neutrality; the Hague and Geneva Conventions did not state that violations must be punished by courts after a war was over (nor did they speak about individual responsibility, just

state responsibility for reparations); the Hague Conventions technically only applied to a war if all the belligerents had ratified them, and some of them had not; and no modern state had ever tried to demand the extradition of enemy individuals

after a war before—the typical practice was that the military could prosecute enemy individuals with its martial courts during the war, assuming it had actually arrested the accused. But the project was considered vital for three main reasons. First, there was a massive sense of injury and need for retribution on the part of the Allied powers, which had lost a great proportion of their male populations and were faced with large numbers of widows and orphans. Second, the Central Powers had committed

a large number of violations, which the Allied powers interpreted as part of their “state policy.’*° In many Allied countries in Europe, the populations had

44 Horne and Kramer, German Atrocities, 176-7, 229-37. ® See the general list of tasks, the division into three subcommissions, and debates about their mandates in La Documentation Internationale, La Paix de Versailles, 3: 5, 16-17, 295—306. “6 For examples, see Sir Edward Grey’s speech on the execution of James Fryatt, quoted in James Wilford Garner, /nternational Law and the World War (London: Longmans, Green and Co., 1920), 1: 408 n. 2; the British delegation’s view that Wilhelm II had “deliberately sanctioned and carried out a policy of terrorism and ruthless unrestricted warfare,” in the Memorandum submitted by the British Delegates, Annex IV to Minutes of the Second Meeting of the Plenary Commission, February 7, 1919, Commission, Polk Papers, 29; Larnaude’s statement that “the immense majority of crimes and attacks are crimes and attacks committed under orders, as processes of war, as the practice [pratique]

42 The Birth of the New Justice experienced massacres, deportations, rapes, destruction of schools and churches, requisition of livestock, or seizure of private property—and had returning soldiers who had been in prisoner of war camps.*” It was not just that atrocity was propagandized—it was—but the war had fundamentally changed people’s lives, violated their bodies (if they were raped, tortured, or lost limbs), and altered their economic prospects and their hopes. This fundamental change in outlook took many different forms after the war—the renewed quest for suffrage, the attempt at socialist revolution, the drive to create new nation-states, the attempt to rebuild international law—and these efforts did not all draw from the same social groups and political parties. Yet the overall change in social conditions and consciousness led European legal advisors to call for a renovation of the law, a modernization of the law, or, in some cases, a “return to personal responsibility.”** The third reason driving the project was that the Allied political leadership had wanted to make penalties and trials part of the peace settlement (for the reasons enumerated in the previous section—political, historical, symbolic) and this had to be translated into legal terms, since this would convey legitimacy to the undertaking. Thus the lawyers were called in. The selection of states on the Commission reflected the political power structure at the Conference—two seats each for the British Empire, France, Italy, Japan, and the United States, and one seat each for Belgium, Greece, Poland, Romania, and Serbia. The members of the Commission were all men trained as lawyers, legal scholars, or prosecutors; many also held high political positions in their administrations, showing the nexus between legal interpretation and political power. Sir Ernest Pollock was Britain’s Solicitor General and possessed a pragmatic bent. Ferdinand Larnaude, the Dean of the Law Faculty of Paris, was a close advisor to Clemenceau’ and a great believer in the idea of “the

law of nations” and the use of tribunals to apportion reparations payments to French citizens.’? Nicolas Politis was a scholar of international law, particularly interested in the legal problem of state neutrality, but he was also Greece’s Foreign Minister, supporting Greece’s entrance into the war on the side of the Allies and its quest for territorial expansion.’! Edouard Rolin-Jaequemyns of Belgium was an international law scholar well-versed in the Hague Convention, since he had been of war’ in Minutes of the First Subcommission, February 24, 1919, La Documentation Internationale, La Paix de Versailles, 3: 253; and Rolin-Jaequemyns’s explanation that General Karl von Biilow had

ordered the burning of Andenne in Belgium, in ibid., 248-9. *” See the allegations of crimes summarized in Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, 28-57; the individual countries memos in La Documentation Internationale, La Paix de Versailles, 3: 33-225; and analyses in

Read, Atrocity Propaganda 1914-1919, 267-8, and Horne and Kramer, German Atrocities, 74-86. On the crime of denationalization, see Chapter 3. ‘8 See Larnaude’s statement, Minutes of the Second Subcommission, February 20, 1919, La Documentation Internationale, La Paix de Versailles, 3: 284. ® Annie Deperchin, “Die franzésischen Juristen und der Versailler Vertrag,” in Versailles 1919: Ziele, Wirkung, Wahrnehmung, ed. Gerd Krumeich and Silke Fehlemann (Essen: Klartext, 2001), 93-7. °° Ferdinand Larnaude, La guerre et la réparation des dommages (Paris: Comité National d’Action pour la Réparation Intégrale des Dommages Causés par la Guerre, 1916), 9-13. °! George B. Leontaritis, Greece and the First World War: From Neutrality to Intervention, 1917-1918 (Boulder, Colorado: Eastern European Monographs, 1990), 14-15, 275.

Birth of the New Justice 43 rapporteur of the Hague Convention on the Laws and Customs of War in 1899 (as

the delegate of the Kingdom of Siam, a Belgian colony at the time). Slobodan Jovanovic was the chief international law expert on the Serbian delegation and the rector of Belgrade University; he was a close advisor to Serbian Prime Minister Nikola Pasi¢.°* Robert Lansing, the U.S. Secretary of State, was trained as a lawyer; he too was an important advisor to his chief, President Wilson, and actually wrote the first draft of the penalty clauses that appeared in the Versailles Treaty. Lansing was accompanied by James Brown Scott, an international lawyer, professor, and former solicitor to the U.S. State Department. Not only did these legal and political advisors hold different views on interna-

tional law, they held their national interests dear. Pollock was under political instructions to push for international trials in response to British public opinion, plus the British government sought trials of the ex-Kaiser and senior military officials to ensure that lower level submarine commanders could not escape prosecution by claiming they acted under superior orders. Larnaude both responded to public opinion and strongly supported the French view that Germany must pay for all war costs in full. Rolin-Jaequemyns sought enforcement of the Hague Conventions but did not want to concentrate exclusively on the ex-Kaiser for fear it would lessen the responsibility of other German officials responsible for massacres and crimes in Belgium. Lansing tried to halt international tribunals and the prosecution of heads of state at all costs, concerned it would set an adverse precedent for the U.S. Politis supported international tribunals but tried to effect a compromise between the other Europeans and Lansing, probably because Greece needed backing for its territorial claims against Italy in Asia Minor. Jovanovic favored international trials against Bulgarian officials to add Allied muscle to extradition requests, but he rejected prosecutions against the Habsburg monarchy for fear this would inspire restoration attempts. Unlike later groups of jurists and non-governmental organizations that would play a large role in developing the idea of using criminal prosecution to enforce international law, these legal advisors were not transnational activists working from the grass-roots, in the sense that they had certain visions of social change and then formed linkages with like-minded jurists in other countries, all driving to reform the international state system.”? They did not see the national interest in reparations, territorial expansion, and security as opposed to international law; they could interpret and shape the law to help their national or imperial interests. The European majority on the Commission proposed several innovative solutions for its legal tasks. In a nutshell, it recommended that an international tribunal should not prosecute the ex-Kaiser and other high officials for “pre-meditating” the war or violating the neutrality of Belgian and Luxembourg. Instead, the ex-Kaiser, military commanders, and civilians officials could be prosecuted for violating the * Andrej Mitrovi¢, Jugoslavija na Konferenciji Mira 1919-1920 (Belgrade: Zavod za Izdavanje Udzbenika Socijalisti¢ke Republike Srbije, 1968), 195-6. > Jean H. Quataert, Advocating Dignity: Human Rights Mobilizations in Global Politics (Philadelphia: University of Pennsylvania Press, 2009), 22.

44 The Birth of the New Justice laws and customs of war, as well as the broader “laws of humanity’—and this should

be done with an international tribunal comprised of judges from the Allied side. National tribunals could still be used, but the Europeans saw great legal, practical and symbolic benefit if an international tribunal was used for certain categories of cases.* The basis for prosecutions, the “laws of humanity,” came from the 1899 preamble to the Second Hague Convention with Respect to the Laws and Customs of War on Land, which stated that war-time conduct and types of weapons not explicitly prohibited in the convention should not be left to “the arbitrary judgment of military commanders.” This preamble, called the Martens Declaration (named after its author, Fedor Martens, who was imperial Russia’s delegate to the Hague Conference in 1899), stated that “in cases not included in the present arrangement, populations and belligerents remain under the protection and the empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.””’ Finally, the European advisors on the Commission on Responsibilities stated that all civil and military authorities, “however high their position may have been,” could be prosecuted for failing to prevent violations as long as they had knowledge of events and the power to intervene.” This was the origin of the modern doctrine of “command and control” responsibility. There were four basic reasons for these positions: political considerations; the belief that the lawyers and governments were answerable to public opinion; a desire

to modernize the law in accordance with a “new sensibility;” and the intent to restrict the power of military commanders according to pre-1914 limits. The political considerations took a variety of forms, though they were often couched in legal arguments. [he Europeans’ decision not to prosecute the authors of the war, which in modern parlance meant they rejected criminalizing aggressive war, was a difh-

cult decision to reach, as the French delegate Larnaude ardently fought for the ex-Kaiser to be tried on that basis as the master crime. But Pollock had argued that a trial that attempted to peel back all the layers of decision-making leading up to the war might very well leave the Allies in a difficult position—or at least greatly delay the result—and they could hope for a more certain victory if they concentrated on acts which the ex-Kaiser had directly ordered, such as submarine war-

fare.’ Another political consideration influencing the Europeans to support an international tribunal for military commanders and civilian officials was that the British were extremely anxious that the German government would reject any extradition request of their nationals, so they wanted the Peace Treaty to state that the international tribunal would take precedence over any enemy government's ** Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, 23-4.

» Quoted in Geoffrey Best, Humanity in Warfare (New York: Columbia University Press, 1980), 166. °6 See point (c.) in Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, 24.

°” Minutes of the Second Subcommission, February 17, 1919, La Documentation Internationale, La Paix de Versailles, 3: 269-71.

Birth of the New Justice 45 attempt to provide amnesty. (However, British attempts to actually require Germany to hand over German nationals as a condition of the armistice renewal in February 1919 failed due to American opposition.)* Practical concerns mattered too. Larnaude warned that French, British, and American military tribunals were running into problems in the occupied zones as they tried to transfer the accused and evaluate cases. An international tribunal would be able to combine the prosecutors work more effectively, especially in cases of crimes that had been ordered. “I have already told you,” Larnaude stated, “...that French military justice finds itself completely disarmed concerning collective crimes, crimes of the army, crimes ordered by the German methods of war. It finds itself disarmed in bringing the main culprits before it. How could it make them appear?””’ Thus, even though the French government had declared a “state of siege” before the outbreak of the war, establishing military tribunals with broad powers to deal with espionage cases and other threats to national security, many violations of the laws of war could not be prosecuted until hostilities had ended and the French military was actually able to find and arrest German soldiers accused of atrocities in Northern France and Belgium.” Furthermore, the military tribunals did not have ordergivers and policy-makers in custody. The legal advisors also argued that by creating a jurisdiction—meaning a court could intervene to enforce international law with definite penalties—they were following public opinion, which would not settle for a failure to act.*' In arguing for a trial of the ex-Kaiser, for example, Pollock told the full Commission, “The whole of Great Britain is behind the government to urge his being brought to trial, which can only be done through an international tribunal. During my last voyage in England, the authorities I was able to see all insisted on this point.” Larnaude concurred on behalf of French public opinion, but claimed that the French “would not want prosecuting the ex-Kaiser alone to be a way for the others, the main leaders who are equally responsible, to avoid the consequences of their criminal acts.” Politis also summoned public opinion in his influential analysis explaining why it was legitimate under international law to prosecute a head of state. Creating a new international body (a tribunal) did not violate the state’s constitution, he argued; furthermore, the Allies were not violating Germany’s sovereignty because Germany

8 See Section 4, I.-Jurisdiction, Memorandum submitted by the British Delegates, Annex IV to Minutes of the Second Meeting of the Plenary Commission, February 7, 1919, Commission, Polk Papers, 30-1; Minutes of the Supreme Council, February 10, 1919, in David Hunter Miller, My Diary at the Conference of Paris with Documents (New York: Appeal Printing Company, 1924), 14: 10-11. ° 3 Minutes of the Third Subcommission, February 25, 1919, La Documentation Internationale, La Paix de Versailles, 3: 314.

°° On the history of “state of siege” legislation and the establishment of French military tribunals during World War One, see Peter Judson Richards, Extraordinary Justice: Military Tribunals in Historical and International Context (New York: New York University Press, 2007), 73-102. °! Minutes of the Plenary Commission, March 12, 1919, La Documentation Internationale, La Paix de Versailles, 3: 337.

°° Minutes of the Third Subcommission, February 25, 1919, La Documentation Internationale, La Paix de Versailles, 3: 313-14.

46 The Birth of the New Justice would give its “imposed consent.” But, “if we proclaimed the immunity of heads of state beyond the limits that I have set out, existing either in internal law or in international law, we would in my opinion do something truly monstrous. ... The idea that we would be able to base such a theory by excluding what public opinion calls for today seems to me an absolutely impossible act.”° Pollock found the argument very convincing, writing it into the European majority's final report, which stated that domestic immunity was merely an expedient of a “non-essential character,” and to admit otherwise would “shock the conscience of the civilized world.”™ The Europeans also stated they were actively developing the law to bring it up to date with a new sensibility that emerged as a result of the catastrophic war. Larnaude argued that the basis for prosecuting criminal acts committed during the war could not merely be positive law in international conventions (such as the Hague Conventions) or individual states’ military codes; it had to be the “laws of humanity.” According to the minutes, “Larnaude repeated that the ‘laws of humanity were not inserted here to create a special charge but to mark the development of a new sensibility in universal opinion.”® The notion of modernizing the law appeared in other legal contexts, too. When it came to expanding the law so that civilian and military officials, regardless of rank, could be prosecuted for failing to prevent violations, Pollock said the British government “consider[s] the present situation as an opportunity to develop the law. The established rules are sensitive to improvement, change, and development when, for example, the Parliament, an important corporate body, or majority opinion asserts itself. French law today, for example, is no longer what it was in the time of Louis XIV, or English law what it was in the time of Henry VIII. Thus the Peace Conference, with all the representatives of the majority of civilized countries, is an opportunity to modernize and

satisfy new duties which have arisen in the opinion of the civilized world.” Whether the Peace Conference actually could represent such a vast number of countries was highly debatable, but the modernization argument was a means to catalyze change.

Finally, the European advisors supported new means of prosecution because they wholly believed that the military commanders of the Central Powers had intentionally violated their pledges and principles; they could not turn their backs on codified law nor on the limitations on military necessity created by the Martens preamble. During a subcommission debate on the legal standards that should be used to determine which acts committed during the war were criminal, Lansing tried to argue that the Hague Conventions were “null and void” because some belligerents in the Great War had not ratified them. This was true, but Germany was °° Minutes of the Plenary Commission, March 13, 1919, La Documentation Internationale, La Paix de Versailles, 3: 343-4.

“ Minutes of the Plenary Commission, March 27, 1919, La Documentation Internationale, La Paix de Versailles, 3: 437-8.

° Minutes of the Plenary Commission, March 24, 1919, La Documentation Internationale, La Paix de Versailles, 3: 421.

6 Minutes of the Plenary Commission, March 17, 1919, La Documentation Internationale, La Paix de Versailles, 3: 370.

Birth of the New Justice 47 not one of them. Rolin-Jaequemyns, who had worked on the 1899 Conventions, told Lansing he was “out of his mind.” For Rolin-Jaequemyns, the laws and customs of war did not have to be stretched to account for a new sensibility. There were already laws in place before the war and they were entirely valid.®’ The only issue was how to bridge the gap that they did not specify penalties: his solution was

to take the penalties from German criminal law, which he thought the Germans would surely accept. Larnaude, however, rejected that.°* Eventually Rolin-Jaequemyns went along with the “laws of humanity” standard. The U.S. position challenged the Europeans’ legal views on practically every important base: their reliance on public opinion; their claim that they could modernize international law by criminalizing the failure to prevent violations; their argument that the “laws of humanity” represented a valid standard; and their arguments that an international tribunal was necessary to delivering a ringing judgment. Lansing argued that only national tribunals or military commissions were valid bodies to prosecute violations, a head of state was immune under international law, military and civilian officials could not be prosecuted for failing to stop violations, and the “laws of humanity” was a vague standard. The legality of an act committed during a war should be judged according to the malice of the perpetrator, “the needlessness of the act from a military point of view,” and whether the act was justifiable but committed “in a needlessly harsh and cruel manner.”

Lansing took this highly conservative stance for three reasons: he sought a moderate peace in the short term to prevent a possible Bolshevik revolution in Germany; he wanted to limit U.S. involvement in trials that he believed offered no direct benefit to his state; and he sought to maintain the sovereignty of U.S. military tribunals, which had extensive power under presidential authority.” Concerning Bolshevism, the Commission’s work between January and March occurred during revolutionary violence and street-fighting in Germany, with Spartacist insurrections in Berlin, Bremen, Diisseldorf, Halle, and elsewhere.” The argument about the Bolshevik threat and its connection to extradition and trials, which the German military and Foreign Office played up to a large extent, ran as follows: the army and conservative civil bureaucracy would resist all extradition attempts, and

°” Minutes of the Third Subcommission, February 21, 1919, La Documentation Internationale, La Paix de Versailles, 3: 309.

°8 Minutes of the Third Subcommission, February 21, 1919, La Documentation Internationale, La Paix de Versailles, 3: 304—6.

© Robert Lansing, Annex A, “Memorandum on the Principles which should determine Inhuman and Improper Acts of War,” February 26, 1919, Commission, Polk Papers, 55. ”” Other historians have interpreted Lansing’s motives differently. Willis, Prologue, 74, argues that Lansing opposed a trial of the ex-Kaiser because “Lansing believed that force, not law, governed international relations, and that to pretend or act otherwise was visionary.” However, Schwengler, Volkerrecht, 105—6, claims that Lansing was a great believer in law and legality, so he opposed a trial of the

ex-Kaiser, the establishment of an international tribunal, and the use of the “laws of humanity” as over-reaching moves that violated existing international law. According to Schwengler, once Lansing realized that the European Entente would not permit amnesty, he tried to establish a strict legal foun-

dation for punishment, thinking that this would be the only way to establish a lasting peace of reconciliation. ” Gordon A. Craig, Germany 1866-1945 (New York: Oxford University Press, 1978), 406-10.

48 The Birth of the New Justice if they were forced to hand over “war criminals,” they would attempt to take over the government, which would result in a civil war with revolutionary socialists, who would win with Bolshevik help. The Allied leaders on the level above Lansing were divided on the seriousness of the revolutionary threat: Lloyd George held that moderate territorial and financial penalties for Germany would prevent revolution and keep the Ebert government afloat, while Clemenceau claimed that the Bolshevik threat should not be exaggerated at the expense of France's security needs.” In mid-March, right at the point when Lansing was intensely opposing the European demand to create an international tribunal and prosecute the exKaiser, he told the Cercle francais de la presse étrangére that the Allies should avoid vengeance. Instead, if they provided food shipments and helped rebuild German

industry, they would ensure the survival of a German government that would fulfill the peace treaty and “resist the anarchy and hideous despotism of the red terror. ’’ Lansing knew that he could not completely prevent the European allies from holding trials, but by limiting their scope, he thought he could help stabilize the German political situation.

Yet as German historian Klaus Schwabe argues, the Wilsonians’ concern about the threat of socialist revolution in Germany had limited duration. Economic reconstruction and republican stability would have longer-term benefits for the U.S. The U.S. government's policy was motivated by economic interests: large reparations would crush the German economy and jeopardize a future U.S.—German trade relationship. Moreover, a moderate peace would mean that the U.S. could avoid European entanglements, jettisoning the need to police the enforcement of the peace treaty or settle post-war disagreements among the European Allies.’”* Lansing’s intention to avoid future involvement in European trials can be interpreted in this light. During commission debates, Lansing tried several strategies to limit U.S. involvement: a “commission on enquiry” that would issue a “moral condemnation” instead of punishment; the right to withdraw from prosecutions the U.S. did not agree with; and, finally, the complete rejection of the European recommendations.” The third reason why Lansing resisted the European program was his intent to maintain the intensive power of U.S. military tribunals under presidential authority. These had originally been created by the U.S. Continental Congress during the revolutionary period to enforce military discipline, but in the nineteenth century the military had used them against British subjects during the Seminole War in 1818, against Mexican civilians during the Mexican-American War in 1846-48, and against a Russian national working as a German spy during World War One.”°

” Mayer, Politics and Diplomacy, 581-3, 594-7. > “Une manifestation franco-américaine,” Le Temps, March 13, 1919. ” Klaus Schwabe, Woodrow Wilson, Revolutionary Germany, and Peacemaking, 1918-1919. Missionary Diplomacy and the Realities of Power, trans. Rita and Robert Kimber (Chapel Hill, N.C. and London: University of North Carolina Press, 1985), 249, 395-407. 7> La Documentation Internationale, La Paix de Versailles, 3: 332, 370, 407-8, 422, 433. ’° ‘These situations did not concern the laws of war specifically, but questions of inciting an Indian wat, preventing guerrilla activity in Mexico, and using a military tribunal to prosecute an alleged spy

Birth of the New Justice 49 Additionally, prior to 1917, the U.S. had used the threat of military force or actual force in imperialist ways. It backed a coup in Hawaii in 1893 (with amnesty, not trials, for the U.S. government minister and others who engineered it) and violently suppressed Philippine insurrectionists during the Philippine-American war. It also pressured the Mexican government to allow the “Punitive Expedition” into Mexico to capture Pancho Villa in 1916-1917.” Lansing directly negotiated the latter with the Mexican president, who had resisted it. It seems highly probable, then, that Lansing in 1919 did not want to establish any precedents whereby foreign courts would have jurisdiction over U.S. military commanders or the president. This gives a much broader perspective when considering Lansing’s claim that “the law to which the head of the State is responsible is the law of his country, not the law of a foreign country or group of countries.””® While he had used this idea to argue that Wilhelm II could not be prosecuted by an international tribunal, the republican nature of the argument suggests he that wanted to ensure the same would never happen to a U.S. President.

Another interesting connection to ponder is that at the very same time that Lansing was arguing that the U.S. would only recognize the jurisdiction of military tribunals for violations of the laws and customs of war, the acting Judge Advocate General in the U.S. anda prominent U.S. senator were waging an extremely public attack against military justice for its arbitrariness and its lack of appellate review. The senator involved was a strong critic of Wilson, while the military establishment was opposed to plans to reform the military justice system. Therefore, it is possible that Lansing did not want to entangle the U.S. in a new type of international court that might elicit further criticism at home.”

who was caught outside the zone of military operations. Still, they shed led on the fact that these tribunals often over-reached their authority. See Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence, Kansas: University Press of Kansas, 2005),

28-35, 87-8. ” See U.S. President Grover Cleveland’s speech in Hawaiian Islands. Report of the Committee on Foreign Relations, United States Senate, with Accompanying Testimony, and Executive Documents Trans-

mitted to Congress from January 1, 1893 to March 19, 1894 (Washington, D.C.: Government Printing Office, 1894), 2: 1253-66, especially his admission that the U.S.-backed coup was an “act of war.” He stated that since “international law is without a court for its enforcement,” the U.S. had to act in “good faith” and restore the monarchy—with the condition of a general amnesty. On U.S. atrocities against civilians in the Philippines and the politics behind the courts-martial that prosecuted U.S. commanders, see Stuart Creighton Miller, Benevolent Assimilation: The American Conquest of the Philippines, 1899-1903 (New Haven: Yale University Press, 1982), 196-252. On Mexico, see Mitchell Yockelson,

“The United States Armed Forces and the Mexican Punitive Expedition [Parts 1 and 2],” Prologue Magazine 29, no. 3-4 (1997). I gratefully acknowledge the help of Prof. Catherine Lavender with this argument and citations. ’® Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, 66. Also see Lansing’s proposal for a commission of inquiry instead

of a tribunal, in Minutes of the Plenary Commission, March 12, 1919, La Documentation Internationale, La Paix de Versailles, 3: 332, and his claim that prosecuting Wilhelm II might lead to his restoration, La Documentation Internationale, La Paix de Versailles, 3: 334. ” ‘The acting Judge Advocate General was Samuel Ansell, and the senator was George Chamberlain (Democrat from Oregon). One of the major events sparking the call for serious reform was the courtmartialing of sixty-three black U.S. soldiers (forty-one sentenced to life in prison, thirteen sentenced to hanging) for allegedly rioting in 1917. This was not the only cause of the reform, but an elaboration

50 The Birth of the New Justice TRIALS IN THE POLITICIANS’ HANDS The Commission issued majority and minority reports; the Europeans sought an international tribunal to prosecute the ex-Kaiser, German military officers, and government officials, while Lansing denied the legality of prosecuting a head of state and could only accept national military tribunals or commissions following established rules and penalties for violations of the laws and customs of war. This had several consequences for the Council of Four (Clemenceau, Lloyd George, Wilson, and Italian Prime Minister Vittorio Orlando). With two different plans for how to proceed, the political leaders had to work out their own compromise in the midst of other decisions about borders, territorial exchanges, reparations, the Hungarian communist revolution, and intervention in the Russian civil war. Thus they only devoted two discussions to the matter. Additionally, the European majority had not outlined a process for how extraditions would actually be fulfilled: they proposed some draft treaty provisions that would require the defeated states to hand over subjects,®° but Pollock’s attempts to make the renewal of the armistice in February conditional on Germany agreeing to extradite suspects had been blocked by the Americans. ‘This simply delayed the issue.

The Council of Four’s compromise was to agree to an international trial of Wilhelm I, but on the grounds that he would be tried for “a supreme offence against international morality and the sanctity of treaties,’*' not for violations of the laws and customs of war, or the “laws of humanity,” as the European majority had recommended. ‘This was a victory for the U.S., since Wilson had been extremely reluctant to pursue trials, and Lansing, who wrote the first draft of the actual penalty provisions, had explicitly framed them as political, not criminal charges.** Regarding the other issues—trials for so-called “war crimes”—the leaders accepted the European position that the victors could extradite and prosecute enemy individuals for violations of the laws and customs of war, but the final formulation reflected American restrictions in several respects. There was no reference to the broader, albeit vaguer standard of the “laws of humanity;” there was no provision stating that authorities could be prosecuted for failing to prevent violations; and if the Allies prosecuted cases where the victims came from different Allied and associated countries, they were to combine their military tribunals, not create a new type of international tribunal.

is beyond the scope of this book. The Congress in 1920 passed a new law introducing a type of military review board for courts martial, but not a fully independent appellate court. Wilson worked to get Chamberlain defeated in his re-election campaign in 1920. See Jonathan Lurie, Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775-1980, revised edn (Lawrence, Kansas:

University of Kansas, 2001), 28-89. 8° See Annex IV, Articles 1-6, Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, 81-2. 8! See Article 227, Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, vii.

®° Read, Atrocity Propaganda 1914-1919, 272-3; Willis, Prologue, 82; Schwengler, Volkerrecht, 112.

®° See Articles 228-9, Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports, vii—viii.

Birth of the New Justice 51 Unlike the European majority on the Commission, the political leaders were far less interested in pursuing a “new justice” that would fundamentally alter the international system. [hey were concerned about violating precedent, appeasing public

opinion, or creating an unstable peace settlement. Orlando, for example, was extremely reluctant to go along with the other Allies, arguing that applying the laws of war once peace was declared introduced formidable difficulties. Bringing Wilhelm II before an international tribunal had no precedent, he said. “But we would be establishing a completely new principle if we wanted to punish as an individual a man who was acting as the instrument of the collectivity.”** Lloyd George was primarily concerned that the Allies ensure that Wilhelm II could not return to power with the help of German businessmen and industrialists. While he did come out in favor of a grand trial for the ex-Kaiser, he did not want to prosecute ex-Emperor Karl of Austria-Hungary, fearing that Karl would be assassinated, which could pave the way for socialist revolution in Austria.*° Clemenceau adamantly demanded trials, stating that “amongst the people who have suffered for these five years, nothing would sow so many seeds of hatred as an amnesty granted to all the criminals.”*° Yet this showed primarily that he thought in terms of ameliorating the injuries sustained by the past war more than creating a new system for the future. Furthermore, his views on making “international justice” a reality, delivered in a long speech he made in a Council session on April 8, were tactical ways to overcome Orlando’s objections to trials, as well as recast the idea of trials in the language of international justice that would appeal to Wilson.®” The U.S. President believed that if the victors took the unprecedented step of prosecuting the ex-Kaiser and punishing enemy individuals after the war, the victors’ impartiality and sense of justice would be questioned outside their own countries. “We must prevent history from reproaching us for having judged before establishing the legal principles for the sentence,” he said.** This would reflect badly upon them and their “just cause,” and it would sow the seeds of discontent in Germany. Hence he was more concerned with the role of penalties in the peace settlement (and how it would affect future U.S.-German relations) than with creating an international system enforced by criminal prosecution. His key idea was the voluntary system of

enforcing international law through the League of Nations:*’ states would be obliged to respect the independence and territorial integrity of other states and could go to war to stop an aggressor. That was a system of threats and sanctions, 8 Meeting of April 8, 1919, Arthur S. Link and Manfred F Boemeke, eds., The Deliberations of the Council of Four (March 24—June 28, 1919). Notes of the Official Interpreter Paul Mantoux (Princeton,

N.J.: Princeton University Press, 1992), 1: 192. ® Link and Boemeke, Deliberations of the Council of Four, 190. At this point, the Swiss were considering granting Karl asylum, but first wanted reassurances that the Allied and Associated Powers would not prosecute him. See W. E Massey's statement in the Minutes of the Plenary Commission, March 15, 1919, La Documentation Internationale, La Paix de Versailles, 3: 365—6. See also Willis,

Prologue, 148-9, and Holger H. Herwig, The First World War: Germany and Austria-Hungary 1914-1918 (London: Arnold, 1997), 317 and 369-70. 8° Link and Boemeke, Deliberations of the Council of Four, 194. *” Link and Boemeke, Deliberations of the Council of Four, 193-4. °° Link and Boemeke, Deliberations of the Council of Four, Meeting of April 2, 1919, 121. ® Link and Boemeke, Deliberations of the Council of Four, Meeting of April 8, 1919, 189.

52 The Birth of the New Justice organized around an international organization, not a system of criminal enforcement. Overall, then, the Council of Four introduced the new idea of post-war trials into a peace settlement, but did not apply the full set of ideas of the “new justice,” hedging them with several political considerations. Germany was ordered to sign the treaty, which the Allies established as the model for the other peace treaties.””

THE BALKAN VICTORS: INTERNATIONAL JUSTICE IN THE SERVICE OF NATIONAL GOALS The prosecution of Bulgarians accused of violating the laws and customs of war was

supposed to be handled by national military tribunals (with the possibility of a joint tribunal), as the penalty clauses of the Treaty of Neuilly followed the Ver-

sailles Treaty as a model—with the exception that ex-King Ferdinand was not arraigned. The delegation from the Kingdom of the Serbs, Croats, and Slovenes had

been internally divided as to whether he should be prosecuted, as Serbian Prime Minister Nikola Pasié and Jovanovié, the delegation’s legal expert, believed that his trial would allow other Bulgarians responsible for the war to use him as a scapegoat.

In the end, the Balkan delegates on the Commission on Responsibilities decided not to press for his prosecution on the grounds that the evidence was insufficient.”! But the Balkan delegates from Greece, Romania, and the Kingdom of the Serbs, Croats, and Slovenes—the same powers who defeated Bulgaria in the brief but brutal Second Balkan War of 1913—did seek extradition and international tribunals for

Bulgarians accused of criminal acts committed during the war. In the summer of 1919, they found themselves in an uphill battle because the German treaty had been signed, and it did not require that all cases come before an international tribunal. Officially, the Balkan delegations supported international trials because they claimed

they would be more impartial and efficient.”” As Politis told the Commission on Responsibilities on July 15, this would permit the Balkan states “to rid their relations with Bulgaria more promptly of the incubus of recriminations arising out of the prosecutions” and avoid the accusation that the trials bore “the stamp of acts of political vengeance.””’ Though Politis strategically defended the political benefits of °° For the internal German politics leading to the government's signature, see Schwengler, Vo/kerrecht, 220-31. *! Mitrovi¢, Jugoslavija, 193-7; Minutes of the Thirteenth Meeting, July 17, 1919, at 10:30 a.m., Commission, Polk Papers, 188.

*° ‘The tribunal would have been comprised of seven judges—three from the Balkan states, plus representatives from Belgium, Britain, France, and Italy. These countries would also form a “Commission on Prosecutions’ to choose important representative cases, which would take domestic pressure off the Balkan governments to prosecute potentially thousands of cases. The three Balkan states would execute the sentences, and Bulgaria would have to pay all the costs of the proceedings and punishment. See Annex 2 to Minutes of ‘Twelfth Meeting. Treaty with Bulgaria: Penalties. Preliminary Draft, in Commission, Polk Papers, 183-4. °° Minutes of the Twelfth Meeting, July 15, 1919, at 11 a.m., “Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties. Minutes of Meetings of the Commission,” Commission, Polk Papers, 182; Minutes of the Fourteenth Meeting, Discussion of the Report, Commission, Polk Papers, 195.

Birth of the New Justice 53 international trials, selective prosecutions initiated by the victors, without similar proceedings for atrocities committed by all sides during the Second Balkan War of 1913, could not improve relations. Casualties, war costs, and the pain of ethnic cleansing during the six years of war from 1912 to 1918 were severe. Many contentious territorial issues remained unsettled in the region, and national governments on all sides were still in the throes of the expansionist, nation-building policies that had led to the dissolution of the Balkan League in 1913.”

The politics of self-interest played a role in leading the Balkan victors to the international legal option. The government in Belgrade was under domestic pressure to prosecute a large number of offenses, and it wanted to trim the load to include only major representative cases. Additionally, it mistrusted the work of Bulgarian military tribunals, which had already sentenced two Bulgarians in April 1919. One was a death sentence against Captain Hrist Samardzijev, the commander of a prisoner-of-war camp, “for abuse of power, pilfering foreign property, and causing injuries of a serious nature,” but his sentence was reduced to fifteen years.” The Greeks claimed that international proceedings would smooth post-war relations with Bulgaria, but this must be taken with a grain of salt, because Politis’ diaries from this period show that his main concern was with a Greek—Italian rapprochement and unresolved Great Power deliberations concerning Greece’s demand for all of Thrace—the western half of which was claimed by Bulgaria.”°

Most important, the Venizelos administration was willing to use an international criminal tribunal against its Bulgarian enemy, but in the case of its own military’s atrocities following the Smyrna landing of May 15, 1919, Venizelos used domestic investigations due to self-interest. After the Greek military arrived, Greek soldiers killed, robbed, and humiliated Turkish prisoners. Local Greeks attacked, looted, and raped Turks, and they were not restrained by Greek officers. These acts led to retaliatory violence on the part of the Turkish population, and Turkish resistance fighters began to organize, fueling the nationalist movement. Pent-up hostility and resentment on the part of the local Greek population was partly to blame for the first wave of violence, but the Greek occupying force had not maintained order. As Greek historian, Nicholas Petsalis-Diomidis, notes, Venizelos failed to set up a political coordinator who would take charge of the occupation at the time of the landing.””

* On the Balkan Wars’ casualties, ethnic cleansing, war costs, and failure to form a Balkan union, see Richard C. Hall, Zhe Balkan Wars 1912-1913: Prelude to the First World War (New York and London: Routledge, 2000), 130-43. ° Mitrovic, Jugoslavija, 196 n. 20. °° Politis diaries, July 15-November 18, 1919. Politis wrote journal entries in French in small agenda books. ‘These diaries are stored in the League of Nations Archives (LNA), Geneva, in a box marked [246 (Politis Papers). However, this collection has been assigned new numbers several times. The LNA contains agenda books for 1909-10, 1912-1916 (1917 is missing), 1918 (a maroon agenda book without a date on the spine), 1919 (1920 is missing), 1921-22, 1926, and 1930-42. *” N. Petsalis-Diomidis, Greece at the Paris Peace Conference 1919 (Thessaloniki: Institute for Balkan Studies, 1978), 208-11.

54 The Birth of the New Justice When Venizelos and Politis learned on 4 July about the atrocities, they feared that the repercussions would limit their zone of occupation around Smyrna,”® which they had expanded without prior Allied authorization. Politis had indicated in his diary on May 8, 1919 that the occupation was to have a “permanent character.””’ In early July, when the British expressed their displeasure at the extension of the Greek occupation zone, Venizelos tried to convince British officials with a dossier of

seventy-six telegrams that the troop movements had been authorized. After the atrocities were exposed and condemned in the British House of Commons on June 26, Venizelos faced British diplomatic pressure to conduct an official inquiry. He agreed to this on the advice of Politis, who stated that it was “the only suitable means of influencing our military and making them think.”'°? Venizelos then arranged to send Colonel Alexander Mazarakis to Smyrna to investigate and issue severe punishments.'°' Mazarakis reported on July 28 that the Greeks prosecuted seventy-four people, of whom forty-six were Greek.'*’ Action had to be taken against the malefactors because Venizelos’ plans for Greek expansion as well as his political survival were at stake. After bringing Greece into the war on the side of the Allies, he could not afford to return to Athens without territorial spoils.'°° Greece's self-protective attitude continued into the fall. When the Allies decided

to establish an Inter-Allied Commission to investigate the Smyrna atrocities— and to include a Turkish officer along with a Greek one—Politis protested.'% In November, after this Commission concluded that the Greek government bore primary responsibility for the atrocities, Venizelos complained about a lack of Greek participation, despite the fact that the conclusion corresponded to Mazarakis’ earlier report. The problem was that the Inter-Allied Commission condemned the whole Greek occupation, stating that it had been unnecessary. While this was true, it overlooked the fact that the Lloyd George, Clemenceau, and Wilson had directly approved it. Mazarkis, nevertheless, submitted a lengthy refutation of the Commission's charges against the Greek government and military.'® During the July meetings of the Commission on Responsibilities, when the idea of an international Balkan tribunal was under discussion, Larnaude, the French legal advisor, claimed to understand the value of the Balkan proposal. He even stated, “[T]he French delegation had been much impressed by the horror of the crimes committed in the Balkans, which far exceed that of the outrages perpetrated in France and Belgium....[A] new system was perhaps needed in these countries

which differed widely in customs from Western countries.”'°° But when the °8 Politis diary, June 29, 1919 and July 2, 1919. » Petsalis-Diomidis, Greece at the Paris Peace Conference 1919, 243.

' Politis diary, July 4, 1919. '! Politis diary, July 5, 1919. ' Peter M. Buzanski, “The Interallied Investigation of the Greek Invasion of Smyrna, 1919,” Historian 25, no. 3 (1963): 333-4. ' Petsalis-Diomidis, Greece at the Paris Peace Conference 1919, 279.

' Politis diary, August 22, 1919. '®> Buzanski, “The Interallied Investigation of the Greek Invasion of Smyrna, 1919,” 338, n. 54. '06 Minutes of the Fourteenth Meeting, July 22, 1919, at 10 a.m., “Commission on the Responsi-

bility of the Authors of the War and on the Enforcement of Penalties. Minutes of Meetings of the Commission,” 194.

Birth of the New Justice 55 Supreme Council took up the issue on July 25, the only member the Council called to explain the proposal was Larnaude—not Politis, who was the main spokesman for the Balkan states on the issue, nor Rolin-Jaequemyns, who had written the Commission’s report. It did not appear that the decision makers on the Council—Clemenceau, Balfour, Baron Makino (Japan), Tittoni (Italy’s Foreign Minister), and Henry White (representing Wilson)—had read the Commission's report. When Larnaude explained the issue, the only reason he gave on behalf of the Balkan states was that they did not want “their good faith” to be questioned if they conducted their own trials. Nothing was said about the value of an international commission to choose cases, the difficulty in extraditing Bulgarians to the

Balkan victors, or the argument that an international tribunal might promote reconciliation.

Larnaude then backpedaled on his previous support, fearing that Germany would complain that Bulgaria had received more favorable trial terms. He stated, “[T]he French delegates believed that it would be difficult and dangerous to adopt a different method of punishing the same criminal acts, should they agree to the proposal to grant Bulgaria international guarantees of impartiality which they had refused to grant to Germany.”!”” Tittoni, the head of the Italian delegation, supported the Balkan demands. He had helped effect a major rapprochement with Greece in mid-July, agreeing on zones of occupation in Asia Minor and a policy of mutual support for most aspects of the two states’ territorial demands. But Clemenceau challenged his support for the Balkan trial plan, and Tittoni capitulated, stating that the matter “did not vitally concern him.”!°* French opposition, therefore, killed the idea of an international tribunal for alleged Bulgarian violations of the laws and customs of war.

THE POLITICAL REJECTION OF THE VERSAILLES PENALTY CAUSES For political reasons, the Allies did not enforce the penalty provisions in the Versailles Treaty, altering their demands by allowing some defeated countries, such as Germany and Bulgaria, to hold their own trials, while not lodging any extradi-

tion demands against rump Austria and Hungary. During the negotiation of the Versailles Treaty, the delegates on the Commission on Responsibilities had not considered the pragmatic question of what methods could be used to secure extraditions from the defeated powers; this lack of foresight simply delayed a resolution of the problem, and when the Allies finally started to demand extraditions, political conditions in their own countries and the political relationships within the coalition

'°7 Meeting of the Supreme Council: 3:30 p.m., July 25, Clauses of the Bulgarian Peace Treaty relating to Responsibilities, E. L. Woodward and Rohan Butler, eds., Documents on British Foreign Policy 1919-1939. First Series (1947), vol. 1, 1919, 181-2. 108 183-4. Woodward and Butler, Documents on British Foreign Policy 1919-1939. First Series (1947), vol. 1, 1919,

56 The Birth of the New Justice had changed, and the Dutch and German governments, for different reasons, put up stiff resistance. Following the signing of the Versailles Treaty, the Allies’ agreement on actually

holding a trial of the ex-Kaiser began to fall apart. During the late summer of 1919, neutral states and the Vatican began working against the plan to arraign the ex-Kaiser.'°’ Then, the Allies did not formally request his extradition from the Dutch until January 15, 1920, almost six months after the treaty had been signed. Ultimately, the Allies failed to gain custody of the ex-Kaiser during diplomatic negotiations between January and March 1920. The Dutch were in an awkward position because there were both pro-British and pro-German political forces in the Netherlands. Plus, Dutch relations with the Entente were at a low point at the end of the war, partly because the Netherlands had allowed commercial shipping to Germany during hostilities.''° At first, in order to force the Dutch government to extradite, the Allies threatened to exclude the country from the League of Nations, sever diplomatic ties, and impose economic sanctions. Sir Eric Drummond, the Secretary General of the new League of Nations, asked the British Foreign Office to change this punitive policy. If the extradition of the ex-Kaiser became a condition of Dutch entrance into the League, it would “have a most unfortunate effect on other neutrals, since the opponents of the League are anxious to prove that it is purely an Allied instrument to be directed against Germany, and not an organization for genuine co-operation between the nations.”''' Drummond’s request for a change of course was not the major factor influencing British policy (the British cabinet did not agree with Lloyd George's idea of forcing the Netherlands to comply), but it reflects the sensitivities of the new League bureaucracy, which did not want to get involved in extradition diplomacy or enforcing the Versailles Treaty in general.''*? When Britain shifted its strategy to persuading the Dutch to exile him to the Dutch East Indies, the Dutch stiffened their resistance, convinced that the Allied threats were bluffs. The Dutch would only agree to intern Wilhelm II at his estate in Doorn, promising to censor his correspondence and prevent him from engaging in political activity.''* Poor planning, the unprecedented nature of the charge, Allied disagreements, and Dutch political currents and cultural values led to this outcome. The German situation was more protracted and difficult, demonstrating the continuing power of Germany’s military and bureaucracy to influence Germany's international politics. In the fall of 1919, the German cabinet began pursuing ' Willis, Prologue, 105. ''® Ashton and Hellema, “Hanging the Kaiser,” 53-5. '’ Drummond to G. S. Spicer (British Foreign Office), February 5, 1920, LNA/1273/2944/2944. "2 See the Baker and van Hamel memos below.

"3 Willis, Prologue, 101-12; Hankel, Die Leipziger Prozesse, 80-2; and Ashton and Hellema, “Hanging the Kaiser,” 69-71. See also the reply of the Netherlands Government, January 21, 1920 (Doc. 30); Graham to Curzon, January 30, 1920 (Doc. 31); Graham to Curzon, February 4, 1920 (Doc. 33); Lloyd George to Netherlands Prime Minister, February 14, 1920 (Doc. 34); Curzon to Graham, February 25, 1920 (Doc. 35); Graham to Curzon, February 26, 1920 (Doc. 36) Graham

to Curzon, March 1, 1920 (Document 37); and Graham to Curzon, March 20, 1920 (Doc. 38) in Dockrill, British Documents on Foreign Affairs. Part II. Series I. Vol. 5.

Birth of the New Justice 57 diplomatic efforts to replace the plan for extraditions and foreign trials with a plan to hold its own trials, using its own courts and own criminal law. After testing the waters with some unofhcial discussions with the French Consulate in Zurich, the German government formally proposed on November 5 that it was prepared to hold its own trials, throw out its own domestic amnesty laws, and give the Allied and Associated powers one representative who could call witnesses in German trials and plead the cases on behalf of the injured parties. Furthermore, in December, the German National Assembly passed new legislation stating that domestic tribunals had exclusive jurisdiction to investigate and prosecute any acts committed during the war by a German at home or abroad;'" the assembly’s intention was to make it legally impossible for any German to stand trial in a foreign court for violations of the laws and customs of war. In a note to the Allies in January 1920, the

government claimed that it understood that the Allies could not ignore public demands for trials, yet it also maintained it was powerless to carry out extradition requests: the National Assembly would never obtain a majority vote to allow it, bureaucrats would refuse to carry out orders, and the military would work against it.'!? The American response was favorable, and its representative promised that the U.S. would not demand any extraditions. The European Allies were not willing to give ground, however, since other elements of the armistice agreement had not been settled, and Germany’s reparations for the scuttling of its fleet at Scapa Flow had not been determined.''® German representatives also held discussions with Belgian representatives in November to buy back Belgium’s supply of Reichmarks at the October 1914 rate in exchange for several concessions, including a cancellation of the extradition demands. But the Belgians would not commit to a written deal, only verbal assurances, and they reneged on the deal in February.''” Throughout the autumn, the obedience of the army to the German republic was in question. Top military commanders had made firm declarations that they would not obey any extradition demands, and no lower-ranking officer should participate in the arrest of an officer whom he had served. A secret organization, organized through the Naval press office, sent naval officers who might be arrested to the Netherlands and gave others travel documents and money. The military consistently blamed the republican government for the “shameful paragraphs” of extradition and war-guilt in the treaty. The government was concerned that if it extradited German officers (many of whom were considered heroes), it would lose the support of the military, the soldier’s militias, and the Freikorps units, which had bloodily put down the radical socialist-Spartacus revolts in Berlin in January 1920 and, later, two attempts to establish socialist republics in Bavaria in April and May.'!® 114 Von Lersner to Dutasta, December 17, 1919, LNA/1273/2505/2505. 9 Attachment 1 to the German Note of January 25, 1920, Doc. 143, Herbert Kraus and Gustav Rédiger, eds., Urkunden zum Friedensvertrage von Versailles vom 28. Juni 1919 (Berlin: Verlag von Franz Vahlen; Deutsche Verlagsgesellschaft ftir Politik und Geschichte, 1924), 2: 944-6. "6 Schwengler, Volkerrecht, 267. ''7 Schwengler, Volkerrecht, 273.

"8 Heinrich August Winkler, Germany: The Long Road West, trans. Alexander J. Sager, vol. 1: 1789-1933 (New York: Oxford University Press, 2006), 347-50, 354-7, 366.

58 The Birth of the New Justice Under this pressure, the German cabinet tried again in January 1920 to convince the Allies to accept the plan for German courts. The German Peace Delegation, in direct talks with France’s new President Alexandre Millerand and the Conference of Ambassadors, argued that the German government intended to fulfill the treaty, but the extradition demands could bring down the government, leading possibly to a civil war and a failure to deliver coal reparations to the Allies.''? The German delegation again laid out its trial plan, now in more detail, in a note on January 25, 1920, stating that all persons accused by the Allied and Associated powers of violating the laws and customs of war would be promptly tried by the Supreme Court in Leipzig, where an Allied representative would be allowed to file petitions and call witnesses. The delegation pledged that the court would accept all of the Allied representative's requests to enter material as evidence, and the court would publish its judgments with explanations of its reasons.'”° Millerand, continuing the policy of Clemenceau, took a hard line and rejected the offer, expressing “the opinion that it was necessary to keep to the letter of the Treaty, and that it would be a sign of weakness for the Allies to give way.”'*' However, he was becoming increasingly isolated from his Allied counterparts. The British

government believed that the German republican government was weak “against the Spartacists” and could not go against the will of the army, so its leaders advocated a limited number of trials against figures in cases where there was prima facie evidence of flagrant violations. The Italian government did not agree with a strenu-

ous enforcement of the extradition clauses, and the Italian Minister-President Prancesco Nitti intimated to Lloyd George that the Allies should present a full list of accused persons but then consider the German plan.'” The American government was no longer involved in the chief decisions, since the U.S. Senate had rejected the Versailles Treaty in November. Under pressure from Millerand, the Allies, on February 3, 1920—nine months after handing the German government the peace treaty—delivered an extradition

list containing the names of 854 German nationals, including Crown Prince Rupprecht, former German Chancellor Bethmann Hollweg, and top military leaders such as the former Chief of General Staff Helmuth von Moltke, General Erich Ludendorff, Field Marshal Paul von Hindenburg, General August von Mackensen, and Admiral Alfred von Tirpitz. Baron Kurt von Lersner, who had been negotiating with the Allies on the extradition issue, refused to deliver the list to Berlin, but

he copied it and leaked it to the German press. Certain nationalist sectors of German society refused to accept the extradition demands as an affront to “national honor.” Thousands of German protestors gathered in the streets, though they were organized by right-wing organizations and coordinated by the German Ministry

of Defense.'*? All the political parties (except the Communists) opposed the

9 Schwengler, Volkerrecht, 294-300. 0 German Note of January 25, 1920, Doc. 143, Kraus and Rédiger, Urkunden, 2: 942-4. '2! Meeting of Council of Ambassadors in Paris. Extract from Nicholson's Report No. 84, February 2,

1920, LNA/1273/2923/2505.

'22 Schwengler, Volkerrecht, 326-35. 3 Horne and Kramer, German Atrocities, 344.

Birth of the New Justice 59 handover of military figures, and the army ceased to co-operate with the Allied Control Commission, which was supervising Germanys disarmament. Lloyd George, Millerand, and Nitti met on February 12 to discuss the crisis. The French wanted to allow Germany to default on the penalty provisions of the treaty, which could be used as a pretext to delay evacuation of occupied territories and possibly impose economic sanctions later. But Lloyd George, who had once so resolutely insisted on trying top German military figures for unrestricted submarine warfare and for allowing the execution of Nurse Cavell, succeeded in convincing Millerand to allow Germany to conduct its own trials.'** An Inter-Allied Mixed Commission later forwarded forty-six names to Berlin, and a select few—mainly lower-ranking officers and subordinates—were tried by Germany’s Supreme Court in Leipzig from 1921-7. The Leipzig trials remain controversial because the German court dismissed the first Belgian case (concerning a German officer who allegedly tortured Belgian boys) and acquitted the defendant in the first French case (a German major general who ordered his troops to shoot French POWs in French Lorraine). After this, the French and Belgians refused to participate in further trials and held their own courts-martial (but prosecuted the defendants in absentia), while the German prosecution team continued working through cases on the original extradition list,

either deciding not to prosecute or acquitting the defendants.'”? This helped cement an Allied viewpoint that the German trials were an utter farce, a view that gained strength during World War Two. On the other hand, Hankel’s recent reconsideration of the Leipzig trials, based on an examination of the trial proceedings and internal prosecution documents, argues that while the Weimar government did try to exert pressure on its Supreme Court, and certain sentences were in fact minimal, the legal effort was performed in earnest. Moreover, Hankel notes that the proceedings clarified the concept of “war crimes’ in German law, while the records of the German prosecutors’ investiga-

tions contain more historical meaning than the published legal judgments. They show how prosecutors framed charges based on the Allies’ accusation dossiers, thereby presenting a broader picture of how the laws of war were constructed after the war.'*°

THE PROBLEMS OF THE “NEW JUSTICE” Yet the Leipzig trials, which did not begin until May 1921, were not the initial catalysts to develop a permanent international criminal court, create an international criminal code that would define individual penalties for violations of the Hague and Geneva Conventions, or define a law of aggression. Critics, observers, and European jurists analyzed numerous problems and shortcomings in the decisions of the Council of Four, the Versailles penalty clauses, and the problems 4 Willis, Prologue, 116-25. 5 Horne and Kramer, German Atrocities, 348-55. 6 Hankel, Die Leipziger Prozesse, 15-16.

60 The Birth of the New Justice of extradition diplomacy: they contended that much more work needed to be done to change the international system. Some thought the new League of Nations provided a possible institutional structure to achieve this, but the League was hardly developed at the time. This chapter concludes with a brief analysis of the problems as they stood in 1920. First, the penalty clauses of the Versailles Treaty and the political decisions behind them were unsatisfactory. The victors did not intend to allow neutrals to participate in trials because, in the words of Clemenceau, they had not “sacrificed” anything in the war. Additionally, the whole transformation of moving from an intent to punish to its actual realization with legal machinery was fraught with problems, missteps, and a lack of planning. For violations of the laws and customs of war, the Allies had said they intended to use mixed military tribunals to prosecute the Germans, but substantial planning for its operation was not completed in advance of handing the German government the extradition list. Furthermore, the legal safeguards for the accused were minimal at best. One recalls that some basic guarantees for a defendant, which were outlined in a British memo, were not carried through to the final treaty. Rules of evidence, witnesses, and procedure varied widely across the Allies’ system. Second, the Versailles penalty system was ex post facto, even though it was mor-

ally justified and stemmed from pre-war legal-cultural expectations. The German delegation had argued that the ex-Kaiser, as a German, could not “be brought before a foreign special tribunal in virtue of a special law enacted by foreign Powers to apply to him alone and framed not on principles of right but on those of politics, and that he should be punished for an act which, when it was committed, was not subject to any penalty.”'”” But that protest did not come from the defeated side only. Policarpo Bonilla, a member of the Honduran delegation at the Peace Conference, advanced many of the same objections that Lansing had made on the Commission on Responsibilities, such as the ex post facto nature of the charge against the ex-Kaiser and the lack of precedent for a trial. But he went further by stating that if the Peace Conference wanted “to establish a precedent, with a view to protecting the rights of humanity,” the victor powers, just like the defeated states, should try their own nationals for violating the laws of war.'’® The Dutch government also objected to the ex post facto charges and creation of a special tribunal to judge the ex-Kaiser. When rejecting the Allies’ extradition request, the Netherlands said it would agree to a new regime of international punishment in

7 Observations of the German Delegation on the Conditions of Peace, The President of the German Delegation (Brockdorff-Rantzau) to the President of the Peace Conference (Clemenceau), May 29, 1919, [X. Penal Provisions, United States Department of State, Papers Relating to the Foreign Relations of the United States, 1919. The Paris Peace Conference (Washington: United States Government Printing Office, 1946), 6: 875. 28 “Note of explanation in regard to the wish expressed by the Honduran Delegation and read

at the Plenary Session of the May 6th, 1919,” reproduced in United States Department of State, Papers Relating to the Foreign Relations of the United States, 1919. The Paris Peace Conference aniston: United States Government Printing Office, 1943), 3: 388-90; Schwengler, Volkerrecht,

Birth of the New Justice 61 the future if there were a statute which provided sanctions for criminal acts committed during a war, and if the League of Nations established an international jurisdiction.'”’ This brings us to the third problem: the entirely new institution of the League of Nations, whose Secretariat did not want to get involved in the extradition crisis, and whose Permanent Court of International Justice, which theoretically might have ruled whether the extradition demands in the Versailles Treaty were legal under international law, was not established yet. In the fall of 1919, the League still had a provisional status; it was only formally established when the Versailles Treaty took effect on January 10, 1920. When the Council first met in 1920, the most important projects were building the League’s organization, examining proposals for an international health agency, and preparing for an international financial conference to deal with war loans and currency stabilization.'*° The Secretariat, as Drummond conceived it, was supposed to be a neutral “international civil service” that would circulate information among governmental ministries and facilitate co-operation on technical projects, laying the groundwork for smooth international relations and reducing some of the gate-keeping power of foreign ministries.'*' Over time, the Secretariat became a political organization with its own back-channels of information and political goals, shaping decisions that the Council would then approve. Although it sometimes capitulated to Great Power demands and supported their colonial mandates system, in its first period it

also tried to become a third force in international politics, working to expand League membership, advocating the pacific settlement of disputes, and promoting participation in international committees dedicated to solving health problems and studying economic planning. From the fall of 1919 through February 1920, when the Allied-German confrontation over extradition of German nationals was most acute, Drummond’s advisors reported on the methods the Allies could use to compel Germany to follow the Versailles Treaty and whether the League might be called upon to settle the extradition dispute. These internal discussions began as legal analyses about whether the Allies could use coercive measures without first bringing a dispute before the League, and, if the Allies did want to use the League, how the process would work. Van Hamel, who became director of the Legal Section of the Secretariat of the League of Nations beginning in December 1919, wrote that if the Allies wanted to use coercive measures to enforce the treaty, they would have to first bring the dispute before either the League’s Council or the League’s yet-to-be-created Permanent Court.'*’ Regarding the extradition of alleged German war criminals, if 9 Reply of the Netherlands Government, January 21, 1920, (Document 30), Dockrill, British Documents on Foreign Affairs. Part Il. Series I. Vol. 5.

'30 Martin David Dubin, “Transgovernmental Processes in the League of Nations,” [nternational Organization 37, no. 3 (1983): 485-7. '5! Dubin, “Transgovernmental Processes in the League of Nations,” 471-82. '52 ‘Van Hamel, “Control of the Execution of the Peace Treaty, and Position of the League of Nations with regard thereto,” October 17, 1919, LNA/1225/1214/1214.

62 The Birth of the New Justice the situation reached a deadlock, he advised that the Secretariat could perhaps ask Spain to raise the issue during a private meeting of the League Council—a suggestion that others in the Secretariat thought rash.'°? Once the high point of the crisis had passed, and it appeared the Allies and Germany were going to settle it among themselves, he still thought that in theory, if one of the Allies brought the dispute before the Council, that body could recommend a political solution.’ Another advisor, the young Philip Baker (a British Quaker, former member of Britain’s delegation to the Peace Conference, and later winner of the Nobel Peace Prize in 1959), argued that the League could technically get involved in treaty enforcement, but it was politically inadvisable to do so.'*? On the extradition issue, it would be more practical if the Allies and Germany settled the dispute among themselves. Like van Hamel, he thought the Allies could not take coercive measures unless one of them first made a formal complaint to the League Council, which would probably form a commission to investigate the dispute. This would lead to a cool-down period, and “[i]t would give the Allies an easy way of climbing down from a difficult position; and so far as the War Criminals are concerned, it would no doubt in the end secure substantial justice.”'*° These advisory opinions did not affect the final outcome (since the League did not get involved), and the advisors recognized by mid-February that their analyses had become academic. Yet their views demonstrate that the League's processes were untested, and it had not attained the institutional stability necessary to resolve extradition disputes or assist in war crimes trials. If the Versailles Treaty’s extradition clause was not fulfilled, and Germany did not offer some type of substitute, the treaty would be called into question. If the treaty were tarnished, the legitimacy of the League could be jeopardized, since the treaty contained the Covenant, the document creating the League. Furthermore, the advisors in the Secretariat were

worried that if the League got involved in the dispute—or in other issues of enforcement, such as reparations, limits on German armaments, or rules prohibit-

ing the German military from entering the Baltics—the matter could become politicized. According to Baker, if this happened, neutrals, the enemy states, and even Russia would view the League as “an alliance of the victors.”'*’ Therefore, real-

izing the “new justice” did not only require a new set of legal ideas and commitment to a “new morality,” but an impartial institution that could house it. One might be tempted to take a progressive, evolutionary view of the events at the Paris Peace Conference and claim that the importance of the jurists’ work on the punishment issue was to introduce new concepts and blueprints—Larnaude’s call for individual penalties to enforce the law of nations, Pollock’s demand that

'33 Van Hamel to Secretary General, February 6, 1920, LNA/1273/2952/2505. Spain had been neutral during the war and held a seat on the League Council. '54 Van Hamel, Minute, February 20, 1920, LNA/1273/3085/2505. '° PJ. Baker, “The application of the Treaty of Peace by the League of Nations,” September 18, 1919, LNA/1255/1214/1214.

'86 PJ. Baker, Minute, February 16, 1920, LNA/1273/3085/2505. The document is marked “Action Copy” and has “Dr. Van Hamel” hand-written at the top. '57 Baker, “The Application of the Treaty,” 18 September 1919, LNA/1255/1214/1214.

Birth of the New Justice 63 higher civilian and military leaders be prosecuted for failing to prevent violations of the laws and customs of war, and Politis’ determination to establish an international tribunal to help smooth post-war Balkan relations. But the mere appearance of an idea does not mean it will last, gain widespread political support, or be implemented. From the viewpoint of mid-1920, the negotiation of the penalty clauses and the resulting extradition disputes did not lead to a radical transformation of international law. Instead, it inspired the development of a minority movement within the field that brought new social, moral, and political concerns—not all of them liberal—to the project of developing an international punishment regime.

The European Allied imperative to punish individuals on the international level had developed in the victors’ partisan environment, a product of domestic pressures for retribution, outrage over the German and Bulgarian invasions, government investigations of various atrocities, the belief that the Central Powers had intentionally employed criminal methods, and dissatisfaction with the fact that existing conventions did not specify international punishment. ‘The “new justice” of trials and punishment would have to overcome numerous problems if its life were to extend beyond the passions elicited by the war’s suffering, physical destruc-

tion, and the collapse of both international law and standards governing conduct in war. Advocates faced the issues of ex post facto jurisdiction, charges of victors’ justice, a lack of support by neutrals, and the great political complications of extradition. Furthermore, as the League of Nations became operational, the new priority in international law was not to institute a system of punishments for aggressive war and war crimes. In the early days of the League, the political and legal momentum was to build a new permanent system of adjudication for disputes between states, extending the optional system of arbitration that had been created at the Hague Conferences of 1899 and 1907—but had not been used by the European powers in August 1914. Still, the idea for international criminal prosecution resurfaced. When a group of international jurists—representing victor states and neutrals, but not defeated states—convened under the auspices of the League in the summer of 1920 to write the rules for a new Permanent Court of International Justice, they debated a Belgian proposal to establish an international criminal court. A majority approved a proposal asking the League to consider the idea, but the League Assembly rejected the suggestion and also quashed a proposal to begin discussions on the codification of international law, a project initiated by the Hague Conferences. These rejections acted as a forceful catalyst for theorists and non-governmental organizations devoted to building international criminal law. Yet they were also

a sign of things to come. Many national governments opposed projects that would weaken state sovereignty. They believed an international criminal court would create a “Super-State” with jurisdiction over their citizens and turn political acts into common crimes that other governments might try to prosecute for political gain.

Crimes against Humanity and Crimes of Denationalization: The Victory of Political Expediency Over Justice There were two special types of crimes discussed in some of the memos submitted to

the Commission on Responsibilities—“crimes against humanity” and “crimes of denationalization’—that are historically important in light of the later development of the legal concepts of crimes against humanity and genocide, as well as the view that international tribunals were the best methods to punish perpetrators of these crimes. Three different delegations, the Armenian (which did not have an official place at the Peace Conference), the Greek, and the Serbian, complained of massacres,

deportations, beatings, rapes, and the destruction of cultural sites that they maintained were part of a concerted effort by the Turks and Bulgarians to rid certain territories of these national groups.' The term denationalization was only used by the Greek and Serbian delegations, while the Armenians spoke of government-directed massacres which they termed “crimes against humanity and civilization,” referring to an Allied Note to the Ottoman government in 1915 that had used the concept.” The complaints attempted to formulate a new way of thinking about planned, government-sponsored mass crimes directed at a collective national group. Yet “crimes against humanity” and “crimes of denationalization” did not become fundamental elements of the “new justice” in the first years of the interwar period, and it is difficult

to draw a straight line from these concepts, as they were voiced in 1919-20, to the legal definitions of crimes against humanity and genocide after World War Two. ' “Mémoire de la délégation serbe déposé le 24 février 1919. Rapport de la Commission interalliée sur les violations des Conventions de La Haye et du droit international en général commises de 1915 a 1918 par les Bulgares en Serbie occupée;” “Mémoire de la délégation hellénique déposé le 26 février 1919. Note sur les crimes commis par les Bulgares, les Turcs et les Allemands contre les populations helléniques;” “Mémoire de la délégation nationale arménienne déposé par la délégation hellénique le 13 mars 1919. Note sur les auteurs responsables des massacres des Arméniens” in La Documentation Internationale, La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions, ed. Albert de Lapradelle (Paris: Les Editions Internationales, 1930), 3: 95-136, 223-5. The Polish delegation raised the charge of denationalization only briefly in its memo, stating that in Lithuania, Polish schools were shut down and Polish books and journals were prohibited. See “Mémoire de la délégation polonaise déposé le 5 mars 1919. Note sommaire sur les exactions commisses, contrairement au droit des gens, en Pologne par les armées ennemies de 19144 1918,” La Documentation Internationale, La Paix de Versailles, 3: 173-8.

* On the origins of this note and the argument that the concept stemmed from nineteenth century Russian international law and humanitarian intervention in the Ottoman Empire, see Peter Holquist, “Crimes against Humanity’: Genealogy of the Concept (1815—1945),” paper presented to “Europe 1815-1914. Between Restoration and Revolution, National Constitutions and Global Law: an Alternative View on the European Century 1815-1914,” Helsinki, Finland, March 6, 2012.

Crimes against Humanity 65 Many obstacles prevented the consciousness of these crimes and their early formu-

lation from turning into fully-fledged concepts in international criminal law at the start of the inter-war period.’ Great Power conflicts and nationalist resistance were two of the stumbling blocks; domestic instability and the use of domestic political justice in the Balkans were others. Additionally, the idea of international crime and punishment for this type of collective violence did not take hold because Great Powers and Balkan states pursued other strategies developed by international lawyers, politi-

cians, and diplomats: compulsory population exchanges and a system of minority rights based on petitions and closed-door investigation and diplomacy, not criminal prosecution. The former was more radical than criminal prosecution and had many negative social consequences. The latter was a hybrid political-legal system designed to deal with questions of equal protection under the law and certain civil rights, rather than an international criminal legal system designed to address cases of violence that a state refused to prosecute on its own. Historian Eric D. Weitz argues that the minorities protection system and forced population transfers were rooted in legal and intellectual concepts of the nineteenth century—the western European “civilizing mission” in Africa and the belief in individual self-determination as a template for

national development in the Balkans and Eastern Europe. He also maintains that post-World War One compulsory population transfers were pre-figured in exchange agreements between the Russian and Ottoman Empires concerning the Caucasus in the 1860s. These are interesting arguments—especially in that he shows connections

between European imperialism in Africa and Asia with population policies in “peripheral areas” of Europe.* However, he does not concentrate on the reasons why criminal prosecution was not part of the grand shift to “population politics” at the Paris Peace Conference and the Lausanne Conference. Given that 1860—1885, the period that Weitz considers fundamental for the development of “population politics,” was a period of constitutional reform in Europe, and the attempted reform of criminal law was part of that process, one should ask why certain international lawyers and politicians after World War One wanted to avoid criminal prosecution when dealing with large-scale crimes directed against populations. Furthermore, there are some specific local factors in the Balkans that should be considered.

In the Balkans and the Near East, the period 1912-1922 was a multi-phased process of nationalist state-building and ethnic homogenization through violence: it included two Balkan wars, World War One, the Greco-Turkish War, and continued warfare and communal fighting in the Caucasus.’ Many factors led to this situation. In the nineteenth century, cultural and intellectual elites created mythic histories and asserted a “right” to a particular homeland. As village security in the > ‘Their influence on concepts of rights, particularly attempts to “universalize” the League of Nations minorities treaties, seems clearer.

* Eric D. Weitz, “From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations, and Civilizing Missions,” American Historical Review 113, no. 5 (2008): 1313-43. > Historian and sociologist Taner Akcam uses this concept to describe the period of massacres and counter-massacres from 1918-1922, but I have expanded it to include the Balkan wars and the Armenian genocide. See Taner Akcam, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, trans. Paul Bessemer (New York: Metropolitan Books, 2006), 331.

66 The Birth of the New Justice Ottoman Empire declined, groups of Balkan Christians and Muslims formed selfdefense militias that terrorized each other’s villages. The European powers pressured the Ottoman Empire to reform its political system and protect Armenians against persecution, but imperial officials refused to implement a system of individual rights. The European powers began discussing the partition of the Ottoman Empire, which led the Young Turk movement to change its ideology from a type of Pan-Islamism, embracing all the Muslims in the empire, to an exclusivist, xenophobic Turkish nationalism that regarded the Christian Armenians as a security threat, accusing them of courting the European powers and persuading them to intervene in the Ottoman Empire.® In the Balkans, political elites and intellectuals

from different Balkan states competed to expand their borders and claim the people in certain contested areas, such as Macedonia, as their own.’ These events and trends helped fuel unchecked forms of collective violence

against national groups during and after World War One. The Committee of Union and Progress, a Turkish nationalist political party that controlled the Ottoman

Empire’s war-time cabinet, planned and implemented the mass deportation and intentional extermination of between 600,000 and 1.5 million Armenians, with the goal of creating a Turkish state only for Muslim Turks. At the time these were known as the “Armenian massacres,” though historical scholarship has now proven that this was an intentional act of genocide, not a necessary deportation to “protect” the Ottoman Empire from internal security threats.* The Committee also expelled over 400,000 ethnic Greeks from Asia Minor and from Thrace before World War One, then allegedly deported over 480,000 more into the interior of Anatolia during the war.’ In the Balkans, the Bulgarian military occupied southern Serbia and parts of Macedonia that Serbia had only recently acquired in the first Balkan War. Working with groups of irregular armed bands, the Bulgarian army deported and murdered Serbian priests, teachers, and notables, destroyed Serbian churches and schools, and tried to prohibit the use of the Serbian language.'° This ° Akcam, A Shameful Act, 82-108. ’ Victor Roudometof, Collective Memory, National Identity, and Ethnic Conflict: Greece, Bulgaria, and the Macedonian Question (Westport, Conn.: Praeger Publishers, 2002), 89-95. ® Akcam, A Shameful Act, 183-93, 196-204. See also Vahakn N. Dadrian, “Genocide as a Problem of National and International Law: The World War I and Armenian Case and Its Contemporary Legal Ramifications,” Yale Journal of International Law 14, no. 2 (1989): 262-73. > “Mémoire de la délégation hellénique déposé le 26 février 1919,” 122-3, 128-35. '0 “Mémoire de la délégation serbe déposé le 24 février 1919,” 95-117, especially the section on executions along the deportation route (105), the conditions of the deportation camps (106), and the documents that allegedly prove the denationalization campaign was officially ordered (115-17). For additional evidence of this denationalization campaign, see Report of the Bulgarian Atrocities in Serbia, William A. Drayton Papers, Box 1, Folder: “Bulgarian Military Occupation of Serbia, 1915-1918,” Hoover Institution Archives. Drayton was an American who was part of a Serbian commission that

visited Serbian Macedonia and eastern Serbia in December 1918 and January 1919 to investigate crimes against civilians allegedly committed in 1915-16. Drayton also kept a diary, which contains his notes about fifteen witnesses who charged that the Bulgarian military deported Serbs to Surdulica, killed a portion of them according to pre-determined lists, and deported the rest to Sofia. See William Drayton Papers, Box 1, Folder: Diary, November 11, 1918 to December 17, 1918, Hoover Institution Archives. For a recent historical analysis of the denationalization campaign, see Andrej Mitrovi¢, Serbias Great War 1914-1918 (West Lafayette, Indiana: Purdue University Press, 2007), 221-32.

Crimes against Humanity 67 was the latest episode in a cultural-political struggle, waged with violence, between the Serbs and the Bulgarians. Both claimed that the Macedonian Slavs actually were “their” people, and that there was no independent Macedonian nationality. The Greeks launched a similar series of charges against the Bulgarian military,

alleging that the Bulgarians intended to “annihilate the Greek populations in Macedonia” through hunger and starvation, cutting off the food supply. In all these efforts to “bulgarize” the population, the Greek delegation claimed that the Bulgarian government had pursued a concerted policy and was encouraged by a German foreign secretary." The Armenian, Greek, and Serbian delegations employed certain common ele-

ments in their concepts of crimes. First, the victims of the group were selected because they belonged to a particular national group, which, in Anatolia and the Balkans, meant they shared a common language and religion. Second, the delegations asserted the crime was more severe than individual violations of the Hague Convention or domestic criminal law because the criminal acts had a collective character, meaning that the diversity of horrendous acts, whether massacres of priests and teachers, the deportation of villagers, or the seizure of property, had one overall purpose: the extermination of the group. Third, they did not consider the crimes as excesses committed by individual soldiers or bands of irregulars acting on their own volition. According to the delegations, enemy governments had either planned these collective crimes or condoned them. For this reason, the perpetra-

tors and the highest authorities should be prosecuted. Still, only the Armenian delegation specifically called for the Allies to institute their own trials and not recognize the Ottoman government's right to try its own nationals.'* The Greeks and

the Serbs did not specify in their memos whether they wanted an international tribunal or wished to use their own national tribunals. As mentioned in the previous chapter, during the summer sessions of the Commission on Responsibilities, they asked for an international tribunal for Bulgarian perpetrators, but the French rejected it.

The delegations’ assertions that their peoples had been victims of a planned, government-sponsored crime, aiming to eliminate them as a national group, did not mean that documenting the crime and pushing for prosecutions served the same purpose for all the delegations. The Armenians wanted immediate assistance to ensure that new massacres would not ensue, and they distrusted prosecutions that the Ottoman sultanate had begun, arguing that international trials would be more effective.'’ The Greeks were interested in bolstering their claims for territory in Asia Minor, believing that if they could show that the Ottomans had committed collective crimes against Greeks in that region, the Greek state would be better suited to rule those areas.'* The Serbs claimed they wanted to seek the most severe '! “Mémoire de la délégation hellénique déposé le 26 février 1919,"122-31.

2 “Mémoire de la délégation nationale arménienne déposé par la délégation hellénique le 13 mars 1919,” 225. '5 “Mémoire de la délégation nationale arménienne.” ‘4 Michael Llewellyn Smith, lonian Vision: Greece in Asia Minor 1919-1922 (New York: St. Martin’s Press, 1973), 69-76.

68 The Birth of the New Justice punishment against the Bulgarian military and police to force them back to reason, yet they also wanted to establish a factual basis for reparations.'? The demand for justice was mixed with nationalist politics, the need for maximum financial reparations, aspirations for territorial compensation, and international recognition for the suffering of populations who had not been on the front pages of the Western European and American newspapers. However, for several reasons, neither “crimes against humanity and civilization” nor “crimes of denationalization” took hold, even as embryonic parts of the new international system after World War One. Under the Treaty of Sévres (1920), the Allies reserved the right to create their own tribunals for Turks responsible for the massacres, and the Turkish government was obligated to extradite all persons accused of violations of the laws and customs of war, regardless of their rank or office.'® Scholars have shown that the Allies never created this tribunal because Britain, France, and Italy put territorial, economic, and imperial objectives ahead of a commitment to justice.’ Only Britain was interested in prosecuting perpetrators of massacres and wanted to use its military courts for that purpose, but it ran into serious conflicts with the Turkish Nationalist Movement. After the British military authorities arrested members of the Committee of Union and Progress and nationalists aligned with Mustafa Kemal, the Kemalists retaliated by arresting British officers.'* The Ottoman imperial government did hold its own series of trials with extraordinary courts-martial, prosecuting sixty-three cases, leading to several guilty verdicts and executions, eight dismissals, and twenty-one unknown results.” This produced a valuable historical record of pre-trial interrogations.

However, it also used the courts-martial to prosecute Turkish nationalists for alleged insurgent activity as a means of eliminating political opponents and shifting the blame for the war to a small leadership coterie of the Committee of Union and Progress. In any case, the nationalists defeated the Ottoman faction in a civil war and also defeated the Greek army in Asia Minor at the end of 1922. This enabled Kemal to renegotiate the Treaty of Sevres and insist that the previous Allied condition of international trials be cancelled. Afterwards, the nationalist government nullified all the verdicts of the Ottoman administration’s courts-martial, provided salaries to the families of Committee of Union and Progress members who participated in the genocide, and allowed other perpetrators to serve in high ministerial and military posts in the 1920s.” In the case of Bulgaria, the post-war Agrarian reformist regime under Aleksandar Stambuliski negotiated the right to prosecute its own military officers accused of war crimes, though it mainly used the opportunity to prosecute former members of the cabinet who had led Bulgaria into World War One, leaders of Macedonian 'S “Mémoire de la délégation serbe déposé le 24 février 1919,” 97, 117. '6 Dadrian, “Genocide as a Problem,” 281. '7 James FE, Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of

the First World War (Westport, Connecticut: Greenwood Press, 1982), 156-61; Dadrian, “Genocide as a Problem,” 286; Akcam, A Shameful Act, 373-5. '§ Dadrian, “Genocide as a Problem,” 281-9; Akcam, A Shameful Act, 233-42, 291-302.

'"° Akcam, A Shameful Act, 286-8. °° Akcam, A Shameful Act, 341-4, 362-4.

Crimes against Humanity 69 terrorist organizations, and opponents of Stambuliski’s political party.*’ Thus, the trials were a type of military and political purge during a period of regime change following the war. Military tribunals had already been active in political affairs in Bulgaria prior to World War One: they were used to prosecute political officials involved in grain purchases for foreign bondholders, and the royal regime sentenced

Stambuliski to death for treason in 1915 because he published an anti-royalist, anti-war pamphlet. Once Stambuliski came to power after the war, his government also used the courts and bent the legal rules to suppress the communist party and bourgeois parties.” This use of military tribunals to deal with political opponents was a feature of political systems elsewhere in the Balkans, indicating that justice was not, by default, considered a neutral institution. In Serbia in 1917, Regent Aleksandar and his group of “White Hand” officers eliminated a

rival group of military officers, the “Black Hand” under Colonel Dragutin Dmitrijevi¢ (Apis), by putting them on trial in Salonika and executing them.” Because the military had played such an active role in Balkan political affairs since the nineteenth century, and because the small bourgeois classes in these countries strongly opposed outside interference in their affairs, the concept of international

trials and international justice was bound to be perceived as an intrusion into their sovereignty. Conflicts among the Great Powers and resistance by successor governments to international trials were not the only reasons that prevented “crimes against humanity’ and “crimes of denationalization” from entering the legal lexicon of the new justice. First, there was relatively little legal development of the concepts. The question of how best to formulate a legal definition of a set of collective crimes designed to eliminate a national or religious group, and specify the conditions under which

a state’s domestic power to prosecute its own nationals could be superseded by post-war victorious powers was never discussed in depth at the Paris Peace Conference. [he Commission on Responsibilities only took up the question of the Armenian memo one time, and this merely led to a brief discussion about which types of crimes should be considered by a subcommission that was collecting all the charges against the Central Powers. Although historian and sociologist ‘Taner Akgam states in his otherwise outstanding book that the Commission on Responsibilities made the Armenian genocide a priority in its negotiations, the Commission minutes do not show this. The framing of German charges dominated the discussions, and the Armenian massacres, as a crime against humanity, were rarely discussed. The question of whether the actions of a government against its own subjects could be considered crimes under international law was only taken up once, and the course of the discussion shows that Western European concerns dominated Southeastern European ones. When the plenary Commission first met *! John D. Bell, Peasants in Power: Alexander Stamboliski and the Bulgarian National Union, 18991923 (Princeton: Princeton University Press, 1977), 147. 2 Bell, Peasants in Power, 116-21, 151, 159-60. *3 David MacKenzie, Apis: The Congenial Conspirator. The Life of Colonel Dragutin T’ Dmitrijevié

(Boulder: Eastern European Monographs, 1989), 105-22, 153-68. 4 Akcam, A Shameful Act, 230.

70 The Birth of the New Justice on February 7, 1919, the issue of crimes committed by Turks against Armenians

and Greeks on Ottoman territory prompted Politis to request that the terms of reference governing the Subcommission on Criminal Acts should specifically include acts in which a power or its nationals were victims.” This would include crimes that were committed against a national group on territory other than the “homeland,” such as crimes that the Turks had allegedly committed against Greek subjects of the Ottoman Empire on Turkish soil. For Politis, these crimes could not be encompassed by domestic criminal law, and he supported the idea that the perpetrators should stand before an international tribunal. Politis’ suggestion—a way to support the Greeks wherever crimes against them had occurred—prompted Rolin-Jaequemyns, the Belgian delegate, to request that the definition should also include acts committed on a nation’s own territory. Even though these should have been covered by the Hague Convention, Rolin-Jaequemyns wanted to ensure that crimes committed by Germans on Belgian territory would not be left out.”° Lar-

naude, the French delegate, agreed with Politis that the mandate should be expanded to include crimes outside the boundaries of domestic criminal law, but the crimes Larnaude mentioned reflected the Western European perspective: torpedo attacks, aerial bombardment, and the German decision to violate Belgian neutrality.” The upshot of the discussion was the delegates agreed that the Subcommission on Criminal Acts would accept memos about crimes in which an Allied power or its nationals (in another country) were the victims. Overall, the Commission on Responsibilities did not delve into the Armenian massacres or the other delegations’ charge of crimes of denationalization, but simply wrapped them into the rest of their report without special legal refinement. The memos submitted by the Armenian, Serbian, and Greek delegations all formulated the idea of collective crimes in different ways—crimes against humanity, violations of the Hague Convention, crimes of common law, and crimes of public law. The legal advisors at the Conference never tried to reconcile these concepts when dealing with crimes committed by a government against its own subjects on its own territory. They debated the legal basis for acts that violated the laws of war but did not go further than this. Moreover, at the beginning of the 1920s, international legal scholars did not develop a complete legal theory about “crimes against humanity” or “crimes of denationalization” based on the Armenian case, or on the Greek and Serbian charges. As historian Daniel Marc Segesser notes, most European international lawyers believed the appropriate punishment for the Ottoman Empire was partition, not the establishment of trials. Lawyers also had a cultural bias when it came to the Near East and the Balkans, considering these parts of the world uncivilized, primitive, and backward. Segesser concludes that the most that can be said about the notion of “crimes against humanity,” as formulated in the Allied note of 1915 and the call for trials in the Treaty of Sévres, is that

2> La Documentation Internationale, Za Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions, ed. Albert de Lapradelle (Paris: Les Editions Internationales, 1930), 3: 17-18. 26 La Documentation Internationale, La Paix de Versailles, 3: 18-19. 27 La Documentation Internationale, La Paix de Versailles, 3: 18.

Crimes against Humanity 71 the Allied failure to prosecute merely served as a negative example of what should not be done in the future.*? This was indeed the case when Jewish international jurists devised a legal basis for an international trial to prosecute collective crimes

against European Jews in the 1940s. Chapter 6 will argue that the key problem concerned finding ways to expand the concept of war crimes and then to demonstrate that planned exterminations, as “crimes against humanity,” were connected to preparations for aggressive war. A second reason why crimes of denationalization did not immediately become part of the new justice was that, after the Treaty of Sévres was signed in 1920, there

was great internal turmoil in the Balkan countries that had advocated post-war international tribunals at the Paris Peace Conference. In Greece, the scene was dominated by problems caused by Greece’s defeat in Asia Minor. A Greek military

revolution followed in September 1922, then 1.2 million Orthodox Christian refugees flooded into Greece from the Ottoman Empire.” In this environment, the Greek revolutionary government had priorities other than the prosecution of foreign war criminals. Instead, the Revolutionary Committee, comprised of proVenizelos military commanders, wanted to deal with its political opponents: the

military commanders who supported King Constantine and who became the scapegoats for the war defeat (despite the fact that the Venizelos had initiated the Smyrna expedition).°*° As historian Thanos Veremis notes, “The coups of 1909, 1916, and 1922 made the army the champion of middle-class aspirations, expansionist dreams or an instrument to punish erring politicians.”*' In 1922, the Greek Revolutionary Committee established an extraordinary military tribunal, which prosecuted and executed six former government ministers and one general for treason. Nicolas Politis, the international lawyer who had served on the Commission on Responsibilities, again served as Foreign Minister (reluctantly and briefly) in this chaotic period.** Interestingly, he was willing to accept a few executions of former cabinet officials, but he resigned with the rest of the new cabinet when the Revolutionary Committee exceeded that, because Britain opposed the executions and severed diplomatic relations.** In his diary, he expressed a sense of “profound

*8 Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen

in der internationalen wissenschafilichen Debatte 1872-1945 (Paderborn: Ferdinand Schéningh, 2010),

223-5. ” For historical background, see Thanos Veremis, The Military in Greek Politics (Montreal: Black Rose Books, 1997), 50-69; Paschalis M. Kitromilides, ed., Eleftherios Venizelos: The Trials of Statesmanship (Edinburgh: Edinburgh University Press, 2006), 113-92; John R. Lampe, Balkans into Southeastern Europe (New York: Palgrave Macmillan, 2006), 59-62.

°° See the Revolutionary Committee’s Manifesto in Christopher Seton-Watson, ed., British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print. Part II. From the First to the Second World War. Series k Europe, 1919-1939. Vol. 5, Italy and South-Eastern Europe, July

1921—December 1923 (University Publications of America, 1992), Doc. 175. °! Veremis, The Military in Greek Politics, 73. *° Politis diaries, September 27 to October 4, 1922, LNA/T246. 33 Politis diaries, November 9, November 11, November 18—20, 1922, ibid. Also see Politis’ note to Curzon, November 15, 1922, defending the executions and warning that British interference would radicalize the revolutionary government and lead to a civil war, in Seton-Watson, British Documents on Foreign Affairs, Part IT, Series E Vol. 5, Doc. 192.

72 The Birth of the New Justice repulsion” after the executions,™ though his diplomatic visits to Lausanne, Berne, and Geneva afterwards suggest that he was mainly concerned about how the affair would affect Greece’s position at the upcoming peace conference in Lausanne, Switzerland.» After this, during the mid-1920s, Politis became very skeptical of

tribunals for war crimes, viewing them as political instruments, though he was willing to entertain the concept for aggressive war.*°

A third reason why international prosecution and new definitions of crimes against national groups did not take hold was that diplomats and international lawyers proposed a new, harsh political solution—population exchanges—as the method to deal with nationalist violence. Back in 1913, the Ottoman and Bulgarian governments had negotiated a legal convention for the voluntary exchange of whole villages in Thrace, which was divided after the Second Balkan War: Muslim and Bulgarian villagers “exchanged” places in certain districts on either side of the

border. Then, in 1914, Greece and the Ottoman Empire negotiated a deal to exchange Greek Orthodox Christians in the Smyrna region for Muslims in Macedonia, but the process was halted by the outbreak of World War One.*’ At the Paris Peace Conference in 1919, the delegates on the “Committee on New States and for the Protection of the Rights of Minorities” proposed a broad exchange of populations among Greece, Bulgaria, Serbia, and Turkey—all states involved in these questions of denationalization and minority problems. In this type of exchange, people from one area would give up their land and property and settle in the state with which they had a religious or national afhliation, and get automatic citizenship there. The Committee stated that these reciprocal exchanges “would do much to help a permanent settlement of the troubles which have so long affected the Balkans and be a valuable supplement to the causes dealing with the protection of minorities” in the Paris peace treaties.*® In one sense, the Paris Peace Conference diplomats were dealing with a real consequence of the Balkan and World Wars: thousands of people had fled their homes and left their property behind, and this was supposed to give them a way to reclaim some of their movable property, as well as get citizenship in the country where they sought refuge. At the same time, this opened the door to heavy-handed social engineering. Politis was involved in this international solution, too, showing that international lawyers theoretically devoted to international peace, collective security, and international courts were deeply involved in monumental decisions concerning the fate of hundreds of thousands of people’s citizenship, property, and economic livelihood: they typically lost sight of the lowly individual and village when pursuing

34 Politis diaries, November 28, 1922, LNA/T246. 39 Politis diaries, December 5—7, 1922. °° See Chapter 4. 7 Stephen P. Ladas, The Exchange of Minorities. Bulgaria, Greece, Turkey (New York: Macmillan,

1932), 10-31; Kalliopi K. Koufa and Constantinos Svolopoulos, “The Compulsory Exchange of Populations Between Greece and Turkey: The Settlement of Minority Questions at the Conference of Lausanne, 1923, and Its Impact on Greek-Turkish Relations,” in Ethnic Groups in International Relations, ed. Paul Smith in collaboration with K. Koufa and A. Suppan (New York: New York University Press, 1991), 282—5. °8 Quoted in Ladas, The Exchange of Minorities, 30.

Crimes against Humanity 73 grand schemes to homogenize domestic populations. Politis did not invent the idea of population transfers (Venizelos and the Turkish Minister in Athens did), but he wrote the basic draft convention for reciprocal emigration that the Committee on New States used for the population exchange agreements in the Treaty of Neuilly (dealing with Bulgaria) and the Treaty of Lausanne (dealing with Turkey).°’ As a result, there were two major exchanges. In a Greek—Bulgarian exchange,

an estimated 46,000 Greeks left Bulgaria and went to Greece, and 92,000 Bulgarians from Greek Macedonia and Thrace emigrated to Bulgaria.*® In the Greek— Turkish exchange, 585,000 Muslims were exchanged with 1.3 million Orthodox Christians, though many had already fled their homes during the wars between 1912 and 1922. For those who had not left their homes as war refugees or victims

of ethnic expulsions, the population exchange agreements were compulsory, though there were exceptions for the Greeks in Constantinople and Turks in Western Thrace.*!

Forced population transfer meant that two states with minority populations agreed to transfer whole villages of people from one state to the other, allowing them to obtain nationality in the other state, take their movable property with them without any legal obstacles, and obtain immovable property, such as a farm, in the new state, either at the value of what they owned before or with some additional compensation to make up the difference between the value of the old and new property. It was also supposed to allow minority groups who had fled their homes during the wars to obtain compensation for the property they left behind. The reality was very different. A Commission, under the auspices of the League of Nations, worked out rules for the appraisal, transfer, and sale of property, as well as

supervision of the emigration process. ‘This led to huge, complex problems that ultimately had to be worked out through political negotiations that took years.” The politicians and legal advisors believed that the best way to protect their conationals in neighboring countries was to eliminate national minorities by creating homogeneous nation-states: the minorities would be compelled to move and resettle in the state that claimed them on the basis of religion or ethnicity. This created severe problems as the emigrants were totally uprooted. They lost their economic connections, their community institutions were disrupted, and they were cast into a foreign linguistic environment (since some Greeks in Turkey did not speak the same Greek dialect spoken in Greece, and some Turks in the Balkans did not speak Turkish). Many were also politically radicalized by their experiences as refugees and expellees, becoming right-wing nationalists or communists.** Some scholars

* See the draft in Ladas, The Exchange of Minorities, 32-3. The compulsory exchange in the Treaty of Lausanne was created by Venizelos and Hamid Bey, Ankara’s diplomatic representative. It was facilitated by Fridtjof Nansen, who was empowered by the League of Nations to deal with relief for refugees from the Greco- Turkish War (ibid., 335-7). “© Ladas, The Exchange of Minorities, 122-3. “| Ladas, The Exchange of Minorities, 340-50. © Ladas, The Exchange of Minorities, 720-30. 8 John S. Koliopoulos and Thanos M. Veremis, Modern Greece. A History since 1821 (Malden, MA:

Wiley-Blackwell, 2010), 94-100.

74 The Birth of the New Justice argue that the population transfers eliminated a source of conflict between Greece and Turkey, allowing them to normalize their relations and avoid war. Yet the

whole settlement contradicted the idea of national self-determination, caused undue stress to the people concerned, and created massive housing and unemployment problems. Forced population transfers represented an expedient alternative to the ideas of the new justice, as well as a dangerous escape route from the prob-

lem of intermingled populations. At the start of the 1920s, the mighty hand of government agreements and state control, with the collaboration of an international institution (the League of Nations), had more sway than the idea of international prosecution and punishment. Separating communities, realigning national citizenship, and transferring property were far more extreme than prosecuting perpetrators for serious crimes. On the other hand, they were aimed at different problems: population exchange was a response to war refugees and “ethnic cleansing,” as well as a way to reduce future conflict. The embryonic ideas of the new justice primarily dealt with finding a way to punish war crimes, not deal with the root causes of war or inter-communal social violence. A final reason why international criminal enforcement did not became a major tool to deal with violence against minority groups was that lawyers and political leaders from the Great Powers, influenced by Jewish organizations, developed a new system of treaty-based protections for minorities under the supervision of the League of Nations in 1919.* Rather than a system based on criminal law, prosecution, and punishment, this was a system based on civil rights, petitions, and

closed-door diplomatic bargaining. The new and enlarged states of Eastern Europe—Poland, Romania, Czechoslovakia, and the Kingdom of the Serbs, Croats, and Slovenes—had to sign special treaties stating that they would treat their minorities equally under the law, allow them to use their languages in courts and schools, and permit them to run their own welfare institutions. The governments of Austria, Hungary, and Bulgaria (all defeated in the war) had to agree to similar clauses, which were inserted in their peace treaties. The rationale behind

the system was that all these countries had significant numbers of minorities, many of whom had either been persecuted in the past or who now found themselves, after the peace treaties were signed, living under a totally new administration. Yet, why was the system constructed as a civil system, attempting to join treaty law and municipal law, rather than a new type of international criminal law system? First, following historian Carole Fink, one should recognize that, even

though the Jewish organizations that urged the Great Powers to construct the

“* Svolopoulos, “The Compulsory Exchange of Populations Between Greece and Turkey,” 304. “© On the diplomacy that created the system, see Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878-1938 (New York: Cambridge University Press, 2004). For a balanced assessment of its achievements and failures, see Jacob Robinson et al., Were the Minorities Treaties a Failure? (New York: Institute of Jewish Affairs of the American Jewish Congress and the World Jewish Congress, 1943). For the point that the system was fundamentally a political one, rather than a legal one, see Stanislaw Sierpowski, “Minorities in the System of the League of Nations,” in Ethnic Groups in International Relations, ed. Paul Smith in collaboration with K. Koufa and A. Suppan (New York: New York University Press, 1991), 32-3.

Crimes against Humanity 75 system were reacting in part to outbreaks of Polish violence against Jews in 1919 in Lemberg, Kielce, and Pinsk—pogroms and military executions that the Polish authorities failed to prevent—these organizations were seeking a broader set of protections and rights than mere physical security. The “anti-nationalists,” comprised of assimilated Jews from Western Europe and the U.S., wanted equal treat-

ment under the law, state-supported schools that taught Yiddish in Eastern Europe, the right of Jewish businesses to conduct business on Sunday (the Christian Sabbath), and promises that states would not hold elections on Saturday (the Jewish Sabbath). The “nationalists,” representing Zionists from Eastern Europe and the U.S., wanted Jews to be recognized as a national group that would have the right to have a seat in the League of Nations.*° This way of thinking was influenced by minority politics and the ideology of nationalism in Austria-Hungary and the Russian Empire before World War One, when minority groups wanted to become “constituent nations” that would have guaranteed political representation in federal systems. Ultimately, the anti-nationalists won out (they had more influence with the American government, though the U.S. lawyers who drafted the clauses in the minority treaties cut back on their demands considerably).*” The

important point is that their whole way of thinking was based on the idea of rights, guarantees, and civil processes, rather than criminal law. Another reason why the new minorities system was a civil one, not based on the ideas of the new justice, was that the civil system was not as threatening to the states which were required to sign the minorities treaties. When the Great Powers insisted that Poland and Romania sign the treaties, the latter put up considerable resistance, claiming the treaties violated their sovereignty and would give minorities new reasons to agitate and cause conflicts.** The Great Powers had to dilute the treaty requirements even further, eliminating the right of minorities to petition the

Permanent Court of International Justice directly and leaving enforcement to the League of Nations Council (not to the whole League membership).*” The Great Powers could not afford to alienate the new and enlarged states of Eastern Europe because they wanted them to serve as client states and counter-weights to the main

security threats, Germany and Bolshevik Russia. A civil system would not be as invasive as a criminal system; plus, it gave a large space for private diplomatic intervention if a minority state was accused of violations. The process that the League eventually developed to deal with violations of minority rights was mainly secret: a complainant sent a petition to the League; a special department determined if the petition met certain criteria; then a special “Committee of Three” investigated the matter, asked the minority state to reply, and recommended some course of action. The minority state was not obligated to comply, and the League Council did not enforce the Committee of Three’s decisions.”

“6 Fink, Defending the Rights of Others, 101-30, 173-86, 194. 7 Fink, Defending the Rights of Others, 202-6. ‘8 Fink, Defending the Rights of Others, 232-5, 243-50. ” Fink, Defending the Rights of Others, 246-7. °° Robinson et al., Were the Minorities Treaties a Failure’, 87-108.

76 The Birth of the New Justice Many cases that the League dealt with concerned minorities that could not get their passports extended, did not get fair compensation for expropriated land, were prevented from publishing a newspaper, were not allowed to practice a particular profession, or were denied the right to opt for citizenship.*! Not only was the system not designed to handle pogroms and massacres, the League’s special department for dealing with minority questions did not want to get involved in these issues. In 1921, the representative of the Committee of Jewish Delegations (Comité des délégations juives) asked Eric Colban, the League’s Director of the Administrative Section and Minorities Questions, whether the League could take any action leading to the punishment of Ukrainians who had instigated pogroms against Jews during a three-way civil war among Ukrainian nationalists, White Russian forces, and Bolshevik revolutionary forces. Colban replied that he doubted anything could be done. “Ukraine was not member of the League nor had signed any minority treaty,” Colban said. “I felt very doubtful as to the possibility of ask-

ing any Government to punish instigators of pogroms which had taken place outside their territory.””* It was true that Ukraine was not a League member (nor did it achieve statehood), but his reply also shows his unwillingness to expand the League’s mandate as a supervisor of the minorities treaties into the office of an

independent prosecutor, or even as an international authority that would urge other states to set up their own trials. The concept of universal jurisdiction had not yet been developed for a collective crime committed by state agents against a national or religious group. The lack of legal action then sparked vigilante justice: Soghomon Tehlirian, an Armenian, assassinated Talat Pasa, the former Turkish interior minister, in Berlin in 1921, and Shalom Schwartzbard, a Ukrainian Jew, assassinated Simon Petliura, former Hetman (chief) of the Ukrainian nationalist Directory, in Paris in 1926. Later, in the interwar period, these acts caused Raphael Lemkin, a Polish Jewish lawyer who worked as a criminal prosecutor in Warsaw, to question whether gov-

ernments had a right to murder their own populations. Did it make sense that those responsible for the massacres could escape with impunity, while the vigilantes had to stand trial for retaliatory assassinations???’ However, as Chapter 7 will explain, it took considerable legal development and the use of other new concepts in the new international criminal law of the interwar period, such as “crimes against vandalism” and “crimes against barbarism,” before Lemkin wrapped them into his social-legal concept of genocide in 1944. Before reaching that point, this book will first trace the development of the international criminal court idea in the 1920s,

>! Robinson et al., Were the Minorities Treaties a Failure’, 112-22.

°° Record of a conversation between Colban and Zevi Aberson, January 28, 1921, LNA/586/ 10481/9557. °° Raphael Lemkin, “Totally Unofficial Man,” in Pioneers of Genocide Studies, ed. Samuel Totten and Steven Leonard Jacobs (New Brunswick, N.J.: Transaction Publishers, 2002), 371-2. On Talaat’s assassination, see Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002), 1-19. On Petliura’s assassination and Schwartzbard’s acquittal by a French court,

see Saul S. Friedman, Pogromchik: The Assassination of Simon Petlura (New York: Hart Publishing Company, 1976).

Crimes against Humanity 77 its application to the problem of terrorism in the 1930s, and the development of new theories about war crimes during World War Two. In conclusion, the Armenian, Greek, and Serbian delegations all grasped that their national groups were subject to broad, centrally-planned policies that were designed either to exterminate them physically or eliminate their cultural and religious institutions in the interest of replacing them with other national groups. The delegations used different legal formulations to ground the charges and demand trials, territorial compensation, and financial reparations. Nevertheless, the concepts of “crimes against humanity” and “crimes of denationalization” did not become fundamental building blocks of the new justice or even secondary ideas that the international jurists in the interwar period used to build a new framework of international criminal law. The jurists on the Commission on Responsibilities did not make “crimes against humanity” and the crime of denationalization their top priority or resolve the legal differences among the Armenian, Greek, and Serbian formulations of the charges. In the Treaty of Sevres, the clauses allowing the Allies to demand the extradition of the Turkish perpetrators of the Armenian massacres and create Allied tribunals were not implemented because the Allies were divided by their political and economic interests after the war. The internal dissolution of the Ottoman Empire and Greco-Turkish war also worked against the implementation of an international solution to hold perpetrators of “crimes against humanity” responsible. After the Kemalists defeated the Greek army in 1922, they were in a much stronger position to resist Allied demands than the Ottoman imperial government had been in 1919; therefore, they were able to cancel the demand for extraditions in the Treaty of Lausanne. ‘The general fact that, in Balkan countries, successor governments, royal regimes, and the leaders of military coups used military tribunals as political instruments to eliminate their rivals blocked acceptance of the idea that an international institution should administer justice to deal with centrally-ordered war crimes and government-ordered attacks on national groups. Finally, the Great Powers at the Paris Peace Conference instituted two alternative systems to deal with the problem of mixed populations and the treatment of minority groups: population transfers and minorities treaties. Both relied on bureaucratic processes of investigation and adjudication under different commissions in the League of Nations; both were hybrid political-legal approaches. They were not intended to be systems of international criminal law, in part because their makers were dealing with problems of refugee flight, lost property, citizenship,

and civil rights. As the next chapter will show, adding an international criminal system to deal with minorities problems did not become the focus of the main legal organizations involved in creating permanent international criminal courts. Instead, they emphasized protecting the existing international order of states and the League itself, preventing socialist revolution, preventing aggressive war, and urging states to reform their criminal codes with similar principles.

Blueprints for International Criminal Courts and Their Political Rejection in the 1920s At the Paris Peace Conference, liberal internationalists maintained that the international system could be stabilized and regulated if secret diplomacy, bilateral security pacts, and absolute state sovereignty were replaced by a collective legal agreement guaranteeing territorial borders, a new international institution which could resolve disputes politically (the League of Nations), and an international court which could settle conflicts between states. However, the liberal internationalists who created the League and wanted to add an international court, called the Permanent Court of International Justice, did not go so far as to include an international criminal court. Various groups of European international jurists and law-

yers tried to found one during the 1920s, motivated by the Council of Fout’s rejection of an international criminal court for war crimes, the disappointing results of domestic prosecutions undertaken by the defeated states, and an intellectual desire to complete the League system with an international criminal jurisdiction. They also possessed a desire to modernize, and in a sense, globalize, the penal codes of a select club of “civilized states” so that nationals and foreigners would be subject to the same type of criminal prosecution regardless of where they were apprehended. How liberal were these plans, and why did they fail? This chapter takes a different position on this question from previous scholarship, which has generally argued that these projects were liberal and internationalist.' The projects stemmed from those motives, but also statist and conservative ones. In 1920 Baron Edouard Descamps, a Belgian international jurist (1847-1933),

proposed a non-permanent international criminal court with jurisdiction over ageressive war and war crimes, but he also wanted to give the court jurisdiction

' James FE. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Westport, Connecticut: Greenwood Press, 1982), 167-72; Martin David Dubin, International Terrorism: Two League of Nations Conventions, 1934-1937 (Millwood, New York: Kraus International Publications, 1991), 21-31. Segesser analyzes some of the same intellectual movements as this chapter and the following chapter, reaching similar conclusions about the failure to implement these projects. I share his conclusion that the international criminal law movement's involvement in anti-terrorism represented a drastic reduction of the original possibilities of creating an international criminal court for aggressive war and war crimes, though I contend some of its interest in that area stemmed from both pragmatism and from the jurists’ interest in social stability and conservative order. To compare, see Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872-1945 (Paderborn: Ferdinand

Schéningh, 2010), 233-302.

Blueprints for International Criminal Courts 79 over “crimes against the international order,” which encompassed crimes committed for political purposes. Other jurists expressed concerns about the court’s potential political power, especially because Descamps’ court would have had broad powers

both to determine the crime and set the punishment. Later, Romanian jurist and diplomat Vespasien V. Pella (1897-1952) wanted to create a politically neutral international criminal court, which would refer to a pre-determined criminal code. He wanted the court to supplement the League of Nations and prevent wars of ageression, though he also wanted the court to protect states against transnational crime, revolutionary socialism, and terrorism. Various movements to establish an international criminal court were not concerned with the protection of human rights in the post-World War Two sense of the term—a supra-national mechanism that would protect civilians against crimes committed by their own state, or against various forms of political, religious, and cultural repression, whether they occurred during war-time or peacetime. For example, lawyers involved in drafting the International Law Association's statute for a permanent international criminal court rejected a 1926 proposal to give the court jurisdiction over state officials who instigated or condoned attacks on minorities in their states. During the 1920s, the massacres, mistreatment of prisoners and civilians, and denationalization of the First World War began to fade from view. Jurists in the Association Internationale de Droit Pénal sought a permanent criminal court that could resolve jurisdictional conflicts and punish criminals “wherever they might be found,” but it proved very difficult to convince states that they should support a court with the power to prosecute high officials and generals for aggressive war. International criminal jurists became more concerned with population migrations, cross-border crime rings, and the reformation of criminal justice systems according to the principles of “social defense.” They emphasized the collective policing powers of states against transnational criminals rather than checking state power to control state-sponsored violence. However, they could not get any political traction for their plans for an international criminal court in the League of Nations, where delegations were more concerned with U.S. adherence to the Permanent Court, multi-lateral disarmament, and the reformation of the League Council. Additionally, Western European states were skeptical about unifying criminal jurisdictions and restricting their right to offer political asylum. The jurists’ only successful project was an anti-counterfeiting

convention, a minor undertaking that did not alter the realist politics of regional security.

THE NEGOTIATIONS TO CREATE THE PERMANENT COURT OF INTERNATIONAL JUSTICE Analyses of the abortive attempt to establish an international criminal court in 1920 have been brief and have not explained the origin of the proposal or gone

80 The Birth of the New Justice into much detail about how it was received by the other jurists on the League's Advisory Committee of Jurists, which drafted the Permanent Court’s statute.’ Regarding the League’s rejection of the proposal, scholars note that the plan raised controversial legal issues, threatened state sovereignty, and was only considered at the end of the League Assembly’s 1920 session, when there was little time left for debate. But there were other reasons as well. Jurists and politicians had laid the intellectual and political groundwork for a

permanent court to handle inter-state disputes, but this was not the case for an international criminal court. Second, Baron Edouard Descamps presented a plan that contained too many obscure and contentious elements, and he did not organize other jurists on the committee to rally around the proposal. ‘Third, the plan was out of step with other forces shaping the League in 1920-1, despite the fact that an international criminal court would be a legal institution, and League advocates believed that international affairs should be governed by law and principle. The main means of preventing violent conflicts were thought to be political, arbitral, and judicial processes to resolve inter-state disputes. Diplomatic and economic sanctions against governments were the main types of enforcement contemplated, not criminal penalties against a state and its officials. Jurists and politicians were already taking a major step by creating the League and the Permanent Court, and they were unlikely to go further than this, given the newness of the League, doubts about its efficacy, and concerns that states might lose some of the control they were used to exercising. The Advisory Committee of Jurists met in a far cooler emotional atmosphere

than the Commission on Responsibilities.* The social, intellectual, and legal forces driving the project were less contentious in many respects. The goal was to

build part of the architecture for the future international system, not assign blame for the past or assess penalties. Many international jurists were in favor of professionalization and legitimation on the world stage, seeking a paid, sitting

* For brief legislative details of these projects, without critical historical commentary, see Manley O. Hudson, The Permanent Court of International Justice 1920-1942: A Treatise (New York: Arno Press, 1972 [1943]), 85-6; United Nations, Historical Survey of the Question of International Criminal Jurisdiction (Memorandum submitted by the Secretary-General) (Lake Success, New York), UN Document A/CN, 4/7/rev. 1, 8-12; and Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace—A Documentary History and Analysis (Dobbs Ferry, N.Y.: Oceana Publications,

1980), 36-9. 3 The members of the final Advisory Committee were Baron Edouard Descamps (Belgium), Elihu Root (U.S.), Lord Phillimore (Britain), Albert de Lapradelle (France), Arturo Ricci-Busatti (Italy),

Minechiro Adatci (Japan), Francis Hagerup (Norway), Bernard Loder (the Netherlands), Rafael Altamira (Spain), and Raoul Fernandes (Brazil). Two of these jurists, de Lapradelle of France and Adatci of Japan, had served on the Committee on Responsibilities at the Paris Peace Conference. For

the evolution of Secretary-General Eric Drummond’s choices and various substitutions, see LNA/1299/940-941/88 and LNA/1300/2955/859. For the political maneuvering that led to Fernandes replacing the original Brazilian delegate, see the correspondence in LNA/1299/181/88, especially Anzilotti (at the Peace Palace in The Hague) to Drummond, June 18, 1920, and Anzilotti to Drummond, July 15, 1920.

Blueprints for International Criminal Courts 81 judiciary with the power to develop a “real jurisprudence.”* For Dutch delegate

Bernard Loder, the new court would subjugate the power of the individual nation-state to a supreme Law, which he practically elevated to a transcendent principle.’ Other court supporters, such as Ake Hammarskjéld, a member of the Secretariat’s Legal Section, believed that the court was part of a set of administrative and bureaucratic entities needed to keep an economically interdependent world functioning without military conflict.° U.S. delegate Elihu Root maintained the elite view that sound institutions, based on law, could solve complex problems of international relations, which the masses were incapable of comprehending rationally.’ There was far more real groundwork for a permanent court for inter-state disputes than there had been for prosecuting a former head of state or extraditing alleged war criminals when jurist-statesmen met at the Paris Peace Conference. Jurists, League officials, and pro-court politicians cited the history of nineteenth century arbitration and argued that it was now absolutely necessary to extend the system by making it compulsory, appointing permanent judges, and basing judgments on established international law, rather than general principles of equity. Arbitration had already been established as a legitimate means of dispute resolution by the Hague Conference of 1899,° and a draft scheme for a permanent court had been debated at the Hague Conference of 1907. At that time, delegates were not able to resolve a conflict over the selection process for judges. The Great Powers

wanted greater weight in electing judges, while the smaller powers supported a process in which each state had one vote. Ifa court could now be created, based on the proclaimed universality of law, the impartiality of judges, and compulsory jurisdiction, then another world war could be avoided. This was actually a leap over history, since Germany and Austria had rejected arbitration in August 1914. Furthermore, the “old school” of political thinking— border security and military defense—did not disappear.’ Defeated states were not * See Léon Bourgeois’ opening speech at the first meeting of the Advisory Committee of Jurists, June 16, 1920, in League of Nations, Cour permanente de justice internationale. Comité consultatif de juristes. Procés-verbaux des séances du comité, 16 juin—24 juillet 1920, avec annexes. Permanent court of international justice. Advisory committee of jurists. Proces-verbaux of the proceedings of the committee, June

16th—July 24th, 1920, with annexes (La Haye: Van Langenhuysen fréres, 1920), 7-8. Hereafter Cour permanente. Proces-verbaux.

> “La Cour Permanente de Justice Internationale,” Discours prononcé a la Conférence de Association de droit international [International Law Association], Portsmouth, May 28, 1920, LNA/1300/6017/859. Loder, a judge on the Netherlands’ Supreme Court, served as a judge on the Permanent Court after it was established on September 21, 1921. ° Ake Hammarskjéld, 7he Permanent Court of International Justice (Geneva, 1921), 3. Bourgeois made the same point in his opening speech. ” Elihu Root, “The “Great War’ and International Law,” Advocate of Peace (1921): 19-20, LNA Brochure and Pamphlet Collection: Droit International War (International Law), Location: B 65/ shelf 10, Box 3/folder 10, pamphlet No. 188. 8 ES. Northedge, 7he League of Nations: Its Life and Times 1920-1946 (New York: Leicester University Press, 1986), 10, 14-16. ° Henry Carton de Wiart, “League of Nations. Ideals of Belgium. A Permanent Court of Justice,” The Times of London, April 9, 1920.

82 The Birth of the New Justice immediately allowed to sign the complete Court protocol,'® so the notion that international adjudication alone would serve as an adequate means of preventing war was a stretch.

In all fairness, the court was only supposed to be one option of many. League members could bring their disputes to the League Council (led by Great Powers, but also containing other states on a rotating basis), or they could agree to use the old system of arbitration. As Hammarskjéld concluded in a 1921 pamphlet about the court, states would to use arbitration “in the gravest cases” because they could choose the arbitrators, and the process applied legal principles without operating as a strict tribunal.'’ Furthermore, some pro-court politicians believed the transformation to an international order based on law would take a long time and would require a complete revision in political ideology. A collective security system

required financial stability, and a system of international credit had not yet been established,'* nor had a German reparations plan been determined.'°

DESCAMPS’ PLAN: AN INTERNATIONAL CRIMINAL COURT TO PROTECT PUBLIC ORDER Descamps’ proposal for an international criminal court lacked the preparatory intellectual work and political agreement that propelled the momentum to create a Permanent Court. Starting on 17 June, the second day of the Advisory Committee sessions, Descamps read aloud a plan for a three-part international legal system, including the extant Permanent Court for Arbitration, a “Permanent Tribunal of International Justice” (the body whose rules the jurists were writing), and an international criminal court, which he called a “High Court of International Justice.” The High Court would not be a permanent standing body but would hear cases

when the Assembly or Council submitted them. There were two categories of offenses which Descamps had in mind: offenses against the international order and crimes against the universal law of nations.'* He did not flesh out what these categories meant, and on 21 June, when he submitted a set of basic draft articles, he simply restated them.” ‘The jurists did not debate his plan for the “High Court of '© After negotiations to enter the League, Germany signed on December 10, 1926. In 1927, Germany signed the court’s optional clause, which made the court’s jurisdiction mandatory, as a way to pressure the Great Powers into modifying a Polish proposal for a non-aggression pact in the League. The Germans believed that the Polish proposal would have frozen Germany’s eastern borders, and this

version of an “eastern Locarno pact” had to be avoided. Christoph M. Kimmich, Germany and the League of Nations (Chicago: The University of Chicago Press, 1976), 98-100. '! Hammarskjold, The Permanent Court of International Justice, 20.

2 See the opening speech of Léon Bourgeois, League of Nations, Cour permanente. Procesverbaux, 10. 'S Germany did not make its first reparations payment until August 1921.

'4 Second Meeting, June 17, 1920, Annex No. 6, Note read by Baron Descamps, League of Nations, Cour permanente. Proces-verbaux, 49. '> Fourth Meeting, June 19, 1920, League of Nations, Cour permanente. Procés-verbaux, 129; Fifth

Meeting, June 21, 1920, Annex 1, Proposal by Baron Descamps, “The Organisation of International Justice,” ibid., 142.

Blueprints for International Criminal Courts 83 International Justice” until 13 July, after they had settled on a voting scheme for the Permanent Tribunal and decided that the issue of compulsory jurisdiction should be contained in a separate document." It is a grand historical irony that Descamps was the jurist who called for a High Tribunal to judge crimes against the universal law of nations, since fifteen years before he had defended Belgian King Leopold II’s extreme exploitation of the Congo. At that time, Descamps brushed away documented cases of murder, hostage-taking, and mutilation as individual excesses, and claimed that the legal system in the Congo Free State (1895-1908) was impartial and closely supervised by the colonial administration.'” In fact, the legal system was largely one of impunity for Europeans who committed crimes against Congolese.'* The colonial administration knew and approved of the crimes of hostage-taking, amputating hands, and murdering whole villages. This was a system of state crime that was never punished." It does not appear that Descamps had worked behind the scenes to gain support for his proposal by the time the jurists began debating it on 13 July. A majority of jurists were in favor of the idea, but they had many questions about the court’s purpose, jurisdiction, and possible involvement in political affairs. Moreover, when Descamps initiated the discussion he had written an expanded proposal of four brief articles, but he did not have copies ready to distribute.” In the course of the discussion, Descamps explained that the idea came from a Belgian constitutional procedure in which the Chamber of Ministers could bring charges against Ministers, who would be tried by a court with the power to define the crime and the punishment.*’ According to his proposal, the Assembly or the Council could submit cases to the court, “which would possess the necessary powers to define the crime, to impose the penalty and to determine the appropriate means for the execution of the sentence in each case.””* Judges would be selected

16 Ake Hammarskjéld, “Plan for the Establishment of a Permanent Court of International Justice. Draft Report (historical point of view),” August 21, 1920, LNA/1300/6030/859. ‘This report was circulated to the Secretariat and the Legal Section in late July, which is confirmed in a memo from Anzilotti to Drummond, July 30, 1920, LNA/1304/6023/4959. '7 Edouard Descamps, New Africa. An Essay on Government Civilization in New Countries and on the Foundation, Organization and Administration of the Congo Free State (London: Sampson Low, Marston and Company, 1903), 228-31, 346-72; Martti Koskenniemi, 7he Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002), 161-3. '8 See the cases of Caudron and Tilkens in E. D. Morel, Red Rubber: The Story of the Rubber Slave Trade Flourishing on the Congo in Year of Grace 1906 (New York: Negro Universities Press, 1969 [1906]), 104-21; see also Ruth Slade, King Leopold’ Congo: Aspects of the Development of Race Relations

in the Congo Independent State (Oxford: Oxford University Press, 1962), 171-3, 178.

‘Tony Ward, “State Crime in the Heart of Darkness,” British Journal of Criminology 45, no. 4 (2005): 434-45; Ch. Didier Gondola, The History of the Congo (Westport, Conn.: Greenwood Press,

2002), 56-75. °° "Twenty-Third Meeting, July 13, 1920, League of Nations, Cour permanente. Procés-verbaux, 499,

*1 Lord Phillimore, “An International Criminal Court and the Resolutions of the Committee of Jurists,” British Yearbook of International Law 3 (1922-23): 81. *? League of Nations, Cour permanente. Proces-verbaux, 499.

84 The Birth of the New Justice by the blocs of states who selected the arbiter-judges for the Permanent Court of Arbitration. Each bloc would nominate a judge to the criminal court, which Descamps claimed would protect it “from all political influences.”*? He gave some examples indicating what he meant by offenses against the international order and crimes against the universal law of nations: crimes that affected the common security of all states (citing piracy on the high seas);** a war in which a state violates “a territory recognised by all as neutralised” (the subtext here was Germany’s violation

of Belgian neutrality); and “outrages” (attentats) against international institutions, such as attacks against members of the League Assembly or Council by “Sovietists.”’° In other words, he wanted to use an international tribunal to punish revolutionary socialists who attacked League delegates and functionaries, as this would be a crime of such gravity that it affected the interests of all states. We do not know if Descamps feared that a government might be unwilling to prosecute one of its own nationals or might offer a perpetrator asylum, but he clearly believed that the League had created a new international political order, and states should bind together to protect it. Recent events probably influenced his concern about these kinds of attacks. The Western European press frequently reported on the Bolsheviks’ reign of terror during the Russian civil war, and Clemenceau had been shot during the Paris Peace Conference by a twenty-six-year-old French worker who was upset about police repression of anarchist meetings in France.’” The judges on the international criminal court were not supposed to be political, but they would likely have to rule on cases with political significance: acts of aggression (should a state again invade a neutral country) and terrorist attacks committed by lone discontented individuals or by organized groups pursuing political or social goals.

Although none of the other jurists voiced their opinion on offenses against the international order, the idea of states joining together and using the international prosecution of individuals to defend the collective social and political status quo— against revolutionaries on the right and left, as well as against national separatist groups—became an important motive in the development of international criminal law in the late ’20s and ’30s. This concept did not become reality in this period, however. Political crimes continued to be handled by national courts, and extradition requests continued to be subject to political negotiation. Descamps enunciated an idea that turned out to have many problems for liberal governments that

did not want to extradite persons accused of political crimes—crimes against autocratic regimes, attacks on political authorities during civil wars, and the distribution of certain forms of propaganda. Descamps’ proposal also included crimes against the law of nations, and several delegates pressed him to explain exactly what he meant. Both Root (U.S.A.) and *3 League of Nations, Cour permanente. Proces-verbaux, 498. *4 League of Nations, Cour permanente. Proces-verbaux, 512. 25 League of Nations, Cour permanente. Proces-verbaux, 511. *° League of Nations, Cour permanente. Procés-verbaux, 512.

*7 See “Derniéres Nouvelles—Aprés l’attentat contre M. Clemenceau,” Le Temps, February 26, 1919, and “M. Clemenceau victime d’un attentat,” Le Temps, February 20, 1919.

Blueprints for International Criminal Courts 85 Lord Phillimore (Britain) asked whether he meant crimes committed during peace or war. If he meant during peace, did he mean piracy and slave-trading? In theory, those were universal crimes, which all states could prosecute regardless of where they occurred. If Descamps meant crimes committed in war, Phillimore stated he was in favor of drafting a new convention and creating an international jurisdiction and court, based on the laws of war contained in the Hague Convention of 1907. In response to Phillimore, Descamps stated that he envisioned a broader set of

violations than those specifically outlined in the Hague Convention. Like the Europeans on the Commission on Responsibilities, he wanted to expand the court's jurisdiction to cover violations of “the law of nations based on usages, laws of humanity and dictates of human conscience:” the concepts from the Martens clause in the convention's preamble. But, again, he stated that what he primarily had in mind were not acts perpetrated against a belligerent’s forces or against civil-

ians under occupation. “Offences against the universal law of nations...are offences of such a nature as to affect the common safety of all States.””* It had been a weakness in the past that each state had to repress piracy on its own, for example. An international criminal court would represent “a more advanced regime of international organisation” to deal with crimes that threatened all states.

Two jurists, Hagerup (Norway) and Ricci-Busatti (Italy) were completely opposed to the whole proposal. Hagerup considered it so political that at first he refused to take part in any discussion about it, and he even threatened to resign from the Committee. This was either an over-reaction or a bluff; the debate continued anyway once de Lapradelle (France) engaged him directly about his position. Ricci-Busatti was skeptical about the project because he noted it had been debated at length by the Committee on Responsibilities, and he did not consider it “useful or desirable for the Committee to renew the discussion.””? He voiced two major problems with the proposal. ‘The concept of crimes against the law of nations was unclear, and only states, not individuals, could be subjects under international law. This was the conventional position. However, the notion that an individual had no standing in international law was beginning to be challenged—but in civil, rather than criminal matters. In a separate discussion, the jurists had debated whether an individual could sue a foreign state through the new Permanent Court (to resolve a problem in a business transaction, for example), or whether an individual could bring a complaint against a state for violating the minority provisions in the Versailles system treaties.*° Eight of the jurists maintained that only states could bring suits against other states.*! *8 League of Nations, Cour permanente. Proces-verbaux, 512. *” League of Nations, Cour permanente. Procés-verbaux, 503. °° Ninth Meeting, June 25, 1920, League of Nations, Cour permanente. Procés-verbaux, 203-17.

*! ‘Their position was that if an individual had a grievance with a foreign state, that person should bring a suit in a domestic court or complain to the municipal administration. ‘The state would decide if the grievance was legitimate and then open diplomatic negotiations with the foreign state, or possibly take the matter to the Permanent Court. On the minority issue, Adatci, who had represented Japan at the Peace Conference, noted that the Commission of New States had decided that only states had the right to appeal to the Permanent Court about the rights of minorities. League of Nations, Cour permanente. Proces-verbaux, 204—5.

86 The Birth of the New Justice De Lapradelle (France) and Loder (the Netherlands) believed that individuals should be able to use the new Permanent Court. Loder favored limiting sovereignty in this area: “The sovereignty of the States had been used to prevent private

individuals from taking action against them.” And de Lapradelle brought up various scenarios in which individuals should have international standing: when they had dual nationality, when they entered into a commercial transaction with a foreign state, and when they were part of a minority group which sought protection under the Treaty of St. Germain.*” Economic interdependence, the interna-

tionalization of business and banking in the nineteenth century, and the new borders set by the Versailles system treaties—in which hundreds of thousands of people became citizens of new states overnight—were changing the concept of the individual in the international system. Many other jurists on the Advisory Committee were not prepared to create a statute for Descamps’ criminal court then and there. They were willing to explore the idea in the future, but at that moment, they believed the project was not really

within the mandate that the League had set out for them. Furthermore, many advanced additional political and legal objections that would continue to dog proposals for an international criminal court throughout the twentieth century. Fern-

andes, the Brazilian delegate, thought that those accused of crimes would be governments themselves or their agents. A court would not only threaten state sovereignty but might even be “a menace to the peace.” Root also raised the problem of sovereignty, asking what would happen if a government official obeyed his gov-

ernment, but that act was considered an offense against international law by the League of Nations. The League of Nations could not become a “Super-state” and decide to prosecute him: that power was reserved for the sovereign state.°° Phillimore was in favor of a court that dealt with individuals who violated the laws of war, but he opposed putting states on trial for violating treaty obligations. “There is no criterion for distinguishing between a criminal State and one which is not. A State which considers itself wronged will always consider that its adversary is a criminal and, often, it will even go to war with it.”** Additionally, he opposed creating an international court that would deal with crimes committed by individuals during peacetime. The question of whether there should be prosecution at all depended on how an individual’s government regarded the crime. If the government repudiated it, then the person should be tried in a domestic court. If the government did not consider the act a crime, but another state did, then the two states should discuss the matter through diplomatic channels. The variety of questions surrounding Descamps’ proposal shows that if an international criminal court was to be established, its jurisdiction would have to be more much clearly defined, and there would probably have to be an international criminal code that specified the “crimes against the law of nations.” It seemed remote that such a court could be used to judge whether a head of state was criminally liable for °° League of Nations, Cour permanente. Procés-verbaux, 209-11, 216. °> League of Nations, Cour permanente. Procés-verbaux, 505-6. 34 League of Nations, Cour permanente. Procés-verbaux, 507.

Blueprints for International Criminal Courts 87 an “illegal” aggressive war. Phillimore, writing in 1922, opined that while some autocratic monarchs and dictators might be held personally liable, and the creation of a jurisdiction might serve as a deterrent, states would rarely prosecute them. In holding a head of state responsible, the central problem was the role of others in a complex political situation. In the case of the ex-Kaiser, “recent publications have shown, what wiser men always anticipated, how complex were the forces, how numerous were the persons, which and who contributed to the declaration of war by Germany and her invasion of neutral Belgium and Luxembourg.” Descamps’ proposal had elicited spirited debate from his fellow jurists, but it died in the League’s bureaucracy, perhaps for good reasons. A court which would have had the power to define the crimes, the penalties, and the means of carrying them out would have had great power. Vespasien Pella wrote in 1925 that he personally opposed the Descamps proposal for this reason. An international criminal court was going to have to follow precise laws and penalties to avoid arbitrary judgments and legal abuses.*° In 1920, could Descamps’ proposal have been reworked

into something equitable and useful? Several jurists on the Advisory Committee wanted a future international law conference, an event on the scale of the Hague Conferences, to codify international law and reformulate the laws of war in light of the Great War. They wanted the conference to consider the idea of an international criminal jurisdiction. But Hagerup did not want to connect the project to such a conference, and Descamps accepted this, rather than withdrawing his proposal all together.” The Advisory Committee decided only to pass a resolution recommending that the Council consider the four articles of Descamps’ proposal. The jurists did not amend the proposal in a form that might have made it more politically palatable.**

Once the draft statute for the non-criminal Permanent Court came before the Council, the main business was fulfilling the political wishes of Britain, France, Italy,

and Japan to change the statute so that the Court's jurisdiction would be optional, not compulsory, as all the jurists except Adatci (Japan) had wanted. The jurists’ additional resolutions concerning the criminal court and an international law conference became minor matters. [he statute and the resolutions were then sent to the League’s Assembly.* After study by a subcommittee (led by Hagerup, the main © Phillimore, “An International Criminal Court,” 82. °° Vespasien V. Pella, La criminalité collective des Etats et le droit pénal de lavenir (Bucarest: Imprimerie

de Etat, 1925), 210. °” ‘The jurists approved the resolution by a majority of five on July 13, though neither the published record nor the League archives indicate the individual votes. Altamira (Spain), who had strongly supported Descamps’ proposal for the establishment of a court, abstained from voting on the weaker resolution. De Lapradelle also abstained, stating that it was premature at that point to work out the wording of a resolu-

tion. Furthermore, the resolution of July 13 was later changed on July 21 to merely recommend that the Council consider Descamps’ plan—not to recommend that a future conference study the issue. TwentyThird Meeting, July 13, 1920, League of Nations, Cour permanente. Procés-verbaux, 515-16; Thirtieth Meeting, July 21, 1921, League of Nations, Cour permanente. Procés-verbaux, 621.

8 Anzilotti to Drummond, July 27, 1920, 5-6, LNA/1304/5979/4959. The document is Anzilotti’s private report to Drummond on the Permanent Court negotiations. * Lorna Lloyd, Peace through Law: Britain and the International Court in the 1920s (Suffolk: The Boydell Press, 1996), 7-15.

88 The Birth of the New Justice opponent of an international criminal court), the Assembly’s Third Committee decided that it would not back Descamps’ proposal because “there is not yet any international penal law recognised by all Nations.” A special chamber in the Permanent Court could possibly be created in the future, but the committee did not recommend any concrete steps to begin drafting a body of international criminal law.*° It was not only conservative lawyers who disapproved of a criminal court, however. [he Third Committee’s rapporteur was Henri Lafontaine, the Belgian Socialist, international lawyer, and founder of the International Peace Bureau, which had advocated the convocation of the Hague Conferences in 1899 and 1907. When he

presented the Third Committee’s views on the criminal court proposal to the Assembly in late 1920, he stated that an international criminal court would be “useless,” and that normal criminal tribunals should be used, “as is at present the custom in international procedure.” This effectively killed his countryman Descamps’ proposal, and no further action was taken.*! Perhaps if there had been an international legal conference the jurists would have worked out a blueprint for a criminal court. But their proposal for a conference was completely rejected by British and Italian delegates, who feared the codification of international law would alter their bilateral treaties and harm their military policies.** In the case of Britain, changes to international law brought about by codification might lead to court decisions that would limit Britain’s wartime naval policies. Small and neutral states might be able to challenge the decisions of Britain’s naval prize court, which ruled on whether British seizures of foreign vessels were legal and whether any compensation was owed.” The Third Committee therefore diluted its recommendation. It suggested that the Council should ask non-governmental organizations, such as the Institute of International Law, the International Law Association, and other groups, to consider methods of codifying international law, rather than immediately beginning with a grand conference which would set up a master corpus of international law.** Even “0 Annexes to the Thirty-First Meeting. Annex A. The Permanent Court of International Justice. Recommendations Submitted by the Advisory Committee of Jurists at The Hague. Report to the Assembly by M. H. Lafontaine in League of Nations, Actes de la Premiére Assemblée. Séances des Commissions. I. Troisiéme Commission: Cour permanente de Justice Internationale. The Records of the First Assembly. Meetings of the Committees. I. Third Committee. Permanent Court of International Justice (Geneva, 1920), 764.

“| ‘The Report of Committee No. III on the Recommendations Presented by the Committee of Jurists at The Hague, in League of Nations, Actes de la Premiére Assemblée. Séances des Commissions. I. Troisiéme Commission: Cour permanente de Justice Internationale, 744. © League of Nations, Actes de la Premiere Assemblée. Séances des Commissions. I. Troisiéme Commission: Cour permanente de Justice Internationale, 327-8.

8 Britain’s delegate was Sir Cecil Hurst, legal advisor to the Foreign Office. He opposed compulsory jurisdiction of the Permanent Court at this time, as did the British Admiralty. When the Labour Party under Ramsay MacDonald took power under a coalition government in 1924, he changed his view, maintaining that Britain had upheld international law in the Great War and had little to lose by accepting compulsory jurisdiction in the future. For opposing views in the Foreign Office, the Labour Government's embrace of compulsory jurisdiction, and its rejection when Labour fell in the autumn of 1924, see Lloyd, Peace through Law, 21-51. “ The Third Committee's report stated, “it would be too ambitious to contemplate a rapid and systematic codification of international law in the nearer future.” ‘The Report of Committee No. HI, 764.

Blueprints for International Criminal Courts 89 the invitation to have these groups submit ideas went too far for the British Empire and its dominions. At the end of the League's session in December 1920, the plan was immediately attacked by Lord Robert Cecil, representing South Africa. Cecil had been Britain’s Minister of Blockade during the war and had helped draft the League Covenant. He correctly recognized that the Third Committee’s resolution was the first step towards codification. “I do not think we have arrived at sufficient calmness of the public mind to undertake that without very serious results to the future of international law,” he said.*? He seems to have feared that the neutral states, still aggrieved by Britain’s wartime naval seizures, might press for legal changes that could hinder Britain’s ability to implement blockades and search and destroy enemy merchant ships carrying contraband.*° Cecil insisted on moving the issue, and after it was put to a vote, it failed. Codification threatened state sovereignty in a period when states were already cautious about their new obligations under the League. The criminal court had its own special problems. The idea was underdeveloped. Crimes, penalties, and jurisdictions had to be worked out, as the Advisory Committee of Jurists at The Hague had recognized. It needed a strong political—legal advocate who could shepherd the idea through the League's twisting bureaucracy, something that Descamps had not done. Most of all, it needed Great Power support, which was wholly lacking at this stage and would prove nearly impossible to obtain as long as the court could potentially have the power to prosecute officials and military leaders. Finally, three of the world’s most populous states, Germany, Russia, and the U.S., did not belong to the League. As Balfour noted in a letter of October 1920 to the League, those states “cannot be expected to take their views on international law from the [Permanent] Court’s decision.”*” That made it even less likely that they would participate in more radical efforts, such as developing an international criminal court.

RECONCILIATION WITHOUT PUNISHMENT? THE PLAN FOR A NEUTRAL RED CROSS COMMISSION TO INVESTIGATE VIOLATIONS OF THE LAWS OF WAR, 1921 Meanwhile, there were signs that groups in the formerly belligerent countries were dissatisfied with the penalty provisions of the peace treaties, the German Supreme Court at Leipzig, and the lack of a venue where defeated states could present their accusations of war crimes. This time it came from a different set of organizations © ‘The Report of Committee No. IT, 746. “© The Times of London, for example, stated that Britain could not be expected to follow international court decisions that affected “certain doctrines relating to the laws of war at sea and other vital matters on which the national life of this country depends.” See “The World Court,” The Times of London, July 28, 1920. See also Lloyd, Peace through Law, 10-11 n. 29. “” Tn Balfour’s opinion, the Permanent Court would have a narrow role in the international system, dealing only with issues that were brought by both parties to a dispute. See his note of October 10, 1920 on the draft scheme of the Permanent Court, LNA/1300/859/7685.

90 The Birth of the New Justice interested in international law—Red Cross societies —-which wanted to take the smoldering issue of war-time atrocities out of the hands of the governments and turn them over to a neutral commission, which would determine the facts rather than mete out punishment.

The Red Cross movement met for the first time after the war in Geneva in March and April 1921, not having convened since 1912. At the 1912 conference,

held in Washington, “an atmosphere of joyous confidence in the future” had reigned, while in 1921, the organizations were trying to emerge from the ashes, following “one of the most tragic periods in the history of the world.”*® There were

efforts to build a sense of unity in the movement—an exhibition hall in which every national society set up photos, stretchers, mannequins, and medical equipment showing how it had helped victims during the war—and there was even a cinema exhibition showing how the International Committee of the Red Cross (ICRC) helped care for German prisoners of war in a tent camp in Narva, Estonia, and battled typhus in Warsaw.” Yet underneath, there were serious divisions in the movement.” ‘The French and Belgian Red Cross societies had refused to attend the conference because the German Red Cross attended. In his opening speech, the President of the ICRC, Gustave Ador, remarked that the French and Belgians “would have wanted... to have the certainty that the doctrines, which in the course of the war had led to systematic violations of the Geneva Convention, were now renounced.” Though he stated that this was “assuredly a very legitimate desire,”?’ his use of the passive voice was a political move because he did not explicitly state that the French and Belgians demanded the German Red Cross renounce systematic violations committed by the German army. Indeed, all societies were probably willing and able to denounce violations generally, but the issue under the surface was who was responsible for them and whose accusations were true. That controversy had wrecked the transnational communities of European intellectuals, socialists, and the Catholic Church during the war. In 1915, Belgian Catholic priests, for example, had tried to get the Vatican and the German Catholic hierarchy to support a Belgian—German Catholic commission to examine the atrocities com-

mitted by the invading German army against the Belgian population in 1914. However, the Vatican had rejected it due to its political implications, while German

Catholic bishops feared it would stoke anti-Catholic sentiment in Lutheran Germany.”

“8 Dixiéme Conférence internationale de la Croix-Rouge tenue a Genéve du 30 mars au 7 avril 1921,

Compte rendu (Geneva: International Committee of the Red Cross, 1921), 74. ” Dixieéme Conférence internationale de la Croix-Rouge tenue a Genéve du 30 mars au 7 avril 1921, Compte rendu, 235. °° ‘The authority of the International Committee of the Red Cross was also being challenged by the

League of Red Cross Societies (though the two groups reached a one-year accord during the conference), and the civil war in Russia was still raging, a conflict that had resulted in the Russian Red Cross (from the tsarist period) losing its official standing with the Bolsheviks. >! Dixiéme Conférence internationale de la Croix-Rouge tenue a Genéve du 30 mars au 7 avril 1921, Compte rendu, 73-4. *? John Horne and Alan Kramer, German Atrocities, 1914: A History of Denial (New Haven and London: Yale University Press, 2001), 262—90.

Blueprints for International Criminal Courts 91 What was different here, however, was that the war was now over, and the Versailles Treaty had been signed, but the Leipzig trials had not begun.” Additionally, while the

Belgian Catholics had sought “the truth’—particularly the admission by German Catholic bishops that the Belgian people had not risen up in an illegal People’s War that legitimized the German army’ execution of civilians as “illegal resisters’—some of the national Red Cross societies claimed they wanted both “truth” and “reconciliation,”

thinking that the first would lead to the second. At the conference in Geneva, the national Red Cross societies agreed to create a neutral international Red Cross commis-

sion that would determine the truth of all alleged war-time violations of the Geneva Convention.” The goal was supposed to be an impartial inquiry, which would “lead in some way to a liquidation of the past and a settling of grievances, with the goal of achieving the pacification, forgiveness [/oub/i], and rapprochement of peoples in peace and harmony.” The commission would have seven members: Red Cross societies from six neutral states would each send one delegate, and the ICRC in Geneva would send one. Red Cross societies would submit accusations to the commission, which would forward them to the national societies whose governments stood accused. This presented a problem. Although Red Cross societies were officially neutral during the war, they had to work closely with their own war ministries in order to get access to battlefields, and they had to obtain permission from enemy governments when they wanted to provide aid to prisoners of war (such as soldiers from their own countries).”° They would now have to prevail upon their governments to provide information about violations allegedly committed by their own militaries,

which the governments would inevitably want to refute. However, the governments would not be party to the international commission proceedings. ‘The neutral commission would only recognize the national societies, which might force them either to become advocates for their own countries’ grievances or defenders of misdeeds committed by their militaries.

Right before an October deadline, the German, Serbian, and Bulgarian Red Cross societies submitted memos alleging various violations of the Hague and 3 ‘The Allies did not submit forty-six names for a series of test cases until May. The Germans did not begin proceedings until June, due to a lack of concrete evidence for certain cases, difficulties in formulating precise charges under German law, and a time-consuming process in which the representatives of the German solicitor-general (the Oberreichsanwalt) had to share all their information with the defense, because the Reichsministerium was concerned that the reputations of the old Imperial Army and Navy would be tarnished. See Gerd Hankel, Die Leipziger Prozesse. Deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung nach dem Ersten Weltkrieg (Hamburg: Hamburger Edition, 2003), 70-3, 92-7. 4 Dixiéme Conférence internationale de la Croix-Rouge tenue a Genéve du 30 mars au 7 avril 1921, Compte rendu, 96-7. >> Bulletin International des Sociétés de la Croix-Rouge, Tome LII, April 15, 1921, No. 224, 376. At the conference, the idea was proposed by the Canadian and Australian Red Cross Societies. The Canadians may have been frustrated by the delay in starting the Leipzig case concerning the Llandovery Castle, a hospital ship torpedoed by a German U-boat off the coast of Ireland on June 27, 1918. The ship's personnel had included Canadian nurses and medical personnel who had escaped on lifeboats but were then gunned down on the

orders of the U-boat commander. In the case, which started on June 12, 1921, he was not tried, but two subordinate officers were found guilty of abetting manslaughter. They had not actually done the shooting themselves, but because they had been on watch on deck, the court ruled that they had enabled the commander’s orders to be carried out. See Willis, Prologue, 137-39; Hankel, Die Leipziger Prozesse, 452-64.

°6 Gerald H. Davis, “National Red Cross Societies and Prisoners of War in Russia, 1914-18,” Journal of Contemporary History 28, no. 1 (1993): 31-52.

92 The Birth of the New Justice Geneva Conventions. The German Red Cross saw an opportunity to obtain a neutral commission to examine atrocity accusations, a project that the German government had repeatedly sought and failed to achieve during and after the Paris Peace Conference. After the signing of the Versailles Treaty, center-right and right-

wing nationalist groups and writers in Germany propagandized for the penalty clauses in the treaty to be cancelled, and Germany to refuse to extradite any German nationals.”’ The German Red Cross did not refer to this in its communications with the ICRC, instead echoing the quest for peace and reconciliation which certain national societies had promoted at the Red Cross conference. However, like many Red Cross societies, the German Red Cross combined humanitarianism with nationalism. After all, Red Cross societies organized volunteer medical corps that primarily aimed to treat their own countries’ soldiers, and their main concern with prisoners of war was to help their own nationals. The German Red Cross believed the reputation of the German nation, not just the German army, was at stake. It sent an entire book of accusations, totaling two hundred alleged violations, but claimed it had only chosen “the worst offenses” and did not want to engage in a “new campaign of the pen.””® More explicit nationalist acrimony reared its head in the Balkans. Despite the Red Cross standard of remaining neutral, the Serbian and Bulgarian Red Cross organizations had become bitter enemies during

the war, which was reflected in their serious charges against each other.’’ The Serbian Red Cross went even further, criticizing the idea of a neutral inquiry (even though it had supported it at the conference) and portrayed the Serbs as victims who could not trust an international commission to deliver justice.” °7 Horne and Kramer, German Atrocities, 360—5.

°8 German Red Cross to President of the ICRC, n.d. (but marked October 12, 1921 in blue pencil), and President of the German Red Cross to President of the ICRC, October 12, 1921, International Committee of the Red Cross Archives, CR.94-1, Examen des violations Cony. de Genéve pendant la guerre (Circ. 203) 1921-1922, Docs. 16 and 16 bis. (Hereafter ICRC/CR.94-1/Examen). An ICRC report on the progress of the committee stated that the Germans had complained of two hundred violations. See “Rapport du Comité International de la Croix-Rouge aux Croix-Rouges de Danemark, d’Espagne, de Hollande, de Norvége, de Suéde et de Suisse,” October 29, 1921, ICRC/ CR.94-1/Examen, Doc. 25. °° ‘The Bulgarian Red Cross complained that Serbian volunteer units had massacred wounded prison-

ers in the Dobrudja during the second half of 1916, in an area north of Constanza. Its officials also alleged that when two international delegates visited between 14,000 and 16,000 Bulgarian prisoners of war held in Serbia, they found them “in the greatest of misery, deprived of all medical care and in danger of losing their health and even their life due to this regime.” (See President J.e. Guéchoff and Secretary G. Kerchoff [Société Bulgare de la Croix-Rouge 4 Sofia] to ICRC, October 11, 1921, ICRC/CR.94-1/ Examen, Doc. 28 [f], “VI. Actes de décés de prisonniers de guerre bulgares non envoyés par les autorités serbes.”) ‘The Serbian Red Cross lodged accusations against Bulgaria, which allegedly committed crimes against thousands of civilians and murdered the president of the Serbian Red Cross in Skoplje. The Serbs also complained that in 1916 the Bulgarian Red Cross refused to forward Serbian mail and messages to the inhabitants of occupied Serbia, because the Bulgarian Red Cross now considered these people to be subjects of Bulgaria. See President of the Société de la Croix Rouge S.H.S. (Drustvo Crvenoga Krsta

S.H.S.) to the President of the ICRC, October 7, 1921, ICRC/CR.94-1/Examen, Doc. 17 bis. °° ‘The Serbian Red Cross complained that Serbia had been unfairly treated by the Carnegie Endowment'’s International Commission into the causes and conduct of the Balkan Wars. In fact, this report was even-handed. See Carnegie Endowment for International Peace, Report of the International Commission to Inquire into the Causes and the Conduct of the Balkan Wars (Washington, D.C.: Carnegie Endowment, 1914), 208—34.

Blueprints for International Criminal Courts 93 Even before the ICRC received these submissions, the plan was on the road to failure, due to opposition from the British and French Red Cross societies and problems faced by the Belgian Red Cross. In early June, as the trials in Leipzig began, the British Red Cross refused to participate in the proposed international Red Cross commission. “No Government...is going to take either punitive or defense action on the strength of evidence collected without its authority or consent by a tribunal, however distinguished, in whose establishment and constitution it had no voice, and taken no part,’ wrote Sir Arthur Stanley, the Chairman of the Executive Committee of the British Red Cross. “No criminals could be brought to justice, no punishment could be meted out and the whole enquiry would lead to nothing more than futile recriminations.””' A few weeks later, the German court in Leipzig handed down light sentences (between six and ten months) to German soldiers whom the British had accused of mistreating and killing prisoners of war. German prosecutors had also decided not to prosecute a U-boat commander accused of torpedoing a hospital ship, the Dover Castle, without warning. ‘They agreed with his declaration that he had acted under superior orders.” In a private letter to ICRC president Ador, Stanley complained that since the Leipzig trials “have shown the impossibility of securing adequate punishment for those who are guilty of these acts,” a neutral commission would be useless. In separate replies, Ador and Paul des Gouttes, one of the authors of the

1906 Geneva Convention and secretary-general of the ICRC, privately agreed with Stanley that a neutral commission would not lead to pacification, but new bitterness. Ador even admitted that he would in no way be sorry if the Red Cross avoided the whole undertaking. The French Red Cross declined to participate in the international commission on the grounds that the commissioners would not be able to avoid “certain traps.” It suggested that the goal of investigating allegations had already been claimed by the signatories of the Versailles Treaty, implying that the enforcement of its terms— presumably the penalty clauses—was the only method of overcoming the past. It doubted that governments would submit to a neutral commission's “unwarranted meddling.” This was precisely the problem which the Belgian Red Cross faced, as the Belgian Ministry of National Defense would only send documents to “national

or international organs having the legal capacity to judge according to a law or international treaty.” The Red Cross, as defined by its own statute, had no legal standing of this kind.® By the end of the year, Red Cross societies from neutral states declined to participate, either because they knew it would be useless without

6! Stanley to President of the ICRC, June 3, 1921, ICRC/CR.94-1/Examen, Doc. 3 bis. ° Willis, Prologue, 133-4. °° Ador to Stanley, June 17, 1921, ICRC/CR.94-1/Examen, Doc. 4; Des Gouttes to President of the Red Cross Society, June 23, 1921, ICRC/CR.94-1/Examen, Doc. 4 bis. “ Pau (President of the Central Committee of the French Red Cross) to Ador, August 5, 1921. ICRC/CR.94-1/Examen, Doc. 10. ® Depage (President of the Belgian Red Cross), to Ador, August 31, 1921, with copy of letter from the Ministére de la Defense Nationale, 6¢me Direction Générale, to Depage, August 12, 1921, ICRC/ CR.94-1/ Examen, Doc. 13.

94 The Birth of the New Justice the participation of the Entente states, or because they believed it would just “result in a new eruption of hate and reciprocal accusations, impossible to prove.” This early attempt at an inter-European “truth and reconciliation committee” failed. The failure influenced the ICRC’s attitude toward getting involved in neutral investigative commissions and criminal penalties in the future. It created an institutional belief among senior Red Cross lawyers that commissions could divide the movement and harm the ICRC’s image of neutrality. Des Gouttes commented in 1921: “Personally tasked during the war with all questions dealing with violations of the Geneva Convention and having then realized again and again the degree to

which the truth of the alleged acts was fading and elusive, I foresaw, when the proposition [for a neutral commission] was made at the Conference, that it would be nearly impossible to arrive at certainty and appeasement, which was the goal of this motion. One could even have asked oneself... if the pursuit of the truth would

not in the end lead to a goal contrary to the pacification that the authors of the motions wished.”° Assessing guilt after a war did not become part of the ICRC’s mission as it developed its strategies of aid and humanitarian diplomacy through trial and error. Dur-

ing World War One, the ICRC had inspected 524 POW camps through its own initiative and perspicacious negotiation, not because it had any defined legal right to do so. Its preferred method was to persuade governments and militaries to improve conditions for prisoners of war and end reprisals, using private negotiations and its own publications of reports.°* In many areas, it did not rely on codified laws of war at all, but on humanitarian principles. Then it improvised to concentrate on another main goal, assistance to the sick, wounded, and prisoners of war, which had

nothing to do with punishing violations. The group was aware that enforcement was a serious problem, but it wanted to leave that matter to states. After World War One, however, it concentrated on drafting new conventions with broader protections rather than introducing a regime of criminal enforcement. The organization started from the premise that the system would improve if there were new and more detailed laws covering a wider range of situations. Many aspects of the 1907 Hague Convention were either vague or not upheld in World War One: armies used poison gas; bombed non-defended cities; and deported or interned foreign civilians.” The Geneva Convention of 1906 (dealing only with wounded and sick soldiers) did not cover the rules for the treatment of prisoners of war—no standards for the type of food, housing, medicine they must receive, no regulations that they must be able to send and receive mail, no requirements about the kind of trial they must receive if they were accused of violating the regulations of a prison camp. Nor was there any Red Cross convention that protected civilians who were either interned or evacuated during a military occupation. The °° Colonel Bohmy (President of the Swiss Red Cross) to Ador, November 23, 1921, ICRC/CR.94-1/ Examen, Doc. 31. For the other neutrals’ responses, see Docs. 29, 30, 32, and 34. °” Des Gouttes to President of the Red Cross Society, June 23, 1921, ibid., Doc. 4 bis. °8 Bugnion, /nternational Committee, 92-5. ® Ador to League Assembly President and the Delegates, November 22, 1920, ICRC Archives, CR.82, Rapports du CICR et de la S.D.N. 1920-1947, Doc. 17.

Blueprints for International Criminal Courts 95 groups main thrust was partly realized in 1929 by new conventions—the revised Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, and an entirely new one, the Convention relative to the Treatment of Prisoners of War—yet it was unable in the 1920s to convince states to agree to a new convention protecting civilians. As for enforcement, the 1929 conventions required a belligerent to investigate violations that an enemy force accused it of committing, leaving the procedure to the discretion of the two belligerents. Proposals to create an international tribunal and a mixed commission of belligerents and neutrals were rejected.”” Still, this leaves the question of whether the ICRC’s position toward enforcement was weak or realistic. As Chapter 8 will show, its institutional culture and legal position evolved in this area. But from the 1920s through World War Two, it saw post-war prosecution as mainly outside its humanitarian mission and principles of charitable aid. Its lawyers and delegates who visited POW camps, detention centers, and hospitals generally believed that inspections could bring governments in line during a conflict, and the organization supported this policy rather than creating a mechanism to punish officials for violations after the conflict. As a 1939 internal memo stated, inquiries into violations of the international conventions were possible according to the ICRC’s statute, but they should never take on more resources than the primary humanitarian missions, and the ICRC itself should not conduct the investigation.”!

RECTIFYING THE COUNCIL OF FOUR’S MISTAKE: THE INTERNATIONAL LAW ASSOCIATION’S PLAN FOR AN INTERNATIONAL COURT FOR WAR CRIMES Neither the League nor the Red Cross movement immediately wanted to pick up the torch of the new justice and lead the way into the caves of criminal enforcement. Their historical missions and institutional cultures led toward different goals: the resolution of inter-state disputes and the expansion of mutual security in the League of Nations; and the expansion of the laws of war for the ICRC. A series of other events and developments, however, catalyzed two other organizations of international lawyers to take up the cause of establishing a permanent international criminal court in the hopes that it could be integrated in the League’s structure. The main groups involved were the International Law Association (ILA) and the Association Internationale de Droit Pénal (AIDP). Each group was led to the project by different forces, and these in turn modified the formation of the new justice. One direction concentrated mainly on war crimes, while the other direction concentrated on the prevention of war. ” Bugnion, /nternational Committee, 124-7. 71 Memorandum sur l’activité du Comité international de la Croix-Rouge en ce qui a trait aux violations du droit international, September 12, 1939, ICRC Archives, G.7/TX. Criminels de Guerre. Généralités.

96 The Birth of the New Justice The ILA’s criminal court statute, drafted by Hugh H. L. Bellot, a British international lawyer (1861-1928), concentrated on the repression of war crimes because Bellot was disappointed that the Allies had rejected the Commission on Responsibilities’ recommendation, made by the European majority, to create an international tribunal. He was also frustrated that the Supreme Court in Leipzig had ruled that under German law, the commander accused of torpedoing the Dover Castle could be exonerated because he had followed superior orders—to attack all ships

without warning when they were inside a certain zone.” The AIDP statute, initially drafted by Vespasien V. Pella, a young Romanian criminal law professor and parliamentarian (1897-1950), was intended to establish a permanent international criminal court to prevent war itself. The court would be able to prosecute individuals for violations of military codes during international conflicts (a narrow inter-

pretation of war crimes), but Pella’s main interest was tightening the League’s system of collective security with criminal enforcement. He foresaw a court that could prosecute and punish individuals or states that mobilized their forces without cause, violated other states’ borders, or engaged in war without first settling their

disputes in the League. He believed that criminal penalties could enforce the League Covenant more effectively than economic sanctions and the revocation of diplomatic privileges alone. The ILA developed its statute between 1922 and 1926, adopting the idea of an international tribunal, which was at the core of the Commission on Responsibilities’ plan. Yet it wanted to make the tribunal neutral by allowing judges from neutral states and permitting states on both the prosecuting and defending sides

to appoint judges to the court; it also wanted to include more basic rights for defendants. These aspects would correct the plan which the Council of Four had adopted in the Versailles system treaties, as well as provide a stronger system of enforcement of international law than a national military court.” The ILA’s 1926 plan called for an international criminal court, based in The Hague, which would be a division of the Permanent Court of International Justice. Its fifteen judges would not be political appointees or academic law professors; states would nominate experienced judges and lawyers who had worked in criminal courts, and the League Council and Assembly would vote on them. The judges would hear cases in public, based on written and oral evidence. The court would have jurisdiction over both individuals and states for two major categories of offenses: war crimes—

defined as violations of the laws and customs of war as contained in treaties, conventions, declarations, and customary principles “generally accepted as binding by civilised nations—and “violations of international obligations of a penal

” Hugh H. L. Bellot, “A Permanent International Criminal Court,” in /nternational Law Association. Report of the Thirty-First Conference Held at the Palace of Justice, Buenos Aires, 24th August— 30th August, 1922 (London: Sweet & Maxwell, Ltd., 1923), 73. 3 As Bellot told the International Law Association in 1922, “A Committee of Lawyers appointed by the Supreme [Allied] Council has now reported unanimously that the Leipzig trials were entirely

unsatisfactory, that persons were acquitted who ought to have been convicted, and recommending [sic] that they should be re-tried. For this result the Supreme Council has only itself to blame.” Bellot, “A Permanent International Criminal Court,” 73.

Blueprints for International Criminal Courts 97 character,’’* meaning “white slave” trafficking, piracy, and possibly crimes such as cutting undersea communication cables. The crime of aggression would not have

been included in the court’s jurisdiction, nor would violations of the minorities treaties that resulted in violence. Defendants were given two important guarantees: they could not be prosecuted for crimes which were not defined in advance, and they had the right to ask for a new trial if new evidence came to light. Three aspects of this vision—the exclusion of the crime of aggression, the exclusion of violations of the minorities treaties, and the expansion of rights for the defendants—reveal the influence of developments in the League of Nations and concerns within the ILA itself. Bellot’s major concern had always been the prosecution of individuals for war crimes by a neutral international tribunal. As he argued in 1922 at the ILA’s conference in Buenos Aires, this type of tribunal would avoid biased judgments, issue uniform sentences, uphold international law above national

law, and “strike the public imagination in a degree to which [a national court] could not attain.”” Tangentially, he had also wanted the court to prosecute aggressive war and acts such as “seditious libel,” but due to objections, he limited it to a court with jurisdiction over the laws of war. However, his proposal to draft a statute for this limited function only carried by 31 votes to 22, and there were several objections from British lawyers. The plan continued to draw controversy as he and Lord Phillimore developed it further at the Stockholm Conference in 1924. At the Vienna Conference in 1926, several ILA lawyers, including Italian, Hungarian, and German ones, scrutinized the entire draft and introduced important changes. Sociological criminologist Enrico Ferri, supported by other Italian lawyers, led the charge to delay including the crime of aggression, arguing that the environment in the League was not yet conducive for this move.” This rejection of a court for aggressive war was a reaction to failed attempts in the League Assembly between

1922 and 1925 to strengthen the collective security system and require that all League members must help defend a state under attack, anywhere on the globe. Britain had rejected these efforts (specifically the 1923 Draft Treaty of Mutual Defense and the 1924 Geneva Protocol for the Pacific Settlement of International Disputes), contending that they would entangle the British navy in worldwide policing actions outside its central imperial interests. France, however, sought a stronger collective security system against its German neighbor. As an alternative to collective security, the leading European powers negotiated the 1925 Locarno agreements, which stated that Britain and Italy would guarantee the French— German-—Belgian borders and the demilitarization of the Rhineland.”” This move on the part of the major powers to construct their own agreements, rather than rely on the League Council or the Permanent Court, sent a clear message that they ” Tnternational Law Association, Report of the Thirty-Fourth Conference Held at the Imperial Palace and at the Chamber of Commerce, Vienna, August 5th to August 11th, 1926 (London: Sweet & Maxwell, Ltd., 1927), 113, 118. Hereafter, International Law Association, Vienna Conference.

® Bellot, “A Permanent International Criminal Court,” 74. 76 “Report of the Permanent International Criminal Court Committee,” August 6, 1926, International Law Association, Vienna Conference, 164. ” Northedge, The League of Nations: Its Life and Times 1920-1946, 90-7.

98 The Birth of the New Justice neither fully trusted the League system nor were willing to pledge their support for military or economic sanctions that ran counter to their interests. Additionally, the ILA was more attuned to protecting business interests through international treaties than criminal prosecution. The group was founded between 1871 and 1873 by pacifist radicals interested in codifying international law, but after fifteen years the group was driven by business interests, especially shippers, merchants, and businessmen interested in bills of exchange and copyrights.”* After World War One, some members were skeptical of utopian plans: the memory of the war was still fresh. While some believed in the punitive value of a criminal

court for war crimes, they doubted the Great Powers would accept a court that would impose criminal sentences for actions that violated international treaties or neutrality agreements. ‘Thus, a court to prevent aggressive war could be jettisoned, while a court against war crimes seemed a safer bet. The League context and the internal dynamics of the ILA also explain the ILA’s decision to reject a proposal to allow the court to prosecute individuals, including state officials, who committed criminal acts against minorities, such as instigating pogroms against Eastern European Jews or failing to prevent such violence.” Many scholars believe that the Polish-Jewish attorney, Raphael Lemkin, was the first (in 1933) to propose international criminal laws that would protect national and religious minorities against attacks from their own governments. Lemkin held that once these attacks were codified as universal crimes, any state could prosecute them, even if they occurred outside its borders.*° However, there was an earlier proposal to deal with this problem, but use an international criminal court. At the ILA Conference in Vienna in 1926, a Welsh solicitor and Liberal Member of Parliament, Frederick Llewellyn Jones (1866-1941), proposed that the international criminal court should enforce the minorities treaties with criminal penalties. Under the actual League’s system at the time, a three-person Minorities Committee investigated petitions alleging that certain states in Central and Eastern Europe were not upholding group minority rights, such as equal treatment before the law, the right to use a minority language in courts and schools, and the right to establish religious and welfare institutions. The Committee conducted closed-door investigations and presented its findings to the Council. In some cases, the Council privately informed a state’s delegates that the government should take certain measures to improve its behavior. Yet the system did not deal with violence and had no method of sanctioning states. Therefore, Llewellyn Jones wanted the proposed 8 Trwin Abrams, “The Emergence of International Law Societies,” The Review of Politics 19, no. 3 (1957): 361-80; International Law Association, Vienna Conference, xviii—xix.

” International Law Association, Vienna Conference, 289-93. 8° William Korey, An Epitaph for Raphael Lemkin (New York: Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee, 2001); Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002); Raphael Lemkin, “Totally Unofficial Man,” in Pioneers of Genocide Studies, ed. Samuel Totten and Steven Leonard Jacobs (New Brunswick, N.J.: Transaction Publishers, 2002); Daniel Marc Segesser and Myriam Gessler, “Raphael Lemkin and the International Debate on the Punishment of War Crimes (19191948),” Journal of Genocide Research 7, no. 4 (2005): 453-68; John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave Macmillan, 2008).

Blueprints for International Criminal Courts 99 criminal court to take up cases of violence against minorities, especially in situations where the state refused to prosecute. ‘This would have clearly trumped state sovereignty. His proposal was seconded by Georg Wunderlich, a German defense attorney: this was probably because Germany was very active in defending the

rights of German minorities in Eastern Europe and often brought complaints before the League’s Minorities Commission.*!

However, the issue was tabled for future study because ILA lawyers thought Llewellyn Jones’ proposal would turn the Minorities Committee into a prosecutor, a power it did not have under the League of Nations. Megalos Caloyanni, Greece's judge on the Permanent Court, thought it might be possible to hand that power to the League, but he urged caution before augmenting the League's power.** Llewellyn Jones also ruffled the feathers of the ILA’s own Minorities Committee, which was

debating a less radical set of ideas and was completely thrown off guard by his proposal.®* Even if the ILA had accepted the proposal, the idea would probably not

have survived in the League. At this time, Central and Eastern European states under the minorities treaties were complaining that the system was unfair because they had to abide by it, while Germany, which also had minorities, did not. Strengthening the system with criminal penalties would have been unpalatable to them. The ILA’s decision to include stronger guarantees for defendants was propelled by Wunderlich and others who had real experience of defending clients in criminal

courts.** Bellot originally wanted to give the court a fair amount of latitude in defining the crimes and creating a set of precedents through its decisions, as these were part of the English common law tradition. European continental lawyers, influenced by the post-absolutist view that for all to be equal under the law, the laws must be codified in advance, insisted that either the crime had be defined in the international criminal court’s statute, or it had to be specified in the defendant's own national law. These lawyers also successfully argued that a defendant should

be able to appeal a guilty conviction if new evidence came to light—and there should be no time-limit on this. Therefore, insofar as the ILA lawyers considered the question of rights, they were thinking of liberal rights for the defendants, applying the concept of fair trial that the European burghers had demanded in the nineteenth century as a protection against the monarch. In the process, they tempered the original spirit of retribution that possessed the Commission on Responsibilities in 1919. They even gained the support of the President of Germany’s 8! Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority

Protection, 1878-1938 (New York: Cambridge University Press, 2004), 295-309. 8° See the responses by Caloyanni (the Chair) and Gotein (a British lawyer who was Secretary of the Minorities Committee) in International Law Association, Vienna Conference, 291-3. 8° “That committee called for more publicity in the overall minority complaint and negotiation process, and wanted the Permanent Court to rule on minorities issues. ‘These resolutions were controversial and produced resistance from the Polish and Czechoslovak delegations, which thought it was unjust that states with “recognised minorities problems” did not sit on the committee. International Law Association, Vienna Conference, 347-9.

8 “Report of the Permanent International Criminal Court Committee,” International Law Association, Vienna Conference, 211-25, 279-81, 286-309.

100 The Birth of the New Justice Supreme Court in Leipzig, who expressed at the 1926 conference that Germany would support the international criminal court statute.® The ILA’s main impact on the 1919 ideas of the new justice was that it formalized the idea of a permanent international criminal court that would have a paid, professional judiciary and a set of bureaucratic processes that would be integrated with the Permanent Court of International Justice. It also limited the court con-

cept to dealing primarily with violations of the laws and customs of war, not ageressive war or attacks against minorities in peacetime, showing that this was really a court to deal with the types of violations at the center of the Commission on Responsibilities’ debates. In many ways, it was an answer to the problems of the Versailles system treaties and their lack of fulfillment. Still, the idea of an international criminal court caused great consternation among some international jurists

(and even more government officials). Therefore, the ILA took several steps designed to reassure states that this would not be a political or biased court. The court would be optional, and states would still be free to use their own tribunals to prosecute individuals accused of violating the laws and customs of war, assuming they held them in custody. Additionally, states were given certain rights that were intended to assuage their fears of unjust prosecution or bias. If a state did not currently have a judge on the bench, it would be allowed to appoint one, whether it was on the defending side or prosecuting side. Finally, one should note that there was no independent prosecutor who had a duty to prosecute all violations of the laws and customs of war, wherever they occurred, nor could a state bring charges on behalf of victims who lived in other states. States would only be able to file charges on their own behalf and for their own subjects and citizens. This too was designed to protect state sovereignty.

ASSOCIATION INTERNATIONALE DE DROIT PENAL AND THE RISE OF INTERNATIONAL CRIMINAL LAW The new justice underwent a much deeper, more profound transformation through the AIDP, a scholarly organization founded in 1924 by criminal law professors, criminologists, and penologists, initially from Europe, which sought to continue

the pre-war reform of criminal law led by the International Union of Criminal Law.*° While the International Union had been led by a very strong German group, the AIDP was led by the Belgians, the French, and their post-war allies in Eastern Europe and the Balkans, especially Romania, Yugoslavia, and Greece. The group

had a French cultural-legal orientation: French was the main language of its 8° International Law Association, Vienna Conference, 155. 86 ‘There is very little historical scholarship on Pella and the AIDP. See Segesser, Recht statt Rache, 242-61; Dubin, /nternational Terrorism: Two League of Nations Conventions, 1934-1937, 23-31; Willis, Prologue, 171. For legal appreciations, see Ivan S. Kerno, “In Memoriam: Vespasian V. Pella, 1897—

1952,” The American Journal of International Law 46, no. 4 (1952): 709-10; M. Cherif Bassiouni, “AIDP: International Association of Penal Law: Over a Century of Dedication to Criminal Justice and Human Rights,” Nouvelles Etudes Pénales 18 (1999): 39-63.

Blueprints for International Criminal Courts 101 publications and meetings; the French legal code was a frequent reference point of discussion; Mediterranean concerns with the transnational migrations of people and the view that this increased crime were also influential. However, one cannot oversimplify the intellectual portrait of the group based on cultural typography or

simply see it as a reaction to German legal concepts. The Italian penal reform school was very influential, and so were ideas of social anomie, crowd theory, and the role of instincts on behavior, concepts from Durkheim, Le Bon, and Freud. The nineteenth century concept that international organization was necessary to regulate social chaos was likewise influential, as well as the idea that international cooperation must be formalized with legal institutions. The AIDP helped create the new field of international criminal law in the 1920s, which adopted some concepts of the new justice but also added several entirely different elements. First, the group's leading scholars sought to redefine and expand criminal law. Vespasien Pella, a Romanian criminal law scholar educated in Paris

during the war years, invented the concept of an “inter-state” criminal law that would govern relations between states.*’ His contemporary and friend, French criminal law professor Henri Donnedieu de Vabres (1880-1952), studied the historical jurisdictions of polities from the ancient world to the present in order to argue that modern states should construct a criminal system that treated foreigners and citizens inside their borders on an equal basis: this would curtail the practice of extra-territorial jurisdiction.** Second, the AIDP program was vaster than merely creating an international criminal court. Its jurists wanted to write an international criminal code which defined the crimes under international law that the international criminal court would prosecute: “white slave” trafficking (trafhcking women across borders to supply bordellos with prostitutes); drug traficking; attacks on undersea telegraph cables and railways; cross-border distribution of obscene publications; and by the late ’20s, crimes that created “a common danger.” ‘Third, the

group wanted to continue reforming penal codes according to the International Union's ideas of “social defense,” whereby a society should use criminal repression to protect itself, rather than merely punish criminals as a way of enforcing an underlying moral principle or substituting state-controlled punishment for private vengeance. Social defense meant that the offender’s personality and social background had to be comprehended, so penalties were supposed to fit the criminal’s profile: juveniles should be put in detention to re-educate them, the mentally insane into institutions, and potential offenders into “preventative custody.”®’ Finally, a section of the AIDP wanted to reform the web of bilateral extradition treaties that governed the delivery of suspects, writs, and evidence. Besides enhancing police cooperation, the goal was to eliminate asylum for political assassination and terrorism. 87 Pella, La criminalité collective.

88 Henry Félix Auguste Donnedieu de Vabres, Introduction a l étude du droit pénal international: essai A histoire et de critique sur la compétence criminelle dans les rapports avec létranger (Paris: Recueil Sirey, 1922). ® For the purely domestic aspects of social defense in the interwar period, see Marc Ancel, “The Collection of European Penal Codes and the Study of Comparative Law,” University of Pennsylvania Law Review 106, no. 3 (1958): 360-8.

102 The Birth of the New Justice These developments touched on some of the ideas of the new justice, primarily the ideas of an international criminal tribunal, the notion that an individual, no matter how highly placed, should be subject to prosecution under international law, and the concept, unrealized and legally undefined in 1919, that aggressive war should be a crime. Yet the AIDP’s transformation of the new justice was broader, since it dealt with more than tribunals and aggressive war: it created a new field of international criminal law and introduced a new set of intellectuals and advocates to the historical stage: the criminological jurists. As mentioned in this book’s introduction, we should move away from the idea that the development of an interna-

tional criminal court and international humanitarian law formed from a set of tributaries that all flowed into a single river of development.” In fact, there were multiple strands and multiple groups who pursued different elements according to diverse social and political needs. Additionally, the criminological jurists intended to define the key concepts of international criminal law and work out legal definitions and conventions. The project was therefore more precise than the “justice of the spirit,” the phrase that the Dutch jurist and Legal Director in the League, van

Hamel, had used in 1920. It was broader than the moral demand to put the ex-Kaiser and the German violators of the laws of war on trial after World War One. Because it concentrated on criminalizing violations and employing trial and punishment, it aimed at a different method of enforcement than the “legal internationalism” supported by other international lawyers and League delegates. Further, the determination to prosecute and punish was much stronger than the sentiment in the Red Cross movement, which concentrated on expanding the laws of war and reducing the suffering of the victims of war. To understand this transformation of the new justice into international criminal law, it helps to understand the ideas of Pella, one of the group’s main intellectual leaders, then follow the transnational organizations where he developed these ideas with the help of other criminological jurists and international lawyers. ‘This will take the history from the early 1920s through 1924—25 when Pella introduced his ideas for an international criminal court to the Inter-Parliamentary Union, an organization of parliamentarians from around the world dedicated to the peaceful resolution of inter-state disputes and the avoidance of war. Pella then brought his ideas to the AIDP in 1926, when the group held a conference in Brussels a few weeks before the ILA met in Vienna. In Brussels, the AIDP decided to move forward with its own plan for an international criminal court, and Pella sent a communiqué to the ILA explaining this. Since the ILA soon finished drafting its statute in Vienna, the AIDP decided to invite Bellot to work on its own draft statute, leading Bellot, Pella, and other AIDP jurists to collaborate in 1927-28. This resulted in a new statute, which emphasized criminal prosecution for acts of ageressive war and acts leading to war more strongly than the ILA project, which was primarily a court for war crimes.

°° Benjamin J. Schiff, Building the International Criminal Court (New York: Cambridge University Press, 2008), 14-41.

Blueprints for International Criminal Courts 103 PELLA’S SOCIAL PSYCHOLOGICAL THEORY OF AGGRESSIVE WAR At the base of Pella’s ideas was a criminological theory arguing that groups, not only individuals, could be prosecuted, and a social psychological theory explaining how an activist group of individuals could seize control of a state, distort the positive values of nationalism, and turn the state as a whole towards aggressive war. The theories are important because they explain why he believed a state could be sub-

ject to criminal responsibility, and inter-state relations, as a problem of social groups (not merely abstract states), could be regulated through a criminal court. In 1920, while still a student at the Law Faculty of the University of Paris, Pella published Esprit de Corps and the Problems of Criminal Responsibility, a theory on the criminal responsibility of social groups, drawing on Gustave Le Bon’s theory of crowds and Gabriel de Tarde’s socio-criminological works on crowds and sects.”!

The central problem was how to repress crimes instigated by groups, in which certain members inspired others to commit crimes but did not commit them themselves. The groups Pella had in mind were crime rings, trade unions, religious sects, and armies: all closed social networks that tore individuals away from other forms of social control and compelled them to dress, speak, think, and act in ways

that followed the “esprit de corps.” When these groups became too insular and fanatical, they compelled their members to commit nefarious acts. While crowds were spontaneous and only formed when their members stopped obeying social controls, these other groups (corps) were disciplined, possessed an active leadership

element, and were intent on transmitting their morality to future generations.”

Pella applied his theory about the criminality of groups to the Great War, attempting to isolate the underlying social and psychological causes of the conflict

rather than the diplomatic ones. His method of preventing a future war was to create an “inter-state” criminal law in which states would be governed by laws, prosecution, and punishment. He juxtaposed this system with “classical international criminal law,” which concerned the application of a state’s criminal laws to its citizens when they were abroad and to foreigners who committed crimes on the state’s territory.”? He elaborated his system and its underlying social-psychological basis in his main work, The Collective Criminality of States and the Criminal Law of the Future, published in French in 1925. Pella argued that state aggression begins

with a homogeneous minority within the nation, the type of disciplined social group, or corps, he described in 1920. Espousing an aggressive, nationalistic warrior

*! Vespasien V. Pella, Lesprit de corps et les problemes de la responsabilité pénale (Paris: Ernest Sagot & Cie, 1920). See also Gustave Le Bon, Psychologie des foules (Paris: Félix Alcan, 1895); Gabriel de Tarde, Essais et mélanges sociologiques (Paris: G. Masson, 1895); Gabriel de Tarde, Lopinion et la foule (Paris: Presses universitaires de France, 1989 [1901]). » Pella, Lesprit de corps, 19-37.

°° Association Internationale de Droit Pénal, Projet de Statut dune Cour de Justice Criminelle Internationale, précédé d'une introduction de M. le Conseiller Megalos A. Caloyanni et du rapport de M. Vespasien V. Pella, Professeur a (Université de Jassy, Député (Paris: Librairie des Juris-ClausseursEditions Godde, 1928), 10. Hereafter AIDP, Projet de Statut.

104 The Birth of the New Justice ethos, this corps develops an activist program. It persuades two other groups to follow: disseminators (teachers and religious figures); and the masses, which possess

an instinctual need to defend their species. They are convinced through propaganda that they are threatened, and in the process, their normally healthy and positive nationalism is deformed into chauvinism. Their defensive instincts become ageressive. Young people are inculcated to believe that war is a moral force that supports their nation, and this belief becomes a national religion. The society as a whole exalts the cult of force, psychological automatism takes over, and individualism is wiped out.” These views reflect trends in social psychology which gained prominence during the fin de siécle. According to his footnotes, Pella took the idea of “the cult of force” from Georges Sorel, the instinct for species defense from Sigmund Freud, and the idea of crowd automatism from Le Bon, combining these ideas into an explanation of the genesis of an aggressive state.”” He then used this explanation to argue that a state, not only individuals who made decisions within the state, could be held criminally responsible for initiating a war. Following Rousseau, Pella believed that the state, representing its component peoples, has a will which possesses a stable character and expresses the general interest. Since the state has a will, it therefore has an international personality, which means that the state, not only individuals, can be held criminally responsible for aggression.”° Pella’s explanation of how an active component of a national group turns the rest of the population and the state toward aggressive war was a blend of existing intellectual currents. He isolated a host of internal and external factors that drive the activist corps of the nation toward aggression, such as “natural racial antagonisms” (a social Darwinist concept) and the pursuit of economic enrichment (a critique of imperialism common before and after World War One). Pella believed that nations,

which he understood as groups of people joined by language and custom, are equivalent to races, and conflicts naturally arise among them, often atavistically reappearing throughout history. This was a modification of the German romantic idea of the nation, which supposedly had a timeless essence. Besides these racial, economic, and national factors, a disorganized, anarchic system of international

relations could also exacerbate tensions and lead to war. As mentioned at the beginning of this chapter, the idea that international life, in all its manifestations, had to be organized was a common idea among intellectuals and diplomats who supported the establishment of the League of Nations. Minority problems were yet

another factor that promoted aggression; this was a common observation for Central, Eastern, and Southeastern Europeans, particularly those from states whose post-World War One territory, such as Romania, contained significant minorities. Pella believed an international criminal system should not interfere with the state’s °4 Pella, La criminalité collective, 25-34. > Georges Sorel, Réflexions sur la violence (Paris: Librairie de “Pages libres,” 1908); Sigmund Freud, Psychologie collective et analyse du moi (Paris: Payot, 1924); Gustave Le Bon, Enseignements psychologiques

de la guerre européenne (Paris: E. Flammarion, 1916); Gustave Le Bon, The Psychology of Peoples [Lois psychologiques de lévolution des peuples] (New York: Stechert, 1924 [1898}). °° Pella, La criminalité collective, 57-62.

Blueprints for International Criminal Courts 105 internal governance in principle, but when the state failed to respect the life and liberty of its citizens, as in cases of massacring races, intervention was justified.”” For Pella, however, the main problem was the prevention of aggressive war, not attacks against minorities. This was the common view among many types of internationalists in the 1920s. His answer was the creation of an international criminal court with jurisdiction over states and individuals who mobilized their forces with-

out cause, violated other states’ borders, or engaged in war without first settling their disputes in the League. Individuals could be punished through suspension of diplomatic privileges, seizure of assets, and jail terms, while states could be punished with economic sanctions and diplomatic isolation. The difference between this system and the League’s system of sanctions at the time was that the criminal court, not the League Council, would determine the punishment for a state. On the legal level, the system was not simply the transposition of the ideas of crime and punishment from the national level to the international level. In the domestic legal systems of the time, the state’s agents, including its police, gendarmes, courts, and penitentiary officials, dealt with the offender. In Pella’s system, states were expected to cooperate in several of these areas, and their governments were collectively supposed to stand behind an international criminal court. ‘This

would necessitate a reduction in sovereignty, but in return they would enhance their collective repressive power to ensure security and order. For this reason, rather than calling this “pacifism” or “pacificism,’”® it makes more sense to distinguish

Pella as a representative of a criminological strand among diverse international legal movements after World War One, driven by an imperative to criminalize and punish a variety of acts to create international peace, protect internal security, and avoid revolution. The means was often legally innovative, while the goal of main-

taining the existing political and social order had both liberal and conservative elements.

For example, Pella in the 1920s was an ardent anti-communist, but he went even further, declaring that trade unions were just as dangerous as the Sicilian Mafia and Neapolitan Camorra. In his 1920 work, he wrote that trade unions threatened the authority of the state and individual liberty because they supposedly compelled people to commit criminal acts. A union’s primary weapon against the state was the strike, which “permit[s] unions to impose their will on their entire society’ and “has the immediate effect of paralyzing social activity and creating disorder and trouble in the State. One is also able to say that by permitting the free

formation of such groups, one risks the occurrence of insurrection and revolution.””’ Pella was elected a member of the Romanian parliament in 1924 (probably with the National Liberals) and helped author legislation banning the Communist ” Pella, La criminalité collective, 145-6. *8 “Pacificism” is historian Martin Ceadel’s concept of a group of moderate peace activists, quite politically diverse, who wanted to avoid war through arbitration or international organizations such as the League, but were willing to stomach a defensive war or a war they believed was ideologically justified. See Martin Ceadel, Semi-Detached Idealists: The British Peace Movement and International Relations, 1854-1945 (New York: Oxford University Press, 2000), 7. ” Pella, Lesprit de corps, 42.

106 The Birth of the New Justice party from Romania,'°° which most of the Balkan countries did after World War One, since they feared the successful Bolshevik revolution in Russia and the unsuccessful ones in Hungary and Germany.

THE ASSOCIATION INTERNATIONAL DE DROIT PENAL’S PLAN: INTEGRATION WITH STATE SOVEREIGNTY At the very point when Pella was moving from publishing his ideas in his 1925 treatise to putting them into a draft statute form—with the eventual intention of bringing them before the League of Nations—the possibilities of strengthening the League’s collective security system were shrinking, being replaced by security pacts. In 1924, the League Assembly produced the Geneva Protocol for the Pacific Set-

tlement of International Disputes, which required states to submit their disputes to the Permanent Court. Any state that refused would be deemed an aggressor, and the economic sanctions and military measures would be determined by a twothirds majority of the Council. The British government and its dominions rejected this plan, while the U.S., whose Senate had not agreed to join the Permanent Court, was concerned that it might permit European powers to intervene in its Latin American sphere. Disarmament was hamstrung, because realizing a comprehensive arms-reduction plan of 1922 was contingent on achieving a mutual security system first. Instead, as already mentioned, Germany, France, Britain, and Italy turned to private negotiations to work on the Locarno treaties in 1925. Though hailed in German and international history as a cornerstone of the 1925-1929 period of Weimar stabilization, they represented a contrary motion to what Pella and other parliamentarians in the Inter-Parliamentary Union wanted to see. That body had enjoyed an active life as a multi-national organization devoted to developing plans for arbitration, intellectual co-operation, and collective economic assistance from 1889 to 1914, but it collapsed due to war-time antagonisms. In the mid-1920s, it was trying to rebuild and spur on the League by developing a host of internationalist proposals to strengthen collective security, enhance economic cooperation, and create a realizable plan for disarmament.'” In this context, Pella in 1924 proposed to the Inter-Parliamentary Union the idea of an international criminal jurisdiction as well as penal measures for the crime of aggression. He then wrote a plan called “Fundamental Principles of an International Legal Code for the Repression of International Crimes.” Published in April 1925, Pella introduced several of the ideas of the new justice into a proposed international penal code that would be backed up by an international criminal '00 Vespasien V. Pella, “Letters to the Times: Proposed U.N. Code: Provisions Said to Be Directed at Threat of Fifth Column,” New York Times, October 3, 1951.

'! On the Inter-Parliamentary Union's history through the end of 1914, see Ralph Uhlig, Die Interparlamentarische Union: Friedenssicherungsbemiuhungen im Zeitalter des Imperialismus (Stuttgart: Franz Steiner Verlag, 1988). For the inter-war history, see Yefime Zarjevski, The People Have the Floor: A History of the Inter-Parliamentary Union, trans. Nicholas Albrecht (Aldershot: Dartmouth Publish-

ing Company, 1989), 65-90.

Blueprints for International Criminal Courts 107 court. For example, he foresaw a court with jurisdiction over individuals who committed “international military offences,” meaning violations of the laws and customs of war as defined by international conventions. Since there were gaps in the Hague and Geneva Conventions, his plan further specified that individuals could be tried for massacres, rape, and theft in occupied territories. However, the central purpose of the court was very different than Bellot’s plan at this moment. Follow-

ing the theory outlined in his book, The Collective Criminality of States, Pella intended his court would be able to prosecute states as well as individuals, including the sovereign heads of states, for various acts that could disrupt international peace: aggression; violations of demilitarized zones and disarmament agreements;

support for armed groups that worked against the internal security of another state; financial support for political parties in a foreign state; or counterfeiting another state's currency.'** Thus, Pella had fleshed out a multi-faceted definition of ageression and acts provoking war. At the Inter-Parliamentary Union's conference in Washington, D.C. in October 1925, representatives from forty-one parliaments, dissatisfied with the League's

slow progress, agreed with Pella’s ideas and decided to form a committee that would draft a statute based on them. The proposed criminal court was integrated

with the League Council, a prudent move in light of the 1922-1924 League debates about collective security, when states such as Britain did not want to be locked into automatic obligations to participate in blockades and send troops. Pella gave the criminal court the power to decide which penalties should be applied to a state, and the League Council would determine which states would have to participate in blockades, financial penalties, and armed action.'°? While limiting state sovereignty, this left room for political negotiation on the Council, where Britain and the other Great Powers had permanent seats. However, his plan also went much further than the 1924 Geneva Protocol, because it covered many types of acts threatening international security, not only military invasions and attacks. Pella then brought his ideas to the AIDP, which decided to debate the question

of an international criminal jurisdiction at its conference in Brussels in 1926. Besides Pella’s work, other international jurists had begun working out plans for an international criminal code, such as Spanish jurist Quintiliano Saldanha (1878— 1938), who presented his draft code in August 1925 at a course at the Academy of International Law in The Hague.'** However, there were two fundamental debates within the AIDP about an international criminal jurisdiction. The first concerned '2 Union Interparlementaire, Compte rendu de la XXIIIe conférence tenue a Washington du ler au 7 octobre et a Ottawa le 13 octobre 1925 (Lausanne: Payot, 1926), 47-50. '03 Vespasien V. Pella, “La criminalité de la guerre d’agression et l’organisation dune répression

internationale. Rapport présenté au nom de la Commission permanente pour |’étude des questions juridiques,” in Compte rendu de la XXIIIe conférence tenue a Washington du ler au 7 octobre et a Ottawa le 13 octobre 1925 (Lausanne: Payot, 1926), 238-9.

'04 Saldafia supported extending the competence of the Permanent Court to criminal matters: see Quintiliano Saldafia y Garcia Rubio, La justicia penal internacional (Madrid: Imprenta de Alrededor del mundo, 1923), 31-5; and Quintiliano Saldafia y Garcia Rubio, “La justice pénale internationale,” Recueil des cours (Hague Academy of International Law) 10 (1925): 223-429.

108 The Birth of the New Justice whether both states and individuals could be prosecuted.'” The second concerned which crimes should actually be included in an international penal code—only war crimes and possibly aggression, or also other types of crimes, such as piracy on the high seas, trafficking women across borders, counterfeiting, and cross-border theft. State co-operation to prosecute these crimes involved complicated questions of jurisdiction and the treatment of foreign nationals. Italy, Romania, and Poland were in the process of revising their criminal codes at this time, and the French penal code, based on the Napoleonic Code, was being scrutinized for its wide jurisdiction over French citizens who committed crimes abroad.' In Brussels, there was a convergence of several jurists who had been involved in previous projects, all concerned with the new justice in some way. The Greek jurist Politis participated; an important figure from the Commission on Responsibilities, he had backed an international tribunal for Bulgarian nationals in 1919, but had since changed his mind and now only supported a court to prosecute individuals for the crime of aggression.’ Bellot, the British advocate of an international criminal court for war crimes, took Politis to task for his dismissal of a future war crimes court, reminding him that many German crimes had gone unpunished. Furthermore, a future international criminal court would be the best way to prevent war crimes in the future.'"° The Greek judge Caloyanni, a member of both the ILA and

AIDP, supported an international criminal court, as did Pella, the architect of inter-state criminal law. De Vabres, the French criminal law scholar, supported an international criminal court too, but exclusively to prosecute states.'” After intensive discussions, the AIDP passed a series of resolutions outlining a new criminal

chamber within the Permanent Court of International Justice, which would be augmented with judges who were experts in criminal law. The court should be able to prosecute states or individuals for unjust aggressive war, as well as any violations of international law.''® It should also handle criminal cases in which states disputed their jurisdictions; crimes committed in a place where the sovereignty of the territory was in dispute; and “crimes of common law, which, due to the nationality of

the victim or the presumed authors, could be considered by them or by other States to be international offenses, and constitute a menace for the peace of the world.”''' ‘This suggested a fairly broad jurisdiction for the court: a body with the power, possibly, to deter war, prosecute controversial criminal cases when two

' See AIDP, Projet de Statut, 26. See also various jurists’ reports in Association Internationale de Droit Pénal, Premier Congres International de Droit Pénal. Bruxelles (26—29 juillet 1926). Actes du Congres (Paris: Librarie des Juris-Classeurs—Editions Godde, 1927), 366-471. Hereafter AIDP, Premier Congres, Bruxelles.

'6 See Donnedieu de Vabres, Introduction d létude du droit pénal international: essai d histoire et de critique sur la compétence criminelle dans les rapports avec létranger, 441-2.

'7 N. Politis, “Y a-t-il lieu dinstituer une juridiction criminelle internationale; et dans la supposition d’une réponse affirmative, comment lorganiser?” in AIDP, Premier Congres, Bruxelles, 416-20. '08 See Bellot’s remarks in AIDP, Premier Congres, Bruxelles, 578-9. '09 AIDP, Premier Congres, Bruxelles, 554-602. "10 This resolution was passed by a large majority in July 1926, though the exact vote is not specified in the records. See AIDP, Premier Congres, Bruxelles, 595. "1 Resolution Number 4, AIDP, Projet de Statut, 18.

Blueprints for International Criminal Courts 109 states wanted a guaranteed neutral venue, and deal with many types of international crimes, ranging potentially from violations of the laws of war to crimes that threatened “world peace,” which might mean political assassinations, bombings, and acts of sabotage against undersea telegraph cables. Yet the devil was in the detail, and the statute still had to be written. The AIDP formed a drafting commission, which met in January 1927, after the ILA had already finished its draft the previous July. The AIDP commission decided to use important pieces from the ILA project—the same number of judges (fifteen), the same voting process to ensure fairness, the right of all states involved in a case to place a judge on the bench, and a certain level of protection for the defendant, who could only be tried for an offense which was specified in his or her domestic criminal code—unless the crime was defined in an international convention, which would then trump the national law.''’” Pella and the AIDP insisted on a system in which precise infractions were specified in advance, upholding the Roman principle of nulla poena sine lege (no punishment without prior law), thereby overcoming

the problems and criticisms of the penalty clauses of the Versailles system treaties.''® Pella then produced a draft of seventy articles, and after a process of critiques, revisions, and meetings, the draft was completed on March 1, 1928.'" On the pragmatic level, Pella and the other jurists created a hybrid internationalstatist legal system that could win over state support. They recognized that establishing a criminal chamber within the Permanent Court was a large step, so they were gradualists. In 1926, Pella had warned that establishing a new system of international criminal justice could not be established in one stroke “from a magic wand.”'' ‘The system was supposed to take shape progressively, as states signed more and more conventions with each other that would give the international criminal court jurisdiction over an expanding group of crimes. The 1928 statute made several accommodations so that states would not be too rattled by the new system. Although the court would have the power to prosecute "12 See Article 37 of the Association Internationale de Droit Pénal’s 1928 Draft Code, AIDP, Projet de Statut, 43. 3 In the International Law Association project, Bellot had wanted to give the judges powers similar to those which English judges had under the common law system, but there were objections. As a result, the lawyers decided that an individual could only be charged with a crime that was specified in his or her own municipal code, which was seen as a way to protect individuals against acts that were not criminal in his or her own country. See International Law Association, Vienna Conference, 222-5,

279-80. ''4 For the members and details of the meeting dates, see Association Internationale de Droit Pénal, Projet de Statut d'une Cour de Justice Criminelle Internationale, 19—20. ‘The original drafting commis-

sion included Pella, Bellot, Caloyanni, Donnedieu de Vabres, Saldafa, Count Henri Carton de Wiart (1869-1951; former Belgian Prime Minister and Minister of Justice), Georges Leredu (1860-1943; French lawyer, parliamentarian, and former Minister of Hygiene), André Mercier (1874-1947; Swiss professor of international law at the University of Lausanne and president of the Franco-German Mixed Arbitral Tribunal between 1920 and 1926); and Jean André Roux (1866-?; French law professor at the University of Strasbourg and Supreme Court counselor). Several members were not able to attend the meetings, but Pella’s draft was sent to all of them, and some submitted their observations by February 20, 1927. I have been unable to locate these critiques, and contemporary officers of the Association Internationale de Droit Pénal have told me that the group has no archives. 5 AIDP, Premier Congres, Bruxelles, 570.

110 The Birth of the New Justice both states and individuals, the definitions of crimes would come from multilateral conventions and an international criminal code, which had not been written yet. This seemed to leave the issue of punishing states and leaders for illegal wars to the future. The 1924 Geneva Protocol had included a definition of aggression (written by Politis), and it declared that a war of aggression was an international crime, but it was highly speculative whether that formed a basis for actual criminal prosecution.''® The court would also be able to prosecute individuals for other types of acts—war crimes, crimes which needed to be removed from national courts so they could be prosecuted objectively, and “crimes and offenses committed in peacetime and liable to disrupt peaceful relations between states.”''” Whether this last group meant terrorism or ordering an aggressive invasion was subject to interpretation. Furthermore, the court would not have an independent prosecutor; the League Council would have the final say as to whether a case advanced to the

court.''® Only states could petition the Council to launch proceedings, so nonstate organizations representing minorities would not have been able to file charges

with the court.''!’ Finally, the draft statute did not create any mechanisms that would force a state to extradite its subjects or citizens, including heads of state. The state was simply required to comply.'”°

ATTEMPTS TO GAIN POLITICAL TRACTION With a statute in hand, it seemed the AIDP could rightfully argue that some problems of 1918-19 no longer existed: there was now a criminal court plan that had been scrutinized by two legal organizations, one practical and the other “scientific’; the plan aimed to create a court that was more neutral than the Commission on Responsibilities’ plan; German and Hungarian lawyers had helped draft the ILA version, on which the AIDP version was based; and the AIDP had built several safeguards into the court that would protect state sovereignty. Still, there was no generally established international criminal code, as the court's opponents in the League’s Assembly had duly noted in 1920. Given the minuscule progress in codifying international law in the 1920s, plus the logjams in the League concerning collective security and disarmament, it seemed reasonable, at least to Pella and his colleagues, to build the code gradually, convention by convention. In the meantime,

"6 See the dispute between Belgian international lawyer Henri Rolin and Donnedieu de Vabres in AIDP, Premier Congres, Bruxelles, 590-1. "7 Article 36 a), AIDP, Projet de Statut, 43.

"8 Articles 20 through 24 and Article 47, AIDP, Projet de Statut, 40-1, 45. "9 Article 24, AIDP, Projet de Statut, 40. '2° Tt would be up to the League Council to decide whether it should take action against a state which thumbed its nose at the court, and it was left up in the air whether League members would want to apply diplomatic, economic, and military measures against states which refused to deliver subjects. Pella stated that armed force could only be used as a policing action or as a constraint in accordance with a prior penalty, such as a blockade, an embargo, the severing of communication links, or the revocation of a state’s colonial mandates (which he thought could be especially effective). See Pella, La criminalité collective, 217-33.

Blueprints for International Criminal Courts 111 the court could be established for certain classes of crimes that were already recognized as crimes against the law of nations. However, during the late 1920s, the ILA and the AIDP gained no traction in the League of Nations with their plan for an international criminal court. The plan was too radical, did not serve Great Power interests, and was promoted by jurists who lacked vital political connections. Additionally, the jurists ignored broadcasting their ideas to the public and seem to have been isolated from popular anti-war movements.

On the legal front, the League was occupied by another major project, the attempt to secure U.S. adhesion to the Permanent Court. ‘This required revising the court’s statute, since the U.S. demanded the right to block the court from issuing an advisory opinion in any case deemed relevant to U.S. interests.'*! For this reason, the proposal for an international criminal court was not considered particularly important. In August 1926, Emerich Vadasz, a lawyer from Budapest and ILA member, sent the League Secretariat a brief legal analysis describing how a permanent international criminal court could be set up as a chamber of the Permanent Court. Hugh McKinnon Wood, a British attorney who was a counselor in the Secretariat's Legal Section, replied that the League was currently occupied with revising the Permanent Court’s statute and would not be able to consider his sug-

gestion.'”* In December 1928, the Council decided to appoint a committee of jurists to revise the court’s statute, and when they commenced work in March 1929, they concentrated on the American issue. Furthermore, there were a number of other unresolved legal and political obstacles to instituting a court. Powers such as Britain opposed attempts to define international offenses and unify jurisdictions, which will be described below. The League Covenant did not contemplate an international criminal jurisdiction, so that cornerstone document might have to be altered, which would be a major task. Most important, the League as a whole was occupied by more pressing problems. Committees and delegations were trying to negotiate a disarmament agreement, and during the same period, there was a revolt in the Assembly by small powers, which protested against the fact that Germany was given a permanent seat on the Council when it was invited to join the League.'” Although the AIDP’s draft had several provisions to guard against politicallymotivated prosecutions, many states around the globe remained intensely protective of their own legal systems. Between 1924 and 1926, a League committee studying the broader issue of whether international law could be codified (the project that Britain and Italy had so strongly opposed in 1920) took up the issue of whether states could unify their criminal jurisdictions. The central problem was that states such as Britain, the U.S., Denmark, and Portugal only claimed

1 FE P Walters, A History of the League of Nations (Westport, Connecticut: Greenwood Press, 1986

[1952]), 351-4. '22 Vadasz to League Secretariat, August 30, 1926, LNA/1328/53616/53616; McKinnon Wood to Vadasz, September 7, 1926, ibid. 3 Walters, A History of the League of Nations, 316-26.

112 The Birth of the New Justice jurisdiction over individuals who committed a crime on their territories. However, Japan, Russia, and many European states supported extra-territorial jurisdiction. They held that their courts could punish foreigners (not just their own citizens) “for acts committed abroad which are directed against the safety of the State or its financial credit.”'** Very few states reported back to the League that they were interested in unifying their criminal jurisdictions, and the author of a League report on the issue, Oxford jurist J. J. Brierly, was skeptical about whether the problem could be overcome.'” This influenced the attitude of the Legal Section of the League Secretariat, particularly that of McKinnon Wood, who always remained cool toward the idea of universal repression of crimes, not only because the issue was “not ripe” for codification, but because it could lead to anti-liberal laws hindering currency trading and political journalism. Generally in the 1920s and 30s, the Legal Section preferred new legal conventions for specific problems, not grand system changes and new institutions, such as the creation of an international criminal court. The jurists’ lack of political connections and Great Power support also hindered their efforts. In September 1928, Henri Carton de Wiart, Belgium’s former Prime Minister and president of the AIDP, submitted the group’s draft statute to the Secretariat. Even though he was then Belgium's Minister at The Hague, the Secretariat’s Legal Section refused to transmit it to the Council. In rejecting Carton de Wiart’s request, officials gave the highly bureaucratic reason that individuals could not call on the League to act. After that, Pella, who was appointed to Romania's delegation to the League in 1927,'”° had the Romanian delegation submit it. It went nowhere, probably because Romania lacked the military and economic resources of a Great Power and did not sit on the Council.'’” Although there were prominent French jurists who participated in the AIDP, the French government was more interested in security pacts and military alliances against Germany than a collective security system backed by an international criminal court that could charge states with aggression. As for Bellot, he had connections to the British legal establishment and said in 1926 that government officials backed his idea for an international criminal court for war crimes. However, he was not involved in the League and died in 1928. The Foreign Office and British military opposed the codification of international law generally, and Britain only agreed to the compulsory jurisdiction of the Permanent Court in 1929. With criminal law projects, the

124 See the October 1925 report by Oxford jurist J. J. Brierly in League of Nations, “Progressive Codification of International Law. Criminal Competence of States in Respect of Offences Committed Outside Their Territory,” December 14, 1925 (Geneva), C.50.M27.1926.V, 2. His report can also be

found in LNA/1294/47294/47294. 25 Brierly, “Progressive Codification’, 4. '26 Pella was appointed under Foreign Minister Nicolae Titulescu, who skillfully worked to tame

conflicting Balkan nationalism through the Little Entente and tried to resist pressures from Fascist Italy and later from Nazi Germany by taking an active role in the League. Pella remained a diplomat after Bratianu resigned in November 1928. See Stephen Fischer-Galati, Twentieth Century Rumania, 2nd edn (New York: Columbia University Press, 1991), 44, 49; Constantin I. Turcu, “Centenar Vespasian V. Pella,” Magazin Istoric, no. 1 (January, 1997): 51. "7 For the League correspondence, see LNA/1983/7374/7374.

Blueprints for International Criminal Courts 113 British preferred a piecemeal approach that would not interfere with the right to grant asylum and their own system of common law. Finally, the AIDP did not attempt to build public support for its project, as it considered itself a scholarly, “scientific” organization. It opened its conferences to government representatives (often from the ministries of justice) and police officials, who represented positions of authority, not the demands of the masses. Diverse movements of pacifists and religious organizations were active in this period, pushing governments to sign the Kellogg-Briand Pact of August 1928, which outlawed war as an instrument of national policy but did not include any enforcement measures. Although the AIDP jurists who favored an international criminal court with jurisdiction over aggressive war saw this pact as another stepping-stone toward the codification of a law against aggression, it does not appear that the AIDP worked with popular peace movements to create an international criminal court.

THE UNIFICATION OF CRIMINAL LAW CODES: A SECOND STRATEGY Once it was clear that states and the League were not ready to establish an international criminal court, a section of AIDP jurists pursued a second strategy: persuade

states to modify their penal codes so they defined the same types of crime and punishments, then use this unified basis to promote the universal repression of certain crimes. This was the strategy behind the AIDP’s decision in 1928 to form a new organization, the International Bureau for the Unification of Criminal Law, led by Pella and Carton de Wiart, with the express purpose of unifying common penal codes and trying to influence state legislatures to implement them. This group began as a nucleus of continental European jurists interested in criminal law and criminology, then expanded in the 1930s to include jurists from Egypt, Turkey, many South American states, and eventually the Soviet Union. British jurists, however, remained skeptical of developments that departed from their common law traditions, only attending the Bureau's last conference before World War Two in Cairo in 1938.'*8 The unification movement was influenced by an Italian reform movement in criminal law, criminological positivism. This began in the late nineteenth century and continued after the First World War, when Italian jurists began trying to revise the Italian Penal Code of 1889.'” In this period, state statistics showed that crime

8 On the group’s history, ideas, and conferences, see Le Bureau International pour lUnification du Droit Pénal (Louvain: Pierre Mafrans, 1934), LNA Brochure and Pamphlet Collection: Droit International-Criminal, Location: B 65/shelf 10, Box 4/folder 15, No. 250; Bureau International pour Unification du Droit Pénal, Xe Anniversaire, 1928-1938 (Paris: Editions A. Pedone, 1938). 9 Enrico Ferri, Criminal Sociology (London: T. Fisher Unwin, 1895); Enrico Ferri and Ernest Untermann, The Positive School of Criminology: Three Lectures Given at the University of Naples, Italy, on April 22, 23, and 24, 1901 (Chicago: C. H. Kerr & Co., 1908); Raffaele Garofalo, La criminologie: étude sur la nature du crime et la théorie de la pénalité (Paris: F. Alcan, 1888); Raffaele Garofalo, Criminology (Boston: Little, Brown, 1914).

114 The Birth of the New Justice was increasing (perhaps due to increased urbanization, industrialization, and the breakdown of traditional family structure). The Italian positivists believed that the old penal system was ineffective in stopping the trend because criminals either went unpunished, or sentences were imposed without changing criminals’ behavior. The essence of the movement was a new psychological approach to the crimi-

nal, whose crimes were seen as a symptom of a troubled personality, due to alcoholism or mental infirmity, for example. The positivists believed that criminal penalties should be imposed as a means of “social defense,” both to protect honest members of society from social delinquents and to prevent recidivism.'*° These reformers, such as Enrico Ferri and Raffaele Garofalo (Procurator-General of the Court of Cassation in Turin), believed that punishments should be tailored to the individual: they should be less harsh for minors and stronger for habitual criminals.'°' Penal systems should employ preventative detention and institutionalization (mesures de stireté), treat criminals as social delinquents, and reform them through industrial or agricultural work.!*

In the AIDP during the 1920s, the Italians were probably more interested in disseminating their ideas about social defense than unifying all criminal codes. Garofalo supported the creation of an international penal code,'’ but Ferri did not, maintaining that states’ customs were too different from one another.'™ Pella,

who had called for the unification of criminal law in 1925, wanted to continue Garofalo’s idea for an international code. Pella believed that all common law

'8° Enrico Ferri, “The Reform of the Italian Penal Code,” Law Quarterly Review 36 (1920): 292-302. '5! Ferri, “The Reform of the Italian Penal Code.” Ferri, unlike Pella, was a socialist, part of a faction

of “intransigent revolutionaries” in Italy in the 1890s. They believed in constant revolutionary agitation and rejected all political compromise. Ferri later became a moderate, took a major role in the Italian Socialist Party, and then became a senator under Fascism. See Antonio Landolf, “Birth of Italian Socialism: Reform of Revolution?” in Jtalian Socialism: Between Politics and History, ed. Spencer M. Di Scala (Amherst, MA: University of Massachusetts Press, 1996), 14-16. 'S2 "There were other concepts as well. Judges should have greater flexibility in the punishments they

imposed (tailoring them to the criminal’s situation), punishments should be reduced for attempted crimes (versus completed ones), and the system should introduce both the concepts of the suspended sentence and the indeterminate sentence. '83 Garofalo envisioned an international criminal code that would cover common crimes, crimes that occurred in areas that were not part of any state’s territory (piracy and cutting undersea communications cables), and crimes committed by transnational rings (such as counterfeiting and human trafficking, known as the white slave trade.) In his concept, “civilized” states would agree to punish these crimes if they occurred on their territory, regardless of the nationality of the alleged perpetrator. Like many European criminal jurists, he supported universal criminal laws against communism. However, he was more liberal than Pella, in that he wanted to exclude inciting strikes and disseminating propaganda against a state from this code. And unlike Pella, he did not support an international criminal court that could prosecute states and heads of state for the crime of aggression. The decision to go to war involved more than one person, and it was unfair to punish an entire state with economic sanc-

tions for the decisions of a government. See R. Garofalo, “Y a-t-il lien dinstituer une juridiction criminelle internationale, et dans la supposition d’une réponse affirmative, comment l’organiser?” Rapport présenté au nom du groupe Italien, Association Internationale de Droit Pénal, Premier Congres International de Droit Pénal Tenu a Bruxelles (26—29 juillet 1926). Rapports Préparatoires (Paris:

Marchal et Billard, 1926), 232-8. '54 Association Internationale de Droit Pénal, Premier Congres International de Droit Pénal. Bruxelles (26-29 juillet 1926). Actes du Congres, 603.

Blueprints for International Criminal Courts 115 offenders were anti-socials, people who could not adjust to the normal conditions of social life. They committed crimes regardless of territorial boundaries, and all

civilized states should punish them wherever they were apprehended.'*? The nationality of the criminal and the victim were irrelevant. ‘This transnational view

of repression, dealing with both common crimes and political crimes, added a

different component to international law from what the Commission on Responsibilities had contemplated when it discussed the ideas of “the new justice” in 1919. In 1927, the unification movement got underway. ‘The governments of Poland, Romania, Czechoslovakia, Greece, Italy, Spain, and the Kingdom of the Serbs, Croats, and Slovenes sent delegations of jurists to Warsaw for the first International Conference for the Unification of Penal Law. French and Belgian jurists also attended as experts. The Eastern European states were especially interested in the unification movement, because they were in the process of centralizing their administrations and revising their penal codes to cover territories they had acquired from the empires defeated in World War One.'*° Czechoslovakia, for example, passed a series of laws in the 1920s to institute the ideas of social defense, replacing

Austrian and Hungarian penal legislation.'”” In Warsaw, the European jurists worked out texts that defined concepts such as territoriality, legitimate defense, and attempted crimes, but they also hammered away at defining new crimes against the law of nations, believing that states could eventually agree on certain international offenses that they should all punish. In 1928 they formed another organiza-

tion, the Institute for the Unification of Penal Law, whose goal was to obtain practical results that could be presented to the League.'** Since the AIDP had been unable to interest the League in an international criminal court, the criminological jurists now believed that “in order to grapple with that difficult problem one should not have only one string in one’s bow, but ought to have another one if possible,” as Caloyanni, the Greek judge who belonged to both the ILA and AIDP, told the Grotius Society in Britain in May 1928. “We find

that many nations in the world are now drafting new national penal codes, and immediately the following idea struck our minds: would it be possible, without prejudicing in any way all that has been done and is being done by the other institutions for the creation of an International Criminal Court, to find some other way of bringing the various nations together by considering their penal laws as forming a criminal common law between themselves, and by unifying their criminal laws?”'*’? He believed that if states revised their penal codes to have identical 35, Pella, La criminalité collective, 157-9. '36 Ancel lists ten European states which introduced new penal codes in the 1920s and ’30s. See Ancel, “The Collection of European Penal Codes and the Study of Comparative Law,” 362-3, n. 89. '57 Auguste Miricka, “Létat legislatif actuel dans la république tschécoslovaque,” Association Internationale de Droit Pénal, Premier Congrés International de Droit Pénal Tenu a Bruxelles (26—29 juillet 1926). Rapports Préparatoires, 27-33.

'38 Vespasien V. Pella, Vers [unification du Droit Pénal par la création d'un institut international aupres de la Société des Nations (Paris: Librairie du Recueil Sirey, 1928), 14 ff.

'89 M.A. Caloyanni, “An International Criminal Court,” Transactions of the Grotius Society 14, Problems of Peace and War, Papers Read before the Society in the Year 1928 (1928): 75.

116 The Birth of the New Justice articles, the defendant would always know the law wherever he or she was being prosecuted. Judges of various states would refer to each other’s decisions and gradually assimilate each other's principles. If the seven states whose governments sent delegates to the Warsaw Conference unified their codes, then this group would eventually form an important nucleus.'*° This would further the cause of developing an international penal code, which was the foundation on which an international criminal court would be based. Various state governments either showed no interest in the project of unifying their criminal jurisdictions, or they had extremely different ideas about which types of crimes should be universally repressed. Although the International Bureau for the Unification of Criminal Law wanted to concentrate on “common crimes,” not political crimes, the two categories were intertwined for many governments, as they contended that foreign nationals committed certain crimes abroad in order to injure their currency, their social structure, or their reputation. For example, Brazil wanted an international convention based on its 1875 law, which allowed the state to punish foreigners who offended the dignity of the nation or counterfeited Brazilian bonds and currency, if the perpetrator either entered Brazilian territory or was extradited to Brazil.'*' The Association of Hungarian Jurisconsults (who stated they were not speaking for their government) supported a universal criminal jurisdiction for “treason, sedition, counterfeiting, anarchist intrigues, revolutionary organizations seeking to overturn society; since all these infractions are directed against the bases of the social order.”!** The Hungarians wanted to internationalize their own anti-Bolshevik laws of 1921, instituted after Béla Kun and the Hungarian Communists were defeated.

By June 1928, it appeared that the unification movement was encountering significant resistance in the League. A League subcommittee on penal matters— headed by Walter Schiicking, a German liberal jurist and pacifist who had headed Germany’s post-war inquiry into whether its military had committed war crimes— studied whether states might be able to negotiate an international convention on any aspect of criminal law. This subcommittee’s work was already restricted by its parent body, which had determined that an international extradition agreement was off the table. ‘The subcommittee recommended a minimalist program: possibly a convention that would standardize ways of requesting witnesses and evidence, serving writs, and communicating penal sentences. Unifying procedures was a far cry from harmonizing definitions of crimes and punishments and agreeing on a list of crimes that required extradition. Still, several states dissented because they were concerned about extradition, political crimes, and the uniqueness of their own systems, so the project did not advance.'** Therefore, at this stage, states firmly wanted to retain their sovereign powers of jurisdiction. 40M. A. Caloyanni, “An International Criminal Court,” 78. ‘4. Clovis Bevilaqua, January 25, 1927, LNA 1294/57845/47294. ‘Victor Szondy, Ministerial Secretary of the Association of Hungarian Jurisconsults, “Compétence

criminelle des Etats en raison d’infractions commises en dehors de leur territoire,’ October 11, 1927, LNA/1294/62438/47294. 3 League of Nations, “Committee of Experts for the Progressive Codification of International Law, Second Report to the Council of the League of Nations on the Questions Which Appear Ripe

Blueprints for International Criminal Courts 117 However, this was not only due to abstract concerns about sovereignty, since by the late 1920s, many countries in Europe, Latin America, and Asia were imprisoning people on the basis of their political beliefs and religious views. The Bolsheviks under both Lenin and Stalin imprisoned “deviationists,’ Whites, kulaks, and social “undesirables” in the gulags. The Italian fascists arrested and imprisoned socialists and communists, putting them in detention camps. Austria and Germany jailed

communists and trade unionists for participating in strikes and riots, handing down heavier sentences than for right-wing nationalist groups that committed political murders. Britain’s imperial government in India arrested and prosecuted religious groups, nationalist revolutionaries, and communists in Bengal and the Punjab. Japanese police arrested and imprisoned communists and anarchists in the mid-1920s, and after the earthquake of 1924, they incited “vigilance committees” that lynched Koreans falsely accused of looting and murder.'** In this atmosphere of repression and social unrest, many states did not want any outside interference in their internal affairs, unless they could convince other states to help deliver the accused.

THE MOVEMENT NARROWS ITS SCOPE TO COUNTERFEITING By the end of the decade, the international criminal jurists’ only successful project was the 1929 Convention for the Counterfeiting of Currency. This had nothing to do with issues that had seemed so pressing earlier—the institution of an international criminal court and an international criminal code to prevent aggressive war and punish individuals accused of violating the laws and customs of war. The interest in counterfeiting was motivated by fears in France and the Little Entente that the Hungarian government, which wanted to revise the Treaty of ‘Trianon, was using underground means to destabilize neighboring governments. This was based on revelations in June 1926 that Hungarian government and military officials had counterfeited thirty million French francs, and then orchestrated a plan to distribute them in the Netherlands, Sweden, Italy, and Belgium.'* The plan was only executed in the first location, but it rang alarm bells for jurists and anti-revisionist politicians. The perpetrators had declared their patriotic intentions during trials in Hungary. France, which did not have legal standing in the proceedings, was

for International Regulation (Questionnaires Nos. 8 to 11),’ June 27, 1928 (Geneva, 1928), A.15.1928.V, p. 12 on Annex to Question 8. See also the replies of Austria, Switzerland, and the U.S. in Annex II. Replies from Governments to Questionnaires Nos. 8 to 11. This is contained in League of Nations Archives, Societé des Nations, Assemblée, 9, 1928, Documents 7—25, pp. 59, 85, 88.

],

'@ International Committee for Political Prisoners, Political Persecution Today (New York,

eA German right-wing organization originally planned the caper, but after the Locarno agreements, Field Marshal Erich von Ludendorff offered the plan to Hungarian Prince Lajos Windischgraetz. See Andor Klay, “Hungarian Counterfeit Francs: A Case of Post-World War I Political Sabotage,” Slavic Review 33, no. 1 (1974): 107-13.

118 The Birth of the New Justice concerned that they would be exonerated or given light sentences.'*° This turned out to be correct. Even before the verdicts, jurists and legal advisors noted that some states did not have the same penalties for counterfeiting foreign currency as their own currency. France initiated a process in the League of Nations to start drawing up an international convention to harmonize states’ anti-counterfeiting laws and create an international police bureau to share information about counterfeiters and counterfeiting techniques. However, it did not support the creation of a criminal chamber in the Permanent Court of International Justice, but rather the co-ordination of national jurisdictions.'*’ The League questioned banks around the world, and twenty-seven replied that they had confiscated a total of three million dollars in counterfeit currency between 1924 and 1927.'8 A special commission of criminal law experts, bank officials, and prosecutors were appointed to prepare a draft convention, which Pella fashioned in 1927. ‘The rhetoric surrounding the issue was alarmist. Pella, for example, claimed that counterfeiting was becoming a more effective form of terrorism than bombings and assassinations. In a speech at the Law Faculty at the University of Paris in January 1928, he argued that the effects of blowing up a building were short-lived, while counterfeiting, “a level-headed, refined form of criminality...strikes at the heart of the social and political organization of a determined state.” The basic idea behind the convention was that states would agree to punish counterfeiting currency whether the money was domestic or foreign. They would also agree to prosecute other related acts, such as distributing currency and trafficking in tools and materials used for counterfeiting. This solved potential jurisdic-

tional conflicts when the currency was fabricated in one place and spread to another, since these would be treated as separate acts that could be prosecuted by different states. Negotiated by thirty-four states in April 1929 (seven months before the stock market crash), the convention still stands today. However, for the purposes of this analysis, what is most important is that jurists and League delegates were unable to reconcile territorial and extra-territorial jurisdictions and were unable to agree on whether counterfeiting should be absolutely excluded from the class of crimes that allowed political asylum. The solution in the anti-counterfeiting convention was a victory for liberal states that wanted to preserve political asylum. It stated that states had certain obligations to punish nationals who committed counterfeiting abroad, yet essentially there was no absolute obligation to extradite them. A state could handle an extradition 4° Letter from Briand to Secretary General, June 5, 1926, in League of Nations, Proceedings of the International Conference for the Adoption of a Convention for the Suppression of Counterfeiting Currency.

Geneva, April 9th to 20th, 1929, (Geneva), C.328.M114.1929.II, Annex I, 219. Hereafter, League of Nations, Proceedings... Suppression of Counterfeiting Currency. ‘47 See the statement of Paul-Boncour at the Fourth Meeting of the Fortieth Session of the Council, held in Geneva on Thursday, June 10, 1926, League of Nations, Proceedings... Suppression of Counterfeiting Currency.

48 Ernestine Fitz-Maurice, “Convention for the Suppression of Counterfeiting Currency,” The American Journal of International Law 26, no. 3 (1932): 534-5. 9 Pella, Vers [unification du Droit Pénal par la création d'un institut international aupres de la Société des Nations, 9. Pella had been a student at the Law Faculty’s Institute of Criminology.

Blueprints for International Criminal Courts 119 request in accordance with its own laws, and it was not prohibited from granting asylum on the grounds that the crime was political.!”° During the negotiations, Pella maintained that counterfeiting should not be considered a political crime, a slippery category of crimes which was frequently excluded from extradition agreements. Additionally, since some states would only extradite a suspect who committed an alleged crime abroad if that act was defined as a crime in its own code, Pella wanted to ensure that counterfeiting foreign currency was a crime in all states. He therefore insisted on specific administrative procedures to facilitate extradition when a state did not have provisions to try a

national who committed a crime abroad and then returned to his or her home country. At the base of his argument was his view that counterfeiting, as a new form of terrorism, attacked the “general confidence in money as an international instrument of exchange, and thus affected the interest which every country had in ensuring the security of international circulation.”'?! Because the consequences of the crime were international, states should prosecute it in a uniform way, according to principles of social, economic, and political defense. Ugo Aloisi, who represented fascist Italy in the League and was “President de Section” of the Appeals Court in Rome, argued that existing bilateral treaties concerning extradition were sufficient. Actual cases involving political offenses were rare, he said, and the question of extradition in connection with counterfeiting

should be put off. Pellas main opponent was British international lawyer and League delegate Sir John Fischer Williams, who wanted to preserve Britain's right to offer asylum. Fischer Williams asserted this was an ancient tradition which the British “were not at liberty—he might even say were not likely—to sacrifice very

lightly”? ‘This was an important British position that will appear again in this history—when Pella and Fischer Williams stood on opposite sides of a debate in the mid-1930s about the repression of terrorism. The British view prevailed in the negotiations, although states that were concerned about the potential abuse of asylum for counterfeiting won some concessions. The convention included an optional protocol that required the signatory states to treat counterfeiting as a common crime not eligible for political asylum. Gradually, by the end of the 1930s, both the convention and optional protocol were ratified or acceded to by most European states across the political spectrum (save France and Britain), Turkey, and several Latin American states.'*? The contentious °° For a more detailed discussion of the issues of territorial competence, the handling of nationals and foreigners, and the question of whether counterfeiting could be considered a political crime, see Fitz-Maurice, “Convention for the Suppression of Counterfeiting Currency,” 541-6. 1 League of Nations, Proceedings... Suppression of Counterfeiting Currency, 55-8. '? League of Nations, Proceedings... Suppression of Counterfeiting Currency, 58.

3 "The convention and protocol came into force in 1931. Other signatories included Nazi Germany, fascist Italy, and the Soviet Union. The United States signed both parts but never ratified them. France and Britain ratified both in 1958 and 1959, respectively. See United Nations. Treaty Series, “International Convention for the Suppression of Counterfeiting Currency. Geneva, 20 April 1929. Ratifications or Definitive Accessions,” ; United Nations. Treaty Series, “Protocol to the International Convention for the Suppression of Counterfeiting Currency. Geneva, 20 April 1929. Ratifications or Definitive Accessions,” .

120 The Birth of the New Justice problem of political crimes would continue to dog the criminal jurists’ efforts in the 1930s, an era characterized by the polarization of political ideologies, the rise of extremist nationalism, and covert espionage operations. While a variety of states always produced rhetoric about the obligation to prosecute and punish heinous crimes, many did not want to be locked into a legal system that would put their nationals in the hands of a court whose intentions and methods they did not trust.

THE POSITION OF THE INTERNATIONAL CRIMINAL LAW MOVEMENT AT THE END OF THE DECADE By the end of the 1920s, the ideas of the new justice, the main advocates of those ideas, and the roads for implementation had been transformed. The European majority on the Commission on Responsibilities had held that it was legitimate for

the victorious side to prosecute nationals from the defeated side for violations of the laws and customs of war, and the “laws of humanity,” in order to re-establish the moral order and the efficacy of pre-existing international law. Descamps’ vision altered this, in that his international criminal tribunal would have been independent of the belligerents, since it would have been part of the new Permanent Court of International Justice. He also changed the court’s purpose: to maintain international security and protect the status quo against revolutionaries and other threats to the political and economic order. Therefore, a conservative tendency seemed to have emerged. The ILA’s blueprint, first developed by Bellot, concentrated mainly on war crimes in order to correct the flaws in the Versailles system treaties and, from Bellot’s point of view, the disappointing result of the Leipzig trials. The court must be neutral, use experienced criminal court judges, and work from a defined statute. Simultaneously, as the ILA codified the new justice, its lawyers took a pragmatic approach to make the plan palatable for states. Only states would be able to file charges, and the court would not get involved in criminal prosecutions to deal with state-sanctioned violence against minorities. The threat of prosecution was supposed to deter violations of the laws and customs of war, not protect the rights of individuals or minority groups against their own governments; this was not a court of “human rights.”

The most extensive transformation of the new justice was undertaken by the criminological jurists in the AIDP, who were more interested in preventing war than punishing war crimes. They combined some of the concepts of the new justice with the ideas of social defense and criminal repression to create a new field, international criminal law. In the process, they addressed their own political and social concerns: a fear of an anarchic political order that lacked an enforceable system of collective security, an anxiety about rising transnational crime, and a belief that unifying criminal jurisdictions would reduce inter-state friction. They altered the new justice from a method of legal retribution for war crimes into a system of enhanced, collective state security. The point was not simply to restore nineteenth century moral standards, as the Paris Peace Conference had hoped; the goal was to uphold the post-Versailles political order and attempt to inoculate mass

Blueprints for International Criminal Courts 121 society against moral disorder and revolution. This too had both liberal and conservative aspects.

The organizations that carried out these transformations may be surprising to some readers. The League of Nations’ Assembly rejected even the future study of Descamps’ plan for an international criminal chamber in the Permanent Court. During the 1920s, the League’s Secretariat was very cool toward to the idea of an international criminal court, but it was partly taking its cues from the messages it received from state delegations, which could not agree on precisely which crimes should be universally repressed. ‘This left the intellectual development of the criminal court idea to the ILA and to the AIDP. The latter had the broadest criminologi-

cal agenda, including developing an international criminal code and unifying states’ criminal jurisdictions. The Red Cross movement did not become the main vector for criminal enforcement of the Geneva Convention, operating in a different realm from the AIDP. National Red Cross societies had believed in 1920 that a neutral commission, which would investigate violations of the Geneva Conven-

tion, could reveal the truth of atrocity accusations and reconcile the divided Red Cross movement. Entente states, however, did not want to hand over any information to their Red Cross societies, nor did they trust a neutral Red Cross commission which they could not control. As a result of this failure, the International Committee of the Red Cross decided it should not sink resources into investigations of violations; it should instead work on expanding the laws of war to cover prisoners of war and civilians. In this way, Red Cross lawyers followed a separate path from the criminological jurists. The fact that the AIDP was unable to implement any of its ideas, save for a set of new international rules to prosecute counterfeiters, can be interpreted in various ways. On the one hand, the League was not receptive to its plan for an international criminal court, so this catalyzed the “second strategy” of unifying states’ penal codes, which the International Bureau for the Unification of Criminal Law pursued. For legal and political reasons, the roads to achieving an international criminal jurisdiction were blocked. Pella’s utopian vision to control the activist corps that could take over a state and drive its population to aggressive war seemed unachievable. On the other hand, Pella and his colleagues had found a small issue, counterfeiting, which spoke directly to state governments across the political spectrum. The anti-counterfeiting convention itself did not bite off too much, so perhaps the pathway through the League was not dead after all. The great question was whether there was another vexing issue, directly affecting state security, which the AIDP and Bureau could use as a platform to advance their ideas. The international criminal jurists in the late 20s were already discussing a crime that recharged the movement in the 1930s and drew greater interest from governments: international terrorism. Its repression served some states’ domestic political and international security interests, and they could make a show on the League stage that they were co-operating internationally to solve a complex problem. As we will see, this project again bore intellectual fruit and paper documents, but did not induce political change, effective repression, or a solution to the root causes of European terrorism in the 1930s.

International Terrorism in the 1920s and ’30s: The Response of European States through the League of Nations and the Attempt to Create an International Criminal Court The legal projects analyzed up to this point have dealt with three different concepts of security. The first was the concept that persons involved in an international war or affected by one—wounded or sick soldiers, medical personnel, and civilians under occupation—should be secure from further unnecessary violence. It is true that the Commission on Responsibilities, Red Cross societies, and international criminal jurists wanted to deal with violations of the laws and customs of war in different ways: post-war trials; neutral investigations; or a permanent international

criminal court. However, an idea common to all of them was the attempt to reassert that violence in war should be limited to combat between officially constituted militaries, following codified and customary rules, and should not affect aid workers and civilians. This was not always pure humanitarianism and Christian charity: some militaries believed stricter adherence to the rules could prevent a spiral of out-of-control reprisals; some state officials feared that attacks on civilians under occupation destroyed their morale or attacked the reproductive basis of the nation; and some jurists feared that unjust war crimes trials and post-war investigations might prevent reconciliation after a war was over. Nevertheless, the proposed solutions were intended to deal with war-time violence. A second concept was that criminal prosecution could be used to secure international peace by preventing war itself. Instead of merely trying to avoid war by creating a court of arbitration or international court to adjudicate inter-state conflicts, or create a league of states that would jointly agree to defend one of their members against an aggressor, the Committee of Jurists and the Association Internationale de Droit Pénal discussed plans to criminalize aggressive war. Here, security meant protecting the existing international order (the post-Versailles borders), including the division of spoils from World War One and the territory given to new and enlarged states. The third security concept was that the authority of state governments and new international organizations had to be protected, and criminal enforcement of new and existing international laws could possibly achieve this. According to this view, post-war governments should work together to ensure that socialist revolutionaries, anarchists, cross-border criminal gangs, and revisionist

International Terrorism 123 counterfeiters were prosecuted wherever they moved. Hence, Descamps wanted to ensure that “Sovietists” who attacked League officials could be prosecuted for committing a crime “against the international order;” Pella maintained that trade unions were just as dangerous as the mafia; and other international criminal jurists wanted states to agree to treat counterfeiters of foreign and domestic currency in the same way. Furthermore, police forces wanted to regularize and bureaucratize their information-sharing networks so that they could more efficiently cooperate to repress inter-state crime—without the hindrance of state officials in foreign ministries. '

One can analyze the 1937 Convention for the Repression and Punishment of International Terrorism, negotiated through the League of Nations, with two of these security concepts in mind. In the late 1920s and 1930s, international criminal jurists developed the concept of “crimes constituting a common danger,” which provided the legal basis for defining international terrorism. When special committees in the League of Nations negotiated an anti-terrorism convention and an

optional international criminal court to prosecute international terrorists in response to a major assassination in 1934,’ they partly used this concept (under the influence of Vespasien Pella) by defining terrorism so that the motive and political ideology of the perpetrator were irrelevant. The negotiators defined terrorism as “criminal acts against a State and intended... to create a state of terror in the minds of particular persons.” Following the lead of the international criminal jurists, the

League negotiators held that terrorism should no longer qualify as an act that entitled the perpetrators to political asylum; they wanted it to become a “common crime” subject to extradition. The negotiators who approved of this idea worked within the second security concept—preventing a war that might stem from an extradition dispute—as well as the third security concept—protecting the authority of state government. Their overall solution called for states to pass new laws to control weapons and passports; states were also supposed to establish information bureaux about terrorists and share that information with each other.’ The goal was a cooperative system to combat terrorism. ‘This was perceived to be a serious problem in the late 1920s and ’30s because of a string of ultra-nationalist bombings and assassinations, a number of communist attacks, and the post-war appearance of armed groups, with either national separatist or irredentist goals, which were supported by outside states. International criminal law in this situation was supposed to serve state security and jointly strengthen states against their homegrown enemies who then fled abroad. It was not concerned with protecting people against the violence of war or with protecting political or civil rights: it was ' Mathieu Deflem, Policing World Society: Historical Foundations of International Police Cooperation

(New York: Oxford University Press, 2002), 17-26, 123, 148-51, 215, 225-30. * For the text of both conventions, see League of Nations, Proceedings of the International Conference on the Repression of Terrorism (Geneva, 1938), C.94.M.47.1938.V., 4-33. (Hereafter, Proceedings.)

By 1938 the anti-terrorism convention was signed by Albania, the Argentine Republic, Belgium, India, Bulgaria, Cuba, the Dominican Republic, Egypt, Ecuador, Spain, Estonia, France, Greece, Haiti, Monaco, Norway, the Netherlands, Peru, Romania, Czechoslovakia, Turkey, the USSR, Venezuela, and Yugoslavia. ‘The criminal court convention was signed by Belgium, Bulgaria, Cuba, Spain, France, Greece, Monaco, the Netherlands, Romania, Czechoslovakia, the USSR, and Yugoslavia. > See Articles 3 and 13-16 in Proceedings, 6-7.

124 The Birth of the New Justice mainly designed to protect state officials and functionaries who were the targets of that violence—and show domestic populations, who also sometimes became the victims, that governments had the problem under control. International criminal law proved that it could be politically flexible in the interwar period, creating a framework that attracted Balkan states with minority problems, the Stalinist USSR (which was trying to eliminate Trotskyites), fascist Italy (which wanted to continue repressing leftists), and Latin American states (which also wanted to repress social revolutionaries and communists.) The main opponent was liberal Britain, which, despite its need for tools of colonial subjugation, did not want to participate in a system which might criminalize persons and groups for actions that were not criminal under British law. Although the system was never actually implemented, the idea of trying to eliminate political asylum for certain crimes, as well as creating information bureaux, were concepts that jurists such as Pella and Lemkin later supported in the 1940s for the Genocide Convention. Furthermore, the project shows that ideas from “the new justice” were indeed reshaped to fit changing social and political problems, and the international criminal law strand was concerned with

state and international security, motives that were distinct from movements to develop the laws of war or protect various forms of rights.

A COMPARISON OF EUROPEAN TERRORISM AND STATE RESPONSES BEFORE AND AFTER WORLD WAR ONE As sociologist Feliks Gross and historian Walter Laqueur correctly recognized in the 1970s, terrorism in itself is not a political ideology, but a political strategy that may be connected to a variety of political and social ideologies and justifications for violence.* European terrorism before World War I was frequently, though not exclusively, domestic, and states attempted to repress such activity within their own borders. Russian revolutionary terrorism (the Narodnaya Volya’s 1881 assassination of Czar Alexander IJ, and Social Revolutionary terrorism in 1905-06), German anarchist terrorism (the attempted assassinations of Kaiser Wilhelm I in 1878), French anarchist bombings in the 1890s, and Macedonian nationalist terrorism (the 1903 attacks in Salonika against Ottoman officials and citizens) were * Gross’s major concepts include a schema of types of terror (individual, mass, random, dynastic) and a schema of ideological goals (national liberation, social equality, anti-democratic revolution, racial/political purity). He also hypothesizes that the existence of a revolutionary party and the presence of activist/aggressive personality types are factors which precede the use of terrorism in the struggle against domestic autocracy (i.e. the Russian populists and the Social Revolutionary party) and in the terrorist struggle against democracy (i.e. Nazism and fascism). See Feliks Gross, Violence in Politics. Terror and Political Assassination in Eastern Europe and Russia (The Hague: Mouton, 1973). Laqueur agrees with Gross that terrorism is a tactic used with a variety of ideologies; he convincingly maintains that it is rarely effective as a method of social revolution. ‘The only truly successful terror, he claims, was that of the far right in the 1920s and ’30s, when it successfully intimidated populations and deci-

sively influenced politics. Nationalist-separatist terrorism may occasionally be successful, but its achievements are “problematic” because altered borders lead to new tensions when a national or ethnic

group formerly in a minority becomes a majority. See Walter Laqueur, Zerrorism (Boston: Little Brown, 1977).

International Terrorism 125 domestic affairs that did not turn into international crises, despite the late nineteenth century fear of international socialist revolution and the belief that all forms of anarchism led to nihilistic chaos. European states responded to actual terrorist events, as well as to their fears, with censorship, political policing, and the infiltration of radical groups—even occasionally going so far as to subsidize them and plant articles in their publications to justify further police repression.’ The development of domestic police forces began as a response to the 1848—49 revolutions, though police spying on suspect social elements existed in France prior to the French Revolution.® Extradition was governed by bilateral treaties, not multilateral treaties: states reserved the right to grant asylum for crimes they deemed “political,” though, during the latter half of the nineteenth century, some states had excluded the assassination of a head of state from this category. States accomplished this through bilateral treaties that employed a “Belgian clause.” The concept was developed after Belgium refused to extradite Célestin Jacquin to France for his attempted assassination of Napoleon II in 1854. In 1856 a Belgian-French treaty included a clause requiring extradition when a foreign head of state or his family was attacked. During the latter nineteenth century, states increasingly incorporated this clause into their extradition agreements, though there was no international law respected by all states, nor did the clause apply to other types of political crimes. Following the assassination of Alexander II, Russia wanted to hold a conference in 1881 to make assassination a non-political, extraditable crime, but the idea was rejected by Britain and France.’ Following World War One—itself sparked by a political assassination by a group of Bosnian Serb nationalists opposed to the Austrian annexation of Bosnia—cer-

tain types of terrorism continued, particularly ultranationalist terrorism and irredentist violence. There were also new developments. Stalin and his cohorts adapted revolutionary terror into their shaky state apparatus. Right-wing versus left-wing violence intensified in Germany, Austria, and Hungary, which had lost World War I and experienced failed communist revolutions. Ethnic and political violence crippled the new multi-ethnic Kingdom of the Serbs, Croats, and Slovenes.® Internecine violence destroyed the Internal Macedonian Revolutionary Organization (IMRO) organization, as a pro-Bulgarian faction and pro-communist faction engaged in endless rounds of vengeance assassinations. Whether a state was combating

> ‘The German police planted inflammatory articles in Johann Most’s anarchist newspaper Fretheit in the early 1880s and sent a spy to Switzerland in 1881 to establish an assassination fund for acts of “propaganda by deed” in Germany. The articles gave Minister of the Interior Robert von Puttkamer black-and-white “evidence” that he could present to the Reichstag to justify the need to renew legislation outlawing the Social Democrats. See Andrew R. Carlson, “Anarchism and Terror in the German Empire, 1870-1890,” in Social Protest, Violence and Terror in Nineteenth- and Twentieth-century Europe,

ed. Wolfgang J. Mommsen and Gerhard Hirschfeld (New York: St. Martin’s Press, 1982), 175-95.

° During the ancien regime, the French police spied on the ‘Libellistes’, a group of writers who wrote pamphlets and hack pieces that salaciously attacked the upper orders with libelous charges of sexual depravity. See Robert Darnton, The Literary Underground of the Old Regime (Cambridge: Harvard University Press, 1982), 140. ’ Giraud, M., “La question du droit d’asile,” December 4, 1934, LNA/3758/15805/15805. ® ‘The Kingdom was officially renamed Yugoslavia in 1929.

126 The Birth of the New Justice violent political actors or employing terrorist means against domestic political opponents, it continued to employ nineteenth century tactics of repression such as censorship, police surveillance, biased courts, and military action. In certain states, however, a new development appeared: the formation of extra-judicial paramilitaries (frequently connected to the military and police), either acting on their own or protecting political parties. There was a cultural change as well, a hardening of attitudes toward violence, brought on by the blood-letting of the First World War, the presence of socially disconnected veterans, and the friction created by stateless groups and newly created minorities.” There is no definitive study which summarizes the number, type, target, and motivation of international terrorist acts in the interwar period.'® Although government officials and the press were conscious of the variety of terrorist actions and

political murders in this period, most were treated as attacks with essentially domestic causes. Thus there was no collective European approach to communistcommitted murders and the much more extensive right-wing nationalist murders in Germany (including the murder of Foreign Minister Rathenau in 1922), Fascist squadristi violence in Italy (culminating in the murder of Socialist Deputy Matteotti in 1924), Ustasa (Croatian fascist separatists) train bombings and revenge killings in Yugoslavia, IMRO attacks in Bulgaria and Yugoslavia, or the Bulgarian communist bombing of Sofia’s Sveta Nedelya Cathedral in 1925. However, by the late 1920s, the international criminal jurists, followed by certain diplomats in the 1930s, believed a new international system was required. While international jurists before and after World War One contended that expanding cross-border communication and transportation required an international legal system to regulate these networks, international criminal jurists believed terrorists were benefiting from them and had to be checked. ‘They also noted that the international system was plunging into instability because the anti-revisionist states disputed the Versailles system borders and clandestinely subsidized armed groups. Throughout the interwar period, certain states pursued political goals by supporting foreign terrorists and granting asylum to them. Yugoslavia had given refuge to Austrian Nazi putschists, and the country supported terrorists in Bulgaria, Albania, and the Venezia Giulia.'’ Poland accused Czechoslovakia of supporting Ruthenians and Ukrainians in their nationalist struggle against “Polonization’” (as Emile Naggiar, the French Minister to Belgrade, called it), and Poland complained

to France that it was not until after the Marseille assassination that Czechoslovak

> On the social disintegration brought about by new post-war borders, the feeling that minorities were not only pitted against majorities but against other minorities, and the creation of stateless persons, see Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973), 268-9. '© An empirical investigation would be useful in checking the claim that terrorism was becoming internationalized in this period. Deflem simply notes that police believed this was the case and created a “motivating myth” that justified their plans for increased police co-operation in international bodies. See Deflem, Policing World Society, 142-52.

1987) 353 J. Sadkovich, [talian Support for Croatian Separatism, 1927-1937 (New York: Garland,

International Terrorism 127 police arrested the alleged assassin of Poland’s Minister of the Interior; the accused had found refuge in Slovakia.’ Technically, foreign support for terrorism was prohibited by Article Ten of the League Covenant, which required states to respect the territorial integrity and political independence of other states, but the progressive principle had not been directly enforced through an international system. Greek

diplomat and international lawyer Nicolas Politis, one of the organizers of the League of Nations Disarmament Conference (1932-34), attempted to include provisions that would have prohibited states from backing armed groups operating in foreign countries, but he was unsuccessful.

THE MARSEILLE CATALYST A collective response to international terrorism was crystallized by the UstaSa’s assassination of King Aleksandar of Yugoslavia and French Foreign Minister Louis

Barthou in Marseille on October 9, 1934. The main Marseille assassin, a trained Macedonian killer whom the Ustasa had hired from the nearly-defunct IMRO, had come to France with a false passport, and he was accompanied by three Ustasa operatives who were prepared to bomb the king’s motorcade if the main assassin failed in a gun attack.!° Since its birth in late 1929, the Ustasa had carried out bombing attacks on trains and committed revenge killings against Aleksandar’s regime,'* which had instituted a dictatorship in 1929, eliminating civil liberties, abolishing political parties, and cracking down on Croatian autonomists and nationalists with police repression.’? The group began as an armed separatist wing of the Croatian Peasant Party, a pacifist political party that had the vast majority of Croat support in the 1920s. Rather than operating from inside Yugoslavia, the Ustasa was a group of émigrés who had fled the country after 1929 and gained the support of Italy and Hungary, where they ran military-style training camps. Members were trained to use weapons and explosives; the group’s goal in its early period was to stimulate an uprising on Croatian soil against Yugoslavia’s Serb centralism. ‘The 1934 assassination failed to '2 Naggiar (Belgrade) to Laval, November 28, 1934, Ministére des affaires étrangeéres (France), Commission de publication des documents relatifs aux origines de la guerre 1939-1945, Documents diplomatiques francais, 1932-1939. Ire série (1932-1935), vol. VII (Paris: Imprimerie nationale, 1964), No. 161. 'S On the preparations for the attack and its aftermath, see Bogdan Krizman, Ante Paveli¢ i Ustase

(Zagreb: Globus, 1978), 132-230. ‘4 Sadkovich, [Italian Support, 141. Sadkovich determined that the group was probably formally created in late 1929, when the Croatian Peasant Party adopted a revolutionary policy and Italy began supporting the group, but only fully emerged as an armed group separate from the Croatian Peasant Party in 1932, when leader Ante Paveli¢ established the group’s principles. For a list of attacks that Yugoslavia attributed to the Ustasa between 1929 and 1934, see League of Nations, Official Journal, Eighty-third (Extraordinary) Session of the Council (Geneva: December, 1934), 1787-8. Hereafter Official Journal, Eighty-third Session.

'? On the Aleksandar regime’s methods of imposing a unitary Yugoslav identity to counter Serb, Croat, and Slovene identities, and the project’s failures, see Christian Axboe Nielsen, “One State, One

Nation, One King: The Dictatorship of King Aleksandar and His Yugoslav Project, 1929-1935” (Ph.D. Dissertation, Columbia University, 2002).

128 The Birth of the New Justice do this, as there were no attendant plans for a coup or an insurrection on Croatian territory. In fact, the Yugoslav government completely headed off any possibility of a takeover by effecting an orderly transfer of power to four regents and ensuring that the military took an oath of loyalty to Aleksandar’s eleven year-old son Petar II. Following the assassination, there were large, violent demonstrations at the Italian consulates in Split and Sarajevo, although these were directed against Italy, believed to be behind the assassination plot, not against the Yugoslav state."

Prior to the assassination, the fascist Italian government and the autocratic Hungarian government had clandestinely supported the Ustasa with money, passports, and weapons. Both sought to weaken the Yugoslav state, either to press territorial claims against Yugoslavia or to prevent it from increasing its power in the Adriatic Sea and Danubian Basin. The Austrian police also tolerated the pres-

ence of an UstaSa network on Austrian territory but did not directly aid the organization in terrorist actions. After the assassination, the Yugoslav government suspected all three states of having a hand in ordering the murder or having prior

knowledge of the plot. Subsequent research has showed that the trio was not directly involved, but all three had helped the Ustasa in certain ways. Hungarian officials provided passports and revolver licenses for some of the UstaSa operatives involved in the assassination; the Hungarian government also knew the Ustasa ran a paramilitary training camp in Hungary. ‘The Italian government allowed the UstaSa’s leader, the fascist Ante Paveli¢, to reside in Italy and establish paramilitary

training camps there. After the assassination, Mussolini refused to extradite Pavelié to stand trial in France (a decision upheld by the Court of Appeals in Turin),'” and the Austrian government refused to extradite another UstaSa leader, Ivan Peréevic, who resided in Austria and directed the Ustasa operatives’ travel plans from there. In the fall of 1934, the Yugoslav government became increasingly belligerent toward Hungary, ejecting Hungarian nationals from its territory and mobilizing troops on the Yugoslav-Hungarian border. European diplomats feared the situa-

tion might spark a regional war that could turn into another world war, with revisionist and anti-revisionist powers fighting each other. Yugoslavia filed a long prosecutorial memo with the League of Nations’ Council, charging that Hungary was directly involved in the attack to pursue a revision of the Versailles Treaty borders and had organized secret Croatian and Slovak military units intended to serve as an advance force ina revisionist war.'* The French government, however, did not ‘6 New York Times, October 12, 1934. '” Sadkovich, Italian Support, 246-8. '8 ‘The complete text of the memo was published as League of Nations, Request by the Yugoslav Government under Article 11, Paragraph 2, of the Covenant (Geneva), C.518.M.234.1934.VIL. See also Annex 1523e, Official Journal, Eighty-third Session, 1772-94. For the charge that Hungary was organ-

izing attack brigades, see the deposition of a Slovak named Vinco Mihalus, 1800-1807. Mihalus claimed he was recruited by Hungary to overthrow the Czechoslovak government. Hungary disputed this, claiming that he worked for both Slovak nationalists and Czech authorities. See Statement from the Assistant Prefect of Police, Heads of the State Security Control Section, League of Nations, Official Journal, Eighty-fourth Session of the Council (Geneva: February 1935), 292-5; Mihalus to Secretary General (Avenol), February 18, 1935, LNA/3642/16873/14883.

International Terrorism 129 want Yugoslavia to demand a League investigation of Italy because, although French police knew that Mussolini had backed the Ustasa, French diplomats were trying to negotiate a regional security agreement with Italy. The context here was that, in 1934, France sought allies against an increasingly powerful Nazi Germany, which was supporting Nazi movements in Austria and other revisionist paramili-

taries in Eastern Europe. Italy likewise sought security for its northern border, wanting to ensure that Austria was not taken over by Nazi Germany. ‘This was desperately in doubt, because only months before the Aleksandar assassination, Austrian Nazis had assassinated the authoritarian, clerical—fascist Austrian chancellor, Engelbert Dollfuss, during a failed putsch. The Central and Eastern European situation was fragile, and France, Britain, and Italy sought a diplomatic settlement for the Aleksandar assassination crisis rather than having the League Council conduct a full-scale investigation into all the states which supported the Ustasa. The French and British governments persuaded Yugoslavia to drop its demand that the League should investigate Italy; instead, the complaint should be limited to Hungary, which would serve as the “sacrificial lamb.” Behind the scenes, the powers

worked out a Council resolution that simply allowed the Hungarian government to conduct its own investigation of the affair without further consequences. A second part of the deal was that the League would have to pursue one of Yugoslavias minimum conditions for a deal: an international convention against terrorism.'’ The Yugoslav government was interested in this solution because during the early 1930s its secret police had tried to negotiate with police in neighboring states to arrest and expel Ustasa members, usually with very limited results. Additionally, the convention was supposed to prevent states from granting asylum to persons accused of assassinating heads of state, as Italy and Austria had done for Ustasa leaders. In a speech before the League Council in December 1934, French Foreign Min-

ister Pierre Laval announced that the right to political asylum for refugees should not be eliminated, nor should public liberties be trounced, but “a whole new set of international regulations must be drawn up. Political crimes must be suppressed effectively by international measures. ... Crime cannot be an instrument of policy.””° As a result, the Council decided to establish a “committee of experts” to study international co-operation against terrorism “with a view to drawing up a preliminary draft of an international convention to assure the repression of conspiracies or crimes committed with a political and terrorist purpose.”*' The reader should note that, at this point, the Council considered terrorism to be a political crime. Eleven

Bennett Kovrig, “Mediation by Obfuscation: The Resolution of the Marseille Crisis, October 1934 to May 1935,” The Historical Journal 19, no. 1 (March, 1976): 205-6. Foreshadowing disputes to come, Eden doubted whether a generally acceptable definition of terrorism could be drawn up, though in his speech of December 10, 1934 before the Council he unequivocally stated His Majesty’s government's opposition to “the abuse of personal freedom which consists in employing or advocating the employment of illegal or violent action against constituted authority whether at home or abroad.” See Official Journal, Eighty-third Session, 1735.

°° Official Journal, Eighty-third Session, 1731. *! Official Journal, Eighty-third Session, 1760.

130 The Birth of the New Justice countries were appointed as members of this committee, called the Committee for the Repression of Terrorism (CRT). Many had been involved in the closed-door negotiations of the Marseille crisis, and all were European except Chile (which sat on the Council).”* The dominant European composition of the committee gave its discussions and legal drafts a distinctly European emphasis, but that did not ensure unity, as Europe in the mid-1930s encompassed highly divergent political systems, including parliamentary democracies with colonial holdings, Italian fascism, Stalinism, and Eastern European and Balkan authoritarian states. Press commentaries collected by the League of Nations’ Information Section in 1934-45 reflect the fact that liberal internationalists as well as the extreme right (the Nazis), thought there could be political benefits in eliminating political asylum for terrorists. In the Netherlands, the liberal newspaper Algemeen Handelsblad commented that political terrorists who attempted to overthrow the status quo had become an international problem. The struggle against terrorism had to be removed from individual state control and subjected to international regulation.” French international jurist Georges Scelle, writing in La Dépéche trom Toulouse, stated that the Marseilles attack demonstrated the necessity of solving contradictions in traditional international law dealing with the protection of political exiles. He believed that it would probably be difficult for Yugoslavia to produce all the proof necessary to show that Hungary was behind the assassination, but the League of Nations, he argued, was the appropriate forum, since it was the international regulator against tyrannical governments and violent political opposition.” The Nazi paper, Volkischer Beobachter, declared that Germany would strongly support an anti-terrorism convention, claiming that certain Germans emigrants working abroad were conspiring against the Reich. ‘The entire problem of emigrants working against their governments had to be dealt with, it asserted, because this problem supposedly stemmed from the Versailles borders, which were only creating discord in Europe.” L’Osservatore Romano, representing the viewpoint of the Holy See, commented favorably on the idea of an international criminal court for terrorists, arguing that since states would have the option of sending accused terrorists there when it did not want to prosecute or extradite them, this would increase the effectiveness of the international order versus terrorists and augment the prestige of the League of Nations. Not everyone was optimistic, however.” The Finnish newspaper Uusi Suomi, representing the conservative National Coalition, criticized the

French plan as ineffective because it only concentrated on individual acts of terrorism, not the deeper motives or the role of governments in supporting terrorism. *2 ‘The countries and their appointees were Belgium (whose Count Carton de Wiart held the presi-

dency of the Committee), Great Britain (Sir John Fischer Williams), Chile (E. J. Guajardo), Spain (Juan Manuel Cano y Tuba), France (Jules Basdevant), Hungary (Bela de Szent-Istvany), Italy (Ugo Aloisi), Poland (Titus Komarnicki), Romania (Vespasien V. Pella), Switzerland (E. Delaquis), and the USSR (Eugene Hirschfeld, later replaced by Victor Brown). 3 LNA, Section d’Information, “Revue des commentaires de la presse sur la Société des Nations.”

No. 2411, October 17, 1934. *4 “Revue des commentaires de la presse sur la Société des Nations.” No. 2438, November 28, 1934. > “Revue des commentaires de la presse sur la Société des Nations.” No. 2439, November 29, 1934. 6 “Revue des commentaires de la presse sur la Société des Nations.” No. 2455, December 21, 1934.

International Terrorism 131 It opined that the central problem of creating an anti-terrorism convention was that governments had divergent interests.”

THE INFLUENCE OF THE INTERNATIONAL CRIMINAL JURISTS Historian Bennett Kovrig and political scientist Martin David Dubin regard the conventions as an anodyne expedient, not a serious effort to prevent terrorism. Kovrig maintains that France offered an international agreement against terrorism to Yugoslavia, Czechoslovakia, and Romania (the Little Entente) merely as a panacea: this was supposed to quell complaints about Italian involvement in terrorism and pave the way for a security pact with Italy.** Dubin, who recounts the drafting of the conventions mainly from the point of view of Great Britain, finds that the entire three-year enterprise was political theater. France only pursued the project to maintain influence with the Little Entente, while Britain initiated the convention knowing it would seriously conflict with its own laws and practices, only remaining involved to save face and to avoid the charge that its withdrawal from the process would jeopardize the already weakened League.” The politics of appeasement and political theater alone do not explain the birth of the convention. In fact, the international criminal jurists in the Association Inter-

nationale de Droit Pénal and the International Bureau for the Unification of Criminal Law were already in the process of developing the legal concepts and court statutes, described in the last chapter, which they then applied to the terrorism problem in the late 1920s.*° Like the diplomats on the League Council a few years later, their major concern was that an act of international terrorism—in which the perpetrators were supported by a foreign state, or committed the act in a state other than their own, or sought refuge in a third state—could explode into an international crisis leading to another world war. ‘The jurists—Pella, Lemkin, Carton de Wiart, Yugoslav law professor Thomas Givanovitch, and French Supreme

Court counselor J. A. Roux—wanted to establish anti-terrorism laws that states could adopt in concert. They hoped this would enable states to co-operate in the prosecution of terrorists, following Hugo Grotius’ dictum aut dedere aut punire: a state had a duty “either to extradite or to punish” criminals. As early as 1926, Pella noted that there might be a role for an international criminal court in examining the cases of alleged terrorists who fled to a state which refused to extradite them.°!

*7 “Revue des commentaires de la presse sur la Société des Nations.” No. 2503, March 12, 1935. *8 Kovrig, “Mediation by Obfuscation,” 220.

29 Martin David Dubin, “Great Britain and the Anti-Terrorist Conventions of 1937,” Terrorism and Political Violence 5, no. 1 (Spring 1993): 14. °° Dubin fully acknowledges this, though he sees the movement in progressive, utopian terms. See Martin David Dubin, /nternational Terrorism: Two League of Nations Conventions, 1934-1937 (Millwood, New York: Kraus International Publications, 1991), 68-9. *! Association Internationale de Droit Pénal, Premier Congres International de Droit Pénal. Bruxelles (26-29 juillet 1926). Actes du Congres (Paris: Librarie des Juris-Classeurs—Editions Godde, 1927), 562.

132 The Birth of the New Justice The jurists’ theoretical concepts also embraced the conservative tendency of protecting state security and the political/social status quo. European jurists first began

to debate legal definitions of terrorism in the late ’20s and early ’30s. In 1927 jurists at the first International Conference for the Unification of Penal Law in Warsaw discussed crimes that intentionally provoked a “common danger,” meaning they threatened public security. In 1930, Niko Gunzburg, a professor of criminol-

ogy at the University of Ghent, provided a definition of terrorism at an international criminal law conference in Brussels. Terrorist acts intentionally created a common danger; these crimes, directed against life, liberty, the integrity of the body, or the welfare of the State, were committed in order to realize political or social ideas. Thus, he connected a set of motives and goals to terrorism. At the Bureau's conference in 1931, Lemkin largely accepted this definition, though he favored judging such crimes by the actual damage they created, not according to whether the perpetrator intended to create a “common danger.” Importantly, he maintained that the unique characteristic of a terrorist act is that it creates fear in the public, who believe the act will be repeated.*” Yet Lemkin changed his position in 1933, arguing that the essence of terrorism was not its political goal or the creation of fear, but the creation of an international danger.” ‘This reflected the general

trend of the international criminal jurists, who attempted to overcome the problem of political asylum by trying to define terrorism according to its effect on the international political system, not the motives of the perpetrator. By removing the political context of terrorism, jurists hoped they could formulate a general law that all states could adopt, regardless of their political system, because all had a common interest in defending themselves against attacks against their security. This repre-

sented a synthesis of the ideas of “social defense” (society should be protected against delinquents) and the ideas of collective security prominent in the 1920s. During the late 1920s, international criminal jurists had tried to gain political influence in the League, but a series of obstacles prevented them from unifying criminal laws or building a system of international criminal law one treaty at a time. League reports as early as 1928 indicate that states were very reluctant to give up their native legal traditions and conform to an internationalist vision, and by 1933, most European states and Turkey favored the “gradual” unification of criminal law. This position was sufficiently

vague to watrant more committee meetings and reports without yielding definitive results. Great Britain, which later opposed the international criminal court for terrorism, maintained that only a well-defined, practical matter would justify a convention unifying criminal law—and until such a subject was found, no action by the League was necessary.** Pella, too, reporting to the full Assembly in October 1933, agreed that it

°° Raphael Lemkin, Emploi intentionnel de moyens capables de faire courir un danger commun. Terrorisme. Rapport, Quatriéme Conférence Internationale pour PUnification du Droit Pénal (Paris: Recueil Sirey, 1931), 3, 9-10, in LNA/3758/15105/15085. °3 Raphael Lemkin, Faut-il créer un nouveau deélit de droit des gens, nommé terrorisme?, Rapport spé-

cial présenté a la Ve Conférence pour PUnification de Droit Pénal a Madrid (Madrid: Imprenta de Galo Saex, 1933), 11, in LNA/3753/7595/5218. ** League of Nations, Gradual Unification of Criminal Law and Co-operation of States in the Preventing and Suppression of Crime, May 30, 1933 (Geneva), A.7.1933.V., 4.

International Terrorism 133 would be best to find a single issue and pass a convention on it if necessary, but the trick was getting governments to agree on what constituted an “international offence.”*

At this point, governments did not recognize international terrorism as a vital problem requiring international co-operation. The Marseille assassination, Mussolini's refusal to extradite Ustasa leaders to France, and renewed concern about state support for armed groups escalated the issue to a grave threat to international peace and

security. The international criminal jurists now had a moral cause which might allow them to realize their ideas for a broader international criminal system. The project would be fraught with difficulties, as it involved the prickly problems of defining political crimes. At the same time, from 1934 to 1939, the international system underwent great stress due to the collapse of industrial production and agricultural prices. Nazi Germany began rearming and reinstated general conscription in 1935, and fascist Italy invaded Ethiopia in 1934, which tested the League’s system of economic sanctions against an aggressor. Increasingly, the Great Powers returned to secret diplomacy and separate security agreements to deal with the crises, such as the Stresa Conference in 1935 and a secret pact between France and Italy that essentially gave Mussolini carte blanche in Ethiopia.”

THE WORK OF THE COMMITTEE FOR THE REPRESSION OF TERRORISM Several members of the AIDP and the Bureau were represented on the Committee for the Repression of Terrorism (CRT), including Carton de Wiart of Belgium, Jules Basdevant of France, Ernest Delaquis of Switzerland, and Pella, who was named Romania's Plenipotentiary to the League in 1933. Pella gained a limited measure of power as the Committee’s rapporteur through his professional relation-

ship with Carton de Wiart (the Committee President): the two worked closely together in the Bureau, and tried to introduce the ideas of social defense and unified principles of criminal law into the League. Pella also gained early influence with the CRT by presenting a complete draft of a convention when the committee met for its first set of sessions in April and May 1935.°” The CRT began with a French blueprint, submitted by Laval to the Secretariat

on December 9, 1934, outlining an international convention, which contained °° Pella worked on the concept of international offenses in 1933 as rapporteur of the First Commit-

tee for the Gradual Unification of Criminal Law and Co-operation of States in the Prevention and Suppression of Crime. He reported on the committee’s work to the Assembly on October 3, 1933 (A.37.1933.V.)

°° On the French—Italian accords and Stresa, see Jean-Baptiste Duroselle, La Décadence: 19321939 (Paris: Imprimerie National, 1979), 130-9. On the impact of Stresa on the League Council and the misgivings of small powers, see F. P. Walters, A History of the League of Nations (Westport, Connecticut: Greenwood Press, 1986 [1952]), 606-14. °” For the minutes of these sessions and two other sessions held in 1936 and 1937, see League of Nations Archives, Comité pour la Répression Internationale du Terrorisme, C.R.T./PV 1—3iéme session, 1935-37 (Geneva), vol. 1101-1102. ‘The minutes have also been reproduced on the microfilm accompanying Dubin, /nternational Terrorism: Two League of Nations Conventions, 1934-1937.

134 The Birth of the New Justice many elements that appeared nearly three years later in the final conventions of 1937. The French proposal defined a series of terrorist crimes (including political assassinations and attacks on buildings, transportation, and communications) and criminalized associations which intended to commit such acts and incited them. States would be required to punish passport forgery (even if the passport were issued by another government) and make assassination an extraditable crime, thus eliminating a state’s prerogative to determine whether the perpetrator could be given political asylum. The proposal called on states to share information about terrorist preparations and the forgery of identity papers, though it did not, at this stage, call for an international police agency. The boldest element was the establishment of a five-member, permanent international criminal court, whose task would

be restricted to trying accused terrorists when a state did not want to extradite them or prosecute them in its own national courts.*® Laval’s proposal defined terrorism as “criminal acts directed against persons or property and constituting terrorist action with a political object.”® The proposal enumerated a set of specific terrorist crimes, which CRT members expanded during their first session in 1935. After throwing in almost every possibility, including attacks using chemical and biological agents, they scaled back the list to deal with general types of crimes, rather than the means employed. Just like Italian fascist jurists who wanted to use their anti-anarchist laws as a model,*® the French called for the repression of instigation and incitement. The antecedent here was a set of French laws, derided by anarchists and socialists as /es lois scélérates (meaning “criminal” or “villainous” laws), which were passed in the 1890s to snuff out anarchist bomb attacks.*! The reader will recall that Pella looked to these laws as a model in 1920, when he called for domestic laws to suppress criminal gangs and trade unions. In 1935, Pella

proposed a definition of terrorism that excluded all mention of motive, be it political, social, or otherwise.*” This would eliminate the problem of judging whether an °8- Bases pour la conclusion d'un accord international en vue de la répression de crimes commis dans un

but de terrorisme politique, December 10, 1934 (Geneva), C.542.M.249.1934.VIII, in Council and Member States Documents, vol. 1380 (1934.C.483.M.210 to C.583.M.274), LNA, Geneva. °° Bases pour la conclusion, C.542.M.249.1934.VHI. “© At a 1933 conference in Madrid on international criminal law, Italian jurists held that states should formulate unified anti-terrorism laws and require reciprocal extradition with no exception for political offences. Not only should perpetrators be punished, but instigators and apologists should be treated as criminals, and organizations with the goal of committing these acts should also be made illegal. Hence Italy was already repressing anarchists because they professed to the doctrine of anarchism, in advance of perpetrating any acts of violence, the jurists reported. See M. M. D’Amelio and Ugo Aloisi, Le Terrorisme, V Conferencia Internacional para la Unification del Derecho Penal (Madrid:

Imprenta de Galo Saex, 1933), 9, in LNA/3753/7595/5218. | Paul Wilkinson, “Proposals for Governments and International Responses to Terrorism,” Terrorism 5, no. 1-2 (1981): 161. “2 States should repress “acts that are illegal and harmful to good international relations, and which are directed against foreign states, persons under their jurisdiction, or their welfare.” This included assassinations, bombings, disrupting transportation and communication systems, spreading infectious diseases, and poisoning the food supply. Pella’s draft is C.R.T./5 (May 1, 1935) in Comité pour la Répression Internationale du Terrorisme, C.R.T-/PV 1—3iéeme session, 1935-37, vol. 1101, LNA. The complete list of terrorist actions is contained in Article 2 of Pella’s draft. The only case in which politics was mentioned was in a subcategory of attacks on private persons, attacked by virtue of their “political

attitude,” but this concept was not employed in later CRT drafts.

International Terrorism 135 act of political violence was legitimate. They were all to be classified as illegitimate, common criminal offenses, not political offenses that could qualify for asylum. The international system would therefore be tightened by requiring extradition and prosecution for them. This was underpinned by a draft clause that required all signatories to make political assassination an extraditable crime if they had not already done so in their national laws or extradition treaties. The era of bilateral extradition agreements and the state’s power to grant asylum to perpetrators of violent political acts

was supposed to come to an end—a goal which Pella had sought since the late 1920s. If states voluntarily limited their sovereignty, they could increase their collective security. At the same time, this left the possibility that states would be expected to jail and prosecute so-called terrorists who were working for political causes that state governments supported. ‘Thus, the international criminal jurists’ attempt to eliminate politics from criminal repression still had political repercussions. The committee held two other sessions in January 1936 and April 1937, refin-

ing the definition of terrorism, limiting the obligation to extradite suspects, and defining measures to track the distribution of weapons and the validity of passports. Over the course of a three-year period, the CRT took into account comments and observations solicited from League and non-League members (including the United States) and presented reports on its progress to the Council and to the Assembly. After a feisty committee debate on a draft convention in October 1936, the Assembly decided to hold a final conference on what became two separate conventions—one to repress and punish terrorism, the other to found an international criminal court—in November 1937.* The Convention for the Creation of an International Criminal Court, signed by only twelve states, was designed for an extremely limited situation—to try accused terrorists if a state refused to extradite them or did not want to try them. ‘The five-member court would have held public hearings, given the accused the right to counsel, made decisions based on majority vote, and issued sentences (including the death penalty) to be carried out by the state which had sent the accused to the court. In the 1920s, international criminal jurists had prudently tried to adapt to the political winds by placing a proposed international criminal court under the political and financial supervision of the League. However, during the negotiations for the terrorism convention, opposition to a terrorism court compelled the delegates from Romania, Belgium, France, and Spain to separate the proposed institution from the League.“ “8 League of Nations, Proceedings of the International Conference on the Repression of Terrorism (Geneva: 1938), C.94.M.47.1938.V., 49-50. “ Only signatories would bear the costs of the court. However, both signatories and non-signatories could nominate judges, who would be selected for ten-year terms by the Permanent Court of International Justice. This was bound to permit seepage of political influence, as would the prosecution, which would either be conducted by the state where the accused was apprehended or by the state which was the object of the attack. The British, who opposed the court, feared that it might have to prosecute cases which did not affect it at all, though this situation probably would have been rare. See Fischer Williams to Foreign Office, June 7, 1935, Point 25, Doc. 87 in Peter J. Beck, ed., British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print. Part II. From the First to the Second World War. Series J, the League of Nations, 1918-1941. Vol. 1, Britain and the League

of Nations, 1918-1941: Attitudes and Policy (University Publications of America, 1992), 265.

136 The Birth of the New Justice THE WEAKNESSES IN THE FINAL PRODUCT The political negotiations for the convention resulted in a weak international instrument due to British opposition, Italian interest in using the convention for anti-fascist repression, and the complete exclusion of Nazi terrorism from the del-

egates consideration. Moreover, the convention included a loophole allowing states to avoid extradition in politically sensitive cases, and few states supported the creation of an international criminal court for terrorism. Furthermore, League del-

egates rejected formal international police co-operation due to suspicions about the political reliability of the Austrian police organization which wanted to run an international terrorism agency. Britain had expressed doubts about the project from the beginning because it seemed to lack practical benefits, might impede free speech and the free associa-

tion of opposition groups, and might trounce a state’s right to offer political asylum. Sir Anthony Eden, during the resolution of the Marseille crisis on December 10, 1934, had warned that terrorism would be difficult to define and might cover “forms of action, less violent, but highly undesirable, which are illegal in some countries and not in others.”*? During the first set of CRT meetings, Sir John Fischer Williams, the British delegate, believed that it was wiser to facilitate ways to uncover terrorist plans before they became reality rather than to concentrate on a system of punishing terrorist acts, since terrorists were not deterred by fear.“ During 1935 and 1936 he attempted to make the treaty palatable to the Foreign Ofhce, which wanted to stay the course and support the convention for the sake of diplomatic constancy. But in 1937, the Home Office was unwilling to accept an anti-terrorism convention that required new British legislation. It additionally found the convention's provisions on conspiracy and its ambiguous position on insurrectionary activity to be insuperable. Ultimately, Fischer Williams was advised to disengage Britain tactically at the 1937 conference in Geneva, and as the final convention was negotiated during the proceedings, he found it impossible for Britain to sign.* Fascist Italy initially played a game of supporting the convention, as it stood to benefit if other states imposed anti-anarchist laws like its own and generally took strong measures against anti-fascist crimes committed on foreign soil. Like the Romanians and the French, the Italians did not want motive to be considered when judging whether an attack was terrorist, as this would skirt the question of whether the crime was legitimate, as it might well appear in the eyes of a foreign judge who did not sympathize with the government under attack. During the CRI’s first set of meetings in 1935, Ugo Aloisi, Italy’s representative to the League,

and President of the Court of Appeals in Rome, maintained that the political

® Official Journal, Eighty-third Session, 1735. “6 Second Meeting, April 30, 1935, 4:30 p.m., League of Nations, Comité pour la Répression Inter-

nationale du Terrorisme. Premiére Session tenue du 30 avril au 8 mai 1935. Procés-verbaux révises (Geneva), C.R.T./PV.1 (1), 11. 47 Dubin, “Great Britain and the Anti-Terrorist Conventions of 1937,” 18-21.

International Terrorism 137 attitude of a murderer was not definitive when determining whether the murder was a terrorist act: it was “legally doubtful” whether a republican killing a socialist constituted terrorism, he said. Instead, an act was terrorism if the perpetrator intended to propagate terror in a country, and if the methods used were likely to disseminate terror.** Moreover, Italy fundamentally opposed the creation of an international criminal court for terrorism, and its national laws did not per-

mit the extradition of Italian nationals unless specified by particular conventions.” This served a dual purpose for the fascists. If an Italian fascist was accused of terrorism abroad, Italy could demand extradition for prosecution in its own courts, without giving the other state the option of sending the accused to an international criminal court. On the other hand, if Italy alleged that a political opponent had committed anti-fascist crimes (such as bombing train lines inside Italy) and had then fled abroad, under the proposed terrorism convention, it could demand either extradition or prosecution by a foreign state. However, after the League Council determined in October 1936 that Italy's invasion of Ethiopia violated the League Covenant, and the Assembly began steps to coordinate economic sanctions against Italy, Italy dropped out of the CRT and never signed the final convention.” Germany was not involved in the conventions at all, as it had dropped out of the League after walking out of the failed 1932-34 Disarmament Conference.! Inter-

national criminal jurists were well aware of the drastic use of police and court repression within Nazi Germany. During the Sixth Conference of Criminal Law in Copenhagen in 1935, French and Belgian jurists battled German and Italian jurists over the definitions of press offenses and whether political offenses should remain separate from criminal offenses and therefore be immune from extradition.°” The

Germans pursued their own international measures to deal with their political opponents, proposing at the Copenhagen conference that political refugees and “escaped nationals” should automatically be sent back to their home countries without requiring any investigation as to whether they had committed actual crimes there (as would normally happen in an extradition proceeding). For the Nazis, it was the Anti-Comintern Pact, signed with Japan in November 1936 and with Italy in November 1937, that provided a collective mechanism to repress

‘8 ‘Third Meeting, May 1, 1935, 10 a.m., in League of Nations, Comité pour la Répression Internationale du Terrorisme. Premiere Session tenue du 30 avril au 8 mai 1935. Proces-verbaux révises, C.R.T./ PV.3 (1), 21. © Ninth Meeting, May 4, 1935, 10 a.m., League of Nations, Comité pour la Répression Internation-

ale du Terrorisme, C.R.T./P.V.9 (1), 103; Twelfth Meeting, May 7, 1935, 10:30 a.m., League of Nations, Comité pour la Répression Internationale du Terrorisme, C.R.T./P.V. 12(1), 127. °° Dubin, /nternational Terrorism, 44.

>! In October 1933, during protracted League disarmament negotiations, the Nazis rejected a French two-stage plan for disarmament, a harsher plan than a previous British proposal, and withdrew from the League. Although Hitler proceeded to call for individual negotiations between states for arms reduction, any hope for a new verifiable security pact was dead. Walters, A History of the League of Nations, 546-50. 2 J. Van Parys, “La Conférence du Droit Pénal de Copenhague. Les travaux en commission,” Le Soir Bruxelles, September 4, 1935.

138 The Birth of the New Justice communists as political criminals: the parties agreed to extradite communists to each other.” Due to attitudes of appeasement, anxiety, or fear within the League bureaucracy, the League Secretariat's Legal Section and the CRT took no notice of pleas asking for help against Nazi terror. Exiled German Social Democratic Party leader Otto Wels summarized political terror during the Weimar and Hitler eras in a letter to the CRT in 1937 but received no response. The Secretariat and the CRT presented the same silence toward the rise of Austrian Nazism in 1935, following the assassination of Dollfuss. An Austrian criminal defense attorney, Heinrich Bazant, sent a series of letters asking the League to instruct the Austrian government that Austrian Nazis who were prosecutors and judges should not be allowed to participate in cases of political murder in which Austrian Nazis stood accused.” Technically these were matters of internal domestic politics, which conveniently allowed the legal delegates on the CRT to pass over them. The final anti-terrorism convention of 1937 was a victory for liberal states which wanted to preserve the right of political asylum, but it also meant that the convention did nothing to prevent the situation it was originally supposed to address: states which gave political refuge to terrorists, as Italy, Hungary, and Austria had done for the Ustasa. The scope of the convention was restricted to international terrorism, meaning that the terrorist attack was directed against a foreign state (planned or executed outside the target state’s boundaries, for example), or the perpetrators fled to another state to seek refuge. The convention preserved Pella’s innovation of eliminating the question of motive: all that mattered was that the acts fitted the prescribed definitions of assassination of heads of state, their spouses,

or holders of public office; the destruction of public property; or “any wilful act calculated to endanger the lives of members of the public.”*® However, the provision requiring all signatories to prosecute or extradite alleged offenders was °> Memo from Grossman to Halpern, December 30, 1943, in World Jewish Congress Collection, Manuscript Collection No. 361, Box C174, Folder 6, Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati Campus, Hebrew Union College, Jewish Institute of Religion. ** See Report from Otto Wels, SPD, on Nazi terror, to the “Commission on the Struggle against Political Terror,” October 30, 1937, in LNA/3758/15105/15085. Writing from Prague, Wels described

political murders committed by nationalists and Nazis during the Weimar period and after Hitler's accession, the Réhm purge in June 1934, prisoners in concentration camps and prisons, the persecution of the Jews, and repression of Catholics and Protestants. Wels did not make any specific proposals to the CRT for laws or conventions. On the contrary, he asserted that there was nothing in the way of technical international police cooperation that could be done. He urged the re-establishment of Parliament, independent judges, freedom of the press, release of prisoners, and punishment of Nazis inside and outside Germany who committed murder. °> Bazant to Secretary General; Bazant to the “High Anti-Terror Commission,” April 28, 1935, in

LNA/3758/15105/15085. Bazant also attached a petition that he had submitted to a Vienna court, asking it to reverse the decision of a Graz court which had muzzled him by declaring that he was mentally incompetent. Bazant explained that this was retaliation against him for representing a married couple who accused a Nazi in Krems of murder. Bazant alleged that the state prosecutor in Krems belonged to the same Nazi group as the alleged murderer. Bazant also said he had lodged a criminal complaint with a military court in Vienna against Nazi leaders in Kirchbach immediately after the Dollfuss assassination, and Nazis in the Kirchbach court system retaliated against him by making sure that he lost every case there after that. °° Article 2(3), Convention for the Prevention and Punishment of Terrorism, in Proceedings, 5.

International Terrorism 139 eliminated by including a loophole clause that made extradition subject to the law or practice of the country granting refuge to the accused.” This meant that the state’s court or its executive still had control over the politically sensitive nature of extradition. This clause was supported by Britain, Sweden, and Denmark, which were not willing to see their right to offer political asylum eviscerated. Switzerland also insisted on preserving the right to grant political asylum, bluntly stating that an anti-terrorism convention was not required, since international terrorism was not a significant enough problem in Europe.” The underlying causes of terrorism were never deeply addressed in these legal and political negotiations. It was doubtful that representatives from different states could ever have arrived at joint measures to fix the problems of ultra-nationalist and separatist movements, secret police involved in foreign assassinations, and the underlying political ideologies that motivated foreign attacks (whether fascist or communist), since several states involved in the negotiations supported clandestine armed groups and allowed their police to conduct extra-judicial assassinations. More fundamentally, the causes of international terrorism were beyond the reach of this co-operative legal system, because a system of prosecution and extradition could not eliminate Nazism and Italian fascism as threats to European security or deflate the native fascist groups on the rise in Eastern Europe. Nor could an international legal convention fix the social resentments, class stratification, racial ideologies, and nationalist ambitions that were searing the innards of domestic societies.

The international criminal court, which was only to come into play if a state refused to try or extradite an accused terrorist, was supposed to be part of the origi-

nal convention, but strong opposition to the institution, led by Great Britain, forced the CRT during its January 1936 session to create a separate, optional convention.” During the final 1937 conference in Geneva, French delegate Jules Bas-

devant, Professor at the Faculty of Law at the University of Paris, called the institution “a bold innovation.” “It was its very boldness indeed,” Basdevant said, “which had caused misgiving, reservations and opposition.” There was no cause for fear, he averred, because the court would only have jurisdiction over individuals (not states), it would conduct its work with impartiality, and its judgments would avoid the political tension that might result if a national court issued a ruling of “doubtful authenticity” in a terrorism case.” Britain’s Fischer Williams opposed all this, arguing that the court lacked a body of international law on which to base its ” Article 8(4), in Proceedings, 7.

8 Records of the Seventeenth Ordinary Session of the Assembly, Meetings of the Committees, Minutes of the First Committee, Constitutional and Legal Questions, Official Journal Special Supple-

ment No. 156, Assembly 17, 1936, Committees 1-6 (and Special Committee) Minutes, vol. 1803 (1936): 47. »» According to the Secretariat's head legal counsel, Hugh McKinnon Wood, there was already a “violent divergence of views” by the end of 1935. See McKinnon Wood to Secretary General, Decem-

ber 3, 1935, in LNA/3760/19086/15244. For a concise summary of states’ positions at the end of 1936, see Comité pour la Répression Internationale du Terrorisme, C.R.T:/PV 1—3iéme session, 1935-37,

C.R.T./25, vol. 1101, 9-10. °° Proceedings, 59.

140 The Birth of the New Justice decisions—the same argument that U.S. Secretary of State Robert Lansing used in 1919 when he opposed the creation of an international military tribunal for violations of the laws and customs of war.°' The final convention established an ambiguous zone: the court would apply the least severe criminal law, based on the law

where the act had been committed and the law of the state which had sent the accused to the court. This would have meant that the law of the state of refuge could have had a bearing on the penalty, even though the act might not have been plotted or carried out there. Procedural issues were also controversial, especially in the eyes of Hungary, which wanted to ensure that the choice of judges was fair, given the country’s experience before the Council in its dispute with Yugoslavia in 1934 and early 1935.

Finally, there were concerns that a terrorism court, once established, would eventually expand its role into a court that would put states on trial. After all, since 1925 Pella had maintained that an international legal system, backed by an international criminal court, was the only way to deter aggressive states. During the 1937 conference Pella attempted to reassure the doubters that the proposed international criminal court would only deal with individuals. That in itself remained controversial, as many legal scholars maintained that individuals could only be subject to national laws, while international law only applied to states.

THE ROLE OF INTERNATIONAL POLICE What role were the police to play in the proposed international system against terrorism? Policing has a long history of trying to ensure moral order and political stability, going back to Enlightenment concepts that rulers should form states dedicated to moral virtue and material prosperity. Absolutist rulers formed police bureaux in the eighteenth century that spied on the population, a trend that inten-

sified during the French Revolutionary Era of 1789-1814, when monarchies feared Jacobin revolutionaries and secret organizations espousing national revolu-

tion and an end to monarchy. With each change in era—the attempt to repress liberalism and nationalism between 1815-1848, efforts to repress revolutionary socialism (and then anarchism) from 1848-1914, and renewed European efforts (outside Russia) to repress Bolshevism after 1917—police authorities built files and prosecuted individuals and groups which threatened the established moral and political order.® Inter-state police co-operation began in the nineteenth century, first with German states after the 1848—49 revolutions, followed by co-operation between the Russian secret police (the Okbrana) and Western European police to repress anarchists and communists across Europe between the 1880s and 1910s. °! Proceedings, 54. Fischer Williams contrasted the proposed criminal court with the existing Permanent Court of International Justice, which applied existing rules of international law. 6 Article 21, 1937 Convention for the Creation of an International Criminal Court. °> Clive Emsley, “Political Police and the European Nation-State in the Nineteenth Century,” in Mark Mazower, ed., The Policing of Politics in the Twentieth Century: Historical Perspectives (Providence,

RI: Berghahn Books, 1997), 1-25.

International Terrorism 141 There were several police conferences in which the police decided to form a central office to collect and transmit information about suspects. For example, in 1898, twenty-one state diplomats and police representatives attended an anti-anarchist conference in Rome, deciding on several key methods and concepts that would reverberate both through international policing in the twentieth century and the

international criminal jurists’ efforts to structure the international order around criminal enforcement. On the technical side, the Rome Conference decided that states should form anarchist information bureaux which would share information with each other using a formalized identification system. On the legal side, they agreed that states should adopt the “Belgian clause,” permitting the extradition of a person accused of killing or kidnapping a sovereign head of state.®? These concepts later appeared in the draft conventions to suppress counterfeiting, terrorism, and genocide, showing how the concept of legitimizing extradition for an expanded group of crimes was applied to new areas to fit new situations. These crimes were not supposed to be considered political crimes any longer, but considered threats to international peace and security. By moving the justification for repression to the stability of the international system, rather than the nature of the underlying ideology and motive, proponents of the new legal structures hoped to overcome the legal differences and political oppositions that existed between states.

In the twenty years that followed the Rome Conference, states and/or police forces held other international conferences to create centralized police bureaux and create procedures for the exchange of information about suspects.® A series of

social and technological developments aided this development: police forces became professionalized and wanted to share their techniques of investigation and identification with each other (fingerprinting, record-keeping, and communica-

tions), and police that had achieved bureaucratic autonomy were interested in forming their own international organizations to fight crime, without government oversight.°” Hence there was a difference between state-directed efforts to create police coop-

eration and those initiated by police forces themselves. Laval’s December 1934 blueprint for an anti-terrorism convention called on states to share information about terrorist preparations and the forgery of identity papers. The model here was the League’s 1929 Convention for the Counterfeiting of Currency, which called on states to set up bureaux to track counterfeiters and share information about them. “ Cyrille Fijnaut, “The International Criminal Police Commission and the Fight Against Communism, in Mazower, The Policing of Politics in the Twentieth Century, 105-14. ° Deflem, Policing World Society, 66-9. °° In 1904, Germany, Austria-Hungary, Denmark, Romania, Russia, Serbia, Switzerland, Sweden, Norway, Turkey, and Bulgaria signed a joint police protocol in St. Petersburg. It established a central

police bureau that collected and disseminated information about anarchists, including government expulsions and voluntary departures. In 1920, Argentina, Bolivia, Brazil, Chile, Paraguay, Peru, and Uruguay signed the 1920 Buenos Aires police convention, calling for the collection and sharing of anarchists’ identity papers, body type descriptions, judicial information, photos and publications. See Giraud’s legal study (December 8, 1934) on “La collaboration des Etats pour la répression de certains délits inspirés par des buts politiques” in LNA/3758/15085/15085. °” ‘This is Deflem’s argument in Policing World Society.

142 The Birth of the New Justice The police organization that served as the hub of information exchange for this

project was the International Criminal Police Commission (ICPC), based in Vienna. Police forces—trather than state governments—from sixteen countries in Europe, the Americas, and Asia had formed that organization in 1924. The effort was organized by the Austrian federal police, which wanted to suppress the trafficking of drugs and female prostitutes across borders. The League had given the ICPC provisional authority to run a central office that shared descriptions, fingerprints, and photos of counterfeiters, and the ICPC wanted the League to recognize it officially, and expand its mandate to sharing information about terrorism. Making its case for official status, the ICPC stated it was already in contact with many national police bureaux, which were sharing information about counterfeiters, trafickers, and murderers. According to ICPC officials, the 1929 anti-counterfeiting convention had stimulated states without central police bureaux to establish them; these could easily be expanded to handle terrorism cases. The ICPC already published a periodic wanted list and possessed a wealth of documentary material on international criminal activity, including the open-ended category of “individuals

constituting an international danger.”® It was even willing to accept judicial supervision.” The problem, though, was that officials in the League Secretariat distrusted the Austrian leadership, and after the UstaSa assassinations and friction with the Austrian police, the French police did not trust it either. Hugh McKinnon Wood, a British lawyer who was head counsel for the Secretariat’s Legal Section, commented, “The Austrian police have an axe to grind in this matter,” because the Austrians were trying to prevent other police forces from taking over the ICPC presidency. He advised the Secretariat not to grant the ICPC seats on the League’s anti-terrorism committee.”” He did not want passport control to be centralized in Vienna, and he also disliked the ICPC because he claimed it was not a true international organization because governments had not created it through an international agreement. This symbolized the conflict between international lawyers,

who wanted to create international organizations with states as the building blocks, versus police officials, who wanted to create their own autonomous organizations but gain the imprimatur of international organizations. The French police also opposed the ICPC’s play for more power in policing cross-border terrorism. After the Marseille attack, a senior French police inspector had investigated Ustasa activities in Austria and interviewed Ivan Peréevié¢, a retired officer in the AustroHungarian military who was a key Ustasa leader in Austria. The Austrian police

concealed that he had coordinated Ustasa travel plans and communications. Although French police did not know the Austrian police were withholding °8 See the ICPC’s proposed anti-terrorism convention and explanation in League of Nations Archives, Comité pour la Répression Internationale du Terrorisme, C.\R.T:/PV 1—3iéme session, 1935-37,

vol. 1101, C.R.T/3, 16. ° League of Nations Archives, Comité pour la Répression Internationale du Terrorisme, C.R.T:/PV 1—3iéme session, 1935—37, vol. 1101, C.R.T./3, Article 12, p. 13.

7? McKinnon Wood to Habicht, December 26, 1934; McKinnon Wood to Secretary General, February 1, 1935, LNA/3758/15584/15085.

International Terrorism 143 information, they were unhappy with the fact that the Austrian government refused to extradite Percevi¢ to stand trial in France.”! League members were divided as to whether the League should get involved in international police co-operation at all, instead of leaving it to outside bodies such as the ICPC and the Commission internationale pénale and pénitentiare, a nongovernmental group of legal experts and penal reform advocates.” Ultimately, the 1937 conventions did not enshrine the ICPC as an international central office but merely called on states to create their own national terrorism information services, which would voluntarily share information with each other.” This was for the best,

since the ICPC was taken over by the Nazis after the Avzschluss of Austria in 1938.4

SUPPORT FOR THE CONVENTIONS By 1938, European signatories to the conventions included France, the Soviet Union, and several Eastern European and Balkan states. While European support for the conventions was diplomatic posturing to a degree, it also represented an attempt to expand state jurisdiction through mutual assistance. Although jurists invoked the idea that joint repression of terrorism was a form of pacific internationalism, the roster of states supporting the conventions suggests that the states may have been seeking new legal tools against restive minorities and political opponents. Czechoslovakia, Yugoslavia, Romania, Bulgaria, Greece, the Soviet Union, and ‘Turkey signed the convention establishing an international criminal court. All had minority problems and, in some cases, political opponents who were plotting against these governments from outside their borders. In this sense, the European supporters were part of the interwar phase of strong statism, whereby state authori-

ties attempted to restore economic and social order after war-time destruction, economic exhaustion, and failed communist revolutions.” The trajectory of international criminal law during the 1930s was not exclusively on a purely liberal path “| Mark Lewis, “Redefining International Political Policing in Interwar Austria and Yugoslavia,” Paper presented to the German Studies Association Conference, Louisville, Kentucky, September 24, 2011.

” McKinnon Wood to Secretary General, March 6, 1935, in LNA/3762/16955/16955. > Articles 15 and 16, Proceedings, 11.

” Rather than use the group for anti-communist repression and political policing, the Nazis preferred to share anti-communist information by organizing their own international conferences and signing agreements with other European governments. See Fijnaut, 114—25. Scholars are divided on

the extent to which the ICPC furthered Nazi policies after 1938 and during World War Two. See Mathieu Deflem, “The Logic of Nazification: The Case of the International Criminal Police Commission (‘Interpol’),” International Journal of Comparative Sociology 43, no. 1 (2002): 33-6.

” On the post-World War I failure of parliamentary centrism, the development of corporatist economic policies, and the formation of interest-group politics, see Charles Maier, Recasting Bourgeois

Europe: Stabilization in France, Germany, and Italy in the Decade after World War One (Princeton: Princeton University Press, 1975). On the failure of export-led industrialization, the effects of delayed nationalism, and the development of rightist authoritarianism in Central and Eastern Europe, see Ivan T. Berend, Decades of Crisis: Central and Eastern Europe before World War II (Berkeley, Calif.: University

of California Press, 1998).

144 The Birth of the New Justice but had turned to the categories of international crime and terrorism as a reaction against political and social instability. The international criminal jurists’ answers were prosecution, national police co-operation, and additional controls over weapons and passports, not checks on nationalism, remedies for economic disparities, or concrete methods of changing political culture. An international system to counter terrorism which does not define the crime as motivated by social or political ideologies, or the attempt to achieve a political or social end, is a system than can be employed by all takers for their own political ends. Hence the Soviets favored the system because it offered the possibility that other states might have to extradite White Russians involved in anti-Soviet conspiracies, passport violations, and weapons distribution. Eugéne Hirschfeld, the Soviet representative on the CRT, had stated at the beginning of the negotiations in April 1935 that he favored a convention requiring the extradition of political assassins as well as bands of armed émigrés plotting an invasion from foreign territory.’ It is also possible that the Stalinists believed that a collective extradition agreement might legitimize an extradition request for Trotsky and other opponents of Stalin. During the period when the terrorism convention was negotiated, the Soviets were holding show trials against so-called “Trotskyist-Terrorists,” which had begun in January 1935 with trials against Grigorii Zinoviev and Lev Kamenev.’” Trotsky wrote to the League Secretariat in October 1936, after the Soviets had tried him in absentia (along with Zinoviev and Kamenev in a second trial) for the assassination of Leningrad party chief Sergei Kirov. At that time, he asked that his case be taken up by the international criminal court when it was established, so that he could be vindicated. Writing again in March 1938 from his home in exile in Coyoacan, Mexico, Trotsky demanded the same, stating that “the tribunal, which is taking on the task of protecting the governments of different countries against terrorists, cannot, on the other hand, renounce the defense of private persons who, for purely political

motives, are falsely accused of terrorism by some malevolent government.”” © Second Meeting, April 30, 1935, 4:30 p.m., League of Nations, Comité pour la Répression Internationale du Terrorisme. Premiére Session tenue du 30 avril au 8 mai 1935. Procées-verbaux révises, C.R.T./PV.2 (1), 12.

” Robert C. Tucker and Stephen E Cohen, eds., Zhe Great Purge Trial (New York: Grosset and Dunlap Publishers, 1965), ix—xlviii.

8 ‘Trotsky to Legal Section, March 31, 1938, LNA/3758/15105/15085. ‘This letter refers to the letter sent to the League on October 22, 1936. Trotsky maintained that the GPU was behind a string of murders in the 1930s: the 1936 disappearance in Spain of Erwin Wolf, a Czech who was one of Trotsky’s former secretaries; the 1937 murder of Ignaz Reiss in Switzerland, after this former GPU network chief resigned in protest at the purges and declared his allegiance to international socialism; the 1937 assassination of Andrés Nin, a Trotskyist who had broken with Spanish communists and formed an independent leftist party in Catalonia; and the attempted assassination of Trotsky’s son, Leon Sedoy, in Mulhouse, France in 1937. On these figures, see Isaac Deutscher, The Prophet Outcast: Trotsky, 1929-1940 (London and New York: Verso, 2003 [1963]), 130, 315-22, 458 n. 85. Trotsky also mentioned the death of Austrian left oppositionist communist Kurt Landau, who had helped organize the United Opposition against Stalin, worked with Trotskyists in Germany at Trotsky’s request, and later defected to form his own faction. However, the Landau group in Germany was eliminated by the Gestapo in July 1934. See Robert J. Alexander, /nternational Trotskyism, 1929-1985 (Durham, N.C. and London: Duke University Press, 1991), 80-1, 413-14.

International Terrorism 145 Trotsky tried to convince the League to turn the tables on Stalin and prosecute him for a variety of political murders committed by the Soviet secret police (the State Political Administration, or GPU).” Trotsky proposed a grand international political trial, with himself as lead prosecutor, to counter the Stalinist show trials and police plots against Trotskyists. The spectacle of a political trial in a place such as The Hague, pitting Trotsky against Stalin, is interesting to contemplate, but for political reasons there was no possibility that it would happen. The Secretariat’s Legal Section drafted a reply to Trotsky, telling him that the conventions had not yet been brought into effect due to a lack of signatures; additionally, individuals would have no standing to bring cases to the court. The letter was never sent, since McKinnon Wood decided that “it is better to ignore his letter as being more of an attack on

the government of a member of the League [the Soviet Union].”*° McKinnon Wood apparently wanted to keep the Secretariat out of the political conflict, and there was no political benefit in taking up the cause of left-opposition communists who advocated international revolution. The Central and Eastern European states that signed the conventions calculated that the new system would increase the chances that ultra-nationalist separatists and revisionists who operated from abroad or sought a safe haven in a foreign country would be sentenced. Furthermore, an international criminal court might legitimize their efforts to repress political opponents. On the other hand, some of the legal advisors from Central and Eastern European states believed that new international criminal laws would ameliorate the fractured political and social conditions of Europe, not just bolster their own governments. Pella, for example, stated, “Whatever the perpetrator’s motive, it was obvious, bearing in mind the odious nature of the offence and the fact that the ‘political will of the offender’ had expressed itself in acts of barbarity and terrorism, that the principle of the noncollaboration of States in this matter would constitute the most flagrant repudiation of the duties of international solidarity.”*' Antonin Koukal, Chief Advisor to the Czechoslovak Ministry of Justice, argued that excluding terrorism from the

category of political offenses and extraditing criminals were part of a broad European development that began in the nineteenth century—a legal path that he traced through various laws in Belgium, Switzerland, Sweden, France, and Germany.*’ The Poles sought an even stronger system of extradition than that specified by the convention. Poland insisted on reciprocity, the idea that if it were going

to extradite foreigners who committed terrorist acts on its territory, then other signatories should do the same. However, since Britain was unwilling to change its ” ‘Trotsky to Legal Section, March 31, 1938, LNA/3758/15105/15085. 80 See the draft response dated April 21, 1938 and the memo from McKinnon Wood to Central Section, April 22, 1938, LNA/3758/15105/15085. 8! Proceedings, 66. 8° ‘These included the Belgian clause of 1856; the Swiss Extradition Law of 1892, in which Switzer-

land would grant extradition when “ordinary criminal offences preponderated over the political offence;” a Swedish Law of 1913; the German extradition law of 1929, which authorized extradition for an intentional act directed against lives of human beings unless it was committed in course of open

conflict; and the French extradition law of 1924, which authorized extradition for acts committed during a civil war when they were characterized by vandalism or barbarism. Proceedings, 60.

146 The Birth of the New Justice laws to require extradition unconditionally, Poland rejected the whole anti-terrorism project. At the final negotiations in 1937, the Polish delegate, Titus Komarnicki, complained, “the obligation to extradite [in the draft convention] was so hemmed in by restrictions and conditions that the adoption of the draft would, in point of fact, produce no change in the existing situation; as to the obligation to

try the accused in case of non-extradition, that was not even made explicitly compulsory.”® The cases of France’s, Belgium’s, and the Netherlands’ support for the terrorism convention and the court are intriguing because they are generally viewed as liberal

parliamentary states (though this ignores their colonial holdings, where they reserved the right to use repressive measures to put down disturbances that threatened their rule).** France had originally backed the conventions to maintain its hegemonic position over the Little Entente and keep it from sliding into Germany’s orbit, a strategy that gradually weakened as the 1930s wore on: more research is required to determine whether that strategy explains France’s support for the

conventions to the end, or whether it was all for show. During a debate on the draft conventions held by the Assembly’s Constitutional and Legal Committee in September 1936, Belgian representative Henri Rolin had hotly argued that it made no sense to eradicate the right to asylum for persons who committed acts of politi-

cal violence when certain governments in Europe had come to power through violence (a veiled reference to Italy and the USSR). He sarcastically suggested that perhaps the League should add “an exceptional clause saying that such acts would only be prosecuted if they had failed!” But by 1937 Belgium changed positions, satisfied that the loophole giving states the right to grant political asylum according to their national laws would not restrict its sovereignty. The Netherlands, which in 1936 did not want to end its traditional hospitality to political refugees,*° also changed positions, possibly because the convention’s loophole would not interfere with its ability to grant asylum.

WHY THE INTERNATIONAL SYSTEM WAS NEVER IMPLEMENTED Signs that the conventions did not have full League support were apparent in September 1936, when half the League members at the full Assembly abstained from voting on whether to hold a final diplomatic conference in 1937. The decision

8° Proceedings, 57.

8¢ Upon signing the conventions, France stated that they would not apply to its colonies, protectorates, and territories under its mandate. ®° Records of the Seventeenth Ordinary Session of the Assembly, Meetings of the Committees, Minutes of the First Committee, Constitutional and Legal Questions, 32. 86 See the July 15, 1936 observations of the Dutch government in League of Nations, /nternational Repression of Terrorism. Draft Convention for the Prevention and Punishment of Terrorism. Draft Convention for the Creation of an International Criminal Court. Observations by Governments. Series I and Series

IT, September 7 and September 21, 1936, (Geneva), A.24—A.24(a).1936.V.

International Terrorism 147 to hold a conference was only approved by a vote of 17—9.°” Although twenty-three

states signed the anti-terrorism convention at the 1937 conference, the international legal system under discussion was disconnected from political reality. The League was weak by the mid-1930s. The Disarmament Conference had failed, and Nazi Germany was rearming. The League states had failed to impose sanctions on Japan for its invasion of Manchuria, and they had refused to enact a second round of sanctions (a petroleum embargo) against Italy to force it out of Ethiopia. Inside the League Secretariat, League officials had turned a blind eye to the biased legal system in Austria and the Soviet secret police’s extra-territorial assassinations around the globe. The bigger problem was that ideological violence was exploding in Europe in the 1930s, the major case in point being the Spanish Civil War, in which Germany, Italy, and the Soviet Union actively intervened. The project of trying to erect

an international legal system to prevent outside states from supporting armed groups had proved impossible. By the time the Second World War began in 1939, acts of terrorism, such as sabotage and assassination, were regular features of political life in Central and Eastern Europe. ‘Then, the violence of the war dwarfed the problem of cross-border groups of terrorists who caused “a common danger.” As for Pella’s organization, the International Bureau for the Unification of Crim-

inal Law, the story was beginning to take a dark turn. In 1932, Pella first made contact with German jurists and established “very cordial relations” with a ministerial director named Schaffer through their joint work on the International Penal and Penitentiary Commission. When the Nazis came to power, Pella and Carton de Wiart apparently believed that Nazi Germany could be brought into the movement to unify criminal laws. In 1935, Pella went to Berlin for a Penal and Penitentiary Congress, where he met Minister of Justice Franz Giirtner, “Franck” [probably Hans Frank], and Under-Secretary of State of Justice Roland Freisler, who later headed Hitler’s People’s Courts and their political show trials. He brought these high-ranking members of the Reich up-to-date on the work of the International Bureau and encouraged them to join its efforts. By the time the Nazis joined in December 1938, they had already annexed Austria in March and organized the Kristallnacht pogroms in November. Yet at the Bureau’s 1938 General Assembly, the Germans were welcomed into the group, and everything was presented as normal. Schaffer expressed his view that the Bureau was undertaking profound work. “Our intention is to collaborate from now on in your work with all the responsibility called for,” he pledged. Carton de Wiart, the President of the Bureau, reiterated his “eager satisfaction upon seeing a great country such as Germany associate itself with efforts directed toward the international co-ordination of criminal law.”®* The years 1938 and 1939 found the jurists theorizing about a few old issues that were still important—the treatment of women in penal institutions, for example. Yet much of their work skirted crucial international criminal law issues and became disturbingly irrelevant. After the Nazis entered the organization, the Bureau's major 87 Dubin, “Great Britain and the Anti-Terrorist Conventions of 1937,” 15. 88 See the transcript of the Assemblée Générale, Bureau International pour Unification du Droit Pénal, December 27, 1938, in LNA/3754/Jacket No. 2, 36272/5218, p. 11.

148 The Birth of the New Justice concerns included the discussion of laws to prevent the receivership of stolen goods, as well as laws governing international roadways because Germany was concerned about traffic deaths and roadway banditry, according to a preview of topics for a 1939 conference that was eventually cancelled due to the war.® The Bureau

paid no attention to international immigration law (related to difficulties fleeing fascist and authoritarian regimes) and seems to have been mute on the Nuremberg racial laws and their international implications.

HISTORICAL ANALYSIS The anti-terrorism convention codified the legal definition of terrorism for the first

time in an international setting, reflecting a juridical debate about the nature of terrorism that began in the late 1920s. Certain jurists of both progressive and authoritarian positions attempted to establish that all international acts of terrorism were illegitimate, defining terrorism in purely criminal terms without regard to social or political motive. Acts of potentially legitimate political violence in civil wars and insurrections were supposed to be excluded because they did not fit the convention's criteria for international acts, though these situations were not definitively addressed in the convention language. On the other hand, the anti-terrorism and criminal court conventions represented an attempt to ensure extradition or trial for violent political actors, though states would still have had the power to grant them asylum. It remained ambiguous whether such a system would have been used to ensure the safety of all citizens of the signatory countries, or would have been used selectively to repress political opponents. Thus it is difficult to see the construction of this specific international criminal court, despite its novelty and mechanisms for impartiality, as a clearly progressive institution.”” Because the court was never established during this period, we do not know what its record would have been. This historical episode also demonstrates that jurists, diplomats, and politicians perceived terrorism as a criminal matter, a threat to the common good, an attack against the state, or a possibly fatal spark leading to war. Their goal was to use law and criminal enforcement to repress and punish terrorism. It was assumed deterrence would follow. Other factors which might have mitigated terrorist activity, though not necessarily wiped it out, were not incorporated into the legal approach. Por pro-League jurists, revision of the Versailles borders was out of the question. 8° See the file “Unification du Droit pénal, Bruxelles, 27-30 décembre 1939,” LNA/3754/38570/ 5218, and “Compte-rendu de Mission Par Emile Giraud. Réunion du Bureau International pour PUnification du Droit Pénal 4 Paris les 27 et 28 Décembre 1938,” March 27, 1939, sent to McKinnon Wood in LNA/3754/Jacket No. 1, 36272/5218. °° ‘Theoretically the international criminal court was to be impartial; states would nominate judges, and the Permanent Court of International Justice would select them. Judges’ terms were to be limited to ten years. The court would have had the freedom to decide whether it wanted to hear prosecution and defense witnesses, and it would have had the right to summon other witnesses and evidence. While hearings were supposed to be public, the court also had the right, “by a reasoned judgment,” to have hearings in camera. See Articles 7, 10, 32, and 35 in Proceedings, 21-5.

International Terrorism 149 The protection of minorities was not expanded beyond the limited efficacy of the special League of Nations committee that investigated minority petitions, rejecting many of them. States had a voice before the League and the Permanent Court of International Justice, but individuals and popular groups had no official standing—nor would they have had a voice before the international criminal court, which only would have heard cases brought by states. Finally, state sovereignty remained a flexible concept: necessary to protect rights and prevent violence in some cases, a justification to perpetrate violence in others. Transforming “the new justice” to deal with terrorism proved politically insur-

mountable in this period. The concept of an international criminal court, the notion that all states had a duty to prosecute or extradite certain types of perpetrators, and the idea that international law must apply to individuals had a different

meaning when applied to terrorism, as an allegedly “common,” non-political crime, than when applied to aggressive war or the violation of the laws and customs of war. First, for the international criminal jurists, the central issue was that terrorism could potentially spark a new war, so in that sense, it was connected to their earlier project to prevent another world war. However, it proved impossible to deal with terrorism without recognizing that the motives of terrorists mattered. Nor was it possible to create a legal structure that would prevent certain states in the 1930s from condoning terrorist groups, actively supporting them, or using their own police forces and paramilitaries to terrorize their own populations. At the same time, several states, such as Britain and Switzerland, were confident that they

could deal with alleged terrorists through their own police forces and courts. Second, applying “new justice” concepts to terrorism offered states a way to band together to preserve their own authority when threatened by opponents who operated outside their borders. In theory, all states were supposed to help each other by prosecuting or extraditing each other's enemies. The concepts of protecting “public security’ and preventing crimes “that constituted a common danger” were supposed to be politically neutral ideas, acceptable to all state officials. This was an entirely different project from efforts to restrain militaries by criminalizing violations of the laws of war, which were ways to limit state authority and military power. This problem became central during and after World War Two, along with a problem that the League of Nations’ Minorities Protection System and the construction of statutes for international criminal courts had not dealt with: states which coordinated and ordered persecution and extermination of racial, national, and religious groups.

The Search for a Victim-Centered New Justice, 1942-1946: The World Jewish Congress and the Institute of Jewish Affairs! From 1919 to 1939, the international criminal legal projects that adopted prosecution were designed to prevent another war, prosecute violations of the Hague and Geneva Conventions committed during a war, prevent the spread of communist revolution, preserve social order against trans-border crimes, and suppress nationalist and separatist terrorism. The projects were aimed at specific social and politi-

cal problems, sometimes with an eye to the past, sometimes with a vision of constructing a future international system that would protect the existing postVersailles borders and capitalist social order. For example, the European majority on the Commission on Responsibilities in 1919 sought to create a joint international tribunal after World War One to punish violations of the laws and customs

of war (and laws of humanity) in order to re-assert the validity of nineteenth century international law and dismantle German militarism. The Committee of Jurists in The Hague in 1920, on the other hand, was tasked with building an international civil court that would reduce friction among states. It briefly entertained the idea of a criminal chamber to protect the post-war social order from “crimes against the international order,” which might have encompassed everything from attacks against League officials by Soviet revolutionaries to aggressive war. The Association Internationale de Droit Pénal, in conjunction with jurists from the International Law Association, wanted to establish an international criminal court within the Permanent Court of International Justice to prevent aggressive

war and prosecute cross-border crimes, supporting the idea that the criminal, wherever he lurked, must be prosecuted to ensure social stability. In all these projects, there was almost no discussion of protecting minorities using international criminal prosecution: the Welsh proposal in the International Law Association to grant the League of Nations’ Minorities Committee the power to prosecute violations of the minorities treaties went nowhere.’

' This chapter is adapted from Mark A. Lewis, “Ihe World Jewish Congress and the Institute of Jewish Affairs at Nuremberg: Ideas, Strategies, and Political Goals, 1942-1946,” Yad Vashem Studies

36 (2008): 181-210. * ‘The next chapter will describe Raphael Lemkin’s use of the concepts of “barbarism” and “vandalism” to develop a proto-concept of genocide in the 1930s.

The Search for a Victim-Centered New Justice 151 An entirely different kind of organization, the World Jewish Congress (WJC), supported a victim-centered concept of the “new justice” between 1942 and 1946 that was distinct from previous concepts, largely because the group was concerned with protecting the rights of Jewish minorities in both national and international legal frameworks and believed that if it did not help create revolutionary concepts in “war crimes” law, crimes committed by the Nazis and their collaborators in eastern Europe would go unpunished. Its victim-centered “new justice” contained several new elements that other legal organizations had either marginalized or not considered: international criminal prosecution could be used to replace a domestic legal system

that had failed; post-war criminal prosecution of crimes against minority groups could create an important historical record; an organization representing a minority group should serve as a “friend of the court” during trials; and the pursuit of reparations and restitution, not only criminal prosecution, was integral to obtaining justice.’ Thus, the WJC’s concept of the victim-centered “new justice” was a type of forerunner to the “transitional” justice discussed in the 1990s.‘

This chapter will outline the reasons why the WJC pursued this concept, the different political and legal pathways it pursued to realize it, and whether its efforts had a longer historical legacy. Like other legal organizations, the WJC had particular political and intellectual demands that arose from its historical context, but unlike

legal organizations connected to the League of Nations or independent professional organizations of jurists, the WJC was a political pressure group that tried to influence politics and law through mobilizing its member organizations in different countries and through lobbying governments directly. On the one hand, it was the

successor to the post-World War One generation of “international Jewish diplomats” who had lobbied for the minorities treaties in 1919-1920.? On the other, it was an organization involved in mass mobilization efforts for a specific type of rights, in this case the economic, religious and cultural rights of a minority group within different nation-states. In this sense, it fits into the pattern of pre-1945 organizations that mobilized participants across national borders for specific causes. > "The WJC as a whole held a conference in Atlantic City, New Jersey, USA in November 1944, voting in favor of a war crimes policy supporting these ideas, though the WJC’s research division, the Institute of Jewish Affairs, had developed the positions starting in April 1944. See the Institute’s draft of retribution demands, “Resolution on Retribution, War Emergency Conference of the World Jewish Congress, New York, May 1944, Tentative Draft, Confidential,” April 18, 1944, and Jacob Robinson’s

introductory note of April 11, 1944, in World Jewish Congress Collection, Manuscript Collection No. 361, Box C174, Folder 9, Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati Campus, Hebrew Union College, Jewish Institute of Religion. Hereafter WJC/C174/9. See also the Executive Committee's suggested policy, “A Statement of Policy Adopted by the World Jewish Congress Executive Committee. Punishment of War Criminals,” WJC/C106/11. * Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998). > On the predecessors of the WJC and its attempt to renew the project to unify Jewish groups to defend minority rights under the minorities treaties, see Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878-1938 (New York: Cambridge University Press, 2004), 49-57, 148-51, 316-22. For in-house assessments of the group, see World Jewish Congtess, Unity in Dispersion: A History of the World Jewish Congress (New York, 1948) and Isaac I. Schwarzbart, 25 Years in the Service of the Jewish People. A Chronicle of Activities of the World Jewish Congress. August 1932—February 1957 (New York: World Jewish Congress Organization Department, 1957).

152 The Birth of the New Justice Even when the WJC used the language of universalism, this was generally tactical,

as its primary mission was the defense of Diaspora Jews.° Previous historical research on the WJC has concentrated on its efforts to rescue Jews during World War Two, its relationship with other Zionist and non-Zionist Jewish organizations,

and its rocky relationship with the International Committee of the Red Cross.’ Other historians have examined the organization’s intellectual and legal contributions to the first Nuremberg trial in light of a debate about whether the Nuremberg trials adequately represented the history of the Holocaust or whether the history was obscured by certain legal concepts and political interests.* This chapter is not an analysis of whether war crimes trials presented accurate history’ but an examination of the ways in which a particular type of pressure group, in this case, one

representing genocide victims, propelled ideas about criminal prosecution and other forms of justice that previous legal organizations had hardly touched.

FROM MINORITY RIGHTS TO CRIMINAL PROSECUTION Unlike other organizations discussed in this book, the WJC was a political organization, rather than a strictly legal organization, though it relied heavily on the advice of lawyers in its ranks. While the European school of penal reform in the 1920s and ’30s was rooted in criminology and criminal prosecution as a means to protect society from revolution and terrorism, the WJC’s domain was diplomacy to protect minority rights using the League of Nations system to supervise the minorities treaties. The WJC was not formally founded until 1936 in Geneva, yet its leadership began trying to form an umbrella organization to represent Jewish rights in the League of Nations and with various governments starting in 1932.'° The original goal was to defend the rights of Jews in the Diaspora and Palestine, ° Jean H. Quataert, Advocating Dignity: Human Rights Mobilizations in Global Politics (Philadelphia: University of Pennsylvania Press, 2009), 29, explains that pre-World War One and post-World War One feminist and anti-colonial movements often drew “moral power” from a concept of “common humanity,” though the groups were actually working for the liberation of their own members, as they were the ones who were oppressed. ” Monty Noam Penkower, “The World Jewish Congress Confronts the International Red Cross during the Holocaust,” Jewish Social Studies 41, no. 3/4 (1979): 229-56; Monty Noam Penkower, “American Jewry and the Holocaust: From Biltmore to the American Jewish Conference,” Jewish Social Studies 47, no. 2 (1985): 95-114. ® Lewis, “World Jewish Congress,” 181—210; Michael R. Marrus, “A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs, 1945-46,” in The Nuremberg Trials: International Criminal Law Since 1945. 60th Anniversary International Conference, ed. Herbert R. Reginbogin and Christoph J. M. Safferling (Miinchen: K.G. Saur, 2006), 63-71. > For this debate, see Michael R. Marrus, “The Holocaust at Nuremberg,” Yad Vashem Studies 26 (1998): 5-41, and the response by Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001). Kevin Jon Hel-

ler, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 4, argues that the U.S. Nuremberg Military Tribunals exposed the history of Nazi genocide in ways the international trial did not. '© Emmanuel Deonna, “Jiidischer Weltkongress,” in Enzyklopadie jiidischer Geschichte und Kultur,

ed. Dan Diner (Stuttgart: J.B. Metzler, 2012), 3: 263-6.

The Search for a Victim-Centered New Justice 153 and the WJC’s Zionist viewpoint differentiated it from some of its Jewish competitors, such as the Anglo-Jewish Association and the British Board of Deputies in Britain, the Al/ance Israélite Universelle in France, and the American Jewish Conference in the U.S. Once Hitler came to power in 1933, the organization backed an economic boycott of Nazi Germany (a project that more conservative Jewish groups opposed), and it tried to assist German Jewish refugees by lobbying the League of Nations and trying to convince governments that they needed a worldwide plan to provide visas and grant citizenship. Within the League’s legal structure, the WJC’s only real success was winning a legal decision that forced Nazi Germany to delay implementing anti-Jewish laws in Upper Silesia until 1937. The

WJC’s attempts to create pro-Jewish policy in the League’s Office of the High Commissioner for Refugees ended in failure, as did its efforts to convince govern-

ments at the Evian Conference in 1938 to create a comprehensive solution to accept Jewish refugees from Germany, Austria, Romania, Poland, and Hungary— countries where Jews were under attack from radical right-wing paramilitaries in the streets and from new forms of anti-Jewish legislation.'' While the organization was an activist leader—besides the anti-German boycott, it supported Jewish labor strikes in Warsaw and lobbied foreign governments to put pressure on the Romanian government to roll back its anti-Jewish legislation in 1938'*—it confronted three fundamental problems on the international stage: Jewish organizations were divided into factions in this period (and continued to be during the war); the Cen-

tral and Eastern Europe states bound by the League’s minorities treaties were revolting against them, while the treaties did not apply to Germany; and the democratic Great Powers never saw anti-Jewish legislation or Jewish emigration as central international problems."°

Once World War Two began, the WJC continued lobbying governments and issuing publications about anti-Jewish policies, countering widespread government silence that the Nazis were applying new measure against Jews and targetting them on the basis of “race.” It closely followed the ghettoization of Jews in the Nazis’ “Jewish reservation” in Poland, working to bring material aid to these communities.

In 1940, it formed the Institute of Jewish Affairs, a research department of refugee lawyers and a demographer, who wrote books about Nazi legislation and the impact of starvation policies on the ghettos. However, in 1940-41, the Institute did not discuss future criminal prosecution as a way to address either legalistic policies used against Jews or acts of violence. A series of events altered this in 1942: exile governments announced a new policy on “war crimes;” the WJC received a flood of

'' Elizabeth E. Eppler, “Rescue and Relief Activities, 1933-1945,” WJC/D3/7, 3-39; Saul Friedlander, Nazi Germany and the Jews (New York: HarperCollins, 1997), 27-8, 120-2, 137-44; Nicholas M. Nagy-Talavera, Zhe Green Shirts and the Others: A History of Fascism in Hungary and Romania (Portland, Oregon: The Center for Romanian Studies, 2001 [1970]), 136, 285; Jean Ancel, The History of the Holocaust in Romania, trans. Yaffah Murciano (Lincoln, Nebraska: University of Nebraska, 2011), 25—38.

' Minutes of the WJC Executive Committee, Paris, January 9, 1938, WJC/AG6/11, 9-19. 'S Joseph Rothschild, East Central Europe between the Two World Wars (Seattle: University of Washington Press, 1974), 39; Fink, Defending the Rights of Others, 349-57.

154 The Birth of the New Justice information about the Nazis’ extermination campaign in Poland and the occupied Soviet Union; and the U.S. entered the war. The first event that propelled the WJC to formulate its policy on atrocities and the legal category of war crimes was a brief conference held by nine exile governments in London in January 1942, which issued the St. James Declaration.'* The governments stated that Nazi Germany had violated the Fourth Hague Convention of 1907, which did not “permit belligerents in occupied countries to perpetrate acts of violence against civilians, to bring into disrepute laws in force or to overthrow national institutions.” The exile governments announced that they “place amongst their principal war aims punishment through the channel of organized justice of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them.” They intended to punish individuals “whatever their nationality” through some type of legal process.” The WJC had not been involved in the diplomatic consultations to create this declaration and had been completely caught off guard by it. It was alarmed because it appeared the exile governments did not want to acknowledge that Jews were specially targeted by Axis and satellite governments. ‘The exile governments assumed

that when they spoke in the name of Allied populations under occupation, they were talking about all Allied nationals, regardless of religion and Nazi concepts of race. According to Polish Prime Minister Wladislaw Sikorski, President of the St. James Conference, “As in the opinion of the signatories|,]...the character, the

race or religion of the victim ought not in any case to constitute an element susceptible of modifying the criminal nature of an act or the degree of its illegality. There was no reason explicitly to recall the sufferings endured by the Jews [,] all the more so as such a reference might be equivalent to an implicit recognition of the racial theories which we all reject.”!° The WJC did not see the situation this way, arguing that Jews were specifically victimized because they were Jews, not because of their political views or resistance activities,'” which was one of the justifications the Nazis used to impose harsh reprisals against populations in the occupied states. The WJC was equally concerned about limitations in the codified laws of war. The Hague Convention did not protect populations attacked by radical groups and government agents prior to the war; the laws of war covered armed conflict, not internal domestic violence against minority groups. Further, the St. James Declaration did not mention persons in Axis countries (Germany, Romania, Hungary) who were attacked, tortured, murdered, and imprisoned by their own governments. As the Czechoslovak Foreign Minister informed the WJC’s British Section, the Allied governments would not be able to claim jurisdiction over Germans who committed

‘4 ‘The governments were Belgium, Greece, Luxembourg, Norway, Netherlands, Poland, Czechoslovakia, Yugoslavia, and Free France.

' For the text of the declaration, see Beer to Wise, et al., January 13, 1941, WJC/C174/10. '© Siksorski’s letter, May 9, 1942, is contained in a cable from Easterman to Wise and Perlzweig, May 14, 1942, WIC/C174/6. '7 Perzlweig to Easterman, June 15, 1942, WJC/C174/9; draft letter to Sikorski, written by Perlzweig, as a suggestion to be used by Easterman at his discretion, June 15, 1942, WJC/C174/9.

The Search for a Victim-Centered New Justice 155 crimes against German nationals.'* For frve months, the WJC tried to convince the exile governments that it should have the right to send a representative to the St. James Conference, but it turned out that the conference did not become a permanent inter-governmental body that would collect evidence of violations for future prosecutions. Nevertheless, the declaration stimulated Institute lawyers to begin searching for a legal foundation to prosecute crimes committed against Jews before the war. Lawyers also sought an international legal foundation to prosecute Axis nationals for crimes committed against Jewish co-nationals and “stateless” persons who had been stripped of their citizenship. The Institute called this the attempt to extend the doctrine of war crimes “in time and space.”" From the beginning of 1942 through the fall, Institute lawyers contended that the WJC should not exclusively emphasize murder operations against European Jews and neglect pre-war “legalistic” measures, the arrest and deportation of Jews to concentration camps in the 1930s, and the Nazis’ starvation policies during the

period of ghettoization after 1939. Jacob Robinson (1889-1977), a Lithuanian international lawyer who served as the Institute's first director, stated in January 1942, “Not the atrocities are the decisive factor in the Jewish future in Europe; it is rather the ‘cold pogrom carried out by anti-Jewish legislation and administrative measures which transform millions of men into paupers and invalids.””° In July 1942, the Institute presented a report that divided the physical extermination of the Jews into pre-war and war-time phases, and classified the types of actions used to destroy the Jews as a group: physical violence such as pogroms, murder, and torture; “natural” deaths and starvation; ghettos; religious persecutions; the ruin of culture; and economic measures (“robbery, confiscation, and ‘Aryanization’ of property.”)*’ According to this interpretation, these constituted an organized project of collective destruction, not an assemblage of individual atrocities. This classification was fundamental to the Institute's later legal and historical interpretations. The idea that this was a collective crime with multiple aspects pre-dated Polish-Jewish attorney Raphael Lemkin’s concept of modes of genocide, described in his 1944 book Axis Rule in Occupied Europe. Institute lawyers included the 1942 categories in a major criminal indictment that they wrote in 1945 for the U.S. Office of Strategic Services, whose analysts mainly revised the Institute’s indictment. Most important, prosecutors used these categories in their indictment submitted to the International Military Tribunal

at Nuremberg (IMT), and the U.S. prosecution presented them during the “conspiracy” phase of the trial that dealt with the “persecution of the Jews.”

During the summer of 1942, several pieces of evidence flowed into the WJC that indicated the existence of a concerted Nazi extermination program. This material reinforced the Institute’s concept that that the Nazi project was intentional and planned, even though it appeared subject to fits and starts. Gerhart '8 Note of Conversation between Dr. Ripka, Foreign Minister of the Czechoslovak Government, Dr. N. Barou and Mr. A. L. Easterman, on behalf of the British Section of the World Jewish Congress, April 14, 1942, WJC/B26/11.

' Institute Minutes, September 24, 1943, WJC/C101/9. *° Robinson to Perlzweig, January 22, 1942, WJC/C174/10. “I “The Present Situation of the Jews in Europe,” July 1, 1942, WJC/B26/11.

156 The Birth of the New Justice Riegner, the WJC delegate in Switzerland, informed the WJC’s London office that the Nazis had formulated a plan to deport three and a half to four million European Jews to concentration camps in the East and exterminate them with prussic acid.*? The WJC headquarters in New York also knew by October 8, 1942

that 100,000 Jews had been deported from the Warsaw ghetto and had been killed by poison gas, while other Polish ghettos were also being evacuated.*? By the end of 1942, the Institute had new information from eyewitnesses: there were dedicated “extermination centers,” such as special gas vans in Chelmno, Poland, and “great crematoriums at Ozwiencim” (Oswiecim, or Auschwitz.)”* Some of the WJC’s information about the nature of an extermination order was incorrect; for example, it believed the idea had originated from a Nazi official in charge of the food supply and that Heinrich Himmler and Hans Frank were initially opposed

to its implementation.” Nor did it know about the Wannsee Conference in January 1942, when the heads of Nazi government departments discussed the implementation of the Final Solution, a project that had already been handed over to Himmler’s deputy Reinhard Heydrich.*° Because the Institute’s interpretation of the extermination program was “intentionalist,” which is not the current interpretation of the Nazi project, it is necessary to explain why the WJC reached

this conclusion. It did not have internal Nazi documents but kept track of Nazi speeches and publications that repeatedly called for the eradication of the Jews. Additionally, it seemed inconceivable to Institute analysts that the program could be accidental or that Hitler and Himmler only decided on total extermination after earlier plans to pauperize the Jews, force them to emigrate, and deport them to various reservations had failed.?’ Another factor shaping the legal theory was that in 1942 the WJC rejected the idea of trying to persuade the Allies to take reprisals against the Axis powers to ** On the “Riegner telegram,” see Gerhart M. Riegner, Never Despair: Sixty Years in the Service of the Jewish People and the Cause of Human Rights, trans. William Sayers (Chicago: Ivan R. Dee, 2006),

34-51. See also the copy of Paul Guggenheim’s declaration to U.S. Consul Paul Squire, October 29, 1942, WJC/B1/4; Walter Laqueur, The Terrible Secret: Suppression of the Truth about Hitlers “Final Solution” (New York: Penguin Books, 1980), 62-4, 76-82; Jean-Claude Favez, The Red Cross and the Holocaust, trans. John and Beryl Fletcher (Cambridge: Cambridge University Press, 1999), 38-41. *> “The Situation of the Jews in the General Government, Switzerland, Lichtenstein. Report Sent to World Jewish Congress from Geneva,” October 8, 1942, WJC/C174/6. *4 Memorandum Submitted to the President of the United States (by the American Jewish Committee, the American Jewish Congress, B’nai B'rith, the Jewish Labor Committee, the Synagogue Council of America, and the Union of Orthodox Rabbis of the United States), December 8, 1942, 10-11, WJC/C174/10. The fact that the memo was written by the Institute of Jewish Affairs is confirmed by Minutes of Meeting on European Situation, November 5, 1942, WJC/C174/10. °° Memorandum Submitted to the President of the United States, 8, WJC/C174/10. *6 ‘The Wannsee protocol was only discovered by U.S. prosecutors at the beginning of 1947. See Eckart Conze et al., Das Amt und die Vergangenheit. Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik, 2nd edn (Munich: Karl Blessing Verlag, 2010), 384. *’ For different interpretations about the timing and rationale for the decision to exterminate European Jews, see Philippe Burrin, Hitler and the Jews: The Genesis of the Holocaust (London: Edward Arnold, 1994); Christian Gerlach, “The Wannsee Conference, the Fate of German Jews and Hitler's Decision in Principle to Exterminate all European Jews,” Journal of Modern History 70, no. 4 (1998): 759-812; Christopher Browning, Nazi Policy, Jewish Workers, German Killers (Cambridge: Cambridge University Press, 2000); Christopher R. Browning, 7he Origins of the Final Solution. The Evolution of Nazi Jewish Policy, September 1939-March 1942 (London: William Heinemann, 2004).

The Search for a Victim-Centered New Justice 157 force the latter to stop anti-Jewish actions. Instead, the WJC argued for decisive rescue actions and the threat of legal prosecution as a means of deterring continuing crimes. Leon Kubowitzki, chief of the WJC’s Department of European Jewish Affairs, had suggested that the WJC should urge the Allies to bomb German villages and towns to prevent further anti-Jewish actions, but, according to Max Beer, Rabbi Stephen S. Wise, the head of the WJC, believed that lobbying for reprisals was politically unwise, because the “Americans have not yet completely thrown themselves into this war.””® Beer, a German socialist historian who had been expelled from Nazi Germany in 1934, advised the WJC that it should support the general United Nations war effort, not concentrate on exposing Jewish suffering. “The Jewish people in this war and after this war will be judged not by what they have done for the Jews, but by what they have done for the human society,” he wrote (his emphasis).”

In 1942, the WJC certainly supported the general war effort, but it decided to begin a forceful publicity campaign to bring the extermination of the Jews to light. The WJC organized a London press conference on June 29, publicizing reports about the mass shootings of over one million European Jews, ghettoization, and slave labor.*’ The group helped organize a major protest rally against Nazi atrocities

at Madison Square Garden in New York on July 21, 1942. In conjunction with that event, Roosevelt called for “strict accountability” for Nazi crimes, and Church-

ill declared that “the Jews were Hitler’s first victims,” and retribution for “Nazi

butcheries and terrorism” was “among the major purposes of this war.” On November 24, the WJC held a press conference in Washington, D.C., where Wise finally publicized the existence of a concerted extermination campaign based on

Riegner’s information, after the U.S. State Department had verified the WJC’s sources.*' As a result of these efforts, the Allied governments issued statements condemning Nazi war crimes, which the Institute collected and believed could be used after the war to remind the governments of promises to pursue legal retribution.” However, during 1943 and 1944, Britain and the U.S. were not willing to back up their war crimes statements with definite policies. They feared reprisals against their POWs, were wary of the legal difficulties of trials, or wanted to delay post-war planning as long as possible.*

*8 Max Beer, “A Few Remarks about the Jewish Attitude in This War, Especially in the Field of Propaganda,” September 2, 1942, WJC/C174/10. *? Max Beer, “A Few Remarks about the Jewish Attitude in This War.” Beer worked for the WJC from 1941-43. See Johannes Valentin Schwarz, “Beer, Max,” Encyclopaedia Judaica, 2nd ed., ed. Michael Berenbaum and Fred Skolnik (Detroit: Macmillan Reference USA, 2007), 3: 252-3. °° United Press, “1,000,000 Jews Slain by Nazis, Report Says,” New York Times, June 30, 1942; Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill, N.C.: University of North Carolina Press, 1998), 139. 31 United Press, “Wise Gets Confirmations,” New York Times, November 25, 1942. *° “The Declarations and Warnings by the United Nations Against War Crimes,” n.d. [based on internal evidence, written after October 1944], WJC/C175/8.

1981) 150 Prelude, 15-26; Bradley E Smith, The Road to Nuremberg (New York: Basic Books,

158 The Birth of the New Justice DIVERGENT LEGAL VIEWS The Institute in New York and the British Section in London developed different legal foundations for criminal prosecution and pursued different diplomatic strategies for implementing them from 1943 through early 1945. The Institute developed a legal theory that tied pre-war crimes to the concept of preparations for ageressive war. It passed this theory to the WJC’s Political Department, which got a more receptive hearing from the U.S. government than from the British government. The WJC’s British Section also connected pre-war crimes to aggressive war preparations but also developed a theory based on individual rights and moral principles. During the war, it primarily lobbied the United Nations War Crimes Commission (UNWCC) and did not gain much traction there. It also established contact in 1945 with French and Soviet representatives, who agreed that antiJewish crimes should be included in a large-scale, post-war trial of major Nazi figures.°* The WJC’s major problem remained how it could actually get the Allied governments to use its legal interpretations and accept the evidence of anti-Jewish crimes that it had been collecting during the war. As explained above, officials and lawyers in the WJC believed that the Nazis had a pre-war intention to exterminate the Jews, and they contended that Nazi legislation, expropriation, and acts of violence between 1933 and 1939 must be considered part of a collective, continuous extermination action. Therefore, when the organization started to pursue the idea of trials at the end of 1942, WJC lawyers sought a legal basis for international prosecutions for acts that were not actually violations of the laws and customs of war. The Hague Convention specified rules for how an occupying army must treat a civilian population, and the Geneva Conventions established the code for the treatment of sick and wounded soldiers and prisoners of war. They did not provide any rules for the treatment of civilians within the framework of a domestic state, nor did they establish a system of inter-

national protection for civilians attacked by their own government, whether through expropriation or pogroms. The treatment of Jews in the German Reich, as well as those in Romania and Hungary, introduced other problems. How was it possible for the United Nations to prosecute Axis foreign nationals for actions they committed against persons, in this cases Jews, who had been citizens of Axis states? How could government representatives be held criminally liable for decrees and laws that stripped persons of their rights and property if this occurred under the legislative and legal system of the Reich, which, from one traditional perspective of international law, was supposed to be sovereign?

The WJC did not see itself as the first minority group to face this challenge. The Institute noted that the Armenian delegation at the Paris Peace Conference

4 A. Steinberg, “Note of Conversation with Monsieur K. M. Kukin, Counselor of the Soviet Embassy, at the Soviet Embassy, on the 3rd July 1945, Regarding the Jewish Case against the Major

War Criminals,” WJC/C102/5; “Report to the Executive Committee of the British Section of an Interview with Professor Rene Cassin at the French Embassy in London on the 4th June 1945, Concerning War Crimes,” WJC/C174/10.

The Search for a Victim-Centered New Justice 159 after World War One had demanded international trials and a homeland,* but the Allies had refused to establish international trials of the Turkish officials responsible for deportation and massacres in 1915-16. In the Institute’s opinion, the Allies were more interested in winning economic concessions from the

Turkish national government at the Lausanne Conference in 1923 than honoring the pledge for international trials made in the Treaty of Sévres, while Allied populations had grown “tired” of the Armenian problem.* This suggested

that the WJC would need a strong legal theory and continuous diplomatic campaign. Therefore, the concept of “war crimes” had to be expanded to cover 1933-39 and include crimes committed by Axis nationals against their fellow nationals (in this case, Jews). Robinson, from the Institute, developed an argument that used the 1928 Kellogg-Briand Pact as a base, while Franz R. Bienenfeld, a lawyer with the British Section, developed an argument based on individual rights and fun-

damental moral principles. This is interesting because already in 1943-4, one lawyer afhliated with the WJC was trying to connect crimes against the Jews to a theory of aggressive war, while another was linking them to universalist concepts of rights and humanity, tending towards a “crimes against humanity” concept. Robinson argued that Kellogg-Briand, which had outlawed war as a means of national policy, meant that the Nazis’ war was illegal, and all actions from 1933-39 in preparation for the war could be judged as common crimes prohibited by the codes of all “civilized nations.”*’ Robinson had to explain how anti-Jewish acts were preparations for the war, so he argued that the Nazis wanted to exterminate the Jews because they were “obstacles” to Hitler’s plan to create a unified, warready nation. According to Robinson, Hitler believed that Germany had lost World War One due to the mutinies and strikes inside Germany in 1917; hence,

“internal enemies” had to be destroyed to avoid this situation in a new war. These supposed enemies included Jews, Socialists, political Catholics, and resist-

ant Protestants. Robinson also hypothesized that the Nazis used the German Jews as “guinea pigs...in order to test the extent of the resistance [the Nazis] might expect to encounter in the outside world.”*”’ He further argued that the Nazis and the satellite states used “anti-Semitism as an instrument of both »° See Warhaftig’s statements in “War Crimes. Meeting of the Institute of Jewish Affairs,” Decem-

ber 28, 1944, 4, WJC/C101/9. In an earlier meeting in March 1944, Robinson was unfamiliar with the trials held in Constantinople after World War One (which were mentioned by Warhaftig) and wanted to the Institute to investigate the post-World War One legal precedents for trials after World War Two. See “Minutes of the Second Meeting of the Committee on War Crimes,” March 28, 1944, 3, WJC/C101/9. °° See the Institute legal study, “War Crimes. Part I. Basic Problems. Chapter One: Lessons of the Past. A. The Armenian massacres,” first page (unnumbered) and second page (marked 16), WJC/ C175/7. This follows a 69-page document in the same folder. °” Robinson, “Comments on the Memorandum on the Necessity of a Jewish Representative on the

International Committee for Penal Reconstruction and Development,” December 29, 1942, WJC/ C174/4. °8 Robinson, “Memo I: War Crimes—Some Basic Ideas” and “Memo II: War Crimes—Specific Crimes against the Jews,” July 22, 1943, WJC/C174/6. 9 “Memo IL” WIC/CI74/6.

160 The Birth of the New Justice national and international policy...dividing their enemies, both actual and potential, and so diverting their attention from real problems to imaginary ones. 940

Bienenfeld, an Austrian lawyer who fled to Britain in 1939, also linked pre1939 crimes with war preparations, but he presented additional arguments why German officials could be prosecuted for crimes against Jewish nationals. “It would be erroneous to turn only to international agreements such as the Hague Convention or the Kellogg Pact for the interpretation of the term ‘internationally recognised rights’ before which laws of a certain state may be regarded as criminal.”*! Bienenfeld stated that Nazi actions against German and Austrian Jews prior to 1939 violated two principles that already existed in international law, even if they had not been formally codified. The first was the concept of individual legal title, the idea that an individual had fundamental rights which could not be eliminated. Bienenfeld claimed this was a universally recognized principle in the nineteenth century and had been codified in treaties abolishing the slave trade. The second was the moral principle that all murder was wrong; even states that used the death penalty were only supposed to employ it to punish actual offenses, so murdering whole groups of people was totally illegitimate. Bienenfeld argued that the preamble to the Fourth Hague Convention, including the Martens’ declaration, was simply an expression of these pre-existing principles. In a draft letter to Zhe Times (of London), Bienenfeld wrote that the principle of individual legal rights and the moral rule that the state cannot murder were “the laws of Humanity.”” Therefore, the WJC’s different branches were deploying two different arguments, one that defined actions from 1933-39 as preparatory actions for an aggressive war, and the other based on individual legal rights and humanitarian principles.

DIVERGENT DIPLOMATIC STRATEGIES Purther complicating the WJC’s position was that the British Section in London and headquarters in New York pursued contrary policies with the United Nations Commission for the Investigation of War Crimes (UNWCC). First, an explanation

“© Jacob Robinson, “Jewish Post-War Program. Explanatory Note,” August 24, 1943, WJC/B1/6. It is possible that Robinson was influenced by Franz Neumann's instrumental view of anti-Semitism, contained in Behemoth: The Structure and Practice of National Socialism (New York: Oxford University

Press, 1942). However, I have not found memos or correspondence in which Robinson referred to Neumann's work, and Robinson sometimes circulated analyses of works that he found especially important (or wrong.) On the positive influence of Neumann’s ideas in Nuremberg prosecutions, see Michael Salter, US Intelligence, the Holocaust and the Nuremberg Trials: Seeking Accountability for Geno-

cide and Cultural Plunder (Boston: Martinus Nijhoff, 2009), 2: 594-636.

“| Bienenfeld and Kobler, “War Crimes Against the Jews,” Draft No. 6, n.d., 5, WJC/C162/8. See also a summary of the argument in “Draft Letter on War Crimes to the Editor of the Times (by Dr. Bienenfeld),” n.d.. WJC/C174/9. Both texts were written prior to February 27, 1944, because they are critiqued in Weis to Steinberg, February 27, 1944, WJC/C174/9. “2 Bienenfeld, “Draft Letter on War Crimes,” WJC/C174/9.

The Search for a Victim-Centered New Justice 161 of the UNWCC’s internal problems is necessary.** When the British government proposed the creation of the UNWCC at the end of 1942, the organization was handed a restricted mandate; it should only gather evidence and make legal recommendations dealing with traditional war crimes, meaning violations of the Hague and Geneva Conventions. The UNWCC was designed to gather evidence of executions of POWs and reprisals against civilian populations under occupation, but not about crimes committed by an Axis government against its own nationals, nor about pre-1939 crimes. In March 1944, the U.S. representative on the UNWCC, Herbert Pell, had proposed to the UNWCC Legal Committee that the body open up its investigations to “crimes against humanity,’ meaning “crimes committed against stateless persons or against any persons because of their race or religion.” The whole UNWCC approved this move in May. The chairman of the UNWCC, Sir Cecil Hurst, a British judge on the Permanent Court of International Justice, sent a letter to British Foreign Secretary Sir Anthony Eden, asking him either to announce that the United Nations would allow the UNWCC to consider atrocities committed in enemy territory for racial, political, or religious reasons, or create another body to take up the issue. Eden only answered in October, demonstrating that he did not want his government to commit time and resources to the project. According to the British government's official statement in January 1945, Hurst had offered “the Commission’s services in helping to bring to book those responsible for crimes against the Jews in the Nazi countries,” but Eden had replied that the UNWCC should “not undertake additional burdens.” In between the time that Hurst had written and Eden replied (the summer and

fall of 1944), the UNWCC had made a number of recommendations to United Nations governments about the “legal machinery” that should be used to prosecute “war criminals” (meaning individuals who violated the Hague and Geneva Conventions). The U.N. states should establish a war crimes office in enemy territory, require the Axis powers at the time of surrender to deliver persons wanted for war crimes, and have U.N. military commanders establish mixed military tribunals.

The UNWCC also drew up a draft convention for a U.N. war crimes court. Despite all this work, only three governments (the Czechoslovak, Yugoslav, and British) responded to any of the recommendations. The British government, bound to have major influence over the peace settlement, would only commit to stating that it was considering the proposals. All this frustrated Hurst, so he resigned in January 1945, as did Pell.** In the eyes of the Czech member of the UNWCC, Bohuslav Ecer, the UNWCC had repeatedly stressed the urgency of creating actual legal machinery to deal with war criminals in light of an impending Allied victory,

*® ‘The following summary comes from Bohuslav E¢er, “Memorandum on the Present Position of the United Nations War Crimes Commission, the Work Already Done, and Its Future Tasks,” February 8, 1945, WJC/C95/14. Ecer was the Czech member of the UNWCC. “ Perlzweig discussed the resignations with Pell in a conversation on January 31, 1945. Perlzweig reported, “Sir Cecil Hurst had resigned because of the failure of the Foreign Office to respond to the proposal of an international court. Pell had himself been hampered by a total lack of support from the State Department and his reiterated demand for instructions along certain lines had been evaded or unanswered.” See Perlzweig to Office Committee, February 1, 1945, WJC/C176/1.

162 The Birth of the New Justice but the U.N. states had done nothing. He feared a repeat of 1919: “solemn pledges and declarations and no machinery” to carry them out.” While this internal strife was occurring, WJC headquarters and the British Section disagreed about whether the WJC should try to place a WJC representative

on the UNWCC and whether it should lobby the UNWCC to create a special sub-committee that would investigate anti-Jewish crimes. The British Section supported these goals, arguing that this was the best way to concentrate on collective crimes against the Jews and ensure that any future trials would represent the Jewish point of view. Robinson, however, considered the pursuit of direct representation to be hopeless.*° Dr. Maurice L. Perlzweig, Director of the WJC’s Political Department in New York, feared that insisting on “separate machinery” to deal with antiJewish crimes would create a “juridical ghetto.” “Justice for the Jews can only be secured as an integral element in a system of justice for all men,” he warned the British Section.*” Nevertheless, the British Section tried to influence the UNWCC through a series of meeting with Hurst. First, it prepared the ground in June 1944 by sending an extensive memo written by British international jurist Hersch Lauterpacht. Lauterpacht, who was Jewish, was originally from Galicia (when it was part of Austria-Hungary); his parents and many of his siblings were killed by the Nazis in Poland. He argued that the UNWCC should create a special committee to examine anti-Jewish crimes in order to prosecute the perpetrators, which would serve as a future deterrent. Anticipating the idea of truth commissions, he envisioned that the committee could also establish a definitive record of the history of

the extermination. “The horror of the war crimes of Germany in so far as they affect the Jews of Europe transcends the problem of punishing the war criminals directly responsible,” Lauterpacht wrote. “Punishment alone cannot alleviate the sense of loss and of horror which has afflicted members of the Jewish race everywhere in consequence of these crimes. The full knowledge, brought about by an authoritative investigation and report, of the enormity of these crimes in all their ramifications would in itself be a deterrent as potent as retribution itself.”** After submitting this memo, the British Section then held several discussions

with Hurst, who seemed to listen with an open mind to the WJC’s arguments, though he was constrained by the UNWCC’s terms of reference (set by the

British government) and could only urge the WJC to submit information directly to individual governments.* The problem here was that the WJC had no guarantee that its reports would be read and digested. In March 1945, the

British Section met with the new UNWCC Chairman, the Australian Lord 45 ERéer, “Memorandum,” 13.

“6 “Minutes of the Meeting of the Institute of Jewish Affairs, Friday, September 24, 1943,” 1, WJC/ C101/9. On January 5, 1944, the Institute discussed the possibility of a Jewish representative on the UNWCC with de Baer, who rejected the idea. See “Draft. Minutes of the Meeting. Held at the home of Dr. Kubowitzki, Wednesday, January 5, 1944, 8-9 p.m. Strictly Confidential,” WJC/C174/9. “’ Copy of letter from Perlzweig to Easterman, April 11, 1944, WJC/C101/15. ‘8 Lauterpacht’s memo follows a copy of his letter to Easterman, May 1, 1944. Easterman sent these documents to the WJC’s Office Committee in New York on June 19, 1944, C175/16. ® “Note of a Conversation between Sir Cecil Hurst and a Delegation of the World Jewish Congress, 20/7/44,” WJC/C174/7.

The Search for a Victim-Centered New Justice 163 Wright. He was sympathetic to the British Section’s view that “All the individual cases [of crimes against Jews] were the outcome and last consequence of a deliberately-pursued general policy of Germany to exterminate every single Jew who came within her reach.” However, he explained that the UNWCC had to deal

with individual cases, and Hitler’s pronouncements of an intention to destroy European Jewry “would have to be linked with the actual fact which occurred at this place, on this or that date.”*® The result of all the negotiations was the UNWCC finally agreed that the WJC could directly submit evidence and legal interpretations to it. During the UNWCC consultations in 1943 and 1944, the Institute did not agree with the British Section’s initial diplomatic effort, contending that the WJC should not waste time trying to convince the UNWCC to accept a Jewish representative. The UN states would never accept it since it would mean a “revolution” in diplomatic protocol.*' Instead, the WJC should try to persuade the UNWCC to accept evidence of Axis crimes committed against Jewish nationals in those countries and extend the time-line back to 1933. The WJC wanted to submit the evidence directly to the UNWCC, so the Institute needed to start collecting evidence on its own and formulating a detailed legal indictment with two primary goals: demonstrate that all the separate anti-Jewish crimes constituted one collective crime (“the annihilation of a race”) and establish that inciters, planners, and organizers (not only direct perpetrators) could be criminally punished. The Institute formed a “war crimes committee” that ultimately accomplished two concrete tasks: it prepared dossiers about top and mid-level Nazis who should be prosecuted; and it wrote a long criminal indictment arguing that the extermination project was premeditated, occurred in multiple countries, and encompassed various modes. The Institute pursued these goals from September 1943, when it first discussed whether the WJC should support war crimes trials, through February 1945, when it critically examined its own draft studies on the different modes of extermination and discussed how to turn these into a legal indictment.*? These documents were prepared for eventual submission to the UNWCC and to Allied governments. Several events and intellectual trends informed this work. In October 1943, two different non-governmental organizations, the League of Nations Union (a British pacifist group) and the London International Assembly (a non-official body of representatives from the United Nations) had espoused various principles of “the new justice,” including the establishment of post-war national and international tribunals for war crimes. The Assembly also adopted a proposal stating that an © "The meeting was on March 27, 1945. See “World Jewish Congress (British Section), Report No. 6, Report of Activities Covering Period from March 13th—April 9th, 1945,” WJC/C98/13.

>! Minutes of the Meeting of the Institute of Jewish Affairs, September 24, 1943, 2, WJC/

C101/9.

2 Minutes of the First Meeting of the Committee of War Crimes, March 20, 1944, WJC/

C101/9. 33 Minutes of the Meeting...on the War Crimes Manuscript, February 12, 1945, WJC/C101/9. 4 “Trial and Punishment of War Criminals,” S. 1091, October 15, 1943, WJC/C174/7.

164 The Birth of the New Justice international criminal tribunal should be created to try “crimes committed in Germany against Jews and stateless persons and possibly against Allied nationals.””

On November 1, 1943, Roosevelt, Churchill, and Stalin issued a “Statement on Atrocities” as part of the “Moscow Declaration,” stating that German military officers and Nazi party members would be arrested at the time of the armistice and delivered to the countries where they had committed their crimes. This meant the use of national tribunals. They left the fate of major Nazi war criminals, whose crimes spanned multiple countries, to be determined. These events put pressure on the Institute, which believed that developments concerning legal retribution were moving quickly.*° In April 1944, the Institute learned through news reports that

the major Allies intended to install an occupation government in post-war Germany, with the goal of completely purging the Nazis. This would probably mean the takeover of both military and civilian government functions, which

would enable trials of German nationals for crimes committed within the Reich.” It appears that Robinson picked up the concept of criminal conspiracy in this period, using it in a December 1944 outline for the Institute’s indictment.”* This was prior to his contact with U.S. prosecutors, who wanted to use the concept to prove that Nazi policy-makers could be linked together for plotting an aggressive war. In Robinson’s theory, acts of pre-war political, religious, and racial persecution were defined as preparatory crimes to aggressive war, which would solve the problem

that they were not defined as crimes under the Hague and Geneva Conventions. Robinson possibly borrowed the conspiracy concept from Sheldon Glueck, a Jewish Harvard professor who specialized in juvenile delinquency. In 1944, Glueck published an influential book, War Criminals: Their Prosecution and Punishment, calling

for the immediate arrest of war criminals as a condition of an armistice with the Axis powers and the creation of an international criminal court to try the chief policy-makers. Glueck briefly mentioned that German industrialists and bankers could be prosecuted for forming a conspiracy to commit war crimes and violating fundamental legal principles that were common in the criminal codes of all “civilized” states. He also noted these businessmen had supported the seizure of Jewish property and assets.” Glueck, unlike Robinson, did not believe Axis nationals could be prosecuted for aggressive war, maintaining that the Kellogg-Briand Pact condemned war as a tool of national policy but did not form a legal basis for prosecuting individuals under international law. He argued instead that the United Nations could prosecute Axis nationals for violating the laws and customs of war and violating fundamental principles in criminal law codes. Robinson had heard Glueck read parts of his manuscript at a seminar in May and then wrote a critique of Glueck’s °> London International Assembly Resolution, October 12, 1943, WJC/C174/7. °° Grossman to Kubowitzki, November 8, 1943, WJC/C174/9. *” See the Institute study, “The Basic Problems of Retribution,” 17-18, WJC/C175/7.

°8 See the Institute Minutes, December 28, 1944, 2, WJC/C101/9, which state that Robinson had prepared an outline called “Conspiracy Against the Jewish People.” 30.4 aneldon Glueck, War Criminals: Their Prosecution and Punishment (New York: Knopf, 1944),

The Search for a Victim-Centered New Justice 165 book for the Institute once it was published.°° Historian Donald Bloxham has criticized the conspiracy concept, arguing that U.S. prosecutors used it to construct a Nuremberg interpretation of Nazism that excessively focused on aggressive war and

did not sufficiently consider Nazi genocide. A portion of this criticism is well founded, since prosecutors were unwilling to present a free-standing Jewish case, or use evidence and witnesses from Jewish organizations, because some prosecutors were anxious about stimulating post-war anti-Semitism, while others did not want to encourage Zionism.°' However, one might reconsider whether the concept was actually so “tyrannical” (as Bloxham terms it), since two Jewish jurists found the

concept beneficial and used it for purposes other than prosecuting the Nazis for ageressive war.” There was a great deal of legal experimentation in this period. The power dynamic favored the insiders and government prosecutors, but certain figures, such as Glueck, Robinson, Lauterpacht, and Lemkin crossed the threshold. All ended up working in varying degrees with U.S. and British prosecutors, introducing important arguments, methods, and legal concepts.

THE OFFICIAL WAR CRIMES POLICY: A VICTIMCENTERED NEW JUSTICE In its debates and legal studies from 1943-4, the Institute propelled a victimcentered concept of the “new justice,” employing ideas that other jurists and legal organizations had developed for war crimes generally, such as a commitment to

extradition and the use of national and international tribunals. It then applied them to anti-Jewish crimes in order to secure historical recognition and set an international precedent outlawing crimes of this nature. ‘The Institute’s draft principles then became the WJC Executive Committee’s “statement of policy” on the

punishment of war criminals, which was adopted by the WJC as a whole at an Emergency Conference in Atlantic City, New Jersey, in November 1944. In an eleven-point program, the WJC called on the Allies to: arrest all members of Nazi and collaborator organizations accused of war crimes and “all forms of persecution of racial, religious, and political minorities” that occurred since 1933; ensure that © Robinson to Members of the Office Committee, Members of the Subcommittee on War Crimes, “My visit to Professor Sheldon Glueck,” May 22, 1944, WJC/C102/3; Robinson to Members of the Office Committee, September 20, 1944, WJC/C174/7. Robinson does not mention the conspiracy concept in these documents, which is why I only state that it is possible he borrowed the concept from Glueck. 61 Bloxham, Genocide on Trial, 63-9.

°° On Glueck’s influence on Robert Jackson, the chief U.S. prosecutor, and Glueck’s creation of a system to keep track of evidence as Nuremberg prosecutors built their cases, see John Hagan, Justice in the Balkans: Prosecuting War Criminals in the Hague Tribunal (Chicago: University of Chicago Press,

2003), 22-6. °° See the Institute’s draft of retribution demands, “Resolution on Retribution, War Emergency Conference of the World Jewish Congress, New York, May 1944, Tentative Draft, Confidential,” April 18, 1944, and Robinson’s introductory note of April 11, 1944, WJC/C174/9. See also the Executive Committee's suggested policy, “A Statement of Policy Adopted by the World Jewish Congress Executive Committee. Punishment of War Criminals,” WJC/C106/11.

166 The Birth of the New Justice individuals are prosecuted for crimes committed in Germany and in other Axis states (not only occupied states); establish an international criminal court for those areas; guarantee that armistice terms would require the extradition of the accused; include anti-Jewish crimes in published indictments and trial proceedings; and allow the WJC to serve as a “friend of the court” before an international tribunal, while local Jewish organizations should serve as “friends of the court” before national tribunals. As a “friend of the court” (amicus curiae), a Jewish organization

would be able to cross-examine witnesses and advise the judges on factual

matters.

These requests encapsulated the WJC’s hope that trials would cover anti-Jewish

crimes more completely than two trials already held in 1943-44. One was the Soviets’ military tribunal in Kharkov, Ukraine, in December 1943. ‘The trial only dealt with four “small fry” defendants—a German military intelligence officer, an SS officer, a German military policeman, and a Ukrainian driver. Soviet prosecutors exposed mass shootings of civilians and the use of gas vans, driving home the

point that extermination operations were planned by higher-level officials and individual war crimes were connected in a continuous whole.®’ However, the Insti-

tute was concerned that the Soviet government did not identify the religion or ethnic identity of the victims, considering them all Soviet citizens. The other case was the trial of Vichy Interior Minister Pierre Pucheu, who had signed legislation in 1941 that established “special sections” of military tribunals that condemned French persons (including many Jews) to death for alleged involvement in attacks on German forces. Hundreds were rounded up as “hostages” (meaning they were not connected to actual crimes) and condemned by these courts, which had no appeal process.®° Pucheu was sentenced to death by a French military tribunal in liberated Algeria in 1944, but Robinson was dismayed that the issue of Jewish victims was never brought up during his trial.°’ In 1945, the WJC and the Institute made many positive steps to realize a victim-centered “new justice.” A U.S. Jewish delegation, including Robinson, estab-

lished contact with Robert H. Jackson, the Supreme Court Justice, after U.S. President Harry S. Truman named him the US. lead prosecutor in a future international trial of major Nazis. Jackson was extremely interested in the Institute's casualty figures and was willing to include crimes against the Jews in a future inter-

national trial, though he did not agree to a request for a Jewish organization to serve as a ‘friend of the court,” claiming this would open the door for other national 4 Some members of the Institute were skeptical that the United Nations would ever accept amici curiae. See “Minutes of the Second Meeting of the Committee on War Crimes,” March 28, 1944, WIJC/C101/9. © George Ginsburgs, “The Nuremberg Trial: Background,” in 7he Nuremberg Trial and International Law, ed. George Ginsburgs and V. N. Kudriavtsev (Dordrecht: Martinus Nijhoff, 1990), 25-9. °° Richard H. Weisberg, Vichy Law and the Holocaust in France (Amsterdam: Harwood Academic Publishers, 1996), 374—80. °” Robinson, “Draft of a Letter to be Sent to the British Section Re: War Crimes,” August 18, 1944, WJC/B1/7. Robinson mentioned these trials again in a speech he gave about the upcoming Nuremberg trial. See “Address given by Dr. Jacob Robinson...on “The Jewish International Political Agenda at the Conference held on October 10, 1945,” WJC/C176/9.

The Search for a Victim-Centered New Justice 167 groups to demand the same.® Jackson also invited the Institute to submit its figures and legal studies on the distinct features of anti-Jewish crimes, which the Institute did in June.” Meanwhile, as U.S., British, French, and Soviet government representatives met in London to hammer out the agreement establishing the IMT, the British Section met with French professor René Cassin, who agreed with the

WJC’s position that individuals such as Hermann Goering would have to be indicted for “the German conspiracy to exterminate all Jews as such.” He “had no doubt that his Government would concur wholeheartedly.””” The WJC’s British Section then met with a counselor from the Soviet Embassy, who was open to a “special charge of conspiracy against the Jewish people” and agreed to submit the WJC’s arguments to the Soviet delegation.”

THE INSTITUTE’S INFLUENCE ON THE OFFICE OF STRATEGIC SERVICES Next, the Institute had a major impact by providing the fundamental legal-historical interpretation used by the U.S. intelligence service, the Office of Strategic Services

(OSS), and used by U.S. war crimes prosecutors when creating the indictment for the first Nuremberg trial. Extensive correspondence between Robinson and C. Irving Dwork, an American Jew who worked for the so-called “Jewish desk” of the OSS, demonstrates that the Institute, not the OSS, wrote the first draft of an indictment called “The Criminal Conspiracy Against the Jewish People.”” This complicates the explanation provided by legal scholar Michael Salter, who argues that the OSS’s role in monitoring the extermination of European Jewry

and providing evidence to war crimes prosecutors should be reassessed to develop a more nuanced evaluation of how it both protected war criminals as 8 In August 1944, Robinson wanted two international trials, one for the destruction of the Jews (“the Jewish People vs. Germany & Satellites”) and the other for inciting Jewish hatred around the world. See “Draft of a Letter to be Sent to the British Section Re: War Crimes,” August 17, 1944, WJC/B1/7. Two sets of minutes of a meeting with Jackson leave it unclear whether the Jewish delegates asked for a separate trial or a Jewish indictment within one trial. (Compare the versions in WJC/ H351/15 and WJC/C106/16.) One set of minutes states, “Justice Jackson explained that it is intended to have one military trial embracing the whole conspiracy of the Nazis against the world, in which the Jewish count should have its place.” See also Jackson's diary entry on the meeting in Salter, US Intelligence, 1: 3-4.

© “List of Documents and Manuscripts Submitted to Justice Robert H. Jackson by Dr. Robinson in Washington, D.C., on Monday, June 18, 1945,” WJC/C106/16. ” Steinberg, “Report to the Executive Committee of the British Section of an Interview with Professor Rene Cassin at the French Embassy in London on the 4th June 1945, Concerning War Crimes,”

WIC/C174/10. “| Steinberg, “Note of Conversation with Monsieur K. M. Kukin, Counselor of the Soviet Embassy, at the Soviet Embassy, on the 3rd July 1945, Regarding the Jewish Case against the Major War Criminals,” WJC/C102/5. ” ‘The argument that Dwork was the central figure was first made by Shlomo Aronson, “Preparations for the Nuremberg Trial: The O.S.S., Charles Dwork, and the Holocaust,” Holocaust and Genocide Studies 12, no. 2 (1998): 257-81. Lewis, “World Jewish Congress,” 197, n. 62, argues against this. Like Aronson, Salter, US Intelligence, 2: 636-40, states that Dwork was the author. In this chapter I present more extensive evidence to the contrary.

168 The Birth of the New Justice intelligence assets for the emerging Cold War and helped prosecutors develop criminal cases against others.’”* Since correspondence, Institute memos, and multiple drafts of the indictment indicate that Institute analysts, not Dwork, wrote the

first draft—the OSS only revised it and added two sections—a Jewish nongovernmental organization influenced a US. intelligence organization and provided information directly to prosecutors. Therefore, the relationship was at least a tripartite one: an outsider Jewish organization representing the victims, an insider intelligence organization with its own priorities, and a government office of prosecutors with its own special political and legal goals. From June 1 to 10, 1945, the Institute sent Dwork in Washington, D.C. massive compilations of legal decrees from Germany, occupied states, and satellite states; anti-Jewish utterances of Nazi leaders; and biographies of war criminals in Germany, Poland, Belgium, and France.’* Dwork’s initial interest was to assess the responsibility of various German agencies in the “Anti-Jewish Conspiracy,” as he asked the Institute to provide any relevant information on Nazi leadership circles, party offices, the SS, various leagues, the Office of the Four Year Plan, the Reichsbank, the supreme courts, and the Wehrmacht.” While this corresponded with the U.S. prosecutors’ intent to establish the criminality of organizations so that later war crimes proceedings could be routinized,”° the vast expanse of Dwork’s request indicates that he struggled to understand the role of various agencies and how, if at all, their anti-Jewish activities could be connected. On June 21, following a telephone conversation, Dwork wrote Robinson that “it has been made clear to me by [Franz] Neumann [Chief of the European subsection of the OSS’s Research and Analysis team] and the others that my report (or indictment) will be virtually the first and last word on the subject as far as the United States War Crimes office is concerned. The group going to London early in July contemplates no further work on the subject.” This ended up not being true, as American prosecutors continued work on the Jewish case, but the time pressure influenced the chain of events in the short term. Dwork proposed to Robinson a three-part structure for the report/indictment: first, “a short chapter proving the existence of a preconceived anti-Jewish conspiracy on the part of the Germans, the implications of this charge, and the purposes this conspiracy was meant to serve;” second, “a concise and clear-cut analysis of the different types of crimes committed against the Jews (only by the Germans; there is to be no mention in this particular

report of the collaborationists);” and third, “(the most important chapter) The responsibility of the various German agencies for crimes against the Jews (by coun-

try).””” Dwork sent Robinson a preliminary study for the third section, basing it > Salter, US Intelligence, 1: 1-55. ” Lists of material can be found in WJC/106/18. ™ Letter from Dwork to Robinson, June 12, 1945, WJC/C106/18. ’° These were the groups that U.S. Lieutenant Colonel Murray Bernays in the U.S. War Department in September 1944 wanted to include. By the time of the trial, the list had been expanded to include the Reich Cabinet and the German High Command of the Armed Forces. See Smith, Road, 51, 249-50; Telford Taylor, 7he Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Knopf, 1992), 104-15. ”7 Dwork to Robinson, June 21, 1945, WJC/C106/18.

The Search for a Victim-Centered New Justice 169 only on legislative decrees, not the wealth of other sources that the Institute had forwarded to Dwork. He concluded by asking for the Institute’s help: “I should be most anxious to have the assistance of your colleagues and yourself in the preparation of this indictment which must be just as complete as the crime itself!””* As reflected in Robinson’s reply of June 23, this was a dire situation. After three weeks of sending Dwork material, the Institute finally learned about Dwork’s ideas for a Jewish charge, and now it seemed that Dwork was in over his head and lacked the Institute’s knowledge and experience. While Robinson approved of Dwork’s outline, he was disturbed that “the greatest part of the material we sent to you was not used at all.” The Institute would only be able to produce something valuable with more time. “We also agree that the material as it stands now may not be useful for our cause,’ Robinson wrote. “It may discourage those who are friendly to us [the Jews], and it may add fuel for those who would like to have us out.” He proposed two options for “remedying this unhappy situation.” The first was “to send to you a squad of our best men qualified on the subject and in law, who have been working for years in this field, to work with you for the next week or two and to prepare something which will be of value.” The second choice was to use Dwork’s plan and “go to work here [in New York] to draft the Jewish charge tentatively, later to be submitted to your superiors or the Advocate General for approval.’” The two parties took a third, more collaborative path, according to correspondence from June through September 1945 (which charts the huge quantities of documentation the Institute sent Dwork and discusses progress on the work), as well as several drafts of the report/indictment, titled “The Criminal Conspiracy Against the Jewish People.”®° Institute authors, including Dmitry Gawronsky, Anatole Goldstein, Gerhard Jacoby, and Henri Sinder, used Dwork’s three-part outline structure to produce a version of the indictment, which was sent to Dwork in installments, with the last piece arriving by July 25, 1945,*' about two weeks before the Four Power Agreement and Nuremberg Charter were announced on August 8, 1945. The Institute’s indictment, “The Criminal Conspiracy Against the Jewish People,” argued that the Nazis had a premeditated plan to exterminate Europe's Jews, which they had developed before the war. Salter analyzes “The Criminal Conspiracy’ as Dwork’s work (possibly assisted by Abraham Duker), but many components 78 Dwork to Robinson, June 21, 1945, WJC/C106/18. ” Robinson to Dwork, June 23, 1945, WJC/C106/18. 8° See Institute legal studies and early drafts from 1944 and early 1945 in WJC/C105/12 through

WJC/C105/17, WJC/C106/1 through WJC/C106/7, and WJC/C106/9. For a complete Institute draft of “The Criminal Conspiracy Against the Jewish People,” see WJC/C120/30. The finding aid incorrectly dates this as 1949, but the prior drafts and Institute correspondence show it is probably from summer 1945. WJC/C107/2 contains three drafts of Part I: the third draft seems to be the same as Part I in WJC/C120/30. WJC/C107/3 contains two drafts for each of the seven charges in Part I]; one set is stamped “Confidential” in blue. The file also contains drafts of Charge 8 (Mass Annihilation) and Charge 9 (Organized Violence). Charge 9 was produced by Dwork’s desk at the OSS, not the Institute. The OSS revision of the whole work was called “the Washington draft” and can be found

in WJC/C192/2, WJC/C192/3, and WJC/C192/4. 8! Robinson to Dwork, July 25, 1945, WJC/C106/18, stating that the Institute had sent the last two pages of the third part and was waiting for a revised indictment.

170 The Birth of the New Justice that Salter points out as original and important—the concept that the annihilation was a continuous crime incorporating pre-war and war-time phases, the argument that the Jews were an “internal obstacle” for Nazi war plans, the notion that the Nazis had a veiled plan that was only revealed after 1938—-were all from Institute drafts that preceded Dwork’s final version. Furthermore, much of this material had been part of Institute studies and memos in 1943-45.” The Institute’s indictment outlined eight types of crimes which different Nazi organizations and individuals committed in pursuit of the extermination plan: Persecution of Jewish Religion and Spiritual Life; Disenfranchisement and Stigmatization; Economic Destruction; Ghettoization; Starvation; Deportation; Forced Labor; and Mass Annihilation. These expanded the categories that the WJC had already used in internal reports starting in 1942.*° The indictment’s final section provided a detailed list of the names and positions of those responsible in the Nazi party, German government, Wehrmacht, and occupation administrations. ‘The Institute also began for-

warding dossiers of potential indictees, especially after Dwork transmitted twenty-eight names that were being floated as major criminals to be tried in a first international trial.* The Institute's version of “The Criminal Conspiracy” is one of the first comprehensive attempts to summarize the Nazis’ crimes against the Jews by fitting them into a legal framework and dividing the accused into the categories of party, government, and Wehrmacht.® This was no small feat, since the indictment covered multiple locales and complex events, and the Institute had to rely on legislative decrees, underground and press reports, and eyewitness accounts because captured Nazi documents were not available. Part One was intentionalist, holding that “the intent of complete physical annihilation was to some degree veiled during the early period of the Nazi advent to power, when Germany had not yet achieved sufficient strength to challenge the world. Following 1938, after the Anschluss of Austria and the Munich capitulation and, furthermore, with the launching of the war of aggression, all restraint was done away with.”*° This section expanded Robinson’s 1943 legal argument that crimes against the Jews could be prosecuted under international law if it was shown that the crimes were preparations for aggressive war. Part One therefore argued that the Nazis intended to create a unified national community (Volksgemeinschaft) by eliminating the Jewish element, which embraced democratic ideas and was a “stumbling block” for a “war-ready Germany.” The indictment

further argued that the Nazis used anti-Semitic propaganda in countries they intended to invade in order to weaken their unity and will to resist. Finally, the Institute argued that the Nazis intended to exploit Jewish labor to prepare for war

8° Compare this analysis with Salter, US /ntelligence, 2: 582-3, 640-53. 85 “The Present Situation of the Jews in Europe,” July 1, 1942, WJC/B26/11. 8* Dwork to Shapiro, July 27, 1945, WJC/C106/18. See an additional request for other names in Dwork to Jacoby and Sinder, August 2, 1945, WJC/C106/18. ®> ‘This analysis is based on the Institute draft contained in WJC/C120/30 (“The Criminal Conspiracy Against the Jewish People,” Third Draft, 218 pages), with Robinson’s handwritten corrections. Hereafter, “Criminal Conspiracy.” 86 “Criminal Conspiracy,” 7.

The Search for a Victim-Centered New Justice 171 then eliminate them in Poland and the western Soviet Union in order to create “living space” (Lebensraum) for ethnic Germans.*’ Part Two explicated the above-mentioned eight crimes, arguing that they pro-

gressed in a step-wise fashion. Several sections stand out for their unique interpretations. The section on religious persecution argued that ideologues helped radicalize Nazi policy-makers. The charge alleged that at a meeting of the (German) Institute for Research into the Jewish Problem in Frankfurt-on-Main on March 26-28, 1941, a group led by Alfred Rosenberg introduced the idea that “the Jewish problem” required a more radical solution than ghettoization and emigration to Palestine, since the Jews would adapt to ghetto life and become too strong there. According to the indictment, the civil and military authorities took the intellectuals’ advice and opted for extermination at the end of 1941.** The deportation charge described a multi-phased process whose basic outlines are accepted by historians today. The Institute described Polish Jews being first transferred to ghettos, beginning in October 1939. They were then deported from other countries to the Lublin “Reservation” in 1940-41. When that “experiment” was abandoned in March 1942, the Nazis then synchronized the large-scale removal of Jews from France, Belgium, and Holland to German death camps, and Jews from Norway and Denmark were deported to Terezin “as a temporary stop on the way to final extermination in Poland.”® Perhaps more controversially, the charge argued

that the real purpose of deportation was annihilation, not the utilization of manpower for slave labor. The proof, stated the indictment, was that, beginning in the spring of 1942, the Nazis did not distinguish between the able-bodied versus the young, elderly, and infirm. Moreover, the charge argued that the conditions of transportation (unsanitary conditions and no food or water) were designed to annihilate, not preserve labor capacity.”° The section on “Mass Annihilation” contained a chronology of murder technology that few analysts at the time had grasped:

the use of mobile gas vans in Chelmno; the use of poison gas at Belzec; and the construction of large capacity gas chambers and crematoria at sites such as Majdanek and Auschwitz.”!

The OSS draft accepted the Institute’s interpretation of an overall conspiracy, multiple categories of crimes, and the Institute’s interpretation of ghettoization. It also relied heavily on the Institute’s collection of legal decrees and reports. However, the Institute was critical of many aspects of the OSS version. Several criticisms are relevant because they foreshadow one of the main problems of the “Jewish case” at the first Nuremberg trial: a failure to show how the individual stages fit into a collective crime that started prior to the war, and a failure to boil the details down into a cohesive legal argument that would convince judges that the extermination plan was part of the preparation for aggressive war, which was the only way that pre-1939 crimes, under the Nuremberg Charter’s framework, 87 See “General Characteristics of the Plan,” points 1—3, in “Criminal Conspiracy,” 1-2. 88 Charge One, “Criminal Conspiracy,” 35—7 (following hand-written numbers).

8° Charge Six, “Criminal Conspiracy,” 75—9. °° Charge Six, “Criminal Conspiracy,” 80-1. *! Charge Eight, “Criminal Conspiracy,” 101-2, 110-15, 119-24.

172 The Birth of the New Justice could be treated as “crimes against humanity.’ First, the Institute criticized the OSS for failing to stress sufficiently the difference between “internal deportation’ (the transfer of Polish Jews to major ghettos within Poland) and “external deportation” (“the removal of Jews from the occupied countries for the clear purpose of extermination”).°° According to Institute author Henri Sinder, “the essentials of clarity, streamlining, precise function of the deportation as a necessary step in the whole plan of final annihilation is somehow overshadowed, if not completely lost.”°* Second, the Institute disagreed with OSS authors who claimed that the purpose of forced labor was to utilize manpower for war production and eliminate possible resistance elements from occupied territories. According to the Institute, the Nazis subjected the Jews to forced labor as a tool of annihilation and this should “be classified as a biological war aim.”” Third, the OSS had written a new charge, “Organized Violence,” which was supposed to concentrate on a “series of crimes that were limited to no one period or area.”

The Institute noted that the main examples used by the OSS were the antiJewish boycott inside Germany in 1933 and the Kristallnacht pogrom of 1938 in Germany and Austria. The Institute stated it actually made more sense to concentrate on Nazi organizations (covering the pre-war and war years) and institutionalized systems of violence, such as concentration and death camps. Concerning the camps, the Institute critiqued the fact that the OSS concentrated on Dachau and Buchenwald, “where 90 percent of all the inmates, and 80 of all the victims, were Gentiles,” while “Chelmno, Belzec, Sobibor, [and] Tremblinka [sic] were exclusively Jewish camps, with millions of victims.””° The upshot

was the accusation that the OSS did not understand differences between concentration and extermination camps, and did not realize that a majority of the victims of concentration camps prior to 1938 were non-Jews sent there for political reasons. There was a final difference between the Institute and OSS drafts on which the Institute did not comment but also foreshadowed a weak argument at trial.

In Charge Eight, “Mass Annihilation,””’ the Institute version periodized an overall process: shooting actions during the invasion of the USSR from June— November 1941, followed by the implementation of extermination measures in

Poland and then in occupied Europe (through 1943), and, after the defeat at °° "This linkage was necessary because there was a difference in punctuation in the English/French and Russian versions of the Charter. ‘The latter had a more restrictive interpretation of crimes against

humanity, and judges decided this was the authoritative interpretation. See Jacob Robinson, “The Nuremberg Judgment,” Congress Weekly 13, no. 25 (1946): 6.

°° “Comments on the Washington Draft of the War Crimes Manuscript,” September 7, 1945, 2, WIC/C107/5. * Henri Sinder, “Charge Six, Deportation. Remarks on the Draft Sent by I.D. [Irving Dwork],” WIC/C107/5. °° “Comments on the Washington Draft,” 3. °° Emphasis in the original. See “Comments on the Washington Draft,” 4. For more on the neglect

or Bere Sobibor, and Treblinka at various Nuremberg trials, see Bloxham, Genocide on Trial, ee Compar the Institute version in WJC/C120/30 with the OSS version in WJC/C192/4 (66

pages total).

The Search for a Victim-Centered New Justice 173 Stalingrad, an increased pace of exterminations during the German retreat. It also treated the development of extermination centers chronologically, stressing German attempts to create an efficient killing process and deal with the problem of destroying corpses. The OSS draft de-emphasized periodization and, in its early sections, stressed individual acts of cruelty more than an overall implementation of a program. While the OSS version contains many more details

about the operation of individual “death factories,” integrating eyewitness accounts to a higher degree than the Institute draft, the OSS version treats each extermination center individually, according to its supposed importance. ‘This version still stressed the attempt to create an efficient industrial killing system, but it did not provide an overall chronology. This foreshadowed a problem that plagued the U.S. prosecution’s case before the IMT: an emphasis on shocking, horrific actions, but a less cohesive argument that linked the alleged pre-war conspiracy with the chain of events leading to industrial killing—which would turn out to be necessary if prosecutors were going to convince the judges that pre-1939 crimes could be prosecuted under international law as “crimes against humanity.””®

THE FIRST NUREMBERG TRIAL: HOPES AND DISAPPOINTMENTS Despite this critique, the Institute was satisfied that it had had the opportunity to transmit its collection of data, categories of crimes, and interpretations of a collective crime to an important government agency that worked closely with U.S. pros-

ecutors. Material from the Institute/OSS indictment was used in the official Nuremberg indictment in two major places, demonstrating that the Institute was able to bring its concept of a victim-centered “new justice” into the legal framework. ‘The official indictment stated that “the conspirators joined in a program of relentless persecution of the Jews, designed to exterminate them.... The program of action against the Jews included disfranchisement, stigmatization, denial of civil rights, subjecting their persons and property to violence, deportation, enslavement, enforced labor, starvation, murder, and mass extermination.””’ These were the Institute’s categories: Robinson had been in London while the official indictment was hammered out, and he was allowed to make suggestions for its revision.'°° Second, the official indictment used the Institute’s concepts in Count Four,

8 Lewis, “World Jewish Congress,” 203—5; Ann Tusa and John Tusa, 7he Nuremberg Trial (Lon-

don: Macmillan London, 1983), 167-8. »? Nuremberg Indictment, Count One, IV (Particulars of the Nature and Development of the Common Plan or Conspiracy), Part D (The Acquiring of Totalitarian Control of Germany: Political), No. 3 (Consolidation of Control), point d, in Trial of the Major War Criminals before the International Military Tribunal. Nuremberg, 14 November 1945-1 October 1946 (New York: AMS Press), 1: 33-4. '00 See Robinson’s memo about his trip to London: “The Jewish Aspect of the Indictment in Case No. 1 of the International Military Tribunal Against Goering and the Others,” October 26, 1945, WIC/C176/9.

174 The Birth of the New Justice dealing with “crimes against humanity.”'®' It stated, “Jews were systematically persecuted since 1933; they were deprived of their liberty, thrown into concentration camps where they were murdered and ill-treated. Their property was confiscated. Hundreds of thousands of Jews were so treated before September 1, 1939.”'* This was the Institute’s concept: crimes against humanity should include crimes com-

mitted by nationals of one country against their co-nationals, as well as actions before the outbreak of an international war. Still, the Institute was not wholly satisfied, as the indictment left out religious persecution, economic destruction, and ghettoization. “Frankly, the Indictment is a poor document,” Robinson reported to the Institute in December, after he had returned from Nuremberg to help U.S. prosecutors. “The poorness of the Indictment is not because it presents a weak case, but because of the system of labor among the four governments, resulting in four different styles which are not strongly unified.” Yet Robinson saw great opportunity for his organization because he maintained that the trial was “predominantly an American show.... If there is any group which took the Jewish case seriously, it is only the Americans....It is the self-assertion of the American leadership in world affairs on the moral plane which has proved of tremendous value and importance. The others missed the bus.”'°’ This must be read against the background of the many problems the WJC had faced during the war in convincing other governments, the UNWCC, and the ICRC to take action. Though Jackson can be criticized for prioritizing aggressive war as the central crime of the era, Robinson held him in high esteem, stating that Jackson had pushed for a four-power agreement to hold a joint trial, while the British had dragged their feet; the U.S. had more accused in custody than anyone else; and Jackson’s opening address was a stunning success. An unspoken subtext was also the fact that the WJC had rougher relations with the British government due to their different views on Jewish emigration to Palestine. The stronger relationship with U.S. prosecutors had advantages but also limits. Shortly after the IMT began the trial in November 1945, U.S. prosecutors invited Robinson to Nuremberg—ofhicially to serve as an expert about casualty figures— though he actually managed to assist U.S. Lt. Col. William FE. Walsh, a non-Jewish attorney, with his legal brief about “the Persecution of the Jews.” ‘This fell under the “Conspiracy” section of the trial in December. According to Robinson, as soon as he arrived in Nuremberg, Hardy W. Hollers, a colonel in the U.S. Judge Advocate General’s office, gave him the U.S. legal brief, “Persecution of the Jews,” which '! ‘Tusa and Tusa, 7he Nuremberg Trial, 87, report that Lauterpacht suggested the term “crimes against humanity” to Jackson for inclusion in the Charter. Martti Koskenniemi, “Hersch Lauterpacht and the Development of International Criminal Law,” Journal of International Criminal Justice 2 (2004): 811 reports the same.

' Nuremberg Indictment, Count Four, X.B. (Persecution on Political, Racial, and Religious Grounds in Execution of and in Connection with the Common Plan Mentioned in Count One) in Trial of the Major War Criminals before the International Military Tribunal. Nuremberg, 14 November 1945-1 October 1946, 1: 66. '03 “General Report to the Combined Staffs of the Office by Dr. Jacob Robinson on the Nuremberg War Criminals Trial,” December 6, 1945, 3-4, WJC/C14/16.

The Search for a Victim-Centered New Justice 175 Robinson read and critiqued.'* “As a result of my suggestions,” Robinson said, “35 of the 57 pages were rewritten. It is now a better document, but still far from being good.”!” Even before Walsh presented his case, Robinson suspected that the U.S. case was not airtight. According to WJC documents, Robinson advised Walsh to strengthen the connection between preparations for aggressive war and pre-1939 crimes,'”° clearly understanding that this link was vital if the judges were going to rule that discriminatory Nazi laws and expropriation were “crimes against humanity,’ meaning that these acts of state were crimes under international law.'"” Walsh, who said he had come to Nuremberg skeptical about whether crimes against the Jews were anything more than atrocity propaganda, later acknowledged that he was convinced of the gravity of the whole extermination process as soon as he saw the documentary evidence.'°* He credited Robinson with helping him on his legal presentation, whose basic structure came from the Institute's legal categories and the theory that the Jews had to be eliminated as an “obstacle” to a war-ready nation. Walsh added additional evidence, such as Hans Frank’s diaries and S.S. General Jiirgen Stroop’s report about the destruction of the Warsaw ghetto.'”” Although the WJC did not have standing at the trial as a “friend of the court”

and did not obtain a trial solely devoted to the destruction of the Jews, certain concepts of the victim-centered “new justice” seemed realizable. A major interna-

tional trial was beginning with extensive press coverage, or so it seemed at the beginning, before the slow process of bringing documentary evidence to light got underway. Plus, the indictment referred to anti-Jewish crimes starting in 1933. Many top Nazis from different ministries and sections of the Nazi party were being held individually accountable for policies and decisions, which was revolutionary. Before the start of the trial, the WJC had two major goals. ‘The trial should cre-

ate an international legal precedent that “the deprivation of human rights is a crime.”'!? Fundamentally, the judgment would have to state that legislative acts

'04 “General Report to the Combined Staffs,” 8. Robinson refers to a fifty-seven page brief. A version in the archives of General William Donovan, Director of the OSS, consists of fifty-six pages of text, plus a thirteen-page appendix of document references. It seems quite likely that this is the draft that Robinson first reviewed. See “War Crimes and Crimes Against Humanity. Part V. Persecution of the Jews,” Donovan Nuremberg Trials Collection, Vol. IX, Section 17.02, Cornell Law Library, . '©3 “General Report to the Combined Stafts,” 8.

'6 Memo from Robinson to Major William E Walsh, Office of U.S. Chief of Counsel for the Prosecution of Axis Criminality, Section IV, November 21, 1945, “Re: The Legal Aspects of Part V (Persecution of the Jews),” WJC/C14/13. An earlier typed draft exists in WJC/C14/23. '7 ‘The list of discriminatory laws and decrees was extensive, including laws prohibiting Jews from participating in various professions, laws forbidding them from appearing in public spaces, laws stripping them of the right to vote, laws that established an “emigration tax,” and the infamous “atonement fine” that German and Austrian Jews had to pay to cover insurance company losses caused from Kristallnacht. 8 William FE Walsh, “The Evidence at Nuremberg,” Congress Weekly 13, no. 9 (1946): 13-14. The article, which appeared in the American Jewish Congress’s publication, came from an address that Walsh delivered to the AJC on February 21, 1946. '09 See Walsh's revised brief, “Persecution of the Jews,” WJC/C192/1.

"© Robinson address, “The Jewish International Political Agenda,” October 10, 1945, WJC/ C176/9.

176 The Birth of the New Justice and various forms of persecution from 1933-39 were criminal violations of international law. German state sovereignty would have to be trumped, so that crimes committed by Germans against German Jews, even with legal approval, were crimes under international law. This was critically important to the WJC because it recognized that the League of Nations’ system of supervising the minorities treaties was over, and it was uncertain what would replace it. Second, the WJC wanted to “break the wall of silence” by showing that Jews were specially targeted for complete annihilation, which was not widely acknowledged at the time, and as mentioned earlier, had not been a focal point of the Kharkov and Pucheu trials. The WJC did not achieve these goals in the first trial, however. Why, and what effect did this have on promoting a victim-centered justice? The judges rejected the interpretation that an extermination plan existed since 1933, dating it instead to 1941.'"' Furthermore, they rejected the argument that anti-Jewish actions prior to 1939 were crimes against humanity under the terms of the Charter, because they were not convinced that the accused ordered and condoned them to further plans for aggressive war.''* This constituted a legal rejection of Robinson’s obstacle theory and the broader theory that domestic repression inside Germany—concentration camp arrests, beatings, and violations of political rights—were crimes under international law. In the area of historical representation, the judgment did not outline a documentary history of the crimes against the Jews as a collective crime in the same way that the Institute and OSS indictments did. “[T]he methods employed never conformed to a single pattern,” the judges stated.'"” One reason for this outcome was that Walsh’s presentation lacked sufficient evidence showing a connection between the repression of 1933-39 and aggressive

war preparations. Walsh maintained that a speech that Heinrich Himmler, the head of the SS, made to SS senior leaders in Posen in 1943 was incontrovertible proof of the connection.''* Himmler’s speech stated that the extermination of the Jews had to proceed and SS leaders should harden themselves, because if they did not, the Jews “in every town as secret saboteurs, agitators, and trouble-makers” would make life even harder during “bombing raids and the burden and deprivations of war.”''? While the speech openly admitted the Nazis’ extermination project and justified its continuation, it was not sufficient to show a definite extermination plan prior to 1939 or demonstrate that specific defendants on trial had formed a common plan that included the full panoply of anti-Jewish legislation. A second reason for the rejection of pre-1939 actions as crimes against human-

ity was that the judges decided that there was only sufficient evidence that a "1 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (London: His Majesty’s Stationery Office, 1946), 62. "12 Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 65. "3 Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 63.

4 Trial of the Major War Criminals before the International Military Tribunal. Nuremberg, 14 November 1945—1 October 1946 (New York: AMS Press), 3: 520. Walsh told the American Jewish Congress that this speech was central to his case. See Walsh, “The Evidence at Nuremberg.” "9 Trial of the Major War Criminals before the International Military Tribunal. Nuremberg, 14 November 1945—1 October 1946, 3: 501.

The Search for a Victim-Centered New Justice 177 conspiracy for aggressive war existed by November 5, 1937 (the date of the socalled Hossbach Protocol). Additionally, they decided that the only conspiracy was an aggressive war conspiracy, and there was no separate conspiracy to commit crimes against humanity. The judges reduced the import of the German government’s measures against the German Jews, stating, “The Nazi persecution of Jews in Germany before the war, severe and repressive as it was, cannot compare, however, with the policy pursued during the war in the occupied territories,” where mobile killing units (Einsatzgruppen) shot huge segments of the Jewish population in the Baltics and Ukraine. The judgment acknowledged that German “Jews were required to register, were forced to live in ghettoes, to wear the yellow star, and were used as slave labourers,” yet the judges did not unequivocally view these acts as part of a collective crime to exclude and eliminate the Jews from society. '!° After the judgment was announced, Robinson felt compelled to dissect the entire decision, trying to argue that because the court convinced three defendants of crimes against humanity (Julius Streicher, Wilhelm Frick, and Walter Funk) and cited their involvement in anti-Jewish actions before 1937, the court actually recognized crimes against humanity as a category before that date.''” The problem, however, was that the court explicitly stated that it refused to issue a blanket statement classifying all acts of persecution from 1933-39 as crimes against humanity.''® This is one of the reasons why, after the judgment, Lemkin moved to create a Genocide Convention whose terms would not be hemmed in by a connection to wat. Another possible reason for the rejection is that the Institute could not establish a permanent, official working relationship with the U.S. prosecution team in the later defense phase of the trial. Robinson sent a memo in March 1946 on strategies to use against the defense, forwarding it to a Jewish American contact inside the U.S. prosecution team (Isaac Stone, who worked in the documentation center and kept Robinson apprised of trial developments through a constant flow of letters and documents, some obtained illicitly).' It took months for higherlevel prosecutors to take note of Institute interventions, plus U.S. prosecutor Thomas Dodd, according to Stone, decided against inviting Robinson back to Nuremberg.'’”? Though Robinson feared that the WJC would lose the “Jewish case” because prosecutors did not bring up the connection between crimes against humanity and aggressive war, Stone, who tended to be hyper-critical, thought the situation actually looked more positive in May 1946. The defense “endeavor

merely to dissociate particular defendants from any connection with crimes against the Jews,” Stone wrote. “It is also true that the Prosecution does not gloss over the Jewish aspect. I happened to be in Court when Sir David [Maxwell Fyfe, a British prosecutor] pressed [Admiral Karl] Doenitz for a reply as to what he meant

6 Judgment of the International Military Tribunal for the Trial of German Major War Criminals, 62.

"7 Robinson, “The Nuremberg Judgment.” "8 Iudgment of the International Military Tribunal for the Trial of German Major War Criminals, 65.

See WJC/H156/9. '20 Stone to Robinson, March 22, 1946, WJC/H156/9.

178 The Birth of the New Justice by the ‘Jewish destructive spirit’ etc. In a case like Doenitz’s the Jewish question seemed almost irrelevant, yet Sir David scored one of his best points in raising it.”!”"

The bigger problem was that the Institute never had the constant connection with prosecutors that it had during the summer of 1945, when its authors worked for months with Dwork in the OSS. Robinson recognized the problem, contemplating in November 1946 that he might establish a mobile Jewish War Crimes Commission that would dispense information to various zonal trials. It would not seek the status of a prosecutor, “but even that of an informant would not be easy to attain.”!** It does not appear he ever did this, possibly because the WJC was involved in many other pressing projects. These included diplomatic efforts to create an international reconstruction fund that could receive restitution payments for Jewish property whose owners were dead or whose heirs could not be located. The WJC also lobbied UN governments to ensure that all prior anti-Semitic legislation in Axis countries was repealed and Jews who had lost their citizenship could get it back.

HISTORICAL EVALUATION The WJC and the Institute propelled a victim-centered “new justice” into legal discussions held by the UNWCC and Allied government officials, influencing the U.S. more than other Allies. The Institute shaped the OSS’S legal and historical interpretation of the extermination of the Jews through its indictment (“The Criminal Conspiracy Against the Jewish People”), which was the basis of the OSS indictment used by U.S. prosecutors at Nuremberg. The Institute’s concepts were also transferred to the official Nuremberg indictment and the “Jewish case” during the IMT trial due to Robinson’s consultations with prosecutors. ‘The larger analytical issue is whether other key points of a victim-centered “new justice” had a broader legacy. Returning to the WJC’s Statement of Policy on war criminals from November 1944, the organization wanted crimes against the Jews to receive fair consideration at trials. It wanted to serve as a “friend of the court” in national and international proceedings. It urged the Allies to ensure that all war criminals were

apprehended and extradited (and that this was a condition of armistice agreements). It asked that international tribunals, not national tribunals, were used for crimes committed inside Axis states. Certainly the range of trials that followed World War Two—the IMT, zonal trials, and national tribunals—outstripped the small number of prosecutions after World War One, and individual criminal liability for certain types of crimes, both codified and customary, was established. However, many of the WJC’s goals were not fulfilled. There was only one international trial after the war, while a second trial never came to pass due to Cold War conflicts. The WJC never obtained an international trial that purely concentrated on the destruction of European Jewry. Instead, subsequent U.S. trials at Nuremberg '21 Stone to Robinson, May 26, 1946, WJC/H156/9. 22 Robinson to Stone, November 1, 1946, WJC/H157/17.

The Search for a Victim-Centered New Justice 179 attempted to incorporate crimes against the Jews along with crimes against military personnel, crimes against civilians in occupied territory, and implementation of German policies to pursue aggressive war. Allied governments never allowed the WJC to serve as a “friend of the court.” Instead, it remained an outside political pressure group that lobbied U.S. authorities unsuccessfully for “a special Jewish trial” in 1947 and failed to persuade prosecutors to indict certain defendants who had participated in the Wannsee Conference.'*? The WJC also relied on transnational networks, asking Jewish contacts across Europe to urge their governments to make extradition requests when British occupation authorities announced in fall 1947 that Britain would release all Germans suspected of war crimes if other governments had not claimed them.!”4 On the legal side, the Institute considered a U.S. military tribunal’s guilty verdicts in a major case against Einsatzgruppen commanders to be “a masterpiece of legal and factual analysis and reasoning.”'” Yet it was distressed that in another case (the “Flick” case), a U.S. tribunal had rejected the argument that the court had

jurisdiction over pre-war crimes against humanity that were not connected to ageressive war and war crimes, despite the fact that the Allied Control Commission law that set the court’s terms stated otherwise. Judges similarly rejected jurisdiction over pre-1939 crimes against humanity in another U.S. case at Nuremberg, the “Ministries” case against former Foreign Office officials and ex-Reich Ministers.'*° The Institute of Jewish Affairs viewed this case as its last chance to demonstrate that economic expropriation before 1939 was an integral part of destroying Jewish communities inside the Greater Reich.'”” The case recognized that the Nazi theft of agricultural property before the war was a crime against humanity, but this aspect of the judgment only related to one defendant.'”* An even bigger issue was that by 1953, U.S. occupation authorities had either commuted death sentences to

life imprisonment or released convicted war criminals for good behavior. Men responsible for the most heinous acts had either served relatively short sentences or were now free, only eight years after the war.'”’ One is therefore left with the question of whether the failure to fulfill victimcentered legal goals caused the WJC to shift its political priorities more toward the Zionist pursuit of a nation-state and away from an international system of protecting minorities, including the use of criminal prosecution. This does not seem to have been the case. The WJC already pursued Zionist policies before problems with war crimes trials emerged. An internal WJC/Institute discussion on restitution and 3 Kevin Jon Heller, Zhe Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 79-81; Conze et al., Das Amt, 390. In the “Ministries” case, prosecutor Robert Kempner wanted to indict lower-level figures, but he was over-ridden by Jackson and Telford ‘Taylor, who wanted an “equalization of ranks.”

'24 See Jacoby to Liban, September 10, 1947, and the letters that follow, WJC/C176/3. ' Anatole Goldstein, Operation Murder (New York: Institute of Jewish Affairs, 1949), 35. '26 See an analysis of the legal arguments in Heller, Nuremberg Military Tribunals, 234-42. '°7 Anatole Goldstein, “The Nuremberg Tribunals,” March 1, 1948, 5-9, WJC/C194/2. "8 Heller, Nuremberg Military Tribunals, 248. "9 Nehemiah Robinson, “The Twelve Nuremberg Trials and the Fate of Their Defendants,” 1953,

WICIC194/1.

180 The Birth of the New Justice reparations from October 1945, a year before the IMT judgment, shows that the organization's central problem was how to convince Allied and Associated governments to transfer restitution payments for heirless Jewish property to an international reconstruction fund to be used in Palestine.'°° The WJC worked on this issue independently of trials and considered restitution/reparations a difficult issue, especially because there were many conflicts among Jewish organizations in 1945—

46 about the establishment of an international fund. Further, while the WJC’s British Section became increasingly antagonistic toward the British government in 1946 (accusing it of unfairly arresting the leaders of the Jewish Agency in Palestine for allegedly supporting Jewish terrorists),'°' the WJC lobbied the UN to include human rights protections in the draft UN Charter in 1945 and lobbied UN com-

mittees in 1947-48 to pass the Genocide Convention. This indicates that the WJC’s support for Zionism occurred at the same time as it campaigned for a new

type of international system to protect rights (as individual rights, rather than minority rights) and the creation of an international law to deter genocide. For example, in 1948, the WJC formally asked the UN to create a Genocide Convention that would create an international supervisory body to oversee domestic courts and call attention to governments that failed to enforce the convention.'* It also worked on and off with Lemkin during his campaign to create the Genocide Convention, a process that will be analyzed in the following chapter. The projects of trying to adapt to a new rights structure, achieving justice with criminal prosecution, and obtaining a Jewish national state all co-existed. Thus, an international legal order versus a “Jewish commonwealth” in Palestine (to use the WJC’s term) was not an either/or proposition immediately after World War Two.’ A victim-centered “new justice” had both universalist and particularist aspects. ‘The WJC’s version aimed at creating an historical interpretation of anti-Jewish crimes as forming a collective crime, illuminating the process of the destruction (which was not widely recognized at the time), and revolutionizing the concept of war crimes law. These goals were different from the suppression of aggressive war and the repression of cross-border crime, the goals of the criminological jurists in the 1920s—’30s. Legal organizations supported new concepts of international prosecu-

tion for different reasons, demonstrating that there was not one single set of motives for the development of international criminal law in the 1940s. '59 Minutes of Meeting of the Joint Committee on Reparations, October 24, 1945, WJC/ we Sedney Silverman, “The Case Against Britain,” Congress Weekly 13, no. 21 (1946): 11-12. '82 “United Nations. Economic and Social Council. Ad Hoc Committee on Genocide,” Summary Record of the Third Meeting, April 6, 1948, 2 p.m. (Lake Success, New York), E/AC.25/SR.3, 6-9. 1948 oe Jewish Congress, Unity in Dispersion: A History of the World Jewish Congress (New York,

The Genocide Convention: The Gutting of Preventative Measures, 1946—48 The United Nations Convention on the Prevention and Punishment of Genocide of 1948 was both a continuation of certain interwar trends in international criminal law and a strong departure, as the project would never have come about had it not been for Nazi organized mass murder and the International Military Tribunal at Nuremberg. The Nazi project to eliminate whole groups in order to create a racial “utopia,” and to do so with industrial methods, bureaucratic planning, and medical experimentation, indicated that these crimes had a different intent and meaning from war crimes committed by rampaging soldiers in the heat of battle. The Nuremberg Trial finally established an international tribunal for aggressive war

and war crimes, but the judges ruled that persecution, deportation, and other crimes committed before the war, as well as crimes committed by the German government against German nationals, were not crimes under the Tribunal’s jurisdiction. Even though the Allies’ Control Council Law Number 10 declared that national tribunals could prosecute crimes against humanity without a connection to aggressive war or conspiracy, advocates of the Genocide Convention were skeptical whether this would form a part of international law. They were also aware that

Nuremberg could be criticized for establishing a system retroactively, so they sought a new international law that would avoid this problem.’ The convention was innovative in many respects, since it declared that genocide

did not have to be connected to a war, whether national or international, and specified that an international tribunal could be used for prosecution. ‘There were new problems after its negotiation, such as the Soviet bloc’s rejection of the jurisdiction of the International Court of Justice for settling disputes concerning the convention and extreme delays in British and American ratification (1970 and 1988 respectively). This chapter will explain the legal and political development of the convention, arguing that while it reshaped “new justice” ideas in several ways, the proclaimed goals of prevention were weakened in the final legal instrument. There were several reasons why this occurred. The legal experts who wrote the first draft of the convention—Raphael Lemkin, the Polish-Jewish attorney; Vespasien Pella, the Romanian international criminal law scholar and diplomat; and ' Minutes of the United States Committee for a United Nations Genocide Convention, Meeting of May 13, 1948, Raphael Lemkin Collection, P-154, Box 2/Folder 12, Collection of the American Jewish Historical Society, Newton Centre, MA, and New York, NY. Future references to this collection will be cited in the form, AJHS/P-154/2/12.

182 The Birth of the New Justice Henri Donnedieu de Vabres, the French international criminal law scholar and Nuremberg judge—only made tentative proposals about prevention and were divided on the implementation of an international jurisdiction. During political negotiations, France and the U.S. on one side, and the Soviet bloc on the other, had diametrically opposing views about repressing hate propaganda, establishing an international criminal court, and using the UN Security Council to intervene in cases of genocide. The Cold War did not create these differences, but increasing military tensions in 1947-48 made it nearly impossible to reach a compromise. Many states were not eager to accept binding legal commitments in areas that were not vital to national defense, despite the renewed rhetoric of internationalism and

non-governmental proposals for an enforceable international system of human rights. Governments used support for the Genocide Convention to declare that they opposed the crime and the defeated regimes which had perpetrated it, though this did not require that they solve their own social conflicts and minority problems, or reform their military and police institutions. Genocide was a crime that other nations committed, not theirs. When Emile Giraud, in the UN Human Rights Division, wrote to former French Nuremberg prosecutor Francois de Menthon in 1950, asking the French National Assembly to ratify the convention, he said, “Genocide, which is the systematic destruction of a human group, is a crime that France will

never commit and that it will never approve nor excuse. There is no reason for France to defer its ratification.”* This indicated that U.N. functionaries in their official communications hoped to convince European states, including those whose war-time administrations had collaborated in genocide, to adapt the convention as a return to “civilized values.” However, as this chapter will show, there was some

doubt inside the UN Human Rights Division about whether the convention would actually be an effective instrument. Groups such as the World Jewish Congress (WJC), which lobbied the UN for its passage, privately thought the same. Rather than relating the drafting history of the convention as a powerful landmark moment in the process of restricting state sovereignty, this chapter will demonstrate that the convention was an incremental step in the creation of an interna-

tional criminal legal system, constrained by both state governments and non-governmental organizations.

THE CONVENTION’S PROVISIONS The final Genocide Convention was ingenious because it expanded the interwar idea of minorities protection to racial, religious, ethnic, and national groups generally,

but concentrated on collective violence (which the minorities treaties did not) and included a mechanism for prosecution (which the League’s Minorities Committee did not). Genocide was not only extermination through murder; it was defined as acts of serious mental and bodily harm against a group, the imposition of conditions

* Giraud to de Menthon, January 3, 1950, UN Archives, Geneva, SOA 318/2/03 A.

The Genocide Convention 183 of life meant to destroy the group, the forced transfer of children from one group to another, and the use of forced sterilization and other measures designed to prevent births. Intention, as a psychological component of the crime, was paramount: the perpetrators had to intend the destruction of the group, though the intent to eradicate the group in part was sufficient. Their motive, however, was deemed irrelevant.’ This was highly important because it eliminated the possibility that a defendant could claim that eliminating the group was necessary to protect state security—that the group was a “fifth column,” a group of terrorists, or harbored insurgents. The convention included other important innovations. ‘The crime did not have to be committed during war, and state officials who directed or incited genocide against their own populations could be held criminally liable. Moreover, the convention required that states, as legal entities, were responsible for upholding the convention, and if they did not, another state could file a lawsuit against the allegedly negligent state with the International Court of Justice, the successor to the Permanent Court of International Justice. Perpetrators could be prosecuted before an international criminal tribunal, though the convention did not give priority to this method. However, the convention had several limitations. It did not establish the principle of universal jurisdiction, in which states could arrest and prosecute non-nationals who committed genocide outside their territory.* States were still allowed to pros-

ecute perpetrators in their own courts if the crime had been committed on their territory. Critics at the time considered this a weakness because a state was not likely to prosecute its own officials. With the Nazi case fresh in mind, it was widely believed that genocide required state direction and participation. The convention did not outline a clear process of investigation, sanctions, and intervention that the UN was obligated to follow in case of genocide. States (rather than victimized groups or individuals) had the option of reporting cases to compe-

tent UN bodies. The Security Council, the sole body invested with the power to call for sanctions and military force, was free to act or not. There was no timeline for action or requirement on the part of states accused of organizing or condoning genocide to respond. The League system to protect minorities had been plagued by long delays and a lack of enforcement by the Council, and the UN system failed to rectify these problems. States did not want to transfer too much power to the UN, but there was also considerable fog in 1947-48 about which UN bodies might deal with accusations of genocide. > William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000), 222—5, 245-7. * For the legal issues, see Nehemiah Robinson, The Genocide Convention. Its Origins and Interpretation (New York: Institute of Jewish Affairs and the World Jewish Congress, 1949); Payam Akhavan,

“Enforcement of the Genocide Convention: A Challenge to Civilization,” Harvard Human Rights Journal 8 (1995): 229-58; Schabas, Genocide in International Law: The Crime of Crimes, 51-101, 345-78, 447-502. For legislative accounts of the drafting, see Matthew Lippman, “The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,” Boston University International Law Journal 3 (1985): 1-66, and Jan Hiibner, Das Verbrechen des Volkermordes im internationalen und nationalen Recht (Frankfurt am Main: Peter Lang, 2004), 63-84.

184 The Birth of the New Justice THE INTERNATIONAL CONTEXT For European states, the U.S., and the USSR, the convention was a response to Nazi genocide, and for China, a response to the brutal Japanese occupation. Most European states, whether capitalist or communist, pledged support for the idea of the convention. The European states in the UN at the time were the European victors and countries liberated from Nazi rule, and most of these states ratified or acceded to the convention relatively soon after the instrument was completed.’ Among the defeated states, Germany, Austria, Hungary, Romania, and Bulgaria all ratified or acceded in the 1950s,° while Spain, neutral during the war, was not

invited to join the convention.’ During the Cold War period, the problem of genocide was far less a threat in Europe than elsewhere, despite rhetoric that the Soviets were committing genocide in Eastern Europe and the Baltics. Thus, the European response was an after-the-fact reaction. History colored the understanding of genocide but contemporary political situations determined what, if anything, should be done about it in the present. The negotiation of the convention was the first stage of a possible change in the international system, as the convention established definitions and states’ obligations. The second stage comprised states implementation and the later political responses (or lack thereof) to genocide. This chapter examines the first stage.®

The Cold War, which escalated in 1947 and 1948, was the background to the negotiations. On June 5, 1947, the U.S. announced that it would assist in European reconstruction through the Marshall Plan. The offer was extended to the states of Central and Eastern Europe, but Stalin instructed them to reject the offer. The Cominform, designed to co-ordinate the activities of eight communist countries, was founded in October, and by the end of 1947, the brief period of genuine coalition governments between Social Democrats and Communists in Eastern Europe was drawing to a close.’ The East/West confrontation shaped the negotiations > Belgium (September 5, 1951), Denmark June 15, 1951), France (October 14, 1950), Norway (July 22, 1949), Poland (November 14, 1950), Sweden (May 27, 1952), Ukraine (November 15, 1954), the USSR (May 3, 1954), and Yugoslavia (August 29, 1950). See United Nations. Treaty Series, Convention on the Prevention and Punishment of the Crime of Genocide. New York, 9 December 1948. Ratifications

or Definitive Accessions ({cited August 14, 2008]; available from . Hereafter, United Nations, Ratifications. ° Germany (November 24, 1954), Austria (March 19, 1958), Hungary (January 7, 1952), Romania (November 2, 1950), and Bulgaria (July 21, 1950), in United Nations, Ratifications. ” Legal advisors in the UN Secretariat argued that a December 1946 resolution barring Spain “from

membership in international agencies established by or brought into relationship with the United Nations” took precedence over a more general resolution instructing the Secretary General to send invitations to non-member states. See Memo from B. C. Mitchell to Schacter, May 8, 1951, UN Archives, Geneva, SOA 318/2/03 B. ® On the problems of U.S. ratification, see Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham, NC: Duke University Press, 1991). For cases of genocide in the 1960s and ’70s, see Leo Kuper, Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1982). For a history of changing interpretations of the definition of genocide, see Ann Curthoys and John Docker, “Defining Genocide,” in Dan Stone, ed., The Historiography of Genocide (New York: Palgrave Macmillan, 2010), 9-41. > Tvan'T. Berend, Central and Eastern Europe, 1944-1993: Detour from the Periphery to the Periphery (Cambridge: Cambridge University Press, 1996), 26-38.

The Genocide Convention 185 in three main areas: the definition of genocide; the type of courts that should be used; and the form of political action that the UN could take to intervene. The opposing powers applied their political philosophies to the debates about difficult provisions in the convention. Each side tried to block certain provisions that the other side wanted, and although the Soviet bloc was frequently outvoted, the final outcome was a stalemate. The convention included an option for an international criminal court (which the U.S. wanted), but the protection of political groups was deleted (which the Soviets wanted). The Soviets indicated that national courts were the only acceptable venues for prosecution, while the Americans refused to give the Security Council exclusive power to consider accusations of genocide.

Before proceeding to the formulation of the concept and the creation of the convention, some general remarks about the diverse positions of four major World War Two victors toward the convention will help set the context. The U.S. supported the convention because it took a leading position in organizing Nuremberg and believed in the necessity of an international criminal court for genocide in case domestic courts failed to hand down adequate sentences. The Truman doctrine of supporting the struggle of “free peoples” against the imposition of a communist system also influenced support for the convention. Until the final stage of the negotiations, the U.S. delegation advocated the inclusion of political groups in the definition of genocide, which was contrary to Soviet demands.'° At the same time, the U.S. did not want a convention that could leave its officials open to foreign prosecution for failing to prevent racist lynching. State Department officials under Truman did not think the convention would do this, but this issue, as well as rightwing complaints that the convention infringed U.S. sovereignty, held up ratification for decades."!

France was cool toward the idea of a Genocide Convention in early 1947, though in 1948 officials believed that the newly defined crime could be wrapped up into its primary goal: the creation of an international criminal court to handle ageression and war crimes. This resulted from France’s historical experience of two German invasions and occupations in the twentieth century. Additionally, for the restored French republic, the codification of the Nuremberg Judgment could make it easier to convene an international tribunal in the future, perhaps assisting political negotiations to create the tribunal. It might also prevent future defeated powers from grousing that such a tribunal was victors’ justice. At the same time, France, like other European colonial powers, did not want the convention to define genocide as measures aimed at suppressing language and destroying cultural institutions, in case this should come into conflict with its colonial policies. The Soviet Union had complex goals. It sought an international legal document that would validate the belief that genocide was “scientifically” connected to Nazi

racism, with the implication that the Soviets had defeated that doctrine. This was supposed to demonstrate the superiority of Soviet ideology, and the doctrine of the '© Memo from Dubinsky to Marcus, September 17, 1947, WJC/B84/6. ' LeBlanc, 7he United States and the Genocide Convention, 5, 6, 9-11, 39-42, 54-6, 75, 200-34.

186 The Birth of the New Justice classless society.'? The Soviets were adamant that the convention should include decisive measures of prevention, yet their proposals mainly involved enhancing the supervisory powers of the state, which could obviously be used against the government’s enemies. For that reason, they strongly objected to the idea that the convention should protect political groups. Finally, they insisted that only national courts should have jurisdiction to try perpetrators. This would eliminate the possibility that their own officials would be tried before an international criminal court for deporting entire national populations, for example. Britain’s Foreign Office initially opposed the convention as completely ineffective, and the Home Office and Colonial Office believed there was no risk of genocide in either Britain or the empire. The Home Office presented numerous reasons

why the convention would be too difficult to implement in domestic law. For much of the negotiations, Britain stood against the U.S. and France, and found itself abstaining from certain votes along with the Soviet Union, an uncomfortable bedfellow. Britain insisted that the convention should deal with state responsibility for genocide, but it preferred to treat this as an international civil matter instead of a criminal one. However, in the end, Britain voted in favor of the convention to save its prestige, accommodate public opinion, and possibly compensate for Jewish groups negative appraisals of its mandate policy in Palestine. Yet qualms about the

convention’ loopholes and Home Office opposition to implementing it in domestic law meant that it did not accede until 1970.'° Smaller powers, especially those in Latin America, the Middle East, and Asia, played a role in negotiating the convention. Panama, Cuba, and India introduced a resolution in the General Assembly in 1946 that got the convention started. Small powers helped push the process along in 1947 when the Soviet Union, Britain, and other European powers tried to delay it.'* Small powers’ resistance to the protection of political groups influenced the U.S. to change its position in the matter. However, small powers’ support for the convention did not affect the main causes of genocide and politicide in their regions after 1945, such as political exclusion, discrimination against ethnoclasses, and retaliation against civilians for rebel

activity." Many small states underwent revolutions and political radicalization '? Historian Marina Sorokina argues that reports produced by the Soviet “Extraordinary State Commission for the Establishment and the Investigation of the Crimes of the Fascist German Invaders...” served to erase Soviet crimes in occupied areas and reassert control in liberated territories. Support for the Genocide Convention was perhaps a way to seal off the past, since it was a set of laws directed at the future. The Soviets had already tried to eliminate their past record by keeping their responsibility for the Katyn massacre out of the first Nuremberg Trial. See Marina Sorokina, “People and Procedures: Toward a History of the Investigation of Nazi Crimes in the USSR,” Kritika: Explorations in Russian and Eurasian History 6, no. 4 (2005): 824-5. 'S A. W. Brian Simpson, “Britain and the Genocide Convention,” British Yearbook of International Law 73 (2003): 5-64.

‘4 For example, see Cuba’s challenge to the British position that a convention would weaken existing international law, in United Nations, Official Records of the Second Session of the General Assembly. Sixth Committee. Legal Questions. Summary Records of the Meetings. 16 September—26 November 1947 (Lake Success, NY: 1947), Fortieth Meeting, October 2, 1947, 28. '? Helen Fein, “Accounting for Genocide after 1945: Theories and Some Findings,” International Journal on Group Rights 1 (1993): 90-1, 98-101.

The Genocide Convention 187 after 1948, and some new states, which committed genocide and politicide, especially in Africa, were only created in the 1960s and ’70s and did not participate in the negotiations in 1946-48. Finally, two conflicts over post-colonial partitions, Kashmir and Palestine, were in progress during the negotiations. Although parties to those conflicts used the charge of genocide as a political weapon against their opponents and urged various UN committees to take speedy action on the convention, the conflicts did not shape the actual provisions in the final convention. In theory, the UN Assembly’s Legal Committee might have learned from the UN’s problems in dealing with the Kashmir dispute and decided that setting up a binding process for investigating genocide was necessary. Instead, the committee seems to have insulated itself from the dispute, possibly because Pakistani and Indian delegates sometimes used committee meetings to trade accusations. The conflict between the World Jewish Con-

gress and Middle Eastern states was explicit in the UN Economic and Social Committee, but the conflict did not substantively affect various drafts of the convention. Lebanon, which participated in a UN Ad Hoc Committee that revised the convention, was in favor of an international criminal court and supported the convention generally."

LEMKIN’S CONCEPT OF GENOCIDE Three figures from the interwar movement to build international criminal law helped write the first draft of the Genocide Convention: Lemkin, Pella, and de Vabres. All three were well-versed in debates about universal jurisdiction, state versus individual responsibility, and national courts versus international courts. All shared the idea that the impartial mechanism of justice would ensure public security and international peace. Yet their trajectories during World War Two were very different, causing them to alter their interwar ideas in individual ways. Lemkin coined the term genocide in 1944, though he had developed a similar concept in 1933 in the context of the breakdown of the League's system to protect

minorities and the rise of radical right-wing violence in Central and Eastern Europe. Previous scholarship on Lemkin has largely relied on his autobiography, which should not be treated as a definitive source.'’ He wrote this manuscript after

'© For the contribution of Arab states to the history of human rights at the UN, see Susan Waltz, soniversal Human Rights: The Contribution of Muslim States,” Human Rights Quarterly 26 (2004): Ys The biography is in the Raphael Lemkin Papers, New York Public Library, ZL-273, Microfilm Reel 2. ‘This reel corresponds to Box 1, folders 35—43. A portion of this autobiography was published as Raphael Lemkin, “Totally Unofficial Man,” in Pioneers of Genocide Studies, ed. Samuel Totten and

Steven Leonard Jacobs (New Brunswick, N.J.: Transaction Publishers, 2002). For biographical approaches to Lemkin’s work, see William Korey, An Epitaph for Raphael Lemkin (New York: Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee, 2001); Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002); John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave

Macmillan, 2008).

188 The Birth of the New Justice the events of the 1940s and early 1950s, portraying himself as the central protagonist in the convention’s history. He expressly wrote the autobiography to publicize the convention and secure ratifications, especially in the U.S. I have mainly relied on correspondence written at the time of events and the published records of contemporary legal conferences.

The history of the idea of using criminal prosecution to prevent and punish violence against minorities, which was one original impulse behind the convention, should be broadened to include other individuals, legal groups, terminology, and historical events. Llewellyn Jones in 1926 proposed giving an international criminal court the authority to prosecute violations of the minorities treaties, discussed in Chapter 4. Lemkin introduced two new international criminal laws in 1933: “crimes of barbarity,” defined as systematic, organized attacks against a “cer-

tain collectivity,” including massacres, pogroms and collective cruelty against women and children; and “crimes of vandalism,” defined as attacks against a group’s

sacred buildings, cultural monuments, books, and artifacts.'* He borrowed concepts from a contemporary legal debate about the repression of terrorism, as well as the general idea that international crimes should be prosecuted by all states, regardless of the nationality of the perpetrator or the place where the crimes occurred. In 1929, Pella had spoken of “savagery” and “vandalism” during the League’s debate on the anti-counterfeiting convention, contrasting the former “barbaric” acts with “modern” forms of terrorism, such as fraud.'’ In April 1933, during a debate at a criminal law conference in Palermo about the nature of universal jurisdiction, Pella presented a list of crimes that warranted universal jurisdiction, including “crimes of barbarity” and “crimes of vandalism,” which were capable of “causing a common danger.””” In a paper submitted to the Bureau for the Unification of Criminal Law, a group co-founded by Pella, Lemkin applied these terms to the protection of “certain col-

lectivities,” i.e. minorities. Lemkin’s paper was a response to the question, “Is it necessary to create a new offense against the law of nations named terrorism?” His proposal was primarily a response to Hitler's rise to power in January 1933 (followed 'S Raphael Lemkin, Faut-il créer un nouveau deélit de droit des gens, nommeé terrorisme? Rapport spécial présenté a la Ve Conférence pour [Unification de Droit Pénal a Madrid (Madrid: Imprenta de Galo Saex,

1933), 439. The term “crimes of vandalism” had been used during the French Revolution by an antimonarchist bishop who protested the revolutionaries’ destruction of churches and religious monuments in the 1790s. See the references to Bishop Grégoire in Bertrand Robidou, Histoire du clergé, pendant la Revolution francaise (Paris: Calmann Lévy, 1889), 2: 365, 421-4. “Crimes of barbarism” were part of the late nineteenth century international legal discourse concerning crimes committed during a civil war or insurrection that should be eligible for extradition; see the 1892 proposals of the Institute of International Law, James Brown Scott, ed., Resolutions of the Institute of International Law Dealing with the Law of Nations (New York: Oxford University Press, 1916), 102—3. ‘The French Criminal Code of 1927 incorporated the terms and ideas from the Institute, stating that crimes committed during a civil war or insurrection were extraditable offenses if they were “of odious barbarity or vandalism forbidden by the laws of war.” League of Nations, Proceedings of the International Conference for the Adoption of a Convention

for the Suppression of Counterfeiting Currency, Geneva, April 9th to 20th, 1929 (Geneva), C.328. M.114.1929.II, 52-5. °° See Troisiéme Congres International de Droit Pénal, Palerme, 3—8 Avril 1933, Actes du Congres (Rome: Istituto Poligrafico Dello Stato, 1935), 737 and 918.

The Genocide Convention 189 by a wave of S.A. anti-Jewish violence), pogroms in Poland organized by the radical, ultra-nationalist National Party, and the pressure that native fascist movements

in Central and Eastern Europe placed on right-wing autocratic and military regimes in the ’30s.”! It was also a reaction to the mass extermination of the Arme-

nians during World War One, whose perpetrators had received minimal or no punishment. There was another immediate catalyst for the proposal: the collapsing

system of protection for minorities under the League of Nations (which finally ended with Poland’s withdrawal in 1935).** Lemkin summarized his analysis of the League system in an outline he wrote sometime after 1946: the minorities treaties lacked clear definitions; they were not universally applied to all states; the nature of enforcement was political; and the system disintegrated after it was repudiated by Poland.” Lemkin submitted his paper for the Bureau’s 1933 conference held in Madrid in October, but the precise date he formulated his ideas is unknown. For that reason,

it is unclear whether Iraqi military massacres of Christian Assyrians in August 1933 were also a catalyst. News of these massacres was only reported to the League Secretariat in a letter from the Assyrian Patriarch on August 30.” The next day, the

news was widely known, since representatives of Mexico, Ireland, and Norway placed the event on the League Assembly’s agenda, though the matter was put off

until October. Lemkin may have formulated his ideas many months before August.

Lemkin was part of the interwar movement to develop international criminal law, but he was an outsider in many ways. His proposal to create new laws prohibiting systematic attacks aimed at the physical existence of groups and their cultural sites and artifacts was outside the central concerns of other European

criminal jurists, who were mainly interested in other forms of crime and in international agreements for their repression. Furthermore, applying criminal prosecution to the protection of “certain collectivities” had political implications. Poland was involved in heated controversies with Germany regarding the treatment of ethnic Germans, and it was interested in either changing the minorities treaties so they applied to Germany (and other major powers) or getting rid of the system

altogether. Polish anti-Semitism was gaining strength at the same time that Lemkin wrote his paper, and the Polish government refused to issue him a visa to go to Spain. As a result, he was unable to debate his ideas or win support for them

*1 Saul Friedlander, Nazi Germany and the Jews (New York: HarperCollins, 1997), 16-19; Ivan T. Berend, Decades of Crisis: Central and Eastern Europe before World War II (Berkeley, Calif.: Univer-

sity of California Press, 1998), 196-8, 314-18. 2 Jacob Robinson et al., Were the Minorities Treaties a Failure? (New York: Institute of Jewish Affairs of the American Jewish Congress and the World Jewish Congress, 1943), 260—5; Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878-1938 (New York: Cambridge University Press, 2004), 337-43. *3 “I. Past Failures to Portect [sic] National, Racial, Religious, and Ethnic Groups from Extermina-

tion by International Law,” typed outline, n.d., Raphael Lemkin Papers, New York Public Library, Microfilm ZL-273, Reel 3, corresponding to Box 2, folder 4. The document references the Nuremberg and Tokyo ‘Trials, indicating that it was composed after 1946. ** League of Nations, Official Journal (Geneva: December, 1933), 1808-11.

190 The Birth of the New Justice at the Madrid conference.” Despite this rejection, Lemkin continued to participate in the criminal law movement, writing approvingly in 1935 about the League of Nations’ preparations for the anti-terrorism convention.*° In 1937, he shared Pella’s long-standing point of view that international criminal law could be used to protect international peace.” During World War Two, he fled Poland and spent a short period in Sweden, where he began collecting Nazi occupation decrees. He then emigrated to the U.S., where he advised the U.S. War Department on economic affairs. After analyzing Nazi occupation policy and learning of Nazi exterminations from World Jewish Congress reports, he altered his ideas about “crimes of barbarity,” “crimes of vandalism,” and the interwar process of cultural denationalization (“Germanization” and “Magyarization,” as opposed to the “crimes of denationalization” discussed at the Paris Peace Conference in 1919). In 1944, he announced that the Nazis and

their quislings were engaged in a new type of biological warfare in which they wanted to alter the demography of Europe. He wrote a book, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, in which he coined the term genocide and analyzed, in rough terms, three main techniques

of genocide (physical, biological, and cultural) practiced by the Nazis and their allies. The book was largely directed at the U.S. government and American population, trying to overcome their disbelief about the Nazi exterminations and persuading them that the Nazis were not merely violating the laws of war as combat and occupation techniques. In Lemkin’s view, the Nazis were eliminating Jews, Russians, Poles, Serbs, Slovenes, and Gypsies in order to replace them with ethnic Germans and their culture with German culture. Lemkin noted that the Germans used numerous measures, not merely direct massacre, but also policies of starvation, sterilization, and population transfer (including sending ethnic German colonists into areas cleared of Jews). He offered several proposals: the Americans should use the concept of conspiracy to prosecute the Nazis after the war; a new international law against genocide should be created; and an organization such as the International Committee of the Red Cross should be granted the power in the future to supervise populations in occupied areas so they would not become victims of genocide.”®

In 1946, the U.S. government sent him to Nuremberg to assist U.S. prosecutors on economic aspects of the case against the Nazis. Isaac Stone, the Jewish U.S. army sergeant who kept Jacob Robinson informed about what was happening behind the scenes, reported that he tried to get Lemkin interested in Nazi collaborators °> Lemkin, “Totally Unofficial Man,” 373; See Luis Jimenez de Asua, Vespasien Pella, and Manuel Lopez-Rey Arroyo, eds., Ve Conférence Internationale pour (Unification du Droit Pénal, Actes de la Conférence, Madrid, 14-20 Octobre 1933 (Paris: Editions A. Pedone, 1935). *° Raphael Lemkin, Verrorisme. Rapport. Extrait des actes de la Vliéme Conférence Internationale pour PUnification du Droit Pénal, Copenhague, aotit—septembre, 1935 (Paris: Pedone, 1938). *7 Raphael Lemkin, La protection de la paix par le droit pénal. Rapport présenté au IVe Congres International de Droit Pénal, Paris, 26-31 juillet, 1937 (Paris: Librairie Marchal et Billard, 1938). *8 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944), 79, 81,

86-7, 89, 188-9, 213, 244, 264.

The Genocide Convention 191 (whom U.S. prosecutors were not interested in at the time), but Lemkin mainly lobbied prosecutors—and whoever would listen—to use his term genocide. “Lemkin seems to be both a politician and a scholar,” said Stone. “You know, he didn’t even bother to read the documents I gave him; he was busy seeing people.”” He tried to convince British prosecutor Sir David Maxwell Fyfe that “the inclusion of

Genocide in the [Nuremberg] judgment would contribute to the creation of a preventive atmosphere against repetition of similar acts of barbarity. Indeed, we cannot keep telling the world in endless sentences:—Don’t murder members of national, racial and religious groups; don’ sterilize them; don’t impose abortion on them; don’ steal children from them; don’t compel their women to bear children

for your country;—and so on. But we must tell the world now, at this unique occasion,—dont practise Genocide.”*” He also tried and failed to convince Nuremberg judge, John Parker, the American alternate, to include the term genocide in the verdict.*!

DE VABRES AND PELLA’S FATES DURING THE WAR Henri Donnedieu de Vabres, France’s judge at Nuremberg, followed a different course before and during the war. During the late ’30s, he analyzed how the Italian fascists, the Nazis, and the Soviets had distorted their penal systems to promote social goals and serve as tools of political repression.** He remained a law professor

in Vichy France, writing legal manuals.*’ During the judges’ deliberations at Nuremberg, he strongly challenged the American concept of conspiracy, which did not exist in French law. This led the judges to reject the prosecutors’ broad claim

that the Nazi conspiracy, beginning in 1933, had engulfed all the crimes of the regime. Instead, they ruled that the conspiracy was only connected to aggressive war, comprised many distinct plans, and could not be connected to crimes against humanity committed before the war.** This meant that the pre-war jailing of Jews, *? Stone to Robinson, June 24, 1946, WJC/H157/17; Stone to Robinson, July 12, 1946, ibid. °° Lemkin to Fyfe, August 26, 1946, AJHS/P-154/1/18. °! Lemkin to Parker, August 27, 1946, Raphael Lemkin Papers, Manuscript Collection No. 60, 1942-1959. Series A. Genocide Convention. Subseries 1: Correspondence. Box 1/Folder 13, Jacob Rader Marcus Center of the American Jewish Archives, Cincinnati Campus, Hebrew Union College, Jewish Institute of Religion. These archives will be noted in the form, Lemkin-AJA/60/1/13. ; °° Henri Donnedieu de Vabres, La Crise moderne du droit pénal. La Politique criminelle des Etats autoritaires. Conférences faites a ’Université syrienne de Damas au mois de novembre 1937 (Paris: Librai-

rie du Recueil Sirey, 1947). °> For an analysis of academic law texts produced during Vichy, and a categorization of jurists’ approach to the anti-Jewish laws, see Dominique Gros, Le ‘statut des juifs” et les manuels en usage dans les facultés de Droit (1940-1944): de la description a la légitimation (Partie I et 2) ({cited June 4, 2005]; available from http://www.conflits.org/document.php?id=415 (Part 1) and http://www.conflits.org/ document.php?id=643 (Part 2). On the broader question of whether the French community of legal scholars, judges and attorneys who interpreted the law—not only the legislators who wrote it and the functionaries who carried it out—bore primary responsibility for the deportation of tens of thousands of Jews, see Richard Weisberg, “Legal Rhetoric Under Stress: The Example of Vichy,” Cardozo Law Review 12, no. 5 (1991): 1371-5. ** Ann Tusa and John Tusa, 7he Nuremberg Trial (London: Macmillan London, 1983), 448-9.

192 The Birth of the New Justice Catholics, and Jehovah’s Witnesses in concentration camps, the economic expropriation of the Jews, and all the assorted crimes of Kristallnacht in Germany and Austria did not qualify as crimes against humanity under the International Military Tribunal’s Charter.” The judges had been unconvinced by the prosecutors’ case (such as the one made by U.S. prosecutor William E Walsh) that pre-war persecution was a means of removing the Jews as “obstacles” in order to create national unity necessary for an aggressive war. De Vabres was also skeptical of the value of the legal definition of genocide. In March 1946, Lemkin defined the crime for a proposed UN convention as follows: “Whoever, while participating in a conspiracy aiming at the destruction or the weakening of a national, racial, or religious group, commits an attack against the life, liberty, [or] the property of members of such a group, is guilty of the crime of genocide.”*° De Vabres, probably writing in mid-1947, attacked this definition as imprecise and open to overt political misuse. He thought that genocide would require demonstrating a particular motive (rather than intent), and this was no better than the political justice meted out by the Vichy Government.*” He maintained that crimes against humanity, if they were de-linked from war, would be a superior concept.*® His role as a prominent French jurist and representative on a UN commission involved in codifying international law in 1947 influenced France to take a rather cool position toward the Genocide Convention initially. Pella’s pre-war and war-time diplomatic service is controversial because sev-

eral Romanian governments imposed anti-Jewish policies during the 1930s, and Romania joined the Axis in 1940. Why did he remain a diplomat in this period, only leaving his post when he was forced out in a purge of Romanian diplomats in neutral countries in October 1944?°? It may have been because he had an aging mother whom he was allowed to bring to Switzerland, and it was obviously safer there during the war than Bucharest.

°° Article 6(c) of the Nuremberg Charter defined crimes against humanity as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” In discussing the controversy that arose during the interpretation of this definition, Clark argues that the drafters of the Charter intended a restrictive definition of crimes against humanity. See Roger S. Clark, “Crimes Against Humanity at Nuremberg,” in The Nuremberg Trial and International Law, ed. George Ginsburgs and V. N. Kudriavtsev (Dordrecht, Boston, and London: Martinus Nijhoff Publishers, 1990), 190-2. °° Raphael Lemkin, “Le Crime de Génocide,” La Documentation Francaise. Notes Documentaires et Etudes. No. 417. (Série Textes et Documents.—L) (September 24, 1946): 5, AJHS/P-154/5/3. °*” Henri Donnedieu de Vabres, Le Procés de Nuremberg. Cours de doctorat professé a la Faculté de Droit de Paris (Paris: Editions Domat-Montchrestien, 1947), 244. I date the Cours de doctorat to mid1947 because page 70 mentions that a conference of the International Bureau for the Unification of Criminal Law would be held “next May” in Brussels, and page 241 states that the conference would be held in July. °8 De Vabres, Le Procés de Nuremberg, 239-46. *»” Swiss Legation in Romania to Division of Foreign Affairs, Federal Political Department, Berne, October 3, 1944 (copy), Swiss Federal Archive (Berne), E4001C#1000/1571 BD: 42, Folder: B.22.21. Ro., Pella, Vespasien. Ministre plénipotentiaire, Chargé de mission. Berne. ‘This folder will be noted as SFA/Pella.

The Genocide Convention 193 The whole period, starting in the 1930s, was filled with anti-Jewish violence and politically-motivated murders, committed by the Legion of the Archangel Michael (the Legionnaires, or Iron Guard) and the Lancieri, another fascist paramilitary organization backed by the National Christian Party.*° Pella was mostly abroad, posted in Geneva, The Hague, and then Berne. In January 1938, when the Romanian government was taken to task in the League of Nations for its extensive anti-

Jewish decrees and violations of the minorities treaty,*! the Romanian Foreign Minister asked Pella, who was Minister to The Hague at the time, to announce that Romania was withdrawing from the League. Pella stalled for time by pretending to have laryngitis.** He may not have agreed with the anti-Semitic policies, but he did not resign in protest either. Nor did he resign when Romania went to war against the Soviet Union in 1941; it is unlikely he would have, since Romania was fighting to recover Bessarabia, plus Pella was staunchly anti-communist. One Swiss diplomat considered him an “adroit opportunist” for managing to keep his job through all the changes in Romanian regimes**—National Liberal, National Christian, King Carol’s dictatorship, and Marshal Ion Antonescu’s military dictatorship. The diplomat said that in November 1942, after the Allies had landed troops in North Africa and the tide of the war was turning against the Nazis, Pella “still seemed very steadfastly to believe in the German victory.” Yet by August 1943, when he was appointed Romanian Minister to Berne—and German defeat seemed even more likely, following the Soviet victory at Stalingrad in February 1943—“he has since evolved, but with prudence.”“* Pella was appointed Minister to Berne to replace Nicolae Lahovary, an ambassador who, according to the Swiss ambassador in Romania, had received instructions from Mihai Antonescu (Minister of Foreign Affairs, no relation to Marshal

Antonescu) to open diplomatic talks with the Papal Nuncio to extract Romania from the war. German intelligence had intercepted telegrams between Lahovary and Mihai Antonescu, who had agreed to discuss peace negotiations with the Pope. Hitler then pressured Marshal Antonescu to get rid of Lahovary, and Antonescu complied.* According to the Swiss ambassador, Pella was jockeying for the position and got the job. Rumor had it that Pella was “opportunistic, vain, and ambitious,” qualities that were supposedly rooted in his “physical limitations,” since Pella had a lame leg and was missing an eye. This seems an unfair characterization. When the ambassador actually met Pella, he made a positive impression, appearing to be an

“© International Commission on the Holocaust in Romania, Final Report, edited by Tuvia Friling, Radu Ioanid, and Mihai E. Ionescu, Polirom, Iasi, 2005, Chapter 1, 26—7; . “| International Commission on the Holocaust in Romania, Final Report, 30-2. ” Sean Lester, Diary, Vol. 1, 1935-1941, League of Nations Archive, private papers, February 1, 1938, 225-6. * De Weck to Bonna, August 10, 1943, SFA/Pella. “ De Weck to Bonna, August 10, 1943, SFA/Pella. * Swiss ambassador in Romania to Pilet-Golaz, July 20, 1943, SFA/Pella. On Mihai Antonescu’s negotiations with the Red Cross concerning Transnistrian Jews, see Jean-Claude Favez, The Red Cross

ond ne Holocaust, trans. John and Beryl Fletcher (Cambridge: Cambridge University Press, 1999),

194 The Birth of the New Justice intelligent person in the “classical, democratic-liberal” mode. Pella reportedly stated that he wanted to represent an independent Romania and hoped to play a role in peace negotiations. “When I came to the government, overall I found elements in the Foreign Office who were afraid of the Legionnaires or had been placed there by the Germans; I will steadily clean it up.”“° It is unclear whether he did this. Much later, in 1950, he told Lemkin that King Michael had appointed him to the post to negotiate with the Allies. He also claimed he had documents proving this, but the whereabouts of these papers are unknown.*’ Additionally, he maintained that he had helped save Jews during the war. Tereza Mozes, a woman from Northern Transylvania who was interned in several death

camps during the Horthy occupation and became an ethnographer after the war, states that Pella, along with others, saved the lives of some Jews from Bihor in 1944.*8 Also, Mihai Marina, chief representative of the Romanian Consulate in Oradea (in Transylvania), gave Pella a full report about the fate of Jews who were sent to Auschwitz. Pella took the document to the International Red Cross in Vienna, where it “supported the mounting evidence on the fate of the Jews in the ghettos and in Auschwitz.” Once Pella was forced to resign in October 1944, the Swiss government allowed him to go to Geneva.’ It provided him briefly with ration cards and extended his residence permit every six months.?' While in Geneva in 1945, he wrote a book, War Crime and War Criminals: Reflections on International Criminal Justice, What It Ts and What It Should Be, published in 1946. The work shows that Pella still believed

that his international legal ideas from the 1920s—30s were valid after World War Two. He applied his 1925 analysis of the aggressive state (based on Wilhelmine Germany) to the Nazi state and urged that states create a permanent international criminal court in which states and individuals would be held responsible for aggressive war and war crimes.”* The book did not, however, offer a systematic analysis of Nazi genocide, and curiously, he never discussed the Nazi party by name. It was

“6 Swiss ambassador in Romania to Pilet-Golaz, July 20, 1943, SFA/Pella. 47 Pella to Lemkin, November 2, 1950, Lemkin-AJA/60/2/11. “8 ‘Tereza Mozes, “Five Centuries of Good Neighborhood, Fragments from the volume ‘Evreii din Oradea’ (The Jews from Oradea),” accessed February 4, 2013, . © Pella’ trip was probably between 1943 and 1944, since the report refers to him as the Romanian ambassador in Switzerland. See International Commission on the Holocaust in Romania, Final Report

(2005), Chapter 11, 26; . °° ‘Therefore, Pella was not head of the delegation in November 1944, when the Romanian Chargé

d’Aftaires in Berne urged the International Committee of Red Cross in Geneva to open an inquiry immediately into the extermination of Jews deported from northern Transylvania. My dissertation, “International Legal Movements against War Crimes, Terrorism, and Genocide: 1919-1948” (UCLA, 2008), 308, was incorrect on this point. >! Notiz—Copie pour b.22.21.Ro. PELLA (marked B.22.81.34.-WG in the margin), October 4, 1944, SFA/Pella.

°*? Vespasien V. Pella, La guerre-crime et les criminels de guerre, réflexions sur la justice pénale internationale, ce quelle est et ce quelle devrait étre (Geneva: Revue de droit international de sciences diplomatiques et politiques, 1946). His analysis of the Nazi penal system (88-90) was also astute.

The Genocide Convention 195 only implied when he described how the “active component of the nation” (using his 1925 term), fueled by racial conceptions, the religion of violence, idées fixes, and phobias generated from hatreds “against certain ethnic, religious, and political collectivities,” expanded and absorbed the entire political milieu.” Lemkin, Donnedieu de Vabres, and Pella interpreted the International Military Tribunal at Nuremberg differently, each jurist setting his own agenda in response

to the tribunal. The Nuremberg Judgment of October 1946 was revolutionary insofar as the court convicted top military and party officials and whole organizations, and had done so for aggressive war and war crimes, which had not been prosecuted internationally before. De Vabres wanted the judgment to serve as the foundation for a new international criminal law, arguing that the tribunal afhrmed the criminality of aggression and the process as a whole established the legitimacy of an international tribunal.** Moreover, he held that the tribunal showed that individuals, invested with the power of moral decision, could not evade responsibility by claiming they acted under orders, had diplomatic immunity, or were heads of state.” For Pella, writing before the Nuremberg Judgment was announced,

the Nuremberg Charter showed that the concept of an international court had matured, and a permanent one needed to be established immediately for the cause of peace.”° Yet for Lemkin, the judgment was a grave disappointment, a document filled with a gaping hole.’” Because the judges decided that Nazi crimes committed before the war (including those committed against German nationals) were not international crimes under the Tribunal’s Charter, the judgment could not serve as a precedent for future genocide prosecutions. Genocide needed to be defined as a crime that was also committed in peacetime.

THE SECRETARIAT’S DRAFT: A LACK OF UNITY In 1946, Lemkin pursued the establishment of an international law against genocide in three domains: the powers negotiating peace treaties with former Axis states; the UN Commission on Human Rights; and the UN General Assembly. This was a chaotic period from an international point of view. Successor governments were in the early stages of consolidating power. The United Nations met in San Francisco to draft a charter for the new international organization, but the staff and tasks of its agencies had not been created. The UN had several temporary homes, first in Brooklyn, then at Lake Success, New York, while the peace conferences met in Paris. Non-governmental organizations were eager to gain official > Pella, La guerre-crime, 54. ** Henri Donnedieu de Vabres, “Le procés de Nuremberg devant les principes modernes du droit

pénal international,” in Academy of International Law. Recueil des cours, 1947-I vol. 70 (Hague: Recueil Sirey, 1947), 489-504. °° Donnedieu de Vabres, Le Procés de Nuremberg. Cours de doctorat professé a la Faculté de Droit de

Paris, 272-82. © Pella, La guerre-crime, 46, 111-28. >” Raphael Lemkin, “Genocide as a Crime under International Law,” American Journal of International Law 41, no. 1 (1947): 146-51.

196 The Birth of the New Justice standing with the new UN organization, which required that they submit applications. Even before the Nuremberg Judgment was announced, Lemkin in 1946 proposed that the peace treaties with former Axis states, such as Romania and Hungary, should require that they include clauses prohibiting genocide in their penal codes. The social situations were unstable there, and new acts of genocide remained possible, he wrote.*® This proposal was never debated at the Paris Peace Conference; weaker anti-discrimination clauses, not connected to criminal prosecution, were employed instead.” Finally, in 1946 he tried to interest the new UN Commission on Human Rights in a genocide convention, but that body was still establishing its membership and did not go into action until the next year. He did manage to convince Panama, Cuba, and India to sponsor a resolution affirming genocide as an international crime at the first UN Assembly in December 1946, which was passed unanimously (Resolution 96 (I)). This also called on the Economic and Social Council (ECOSOC) to begin preparing a convention, and that body turned the project over to Secretary-General Trygve Lie. His staff enlisted Lemkin, Pella, and Donnedieu de Vabres to write a first draft.°' Lemkin was chosen because he was known as the “godfather” of the genocide concept,” Pella was the president of the Association Internationale de Droit Pénal, and de Vabres was France's representative on the UN’s Committee for the Progressive

Development of International Law and its Codification. Their draft (called the Secretariat's Draft) was plagued by intellectual disagreements and uncertain preventive measures, indicating that the jurists had different agendas for the project. On May 19, 1947, three days before the trio was supposed to meet at Lake Success, France submitted a memo to the Committee for the Progressive Development of International Law and its Codification, opposing the genocide concept. Written by de Vabres, it stated that the definition of genocide in the Assembly declaration was overly broad and might lead to unjust accusations that would lead to wars. Instead of genocide, the convention should concentrate on crimes against humanity, which should be redefined so they were less restrictive than the Nuremberg

Charter’s formulation. The French also wanted to limit who could be prosecuted

8 “Annexe. Mémorandum sur la nécessité d’inclure les clauses contre le génocide dans les traités de paix,” points 7 and 8, in Lemkin, “Le Crime de Génocide,” 6-7. °° A. W. Brian Simpson, Human Rights and the End of Empire (Oxford: Oxford University Press, 2001), 325-31. I can find no mention of Lemkin’s genocide proposal in the institutional records of the Peace Conference. See United States Department of State, Papers Relating to the Foreign Relations of the United States, 1946. Paris Peace Conference: Proceedings, vol. 3 (Washington: United States Government Printing Office, 1970) and United States Department of State, Papers Relating to the Foreign Relations of the United States, 1946. Paris Peace Conference: Documents, vol. 4 (Washington: United

States Government Printing Office, 1970). °° Lemkin to Eleanor Roosevelt, May 18, 1946, UN Archives, Geneva, SOA 318/1/01 (4). °! According to John P. Humphrey, Human Rights and the United Nations: A Great Adventure (Dobbs Ferry, New York: Transnational Publishers, 1984), 54, Donnedieu de Vabres did not come in

person, so work on the draft may have been done through correspondence. The UN Archives in Geneva do not contain any working drafts or correspondence among the jurists. °° Memo from Humphrey (Director, Human Rights Division) to Henri Laugier (Under-Secretary General), May 13, 1947, UN Archives, Geneva, SOA/318/1/01 (1)A.

The Genocide Convention 197 through an international court. Rulers and decision makers should be tried by a chamber of the Court of International Justice, while underlings should be tried as common criminals in domestic courts, with the right to plead that they had acted under superior orders.®’ That was a shock, considering that the Nuremberg Charter had dismissed this defense. The jurists managed to complete a draft by June 1947, but they failed to provide a unified front in their plan, announcing that it was better for the Assembly to have a wealth of ideas from which to choose.“ The trio’s conflicts weakened the blueprint, left the genocide concept open to the criticism that it was premature, and lead to suspicions that Pella might be trying to use the project as a springboard for his long-time dream: the establishment of a permanent international criminal court. Indeed, the drafters had been unable to agree on the situations in which an international court should be used. Even worse, they did not agree on what type of body it should be: Lemkin supported an ad hoc court, exclusively for genocide, which could only try state officials and heads of organizations. De Vabres supported a broader international jurisdiction (for genocide and other crimes), but wanted a criminal chamber in the International Court of Justice (as the French had desired since 1920). Pella wanted a permanent international criminal court, offering the blueprint completed by the Association Internationale de Droit Pénal in 1929 (discussed in Chapter 4). There were also differences concerning which groups should be protected. The General Assembly Resolution 96(I), in December 1946, stated that “genocide is a crime under international law...whether the crime is committed on religious, racial, political, or any other grounds.” Additionally, it declared that “crimes of genocide have occurred when racial, religious, political or other groups have been destroyed, entirely or in part.” Political groups were mentioned, national groups were not, and the phrases “other groups” and “other grounds” were used, which left room for interpretation.® Lemkin, Pella, and de Vabres did not agree on whether

political groups should be protected by the convention. Lemkin argued that including political groups, which lacked “the permanence and specific characteristics” of national and religious groups, would lead to political charges and countercharges that would cause the convention to fail.°” De Vabres, however, wanted political groups included. In his doctoral course manual on the Nuremberg Trial, he wrote that “social minorities” demanded protection just like races and religions. “Hadn't the past—indeed the recent past—shown that class struggle could be just °° United Nations, Memorandum on the Subject of Genocide and Crimes against Humanity, Submitted by the Representative of France, May 19, 1947, UN Document A/AC.10/29. “ United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, June

26, 1947, UN Document E/447, 19. °° Tf the Assembly decided that there should just be an international criminal court for genocide, Pella recommended the statute that the League had developed for the anti-terrorism convention. United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, 46-7. °° See the resolution text in United Nations, Official Records of the Second Part of the First Session of the General Assembly. Plenary Meetings of the General Assembly. Verbatim Record. 23 October-16 December

1946 (Flushing Meadow, NY: 1946), December 11, 1946, Fifty-fifth Plenary Meeting, 1134—5. °” United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, 26.

198 The Birth of the New Justice as murderous as that of races and religions?”® As in the interwar period, this showed the conservative tendency of some international criminal jurists: international criminal laws should protect the wealthy (a social minority) against workers who might rise up against them and attack them as a group. The experts also disagreed on whether genocide should not only include killing, medical experimentation, forced sterilization, and measures meant to deprive a group of its livelihood and hygiene, but also attacks on a group’s language, cultural institutions, books, and monuments, if these acts were committed with intent to destroy the group. This was known as “cultural genocide,” a term that combined the 1930s idea of “crimes of vandalism” with extreme forms of minority rights violations. Lemkin wanted it in the convention, arguing that this crime was distinct from policies of assimilation because its key features were violence, systematic implementation, and intent to eliminate the group. De Vabres and Pella rejected this, arguing that laws against repressing languages and closing down schools belonged with the old regime of protecting minorities.” In his later work, Lemkin attempted to explain that cultural genocide could be a warning signal of possible physical genocide, but he did not forcefully make this argument in the commentary that appeared with the Secretariat’s draft. The draft stuck to the argument that prosecution was a sufficient measure of prevention. For this reason, it called for prosecuting acts that could lead to genocide or promoted it: spreading propaganda, building installations to commit genocide, researching techniques of genocide, or teaching them.”” But the jurists were conservative in their ideas for UN intervention. They merely stated that in cases of geno-

cide, parties to the convention could call upon the organs of the UN, without explaining what was supposed to happen next. They suggested that the Assembly might consider giving the Secretary-General the power to bring accusations of genocide to the attention of the Security Council, but they noted that states not party to the Convention might object, since this could give the Secretary powers not specified by the UN Charter.’’ While this was a valid concern, the fact that the experts did not develop a plan to solve the question meant that later opponents could seize on this problem, rather than being forced to grapple with a proposed solution. Overall, the Secretariat's draft was a far more cautious blueprint than Pella’s interwar plans for preventing aggressive war, which outlined a process involving the League Council and the Permanent Court, and also included sanctions.” It was also °8 Donnedieu de Vabres, Le Procés de Nuremberg. Cours de doctorat professé a la Faculté de Droit de Paris, 244. © United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, 31. 7? United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, 35. The jurists specifically mentioned gas experiments in their commentary, possibly because the British had just prosecuted the “Zyklon B Case” in Hamburg in March 1946. Two of the accused were German civilians who sold poison gas and equipment to the SS for use in Auschwitz; a third was a gassing technician who was acquitted. Although they were civilians, the British Military Tribunal treated them as accessories to war crimes. See United Nations War Crimes Commission, “Case No. 9. The Zyklon B Case. Trial of Bruno Tesch and Two Others,” in Law Reports of Trials of War Criminals (London: His Majesty's Stationery Office, 1947), 1: 93-103. 7! United Nations. Economic and Social Council, Projet de convention sur le crime de génocide, 52.

” See Chapter 4.

The Genocide Convention 199 more restrained than Lemkin’s ideas, published in March 1946, for preventing geno-

cide. At that time, he counseled that the Security Council could request that the International Court of Justice investigate allegations of genocide, and the Council could initiate sanctions.” Additionally, Lemkin wanted individuals to be able to peti-

tion the Security Council, as they had been able to submit petitions concerning minority violations in the League era. But all this was gone in the Secretariat’s draft.

ACTIVISM IN 1947 As the Secretariat’s draft wended its way through the UN bureaucracy of committees, subcommittees, and councils, four major political—legal problems emerged: the definition of genocide; the machinery for prosecution; the integration of the new international law into national penal codes; and the mechanism of UN intervention in case of genocide or potential genocide. ‘The last three subjects were debated extensively for various crimes during the interwar period, but the first had obviously not been: the legal concept of genocide was new. As for the machinery of prosecution, the old debate as to whether states should give up their sovereignty and accede to an international criminal court was as strong as ever. During the interwar period, the major conventions in international criminal law had tried to combine national and international jurisdictions to varying degrees. The anti-counterfeiting convention specified that states could use their own courts and could request the extradition of foreigners who had counterfeited their currency; it did not create an international criminal court. The anti-terrorism convention gave states the option of using their own courts or sending suspects to an international criminal court (if they signed a separate convention), but the system was never implemented. Nazism and Nuremberg reinvigorated the debate about creating an international criminal court, but with a twist. According to one interpretation prevalent at the time, Nazism had shown that genocide was organized by the state apparatus. It involved state officials and agencies, so a state committed to an extreme ideology would never prosecute its own, unless it was defeated in war. As Alberto Arca Parro, the Peruvian delegate, explained during ECOSOC discussions on genocide in March 1947, the only effective machinery would be some process of confronting governments through the UN or the International Court of Justice.”* On the other hand, Sir Hartley Shawcross, Britain’s representative on the Legal Committee in November 1947, maintained that a state would never surrender its citizens to an international court. “The only real sanction against genocide was war.”” 73 Lemkin, “Le Crime de Génocide,” V., No. 5, 5. The International Court of Justice was an inter-

national court, competent to hear disputes between states, which had assumed the functions of the Permanent Court of International Justice from the League of Nations period. ” United Nations, Prevention and Punishment of Genocide. Historical Summary (2 November 1946—

20 January 1948), January 26, 1948, UN Document E/621, 14. ” United Nations, Official Records of the Second Session of the General Assembly. Sixth Committee. Legal Questions. Summary Records of the Meetings. 16 September—26 November 1947, Forty-second Meeting, October 6, 1947, 34—5.

200 The Birth of the New Justice Additionally, one must recall that in 1947, it was not at all clear whether the International Military Tribunal at Nuremberg—its Charter, its procedures, its Judgment—was a precedent or simply an extraordinary occurrence. ‘The Soviets, for example, strongly protective of their penal system—which they had effectively used for social and political repression—were absolutely opposed in 1948 to an international criminal court, arguing that it violated state sovereignty.’° Austrian

jurist Hans Kelsen, who had emigrated to the U.S., completely discounted the legal reasoning used by the judges to justify the application of individual criminal penalties to aggressive war. Adopting a rather extreme position, he blasted the Charter, stating that while it did create new law, it merely represented the sovereign will of the victors, and no later international tribunal would be obliged to pay any attention to it.’’ Progress on the Genocide Convention was also delayed because the project had a competitor: the codification of the Nuremberg Judgment, with the goal of forming an international criminal code that would cover aggression, war crimes, and possibly crimes against humanity. In December 1946, the Assembly set this project in motion at the same time as the Genocide Convention. During the first half of 1947, France was a strong supporter of codification,” partly due to de Vabres’ influence, as he sat on the Assembly's Committee for the Progressive Development of International Law and its Codification, which was initially in charge of the project. (In November 1947, the International Law Commission, a new body, took over the task.)” The Genocide Convention actually moved along faster than the Nuremberg codification, but other commissions and committees were supposed to be consulted. States which opposed the Genocide Convention or questioned its value, such as Britain, asserted that the project should wait until a larger framework of international criminal law was worked out, while pro-convention states, such as the U.S., argued that various UN bodies could begin drawing up a new global criminal code while work on the Genocide Convention progressed.*° Lemkin contended that the codification project (which came to be called the

Draft Code of Offenses against the Peace and Security of Mankind) was an ’° United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Seventh Meeting, April 12, 1948, 2:30 p.m. (Lake Success, New York), UN Document

E/AC.25/SR.7, 3-4. ”” Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?” The International Law Quarterly 1, no. 2 (1947): 153-65. ’8 United Nations. General Assembly, Commission for the Study of the Progressive Development of International Law and its Codification. Memorandum by the Delegate for France. Draft Texts Relating to the Principles of the Charter and Judgment of the Nuremberg Tribunal, May 27, 1947, (Lake Success),

UN Document A/AC.10/34. ” United Nations, Official Records of the Second Session of the General Assembly. Plenary Meetings of the General Assembly. Verbatim Record. 16 September—29 November 1947, vol. 2 (Lake Success, NY:

1947), Hundred and Twenty-third Plenary Meeting, 1280-2. 8° See the remarks of Sir Hartley Shawcross of Britain in United Nations, Official Records of the Second Session of the General Assembly, Sixth Committee. Legal Questions. Summary Records of the Meet-

ings. 16 September—26 November 1947, Thirty-ninth Meeting, September 29, 1947, 20-1, and Fortysecond meeting, October 6, 1947, 34—5. See the comments on the possibility of ad hoc and permanent international tribunals in “Communication Received from the United States of America,” September 30, 1947, in United Nations, Official Records of the Second Session of the General Assembly. Sixth Committee. Legal Questions. Summary Records of the Meetings. 16 September—26 November 1947, 241-2.

The Genocide Convention 201 inappropriate framework for genocide, since he believed the code would mainly deal with aggression and war, while genocide could be committed in peacetime. Other international lawyers, such as Greek international law scholar Jean Spiropoulos, believed that the projects could be combined. One should recall that international criminal jurists since the 1920s had dreamed of a global criminal code that would define various crimes under an international jurisdiction, hold high officials liable under international law, establish criminal penalties for war crimes, and work in conjunction with an international criminal court. In June 1947, the Committee on the Progressive Development of International Law and its Codification sent the draft Genocide Convention, without comment, to ECOSOC, stating that it could not make a recommendation about its value because states had not submitted observations. The World Jewish Congress met with Lemkin on June 24, and then began a lobbying campaign in July, urging their correspondents in eighteen countries to ask their governments to push ECOSOC to support the draft convention. Maurice Perlzweig, the WJC’s political director, recommended that the convention should not protect “political groups,” since this would “eliminate controversy and ensure speedier action.”*' Yet inside the WJC, Oscar Karbach produced a fierce critique of one of Lemkin’s draft conventions, arguing that it lacked sanctions, provided no definite course of action for UN

intervention, did not solve the problem of extraditing perpetrators, and only applied to contracting parties. The whole is nothing more than a pious declaration of lofty intentions and, in the case of liberal powers winning a Third World War, would make the matter more easy for the judges of another Nuremberg Tribunal....It must be repeated that genocide will, in all probability, always be committed by “rulers and officials” or by subversive groups so strong that they no longer regard themselves or can be regarded as subject to the jurisdiction of their country. Only war-like measures against the perpetrators or [the] strongest economic sanctions may therefore be expected to have any results at all. If they are today still being regarded as out of the question, the value of such a convention is doubtful.*

The WJC could not be so frank at the UN, but at this stage, the leadership decided

that urging speedy action on a convention (along with some other suggestions about how genocide should be defined) should take top priority. When the WJC submitted a memo to ECOSOC on July 30, the only idea from Karbach was that the convention should cover crimes that were committed in states which were not party to the convention. This was supposed to give the convention universal reach.

Although the memo mentioned that an international authority would be more effective than national prosecution, the authors failed spell out a precise system.* ECOSOC, however, was occupied with the fact that states had still not submitted comments about the Secretariat's draft. Its main decision was to urge states to

8! Circular Letter from Perlzweig, July 10, 1947, WJC/B84/6. 82 Memo from Karbach to Kubowitzki, “Re: Convention for the Prevention and Punishment of Genocide. (Draft by Prof. Lemkin),” June (no year listed), WJC/B84/6.

8 WIC to ECOSOC, July 30, 1947, UN Document E/C.2/52.

202 The Birth of the New Justice contribute their views and have the draft convention and any observations sent to the Assembly in the fall. A handful of responses trickled in by that time, but when various UN committees, subcommittees, and the Assembly itself debated the convention between September and November, the battle for the convention's existence overwhelmed any ideas about improving the convention's effectiveness.™ After many complex maneuvers and debates, the plenary Assembly finally adopted a package of decisions on a vote of thirty-eight to zero on November 23, 1947. ECOSOC should proceed with work on the convention, study the Secretariat’s draft, and consider the International Law Commission’s work on the Nuremberg codification. Among pro-convention states, this was a victory for many small countries, the U.S., and France, which still supported the Nuremberg Codification but not to the exclusion of the Genocide Convention. Nevertheless, there were fourteen abstentions coming from the Soviet bloc, the U.K. and its dominions, and small Euro-

pean states, such as Belgium, the Netherlands, and Greece.* The Soviet bloc rejected the Secretariat’s draft because political groups were included in the definition of genocide. Britain was skeptical that the convention would have any preventative effect, though it refrained from making proposals to improve the project. Britain, Belgium, and Greece, European states which had been in the vanguard of supporting an international tribunal for war crimes at the Paris Peace Conference in 1919, were now taking a conservative position on genocide. These states, along

with the Netherlands—another country that claimed in 1920 that it would support the “new justice” if the law was created before the crime occurred—expressed

concerns that their parliaments might be unwilling to make changes in their national laws. Furthermore, they were uncomfortable with the idea that they might be required to extradite their nationals.*° Some of their concerns about changes to extradition law and jurisdiction had surfaced during the inter-war period, but the idea of cultural genocide raised a new problem for the colonial powers. They feared that the Soviets might support colonial subjects who accused colonial administrators of genocide. This might not only be a political embarrassment; it could also lead to criminal charges against their officials, possibly by a foreign court. It would be far safer to deal with the issue in a human rights declaration or a council, with no chance of criminal prosecution. Right before and during this critical time in the Assembly, pro-convention activists lobbied various governments to push the Genocide Convention through. They also published editorials, letters, and articles to inform various societies about the new term genocide and explain why a convention was necessary. Was the lobbying

8 For the details, see United Nations, Prevention and Punishment of Genocide. Historical Summary,

26-46. Also see memo from Dubinsky to Marcus, October 13, 1947, WJC/B84/6, alleging that the

chairman of the Legal Committee, Faris el Khouri, was using procedural tricks to delay the convention. ® Australia, Belgium, Byelorussian SSR, Czechoslovakia, Greece, Luxembourg, the Netherlands, Poland, Turkey, Ukrainian SSR, Union of South Africa, USSR, U.K., and Yugoslavia. 8° For one example, see the Observations by the Netherlands Government Concerning the Draft Convention on Genocide, April 15, 1948, UN Archives, Geneva, SOA/318/1/01(C).

The Genocide Convention 203 effective? For the period under consideration—the fall of 1947—lobbyists probably had some impact on the U.S. but no impact on Britain and the East bloc.*’ Lemkin lobbied Charles Fahy, the legal advisor to the U.S. State Department, urging that the U.S. should not follow the French project for Nuremberg codification. He played to U.S. fears that a global code that made political persecution an international crime (as a crime against humanity) would leave U.S. officials liable for the lynching of black Americans.** The U.S. pushed for progress (rather than delay) on the convention, but Lemkin’s influence was not the main factor. As a new glo-

bal power, the U.S. wanted to demonstrate that it supported “fundamental freedoms,” despite the contradictions of its own racist institutions at home. Regarding Britain, legal scholar A.W. Brian Simpson suggests the Foreign Office might have shifted policy in favor of the convention in late 1948 in part to compensate for Jewish groups’ extremely negative criticism of British mandate policy in Palestine. It is certainly possible, given the criticisms launched in September 1947 by Sidney Silverman, Labour M.P. in the House of Commons and Chairman of the WJC’s British Section. He called for swift passage of the Genocide Convention, criticized Britain’s Palestine policy, and admonished the British for refusing to allow 4,500 illegal Jewish refugees aboard the Exodus steamer into Palestine.*’ However, the lobbyists did not influence British policy before the Assembly vote in the fall of 1947. Perlzweig could not broach the subject of the convention with the British government in the summer “because the unhappy Exodus incident formed the substance of all our conversations.””° In October, Lemkin thought that British opposition was due to the influence of “certain international lawyers” who supposedly advocated a “common law” approach to international law, rather than a positive penal law against genocide.’' The real reasons lay elsewhere, however. ‘The Foreign Office maintained that a convention that did not deal with state responsibility for genocide would be ineffectual. Additionally, the Foreign Office and Colonial Ofhce were opposed to the inclusion of cultural genocide, believing that this was too similar to League-era protections for minorities, a system they wanted to abolish completely.” Lemkin had asked Perlzweig to contact his old friend Jan Masaryk, the Czechoslovak Foreign Minister, to try to serve as a bridge between the pro-convention 8” | have not dealt with the question of the effect of lobbyists on Latin American governments. Lemkin had good relations with Ricardo Alfaro, who was Panama’s UN delegate and had been involved in extensive negotiations and dispute settlements with the U.S. related to the Panama canal. Alfaro had been one of the sponsors of the original genocide resolution in 1946 and was a reliable source of support for the convention. Gabriela Mistral contacted various government officials, but it is not clear whether she had much success. (See Mistral to Buck, March 11, 1948, AJHS/P-154/1/19.) The WJC contacted Papal officials and believed the latter influenced Latin American governments’ support for the convention, but this hypothesis requires research by scholars in that area. See Perlzweig to Lemkin, August 29,

1947, AJHS/P-154/1/18 and memo from Dubinsky to Marcus, October 13, 1947, WJC/B84/6. 88 Lemkin to Fahy, November 9, 1947, AJHS/P-154/1/18. ® Memo from World Jewish Congress, containing text of Silverman’s speech on September 29, 1947 at Lake Success, New York, WJC/B84/6. °° Perlzweig to Lemkin, August 29, 1947, AJHS/P-154/1/18. *! Memo from Jacoby to Kubowitzki and Marcus, October 2, 1947, WJC/B84/6. °° Simpson, “Britain and the Genocide Convention,” 12-14.

204 The Birth of the New Justice camp and the Eastern Europeans. On August 29, 1947, Perlzweig reported that Masaryk agreed “to use his influence with the East European governments to prevent them from wrecking the prospects of a convention because of the unfortunate inclusion of a reference to political groups.”®? Masaryk, however, had no influence since he was merely included in Czechoslovakia’s Social Democratic-Communist coalition government for show.” In the fall Assembly vote on the convention, the Czechoslovaks voted with the East bloc. In February 1948, a communist-led People’s Front government took power, and Masaryk was murdered in March.” David Alcalay, of the Federation of Jewish Communities of Yugoslavia, reported that the Belgrade government supported the convention, though he indicated that the Yugoslavs were not in a rush. “[T]he interested parties have not yet had enough time and possibilities to study it.”°° He referred the WJC to Dr. Albert Vajs, who was vice-president of the Federation, a law professor at the University of Belgrade, and a former member of the Yugoslav delegation to the Nuremberg Tribunal. By the fall of 1948, however, Yugoslavia was squarely voting with Soviets in the Legal

Committee, insisting that the convention did not do enough for prevention, should not include an international tribunal, and must state that genocide was fundamentally tied to racist Nazism.

THE “RIGHT TO EXISTENCE” AND “PERFUMED COFFIN COMMITTEES” The fight to keep the convention alive at the end of 1947 had important effects on the activists and their decisions. After the war ended and the first Nuremberg Trial was over, Lemkin had no official government position. He became a political activist living on small checks from temporary teaching jobs and donations from organizations. Following the Assembly vote at the end of 1947, he turned against international lawyers, accusing them of supporting Nuremberg Codification so they could reap “jobs, honors and Mandarin ceremonies” for decades. Furthermore, in his view, the British, the Soviets, and other opponents were using the Nuremberg codification as a means of suffocating the convention in “perfumed coffin committees.””” He remained in contact with the WJC and received funds from the group, and there are indications in his papers that he fought for the Genocide Convention in part because most of his family in Poland was murdered by the Nazis.”® Yet he did

°> Perlzweig to Lemkin, August 29, 1947. ** Compare to Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, 83-4, 97, who believes Masaryk was influential with the Soviet bloc.

> Berend, Central and Eastern Europe, 1944-1993: Detour from the Periphery to the Periphery, OE stealay to Stephen S. Wise, October 10, 1947, WJC/B84/6. *” ‘The phrase was used by American newspaper writer Gertrude Samuels in an editorial in favor of the convention. See “A Treaty for the People,” New York Times, October 11, 1947. See also Lemkin to

Samuels, January 12, 1948, AJHS/P-154/1/19. °8 Cooper, Raphael Lemkin and the Strugele for the Genocide Convention, 79, 81, 83, agrees.

The Genocide Convention 205 not work as a Jewish advocate. Instead, he attempted to appeal to all nationalities, religions, and ethnic groups, stressing that many groups in history had been genocide victims or could become them in the future if there was no adequate international protection for them. In the coming year, he would expand his connections with religious, peace, labor, veteran and intellectual organizations, mainly in the U.S., Western Europe, and Latin America. In April 1948, he joined the United States Committee for a United Nations Genocide Convention, a group started by the leaders of five religious groups.” These groups used techniques to rally support for the convention that international criminal jurists, who held professional conferences and published legal journals, did not employ. ‘The activists utilized the radio and press, petition-drives, letter-writing campaigns, and lobbying, methods commonly used by peace movements, labor organizations, and groups such as the International Committee for Political Prisoners.'”° The UN itself took an active role. As far as I am aware, the League of Nation’s Information Section never tried to interest the public in any criminal law project in the 1920s and ’30s, though it did broadcast radio speeches about the new Permanent Court when it was established in 1920. (The fact that the Advisory Committee of Jurists had discussed Descamp’s proposal for an international criminal

tribunal was never mentioned to the public, however.)'°' In contrast, in 1947, Lemkin worked on a film strip (still images), produced by the U.N.’s film division, called “Genocide—The Greater Crime.”'” The first part presented an imaginary group, the Extabians, who were persecuted by their government, not allowed to

marry, sent to a labor camp, and eventually died there. The second half briefly described the Nazi genocide, though it never depicted any particular persecuted group. Five thousand copies of the film strip were made, and the accompanying commentary was translated into French, Spanish, Chinese and Russian. The film strip was released to all U.N. member states at the beginning of 1948. The point was to explain the concept of genocide to some of the peoples of the world and inform them that negotiations for the convention were then in progress. The film took an activist stance: a new international law was needed “so that the guilty are punished like common criminals and the world protected from the Crime of » ‘They included Henry A. Atkinson (General Secretary, Church Peace Union and World Alliance

for International Friendship through the Churches), Henry Noble MacCracken (Co-Chairman, International Conference of Christians and Jews), Samuel McCrea Cavert (Federal Council of Churches in America), and James Rosenberg (Human Rights Committee of the National Conference of Christians and Jews). The Committee was formed in April and invited Lemkin to join. At first he refused, preferring to work as an individual, but he was over-ruled by the Committee’s unanimous support. See “Summary of meeting to discuss the genocide matter at 27 West 67th Street, at the home of James N. Rosenberg, April 23, 1948 at 10:30 a.m.,” AJHS/P-154/1/19. 00 Robert C. Cottrell, Robert Nash Baldwin and the American Civil Liberties Union (New York: Columbia University Press, 2000), 167-82. '0l "The speeches were broadcast in Western and Central Europe. ‘This was the second time the League’s Information Section had publicized League activities with the radio. The first time was when the Secretariat made a radio broadcast from Annapolis, Maryland about the International Labor Conference. See Communiqué No. 21, LNA/1304/21/5980/4959.

'? It was originally supposed to be a documentary film costing $20,000, but the U.N. cut the budget. See Lemkin to Samuels, January 12, 1948, AJHS/P-154/1/19.

206 The Birth of the New Justice Genocide.”!®? It is unknown how widely the film strip was shown and if it had an impact, but this type of media production was never done for the anti-counterfeiting and anti-terrorism conventions. In the main, the civic and religious groups were not concerned with the techni-

calities of how extradition would work, how governments might have to amend their domestic criminal codes, and what methods were best for enforcement. They believed that a new international law against genocide would draw a moral line between the pre- and post-World War Two periods. The convention appealed to religious organizations because it promised protection under international law, offering it to all religions, not only minority religions. The era of selective humanitarian intervention, which the European powers had used to legitimize their political objectives in the Balkans in the nineteenth century, was supposed to come to an end. For intellectuals and humanitarians in North and South America and Europe, the Genocide Convention was supposed to be an “international Magna Charta for life and culture.” A group of Nobel Prize-winning authors, jurists, and activists from multiple countries published a manifesto in the New York Times in November

1947, declaring that the convention would additionally protect “a basic birthright—the right of existence of national, religious, and other human groups.” It would defend the world against tyrannical governments, racial hatred, nationalism, and religious prejudice.'* The New York Times, in August 1947, editorialized that the treaty would create international machinery to deal “instantly” with crimes

against humanity when they occur; “the treaty would guarantee the right to live.”!”

Did such pleas for an international criminal law guaranteeing mere existence indicate the dismal level to which world civilization had fallen, or had the atrocities of the war highlighted a continuous problem throughout history, whereby the massacres of groups had often occurred with impunity? It seemed to be both. At the same time, there were multiple views as to why Germany and Japan had committed mass crimes. Was it the “rebarbarization” of civilization, as the New York Times editorial said, or was it the result of a new kind of biological warfare (with possible links to industrialization and colonization), as Lemkin thought? Compared to the view of the Nobel laureates, the position of the WJC was more

particularist than universalist, especially after the UN Assembly approved a '05 See the text for the film in AJHS/P-154/5/7. See also “U.N. Film Shows Need for Law to Ban Genocide,” Herald Tribune, December 30, 1947, AJHS/P-154/5/14. 14 “The Crime of Genocide. U.N. Is Urged to Act on Proposed Convention Now Before It,” New York Times, November 11, 1947. Signatories included jurists, government leaders (including many from Latin America), and a number of authors, including Pearl Buck, Baldomero Sanis Cano, Francois Mauriac, Gabriela Mistral, Edouard Herriot, Aldous Huxley, Alfonso Reyes, and Sigrid Undset. Count Folke Bernadotte of the Swedish Red Cross also signed, as well as Alexander Belié (signing on behalf of the Serbian Academy of Science). The manifesto was also submitted to the United Nations. See United Nations. Economic and Social Council, Prevention and Punishment of Genocide. Comments

by Governments on the Draft Convention Prepared by the Secretariat. Communications from NonGovernmental Organizations, January 30, 1948, UN Document E/623, 53. '©9 “For a ‘Genocide’ Treaty,” New York Times, August 23, 1947.

The Genocide Convention 207 partition plan for Palestine in November 1947. The Arab states rejected the plan, and the Palestinians feared that a resumption of Jewish immigration, which had changed the demographics and economy of Palestine in the 1930s, would lead to their political subjection and economic dispossession.'°° On the other side, the WJC reacted to news that Jews in Arab states were being attacked in riots and forced to pay levies for Arab defense forces. The WJC petitioned ECOSOC to investigate the situation, arguing that the 1946 UN Resolution on genocide gave the UN authority to call sovereign Arab states to account.'°” While the parties began to fight for control of Palestine, genocide became a new political accusation in this bitter history of partition. Simultaneously, the WJC was concerned about whether the convention would have any effect on former Axis states if they did not ratify it. This led the group to delve more deeply into the question of prevention. “[P]unishment is only one of the many possibilities to prevent its [genocide’s] commission and, as experience shows, not the most effective one,” wrote Nehemiah Robinson, who became Direc-

tor of the Institute of Jewish Affairs in 1947.'°° Thinking that the convention would not pass anytime soon, he wanted to obtain a new resolution in the UN that genocide was a threat to international peace and could therefore be dealt with by either the Assembly or the Council. This would cover the possibility that if there were a threat of genocide in a state which had not signed the Genocide Convention, other states could still intervene.!”? He also recommended that the convention should state that member governments could notify the Assembly or Council about threats and acts of genocide, which could then take action according to the UN Charter. This really did not create an established process for investigation and intervention, however. Under the Charter, Article 11(2) gave the General Assembly the right to discuss any question “relating to the maintenance of international peace and security” and make recommendations to the states concerned or to the Security Council. Under Article 34, the Security Council could investigate a dispute or any situation “which

might lead to international friction or give rise to a dispute,” but the Security Council had a free hand to decide on a course of action or non-action.!!® Still, '06 Albert Hourani, A History of the Arab Peoples (New York: Warner Books, 1991), 322—4, 331-2,

358-60. '°7 See N. Robinson's position paper, “Is the Economic and Social Council authorized, under the Charter, to discuss the situation of Jews in Arab Countries, and what could it achieve, if its jurisdiction

is recognized?” in WJC/C74/5; “Additional Memorandum Submitted to the UN Economic and Social Council by the World Jewish Congress on the Situation of the Jewish Population in Certain Moslem and Arab Countries,” February 25, 1948, WJC/C74/8; and Easterman to Malik (President of ECOSOC), August 20, 1948, ibid. '°8 N. Robinson, “Memorandum on Genocide,” January 1948, 3, WJC/C74/5. He first recommended getting a new Assembly resolution in a memo to Marcus, December 15, 1947, 3, WJC/ C74/5. Nehemiah (1898-1964) was Jacob Robinson's brother and also an international lawyer who had practiced in Kovno, Lithuania. He immigrated to the U.S. in 1940. See Maurice Perlzweig, “Nehemiah Robinson,” in Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik (Detroit: Macmillan Reference USA, 2007), 17: 356.

'9 N. Robinson to Marcus, December 15, 1947, WJC/C74/5. © United Nations, Charter of the United Nations (October 24, 1945) [cited June 27, 2008]; available from .

208 The Birth of the New Justice Robinson offered a major suggestion for prevention: the UN should create a special body that would supervise courts, call attention to non-compliance of the convention, disseminate information on effective means of prevention, and consider petitions by groups and individuals.'!' The WJC submitted all these ideas to ECOSOC on February 27, 1948, but none were implemented, since governments were absorbed with the problems of defining genocide and the appropriate means of prosecution. In the meantime, other groups lobbied ECOSOC and Secretary General Trygve Lie, urging speedy passage of the convention despite the opposition of Great Britain.'’” They asked Lie to issue a statement of public support for the convention, but he refused, as his legal advisors told him that the dispute between states seeking immediate passage and those which want to delay the process was merely a “technical” disagreement.''? In any case, the process was already rolling. On March 3, 1948 ECOSOC appointed a seven-member Ad Hoc Committee on Genocide to produce a new draft of the convention; the group would begin meeting in April. The Commission on Human Rights was going to make a recommendation on the convention when it met in May. ‘The plan was to transfer the project to ECOSOC again in July.

POLITICAL DYNAMITE: THE UN DEBATE ON INTERNATIONAL AUTHORITY TO DEAL WITH GENOCIDE Although the Secretariat's draft contained a few preventative measures and the WJC had recommended some, they did not survive the Ad Hoc Committee’s revision. [he committee’s delegates were from China, France, Lebanon, Poland, the U.S., the U.S.S.R, and Venezuela; U.S. delegate John Maktos, a legal advisor in the U.S. State Department, was the Chairman.''* Many issues were disputed due to political ideology, differences in legal doctrines, fundamentally different conceptions of how the international system should function, and the proper role of the state toward minorities.

"1! N. Robinson, “Memorandum on Genocide,” January 1948, 6-7, "2 “Church Groups Appeal to United Nations to Speed Convention Outlawing Genocide,” New York Times (New York), February 11, 1948; Atkinson, Noble MacCracken, McCrea Cavert, and Rosenberg to Malik, February 18, 1948, UN Archives, Geneva, SOA 318/1/01 (3); Malik to Rosenberg, February 21, 1948, ibid.

"Lie to Ennals, March 3, 1948; Lie to Ennals, March 18, 1948; Memo, Schwelb to Laugier, March 9, 1948, UN Archives, Geneva, SOA 318/1/01 (3); Egon Schwelb, “Les Rapports entre dune

part la convention sur le génocide et d’autre part la formulation des principes de Nuremberg et Pélaboration dun projet de code relatif aux crimes contre la paix et la sécurité: Note du Secrétariat,” March 31, 1948, UN Archives, Geneva, SOA 318/1/01. "4 Maktos stated in a 1973 memoir that he took the chairmanship after the Soviets broke a “gentlemen's agreement” among the Big Five powers and made the first move of trying to obtain the chairmanship. But his recollection of the events on the Ad Hoc Committee does not precisely correspond to the official record in UN Doc. A/AC.25/SR.1, 3-4. See Memoir of John Maktos, p. 3, Oral History Interview with John Maktos (The Harry S. Truman Library and Museum, 1973), accessed January 28, 2013, .

The Genocide Convention 209 The Ad Hoc Committee refused to criminalize preparatory acts, such as researching new methods of genocide and building installations, and did not want to require states to suppress propaganda supporting genocide, though the Soviets and Poles vehemently sought these points. In these debates, the legal doctrines of different states were in sharp contrast, and the underlying conceptions reflected different ideas about how much power a court should have to protect society—a politically flexible concept. The Soviets maintained that preparatory acts could be prosecuted, even if they were not directly connected to attempts to actually commit genocide. “Did the Committee think that courts

Pp & P 8

should regard construction of extermination plants, establishment of camps with special installations for genocide, and the illegal possession of arms for that purose, as not being punishable?” Soviet delegate Platon Morozov asked.'? “[I]n the legislation of Latin countries generally,” said French delegate Pierre Ordonneau, “a preparatory act leading to a crime was not punishable in itself. Punishment of a preparatory act would imply a very critical study of intent and might lead to practical difficulties, injustices, and arbitrary decisions. A preparatory act was punishable only if it involved an attempt or complicity.”'!® After further debate, the committee decided to eliminate preparatory acts in favor of complicity, by a vote of four to two (the U.S.S.R. and Poland), with one abstention.'!” The consequence was that a person could not be prosecuted for researching new methods of mass murder or building equipment to prepare for it. Those acts had to be connected with the actual commission of genocide or the attempt to commit genocide. Suppressing all forms of propaganda inciting racial, religious, or national hatred was similarly rejected by a vote of five to two (the U.S.S.R. and Poland), due to fundamental differences about how information should be regulated in a society. Poland had pushed for the criminalization of propaganda very early, when the UN’s Legal Committee first drew up its resolution calling for a convention in December 1946.''® Morozov continued this line, arguing that newspapers, radio, and cinema should not be allowed to incite hatred that was “also designed to provoke the commission of acts of genocide.”''’ “The recent war had revealed in a 9 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Seventeenth Meeting, April 23, 1948, 11 a.m. (Lake Success, New York), UN Document E/AC.25/SR.17, 5. "6 Ad Hoc Committee on Genocide, Summary Record of the Seventeenth Meeting, UN Document E/AC.25/SR.17, 3. ''7 Ad Hoc Committee on Genocide, Summary Record of the Seventeenth Meeting, UN Document E/AC.25/SR.17, 7. 8 See United Nations, Zhe Crime of Genocide. Report of the Sixth Committee, reproduced as Annex 63 in United Nations, Official Records of the Second Part of the First Session of the General Assembly. Plenary Meetings of the General Assembly, Verbatim Record. 23 October-16 December 1946, 1525. "9 "This was one of the Soviets’ ten basic principles for a convention (see United Nations. Economic

and Social Council, Basic Principles of a Convention on Genocide, submitted by the Delegation of the Union of the Soviet Socialist Republics on 5 April 1948, April 7, 1948, UN Document E/AC.25/7).

These were discussed by the committee one by one, then the committee proceeded to draft a new convention based on a Chinese draft text and various amendments submitted by different delegations. They also frequently referred to language and ideas in the Secretariat’s draft.

210 The Birth of the New Justice disturbing manner the very pernicious nature of the influence of the hitlerite Press on people’s minds. That Press could be held responsible for the death of several million human beings,” he said.'*? Maktos, the U.S. delegate, feared that a government might use a broad definition of incitement to prosecute individuals because

they made “any hostile statement regarding a group of human beings.”'”! That “would mean an abrogation of the Bill of Rights and would compromise the free press system of the United States.”'’? Morozov pointed out that the U.S. Supreme Court had ruled that “freedom of speech was not even a defense for persons crying ‘fire’ in a theatre, since their action might endanger human lives.” The remedy was that courts could examine the facts of each case, he said.'’? From the French point of view, the French government had historically controlled propaganda against anarchism, yet French delegate Pierre Ordonneau claimed the Soviet proposal was too restrictive because there were forms of media (such as television) which it did not specifically mention. He preferred that propaganda be covered under the idea of incitement, which the committee had agreed to include in the convention. Other members of the committee agreed, and the Soviets and Poles lost the battle. The idea of forming a new supervisory body, advocated by the WJC, was not substantively discussed. The committee allowed Robert Marcus, the WJC’s acting political director, to present his group’s views in person, though the vote to allow him to appear was reluctant—three votes to one, with three abstentions.'** Marcus emphasized that the UN should concentrate on establishing definite international machinery to prevent genocide: the UN should provide for “international action;” states should be required to deliver persons guilty of genocide “to the international authority;” all states should be required to take steps to prevent genocide; and the

supervisory body should be able to hear petitions from threatened groups and individuals. Yet the proposal lacked specifics, reflecting the WJC’s desire not to alienate any delegation. The WJC did not explain what course of action the Security Council should take, did not urge the establishment of an international criminal tribunal, or describe how the proposed supervisory body would fit into

0 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Fifth Meeting, April 8, 1948, 2 p.m. (Lake Success, New York), UN Document E/ AC.25/ SR.5, 13.

21 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Sixteenth Meeting, April 22, 1948, 2:15 p.m. (Lake Success, New York), UN Document E/AC.25/SR.16, 7.

'2 Ad Hoc Committee on Genocide, Summary Record of the Sixteenth Meeting, UN Document E/ AC.25/SR.16, 10. 3 Ad Hoc Committee on Genocide, Summary Record of the Sixteenth Meeting, UN Document E/ AC.25/SR.16, 10. '4 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Second Meeting, April 5, 1948, 3 p.m. (Lake Success, New York), UN Document E/AC.25/SR.2, 1-3. The Soviet Union and Poland supported the WJC’s request. The mixed feelings about having the WJC appear were underlined by the French and Polish delegates’ unequivocal statements that “there could be no question of allowing that representative to take part in the debate.” The WJC, however, never expected to join the negotiating table, as it had tried to do with the St. James’ Conference and the United Nations War Crimes Commission during the war.

The Genocide Convention 211 the new UN structure, which already had several new bodies that might claim competence in dealing with potential or actual cases of genocide.'” The questions of international action and an international tribunal were connected and were debated by the Ad Hoc Committee several times. The issue was not merely that different delegations had different views on whether genocide should be prosecuted with national jurisdictions, universal jurisdiction, or an inter-

national jurisdiction. The fundamental problem was whether the international authority to prevent and punish genocide would be held by an international legal authority (an international criminal court), an international political authority (the Security Council), or some combination. ‘The French were the most adamant about the necessity of an international criminal court. “It was inconceivable... that a crime committed by or with the complicity of the governing authorities should be dealt

with by national judicial bodies,” said Ordonneau. “No State would commit its governing authorities to its own courts.”'*° The French included a draft statute for a

court in their draft of the Genocide Convention, a plan that wisely included an independent prosecutor, meant to deflect fears that prosecutions would be politically motivated.'”’ Support for an international criminal court for genocide reflected

the long-standing French support for international tribunals, which went back to the Paris Peace Conference in 1919 and the defense of humanity against German military necessity. However, the French outlook was directed more towards rectifying past difficulties in prosecuting aggressive war and war crimes than necessarily

ensuring French security for the future. Regional economic and security agreements, such as the Brussels Treaty in 1948 and the North Atlantic Treaty Organization in 1949, were more important than the Draft Code for Offenses against the Peace and Security of Mankind, which stayed on the drafting table and was dead

by 1954."

5 "The following day, the WJC issued a press release about Marcus's appearance, but it also used the opportunity to criticize Lebanon’s position toward the convention. On April 5, the day before Marcus appeared, the Lebanese delegate, Dr. Karim Azkoul, who supported the convention and an international criminal court, had stated that the definition of genocide should be restricted to acts in which the perpetrators possessed a “fanatical” motive to destroy a group “on the grounds of hatred of something different or alien, be it race, religion, language, or political conception.” (See Ad Hoc Committee on Genocide, Summary Record of the Second Meeting, UN Document E/AC.25/SR.2, 4.) The WJC, however, took issue with other comments he made about a genocide law not covering situations where a possible victim group had itself committed genocide or used violence against its own members. (See press release, “WJC Assails Stand of Lebanon Delegates at UN Hearing on Genocide Convention, WJC/B84/7.) The WJC’s opposition to Azkoul (whom Lemkin viewed as a supporter of the

convention) seemed to stem from the fact that at this very moment, war was raging between the Haganah and the Arabs (with a failed attempt at truce talks on April 7). 6 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Seventh Meeting, 9, reflecting E/AC.25/SR.7/Corr. 1.

27 See UN Document E/623/Add.1. 8 Simpson, Human Rights and the End of Empire, 583-91. Koskenniemi explains that postwar realism rejected the French concept of sociological law and Scelle’s concept of constructive law in international society, though one wonders whether French legal advisors at the Quai d’Orsay subscribed to those views before the war. See Martti Koskenniemi, Zhe Gentle Civilizer of Nations: The Rise

and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002), 331-3 and 348-52.

212 The Birth of the New Justice The Soviets, however, insisted that national courts and national penal codes should exclusively be used to prosecute perpetrators; an international criminal court was a violation of state sovereignty. [his was partly connected to their strong opposition to including political groups in the convention. One may surmise that

they did not want their officials indicted before a future international criminal court for political purges, deportations, and the gulag system. These measures, along with mass shootings, had been used during dekulakization and the extension of the Great Purges to social deviants and so-called political reactionaries in the 1930s. Nor did they want an international criminal court to prosecute their leaders

for the forced transfer of national groups. In 1944, for example, the Soviets deported 494,000 Chechens and Ingush from the Caucasus to Kazakhstan and Kirghizia. The Soviets opted for this brutal policy of social engineering because the Chechens and Ingush had resisted Soviet control during the Russian civil war and

resisted collectivization; some had also collaborated with the Nazis and resisted induction into the Soviet army in 1942.'” The Soviets also supported national tribunals because they were part of their existing legal doctrine and practice. In the Krasnodar trial, conducted during the wat, Soviet prosecutors exposed the German use of gas vans, but they also concentrated on the actions of Soviet defendants who collaborated with the Nazis and attacked Soviet partisans and villages. Krasnodar functioned as a show trial in which the collaborators were charged with treason, issuing a warning to Soviet citizens who conspired against the great Fatherland in its hour of need.'*° After the war, the Soviets used regional military tribunals to discipline collaborators in formerly occupied areas and instill allegiance in newly acquired territories, such as the Western Ukraine. Yet tribunals also punished many real war criminals.'*! As for the Nuremberg Tribunal, the Soviets had actually called for a special international tribunal to punish German leaders before the Western Allies did.!%? Still, the Soviets

held that Nuremberg was a special case, due to the fact that the major criminals committed crimes that extended over multiple geographic regions. Insisting on national tribunals for the Genocide Convention was a return to practice and legal doctrine held by the Soviets at the beginning of the Nazi invasion in 1941. How was the split between the Soviet and French positions resolved? It was more of an uncomfortable merger than a compromise. The settlement on the committee—after many votes on the underlying principles and the rejection of 9 Norman M. Naimark, Fires of Hatred: Ethnic Cleansing in Twentieth-Century Europe (Cambridge, Mass. and London: Harvard University Press, 2001), 94-8. See United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Fifth Meeting, 2. '30 See George Ginsburgs, “Laws of War and War Crimes on the Russian Front during World War II:

The Soviet View,” Soviet Studies 11, no. 3 (1960): 253-85, esp. 276-7. For an explanation of the changing phases of Soviet treatment of Jews during the war, see Harvey Asher, “The Soviet Union, the

Ponocaust and Auschwitz,” Kritika: Explorations in Russian and Eurasian History 4, no. 4 (2003): '5! On the functions of regional military tribunals in the Ukraine, see Tanja Penter, “Collaboration on Trial: New Source Material on Soviet Postwar Trials against Collaborators,” Slavic Review 64, no. 4

(2005): 786-8. 132 "This was Molotov’s note of October 14, 1942.

The Genocide Convention 213 universal jurisdiction—was that persons accused of genocide must be judged by a national court where the crime was committed or by a competent international court. [he basic idea was introduced by the Chinese delegate, Lin Mousheng, who initially proposed that the convention should not exclude an international jurisdiction. It was then turned into a positive proposal by Maktos. Morozov countered it with a proposal for exclusive territorial jurisdiction, but this failed. After various refinements in drafting, the outcome was: “Persons charged with genocide or any of the other acts enumerated in Article [V [attempts and incitement] shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.”'*? This meant that when the Assembly took up the draft in the fall, it would be faced with a convention that made a future international criminal court possible. As previous chapters have explained, this was an idea that had been repeatedly advanced and never successfully implemented in the 1920s and ’30s. The International Law Commission was expected to work on the rules for an international criminal court, but it was unclear whether

it would succeed or how long the process would take. Would a court become “political dynamite?”!**

The decision about the process which signatories to the convention could follow to prevent genocide or report violations of the convention was far less revolutionary. Cold War differences, conflicts over whether the Security Council or another UN body would have the authority to investigate claims of genocide, and reluctance to create “automatic” obligations led the states to settle on a very open-ended formula. Article VIII stated, “A party to this Convention may call upon any com-

petent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide.” The Soviets wanted to deal with genocide through an international political authority. States should be required to report acts of genocide and breaches of the convention to the Security Council, not to any other UN body. Morozov argued the Security Council was the best body because it was “a speedy and accurate solution.”'*° Of course, they belonged to this body and would be able to exert some influence on its decisions. Maktos countered that this was a “devious way to refer to the Security Council cases which should have been brought before the

international court.”!°’ The U.S., France, and Lebanon asserted that the best international authority to deal with genocide would be an international criminal 'S For the details, see the debates on the principles of national, universal, and international jurisdictions in UN Document E/AC.25/SR.7 (with the Chinese formula on 10) and E/AC.25/SR.8; Maktos’ formula in E/AC.25/SR.18, 10; the final debate on the wording in E/AC.25/SR.20, 2-3; and the final vote (four to three) in E/AC.25/SR.24,10. '54 Lemkin to unknown correspondent, December 7, 1946, AJHS/P-154/1/4. ' Article VII, United Nations, Economic and Social Council. Third Year: Seventh Session. Supplement No. 6. Report of the Ad Hoc Committee on Genocide. 5 April to 10 May 1948, May 26, 1948 (Lake

Success, NY, 1948), UN Document E/794, 12. '5° United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting, April 13, 1948, 2 p.m. (Lake Success, New York), UN Document E/ AC.25/SR.8, 25. '57 Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting, UN Document E/ AC.25/SR.8, 26.

214 The Birth of the New Justice court. “The fear of legal reprisals would be the most effective means” of preventing large-scale massacres organized by governments, said Dr. Karim Azkoul, the Lebanese delegate.'** “[T]he fact of pronouncing State officials and others guilty constituted a psychological factor, the importance of which should not be underestimated,” noted Maktos.'*”’ He proposed an alternative to Morozov’s demand for obligatory Security Council involvement. Parties to the convention should simply agree “to concert their actions...to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and suppression of genocide.” “Concerted action” was vague and did not specify an obligation to do anything. After some drafting amendments, the final version was set. Parties would not be required to report violations, and they could choose to approach whichever UN bodies they preferred.'*° The problem was that the UN Charter dealt with matters of international peace and security, which were really acts of aggression and inter-state disputes that might lead to war. It was debatable whether genocide would fit the UN’s Charter’s definition. Lemkin argued in 1949 that genocide had international repercussions, including “mass flights, disorganized emigration and international frictions.”'*' The WJC argued that since the convention defined genocide as an international crime and created an obliga-

tion for states to prevent and punish it, the Security Council had grounds for intervention.'** The Ad Hoc Committee’s formulation did not make intervention certain. Furthermore, the Ad Hoc Committee did not specify the rules, process, and timeframe for an investigation. The utility of such a structure was clear in the case of Kashmir, which was a major issue in the UN at the very time the convention was being negotiated. Pakistan had accused India of genocide, India replied that Paki-

stan was guilty of aggression, and the two countries were at war. Regardless of whether the killing of Muslims in India was planned by the government (as Pakistan alleged), or was communal rioting (as India alleged), the Security Council had to create a process and then attempt to secure the cooperation of the parties. The complex situation, involving India’s claim that Pakistan had violated the terms of the partition agreement, was not quickly resolved. The Security Council voted on June 5, 1948 to establish a commission that would investigate a variety of issues in the conflict, including the genocide allegation. However, the Indian government refused to assist the commission, and the conflict dragged on until January 1, 1949 when the parties finally agreed to a UN-brokered cease-fire.'** The negotiators of the Genocide Convention did not see the Kashmir issue as an indicator of the need '8 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Seventh Meeting, UN Document E/AC.25/SR.7, 11.

' United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Seventh Meeting, UN Document E/AC.25/SR.7, 12.

4° United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Twentieth Meeting, April 26, 1948, 2 p.m. (Lake Success, New York), UN Document E/ AC.25/SR.20, 4-5. 41 Lemkin to Ohlin, June 8, 1949, AJHS/P-154/2/1. '2 Bienenfeld to Marcus, January 19, 1948, WJC/B84/7. “3 Josef Korbel, Danger in Kashmir (Princeton, N.J.: Princeton University Press, 1966), 97-162.

The Genocide Convention 215 for a pre-determined, step-by-step investigative process for genocide allegations.'** The French draft for an international criminal court did contain a process of inves-

tigation and penal judgment, and stated that any UN member could ask the Security Council to take action against states which refused to comply with the court’s judgment.'*? However, this more detailed proposal was never discussed due to intense Soviet opposition to such a court. One final problem with the Ad Hoc Committee’s work was that after twenty-six meetings, the Soviets voted against the entire draft, and Poland abstained from the

vote. The Soviets maintained that the convention “is not a sufficiently effective instrument for the suppression of genocide,” because it did not require that states suppress hate propaganda, criminalize preparatory acts, and disband organizations dedicated to promulgating hatred.'*° Other Soviet complaints were ideological, as Morozov insisted that the convention specify that genocide was integrally linked to “fascism-nazism and other similar race ‘theories’ which propagate racial and national hatred, the domination of the so-called ‘higher’ races and the extermination of the so-called ‘lower’ races.”'*” The Soviets sought international legal

validation for their military role in destroying Nazism; there are references throughout the UN debates that indicate that the Soviets believed they understood the effects of genocide better than the other Allies. There are also speeches showing that the Poles and the Czechs saw themselves as nationalities targeted for genocide.'48 Other delegates considered the historical reference to fascism-Nazism too limiting, arguing that the definition of genocide should allow application to different historical situations. Morozov, backed by other East bloc delegates, continued to press these points unsuccessfully during the rest of the stages of the UN negotiations—in ECOSOC meetings in the summer of 1948, the overhaul of the convention in the Legal Committee in November and December, and finally during 4 ‘The Ad Hoc Committee acknowledged receipt of a letter from Pakistan, alleging acts of genocide

committed by India, but the issue did not affect the substance of the legal discussions. See United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Ninth Meeting, April 14, 1948, 2:20 p.m. (Lake Success, New York), UN Document E/AC.25/SR.9, 1. M45 See Articles 5-10 in “France: Draft Convention on Genocide,” UN Document A/C.6/211 in United Nations, Official Records of the Third Session of the General Assembly, Part I. Legal Questions. Sixth Committee. Annexes to the Summary Records of Meetings (Geneva: 1948), 14-15. 46 ‘The Soviets also insisted that the convention categorically rule out superior orders as a legitimate defense. ‘This did not diverge in the main from the Western powers, though the latter were willing to consider it as an extenuating circumstance. Moreover, the Soviets actually encouraged the use of the plea in certain trials in order to show that high-level enemy officials were responsible. See Ginsburgs, “Laws of War and War Crimes on the Russian Front during World War I: The Soviet View,” 274—5.

47 United Nations. Economic and Social Council. Ad Hoc Committee on Genocide, Summary Record of the Twenty-Sixth Meeting, April 30, 1948, 2:45 p.m. (Lake Success, New York), UN Document E/AC.25/SR.26, 4-7; United Nations, Report of the Ad Hoc Committee on Genocide,

16-17, n. 33. 48 See the remarks by Durdevnevsky in United Nations General Assembly. Second Session. Verbatim Record of the One Hundred and Twenty-Third Plenary Meeting. Flushing Meadow, New York, Friday, November 21, 1947, at 3:00 p.m. A/P.V.123. See also the speeches of Katz-Suchy in United Nations. Economic and Social Council, Official Records. Third Year: Seventh Session. 19 July—28 August

1948 (Geneva), August 26, 1948, 3 p.m. (Geneva), 710, and United Nations, General Assembly. Third Session. Verbatim Record of the One Hundred and Seventy-Ninth Meeting, December 9, 1948, 3 p.m. (Paris), 31.

216 The Birth of the New Justice the General Assembly debate in December. As we will see, the Soviet bloc became quite isolated once the Legal Committee reshaped the convention to make it more palatable to a broader number of states.

THE PUSH FOR AN IMPERFECT CONVENTION After the Ad Hoc Committee completed its draft, the pro-convention activists began preparing for ECOSOC’s consideration of the project in August 1948. The U.S. Committee for a UN Genocide Convention (the non-governmental organization formed by Christian and Jewish religious leaders) developed a “Fact Sheet” on genocide, to be distributed to the press in Geneva, New York, and Washington, “to people who are important and who will have an influence on the minds of the members of the Economic and Social Council,” and to the members themselves. !*” Belgium remained a problem, as it did not want a convention giving competence to an international criminal tribunal whose statute was still unknown, nor was it certain that the Belgian parliament would implement the convention into domestic law. The World Federation of United Nations Associations (WFUNA) contacted the Belgian Minister of Health, who agreed to ask his colleagues in the Department of Foreign Affairs and the Department of Justice to draft a ratification law for the Belgian parliament.’ WFUNA also agreed to propagandize the con-

vention in Geneva and Paris, though WFUNA’s Secretary-General, John A. E Ennals, thought publicity in the French press would be difficult to obtain.'”' Lack of British support was another serious problem, though the U.S. Committee concentrated on lobbying the U.S. government. The U.S. Committee’s Chairman, James Rosenberg, a high-powered lawyer who was well-connected in New York circles, asked the U.S. State Department to consider pushing for changes in the Ad Hoc Committee draft: remove references to incitement and alter the definition of cultural genocide so that only acts of collective violence would fall under the defnition.'°’ Removing incitement was supposed to assuage liberal governments con-

cerned about having to impose press controls, while refining the definition of cultural genocide might persuade Britain, Canada, Australia, France, and others that the provision would not conflict with their assimilationist and colonialist policies.

Then Rosenberg went further, advocating the total removal of provisions about tribunals and the International Court of Justice, in order to make sure the convention Rosenberg to Johnson, June 10, 1948, AJHS/P-154/1/19. '°° Copy of letter from A. Verbist (Minister of Public and Family Health in Brussels) to SecretaryGeneral, World Federation of the United Nations Associations, June 23, 1948, AJHS/P-154/2/8. The World Federation is an umbrella organization which supports UN principles of peace and international cooperation. It was formed in 1946 in Brussels as an umbrella organization of twenty-two national organizations. '! Ennals to Lemkin, July 2, 1948, AJHS/P-154/1/19.

'? Rosenberg to Jack Tate (Acting Legal Adviser, U.S. Department of State), July 12, 1948, AJHS/P-154/2/9. Only pages four and five of the letter are in the file. On Rosenberg, see Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, 121.

The Genocide Convention 217 would not be delayed by International Law Commission or by the Commission on

Human Rights, which he feared might try to integrate the convention into the draft Declaration on Human Rights.'?* At this point, Henry Noble MacCracken, the Co-chairman of the International Conference of Christians and Jews and a member of the U.S. Committee for a United Nations Genocide Convention, was preparing to make a public presentation to ECOSOC in Paris. Rosenberg told him, “I urge that you insist on a simple position viz: Let us have a convention. Never mind if it is not a perfect document.”!** Lemkin, then lobbying in Paris, thought this was completely the wrong course. ‘The core of the convention was that genocide should be treated as a criminal matter, not a political negotiation between states. Politics would not bring justice to victims, who would turn to vigilante kill-

ings to seek revenge. He told Ennals that states would agree to an international criminal court if the Security Council could decide whether or not to establish one on a case by case basis.'* The non-governmental advocates never had a chance to make their pleas in person, however. ECOSOC, facing a burdensome agenda, did not critique and rewrite the convention. Instead, it decided to transmit the Ad Hoc Committee’s draft and its report to the General Assembly, scheduled to meet in Paris in the fall of 1948. ECOSOC delegates did make a few speeches, though they did not introduce any new ideas or solutions to the problems discussed by the Ad Hoc Committee. Cold War politics became more adversarial at this point, as Poland accused the U.S. of using procedural maneuvers on the Ad Hoc Committee to include the protection of political groups in the convention, while France pointedly remarked that genocide in the future would be “committed mainly on political grounds.”'’° Poland accused Britain of refusing to extradite Wladyslaw Dering, a Polish inmate physician at Auschwitz who had participated in medical experiments on prisoners.'”” (He was later tried in London.) The Soviets and the British traded words over the situation in Malaya, where a crisis between striking workers and the British colonial government sparked an anti-colonial insurgency fought by communist Chinese Malayans.'* It was readily apparent that the political use of the genocide term was changing: the West could use it to criticize Soviet limitations on political freedom in the Baltics and Eastern Europe, while the East could use the term to characterize European repression of communists and anti-colonialists in Southeast Asia.

3 Rosenberg to Malik, July 15, 1948, AJHS/P-154/2/9. '4 Rosenberg to MacCracken, AJHS/P-154/2/9. MacCracken was to speak on behalf of WFUNA, which had consultative status before the UN and had authorized him to be its spokesperson on genocide before ECOSOC. > Lemkin to Ennals, July 17, 1948, AJHS/P-154/1/19. 6 Ordonneau, United Nations. Economic and Social Council, Official Records. Third Year: Seventh Session. 19 July—28 August 1948, August 26, 1948, 9 p.m. (Geneva), 723. Hereafter ECOSOC, Official Records.

7 Katz-Suchy in ECOSOC, Official Records, August 26, 1948, 3 p.m. (Geneva), 709-15. 8 ‘The exchange was carried out in a coded way, concerning British use of Dyak peoples from Borneo on the Malayan peninsula. The Soviets said they were cannibals imported to fight against the Malayan liberation movement, while the British said they were using them as guides. See ECOSOC, Official Records, August 26, 1948, 9 p.m. (Geneva), 722 and 727.

218 The Birth of the New Justice Moreover, Britain now had to face the fact that if it continued to oppose the convention on the grounds that it was ineffective, it could end up in the same camp as the Soviet bloc, which would bea diplomatic embarrassment. It announced that it would abstain from the vote on whether the Ad Hoc draft should be passed to the Assembly, though this had little meaning, since ECOSOC transmitted the

draft without a vote.'” Within the British government, the Foreign Ofhce had altered its policy: its UN delegation should take a more active role in negotiating the final product in order to remove some distasteful ideas, such as criminal prosecution for cultural genocide and criminal liability of kings and queens.’ Britain gave a slight hint that it was changing its policy, though the message was hardly loud and clear. It merely said that it now sympathized with those who wanted to move the convention forward. This indication was not at all clear to Lemkin, who thought the British delegation was simply trying to kill the convention, piece by piece.'®' He alleged that the British, in private meetings with other delegates, had worked out an advance deal: Britain would not oppose the convention in the General Assembly if ECOSOC agreed to transmit the convention to the Assembly without giving it its stamp of approval.’

By the fall, no one could predict what would happen to the draft Genocide Convention. Franz Bienenfeld, head of the Legal Department for the WJC in London, wrote that since the convention did not require an international tribunal nor set out procedures for one, “the whole Convention has no sense at all and would...be a retrograde step in the evolution of international law” in comparison to the Nuremberg Charter.'®* However, for some states, the fact that the draft convention permitted an international criminal court as an option was a danger sign. They were completely unwilling to commit themselves to this proposition before they knew the exact content of the court’s statute. Given the political opposition, it was quite possible that the Assembly would send the draft Genocide Convention off to a new subcommittee.'!* The end result could be “committeecide,” as Rosen-

berg and Lemkin aptly remarked.'” The U.S. State Department stated that it opposed sending the convention to the International Law Commission, but that was “barring circumstances which are not foreseeable at the present time.”!® The UN draft Declaration of Human Rights was also on the Assembly agenda, where

'2 ECOSOC, Official Records, August 26, 1948, 9 p.m. (Geneva), 725-6. '60 Simpson, “Britain and the Genocide Convention,” 13-19. ‘6! Cooper does not note the internal change in British policy, arguing that Britain remained steadfast in its opposition to the convention on the grounds that the Nuremberg Judgment had supposedly already prohibited genocide. Of course, the judgment did not deal with the crime outside the context of aggressive war, and Lemkin advised the Australian delegation to challenge the British on this and

other points during the ECOSOC debates in August 1948. See Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, 138.

'©? Lemkin (in Paris) to Rosenberg, September 13, 1948, AJHS/P-154/1/19. '©3 Bienenfeld to Marcus, September 17, 1948, 3, WJC/84/7. ‘64 Bienenfeld to Marcus, September 17, 1948, 2, WJC/84/7.

' Lemkin to Rosenberg, September 13, 1948, 3, AJHS/P-154/1/19. '©6 Margaret R. T. Carter (Chief, Division of Public Liaison, U.S. Department of State) to Rosenberg, August 30, 1948, AJHS/P-154/1/19.

The Genocide Convention 219 it was expected that the Soviets and the West would use an article-by-article examination to bludgeon each other's political doctrines.'°’

POLITICAL BROKERING Between September and December 1948, the UN Assembly's Legal Committee ripped apart the Genocide Convention piece by piece and slashed crucial provisions. At times, it seemed the whole edifice might be in a shambles. After some dramatic political reversals and procedural shenanigans, some of the convention's promising elements were resuscitated. It was a dramatic story, though in the areas of prevention and prosecution, the final draft barely improved on the Ad Hoc draft at all. At the Palais de Chaillot in Paris, the pro-convention states won the first round

in the Legal Committee when a U.S. proposal to prevent the convention from going to the International Law Commission succeeded on October 4.'°* Yet for the purposes of this analysis, concentrating on the type of international authority planned for the convention, the story begins with the rejection of the possibility of an international criminal jurisdiction on November 10.'® The Ad Hoc Committee’s draft had presented two options for prosecution. Under Article VII, persons accused of genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribu-

nal.”!”? Now, in the Legal Committee, four main arguments in opposition to international tribunals were asserted. All the arguments had merit on an intellectual plane, but they were really parries meant to prevent these states from coming under the court’s jurisdiction. Belgium stated that the court’s statute was unknown, and it would be dangerous to agree to it for that reason. Czechoslovakia noted that accused persons could not be delivered to an international court without an international police force, and the world was not ready for that. Venezuela, continuing the line it had taken in the Ad Hoc Committee, argued that powerful governments would not submit to the court. ‘The only hope was that they would be toppled and tried by successor governments. The Soviets charged that the court was simply supported by governments that wanted to block action by the Security Council. The supporters offered their previously established positions. France criticized the idea that any state responsible for genocide could be entrusted to try its own, while the U.S. said that an international tribunal would only come into play when domestic tribunals had failed to prosecute and punish adequately. The opponents of an international criminal court won on a close roll call vote of twenty-three to ‘67 Marcus to Bienenfeld, October 12, 1948, WJC/B84/7. '68 United Nations. General Assembly, Official Records of the Third Session of the General Assembly, Part I. Legal Questions. Sixth Committee. Summary Records of the Meetings, 21 September—10 December

1948 (Paris: 1948), 34. Hereafter, United Nations. General Assembly, Sixth Committee, Summary Records (1948). '©9 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 381.

9 Article VII, United Nations, Report of the Ad Hoc Committee on Genocide, 18.

220 The Birth of the New Justice nineteen (with three abstentions).'”! Verna Linzel, of the National Conference of Christians and Jews, worried that the elimination of international jurisdiction had taken “the heart out of the whole convention; unless this action is reversed, the Genocide Convention will, of course, be meaningless.”'”” The process of UN intervention was also fraught with problems. Under Article VII in the Ad Hoc Committee’s draft, only signatories (not victimized groups or individuals) could make a request to a competent UN organ. As analyzed above, the Ad Hoc Committee did not specify a particular process, just leaving the Charter as a guide.'”* The Soviets had opposed this loose process, seeking an obligatory reporting process, with the Security Council as the exclusive authority. In the Legal Committee, France and the Soviet Union proposed a compromise: signatories would have the option of calling on the Security Council, but it would only deal with violations of the convention that concerned international peace and security. The U.S. disliked the fact that reporting was not required, and it claimed that the connection to international peace and security was too restrictive. Iran did not like it either: reflecting the views of many small powers, it noted that the General Assembly might be excluded from discussing the matter or making suggestions. Before the issue was decided, however, Britain and Belgium moved to delete the whole article. They achieved a narrow victory (twenty-one to eighteen, with one abstention) on November 11.!% This paved the way for a French-Soviet compromise proposal for Article VIII, which Iran joined. They proposed that parties to the convention had the option of calling on the Security Council or General Assembly, though their version still stated that those bodies would only deal with complaints likely to constitute a threat to international peace and security. This failed to pass for the basic reason that it only seemed to limit the broader field of action provided by the Charter. Now there was a cavernous gap. The article dealing with UN action (Article VUI) had been deleted, the new proposal had failed, and with the rejection of an international criminal tribunal, there was now no international authority to deal with genocide, as the French delegate, Charles Chaumont, pointed out.'” Morozov, the Soviet delegate, proposed that the Committee reconsider its deletion of the whole article. Under the Committee’s rules, the reconsideration of a decision needed two-thirds to pass, but he failed to get enough votes.'”° The Committee then proceeded to Article X, which stated that parties to the convention could bring disputes “relating to the interpretation or application” of

the convention to the International Court of Justice, which dealt with international legal disputes, not criminal matters. Britain and Belgium proposed an '71 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 381.

'? Memo from Verna D. Linzel (Washington, D.C.) to Willard Johnson, November 16, 1948, AJHS/P-154/2/9. '3 United Nations, Report of the Ad Hoc Committee on Genocide, 18. '74 United Nations, Report of the Ad Hoc Committee on Genocide, 417. ' United Nations, Report of the Ad Hoc Committee on Genocide, 424. '76 “The vote was only twenty-seven to seventeen, with one abstention: United Nations, Report of the Ad Hoc Committee on Genocide, 424.

The Genocide Convention 221 amendment that went further than the vague reference to the “application” of the convention, instead proposing that the court could hear disputes related to state responsibility for acts of genocide. Moreover, the court would have compulsory jurisdiction over all parties to the convention (even if they were not parties to the court already). This set off a firestorm of controversy. At first, there was confusion as to whether

a state would be charged with criminal responsibility for acts of genocide, or whether it would only be financially liable. Eventually, British delegate Gerald Fitzmaurice stated that the idea only entailed civil liability, essentially meaning that the state would indemnify itself against claims made by victims and survivors.

This was but a remnant of what the Foreign Office actually wanted, but it was unable to achieve more due to Soviet and U.S. opposition. Britain’s UN delegation, reporting on the negotiations to the Home Office, believed that the U.S. feared “accusations which may be made against them as a government in respect of the treatment of the negro and the Red Indian population.”!” Opposition came from other quarters, too. Poland asked what would happen if a state was accused of responsibility before an international civil court. Could a state then argue that the Security Council or the General Assembly was not permitted to get involved while the matter was pending?'”* Czechoslovakia pointed out that a court proceeding could be too time-consuming to prevent a massacre.'”” Nevertheless, the British-Belgian proposal passed on November 13 twenty-three to thirteen, with eight abstentions.'*° State civil responsibility had replaced individual criminal liability. Lemkin wrote Jeanne Eder, President of the International Council of Women in Zurich, asking her to call on her members to “save the convention.” He accused the British and Belgians of weakening the international criminal aspect of genocide and turning it into a matter of “political haggling” between states. “It’s precisely because of that that one wasn’ able to stop Hitler in good time,” he said.'*' “The

British have proposed a very degrading formula which amounts to a confusing notion of states being involved in mutual disputes for killing citizens, like two farmers quarrelling about one killing the other's chicken,” Lemkin told New York Post editor Ted Thackrey.'* After this, Australia, backed by the U.S., successfully reintroduced the principle

that a party could call on the competent organs of the UN to deal with cases of genocide. A strong majority of twenty-nine to four (with five abstentions) voted in favor. As a result, the International Court of Justice would not be the sole route to '’7 Quoted in Simpson, “Britain and the Genocide Convention,” 30. '78 United Nations, Report of the Ad Hoc Committee on Genocide, 435. '9 United Nations, Report of the Ad Hoc Committee on Genocide, 439. '89 United Nations, Report of the Ad Hoc Committee on Genocide, 447. Following this, there was a

further vote to remove a reference to an international criminal tribunal, since the original article had stated that the International Court of Justice would only take a dispute if a case had not been referred to the criminal court. Since the Committee had voted to eliminate that body, it voted to remove this reference. See United Nations, Report of the Ad Hoc Committee on Genocide, 448-54.

'81 Temkin to Eder, November 11, 1948, AJHS/P-154/1/19. '82 Lemkin to Thackerey [Thackrey], November 23, 1948, 1, AJHS/P-154/1/19.

222 The Birth of the New Justice deal with genocide; other bodies could be convoked.'® But there was still discontent roiling under the surface. India, which opposed giving the International Court competence over state responsibility for genocide (probably in light of its current dispute with Pakistan), requested that the Committee vote on Article X again. It still passed, eighteen to two, with fifteen abstentions.'™ When the Committee completed its article-by-article dissection on November 18, the draft, from the point of view of effective prevention and international pros-

ecution, was worse than the Ad Hoc draft. International criminal jurisdiction (which had formerly been a mere option) was gone, and, as had long been the pattern in the negotiations, delegations could not agree on what procedures the UN should take for intervention, resulting in the tepid formula of “appropriate measures under the Charter.”

Lemkin, directing a lobbying and letter-writing campaign from Paris, and Rosenberg, doing the same from Washington, concentrated on trying to persuade

the U.S. to drop its support for including political groups in the definition of genocide.'® “[A]lready now a whispering campaign among the Delegates is spreading that the Genocide Convention will not be approved by the Assembly because it contains explosive matters, such as political groups,” Lemkin warned.'®*° He recommended that the U.S. retreat from its Cold War insistence that political groups

be included, so that a series of Latin American states which were on the fence about the convention (Mexico, Uruguay, Brazil, and Venezuela) would stand solidly behind it. Many Latin American states opposed the inclusion of political groups because their governments and militaries had brutally repressed peasant and trade unions during the inter-war period. Additionally, eight Latin American states had experienced military coups (attempted or successful) in the 1930s. The Dutra regime in Brazil had outlawed the Left in 1947 and was engaged in political repression, while Juan Perdn, elected president of Argentina in 1946, was building a highly popular authoritarian regime.'*’ If political groups were excluded, Lemkin believed the Latin American states would vote in favor of the convention, helping achieve the required two-thirds majority in the full Assembly.'** The Committee turned to other matters for two weeks while a drafting committee prepared a new text for a second read-through. On November 29, when negotiations began again, U.S. delegate Ernest Gross made a major announcement: the U.S. was withdrawing its support for the protection of political groups, stating that this was the best way to obtain the maximum number of ratifications of the convention.'® '83 United Nations, Report of the Ad Hoc Committee on Genocide, 457-8. '84 United Nations, Report of the Ad Hoc Committee on Genocide, 459.

'8 Copy of letter from Rosenberg to John Foster Dulles (acting Chairman of the U.S. delegation at the UN), November 15, 1948 and copy of letter from Rosenberg to Merz (editorial writer at the New York Times), November 15, 1948, AJHS/P-154/2/9. '86 Lemkin to Thackerey [Thackrey], 2. '87 “Thomas E. Skidmore and Peter H. Smith, Modern Latin America (New York: Oxford University Press, 2001), 52—5, 86-9, and 162.

'88 Lemkin to Clarence Pickett (American Friends Service Committee), November 21, 1948, AJHS/P-154/1/19. '89 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 661-2.

The Genocide Convention 223 Furthermore, Gross stated that the U.S. wanted the option of an international criminal court reconsidered, hinting that the “changed situation” concerning political groups would bring many states to support the court.'”? A two-thirds majority was needed to re-open the discussion, but Morozov of the Soviet Union and other members of the Soviet bloc strongly objected to the American move. They stiffly denied that the earlier rejection of an international jurisdiction and the inclusion of political groups had been connected in any way.

But it seemed the U.S. had worked out its move behind the scenes, because when the Committee voted on the proposal on November 30, it passed by a strong majority of thirty-three to nine, with six abstentions.'”' A sea change had occurred, as former court opponents such as Belgium, Britain, Brazil, and Siam changed sides. But would they actually support a court in the future? Several delegations only considered the court to be a hypothetical option, and they had no intention of accepting it as superior to their own national courts. Britain warned, moreover, that states which now supported the optional jurisdiction had taken a contradictory view. If they held to their guns that national courts had priority, why would those courts ever release a suspect for extradition to an international criminal court?'”* Nevertheless, Belgium, France, and the U.S. worked out the text of an amendment, and after an Australian suggestion for a change in wording, it framed the option for an international jurisdiction as follows: “by an international tribunal the jurisdiction of which extends to or is accepted by the contracting parties concerned.”'* In other words, states would

have to agree to the court’s jurisdiction; they were not required to submit. Poland tried to delay a vote on the amendment on the grounds that it had not been submitted in writing the day before (per Committee rules), but this was over-ruled. The amendment passed twenty-nine to nine, with five abstentions, and the whole new Article VI, containing the national/international option, passed as well. On December 1, the Committee voted on the entire draft convention, passing it by thirty to zero. Yet there were eight abstentions—the entire Soviet bloc, South Africa, and Britain. Britain was satisfied with a few cosmetic improvements to the convention, such as a change that would make “constitutionally responsible rulers, not kings and queens, subject to prosecution. Still, Fitzmaurice warned that the whole convention did not deal with the issue of state complicity in genocide, signaling that Britain still found the instrument defective. Internally, however, the Foreign Office thought that it could achieve no more and should sign, and it had only abstained to satisfy the objections of the Home Office. Publicly, Fitzmaurice warned that the convention could face difficulties in Parliament (since the Home

' United Nations. General Assembly, Sixth Committee, Summary Records (1948), 669.

'! ‘The opposition votes included Poland, the Ukrainian Soviet Socialist Republic, the USSR, Yugoslavia, Burma, the Byelorussian Soviet Socialist Republic, China, and Czechoslovakia. See United Nations. General Assembly, Sixth Committee, Summary Records (1948), 670-1. '? United Nations. General Assembly, Sixth Committee, Summary Records (1948), 676. 3 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 681.

224 The Birth of the New Justice Office had convinced itself that alterations to its laws on extradition were insuperable). Yet he mentioned that no final decision had been made.!”4 Even after the vote on the whole draft, there was still strong resistance to international jurisdiction. India and Sweden wanted to add statements in the Committee’s report that would guarantee that nothing in the convention would abrogate

their rights to try their own nationals—even to the point of guaranteeing extraterritorial jurisdiction. Sweden, for example, wanted the right to prosecute crimes committed by its nationals outside its territory, a concept contained in its penal code.'”? The U.S., Britain, and Greece supported territorial jurisdiction in their codes, so they were opposed to including this in the report. Czechoslovakia and the Soviet Union did not want any special interpretations inserted, arguing that this would create a dangerous precedent: states should be free to interpret the convention as they saw fit.'”° Prance raised the issue that adding interpretations would nullify the idea of an international criminal jurisdiction, so the Committee agreed that the interpretative statements would only apply to the first half of Article VI, which dealt with national jurisdiction.'”’

In the end, Ivan Kerno, the Assistant Secretary-General in charge of the UN Secretariat's Legal Department, weighed in on the matter: states were free to inter-

pret the convention, and in case there were disputes, the International Court of Justice was competent to decide on definitive interpretations.'’® That was not very reassuring to those who insisted that an international criminal tribunal was necessary in cases where a government was likely to exonerate its own officials or not charge them at all. As Egon Schwelb, the assistant director of the UN’s Human Rights Division, wrote privately in 1949: “If Hitler and his gang started all over again, he would be able to claim that he was not a ‘constitutionally responsible

ruler, (Article [V of the Convention) and he would probably succeed with this plea because he would be arraigned before the Stratkammer of the Landgericht in Berlin. (Article VI of the Convention).”'” Like Bienenfeld in the WJC’s Legal Department, he considered the Genocide Convention a “retrograde step” compared to the Nuremberg Charter. Still, he overlooked an important point. The Genocide Convention would apply to crimes that were not necessarily committed during a war, such as serious inflictions of mental and bodily harm and measures designed to prevent births. In that sense, the Genocide Convention opened a field for possible prosecution that the Nuremberg Charter had restricted. The Allies’ military tribunals in Germany had

a less restrictive definition of crimes against humanity than the International

'4 Simpson, “Britain and the Genocide Convention,” 30—2; United Nations. General Assembly, Sixth Committee, Summary Records (1948) (Paris: 1948), 701-2.

' United Nations. General Assembly, Sixth Committee, Summary Records (1948), 690-1. '° United Nations. General Assembly, Sixth Committee, Summary Records (1948), 697-9. ''7 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 717. 8 United Nations. General Assembly, Sixth Committee, Summary Records (1948), 718. ' Schwelb to Dr. T. W. Brugel, September 6, 1949, UN Archives, Geneva, SOA 318/2/01 (4).

The Genocide Convention 225 Military Tribunal, but the Genocide Convention potentially had a broader reach, since it was not tied to a particular conflict and a particular set of victor states.

HISTORICAL FACTORS LEADING TO STRUCTURAL WEAKNESSES The convention then entered the final stage in the General Assembly, which voted unanimously to pass it on December 9, 1948.”° Britain did not want to be left in the same camp as the Soviet bloc (and a signature did not mean that it would ratify anytime soon). The Soviets tried again to alter the convention so it would embrace their central ideas—the exclusive use of national tribunals, a requirement to dis-

band racist organizations, a provision to include cultural genocide (which had been deleted), and a definition of genocide that clearly linked it to the racial doctrines of Nazism—but this failed. The convention still gave East bloc states the right to use their own tribunals, and it did not rule out Security Council action on genocide. To have voted against the convention would have given the West fodder for a propaganda war, which was already intense.*”! The General Assembly also passed a resolution, prepared by the Legal Committee, calling on the International Law Commission to study the possibility of a future permanent international criminal court. The decision to pass the Genocide Conven-

tion, and the relatively short period of time that it took to achieve the requisite twenty signatures to bring the convention into force (January 12, 1951), were positive developments. Still, in many states, the ratification fight involved complicated legal questions, debates over the proper language that should be used to connote the exter-

mination of a people, and political controversies concerning state sovereignty.*”” Certainly a lack of political will and national self-interests played a role in the

fact that for decades after 1945, states did not demand Security Council action against genocide.*” Other historical factors also produced structural weaknesses in the system created between 1946 and 1948. This historical analysis has shown that measures that would have substantially strengthened prevention and international prosecution in the convention were weakened or eliminated. There was no primary 200 United Nations, General Assembly. Third Session, 9 December 1948, 70.

*1 See the Legal Committee’s debates about whether the Soviets violated international human rights by refusing to let Soviet women married to foreigners leave the country. United Nations. General Assembly, Sixth Committee, Summary Records (1948), 718-47.

*? Australia, for example, stated that it would not recognize the Soviet bloc’s reservations as valid (UN Archives, Geneva, SOA 318/2/03 AUS, Signatures and Accessions, Australia). In West Germany,

legislators in 1954 had to choose language for their domestic penal code that did not allude to the Nuremberg Judgment, which some saw as illegitimate (Franz Seidl [Abgeordneter, Deutscher Bundestag] to Lemkin, May 21, 1954, Lemkin-AJA/60/2/13). Spain was not allowed to sign, since it was barred from the UN (Memo from B. C. Mitchell to Mr. Schacter, May 8, 1951, UN Archives, Geneva, SOA 318/2/03 B, Signatures and Accessions- General, “Spain and the Genocide Convention”). As previously mentioned, Britain and the U.S. did not ratify the convention for a long time.

°° Fein, “Accounting for Genocide after 1945: Theories and Some Findings,” 99; Hiibner, Das Verbrechen des Volkermordes im internationalen und nationalen Recht, 89-96.

226 The Birth of the New Justice international jurisdiction, no process for UN investigation of possible cases of genocide, no guaranteed system of sanctions, and no clear mechanism of compulsory intervention. On paper, national courts remained an option, states (if they wished) could call on the UN to take action, and if a UN body (such as the Security Council) decided to do so, it did not have to follow a particular process. First, the convention’s drafters—Lemkin, Pella, and Donnedieu de Vabres—did not have a unified plan for an international criminal jurisdiction and did not make a forceful case for how the Genocide Convention should be integrated into other UN organs. A stronger blueprint would not have guaranteed state support, however. States were divided as to whether the Security Council should have ultimate

authority or whether the General Assembly, and even other councils, such as ECOSOC and the Trusteeship Council, should have some role. Still, the weaknesses in the plan, and state resistance to various ideas, made it easier to excise them, especially when it seemed that the convention as a whole was in danger. Various activist groups bear some responsibility for the weak system, albeit in an indirect way. They were not the primary negotiators with the political power to

determine the mechanisms for enforcement and prevention. The World Jewish Congress had its share of ideas for prevention, and perhaps, if there had not been a struggle for the partition of Palestine, the group would have had broader influence. However, as it became involved in protecting Jews in the Arab states and lobbying for recognition of Israel, the organization appeared more partisan than other religious and civil groups lobbying for the convention. Previous scholars have evaluated Lemkin in glowing terms, as a hero who worked in poverty against great odds. That is true, but that cannot obscure the fact that in

late 1947 and in 1948, he and other activists (including those on the U.S. Committee) made the pragmatic decision that obtaining a convention—any convention—would be better than no convention. They were probably right, since if they did not lobby delegations heavily and gain the support of the press, momentum for the convention would have disappeared. Yet they neglected to lobby for preventative measures that would not have destroyed the prospects of the convention, such as giving the Secretary-General the power to bring cases of genocide to the attention of the Security Council or establishing a process that the Security Council could use for genocide investigations. Certainly there were voices in the UN who demanded strict compliance with the Charter, but there were others who were willing to develop new processes without limiting the Security Council’s free hand to make ultimate decisions. Second, a variety of historical factors relating to the attitudes of state governments bear primary responsibility for not creating a strong system of investigation and intervention. There had been an investigative process under the League’s system of protecting minorities, and while that system had significant weaknesses—a lack of transparency, a lack of enforcement at the Council level, and an inability to deal with large-scale violence—its structures of investigation and deadlines had been discarded. In the new UN era, despite the rhetoric of human rights, states wanted to avoid definite commitments and automatic responsibilities. A collective structure of prevention with obligatory reporting, investigation,

The Genocide Convention 227 and step-by-step international action imposed too many restrictions. The Western powers did not want to be locked into a commitment of military action, and they feared that their own minority citizens and colonial subjects would use the convention against them. Under the new UN system, only states, not individuals, could bring complaints about genocide before the UN. The Commission on Human Rights had a procedure by which individuals could make complaints about human rights violations, but the Commission explicitly stated that it had no power to take any action. The

Commission summarized individuals’ complaints and circulated them to the Commission members. The complainant's letter was also sent to the government alleged to be involved in genocide, yet it was not obligated to respond. This allowed

the issue to be diverted into a commission with no real power, which meant that states would not have to worry about their officials being dragged before foreign or international courts. The confidential UN file that deals with these complaints only contains a few examples, including the allegation that the Soviets deported Hungarian youth in 1957 and committed genocide against Ukrainians in 1958. UN confidentiality rules prohibit direct quotations from these files and references to the individuals involved. Nevertheless, the files essentially reveal that Cold War politics influenced accusations of genocide. The Ukrainian allegations, for example, relied on U.S. hearings in the House of Representatives, held by the Select Committee on Communist Aggression in 1954.7 Third, prosecution was privileged over prevention due to states’ centuries-old tradition of using this method to combat crime and ensure social safety. Prosecution offers many possibilities. Political authorities can use it to expose crimes to the public, offer partial restorative justice to victims and their families, and reassert standards of morality. They can also politically manipulate it to limit the full disclosure of crimes. Political and military elites can utilize it to craft a particular version of history that serves their interests. They may shape trials or limit them to secure the co-operation of a successor regime in new international alliances, while a domestic government may use its own courts to create new national myths or justify new forms of rule. For example, the Ottoman imperial government, under Allied pressure, undertook some trials for perpetrators of the Armenian genocide, but these were later cancelled by the Kemalist government, since the judgments worked against the plan to create a strong Turkish republic along ethnically homog-

enous lines. ‘The first Nuremberg Trial concentrated heavily, though not exclusively, on the Nazi conspiracy for aggressive war, and the trial served more as a final

condemnation of the remaining leaders of the Nazi regime than as a tool to reeducate German society.” In subsequent zonal trials, sentences against German 204 UN Archives, Geneva, SO 236, “Prevention of Discrimination and Protection of MinoritiesGenocide,” 01.1957—09.1960. °° Historian Donald Bloxham argues that because British and U.S. prosecutors neglected mid-level

bureaucrats, passed over the role of German police, and chose documentary evidence over victims’ testimonies, they failed to help West German society take responsibility for genocide. See Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001), 60-75, 109-28, 145-53, and 200-8.

228 The Birth of the New Justice military officials were later reduced, since Britain and the U.S. wanted a strong West German ally against the Soviet Union. Trials in Central and Eastern Europe had an explicitly political purpose of purging the system of former collaborators, though some former members of native fascist parties simply changed colors and became communists. Most important, prosecution generally did not address the root causes of political and social violence, which could not be solved only by instituting new rules and processes of punishment. While the definition of genocide in the convention was broad enough to cover future acts of genocide, it was not foreseen at the time that genocide in the post-1945 era would have different causes than previous cases. The law was not designed to reform autocratic militaries, defuse ethnic and class tensions exacerbated by economic depression, or channel revolutionary nationalism in post-colonial societies into non-violent courses of action.

Revising the Geneva Conventions, 1946-49: Synthesizing the Old and New Justice The last two chapters showed that different interest groups deployed the ideas of the “new justice” to solve different political and social problems after World War Two. The World Jewish Congress sought an international trial of Nazi leaders to demonstrate that the extermination of European Jewry occurred in stages beginning in 1933. It also wanted to establish a criminal precedent that might serve as a foundation for a new system of minority rights to replace the old League of Nations

system. Lemkin and his allies sought a new international law against genocide because the Nuremberg Judgment did not cover attacks against racial, religious, and national groups during peacetime; they also wanted to ensure that state agents would not escape prosecution. The states that negotiated the UN Genocide Convention wanted to issue a symbolic condemnation of genocide, but several did not

want to give an international authority, such as the UN Security Council or a future international criminal court, the power to intervene in their national and colonial affairs. The ambition of international criminal law to prevent serious violations therefore remained beholden to the existing international political system at the time. The ideas of the “new justice” also influenced the introduction of criminal repression into the Geneva Conventions. By criminal repression, I mean the attempt to apply the law with a system of prosecution and punishment in order to reduce violations. However, very few international lawyers who worked on the revision of the Geneva Conventions right after World War Two conceived of adding provisions

about trials and punishment to be a criminal law project, and the International Committee of the Red Cross had a separate history and institutional process from the movement to build international criminal law.' The ICRC did not receive a

' David P. Forsythe, The Humanitarians: The International Committee of the Red Cross (New York: Cambridge University Press, 2005) presents an excellent historical and empirical analysis of ICRC institutional structures and policies, showing the moral dilemmas of humanitarian diplomacy in the international state system. He demonstrates that the ICRC advanced the idea of humanitarian relief in warfare to both states and other national Red Cross societies, but also shows how the organization has been limited by its conservative Swiss values, its connection to the neutral Swiss government, and its private negotiations with governments. Francois Bugnion, The International Committee of the Red Cross and the Protection of War Victims, trans. Patricia Colberg, Edward Markee, and Nicolas Sommer

(Oxford: Macmillan Education, 2003) offers an extended argument showing that the ICRC carved out a “right” of humanitarian initiative through its practices, which the Red Cross movement and state governments eventually concretized in legal documents.

230 The Birth of the New Justice “direct injection” of the criminological school’s ideas; instead it was pushed to reevaluate its conservative position on war crimes trials because national Red Cross Societies demanded it, and the reality of war-crimes trials, especially in Europe, made it sit up and take notice—mainly to advocate for the rights of the accused. Between 1946 and 1949, the ICRC guided a massive process of revising three existing conventions dealing with the laws of war and creating a new convention to protect civilians in warfare.* Through a labyrinthine series of drafts and debates, the ICRC, outside jurists, Red Cross delegates, and state government representatives added the concept of individual criminal liability to these conventions. They also included an obligation for states to seek out and prosecute violators, a definition of serious violations (called grave breaches), and the prospect that a state could ask another state to extradite a suspect.’ These were all elements of the “new justice” as it had developed since World War One. At the same time, the new conventions confirmed that states could use their own tribunals first, they were allowed to follow their own laws when deciding whether to extradite someone, and they had to provide judicial safeguards for the accused, following a set of rules that originated from the 1929 Prisoner of War (POW) convention. ‘These aspects of state sovereignty and liberal safeguards for a fair trial were elements of the “old justice,” which critics of the new ideas after World War One had urged, and which Pella and his colleagues had accepted in the anti-counterfeiting convention and the antiterrorism convention. This chapter will show that the synthesis of the “new” and “old” justice in the Geneva Conventions stemmed from multiple sources. The ICRC played a role, moving from antipathy to post-war prosecutions toward an embrace of universal jurisdiction. Certain internationally-minded jurists from the Netherlands, Britain, and Switzerland moved the project forward, believing that an international court would avoid the political disadvantages of national tribunals. Government delegates from Britain, the US, and the USSR also shaped the synthesis. They wanted to codify which violations were war crimes yet intended to retain the authority to use their own national tribunals, since they were currently running their own trials. 2 'The conventions to be revised were the 1929 Geneva Convention for the Relief of the Wounded and the Sick in Armies in the Field, the Tenth Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906, and the 1929 Convention Relative to the Treatment of Prisoners of War. The new convention was called the Convention for the Protection of Civilian Persons in Time of War. For brevity, I will refer to these as the 1929 Wounded/Sick

Convention, the Maritime Convention, the 1929 POW Convention, and the Civilian Convention. The full name of the Maritime Convention became the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949.

3 See Art. 49-50, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field of August 12, 1949; Art. 50-51, Geneva Convention for the Amelioration of the Condition of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949; Art. 129-130, Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949; and Art. 146-147, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, Final Record of the Diplomatic Conference Convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and Held at Geneva from April 21st to August 12th, 1949 (Berne: Federal

Political Department), 1: 215-16, 234-5, 274, 328.

Revising the Geneva Conventions 231 There was more to the historical interplay than a competition of self-interests, however. The synthesis of the old and new justice provided a concept for the inter-

national order in which international law would set the parameters for states, which would then build their own criminal laws and run their own prosecutions (if they chose to fulfill their obligations) according to their own traditions and considerations. Additionally, the system was more than a reaction to war crimes committed during World War Two. Certain legal ideas were supposed to overcome or fix problems in national legal strategies that had emerged in war-crimes prosecu-

tions after World War Two, as well as overcome the long-standing problem that belligerents since the nineteenth century had not respected the Geneva Conventions. In that sense, the project was part of a longer historical trajectory of trying to shape and restrain military conduct in war. The present historical analysis of the punishment provisions differs from previous scholarship in several ways.* It concentrates exclusively on the historical develop-

ment of criminal repression in the Geneva Conventions, rather than the entire revision of the conventions. This requires special analysis because it was the first time in the history of internationally codified rules of war that negotiators agreed on the basic set of severe violations that must be punished, and established a new relationship between the guidelines of international law and individual behavior. One of the best analyses of the history of the 1949 Geneva Conventions, written by historian Geoffrey Best, concentrates on the diplomatic strategies of the British, American, Canadian, and Australian delegations: my analysis complements that one by critically analyzing the ICRC’s positions on criminal prosecution. Here I examine its actual diplomatic interventions on behalf of accused war criminals, not only its legal and moral claims of neutrality and humanitarianism. I also trace the history of the development of the “grave breaches” provisions using additional stages, different from those in Best’s account.’ Lastly, this chapter is unique in its * For an introduction to the 1949 conventions, including an analysis of the main changes since 1929, see G.LA.D. Draper, The Red Cross Conventions (New York: Praeger, 1958). On the negotiation

of the conventions, concentrating on the role of British, Canadian, Australian, and U.S. state diplomacy and the Cold War context, see Geoffrey Best, War and Law Since 1945 (New York: Oxford University Press, 1994), 81-206. See also a brief, earlier article on British reluctance to revise the Geneva Conventions: Geoffrey Best, “Making the Geneva Conventions of 1949: The View from Whitehall,” in Studies and Essays on International Humanitarian Law and Red Cross Principles in Hon-

our of Jean Pictet, ed. Christophe Swinarski (Geneva and The Hague: Martinus Nijhoff 1984), 5-15. On the legal issues concerning superior orders, war crimes as crimes against the law of nations, and problems in developing new laws of war, see Hersch Lauterpacht, “The Law of Nations and the Punishment of War Crimes,” British Yearbook of International Law 21 (1944): 58-95, and Hersch Lauterpacht, “The Problem of the Revision of the Law of War,” n.d., lecture delivered to the Law Faculty of Paris in the early 1950s, Archives of the International Committee of the Red Cross (Geneva), B AG 069.12-03. This was published under the same title in the British Yearbook of International Law 29 (1952): 360-82. For a history of the legal concept of grave breaches, including how they figure in the Additional Protocol of 1977 and the Rome Statute for the Permanent International Criminal Court, see Yves Sandoz, “The History of the Grave Breaches Regime,” Journal of International Criminal Justice

7 (2009): 657-82. On the ICRC’s position on the repression of violations, see Bugnion, /nternational Committee, 923-52. On the ICRC’s failure to do more for Holocaust victims, emphasizing the group’s legal conservatism and lack of creativity, see Jean-Claude Favez, The Red Cross and the Holocaust, trans.

John and Beryl Fletcher (Cambridge: Cambridge University Press, 1999), 22-53, 78-9, 273-82. > Best, War and Law Since 1945, 158-68.

232 The Birth of the New Justice use of ICRC archives (which were not available when Best wrote his study), stenographic reports of the preliminary and final conferences, Swiss Federal Archives, and the papers of Jean Graven, the Swiss member of the “Working Group” which drafted the “grave breaches” provisions in late 1948.

CRIMINAL LIABILITY: ONE ISSUE AMONG MANY Henry J. Phillimore, a British barrister who became the secretary for the British prosecution team at the first Nuremberg trial, and U.S. Brig. General J.V. Dillon first suggested a large-scale revision of the Geneva Conventions to the International Committee of the Red Cross in 1945.° Early the same year, national Red Cross Societies, led by the Swedes, proposed new conventions that would provide protection to civilians in war-time who found themselves on enemy territory or whose countries were occupied by an enemy force, though the ICRC had been working on trying to pass a convention to protect civilians in war since the Tokyo

Draft of 1934.’ However, new means of criminal enforcement had not been included in that text, nor in a text produced in 1937 by experts revising the 1929 Wounded/Sick Convention.® Different governments had distinct motives for revising the conventions, while the ICRC had its own reasons for seeking revisions and again trying to introduce a convention to protect civilians.? Furthermore, neither the major World War Two victors nor the ICRC contended that a lack of individual criminal responsibility in the conventions was absolutely the major problem: it was merely one shortcoming out of many. ‘The British and U.S. governments were primarily interested in ensuring that there were more specific rules for the treatment of POWs, as this issue, rather than the treatment of civilians under occupation, stemmed from their wartime experience and military interests. Britain and the US were also determined to prevent air warfare from being limited by revisions to the conventions, because they had used area bombing, strategic bombing of military targets, and bombing of civilian cities during the war; the U.S. delegation also successfully prevented a move by Soviet bloc delegations to prohibit the use of the atomic bomb.'° Additionally, a major problem in the 1929 conventions was that all belligerents did not have to apply them if one belligerent had not signed them, and

° Phillimore later helped draft the grave breaches provisions in late 1948. Dillon was part of the U.S. delegation to the Stockholm Conference in 1948 and the Diplomatic Conference in 1949. See Phillimore to Huber (copy), November 5, 1945, Archives of the International Commission of the Red Cross (hereafter AICRC), CR. 240-7. ” “Notice sur lestablissement de conventions nouvelles,” n.d., AICRC, CR. 240/0/TII. ® ‘The experts made no change to the existing sanctions regime, which merely urged that states update their penal legislation to repress acts contrary to the convention (Art. 29). Conférence des Experts Gouvernementaux. Genéve, 14-26 avril 1947. Vol. 1. Documentation présentée par le CICR (Geneva, 1947), 41. ° For an analysis of different governments’ relations with the ICRC, and problems within the Red Cross movement after World War Two, see Best, War and Law Since 1945, 81-99. ' Best, War and Law Since 1945, 106-14.

Revising the Geneva Conventions 233 the USSR and Japan had not signed the 1929 conventions. The USSR’s nonsignature offered a pretext for Nazi Germany to state that it did not have to respect the POW convention when dealing with Soviet POWs, but this was just a cover for its implementation of an ideological war of extermination against Bolshevism on the Eastern Front.'! The Japanese treatment of POWs and civilians, underpinned by racism, was brutal, too.'* However, China was the only Asian government invited to send experts to a preliminary Red Cross conference of Government Experts in 1947. The revision project was dominated by a European/ North American perspective, reflecting both post-war imperial politics and the ICRC’s Eurocentric perspective. For those European governments whose countries had been occupied and suffered the extreme harshness of Nazi rule, two crucial revisions were necessary. First, countries which had underground partisan movements (France, Belgium, Denmark, Netherlands, etc.) wanted captured partisan fighters to gain the status of POWs, which would require the detaining power to offer them food, shelter, and medical care. This would also prohibit the detaining power from prosecuting them as illegal resisters or summarily executing them, as the Nazis and Italian fascists had done.'? Yugoslavia, however, which had been partitioned and occupied by three different states and experienced a devastating civil war, refused to participate in the early stages of the revision process because its socialist government viewed the ICRC as an anti-communist tool." Second, states that had been occupied also supported a new convention to protect civilians against torture, imprisonment, deportation, and reprisals, all methods that the Nazis had used to terrorize the population. One important point here is that the Fourth Hague Convention and the Tokyo Draft provided no protection for Jews arrested inside the Reich. Legal technicalities aside, since the Nazis acted according to their racial ideology, international law had no place in creating a “pure” racial state and a European empire based on Slavic “subhuman” slave labor. Jews arrested in occupied countries and then deported to concentration and death camps in the Reich or to the General Government in Poland were considered by the Nazis as “internal enemies” who were not covered under the existing Geneva Conventions. The ICRC never challenged this policy directly, instead trying to deliver aid to Jews in certain situations.'? However, the Nazis refused to provide the

ICRC with lists of the names of Jewish prisoners and rejected ICRC camp '' Christopher R. Browning, 7he Origins of the Final Solution. The Evolution of Nazi Jewish Policy, September 1939—March 1942 (London: William Heinemann, 2004), 215-24. '2 Additionally, the Japanese government resisted ICRC attempts to visit POW camps in Asia. See Bugnion, J/nternational Committee, 192. 'S Negotiators decided that partisan fighters would not be protected under the civilian convention but under the POW convention if they met certain qualifications, which were taken from the Hague Regulations. See Best, War and Law Since 1945, 123-31. “ On the Yugoslav civil war, see Jozo Tomasevich, War and Revolution in Yugoslavia, 1941-1945: Occupation and Collaboration (Stanford, California: Stanford University Press, 2001). On Yugoslavia’s post-war view of the ICRC, see Best, War and Law Since 1945, 85. '° On the ICRC’s legal and political reasoning, and World Jewish Congress opposition, see Favez, The Red Cross and the Holocaust, 126-30.

234 The Birth of the New Justice inspections, save for stage-managed visits to the Terezin camp.'° ICRC assistance to Jews and others persecuted for racial/political reasons inside the Reich was extremely limited, though the efforts of local ICRC delegates in Hungary and Romania were more successful in some circumstances.’ It is often forgotten that the road to creating a civilian convention that specifically forbids discrimination, internment, and deportation on religious and racial grounds was not easy to traverse. In March 1947, Gerhart Riegner, the World Jewish Congress delegate, sparred with the ICRC’s war-time president, the politically and legally conservative Swiss jurist Max Huber, who during the war wanted to operate within the limited legal constraints of international law and did not want

to jeopardize the political capital of the ICRC by directly challenging Nazi Germany's imprisonment of Jewish civilians and its discriminatory treatment of Jewish POWs.'® Riegner strongly criticized the ICRC’s wartime failures and demanded that when the conventions were revised, Red Cross protection had to be extended to “any persecuted minority in time of peace or war.” Huber resisted, and Riegner only received limited support from Christian religious organizations, so the World Jewish Congress started lobbying Western governments, whose experts then proposed in April 1947 that “civilian internees” all receive the same protections—tood, clothing, medical care, the right to send and receive mail—that POWs received.'” Ultimately, the ICRC accepted the idea that the new convention protecting civilians should prohibit discrimination “founded on race, religious belief, political opinions, or any similar criteria.” At a major Red Cross conference in Stockholm in 1948 (convened to work out the texts for the conventions), Riegner argued for this language against the objections of Canadian and British delegates and prevailed.” The ICRC’s main interests in revising the conventions were to gain enhanced powers to inspect prisons and camps, improve the rules for the treatment of POWs, establish baseline rules for the treatment of detained civilians, and strengthen the ICRC’s legal and practical ability to deliver food and clothing to POWs. The ICRC wanted the same power to represent the interests of POWs and interned civilians that “protecting powers” had possessed.*! This stemmed from a wartime problem: when Nazi Germany conquered and partitioned certain states (such as Poland), it refused to recognize that exile governments still existed, so it would not accept the latters’ right to make inquiries and represent its own nationals who were internees or

'© “Notice sur l’établissement de conventions nouvelles. Réunion des Croix-Rouges de 1946. Condition et protection des civils. b) Civils ennemis se trouvant sur un territoire occupé par un belligérant,” 1946, AICRC, CR. 240/0/III. '” Favez, The Red Cross and the Holocaust, 198-215, 233-50. 'S On Huber’s legal conservatism, see Favez, The Red Cross and the Holocaust, 83-4, 129-30. On the POW issue, see Favez, 121-6.

Monty Noam Penkower, “The World Jewish Congress Confronts the International Red Cross during the Holocaust,” Jewish Social Studies 41, no. 3/4 (1979): 247-50. °° XVIIth International Red Cross Conference [Stockholm]. Legal Commission. Summary of the debates

of the Sub-commissions, August 1948, AICRC, CRI. 25-39 bis. See the Third Subcommission, Third Meeting, August 23, 1945, 2:30 p.m., 57. 21 Favez, The Red Cross and the Holocaust, 121.

Revising the Geneva Conventions 235 POWs.” Additionally, the *29 convention specified that the ICRC could visit POW camps, but not other places where prisoners were held, such as prisons. The ICRC also sought new rules that would limit the daily hours of POW labor and would require a detaining power to protect POWs against air raids, because the

Nazis had refused to shelter POWs working in factories from bomb attacks.” Regarding civilians, the organization stated that in principle it wanted the new civilian convention to prohibit an occupying power from deporting civilians and imprisoning them on the basis of their political beliefs, but during convention negotiations, it took a somewhat pragmatic position. It feared that belligerents might claim that these civilians were “security risks,” so the ICRC urged that at least the detaining power would offer them the same treatment as civilians from enemy countries who happened to be on foreign territory when the war started.” Ultimately, Britain and the U.S., anticipating that they would run military occupations in the future, ensured that in the 1949 conventions, arresting and detaining civilians “engaged in activities hostile to the state” were completely permissible— and the occupier did not have to specify when, if ever, it would put them on trial.” Finally, the ICRC sought the right to deliver aid to POWs even when the detaining power did not let it visit camps, and it wanted the right to deliver aid to hospitals and prisons too.”° In general, the ICRC sought a more secure legal basis for its right to inspect camps and deliver aid more strongly than it demanded criminal prosecution of violators. The evolution of criminal repression in the Geneva Conventions occurred over

a series of years. During a first phase in 1945-47, the ICRC altered its position from reluctance toward war crimes prosecution to modified support for the future, though it had reservations about the war crimes trials then in process. In 1947, a group of “Government Experts,” representing most of the Allied and Associated powers, met at an ICRC-sponsored conference and vigorously debated the ques-

tions of national, international, and universal jurisdictions. This was a “clash period” in which government experts wrote the first draft article defining war crimes in the Sick/Wounded Convention. Delegates from Belgium and the Netherlands supported universal and international jurisdictions, while the British and U.S. delegations strongly opposed this. Afterwards, there was an “ideas period,” in which the ICRC sought additional opinions, then produced a document outlining its main goals for a system of criminal repression. ‘The next period was the 1948 “Stockholm Conference,’ where Red Cross delegations (including many government representatives) re-debated the issues and created a system prioritizing state

*? International Committee of the Red Cross, Commission of Government Experts for the Study of Conventions for the Protection of War Victims. Geneva, April 14 to 26, 1947. Preliminary Documents Submitted by the International Committee of the Red Cross. Vol. III. Condition and Protection of Civilians in Time of War (Geneva, 1947), 2-3. Hereafter Government Experts—Preliminary Documents.

*> Roland Marti, “Observations relatives 4 la Documentation préliminaire fournie par le Comité international de la Croix-Rouge,” 1947, AICRC, CR. 240-10, Doc. 304 bis. ** Government Experts—Preliminary Documents, 21. °° Draper, The Red Cross Conventions, 29.

6 M. A. de Franz to Pilloud, July 17, 1946, AICRC, CR. 240/0/HI.

236 The Birth of the New Justice sovereignty. Ihe ICRC was dissatisfied with the fact that many issues had not been

decided, so it chose a set of four jurists to devise a solution and gave them the parameters within which the questions were to be answered. In this “Working Group” stage in December 1948, the jurists created a set of common penal provisions for the four conventions. These lawyers, including Martinus Mouton (a Dutch military judge), Henry J. Phillimore (the British Nuremberg prosecutor mentioned above), Hersch Lauterpacht (the British international law scholar), and Jean Graven (a Swiss judge and criminal law expert), strongly set the system in a universal, international framework, though they also adopted several definitions of war crimes that had previously been decided. However, the British government totally opposed their system, and the U.S. tried to remove it from the agenda at the

next stage, a final Diplomatic Conference in 1949. In this final stage, Mouton worked behind the scenes with the U.S. delegation to work out a compromise privileging national jurisdictions, while full legal safeguards for the accused remained, as the ICRC and Phillimore wanted. It was only at this conference that the Soviet

delegation played a direct role, working unsuccessfully to require the Western Allies to implement the new penal provisions in their domestic legislation within two years. The stages yielded a system that proposed a definition of grave breaches (that was intended to be universal), created a universal obligation to seek out and prosecute perpetrators, allowed states to prosecute or extradite them according to their own laws, and obligated states to change their penal codes to ensure effective enforcement of the conventions. This was neither a full victory for the forces of sovereignty nor internationalism; it was a synthesis in which the international was to serve as the bridge to the national.

THE ICRC’S TRANSFORMATION FROM MILD ADVERSARY TO SUPPORTER OF WELL-REGULATED TRIALS IN THE FUTURE As mentioned in Chapter 1, Gustave Moynier, the Swiss Protestant moral utilitarian philanthropist who served as the ICRC’s president from 1864 to 1910,”” had

proposed an international criminal court to prosecute violations of the 1864 Geneva Convention, though his statute received little government support. In 1893, he created a model law that attached penal sanctions to violations of the convention, which all states would implement, ensuring that the treatment of the accused would be the same in all cases. ‘Then, in 1906, when state delegations were revising the Geneva Convention, the Austrian delegation proposed that states should implement penal laws to ensure proper repression of violations. The editing committee cut back the extent of this idea so that the required penal laws would only deal with individual acts of pillage and mistreatment of the sick and wounded.

*” John E Hutchinson, Champions of Charity: War and the Rise of the Red Cross (Boulder, CO: Westview Press, 1996), 3, 20-4.

Revising the Geneva Conventions 237 The majority of delegates voted in favor of it, but by 1929, only Norway and the Netherlands had changed their laws.”*®

The reader might recall that after World War One, the ICRC was privately opposed to the idea of a neutral investigating committee to deal with violations of the Geneva Conventions committed by all belligerents. It had close relations with the British and French Red Cross societies, and their governments were opposed.” During the interwar period, the ICRC was largely ineffective in enforcing the laws of war, including those which it had helped promulgate (the 1929 POW Convention) and those which it had not drafted but had worked to get states to sign (the 1925 Geneva Protocol, prohibiting the use of poison gas warfare).°? Enforcement was an entirely different matter from establishing aid to victims of war (by erecting Red Cross hospitals, for example). It involved ensuring that belligerents did not mistreat POWs and wounded, urging belligerents to refrain from using prohibited means of warfare,*' privately negotiating with belligerents to end violations, and investigating violations in order to expose them publicly and pressure belligerents to stop them. During the Italian invasion of Ethiopia in 1935-36, the ICRC failed in these areas when dealing with fascist Italy, and not solely because Italian dictator Benito Mussolini and his military commanders favored the philosophy of aggression and imperialism over international law and humanitarianism. In the war, the Italian air force intentionally bombed Red Cross hospitals and used poison gas.*? The Italian Red Cross and the Italian government manipulated the ICRC by dragging out negotiations for an inquiry (and limiting it so it would not cover poison gas),°° but the ICRC was also complicit in many areas. The ICRC refused to publish Ethiopian allegations of Italian violations; it failed to confront Italian officials directly about gas attacks when it knew about these from its own delegates and other witnesses; and when writing a post-war “White Book” about violations, the ICRC submitted to all the Italian government's requests to remove any material that demonstrated that Italian pilots had purposely bombed hospitals.** The major reasons for the ICRC’s failure to confront the Italian government were the conservative legalism of its main lawyers (including ICRC President Huber), the

°*8 JW (Legal Division), “Note. Quelques faits et quelques textes relatifs a la répression des infractions aux Conventions humanitaires et au droit de la guerre en général,” December 14, 1948, AICRC, CR. 238-6.

” See Chapter 4. °° Rainer Baudendistel, Between Bombs and Good Intentions: The Red Cross and the Italo-Ethiopian

War, 1935-1936 (New York: Berghahn Books, 2006), 270-3. An impartial historical investigation of the ICRC’s role in the Spanish Civil War remains to be written. Bugnion, /nternational Committee, 266-83, reports that during Spanish Civil War the ICRC showed important initiative by negotiating with Republicans and Fascists, though it had no legal authority to demand protection for POWs or the sick/wounded in a civil war. He states that neither side upheld promises to maintain certain minimum standards. *! Although the Hague Conventions, not the Geneva Conventions, dealt with restricted weapons, the ICRC’s post-World War support for the Geneva Protocol shows it was involved in this area, at least concerning poison gas. 32 Baudendistel, Between Bombs and Good Intentions, 119-39, 264-70. 33 Baudendistel, Between Bombs and Good Intentions, 190-2. 34 Baudendistel, Between Bombs and Good Intentions, 173—6, 196-200, 279-82.

238 The Birth of the New Justice organization’s ties to the Swiss government (which took a conciliatory position towards Italy for various political reasons), the ICRC’s distrust of its own field delegates, and its inability to judge critically the aggressive intentions of the Italian government.” This episode directly influenced the organization’s serious shortcomings in World War Two.*° Because of the problems in setting up a neutral inquiry during the Italo-Ethiopian War, the ICRC decided that in the future, it would never offer to form an investigating commission itself or get involved in the actual business of determining the facts. Instead, it would only work with the opposing parties to establish a commission’s membership and methods. It established this policy in September 1939, right after German invasion of Poland.*’ This essentially meant that it jettisoned an important enforcement measure, which left private diplomacy as the key tool for urging belligerents to respect humanitarian law and principles. Further, in the area of private negotiations, the ICRC’s conservative, legalistic approach ruled the day in key decisions not to press the Nazi government more

forcefully to allow the ICRC to inspect camps and prisons where the Nazis detained political prisoners and Jews. The ICRC in some cases tried to help Jews escape Nazi Europe and Romania, but its plans were hindered by other countries’ immigration restrictions, the Nazi refusal to answer the ICRC’s requests, and the ICRC decision not to allow the Red Cross emblem to be used on ships carrying Jewish émigrés.**

Legal traditionalism, a tepid position on enforcement, and a self-protective reli-

ance on the doctrine of neutrality influenced the ICRC’s policy on war crimes prosecutions at the end of the war. The ICRC’s Legal Commission (comprising senior ICRC members and some members of its Legal Division) did not view the Allies’ intention to prosecute Axis war criminals as an absolute imperative. It viewed the situation as a “conflict” between the Allies and the Axis. The ICRC therefore believed its job was to “mediate” this conflict. In March 1945, the ICRC Legal Commission, which had rarely met during the war, convened to discuss the Allies’

declared intent to hold post-war trials. The purpose of the meeting was to decide the ICRC’s policy toward war criminals. An ICRC legal analyst named Beck presented an overview of the current problems with war crimes prosecution: international conventions did not specify individual criminal liability, and different Allied powers defined war crimes differently. Beck contended that: POWs accused of war crimes should only be charged with crimes that were universally recognized; states should wait until peacetime before gathering materials necessary for prosecutions; individual responsibility (not collective punishment) should be applied; corporal punishment and administrative measures that did not follow the procedures of a criminal tribunal should not be used. “The ICRC should, above all, apply itself in 3° Baudendistel, Between Bombs and Good Intentions, 7-13, 206-13. 36 Baudendistel, Between Bombs and Good Intentions, 309-11. *” Bugnion, /nternational Committee, 156, 935-6. For the defining memo, see “Mémorandum sur Pactivité du Comité international de la Croix-Rouge en ce qui a trait aux violations du droit international,” September 12, 1939, AICRC, G.7/IX. Criminels de Guerre. Généralités. 38 Favez, The Red Cross and the Holocaust, 104-18.

Revising the Geneva Conventions 239 appeasing the conflict,” he concluded. ‘This corresponds in certain ways to the ICRC’s attitude in 1921 (the time of negotiations about the neutral inquiry of violations), when the organization prioritized “reconciliation” over responsibility. The ICRC’s 1945 positions were entirely different from the Institute of Jewish Affairs, which began building criminal dossiers during the war and worked to expand the definition of war crimes so that crimes beginning in 1933 could be prosecuted, as well as crimes against “stateless” persons. Huber’s position, in contrast, was that the condition of the accused, not the victims, was the most important. Absolutely nothing was said during the March meeting about the necessity of prosecutions or the role they might play in upholding humanitarian law. “The most important point is to secure humane treatment,’ Huber said, referring to the accused. “It’s necessary to avoid all legal scandals. One must prevent the defeated from being held responsible for crimes for which the victors would get impunity.” This priority of “humane treatment” for the accused became a consistent goal in ICRC policy during the revision of the conventions. It was also supported by their field delegates, who consulted with the U.S. and British governments about their treatment of Nazi war criminals. Fundamentally, at this point, the ICRC viewed war crimes trials as a POW issue, not as an element of enforcing the conventions. Another reason why the ICRC was reluctant to support criminal prosecutions in 1946 was that Allied denazification proceedings threatened some of its allies in the German Red Cross, an organization that it wanted to preserve. The German Red Cross had been completely nazified after 1933, taken over by SS doctors and party members. One of the few pre-1933 top officials who remained was W. G. Hartmann, the head of the German Red Cross’s Foreign Bureau and the ICRC’s main point of contact with the German Red Cross during the war.*' Once the Allies occupied Germany, the ICRC was concerned that they would dismantle the German Red Cross, which possessed trained personnel, hospitals, and ambulances; all this would be useful for helping German soldiers, foreign POWs, and interned civilians in the wreckage of post-war Germany.*” On June 8, 1945, when the ICRC’s Legal Commission discussed its diplomatic strategy to preserve the German

Red Cross, ICRC member Marguerite Prick-Cramer stated that the ICRC would not recommend that “certain members” of the German Red Cross stay on, nor would it ignore their activities in other areas—here she meant the people who were part of the SS.* Yet, in a letter of June 1, 1945, calling for the re-creation of the German Red Cross, she stated that although the German Red Cross had tried to

* Commission Juridique, “Séance du mardi 17 avril 1945 a9 h., No. 6,” AICRC, A PV Jur. 1, .211. wt Commission Juridique, “Séance du mardi 17 avril 1945 49 h., No. 6,” AICRC, A PV Jur. 1, er te visited Geneva eighteen times during the war and provided the ICRC with valuable information about events inside the Reich. Favez, The Red Cross and the Holocaust, 28.

© Dieter Riesenberger, Das Deutsche Rote Kreuz. Eine Geschichte 1964-1990 (Paderborn: Ferdinand Schéningh, 2002), 372-99. ® Procés-verbaux de la Commission juridique et documentation relative. Vol. 1, Séance du vendredi 8 juin 1945 a 9 heures. No. 9, June 8, 1945, AICRC, A PV Jur. 1, CR. 211.

240 The Birth of the New Justice control all relations with other Red Cross societies in Nazi-occupied countries, “in a general way, we have the impression (without being able to guarantee it, however) [her emphasis] that the directors of the German Red Cross defended the interests and principles of the Red Cross internationally as much as it was able: here with the exception of the Israelite question.”** That was a very large exception. In 1941, Hartmann told the ICRC that his organization would no longer pass on any ICRC

requests for information about prisoners in concentration camps. In 1942, the German Red Cross, under pressure from the Reich Security Main Office, informed the ICRC that it could not provide any information about “non-Aryans” deported from the Reich.” Inside the Reich, the German Red Cross refused to help Jews trying to flee, nor would it help Eastern European workers (of various nationalities and religions) who were deported to the Reich.*° Despite an ICRC appeal to the Allies to preserve the organization,*’ the Soviets dissolved the German Red Cross in their zone and replaced it with other organizations, while the U.S. wanted to decentralize it and democratize it, which it did later, in 1949. In August 1945, Hartmann and his co-workers were interned.** After the Allies issued their “denazification” decree in Germany—Control Council Directive No. 38 of October 12, 1946, calling for the arrest and court hearings of different categories of Germans involved with Nazism—Hartmann and others were charged as “delinquents of lesser importance.’*? Hartmann was not a Nazi party member and had been a member of the German Red Cross since 1922. The ICRC apparently tried to secure his release, and he later filed a complaint with the ICRC about his arrest. Later, in 1948, the ICRC tried to ensure that in the revised Geneva Conventions, medical aid officials and medical workers could not be prosecuted for working in occupied areas.”° That type of immunity, however, was not specified in the final conventions. Still, the dismantling of the German Red Cross and the arrest of personnel whom the ICRC claimed were “reliable” made ICRC lawyers cautious of “special administrative reviews” and purges.

“4 “Situation de la Croix-Rouge en Allemagne,” June 1, 1945, Procés-verbaux de la Commission juridique et documentation relative. Vol. 1, AICRC, A PV Jur. 1, CR. 211. Frick-Cramer’s authorship is established by the minutes of June 8, 1945. 45 Favez, The Red Cross and the Holocaust, 54-60. 46 Riesenberger, Deutsche Rote Kreuz, 385.

*” See the draft letter to the Allies by Burckhardt, stating that the German Red Cross should be restored because the Nazi Volkswolhfahrt had been dissolved, and the German Red Cross’s 1,075,000

members could take over relief efforts for POWs and interned civilians. “Esquisse dune lettre aux Gouvernements allies,” June 1945 [following the ordre du jour for a meeting of the Commission Juridique on June 8, 1945], Procés-verbaux de la Commission juridique et documentation relative. Vol. 1, AICRC, A PV Jur. 1, CR. 211. “8 Riesenberger, Deutsche Rote Kreuz, 373-8.

“ An ICRC document from June 1948 states that he was charged according to the 1946 decree. See “Membres du personnel sanitaire condamnés a raison de leur activité pendant la guerre. Incrimination d’office du personnel dirigeant d’une Société nationale. Rapport du Comité international de la Croix-Rouge (sous le point HI de Pordre du jour de la Commission juridique), No. 15,” June 1948, AICRC, CRI. 25-10. °° “Membres du personnel sanitaire condamnés,” June 1948, AICRC, CRI. 25-10.

Revising the Geneva Conventions 241 PRESSURES LEAD THE ICRC TO RECONSIDER CRIMINAL ENFORCEMENT In 1946-47, the realities of war-crimes trials in Europe and pressures from within the Red Cross movement started to dislodge the ICRC’s conservative viewpoint toward criminal repression. These pressures led it to ask experts to propose ways criminal enforcement could be added to the Geneva Conventions. In 1946, the Red Cross movement held its first conference after World War Two to discuss war-time experiences and consider revisions to the conventions. The Belgian Red Cross introduced a resolution stating that “infractions of humanitarian conventions are to be considered war crimes and punished as such.” This was passed by the conference, though no detailed legal work was done by that body. >! Claude Pilloud, chief of the ICRC’s Legal Division, drafted a commentary sent to government experts, which stated that this was “an extremely interesting idea. ... It seems that the Nuremberg military tribunal had acknowledged the violation of the provisions of the Geneva and Hague conventions, committed by individuals or by the authorities, to be a war crime. This would therefore only be a confirmation of

a type of international criminal law. It would be necessary to provide certain modes of application. One can further add that a solution of this kind would very likely not only have the Convention relative to the treatment of prisoners of war as its object but also those concerning the treatment of the wounded and sick in armies in the field, as well as the Tenth and the Fourth Hague Conventions.””

When he prepared the introduction to the materials sent to the government experts (legal and military advisors from the major World War Two victor states), he noted that “the measures need to reinforce the supervision of the convention [and] the sanctions in case of violation” were among the important points to be discussed for the POW Convention.’ He also indicated the ICRC’s pragmatic political position: it wanted the largest number of state signatories, so “the text should take military requirements and the interests of states into account in a legitimate way.’™

Frick-Cramer also initially expressed her support for the idea that the revised conventions should support criminal prosecution. In the fall of 1946, she had left the ranks of the ICRC but she prepared a draft convention for military personnel or civilians who came under the control of an enemy power or some other authority they did not recognize. Her draft contained an article that stated, “The authors of verified violations committed with regard to military prisoners or civilians will be personally held responsible and delivered to competent national or international tribunals. According to the gravity of the case, they will be treated as war >! CP [Claude Pilloud]/UB/RZ, “Notice concernant l’article 86 de la Convention relative au traitement des pg,” July 1946, AICRC, CR. 240-6, p. 9. » Pilloud, “Notice concernant l'article 86,” July 1946, AICRC, CR. 240-6, p. 9. This is my translation from the French.

3 CP [Claude Pilloud]/JMM/sj, “Convention relative au traitement des prisonniers de guerre. Introduction,” November 13, 1946, AICRC, CR. 240-5. * Pilloud, “Convention relative au traitement des prisonniers de guerre. Introduction.”

242 The Birth of the New Justice criminals.”°? However, in 1947, she reversed positions on enforcement. “No, not international tribunals, but representatives of the belligerents,” she told a correspondent who had also written a draft convention that included a reference to an international tribunal. “See the text of Article 25 and my article in the Revue [de la Croix Rouge|. I believe (and have personally experienced it in 1917/18) that agreements during war-time are possible, desirable and the only way to have an adequate law and one that can be observed in its details.”°° Her Article 25 presented the idea that the authorities dealing with military and civilian prisoners would send delegates to a neutral country to negotiate matters, and as for an independent body exercising control, she envisioned some type of organization that would be “independent of all political, religious, social influence.””’ This reflected the older school of thought in the ICRC: adherence could be achieved through private diplomacy and agreements (with the ICRC as the intermediary to assist), backed up by an international organization that would not have the powers of prosecution. It is also noteworthy that she cited her World War One experiences, rather than referring to World War Two, when she was completely unable to get the Nazis to agree to treat Spanish republicans sent to Mauthausen as POWs instead of political prisoners.?® Historian Jean-Claude Favez is correct in one of his overarching conclusions about the ICRC. “In its way of working, in its methods of analysis, in its political perspective, the ICRC was by then out of phase with the ideological struggle that was what World War II was really about.”” After World War Two, the question was whether it would change its approach to criminal repression, at least, in light of its experiences in dealing with Nazi Germany. However, its concerns with the problems of the Allies’ war crimes trials seemed to exert a bigger influence on its postwar legal positions than the crimes of the Nazis themselves. Still, the Legal Division under Pilloud was becoming more open to the formulation of criminal repression. In 1947, the division began consulting with outside experts, who started to frame the essential parameters. They narrowed down the types of punishable violations and debated the type of court that should be used, though they were deeply divided. In March, the ICRC solicited the advice of Ernst Hafter, a Swiss criminal law specialist, on penal provisions because it considered him a neutral eminent criminal law expert and wanted his opinion on war crimes and penal problems related to POWs. Hafter wrote an analysis, and while he did not deal with the issue of war crimes, he raised the question of whether POWs who had committed crimes before they were arrested (meaning not while they were in a POW camp) should be tried by military tribunals or civilian courts, generally thought to be less harsh. Second, he initiated a discussion about what kinds of

°° R. M. Frick-Cramer, “Convention relative aux personnes militaires ou civiles tombées au pouvoir de l’ennemi ou d’une autorité non reconnue par elles, Art. 24,” October 19, 1946, AICRC,

we ee Cramer to unknown (possibly Hans Popper), April 22, 1947, AICRC, CR. 240-9. *” Frick-Cramer, “Convention relative aux personnes militaires.” 8 Favez, The Red Cross and the Holocaust, 57. >? Favez, The Red Cross and the Holocaust, 282.

Revising the Geneva Conventions 243 punishments could be used against POWs who were found guilty of committing crimes against the detaining power, and the cases in which the death penalty could

be imposed.

THE CLASH PERIOD AT THE GOVERNMENT EXPERTS’ CONFERENCE The “clash period” is my term for the first set of debates concerning criminal penalties in the Geneva Conventions. The main issues were the definition of “war crime”

in the framework of the conventions, the type of tribunal that signatories should use for prosecution, and the type of legal protections that states should grant the accused. None of these questions were new in 1947, as they had been debated extensively since 1919, though many of the participants in the Red Cross movement either did not know the history or were acting in accordance with their governments military and political priorities, regardless of what legal experts had worked out in various organizations during the interwar period, the UNWCC, or in negotiations establishing the first Nuremberg tribunal. Three crucial facts set the background for the government experts’ discussion in March 1947. First, military tribunals run by occupying governments (the U.S., Britain, and the USSR) ruled the day.°! In liberated European countries, municipal criminal trials and legal bodies stripping collaborators of civil rights and property were the dominant forms of transitional justice.® Second, international tribunals were the exception, not the rule. The International Military Tribunal at Nuremberg delivered its judgment in the fall of 1946, and as mentioned in the last chapter, jurists did not agree about whether the tribunal set a precedent for a future international criminal court. Additionally, Cold War politics worked against the creation of a new international tribunal. A French—Soviet plan for a second international Nuremberg trial of German industrialists ran aground in 1946 due to British and U.S. opposition. The latter governments preferred to resurrect the German economy as a bulwark against Soviet communism, plus U.S. prosecutors feared the Soviets might use the trial to expose pre-war U.S.—German financial ties, supporting the argument that fascism was the final stage of capitalism.®° Third, the International Military Tribunal for the Par East was still in progress (the defense case ran from February 1947 to January °° Ernst Hafter, Bemerkungen zu der Dokumentation préliminaire fournie par le Comité international de la Croix-Rouge zur Revision des Abkommens vom 27. Juli 1929 iiber die Behandlung der Kriegsgefangenen, March 12, 1947, AICRC, CR. 240-9, Doc. 276. °! Lisa Yavnai, “U.S. Army War Crimes Trials in Germany, 1945-47,” in Atrocities on Trial: Histori-

cal Perspectives on the Politics of Prosecuting War Crimes, ed. Patricia Herber and Jiirgen Matthaus (Lincoln, Nebraska: University of Nebraska Press, 2008), 54-64; Kevin Jon Heller, 7he Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press,

2011), 9-83.

"a Jon Fiscer, Closing the Books: Transitional Justice in Historical Perspective (New York: Cambridge University Press, 2004), 57—60. °° Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001), 28-32.

244 The Birth of the New Justice 1948), but the judges did not deliver their verdicts until November 1948. Moreover, there were fifty other war crimes courts in the Asia-Pacific region, run by separate Allied countries. The overall picture showed that single-power proceedings, not international tribunals, would remain dominant because they offered many advantages to the convener—knowledge of the procedure, interpretation of military and national law, access to resources, and the ability to deploy the occupying or liberated power’s political—historical goals.

Huber initially wrote to the governments of Britain, the U.S., France, China, and the USSR in early 1946, inviting them to send experts to Geneva to exchange views informally about the revision of the POW convention and to discuss the possibility of a new convention dealing with “enemy aliens.” For various reasons, this “Government Experts’ Conference” was delayed until 1947, and the Soviet government decided not to allow the head of the Soviet Red Cross and Red Crescent to attend, though he wanted to.® Representatives from small states formerly occupied by the Nazis were also invited, as well as several countries in the British Dominions. The largely West European/British/American composition of the conference limited the perspective to only a portion of the victorious and liberated powers. It also meant that any debates about criminal repression at this stage were not enmeshed in Cold War political debates. The issue of criminal repression arose in two different commissions, one dealing with revision of the Sick and Wounded Convention and the other dealing with the POW Convention. In the former commission, the issue centered on whether violations of the Sick and Wounded convention should be subject to universal jurisdiction, and whether national tribunals or international tribunals should be used. In this setting, Dutch delegate Mouton, a military judge who had been a member of the UNWCC, was joined by Belgian Major Paul Wibin, a medical doctor: both supported universal jurisdiction (the concept that all states have an obligation to

punish certain crimes under international law) and the use of an international criminal court, which Mouton wanted to establish under the auspices of the Permanent Court of International Justice, as various jurists such as Descamps and Bellot had before him. The U.S. and British delegations, however, were totally opposed to both universal jurisdiction and an international criminal court. The British position was even more extreme. H. W. Gardner, a British official from the British War Office, did not want to include any requirements for criminal prosecu-

tion in the conventions at all.° The public U.S. position was that some type of “ Yuma Totani, The Tokyo War Crimes Trial (Cambridge, Mass.: Harvard University Asia Center,

2"8—8. he ICRC attempted to repair relations with the USSR after the war and made several attempts to include the USSR in the process. See AICRC, CR. 240-8, especially Huber to Koulagenkoy, December 3, 1946 (Doc. 117) and Koulagenkov to Huber, January 13, 1947 (Doc. 142). For additional background on the causes of the tension, see Best, War and Law Since 1945, 84-5.

°° See the stenographic minutes from this debate in International Committee of the Red Cross, Conférence d'Experts Gouvernementaux pour l étude des Conventions protégeant les victimes de la guerre. Genéve, 14-26 avril 1947. Proces-verbaux de la Commission I. Révision de la Convention de Genéve de 1929 pour lamélioration du sort des blessés et des malades dans les armées en campagne et les dispositions

connexes (1947), vol. 2, Tome 2: 298-315, ICRC Library Code 345.21/16 (III).

Revising the Geneva Conventions 245 international authority for prosecution was a good idea but would likely encounter resistance and therefore delay ratification of the Geneva Conventions, while the public British position was that the matter of defining war crimes was so complex that the British government would have to examine every definition later before deciding anything. The real reason, however, is that these two powers wanted to retain their sovereign prosecuting power and use their own tribunals to deal with foreign nationals who committed crimes against their nationals. This was the dominant form of legal prosecution used after World War Two. It is also quite possible that they wished to avoid the creation of an international court that might someday prosecute their own. The reader might recall that at various points in the past when either the U.S. or Britain favored the creation of an international tribunal, it was for a special ad hoc purpose (the British to deal with Germany after World War One, the U.S. to deal with Germany after World War Two), not to create a permanent pillar of the international system. The most significant point worked out in this commission was a definition of war crimes for the Sick/Wounded Convention (Article 33). It stated, “Any wilful [sic] violation of the present Convention, leading to the death of persons protected by its provisions, to grave ill-treatment of the said persons, or serious damage to hospital buildings and equipment, shall be considered as a war crime. The responsible persons shall be liable to appropriate penalties.”* The core of the text came from the U.S., while the Dutch added the requirement that the violation be willful, in order to counter the British argument that doctors might be prosecuted for

failing to treat enemy wounded with the same attention as their own nationals. Thus, a definition of war crimes, including the idea of grave ill-treatment, was on the table before the Working Group in 1948 created the idea of “grave breaches.” The second dispute occurred in the POW commission, where the government delegates and the ICRC clashed over whether accused war criminals, taken into custody by a detaining power, were entitled to receive the legal safeguards of trial,

and benefit from other rules specified in the POW Convention.® Real events formed the background to the debate. During the summer of 1946, the ICRC had received information that the U.S. authorities in occupied Germany were taking German POWs accused of war crimes, technically releasing them, and then immediately re-arresting them as civilians. According to a U.S. military order, German military personnel accused of war crimes or crimes against humanity would be treated as normal criminal prisoners. The ICRC, however, termed this move “fictional liberation” and claimed the U.S. was attempting to avoid treating the accused °” Art. 33 (new), in International Committee of the Red Cross, Report of the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva, April

14-26, 1947) (Geneva, 1947), 63. The Commission’s earlier version was similar but did not include the concept of “grave ill-treatment.” See Report of the Work of Commission I, Chapter VII, Art. 31, in International Committee of the Red Cross, Conférence des Experts Gouvernementaux. Genéve, 14-26

avril 1947, vol. 2 (Geneva, 1947), ICRC Library Code: 345.21/16 (ID). This volume contains typewritten reports of the three commissions. 68 See Summary Report of the Legal Sub-commission of the Second Commission, for the Study of Part HI, Section 5, Chap. 3 of the Convention (Art. 45-67), in Conférence des Experts Gouvernementaux. Geneve, 14—26 avril 1947, vol. 2: 2-14, ICRC Library Code: 345.21/16 (II).

246 The Birth of the New Justice as POWs under the Geneva Convention. It considered this “a violation of the convention, which intends a definite status in favor of prisoners of war until their effective liberation,” and planned to discuss the matter privately with U.S. authorities in Berlin. In April 1947, ICRC field delegate Pierre Colombo discussed the “transformation” of the status of Germans accused of war crimes with John H. E. Fried, a U.S. legal advisor to the Office of the Chief of Counsel for War Crimes.”° Fried (1905— 90) was a Jewish Austrian lawyer who fled his native country in 1938, obtained a Ph.D. at Columbia University in New York, and then helped prepare briefs and publications for the U.S. zonal trials.”’ In 1947, Colombo was apparently unable to persuade Fried or his superior to change their position on the POW issue. Later,

in June 1948, Colombo visited the U.S. military tribunals in Nuremberg and reported on the U.S. position. According to U.S. legal authorities, because Germany had completely capitulated to the Allies and given up its sovereignty, there was no longer a German army. The Allies, as the “receivers” of German sovereignty, had therefore decommissioned all German military personnel and could treat them as civilians.” This was still unsatisfactory to the ICRC, as it had been in 1946-47. At the Government Experts’ Conference in April 1947, around the same time Colombo was first discussing the issue with Fried, the experts from the U.S., Brit-

ain, France, and the Netherlands stated they did not want to fully extend the protections in the POW convention to accused war criminals, especially not past the time they were indicted. Instead, they were willing to state that they would be treated well (as befitting “civilized nations,” they said) and that the accused would be given basic legal rights, based on rules contained in the Nuremberg Charter. The ICRC, however, wanted the accused war criminals to receive the protections of the POW convention, even after he/she was indicted. As the Legal Division stated in the report on the Experts’ Conference, “The ICRC, while stressing its unequivocal condemnation of crimes against principles it is itself anxious to sateguard, has been taught by experience that the facts constituting war crimes can be more easily circumscribed than exactly defined. There is consequently a certain risk of arbitrary action, especially in cases where to be accused of such a crime is sufhcient to deprive a man of PW [prisoner of war] status, or where the expression ‘civilised nation’ is rather a matter of theory.’” ‘The statement again reflects the cautiousness of the ICRC towards criminal prosecution. Under the 1929 POW Convention, a prisoner accused of disciplinary infractions (not war crimes, which were not mentioned) had to be informed of the charges, given the right to defend © Note pour le Bureau, Concerne: Criminels de guerre, August 14, 1946, AICRC, G.7 [X-2.

” Procés verbal d’entretien between Colombo and Fried, April 3 and 5, 1947, p. 3, point 5, AICRC, G.7 IX. ”' Biographical note, John H. E. Fried Collection; AR 7262/MF 490/ME 485; Leo Baeck Institute, Center for Jewish History, New York. ” See Colombo’ report on his trip, “Tribunaux Militaires Américains pour les “Crimes de Guerre’ a Niiremberg,” June 29, 1948, 5-6, AICRC, G.7 IX. > International Committee of the Red Cross, Report of the Work of the Conference of Government Experts 205-6. for the Study of the Conventions for the Protection of War Victims (Geneva, April 14-26, 1947),

Revising the Geneva Conventions 247 himself (or herself), and had the right to a qualified defender and interpreter provided by the protecting power. Also, the prisoner could not be kept in a prison and had the right to receive medical care and send/receive mail. During the Experts’ Conference, the delegates recommended many changes that would lead to better treatment for POWs accused of disciplinary infractions. Moreover, the U.S. wanted to make sure the defendant’s counsel had sufficient time to prepare the defense.”* Yet the issue of the treatment of war criminals was not resolved. In the end, the penal provisions formulated by the Government Experts elicited criticism from different quarters because it left too many questions open. The U.S. Department of Justice said the new war crimes article in the Sick/Wounded Convention was “practically meaningless” because it did not define “wrongful deprivation of property” and said nothing about the exact penalties to be employed. The irony there was that the U.S. delegate at the Experts’ Conference, Alwyn Freeman, Assistant Legal Advisor to the U.S. State Department, had recommended the phrase “appropriate penalties.” The U.S. Department proposed instead that only the country representing the victim of the offense could prosecute the perpetrator, and the procedure and punishment should follow that country’s laws.” It was a traditional, state-sovereignty answer, but not one likely to satisfy the internationalists, who

would ask: what happens when the state representing the victim does not have custody of the accused? Further, what would ensure that penalties in one country were not too light (or too heavy) in comparison to another? Greece had not attended the Experts’ Conference, but the legal advisor to the Greek Red Cross, Michel Pesmazoglou, was concerned that war crimes trials held during a war would be treated as reprisals. At the Government Experts’ Conference, Mouton had stated

that trials could be held during or after a war, but he specifically meant international trials conducted by the Permanent Court of International Justice, which could create a special chamber. Pesmazoglou thought the whole question of war crimes needed a special report.”° The ICRC had made its position clear—accused war criminals should be treated as POWs, and any trial procedures used in the future had to be standardized. Yet the whole matter of penalties was still undecided. It is an open question whether the ICRC’s Legal Division had shown adequate leadership in the area. “In effect, nothing about the penalties, the Tribunal, or the procedure was determined, and these are the points that cannot be left to the arbitrariness of the belliger-

ents, Pilloud complained to the Legal Division in August 1947. “The issue of punishment of war crimes is currently a controversial subject, and even its definition is not clear.” Great confusion reigned over the question of procedure, he said. A number of partisans favored an international tribunal, while others wanted the state that complained of violations to have the exclusive right to punish. Also still hotly debated was 7 Summary Report of the Legal Sub-commission of the Second Commission, 12-14. > “Prisoners of War Committee. Comments of the Department of Justice concerning the Applicability to Civilian Internees of the Prisoners of War Convention,’ POWC D-2/1, attached to Clattenburg to Huber, April 29, 1947, ICRC Archives, CR. 240-10, doc. 377. 140 Pesmazogion to Président de la Croix Rouge francaise, August 30, 1947, ICRC Archives, CR.

248 The Birth of the New Justice whether trials had to wait until the end of hostilities. “All these questions are entirely open and the decisions that one should take on their subject are of an extremely general range. This is why the Legal Division would be happy to receive some general lines of direction on this subject and desires the start of a debate as broad as possible.”””

THE “IDEA PERIOD” AND THE ICRC’S FORMATION OF AN OVERALL POSITION The degree to which the Legal Division held a broad debate is unclear.’”* Instead, there were scattered inputs and situations in flux. After the Experts’ Conference,

the ICRC consulted with German legal experts who were living in occupied Germany and were not allowed to leave the Allied zones to travel to Geneva.” Each German submitted written comments on a different convention. Given that Germany had been totally defeated, and the legal experts had served the German cause in various ways, they faulted the conduct of the war on the nature of “total war, not the actions of their own military and government. A former legal advisor from the German Foreign Office, Dr. Conrad Roediger (1887-1973), claimed that the German view after World War One was that under the Hague Convention and the Tokyo Draft, deportations were not illegal under international law “to maintain public order and security of the population.”*” He neglected to mention that his government had deported populations for racial and demographic engineering and political persecution. He claimed that he was not involved personally in deportation decisions; whether or not that was true, he would certainly not have admitted it in a document to the ICRC. In the recent history of the Foreign Office,

commissioned by the German government, the authors report that Roediger penned a memo in November 1941 stating that coordinated anti-Jewish measures in Europe (discussed by the Bulgarian Foreign Minister and German Foreign Minister Joachim von Ribbentrop) were not advisable since this did not accord with customary state practice.*' In another opinion, from December 1941, Roediger urged the humane treatment of Jews in the General Government in Poland, on the basis of international customary law.** On the one hand, the Foreign Office in

1940-43 tried to assert its authority over Jews from Axis countries who were caught inside the Reich and occupied territories, fearing that anti-Jewish policies promoted by the Reich Security Main Office (RSHA) might lead to diplomatic ” Pilloud, “Documentation a intention des participants a la séance du 25 aotit 1947 a 14h30. Convention pour la protection des civils,” August 18, 1947, AICRC, CR. 240-12, Doc. 509. 8 | was unable to find records of one in the Legal Commission minutes, which have been archived separately, or in the Legal Division’s records, which are interspersed with the preparations for the Government Experts’ Conference and the Stockholm Conference. ” J. de Reynier, “Note a l’attention de Monsieur Pictet,” AICRC, CR. 240-11, Doc. 433. 8° Roediger Memorandum, August 9, 1947, AICRC, CR. 240-12, Doc. 509 bis, 32-3. 8! Eckart Conze et al., Das Amt und die Vergangenheit. Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik, 2nd edn (Munich: Karl Blessing Verlag, 2010), 292. ®° Conze, Das Amt und die Vergangenheit, 186.

Revising the Geneva Conventions 249 complications with the Nazis’ allies. From 1943 onwards, the RSHA gained the upper hand and refused Foreign Office requests that foreign Jews found in occupied Greece be returned to their home countries. On the other hand, the Foreign Office was completely informed about the “Final Solution” and senior officials participated in the Wannsee Conference.*? In his commentary to the ICRC, Roediger proposed that future laws of war should outlaw sea blockades, air raids on civilian cities, and the atomic bomb.** He

was also the only German expert who had anything to say about the new war crimes clause in the Sick/Wounded Convention. He only stated, “The inclusion of such a clause seems desirable. Certainly, adherence to the provisions of the Geneva Convention will depend more on the all-around attitude of nations toward the concept of humanity and the task of positive upbringing in this sense than on the threat of punishment.”®” While this did not deny the legitimacy of criminal prosecution, it cast doubt on its effectiveness as a deterrent. Whether or not better moral education in the future (which is what he seems to have meant by “positive upbringing”) could really counter the corrosive effects of Nazism (or any ideology based on sheer power and disrespect for law and custom) is debatable. In any case, his comments did not bring the ICRC any closer to resolving the war crimes issue. It should also be noted that his commentary was not solicited for that purpose, but for a general response to the Government Experts’ work. In October 1947, lawyer Jean Pictet, the ICRC’s Director-Delegate, informed

the ICRC Bureau and Legal Commission that he intended to rewrite the war crimes article in the Sick/Wounded Convention so it would include a definite obligation to punish.®° Since he was senior in rank to Pilloud, this may have represented an attempt by Pictet to get the ICRC on track with a more definite position. Pictet spoke of an “obligation” that each contracting state must search for people

accused of violating the convention and try them in their own courts, using their own laws, or send them to other signatory states. The violations would be considered war crimes. The obligation to punish made it stronger than the Government Experts version, though Pictet still conceived of punishment according to the domestic order. ICRC delegates also weighed in on the matter. In March 1948, Pierre Boissier wrote an analysis of the possible bases for future war crimes prosecutions. At the time, he was a delegate in France; this was at the start of his distinguished career as field delegate, hostage negotiator, and later ICRC official and research director. His memo drew from his involvement in some 2,000 French war crimes proceedings (by his own account). He noted that the problem with using military tribunals for

prosecutions was that militaries recognized the validity of following superior orders, and during the war, “the quasi totality of war crimes were committed under

8° Conze, Das Amt und die Vergangenheit, 185-92. * Roediger Memorandum, 28. ® Roediger Memorandum, 13. 8° Jean Pictet, “Note a Mlles et MM. les membres du Bureau et de la Commission juridique,” October 23, 1947, Art. 33, p. 5, AICRC, CR. 240-4.

250 The Birth of the New Justice the order of a legitimate superior.”*” That left national tribunals, which in liberated France and Belgium applied ex post facto laws. Boissier noted a problem: French collaborators were excused from obeying superior orders, while Germans could only plead superior orders as way to mitigate their sentences, with French courts showing little leniency. Boissier claimed he talked to almost all German defendants condemned to death, reporting that all but one viewed their sentences as victor’s vengeance, not as just sentences. He argued that future prosecutions should not be based on ex post facto law and should not be “unilateral” actions only based on national laws, which “the modern soldier, so mobile” could not know before invading a country.®® His solution was that penal provisions be added to the Geneva Conven-

tions. States would then implant them in their penal codes. He expected that national tribunals would handle prosecutions, since these conformed “to the needs of the investigation” and would have “a happy exemplary effect.” He additionally recommended creating an international court of appeals where condemned persons could challenge national courts,®’ an idea which the ICRC supported in 1948.”° Additionally, the ICRC negotiations with the U.S. authorities concerning their war crimes trials were continuing to unfold. A complex of motives was at play. After World War One, the ICRC had defined its mission as ensuring the humanitarian treatment of prisoners, not war crimes prosecutions. Yet [CRC intervention in the treatment of accused Germans also stemmed from ties between its senior

officials and the old Protestant elites of the German Foreign Office. Fried, the U.S. legal advisor, invited field delegate Colombo to visit Nuremberg and see the U.S. military tribunals in process. When Colombo visited in June 1948, he happened to catch a section of the “Ministries” case. Part of that case involved the trial of Ernst von Weizsacker, former State Secretary of the German Foreign Office,

accused of crimes against the peace, war crimes, and crimes against humanity. Weizsacker was a personal friend of Carl Burckhardt, the ICRC’s vice president during the war and then its president.”’ Burckhardt, a Swiss German political conservative like Huber,’ was involved in various “peace missions” in 1940-41 on behalf of German conservatives and claimed that Weizsacker was a “good German” who traveled in resistance circles.*? Burckhardt provided certain portions of his diary to the court but not other parts, and the Swiss government would not allow him to be cross-examined about this.?* Burckhardt’s claim that Weizsacker was innocent is doubtful. It was not accepted by two of the three Nuremberg judges 8” Pierre Boissier, “La Répression Conventionnelle des Crimes de Guerre,” March 23, 1948, p. 2, AICRC, G.7 [X-2. 88 Boissier, “La Répression Conventionnelle des Crimes de Guerre,” 4—5. ® Boissier, “La Répression Conventionnelle des Crimes de Guerre,” 6—7.

°° Répression des violations des Conventions humanitaires. Rapport du Comité international de la Croix-Rouge (sous point III de Pordre du jour de la Commission juridique), No. 20, June 1948, p. 5, point 5, AICRC, CRI. 25-10. *! T thank political scientist and Red Cross expert David P. Forsythe for alerting me to this angle. 92 Favez, The Red Cross and the Holocaust, 283—5.

°3 James Crossland, “A Man of Peaceable Intent: Burckhardt, the British and Red Cross Neutrality During the Second World War,” Historical Research 84, no. 223 (2011): 169-71.

** General Order on the Individual Motions by Defendants for Correction of Alleged Errors of Fact and Law in the Judgment, December 12, 1949, Trials of the War Criminals before the Nuerenberg

Revising the Geneva Conventions 251 who found him guilty of crimes against humanity for his failure to inform the government that the deportation of French Jews was against international law.” Those judges had also initially found him guilty of helping Germany achieve the dissolution of Czechoslovakia in 1938, but Weizsacker’s lawyer appealed the ruling, and the judges overturned their decision on the aggression charge. His conviction for crimes against humanity remained, though his sentence was reduced from seven to five years. Later the U.S. government commuted his sentence. To achieve that, his lawyer had organized a network of conservatives, including Burckhardt, to write letters on his behalf.”° Weizsacker became a symbol for Germany’s political

and bureaucratic elites seeking moral rehabilitation and continued influence in post-war West German foreign policy.” Colombo wrote that by an “extraordinary coincidence,” on the very day he visited the court, he heard testimony from Wilhelm Keppler, another Foreign Office defendant, who said that Weizsacker was allegedly the key person who influenced the Nazi government not to invade Switzerland and to abide by certain requests made by the ICRC. Surely this must have captivated Colombo and his superiors, since it dealt with the questions of Swiss neutrality and the influence of the ICRC,

but Colombo did not comment on whether he believed the testimony. Instead, what struck him was that witnesses’ detailed statements were most likely prepared in advance, and the judges only minimally intervened in the debates between the prosecutors and the defense.’® Colombo was well aware that German public opinion denounced the trials; he stated that the Americans “wanted to show us that the procedure applied is very liberal and that it grants all possibilities to the defense.” He also held extensive discussions with Fried about the U.S. decision not to extend POW status to alleged war criminals, trying to convince Fried that the Government Experts in 1947 had pledged that the accused should be entitled to protected status. Fried replied that this would only deal with future situations, since the 1929 POW Convention was still in effect.”

Piecing together these disparate fragments, one can make better sense of the central goals that the ICRC communicated to Red Cross delegations before the Stockholm Conference in August 1948. This was the group’s most comprehensive statement of its position to date, based on a set of principles, including “no violation

Military Tribunals under Control Council Law No. 10, Green series (Washington, D.C.: US Government Printing Office), 14: 956. *° General Order, December 12, 1949, Trials of the War Criminals before the Nuerenberg Military Tribunals, 14: 957-9. On this matter, as well as the Einsatzgruppen extermination reports that were sent to the Foreign Office, whose summaries were initialed by Weizsacker, see Conze et al., Das Amt, 396-7; Browning, The Origins of the Final Solution, 401-3. °° Norbert Frei, Adenauer’ Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Glub (New York: Columbia University Press, 2002), 133, n. 50. ” Frei, Adenauer’s Germany and the Nazi Past, 133-5. *8 ‘The adversarial system is not part of the European continental system, in which the judge plays a large role in asking questions and guiding the trial.

” Colombo mission report, “Tribunaux Militaires Américains pour les “Crimes de Guerre’ a Niiremberg,” June 29, 1948, AICRC, G.7 IX.

252 The Birth of the New Justice of the Conventions should remain unpunished.”'®° Regarding solutions, the ICRC stated that the conventions as a group should contain a set of penalty provisions that all contracting parties would implement in their penal codes. States should use “regular national tribunals” for prosecutions, applying standardized penalties. The proceedings should give the accused “the right to an equitable defense.” Persons wishing to appeal verdicts should have recourse to an international tribunal. The negotiators still needed to decide the extent that superior orders would limit or annul culpability.'°' Speaking concretely, the ICRC proposed several possibilities: states could create a new, special convention dealing with the repression of al/ infractions of the laws and customs of war (including the Hague and Geneva Conventions); the Fourth Hague Convention could be revised; each Geneva Convention could have its own special chapter on repression; or the Geneva Conventions

could have an annex that told states the provisions they should insert in their criminal codes. Whatever the solution, the ICRC did not want to be involved in prosecutions, reflecting its pre-World War Two position. “In effect, the principle goal of the ICRC is to come to the aid of war victims and ensure the full application of the humanitarian conventions, but it’s not for it to intervene in any way whatsoever so that the guilty will be punished.”'” The ICRC was willing to accept that criminal prosecutions would become an integral part of enforcement in the future, though it wanted no part of them in order to protect its image of neutrality, which had been compromised by its overly cautious dealings with Nazi Germany (and its weak position in dealing with Italian

violations during the Italo-Ethiopian War). Its Legal Division now supported national tribunals as the primary jurisdiction, so one could not argue that it was resistant to trials in the sense of the German conservatives who denigrated trials.'°° On the other hand, ICRC supported due process and standardized penalties, but this was not only due to humanitarianism or liberalism. Some of its senior officials and lawyers believed in 1948 that the Allies and liberated states had gone too far and had caught too many innocent people in their dragnet, and this created some basic skepticism about the legitimacy of prosecution. This is supported by the fact that Huber in 1945 had stated that the ICRC’s role was to “mediate the conflict” of trials, Colombo in 1947-48 disagreed with the U.S. decision to hold accused German war criminals as normal prisoners (despite seeing that the accused in the Ministries trial were afforded a robust right to self-defense), and, perhaps, that Pilloud had not been as assertive as he could have been in defining a new system for criminal prosecution for the Geneva Conventions (which then led to Pictet stepping in). '©° Répression des violations des Conventions humanitaires. Rapport du Comité international de la Croix-Rouge (sous point III de Pordre du jour de la Commission juridique), No. 20, June 1948, p. 2, point 4, AICRC, CRI. 25-10. '°! Répression des violations des Conventions humanitaires, Rapport du Comité international, No. 20, June 1948, 5-6, AICRC, CRI. 25-10. ' Répression des violations des Conventions humanitaires, Rapport du Comité international, No. 20, June 1948, 5, AICRC, CRI. 25-10. '3 Dirk Poppmann, “The Trials of Robert Kempner. From Stateless Immigrant to Prosecutor of the Foreign Office,” in Kim C. Priemel and Alexa Stiller, eds., Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (New York: Berghahn Books, 2012), 39-42.

Revising the Geneva Conventions 253 Yet one should also take into account other international and national uncertainties. In theory it might have been possible to create a future international criminal tribunal (the ICRC only supported one as an appellate body), but in mid-1948, this project was on a shaky footing. The Government Experts had been strongly divided on this question, and the UN was in the early stages of debating the creation of a permanent international criminal court. Furthermore, British and West German conservative reaction to war crimes trials was erowing, leading to an eventual end to British trials and an amnesty law in the Federal Republic in 1949. France, meanwhile, had passed a law in September 1948 stating that individuals who had belonged to certain Nazi organizations would be deemed criminals unless they could produce proof that they had been pressured into joining.'™ In the fall of 1948, therefore, the debate over war crimes trials (as legitimate or as politically biased) not only shaped post-war national identity and the politics of successor governments, but also the construction of the future laws of war. There was more to the mix than cosmopolitan legalism versus conservative nationalism, as different interest groups in the process—large victor states, small liberated states, pro-international criminal court lawyers, and the [CRC—propelled distinct agendas: the power of the sovereign state; the legitimacy of prosecution; a need to protect against arbitrary judgment; and humanitarian diplomacy.

THE STOCKHOLM CONFERENCE: NEW PROHIBITIONS, BUT REPRESSION LEFT UNDECIDED The Stockholm Conference in August 1948, attended by Red Cross delegations (whose members included government advisors and military officers), was convened to produce complete drafts of the new and revised conventions, which might later be submitted to a formal Diplomatic Conference. (The distinction is that under the international system, sovereign states, not Red Cross societies, have to negotiate and sign the final conventions.) Stockholm saw advances in many areas, especially in producing a complete draft of a Civilian Convention and exploring the idea that civilians caught in a non-international military conflict should also be protected against torture, discrimination, intimidation, reprisals, and deportations.'°? However, the delegates did not arrive at a comprehensive approach to penalties stretching across the four conventions, nor did they settle the controversial questions about international tribunals and superior orders. ‘There was one point of acceptance: they agreed with Pictet’s idea that a High Contracting Party was obligated to search for persons, regardless of their nationality, who had allegedly committed breaches of the convention. Yet they tilted the table toward state sovereignty by adding that this obligation was “in accordance with its own laws or with '4 Frei, Adenauer’s Germany, 137, n. 61. 109 XVIIth International Red Cross Conference [Stockholm]. Legal Commission. Summary of the debates

of the Sub-commissions, August 1948, AICRC, CRI. 25-39 bis. See the decisions of the Third Subcom-

mission on Arts. 3, 25, 30-31, and 45.

254 The Birth of the New Justice the conventions prohibiting acts that may be considered as war crimes.”!”° Nor did they determine the precise definition of war crimes. The ICRC’s draft article for the Stockholm delegates did not define them. The last attempt had been the Government Experts in 1947. This was understandable because at Stockholm there was a great upwelling of new demands that civilians must be comprehensively protected against unchecked military violence, as well as new protections for POWs. The delegates expended their energies in these areas, working to ensure that the extreme forms of criminal Axis policies would be prohibited in the revised conventions. For example, the

subcommission dealing with the POW convention added a new provision prohibiting physical mutilation or any medical or scientific experiments on POWs. It also decided that a detaining power could not use physical or moral torture, “nor any other form of coercion.”'*” The subcommission working on the new civilian convention agreed that collective penalties, reprisals, and seizure of civilians’ private property by an occupier would be illegal.'°* In the area of penal measures, the subcommission’s main contribution was to establish the rules that an occupier must follow when interning the civilian population and prosecuting individuals for violating curfews or engaging in sabotage. The rules governing penal measures were designed to place limits on the occupier’s power and ensure that the civilian population could not be prosecuted for their “actions or opinions” before the occupation.'” ‘They were also meant to ensure that the accused had a right to a fair trial, which was spelled out in detail. However, the U.S. delegation in particular did not want its hands tied when dealing with “security threats.”'!° This contributed to two important rules that gave the occupying power huge latitude to protect its forces.''' The occupying power could confine a person to an assigned residence or intern him/her without charging the person with anything. Additionally, after an occupation ends, internment must end as soon as possible. However, an interned person held on criminal charges can remain confined until the end of the proceedings.''” These discussions about trials, defendants rights, and internment as a security measure were not about war crimes trials: they dealt again with civilian infractions against an occupier. In the immediate post-World War Two era, the notion of trials did not immediately conjure up fair proceedings against vicious war criminals. For smaller states that had been

106 XVIle Conférence Internationale de la Croix-Rouge (Stockholm, aout 1948). Commission Juridique. Sténogramme des séances, 87-92, AICRC, CRI. 25-39 bis. '7 XVIIth International Red Cross Conference [Stockholm]. Legal Commission. Summary of the debates of the Sub-commissions, Minutes of the Second Subcommission, Arts. 12 and 15, pp. 27-8.

'8 See n. 105. 109 Minutes of the Second Subcommission, Art. 60. "1° See Clattenburg’s objection to Art. 55, Minutes of the Second Subcommission. "1! Draper, The Red Cross Conventions, 29, addresses this severe weakness in the convention. He notes that if a person is a “supporter of or engaged in activities hostile to the state,” the person can be held incommunicado without ever being brought to trial. "2 XVIIth International Red Cross Conference (Stockholm, August 1948). Draft Revised or New Conventions for the Protection of War Victims (No. 4a), Geneva, 1948. See the revised Civilian Convention, Arts. 67, 68, and 122.

Revising the Geneva Conventions 255 occupied, they could also mean tools of repression, and this influenced the general mood that there should be limits. Returning to war crimes specifically, the Stockholm delegates were again hung up on the question of tribunals, just as the Government Experts were in 1947. The full Judicial Commission redefined the punishment provision in Art. 40 in the Wounded/Sick Convention, dropping the Government Experts’ definition of war crimes. The commission came out in favor of repression through national courts which would apply a state’s own laws. A signatory would also have the option of sending the accused to another signatory to stand trial. The text came from the U.S. delegation, which proposed that a High Contracting Party had an obligation to search for people who had committed acts against the convention, regardless of their nationality. Thus, the domain would be defined by the national laws of the country that arrested the person; this would determine whether an act was really a crime. There were two attempts to modify this position of strong state sovereignty. One

came from Mouton, who again urged international tribunals as an option. ‘This would overcome the legal problem of states whose laws forbid the extradition of its nationals. In a very close vote (12-10), his proposal failed, showing the nearly even split between those supporting international jurisdiction and those exclusively supporting national jurisdiction. Pesmazoglou, the legal advisor to the Greek Red Cross, wanted to give states the option to extradite a suspect to a “state competent to judge”—which would allow states other than those who had signed the conventions to prosecute. This too was defeated 10-9. That left the U.S. proposal for national jurisdictions, which was adopted.'" Still, this article (which was only for the POW convention) and other penalty articles in the other conventions did not define the acts requiring prosecution, and they said nothing about the defense of superior orders. There was still a great deal to be determined. Besides the legal—political differences that split the delegations, there had been little time in Stockholm to deal with criminal repression. The conference’s working method made it difficult to find a solution, because different commissions worked on separate conventions, while other committees were charged with general redrafting and coordination. According to the Swiss government’s confidential report on

the Stockholm Conference, the POW subcommission removed any reference to “acts which will be defined as war crimes” and decided that this would be taken up by the Legal Commission when it worked on articles common to all four conventions. That was to be left for the Diplomatic Conference.''* Furthermore, Stockholm was heading toward a solution on criminal repression that did not look particularly radical. The Swiss Federal Political Department, for example, told its delegates that the definition of violations as “war crimes,” the use of national 3 XVIIe Conférence Internationale de la Croix-Rouge (Stockholm, aout 1948). Commission Juridique. Sténogramme des séances, 87-92, AICRC, CRI. 25-39 bis.

''4 Haller, du Pasquier, and Meuli, “Rapport au Conseil fédéral de la délégation gouvernementale

suisse a la XVIIe Conférence internationale de la Croix-Rouge. Stockholm 20-30 aoit 1948,” September 17, 1948, Doc. B.65.101.9.01.-ZA, Swiss Federal Archive (Berne), E4001C#1000/783, BD: 235, Folder: 501 Allgemeines.

256 The Birth of the New Justice tribunals, and the possibility of extradition were not “considerable innovation|[s].” “Tt will be necessary to avoid that the reference to war crimes does not allow this provision to be used for political ends,” the department advised.'” The main neutral power that provided a home for the ICRC, which could only remain neutral in a war when the Swiss government was neutral, was comfortable with national tribunals, as more than half the delegations were. For some of the ICRC’s field delegates, however, the treatment of alleged war criminals remained a POW issue. ‘This could sometimes lead to morally and politically questionable decisions, especially when a field delegate failed to remain fully neutral and allowed himself to be persuaded by parties with an axe to grind. A case in point is the ICRC interventions on behalf of the notorious German field marshals, Erich von Manstein, Walter von Brauchitsch, and Gerd von Rundstedt. The reality was that these men had issued criminal orders to their troops on the Eastern

front, including instructions to execute Soviet political officers, partisans, and Jews,''® and they had also helped organize the transportation and provisions for the

mobile killing squads in the occupied Soviet Union. Not all of this was widely known to the British or the U.S. in 1945, but after the U.S. military tribunal’s Einsatzgruppen trial (September 1947 to April 1948), it was. Britain had held the generals since 1945 but a series of political and legal complications had prevented the authorities from charging them.'’” British newspapers during the summer/fall of 1948 published letters from conservative British intellectuals and writers who disseminated the incorrect view that the German army had fought a “clean war.” They further alleged that the British were violating the Geneva Conventions by treating the generals severely and denying them medical care,''* which was not true

either. Von Manstein and the spouses of all three generals contacted Frederick Bieri, the [CRC’s chief delegate in London, complaining that the men were constantly under supervision and were not allowed family visits. They asked him to intervene. Bieri began pressing the British government about whether the men were POWs or war criminals, then reported to Geneva that the British treated them as “frozen war criminals.”''? The ICRC, influenced by Bieri, sent a delegate, G. Hoffman, to visit the generals in Munsterlager on August 25, 1948. Hoffman reported that while their treatment did not conform to the general practices that

9 Département Politique Fédéral, “Rapport au Conseil fédéral de la délégation quil a nommée pour le représenter 4 la XVI le Conférence internationale de la Croix-Rouge qui aura lieu a Stockholm du 20 au 30 aotit 1948,” July 13, 1948, Doc. B.65.101.9.01.-KL, ibid. "6 Omer Bartov, Germany’s War and the Holocaust (Ithaca: Cornell University Press, 2003), 5—6. "7 On the case, its delays, and the British intellectuals and politicians who maintained that these generals were “heroes” protecting European Christian civilization against Bolshevism, see Bloxham, Genocide on Trial, 41-9, 156-81. ‘The generals were not formally charged until 1949. Only von Manstein was eventually tried, as von Brauchitsch died and von Rundstedt, along with another colonelgeneral added to the group, was set free on medical grounds. 18 See the newspaper letters, including Liddell Hart’s letter to the London Times, alleging Geneva violations, in AICRC, G. 7/Cr.G., Cas particuliers. Allemagne. 1945-1950. Brauchitsch, von Manstein. Hereafter AICRC, G.7/Cr.G., Brauchitsch, von Manstein.

'? Bieri to ICRC, August 20, 1948, AICRC, G.7/Cr.G., Brauchitsch, von Manstein. See also the letters from von Manstein (July 29, 1948) and from the spouses in the file.

Revising the Geneva Conventions 257 should be followed for POWs, he found the medical facilities were excellent. He convinced the commanding British officer to end twenty-four hour guard supervision (which was for suicide watch) and grant family visits to the prisoners.'”° The ICRC sent Bieri a summary of what Hoffman had found,'*’ but Captain Basil Liddell Hart, the British military author who had started the press campaign in favor of the generals in June, was lobbying Bieri. He urged him to convince the ICRC to “make a public statement, expressing its opinion on the whole affair.” Swayed by Hart, Bieri asked Geneva to investigate the possibility that the generals were victims of “mental torture.” “The population is ‘fed-up’ with War Criminal trials,” Bieri claimed with great exaggeration, “and one and all condemn the change of status [from prisoners of war to civilians] of the General Field Marshals after so many years of captivity.”'’? As for what the ICRC actually knew about the generals’ criminal activities, the ICRC received a report from the Swiss Jewish Press Office on August 16, 1949, outlining von Manstein’s crimes and challenging the myth that the German army was not involved in Einsatzgruppen operations.'”? Even if the ICRC had no knowledge of this in 1948, its priorities were clear: more emphasis on the condition of the accused than on the need to bring the accused before a court and have them answer the charges. Still, the ICRC did not help the generals’ defense lawyers, refusing to provide exculpatory information. The ICRC even refused to tell them what had occurred at the final Diplomatic Conference in 1949.'*4

THE WORKING GROUP: MOUTON, PHILLIMORE, LAUTERPACHT, AND GRAVEN In the fall of 1948, the ICRC was dissatisfied with the fact that the Stockholm delegates had not settled the debate about the type of tribunals, addressed superior orders, and definitively stated whether accused war criminals were entitled to the judicial procedures outlined in the POW convention. It took matters into its own hands by selecting four jurists—Mouton, Phillimore, Lauterpacht, and

Graven—and invited them to Geneva for a set of meetings to hammer out common provisions for the four conventions.'*”? Mouton was a natural choice

0 Hoffman, “Rapport sur la situation des maréchaux allemands von Brauchitsch, von Mannheim [sic], von Rundstedt et Generaloberst Strauss 4 Munsterlager,” September 20, 1948, AICRC, G.7/ Cr.G., Brauchitsch, von Manstein. 1 Colombo, Note pour la Délégation du C.I.C.R. 4 Londres, No. 9656, September 10, 1948, AICRC, G.7/Cr.G., Brauchitsch, von Manstein. ' C.LC.R. London delegation (Bieri) to C.I-C.R. Geneva, “German Generals in Munsterlager,” Airmail letter No. 12578, September 1, 1948, AICRC, G.7/Cr.G., Brauchitsch, von Manstein. 3 TUNA, “Die Mitschuld der deutschen Wehrmacht an den Kriegsverbrechen,” No. 49/5, August 16, 1949, AICRC, G.7/Cr.G., Brauchitsch, von Manstein. 4 Laternser to ICRC, August 16, 1949; Ohle to de Weck, August 31, 1949; Colombo to Ohle, September 29, 1949; Colombo to Laternser, September 29, 1949, AICRC, G.7/Cr.G., Brauchitsch, von Manstein. 5 Pilloud only asked Britain for its permission to send its jurists: Gardner agreed as long as they acted in their capacity as private persons. (See the correspondence in AICRC, CR. 238-6.) Pilloud

258 The Birth of the New Justice because he supported universal and international jurisdiction at both the Government Experts’ Conference in 1947 and the Stockholm Conference in 1948: he knew the issues and previous debates, which actually was not typical of all delegations.'*° Phillimore had also been a delegate at both previous conferences. He had

been Secretary to the British War Crimes Executive at Nuremberg and had watched his co-prosecutors wrestle with the legal difficulties of trying to prove that senior military commanders had issued criminal orders.'’’” Phillimore’s main interest was that accused persons have full rights to conduct their defense. As he told the ICRC President in January 1949, he was confident that war trials would be “inevitable in the future in view of events since 1945,” but that the Geneva Conventions needed a provision to ensure a fair defense. Otherwise, “the Conventions will be used as an instrument of oppression and if trials that are an abuse of judicial procedure are held, particularly in war-time, the treatment of Prisoners of War and others in enemy hands cannot fail to be adversely aftected.”!’* In other words, unfair trials might inspire the enemy to use reprisals. Lauterpacht was an interesting choice, first because he was an expert in international public law who had branched out into numerous other projects. Besides writing a major treatise that stated that an international legal court could solve any problem put to it, he had helped the World Jewish Congress get the United Nations War Crimes Commission to pay attention to anti-Jewish crimes. He had written an international bill of rights and advocated a human rights declaration at the UN, and he had written on the validity of war crimes prosecution based on international law, arguing that superior orders was an invalid defense because acting in the name of the state did not annul personal responsibility.!”” He also happened to be Jewish (his family was murdered by the Nazis in Galicia), and there were not many nonChristian lawyers who were involved in Red Cross projects at the time: they were

most usually Protestant. The matter of individual criminal liability under international law was therefore personal for him, as it was for Lemkin, whose family was also murdered in Poland.

must have done this because he knew Britain was opposed to adding criminal repression to the conventions. One might speculate that Gardner allowed them to attend so that Britain would still have some cooks in the kitchen, even though he must have known how different their views were from those of the War Office.

'26 Pilloud commented in his confidential report about the Diplomatic Conference that very few delegations were well prepared or understood the fundamental problems. See “Conférence Diplomatique. Rapport Spécial Etabli par M. C.- Pilloud,” September 16, 1949, AICRC, CR. 254-1, Doc. 1 bis, 4-5. Hereafter “Rapport Spécial.”

7 He got this experience working on the case against the German Admiral, Karl Doenitz. The problem was that Doenitz ordered U-boats not to take prisoners, which was legal under international law if the U-boats were threatened. The challenge was to prove that U-boat commanders interpreted his order as a command to gun down ship-wrecked survivors. See Ann Tusa and John Tusa, The Nuremberg Trial (London: Macmillan London, 1983), 349-61. 8 Phillimore to Ruegger, January 14, 1949, AICRC, CR. 238-6.

9 Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Oxford University Press, 1933); Lauterpacht, “The Law of Nations and the Punishment of War Crimes,” 58-95; Martti Koskenniemi, “Hersch Lauterpacht and the Development of International Criminal Law,” Journal of International Criminal Justice 2 (2004): 810-25.

Revising the Geneva Conventions 259 Graven was actually the ICRC’s second choice: originally it wanted the Swiss judge Paul Logoz, who was otherwise occupied. What was most interesting was not that the Legal Division wanted a Swiss—this was part of the ICRC’s own Swiss culture, ties to the Swiss government, and reliance on a network of Swiss jurists—but that Graven was the Secretary of the Association Internationale de Droit Pénal and frequently corresponded with Pella, the Romanian catalyst for an international criminal court since the 1920s. Graven’s involvement created a very brief intersection between the Red Cross project and the line pursued by the criminological jurists and their pursuit of a permanent international criminal court. For Graven, the International Military Tribunal at Nuremberg represented an absolute revolution in international criminal law that proved that establishing a court was viable, as well as transformed the international legal order by proving that “might was not right” and political leaders could be held responsible for wars of aggression.'*° Additionally, by late 1948, he had watched the development of the Genocide Convention and believed that politics, as the arch nemesis of law, had worked against making an international criminal court the primary jurisdiction in that convention.!!

This group did not start from scratch. The ICRC’s Legal Division set the parameters for the group’s discussion, informed the group of its preferences, and provided a brief legal history of what had been tried before. Pilloud sent the group a document that outlined the same principles and goals that the ICRC had provided to delegates at the start of the Stockholm Conference: criminal repression for all four conventions; the right of the accused to have an equitable defense; an

obligation for states to seek out and prosecute; primary jurisdiction through national tribunals, with a possible international tribunal for appeals cases. Pilloud then stated the ICRC’s preferences: the penalties must be the same for nationals

and non-nationals; the accused should be protected by the provisions dealing with trials in the POW convention; each convention should have an annex that established the model legislation that every state would insert into its penal code; and the new draft articles should determine the responsibility of persons who acted under superior orders. The ICRC had not taken a position on that issue.'*” The Legal Division also gave the group a historical overview of approaches to penal legislation in the past, covering Moynier’s attempt to create model legislation and the 1906 attempt to require states to add criminal repression to their laws. The document also summarized a few different schools of thought in the 1940s about war crimes, contrasting Huber, Lauterpacht, and de Vabres’ views on

whether the definition of war crimes was set by military codes or international law. One last problem was that in post-World War Two Europe, British, French, '39 Jean Graven, “Le Chatiment des crimes de guerre,” Revue Universitaire (Genéve) 31 (1947): 166-71. OT Jean Graven, Les lecons a tirer des projets détablissement d'une cour criminelle internationale, unpublished manuscript, 1968, p. 40, Archives de l’Etat du Valais (Sion, Switzerland), CH AEV, Jean Graven, 20. 'S2 Pilloud, “Notice. La répression des violations des Conventions humanitaires,’ November 30, 1948, AICRC, CR. 238-6.

260 The Birth of the New Justice and Belgian laws dealing with war crimes varied from each other.'* The historical overview was supposed to provide the working group with a capsule explanation

about what had been tried in the past and how international concepts might be transferred to domestic legal systems. The ICRC wanted the penal provisions in the Geneva Conventions to set international standards that states would implement in their own legislation, ideally with standardized language and equivalent punishments. The international would serve as a bridge to the national. ‘The over-

all system would synthesize the old and new justice because it would privilege state jurisdictions, offer liberal guarantees to the accused, create an obligation to seek out and prosecute violators, and legitimize criminal liability for violations of the Geneva Convention. The Working Group met from December 20 to 22, 1948, with Huber moderating. Pilloud thought the discussion was “animated, very frank and even sometimes quite divergent opinions manifested themselves, but finally the texts were fixed, on the whole, on unanimity.”!** Graven commented that his fellow jurists were “excellent and sympathetic,” and was very pleased with the collaboration.'* The results of the group’s work exist in various forms. The ICRC archives contain four sets of

four penal provisions in French, documenting the new approach to criminal enforcement. These include English translations produced by Phillimore and Lau-

terpacht, and a French and English text, which the ICRC then distributed in February, prior to the Diplomatic Conference.'*° The group created a more universalist, internationalist framework than any prior conference commissions had created. These jurists already had strong tendencies to support international formulae for different types of legal problems, though they arrived at those positions through different routes—Mouton through international customary law and his view that previous conventions and declara-

tions had already advanced the concept of universal jurisdiction; Lauterpacht through his cosmopolitan view that international law formed a complete legal system, of which individual responsibility was a critical part; Graven’s view that international criminal law should form a universal basis for national penal codes; '3 JW (Legal Division), “Note. Quelques faits et quelques textes relatifs 4 la répression des infractions aux Conventions humanitaires et au droit de la guerre en général,” December 14, 1948, AICRC, CR. 238-6. 34 Pilloud to Gardner, December 28, 1948, AICRC, CR. 238-6. 55 Graven to ICRC, December 30, 1948, AICRC, CR. 238-6. '86 See Phillimore to Pictet, January 20, 1949, which contains Phillimore’s English translations; Lauterpacht’s translations and memo; and the English and French articles that Pilloud sent to Gardner on February 3, 1949, all in AICRC, CR. 238-6. ‘The texts were then published in Remarks and Proposals Submitted by the International Committee of the Red Cross. Document for the Consideration of Govern-

ments invited by the Swiss Federal Council to attend the Diplomatic Conference at Geneva (April 21, 1949) (Geneva, 1949), 18-22. The English versions include Lauterpacht’s translation from the original French (plus his comments), and Phillimore’s comments and translation, which has a few differ-

ences from Lauterpacht’s. Lauterpacht noted that his translation contained some “small changes of substance.” He cut a reference to the prosecution having to prove the accused knew he/she had committed a grave breach and also removed language stating that the High Contracting Party would not prosecute the accused under an extraordinary jurisdiction, regardless of his nationality. Phillimore did not agree with these changes because he thought they deviated from what the group as a whole had decided. His English version kept the original language, and the ICRC followed this.

Revising the Geneva Conventions 261 and Phillimore’s Nuremberg experience, stressing fair trial for the accused. Their group wrote four new penal articles that essentially said: (1) High Contracting Par-

ties will bring their penal codes up to date so that violations of the convention (called breaches in English) are prosecuted. They were supposed to report back to the Swiss government, which kept all the records about the signatories to the convention, that they had done this in two years. (2) They were supposed to punish a more severe class of violation, called “grave breaches,” which were termed “crimes against the law of nations.” The grave breaches were defined: “death, great human suffering, or serious injury to body or health, those which constitute a grave denial of personal liberty or a derogation from the dignity due to the person or involving extensive destruction of property, also breaches which by reason of their nature or persistence show a deliberate disregard of this Convention.” States were to use either their own tribunals or an international jurisdiction that they all recognized as valid. They were also supposed to change their national laws to allow the extradition of persons who were accused of these grave breaches; the state was obligated to extradite if it decided not to prosecute. (3) A court could not exonerate a defendant because the person claimed to have been following orders. However, the prosecutors would have to prove that the defendant knew at the time of committing

the act that he/she was violating the conventions. In that case, the defense of superior orders could only mitigate the sentence. A person who was a state official had full individual responsibility for his/her actions; no longer could the person be exonerated for acting in the interests of the state or according to the state’s laws. (4) The High Contracting Parties would ensure that the defendant was granted the right to a fair trial, a fair defense, and a right of appeal. The same would apply if the person were tried before an international jurisdiction. Additionally, the punishment had to be analogous to that used for a High Contracting Party’s own nationals.!%” This proposed system was a synthesis of the old and new justice, merging legal ideas from both the nineteenth century and the post-World War One period. On the side of the old justice, it defined the crimes in advance, overcoming the problems raised by critics of the Versailles Treaty’s penalty clauses and the Nuremberg Charter. It gave states the power to use their own tribunals first, which is what at

least half the states at previous Red Cross conferences in 1947 and 1948 had favored, and which the ICRC wanted. This usage followed existing state practice

after World War Two. The system provided for rights for the accused, which Huber, Pilloud, and Boissier of the ICRC had strongly urged. It also specified that states would be required to craft penal legislation necessary to transform the inter-

national laws into national laws and practices. Certain previous conventions merely urged signatories to propose new penal laws, but they did not have to implement them, and the 1929 POW Convention was silent on this matter altogether.'** The new intention was that states would be required to change their penal

'57 Here I have tried to put in non-legal legal language Articles 39, 40, 40 bis, and 40 ter, as the Working Group’s articles were designated. '88 ‘The Wounded/Sick Convention of 1929 (Art. 29) stated that signatories should propose means

of repressing violations to their legislatures. The Maritime Convention of 1907 (Art. 21) stated that

262 The Birth of the New Justice codes to punish grave breaches committed against all the classes of “protected persons’: sick/wounded soldiers and mariners, the shipwrecked, POWs, and civilians during invasion and occupation. On the side of the new justice, this system supported universal jurisdiction. Many jurists had pursued this for a variety of crimes since the 1920s—Descamps for “crimes against the international order,” Pella for “violations of international peace and security,” and Lemkin for “crimes of barbarity and vandalism.” The new provisions told states they had a new duty: either prosecute the suspects or extradite them, the same concept that Pella had sought in the anti-terrorism convention and Lemkin had sought in the Genocide Convention. The Working Group’s clauses stated that individuals would be held criminally liable for violations of the conventions. Jurists going back to Moynier in the nineteenth

century had tried to accomplish this for the Geneva Conventions, but they had always run into obstacles. Finally, it ruled out superior orders as a defense that could exonerate a defendant. ‘This would have taken a key idea from the Nuremberg Charter and placed it in a codified body of international law for the first time: the ideas of “raison d état” and “military obedience” would have been sharply curtailed.

THE CANCELLATION OF THE WORKING GROUP’S CLAUSES AND THE FINAL RESULT AT THE DIPLOMATIC CONFERENCE Due to a series of secret negotiations, this system did not survive. However, the synthesis of the old and new justice did. Best argues that between the time when the Working Group finished these provisions and the final Diplomatic Conference starting in April 1949, three key parts were excised: legal language defining the grave breaches as “crimes against the law of nations;” reference to an international jurisdiction; and the clauses eliminating superior orders as a defense. Best wonders who was responsible for this “drastic surgery. Whose hands were upon the knife, and why, awaits discovery.’'°? He names Britain as the likely candidate, based on a confidential report by Colonel W. R. Hodgson of the Australian delegation, and the fact that when Mouton introduced a new version of the penal sanctions at the final Diplomatic Conference, he referred to “British assistance” in the matter.'*° British involvement is entirely credible, since Gardner of the British War Office made it perfectly clear to Pilloud that Britain opposed including criminal enforcesignatories would “undertake to enact or propose” measures to check “individual acts of pillage and mistreatment” of the sick and wounded and prevent the misuse of the Red Cross emblem. There was no absolute requirement that they actually pass the laws or actively follow them. 'S9 Best, War and Law Since 1945, 162-3, including n. 79. 40 Tn fact, when Mouton presented the report of a Special Committee (under the Joint Committee) that worked on penal sanctions, he very diplomatically acknowledged the British delegation, “whom we have found a great help and support in drawing up this Report,” which retained the idea that state signatories were obligated to seek out and prosecute violators. See Conférence Diplomatique 1949. Sténogrammes de la Commission mixte. July 16, 1949, p. 14, IRCR Library, Geneva, Code: 345.21/ 11-1. Hereafter Sténogrammes de la Commission mixte. I cite the bold page numbers in the upper right.

Revising the Geneva Conventions 263 ment in any way. He told Pilloud on January 27, 1949 that he had seen Phillimore and Lauterpacht’s comments on the draft articles. “I hope that the final proposals, in French and in English, will reach us very soon so that we may have time to give them the consideration they deserve before the Diplomatic Conference meets. As you know the United Kingdom would be most reluctant to agree to any reference to sanctions in the new Geneva Conventions; and if we are to come to the Diplomatic Conference to discuss any such proposals we must have them in their final form within the next week or so.”"! Although Best identified the British government as one of the surgeons, there were other actors who wanted to return to national jurisdictions. The ICRC was willing to drop parts of the Working Group’s scheme. The U.S. delegation wanted to return to the type of system it had proposed in 1947, reflecting its post-war policies. Some delegations believed the punishment provisions would interfere with codifying the Nuremberg principles. The Soviet bloc also challenged the U.S. and France on several points. Prior to the final Diplomatic Conference, there were signs that the ICRC did

not take the Working Group’s system as an “all or nothing proposition.” At a meeting of the ICRC’s Legal Commission on February 17, 1949, Huber wanted to expand the reach of the criminal provisions so they would also apply to “violations of other conventions directed toward the protection of the human person and humanitarian interests in times of war...as well as violations of the rules of the law of nations.” Pictet, however, recommended against it because he thought it would have provided a legal basis for a trial of the U.S. aviators who bombed Tokyo. He also told the Commission, “It is fitting not to forget that the British

government formally requested that any question that was not written in the meeting agenda should be excluded from consideration at the conference.” The group decided not to include Huber’s “trial balloon” in its proposals. Still, it decided to stick to one of its key positions, legal guarantees for the accused.’ The ICRC did not want to venture too far with criminal repression at the risk of alienating the U.S. and Britain. A set of revised conventions without the support of two major World War Two victors would hardly set a stirring example for other powers and ensure a major ICRC goal: the establishment of a Civilian Convention. There were other hints that the ICRC was willing to drop certain parts of the “grave breaches” provisions as long as guarantees for defendants remained. On January 27, 1949, Pilloud told Gardner that he had “certain hesitations on this subject.”!*° Then, on April 1, 1949, Pilloud told Graven, “We [the ICRC] vigorously

desire that the four elaborated articles will be accepted without change by the Diplomatic Conference, but it might be necessary to ‘jeter du lest.’”'** The phrase

4) Gardner to Pilloud, January 27, 1949, AICRC, CR. 238-6. “Legal Commission Minutes, Séance du vendredi 17 février 1949. No. 27, Procés-Verbaux de la Commission juridique et documentation relative. Vol. 1, AICRC, A PV Jur. 1. CR. 211.

3 Pilloud to Gardner, February 3, 1949, AICRC, CR. 238-8, Doc. 362 bis. “4 Pilloud to Graven, April 1, 1949, AICRC, CR. 238-6, 208 bis.

264 The Birth of the New Justice literally means “to throw out the ballast;” metaphorically, it means making concessions to obtain something more important. In this case, the ballast that had to be tossed overboard was the heaviest controversies—the reference to an international jurisdiction and superior orders—in order to retain universal jurisdiction and legal safeguards. The ICRC had already publicly signaled its willingness to eliminate a direct reference to an international criminal court in its Remarks and Proposals issued in February 1949, noting that the creation of such a court was pending. Indeed, on December 9, 1948, the UN General Assembly had instructed jurists on the International Law Commission “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions.”!* The ICRC opted for a more conservative route. Instead of even mentioning the option of an international criminal court, the ICRC preferred “to rely upon the joint responsibility of all signatory States for the repression of crimes against the law of nations. ‘The guilty persons would thus be subject to various jurisdictions and have less chance of escaping punishment.”'*° The position indicated the group’s political pragmatism, as well as the fact that it was not in the forefront of developing the ideas of international criminal law. The ICRC’s main priorities remained based on its historical mission to protect prisoners of war (viewing the accused war criminals in this way) and its concerns about irregularities in post-war national tribunals. In Pictet’s confidential notes outlining the ICRC’s negotiating positions for the Final Conference, he stated that his main concern was that interned civilians should enjoy legal safeguards if they were charged with infractions: a detained person should not be prosecuted for an act committed before the law was promulgated; the punishment had to be proportional to the crime; and civilians had to be tried by non-political tribunals sitting in occupation territory.'*” While he did not mention war criminals and did not discuss the “grave breaches” provisions, he wanted the ICRC to press for a six-month time limit

for holding any civilian who was being prosecuted for a crime. Pictet was again afraid that belligerents would abuse their power in using trials unless the defendants were protected. Ultimately, this concept, along with Pictet’s belief that states should

be obligated to seek out and prosecute perpetrators, was more important than ensuring the option to use an international jurisdiction. In fact, the ICRC achieved these goals at the Final Conference.'** State delegations agreed to retain the idea that High Contracting Parties had to search for perpetrators and either prosecute them or extradite them, though this was tempered by allowing them to deal with

4 UN General Assembly Resolution 260 B (III), December 9, 1948 (http://untreaty.un.org/ilc/ summaries/7_2.htm), cited in Graven, Les lecons a tirer, 39-40. 46 Remarks and Proposals, 20.

47 Pictet, “Document ‘R’,” n.d., AICRC, CR. 221-4, Doc. 338 bis. The internal contents of the document show that it is from 1949, prior to the Final Conference. “8 The ICRC was not a voting participant in the conference or a signatory to the conventions, a power reserved only for states. It served as a technical advisor during the conference, though it privately and publicly exerted its influence in many discussions.

Revising the Geneva Conventions 265 extradition requests in accordance with their own laws. ‘They also agreed, following the urging of the French delegation, that the same rules for legal procedures in the POW convention should apply to accused war criminals.'*? The majority overcame the objections of the Soviet delegation and its ally, the Hungarian delegation, which argued that alleged war criminals should be treated as normal criminal suspects.'”° In essence, that would have meant the Eastern bloc states could keep them in whatever kind of conditions they wanted and use them in show trials, which were in full swing during the High Stalinist period. While the ICRC was willing to compromise on some aspects, the U.S. delegation, like the British, wanted to remove certain elements of the Working Group’s

system. The U.S. wished to return to its previous proposal for national jurisdictions and the definition of war crimes as willful murder, grave ill treatment, and destruction of hospital buildings and equipment. According to Pilloud’s confidential report, when the U.S. delegation saw the new proposals on repression, it announced it was completely unable to engage with them because it had no instructions from Washington, and the proposals were not included in the working documents that

the Swiss Federal Political Department had issued.'?' Yet the Dutch delegation said it wanted to use them as a basis for negotiations.'’* Pilloud credits Mouton with working behind the scenes with the U.S. delegation outside the conference to

work out an agreement.'”? The U.S. sought punishment provisions that harmonized with its own war-crimes policy. It had convened U.S. army trials at Dachau and military tribunals at Nuremberg. ‘There, the government asserted jurisdiction over foreign nationals whose crimes were committed on foreign territory. It interpreted the laws of war and crimes against humanity, intending to purge Germany of a limited number of Nazi policy-makers, industrialists, generals, and medical doctors. Despite the excision of the reference to an international jurisdiction and “crimes against the law of nations,” a Special Committee at the Diplomatic Conference, under the chairmanship and diplomatic skill of Mouton, still created a synthesis of the old/new justice. This was supposed to expand the types of acts that would be

subject to criminal repression and provide more effective enforcement of the Geneva Conventions.'** As Mouton stated in a committee report, “this text which was evolved with much pain and labor is an advance and improvement on the past and goes as far as possible at this moment.” Many of the new grave breaches that 9 Sténogrammes de la Commission mixte, 10 C.M., 16.7 a.m., 32-3. 9 Sténogrammes de la Commission mixte, 10 C.M., 16.7 a.m., 37. 1 Pilloud, “Rapport Spécial,” 2—3. The Swiss government had convened the conference. 2 “Propositions du Gouvernement Néerlandais,” Doc. No. 8 in Propositions et observations des Gouvernements en vue de la Conférence diplomatique pour lélaboration de conventions internationales destinées a protéger les victimes de la guerre. Convoquée le 21 avril 1949, a Geneve par le Conseil Fédéral

Suisse. Swiss Federal Archives (Berne), E9500.239A-03, 2006/65, BD: 22.

3 Pilloud, “Rapport Spécial,” 2-3. 4 ‘This was the Special Committee of the Joint Committee. For the text of its draft breaches provisions, see Annex 51 and 55, Final Record of the Diplomatic Conference Convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and

a a nes from April 21st to August 12th, 1949 (Berne: Federal Political Department, 1949), 3:

266 The Birth of the New Justice the delegates added had already been worked out as prohibitions in the revised conventions. These went beyond the terms that the Government Experts had formulated in 1947 and the grave breaches formulated by Mouton, Phillimore, Lauterpacht, and Graven in December 1948. The delegates decisively concluded that biological experiments using civilians, sick/wounded military personnel, and prisoners of war were grave breaches that had to be punished; the notion to prohibit such actions had already been discussed at the Stockholm Conference, but now

they were singled out for criminal punishment. No previous convention of the laws of war had specifically addressed this, but after the German and Japanese use of medical experiments, it had to be done. Other special “grave breaches” were added to the Civilian Convention: it was a grave breach to kill civilians willfully, cause them great suffering, deport or imprison them unlawfully, or take them hostage.'”? Here the delegates were reacting to Nazi deportations, ghettoization, and collective punishments, as well as answering the decisions of certain war crimes tribunals that stated that hostage-taking was legal in some cases. As for the new obligations, reflecting the new justice, Mouton said the Special Committee explicitly “borrowed the much stronger wording of Article V of the Genocide Convention which lays down the obligation to enact legislation ‘to provide effective penalties.’”!°° This is noteworthy. Pella and Lemkin had backed the unification of domestic criminal codes and championed the idea that international criminal law should set a model that states should follow; their ideas were applied in the Genocide Convention. Now, that concept was applied in the Geneva Conventions, showing how this model of the international serving as a template for the national was spreading. Mouton’s committee also agreed to address superior orders,

not as extensively as the Working Group had, but it extended criminal liability both to direct perpetrators and to order-givers. This too was an advance, codifying a concept with which post-war tribunals had struggled. Furthermore, the Special Committee’s draft preserved Pictet’s idea that states had an obligation to seek out and prosecute violators, using their own tribunals or extraditing them to the tribunals of another contracting party. This did not go as far as Mouton and other advocates of an international criminal court (such as Lauterpacht and Graven) wanted, but it reflected the political opposition of the major powers and some smaller powers, anxious about sacrificing their control. In light of contemporary debates about whether universal jurisdiction is specified by the

Conventions, Mouton, speaking for the committee, did not state that grave breaches were “crimes under the law of nations.” However, he clearly stated that signatories were required to extradite or prosecute. “Finally, the handing over of accused persons has been made conditional by the clauses which lays [sic] down that the Power asking for an accused who is in the hands of another Power has to make out a prima facie case. It seems clear however, that if a Contracting Party does 5 Annex 55, Final Record, vol. 3. 6 Fourth Report of the Special Committee of the Joint Committee, Report on Penal Sanctions, CDG/MIX.35, July 12, 1949, in Sténogrammes de la Commission mixte, 5-6. The official version, which is slightly different, is in Final Record, vol. 2B, 114-18. Citations hereafter come from the Sténogrammes.

Revising the Geneva Conventions 267 not hand over the accused person, it has to bring him to trial before its own courts.”'”” Therefore, the Special Committee at the Diplomatic Conference still upheld the new justice/old justice synthesis because it agreed to retain an obligation to seek out, prosecute, or extradite; required states to change their domestic laws; established individual criminal liability; and retained the use of national tribunals with some guarantees for the accused.'”® One factor that dissuaded the Diplomatic Conference as a whole from making

an international criminal court the primary venue for criminal repression was a lack of knowledge about international criminal law. Despite decades of work, the ideas of Pella, Donnedieu de Vabres, Caloyanni, Graven, and others in the Association Internationale de Droit Pénal remained highly separate from the realm of Red

Cross law. As stated in the introduction to this book, these were two separate strands of development that did not aim at the same problems, though by this point, they clearly intersected in this particular area of criminal repression. Still, Mouton had to reassure his critics that requiring states to include grave breaches provisions in their domestic legislation did not mean the Conference was writing states’ penal codes for them. “We are not here, and I suggest we are not competent, to make international penal law. Bodies far more competent than we are have tried

to do it for years.”’ International criminal law, humanitarian law, and human rights were still separate domains at this point in history. There was also confusion about the goals of different projects, and even fears that one project would super-

sede another. Pilloud opined that many delegations, “insufficiently informed,” believed that revision of the Geneva Conventions would undermine the Nuremberg Judgment and other courts’ judgments against war criminals. Delegates feared that if they insisted on an international jurisdiction, they would be standing in the way of a UN project to codify the Nuremberg Judgment. “It was necessary to show

them that there was no contradiction between these two paths and that the new solutions uniquely aimed to develop and codify a part of the Nuremberg principles,” Pilloud commented. Certain other delegates believed that the revision of the Geneva Conventions would interfere with UN efforts to codify international law, and here Pilloud reassured them that those efforts concerned the laws of peace, and no one knew exactly when the UN would turn to the laws of war.'® Cold War cultural—legal politics also contributed to eliminating a direct refer-

ence to an international jurisdiction. Prior to 1949, the Soviet Union had not participated in the 1947 and 1948 conferences, but it brought a major delegation to the final Diplomatic Conference, since it recognized that the project was very far along, and it had a vested interested in the new rules, given that the possibility of armed conflict with the West in Europe was real. The Soviets had blockaded Berlin in 1948, followed by the U.S. airlift of food and medicine to the residents. 7 Fourth Report, Sténogrammes de la Commission mixte, ©. 8 However, the committee did not go as far as the ICRC wanted. It decided that when states tried

their own nationals, their own rules for trials should prevail, not the safeguards in the 1929 POW Convention. See Fourth Report, Sténogrammes de la Commission mixte, 6. 9 Fourth Report, Sténogrammes de la Commission mixte, 6. '69 Pilloud, “Rapport Spécial,” 3.

268 The Birth of the New Justice Prior to that, there had been a series of escalating disagreements: the dispute over German reparations; the conflict over free elections in East-Central Europe; and the final division of Europe into two competing systems following the coup in Czechoslovakia in February 1948. For both the Soviets and the Americans, the prospect of East and West working again on a joint war crimes tribunal seemed slim to non-existent. This conflict had emerged during the Genocide Convention debates the previous year, and opposing political ideologies between the U.S. and USSR would ruin the chances in the early 1950s of creating a permanent international criminal court.'®' Nothing in the stenographic minutes indicates that the Soviets supported an international criminal jurisdiction, a position that was consistent with their position on the Genocide Convention. As mentioned in the last chapter, using national tribunals corresponded to their own war-time and post-war practice. It would be incorrect, however, to read the Soviets as hard-liners across the board. Pilloud noted that although the Soviet delegation had to comply with rigid instructions from Moscow, it largely took humanitarian positions. He doubted the civilian convention would have passed without its help, and he was in a position to know, since he was present at all the meetings at the final Diplomatic Conference.'®’ On the other hand, one of the areas where the Soviets were intransigent was the handling of war criminals. As in the Genocide Convention debates, the Soviets contended that the West was soft on war criminals and wanted to coddle them with their liberal judicial guarantees. The Deputy Head of the delegation, Platon Morozov (who had also negotiated the Genocide Convention for the USSR) had three main demands. The conventions should call serious violations “crimes,” not “breaches,” because this conveyed their gravity and would require penalties from criminal law; there should be a two-year deadline for High Contracting Parties to implement penal provisions in their legislation; and accused war criminals should be treated as “common criminals,” not as persons who deserved the protection of the POW convention.'® The Soviets failed to achieve any of these; the votes show they lost by wide margins.’ The Anglo-American bloc’s argument was that the legal definition of crime was too different in legal codes, so the term violations should be used in the French and breaches in English.'° The Anglophone countries (U.S., Britain, Australia, and New Zealand) plus Venezuela objected to the two-year deadline, arguing their legislatures needed more time than that. For anyone familiar '6l See the epilogue of this book. '©2 Pilloud, “Rapport Spécial,” 6-8. '©3 Fourth Report, Sténogrammes de la Commission mixte, 10; Sténogrammes de la Commission mixte,

10 C.M., 16.7 a.m. (July 16, 1949), 16-26. '©4 ‘The Soviet proposal for a two-year deadline was rejected 19—9—7; a French proposal for judicial safeguards was accepted 24—10-—1; the Soviet amendment to substitute the word “crimes” for “breaches” was defeated 21—8—7. The stenographic minutes do not record the votes of each delegation. See Sténo-

grammes de la Commission mixte, 11 C.M., 17.7 m. July 17, 1949), 3.

' Best, War and Law Since 1945, 164, maintains that the U.S./British group did not want to use the word “crimes” for fear the Soviets might try to expand the definition to the crime of aggression. However, the word “breach” had already been used by the Government Experts in 1947, and both Lauterpacht and Phillimore said they preferred the use of the term “breach” instead of “violation.” See Phillimore to Pictet, January 20, 1949, AICRC, CR. 238-6.

Revising the Geneva Conventions 269 with the legislative process in these states, that was often true, but it also gave them time to delay implementation.

HISTORICAL ANALYSIS Outside the matter of grave breaches, the revision of the conventions and the creation of a new Civilian Convention represented a major change for the Cold War period, mainly because the new conventions established clearer rules for partisan fighters and also contained base-line rules for non-international conflicts. The line between an international and non-international conflict was not always clear; nevertheless, the ICRC sought to apply the basic protections to anti-colonial wars of

liberation and post-colonial civil wars. The Civilian Convention also gave the ICRC an expanded legal foundation for its humanitarian diplomacy. Nevertheless, the new penal sanctions regime, which Best contends was progressive in its text and noble in its intentions,'®° does not seem to have made much practical difference during the Cold War. Immediately after the conventions were completed, a Belgian prosecutor working on war crimes cases asked Pilloud whether accused war criminals were entitled to the full protections of the POW convention. Pilloud said that he believed they were, but noted that the Soviet Union had rejected the concept and issued a reservation about that part of the convention.’®’ All the major World War Two victors ratified the conventions during the 1950s, though it took longer for them to implement new penal legislation embodying the conventions.

In 1956, Graven and Mouton were part of a group of jurists convened by the ICRC to work out the model text that states could insert into their criminal codes. Only a few states had done it to the satisfaction of the experts and the ICRC: the Netherlands, Yugoslavia, Thailand, Switzerland, Ethiopia (whose criminal code Graven drafted), and Belgium, which had a proposed law on the table.'®* Importantly, in the Cold War period, the exercise of universal jurisdiction to seek out and prosecute persons accused of grave breaches was virtually dormant. The waves of national tribunals that continued in Europe in the 1960s and ’70s, dealing with Nazi war criminals, were based on national laws, as the grave breaches provisions were not retroactive for 1939-1945. The case law and historical representations produced by those trials were therefore as consequential as the creation of a grave breaches regime.’ From a bird’s eye perspective, the ICRC was both a conservative and progressive force in creating the new system of criminal repression. It was conservative in the 166 Best, War and Law Since 1945, 166.

'67 Pilloud to Grevy, December 15, 1949, AICRC, CR. 254-3, Doc. 114. '68 “Rapport des Experts Réunis par la Comité de la Croix-Rouge au Sujet de la rédaction d’un modeéle de loi pour la répression des infractions aux Conventions de Genéve du 12 aot 1949,” p. 3, Archives de l Etat du Valais, CH AEV, Jean Graven, 23. '©9 See Adalbert Riickerl, ed., Nationalsozialistische Vernichtungslager im Spiegel deutscher Strafproz-

esse. Belzec, Sobibor, Treblinka, Chelmno (Miinchen: Deutsche Taschenbuch Verlag, 1977); Claudia Kuretsidis-Haider et al., eds., Das KZ Lager Lublin-Majdanek und die Justiz. Strafverfolgung und verweigerte Gerichtlichkeit: Polen, Deutschland und Osterreich im Vergleich (Graz: Clio, 2011).

270 The Birth of the New Justice sense that it did not lobby governments for post-war prosecutions dealing with Nazi war criminals. Instead, it was primarily concerned with their treatment while in custody. Yet it was progressive in the sense that it supported prosecution in the future, with the important condition that it would not get involved, a position that

it has maintained through the 2000s.'” It supported universal jurisdiction and desired that states accept an obligation to find and prosecute violators. Like other non-governmental organizations involved with international law projects, the tension between conservatism and progressivism developed in response to the group’s historical mission, organizational interests, and political pressures. Historically, the ICRC concentrated on trying to extend the legal rules of protection for the victims of war and persuade belligerents to follow them; it also inspected camps, ran a tracing service, and coordinated aid. Tracking and adjudicating violations were not part of its core mission, but it placed too much faith in the idea of “reconciliation” after World War One and allowed itself to be manipulated by the Italian fascists during the Italo-Ethiopian War. During World War Two, it was hamstrung at times due to its conservative legalism and lack of initiative. After the war, it was hesitant in recognizing the legitimacy of trials and was interested in protecting the German Red Cross. It also remained suspicious of U.S. and British war crimes proceedings, despite being able to negotiate with the authorities concerning the treatment of the accused in custody. Eventually it accepted the reality of criminal prosecution and helped ensure that judicial safeguards were contained in the conventions. At the same time, it was not a strong backer of an international criminal court as a first venue because it needed the support of major states to pass other aspects of the conventions. Instead, it helped forge the new justice/old justice synthesis.

That synthesis reflected continental European and British-American legal concepts and customs. Delegates and legal experts from South America and Asia contributed to other parts of the conventions, but the criminal enforcement system was mainly a Western European/American project. The ICRC was a Swiss Protestant organization, rooted in the era of nineteenth century humanitarianism and charity: the morality of the expanding European middle class of that era.'’’ The European middle class had produced many international lawyers, though by the end of the nineteenth century, jurists from South America and Eastern Europe, the “peripheral” regions, began to have an influence; however, their interpretation of international law was that it should be used to guard the state’s sovereignty.'”* Still, after World War Two, when the ICRC wanted to consult with outside legal experts about revising the Geneva Conventions, it went first to the victorious Western powers, asking for the views of their government experts and military advisors, then to other jurists in continental Europe, especially the Swiss and Germans.

'7° Tn fact, under the rules for the contemporary permanent International Criminal Court, ICRC personnel cannot be compelled to testify in criminal cases. Forsythe, 7he Humanitarians, 195-6. '7. Forsythe, The Humanitarians, 202-10. '? Arnulf Becker Lorca, “Sovereignty beyond the West: The End of Classical International Law,” Journal of the History of International Law 13 (2011): 7-73.

Revising the Geneva Conventions 271 These came mainly through personal contacts within the organization. ‘There was still a great disparity among viewpoints, but the main jurists working on projects to develop criminal repression for the conventions came from the U.S., Netherlands, Britain, France, and Switzerland, with the influence of the USSR arriving at the end. All accepted the validity of the institution of a court as the best way to hear evidence, assess guilt, and determine a penalty, though they differed in the types of procedures and protections the institution should offer. The other main issues concerned the definition of the crimes and how to deal with extraditions. Here, the state negotiators and jurists were looking for regularity and standardization more than radical solutions. This was rooted in the international state system that had developed since the rise of the absolutist state in the seventeenth century. The eighteenth century influence was the continuation of the Enlightenment idea that war-time conduct could be restrained to lessen the suffering of those affected by war. The nineteenth century influence was the liberal, constitutional idea that laws and penalties must be codified in advance, and the defendant must have the right to a fair trial. From this perspective, the project was more evolutionary than revolutionary. What did the enforcement regime, laid out on paper, contribute to the development of the concepts of the new justice in the post-World War Two period? The system included ideas that had emerged strongly after World War One, were developed in the interwar period, and then reappeared after World War Two as part of a “swing back to legality.” Given that many of the jurists who advocated it were conservative, rather than left-leaning, the movement was more of an attempt to brake run-away tendencies to put on political trials and purges than institute leftwing political ideas as a reaction to authoritarianism.'”* The central ideas included the legitimacy of post-war prosecution, the rejection of amnesty, and the definition of severe violations of international law that necessitated individual criminal liability. In that sense, it was a concrete realization of ideas that had been incubating since the late nineteenth century, gained much greater momentum due to World War One, and that were implemented in an improvisatory way after World War Two. Now, the time had come to make the system more uniform and address the defects of post-war trials.!’* Beyond a legal change, the new system was a reaction to the violence of World War Two, issued as a corrective and warning rather than an analysis of causes. The goal was to build a better system, which did not require a particularly deep understanding about why mass violence has occurred. The proposed answer drew from legal positivism (the need for laws in advance of prosecu-

tion), cosmopolitanism (the goal of universal repression), and the history of military tribunals. 3 Tstvan Deak, “Post-World War II Political Justice in a Historical Perspective,” Military Law Review 149 (1995): 137-44, argues that trials and purges were part of an anti-fascist, left-wing move-

ment in nearly all European countries after World War Two save for Italy, western Germany, and Greece. This movement ended in 1947 with the onset of the Cold War and the rise of moderate politics. I simply wish to point out that the European jurists who promoted the “grave breaches” concept supported republicanism, parliaments, and the rule of law, but they were anti-revolutionary. '4 Draper, The Red Cross Conventions, 94.

272 The Birth of the New Justice Rather than a victory of the international over the national, or the national over the international, the new penal system bridged the two, at least in theory. The conventions defined the crimes that must be punished and stated that extradition requests should be considered if the requesting state made a prima facie case. States were supposed to adapt the rules for their own criminal codes, just as the criminological unifiers of the 1930s had hoped. States retained leeway in how they wanted to formulate their own laws, establish their own tribunals, and accept or reject extradition requests. It was still a far cry from an independent prosecutor and a permanent international criminal court, but in the post-war environment, there was a strong feeling among states large and small that they were interested in preserving their full authority. As with previous legal projects discussed in this book, the solution was subjected to an immense set of conditions by the different nego-

tiators: state interests; the interests of individual jurists; and the goals of nongovernmental organizations. The creation of the new enforcement regime did not fully unify two separate strands of historical development that sought to restrain violence through law—

the criminological strand, which started to build international criminal law in the 1920s, and the humanitarian strand, which built international humanitarian law, starting in the 1860s. After World War ‘Two, there were intersections at certain points. The ICRC recognized in 1946 that when the Red Cross societies

wanted to define violations of the Geneva Conventions as war crimes, the implementation might involve a form of “international penal law.” It also recognized that when it came to defining war crimes and deciding on jurisdictional questions, the ICRC was venturing into an area outside its main technical competence. Save for the involvement of Graven, practically all the figures involved in building the system came from legal traditions and schools of thought distinct from the criminological jurists of the 1920s and ’30s. They also came from different organizations and intellectual schools of thought than those who formulated the Nuremberg Charter. For these reasons, it was too early in 1949 to speak of a true convergence between international criminal law and interna-

tional humanitarian law. Instead, international humanitarian law began to incorporate definitions of war crimes, but in terms of the “grave breaches” concept. These were only a subset of the broader universe of criminal actions conducted in war. Beyond the revision the Geneva Conventions, the UN project to build a permanent international criminal court was getting off to a shaky start. As mentioned above, delegates at the final Diplomatic Conference in Geneva were aware that the International Law Commission in the UN was going to consider the creation of a court. That Commission was also going to attempt to codify all the

new ideas about war crimes, aggression, and crimes against humanity that stemmed from the Nuremberg Judgment, with the goal of possibly creating a new international criminal code. Henri Donnedieu de Vabres, the former Nuremberg judge and early co-drafter of the Genocide Convention, was involved with the

project and contacted Pilloud in late 1949 for copies of the revised Geneva

Revising the Geneva Conventions 273 Conventions.'” The fact that the Geneva Conventions specifically mentioned that the High Contracting Parties should use their own tribunals for prosecution did not rule out the future use of an international tribunal. However, as the epilogue will explain, the project to resurrect Pella’s idea of a permanent international criminal court was quickly blocked by Cold War disagreements. The post-war period briefly experienced a political and legal demand to reassess, re-codify, and transform the international system with criminal prosecution for genocide and war crimes, but the problems of aggression and international terrorism again became insurmountable. De Vabres to President, ICRC, December 15, 1949, AICRC, CR. 254-3, Doc. 112.

Epilogue BLEAK PROSPECTS IN THE 1950S Despite the tremendous intellectual strides that the ideas of the “new justice” had taken between 1919-1950 and their partial realization after 1945, prospects were weak at the start of the Cold War that international criminal enforcement could fundamentally alter the international system or prevent various types of violence— violations of the laws and customs of war, aggressive war, terrorism, and genocide. There were four major problems: domestic legal retribution or even private vengeance dominated many post-war European countries; new bodies in the United Nations had extremely limited powers of enforcement (if any at all); Cold War politics blocked the debate on the creation of a permanent international criminal court and global penal code; and organizations such as the International Committee of the Red Cross and the Bureau for the Unification of Criminal Law could not pursue criminal enforcement for their own special reasons. The post-war international swing “back to legality” included powerful components of self-interest and the selective use of the doctrine of state sovereignty. The International Military Tribunal at Nuremberg was relentlessly criticized inside and outside the international legal establishment in the years following the war up to the present, from both anti- and pro-German sides. Faris El-Khouri, the Syrian member of the International Law Commission, alleged that the victorious Allies had the right to impose the tribunal by virtue of their taking over the functions of the defeated German government, but it had no value as precedent for a future permanent international criminal court.’ Gilberto Amado, the Brazilian member of the same commission, claimed it was an unfair proceeding because the accusers came from the same states as the judges.’ The tribunal has also been criticized because the Allies did not prosecute Germans for the aerial bombardment of Coventry, Belgrade, Warsaw and Rotterdam, knowing this would invite legal scrutiny of the Allies’ bombing of Dresden, Darmstadt, and Hamburg.’ German historians, including liberal non-nationalists who recognize German responsibility for World ' See the remarks of Faris El-Khouri, the Syrian member of the International Law Commission (ILC), 43rd Meeting of the ILC, June 9, 1950, United Nations, Yearbook of the International Law Commission 1950, Vol. 1, Summary Records of the Second Session, June 5—July 29, 1950, UN Docu-

ment A/CN.4/Ser.A/1950, 21. * United Nations, Yearbook of the International Law Commission 1950, Vol. 1, Summary Records of the Second Session, 19. > Geoffrey Best, War and Law Since 1945 (New York: Oxford University Press, 1994), 204—5.

Epilogue 275 Wars One and Two, point out that the Soviet Union's leaders were not prosecuted for occupying eastern Poland under the Nazi—Soviet Non-Aggression Pact. Soviet military personnel were not prosecuted for murdering thousands of Polish military officers and doctors in the forest of Katyn, or for war crimes against civilians inside Germany.’ The International Military Tribunal for the Far East also left a controversial legacy. A first generation of analysts considered the trial a landmark because a majority of judges held Japanese ministers and generals responsible for planning an aggressive war, helping establish this legal concept as Nuremberg had done. However, dissenting judges challenged the prosecutors’ claim that all the accused Japanese ministers and generals were involved in a multi-year process of planning and preparing an aggressive war, and questioned whether the ministers and com-

manders in the dock could be held responsible for atrocities that undoubtedly occurred, but which they did not directly order.’ Later waves of historical scholar-

ship have questioned whether the trial sufficiently exposed Japanese atrocities against Koreans and Taiwanese, and whether the trial was unjust because U.S. officials were not prosecuted for the decisions to drop atomic bombs on Hiroshima and Nagasaki. Recent scholarship has tried to overcome the “binary” interpretation of victor’s justice (either the trial went too far or did not go far enough), arguing that the trial record established a documentary record of the Japanese military's use of sexual slavery and Japanese colonial atrocities, and the trial has made a positive development to international criminal law.° Other post-war trials were marked by the exercise of state sovereignty and the limits of criminal prosecution, creating a counter-movement against concepts of international justice. The Allied tribunals in occupied Germany tried only a frac-

tion of the nearly 169,000 Germans who faced some type of post-war criminal proceedings. The overwhelming majority were handled by German tribunals, which sentenced slightly more than 2,000 to internment.’ Denazification in the Federal Republic of Germany was not complete, and prosecution in the Soviet zone (later the German Democratic Republic) served to repress anti-communists. The sentences issued by U.S. and British military tribunals in occupied West Germany were commuted in the interest of building bonds with the West German government, thereby helping an alliance necessary for a Cold War defense strategy against the Soviet Union. ‘The trials also helped create the myth that the German

Wehrmacht and Order Police units were not involved in genocidal actions in Eastern Europe.*

* Heinrich August Winkler, Germany: The Long Road West, trans. Alexander J. Sager, vol. 2: 1933-1990 (New York: Oxford University Press, 2007), 109. > Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial (Princeton: Princeton University Press, 1971), 32—3, 36-47, 67-73. ° Yuma Totani, Zhe Tokyo War Crimes Trial (Cambridge, Mass.: Harvard University Asia Center,

2008), 246-62. ’ Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (New York: Cambridge University Press, 2004), 54—5. ® Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001).

276 The Birth of the New Justice Many European states used their own tribunals and administrative review boards to deal with collaborators, members of Nazi and native fascist organizations, and persons accused of atrocities. The overall processes were local or national, not international, showing that each society wanted to deal with war criminals and collaborators on its own terms if possible. As mentioned in passing in the chapter on the revision of the Geneva Conventions, international lawyers in the International Committee of the Red Cross, very concerned about irregular tribunals and ex post facto laws, wanted neutral procedures to guarantee the accused the right to a fair trial, while the lawyers working on the “grave breaches” provisions sought an international tribunal in order to escape the dangers of political justice. However, there were many other political pressures and tumultuous conditions that created a different reality. Successor governments sometimes opted for trials in order to demonstrate that they were wholly separate from previous regimes, plus they were

confronted with powerful popular demands for retribution, as people sought vengeance for long years of suffering during the war. The historical circumstances of trials, purges, and “charges of national indignity” (leading to a loss of political rights and sometimes exclusion from certain professions) varied across Europe. There were three waves of purges and trials in Italy (including thousands of lawless executions of suspected collaborators by partisans, and a government amnesty for fascists who had fought against the Republic of Salo); potentially ten thousand executions of alleged collaborators by partisans in France, where the slow pace of liberation did not allow the rapid implementation of regularized justice; and the speedy establishment of military tribunals in Belgium against Flemish nationalists and Rexists who collaborated with the Nazis, but no trials against the Belgian civil bureaucracy or the industrialists, since the post-war political leadership wanted to

secure their own power and commence reconstruction.’ In other, darker ways, European governments in Central and Eastern Europe did not suddenly return to humanitarian standards and defer to international obligations after 1945. Czechoslovakia, Hungary, and Poland expelled ethnic German speakers in revenge for German occupations, violating the Treaty of Potsdam, which said the process was supposed to occur “in an orderly and humane way.”'® The East bloc communist states, established between 1946-48, passed constitutions guaranteeing full civil and social rights, but police repression and terror were high between 1948-1953, when the regimes were trying to build ideological conformity."' The different movements within international law were therefore limited because states emphasized sovereignty, trying to reconstitute legal and moral order using their own powers of enforcement. On the other hand, there were many different types of organizations and movements propelling old and new solutions to prevent

wat, uphold the laws of war, protect civilian rights, and protect national rights. > Elster, Closing the Books, 54—9; Martin Conway, “Justice in Postwar Belgium: Popular Passions and Political Realities,” in Istvan Deak, Jan T. Gross, and Tony Judt, eds., 7he Politics of Retribution in Europe: World War II and Its Aftermath (Princeton: Princeton University Press, 2000), 134-70.

'0 Winkler, Germany: The Long Road West, 2: 1933-1990, 109. "' Ivan T. Berend, Central and Eastern Europe, 1944-1993: Detour from the Periphery to the Periphery (Cambridge: Cambridge University Press, 1996), 55—7.

Epilogue 277 Rather than lumping these together, it is helpful to understand that they pursued different types of enforcement, not of all which involved criminal prosecution. While there was some success in passing new international conventions and declarations and establishing new supervisory bodies after World War Two, criminal enforcement faced greater difficulties because it touched the relationship between the sovereign state and the individual, and aftected the relationship between states when one asked another to extradite a suspect. It also continued to elicit fears that prosecutions would be launched for political purposes. ‘There was not yet a fundamental consensus that an international criminal court, with judges from multiple countries and a set procedure, could overcome these problems. For political leaders and diplomats who built the United Nations Organization, the solution was political and bureaucratic, and while the concept of the UN Charter was a legal one, it was not based on criminal enforcement as Pella had conceived it. They wanted to improve the League of Nations’ Covenant by ensuring that the UN Security Council could decide on a course of action in case of acts of aggression, and that this power of enforcement was not undercut by a state's right to sovereignty. There were several practical and legal problems, however. Aggression was not precisely defined in the UN Charter, and while the Security Council could recommend or order intervention into the affairs of a state to restore peace, the permanent members of the Council had veto power. Also, the Security Council had no mechanisms, such as a pre-determined process of enquiry, to address violations of international humanitarian law. Through 1967, it never even warned parties involved in international war or civil conflicts that they should respect international law.” For the lawyers, religious groups, and other civil society groups that worked on the Universal Declaration of Human Rights (1948), this declaration was supposed

to enumerate basic protections which all states should uphold, but here too, enforcement measures using criminal prosecution and penalties did not materialize. Enforcement was supposed to come through various UN mechanisms, yet attempts to establish strictures and controls were intentionally weakened by both the Great Powers and the small powers. ‘The U.S., Britain, and smaller European states rejected the use of economic sanctions and a “test” to prevent violators from being allowed to join the UN. The U.S. did not want to face accusations that its southern states’ laws on black-white segregation were illegal under international law, and Britain did not want to have to guarantee that Africans and Asians under British colonial rule had rights that they could use to challenge their treatment by police and judges. States such as Czechoslovakia, which had expelled its ethnic Germans as collective punishment, did not want to face charges that their forced population transfers were violations of human rights.’ "2 ‘The Security Council only became more assertive in addressing violations in the 1990s, when it began condemning particular events, mentioning specific violations, and calling for investigations. See Georg Nolte, “The Different Functions of the Security Council with Respect to Humanitarian Law,” in The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945, ed. Vaughan Lowe (New York: Oxford University Press, 2008), 519-34. 'S Mark Mazower, “The Strange Triumph of Human Rights, 1933-1950,” The Historical Journal

47, no. 2 (2004): 379-98.

278 The Birth of the New Justice The movement to revise and expand the laws of war, guided by the International Committee of the Red Cross’s effort to revise the Geneva Conventions, had to deal with realist politics and the demands of states’ militaries. The jurists and diplomats who included the ‘grave breaches’ provisions in the Geneva Conven-

tions gave states the primary power to use their own tribunals for prosecution, and it was incumbent upon states to alter their penal laws in accordance with the conventions. The ICRC realized by the 1950s that it was going to be difficult to compel states to change their own penal codes. ‘Then, the organization was faced with new wars—conflicts that were internal civil wars, wars of colonial liberation,

and Cold War proxy struggles—that tested the application of the new Geneva Conventions. In Korea, Hungary, Algeria, and Vietnam, the ICRC continued to show a mixture of conservatism, legalism, and pragmatism.'* The ICRC’s primary

vehicles of protection were private diplomacy and prisoner visits, not urging criminal prosecution. The international criminal law movement faced major changes in the 1950s: the death of its leading figures, the lowering of the Iron Curtain, and the dissolution of the International Bureau for the Unification of Criminal Law. World War Two had already divided the movement in different ways—Pella had left Europe to go to New York in 1947, and Pella and Lemkin had a major falling out, which will be described below. Many other European members remained in Europe, and the Association Internationale de Droit Pénal (AIDP) was trying to rebuild. New personal divisions emerged when French scholar and former Nuremberg judge Henri Donnedieu de Vabres and Belgian criminal lawyer Simon Sasserath became angry with Pella for allegedly trying to take too much credit for the AIDP and the International Bureau’s work. The Bureau's finances were also in disarray, and the fact that the jurists from Eastern Europe were now behind the Iron Curtain cast their future participation in doubt. Swiss jurist Jean Graven urged Pella to come to

Europe and sort out the situation, but Pella died in 1952.'° By that point, the Bureau's first president, Henri Carton de Wiart, was dead (1951), as was de Vabres

(1952) and Caloyanni, who was the group’s treasurer but had left no financial records. The next president of the AIDP, Belgian prosecutor Léon Cornil, and Sas-

serath, the Bureau's vice president, did not want to rebuild the Bureau. Graven protested strongly, fearing the group would lose its influence with the UN." Graven lost the fight; in any case, he was traveling to Ethiopia for eighteen months to help write its penal code.'” In the end, the Bureau was dissolved in December

1953, though Cornil promised to integrate some of its functions at a future point.'®

'4 David P. Forsythe, 7he Humanitarians: The International Committee of the Red Cross (New York:

Cambridge University Press, 2005), 52-60, 75. 'S Graven to Pella, May 20, 1950, Archives de l’Etat du Valais (Sion, Switzerland), CH AEV, Jean Graven, 292. Hereafter, “Graven Papers.” '© Cornil to Graven, September 11, 1952; Graven to Sasserath, November 13, 1952; Sasserath to Graven, November 17, 1952; Graven to Sasserath, November 21, 1952, “Graven Papers.” '7 Graven to Sassertath, December 27, 1953, “Graven Papers.” '§ Cornil to Graven, January 4, 1954, “Graven Papers.”

Epilogue 279 The main effort to create a permanent international criminal court and a global penal code took place in the International Law Commission (ILC), but this group had inherent organizational problems and was caught in the middle of Cold War political controversies. On the organizational side, the group was composed of various international jurists, most of whom were scholars or judges, but they were a special group convened by the UN General Assembly, not an independent group such as the International Law Association or the AIDP. As the members represented different legal traditions and perspectives, they did not share the same ideas about international criminal law. They only met every six months for a short time, so they progressed at a snail’s pace. Furthermore, the group merely produced reports and draft conventions for the UN. These then had to enter a maze of committees if they were going to get anywhere. Some of the ILC jurists wanted to establish a permanent international criminal court and an international criminal code, called the Draft Code of Offenses against the Peace and Security of Mankind. They built on Pella’s ideas from the interwar period, the work of the United Nations War Crimes Commission, and the International Military Tribunal at Nuremberg and its judgment. For these jurists, led by the Panamanian, Ricardo J. Alfaro, the great problem of the day was again the prevention and repression of aggression, with genocide running a distant second. The first draft of the Draft Code of Offenses included both crimes, but the legal discussions show that jurists were mainly concerned with the definition of ageression.”” The problem of war, rather than genocide or violations of the laws of war, was also the main issue in the discussions about establishing an international criminal court. This is understandable for several reasons. First, the two international tribunals at Nuremberg and Tokyo had presented the conspiracy to plan and prepare for a war of aggression as the central crime that encompassed all others. Second, pro-court jurists believed that if they could suppress war, other crimes committed in connection with war would not occur. Third, the mood of the UN at the time was permeated by the possibility that the Cold War conflict between the U.S. and the Soviet Union might explode into a hot war. This had been narrowly avoided during the Soviet blockade of Berlin in 1948— 49, but the possibility of a new world war, sparked by the Korean War (occurring at the very time when the ILC intensively worked on the Draft Code) was very real. Cold War tensions were also present because of the Maoist takeover of China: at the 1950 session of the ILC, the Soviet delegate walked out of the sessions because the Chinese jurist on the commission came from the nationalist side, not the communist side.”!

'? United Nations, “Report on the Question of International Criminal Jurisdiction by Ricardo J. Alfaro, Special Rapporteur,” in Yearbook of the International Law Commission, Vol. 2 (New York:

United Nations, 1950), 1-18. *° For the 1951 Draft code and a commentary on its articles, see “Question of Defining Aggression,” in United Nations, Yearbook of the International Law Commission 1951, Vol. 2, Report of the International Law Commission to the General Assembly, UN Document A/1858, 131-7. *1 Meeting of June 5, 1950, United Nations, Yearbook of the International Law Commission 1950, Vol. 1, Summary Records of the Second Session, June 5—July 29, 1950, 1-2.

280 The Birth of the New Justice The problem of defining aggression as a crime was complicated by the fact that some ILC jurists not only wanted to define it as a state’s use of military force when the

state was not under attack or fulfilling a UN mandate. They also wanted to define ageression as the deployment of covert military bands against another state, the encouragement of terrorist activities against another state, or the use of coercive political and economic measures against a state.”* Politis’ idea of trying to outlaw foreign armed groups and Pella’s determination to link terrorism and economic coercion to ageression were still alive. However, ILC jurists decided that only individuals, not states, could be criminally prosecuted, and the first Draft Code (1951) heavily emphasized crimes committed by individuals who were under the direction of a state. This too is understandable given the historical context: the jurists in their own period had confronted a set of wars conducted by state-run militaries and state officials.

The jurists decided in 1950 that establishing a permanent international criminal court was “desirable and possible,” though a powerful minority of jurists (from the U.S., Great Britain, and Sweden) had serious reservations about whether a court could actually serve as a deterrent to war. They also disagreed about whether states would submit to its authority and whether it could actually operate without a police force to arrest suspects.” The jurists delayed writing the rules for the court until the Draft Code was finished, since the code would define the crimes which the court would prosecute. This meant that the highly complex and politicized issue of aggression had to be worked out. The ILC finished a Draft Code by 1954, but several jurists voiced serious concerns. Lauterpacht, the British jurist, was in favor of the code but had deep reservations about whether creating “civil strife” in a country (versus aiding an internal civil war) should be classified as an act of aggression.”* Radhabinod Pal, an Indian judge who had issued the most sweeping dissent and condemnation of the Tokyo Tribunal, opposed the code and abstained from voting on it. He thought that it would not be possible to punish the offenses in the code until after an armed con-

flict occurred, which did not make it particularly useful. Douglas Edmonds, an American judge, doubted that states would ever accept the code.” ‘The real problem for the U.S. was that the U.S. Congress, under the Mutual Security Act of 1951, had appropriated $100 million to incorporate residents or escapees from the Soviet Union and the East bloc into NATO forces. It appeared that the Draft Code might make

* In the 1951 Draft Code, see Article 2, paragraphs 4, 5, and 6, in “Question of Defining Aggression,” 135; for the article on coercion, which was new in the 1954 Draft Code, see Article 2, Paragraph 9, United Nations, Yearbook of the International Law Commission 1954, Vol. 2, Report of the International Law Commission to the General Assembly, UN Document A/2693, 150.

°° For the basic arguments that establishing a court was not yet practical, see United Nations, “Report on the Question of International Criminal Jurisdiction by Emil Sandstrém, Special Rapporteur,” United Nations, Yearbook of the International Law Commission 1950, Vol. 2, 18-23. The main opponents were Sandstrém (Sweden), Manley O. Hudson (U.S.), and James L. Brierly (Great Britain). For the ILC debates on international criminal jurisdiction, see the 42nd meeting of June 8, 1950 and the 43rd meeting of June 9, 1950 in United Nations, Yearbook of the International Law Commission, Vol. 1. (New York: United Nations, 1950), 14—23.

*4 27st meeting, July 19, 1954, United Nations, Yearbook of the International Law Commission 1954, Vol. 1, Summary Records of the Sixth Session, June 3—July 28, 1954, 151. > 276th meeting, July 24, 1954, United Nations, Yearbook of the International Law Commission 1954, Vol. 1, 176-7.

Epilogue 281 such an operation illegal. In 1954, the Soviet Union and several other Eastern European communist states tried to protest against the Mutual Security Act in the UN General Assembly, but failed to get the necessary votes.”° In 1951, the U.S. opposed the definition of terrorism in the Draft Code, believing that the provision would prevent it from supporting anti-communist informa-

tion services, such as the Voice of America, in the former Baltic states and in communist Eastern Europe.” In this political battle, Lemkin sided with PolishAmerican and Lithuanian-American groups, which held that the Soviet Union was trying to destroy their nations by deporting and imprisoning their intellectuals and religious leaders. Lobbying the U.S. government and getting press coverage in the New York Times, they alleged that passage of the Draft Code would neutralize or even supersede the Genocide Convention.”® Pella, who had come to the U.S. in 1947, served as an advisor to the ILC and had written an extensive legal analysis of the Draft Code.” The Polish and Lithuanian-American groups, who paid Lemkin to write legal analyses and lobby for them, attacked Pella for working as an advisor

on the Draft Code. They attempted to link him to the Antonescu regime and accused him of being a communist sympathizer, positions which ideologically contradict each other.*° As mentioned in the chapter on the Genocide Convention, Pella took a diplomatic post as Romania’s minister to Switzerland in late 1943 and

claimed he wanted to extricate Romania from the war. He also expressed his opposition to the Iron Guard at the time. The charge that Pella was a communist was absurd since he had helped outlaw the Communist Party in Romania in 1924 when he was in the Romanian parliament. Plus, he was unable to return to Romania in 1948 because he was considered a political enemy of the new communist government.*' Lemkin, always suspicious of any project that might dilute the Genocide Convention, claimed Pella was part of a conspiracy to destroy the convention.* ‘This appears doubrful.*? In a long letter in 1950, Pella told Lemkin that he had supported the *° Quincy Wright, “International Law and Ideologies,” The American Journal of International Law 48, no. 4 (1954): 624. 7 “U.S. Aid to Red Bloc Underground Faces Suppression by U.N. in Paris,” New York Times, November 4, 1951; “Security Code Set Aside: U.N. Defers Plan That Might Hamper Voice of America,’ New York Times, November 16, 1951. *8_ A. M. Rosenthal, “Proposed U.N. Code Criticized As Bar to Anti-Red Undergrounds,” New York

Times, September 23, 1951; Anton Weiss-Wendt, “Hostage of Politics: Raphael Lemkin on ‘Soviet Genocide’,” Journal of Genocide Research 7, no. 4 (2005): 551-9. *? Vespasien Pella, “Memorandum on the Draft Code of Offenses against the Peace and Security of

Mankind [Extract from the Yearbook of the International Law Commission, Vol. 2, 1950],” November 24, 1950, UN Document A/CN.4/39. 30 “The Plan to Scuttle the Genocide Convention,” from “The Truth about the Genocide Convention,’ 12-16, Raphael Lemkin Papers, New York Public Library, ZL-273, Microfilm Reel 4, corresponding to Box 3, folder 1, Genocide Convention. >! Vespasien V. Pella, “Letters to the Times: Proposed U.N. Code: Provisions Said to Be Directed at Threat of Fifth Column,” New York Times, October 3, 1951; Pius Grigaitis, “Letters to the Times: U.N. Offense Code Opposed: Obstacle to Liberation Movements in Soviet Areas Seen,” New York Times, October 16, 1951. °° Lemkin to the Reverend Edward A. Conway, December 19, 1949, AJHS/P-154/2/2. °° ‘The argument that the Draft Code was entirely a Soviet strategy against the West cannot be sustained. John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave Macmillan, 2008), 217-21, relies too heavily on a biased memo that Raphael Lemkin wrote in opposition to the code.

282 The Birth of the New Justice concept and the law in numerous conferences and international bodies, acknowledged Lemkin as the creator of the term, and urged ratification of the convention on several occasions.** On the other hand, in a long legal memo on the Draft Code, Pella opposed including the crime of genocide in it, preferring that crimes against humanity become the master category, since crimes against humanity covered political persecution, while genocide did not.*’ As he explained to Lemkin, one of his main concerns about the Genocide Convention was that it merely gave states the option to use an international criminal court for genocide prosecutions, but this was not obligatory. Pella wanted to require states to send suspects to an international criminal court for these types of crimes—though at

the time, in 1950, the Genocide Convention was still not in force. Ultimately, Pella felt distressed enough about the alleged smears against his reputation that he threatened to sue Lemkin in the U.S., where they both were living, if the attacks did not stop.*° It does not appear that Lemkin replied to this letter. In any case, Pella died two years later, only fifty-five years old.°” In the bigger picture, the Draft Code became stalled in the UN for the majority

of the Cold War. The General Assembly decided in 1954 that the definition of ageression was still not clear enough (since several states raised serious questions

about it), turning the question over to yet another committee. The General Assembly continually deferred consideration of the Draft Code throughout the 1960s and 1970s, and the ILC only began work on it again in the 1980s. At that point, the ILC asked whether it could expand its work on implementation of the code to include discussing an international criminal jurisdiction. In this period, a new set of crimes was considered for inclusion in the code, reflecting the political concerns and realities of the 1960s—80s, such as apartheid, colonial domination, environmental destruction, the deployment of mercenaries, and the use of nuclear weapons.*°

THE CONTEMPORARY PERIOD Interestingly, the issue that brought discussion of an international criminal court back into the UN and the ILC was the issue of drug trafficking across national borders in the 1980s. Jurists cleverly used this issue, which was a problem for Caribbean states, to get permission from the UN to restart work on an international criminal court with jurisdiction over traffickers, though they also worded their proposal so that they could work on other crimes that they wanted to include in

34 Pella to Lemkin, November 2, 1950, Lemkin-AJA/60/2/11. °° William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000), 82. 36 Pella to Lemkin, November 2, 1950, Lemkin-AJA/60/2/11. °” §. Sasserath, “Le Président Vespasien Pella,” Revue internationale de droit pénal | (1952): 9-15; Ivan S. Kerno, “In Memoriam: Vespasian V. Pella, 1897-1952,” The American Journal of International Law 46, no. 4 (1952): 709-10; “Vespasian V. Pella,” New York Times, August 25, 1952. °8 United Nations, The Work of the International Law Commission, Vol. I, Seventh edn (New York:

United Nations, 2007), 101.

Epilogue 283 the court’s jurisdiction. The notion of a broader international criminal code that might include war crimes, crimes against humanity, genocide, terrorism, human trafficking, and even aggressive war was back on their agenda. However, the real impetus that opened the way toward creating a statute for a permanent International Criminal Court was the UN Security Council decisions in 1993 and 1994 to establish ad hoc international criminal tribunals to deal with war crimes committed during the violent breakup of Yugoslavia (which was still ongoing when the tribunal was created on paper) and the Hutu genocide against the Tutsis in Rwanda.” These tribunals faced tremendous obstacles at the beginning: they

lacked funding; their entire bureaucratic structures had to be created; and it appeared the Western powers had created them to salve their consciences for their failure to conduct successful diplomacy in the Balkans and for their tragic deci-

sion to withdraw UN peacekeepers from Rwanda at the moment the genocide was beginning. Still, the establishment of the tribunals helped fuel a movement of civil society organizations (legal organizations, human rights groups, women’s advocacy groups, and religious groups) to pressure their state governments to develop a permanent

international criminal court with an independent prosecutor who did not need Great Power permission to start proceedings. A confluence of factors in the 1990s contributed to this movement: the end of the Cold War, which, for a brief period, created a new opportunity to restructure the international system; the realization by human rights organizations that human rights required criminal enforcement

on the international level if they were to be meaningful; the possibility that the Yugoslav tribunal would pay attention to gender-specific crimes such as rape; and

the Internet as a new medium of communication, which allowed groups from around the world to communicate with each other and disseminate information to the public with great speed and at minimal expense. By lobbying and keeping up the pressure on state negotiators, these civil society organizations played a major role at the Rome Conference, convened in 1998 to create a statute for a permanent international criminal court.*° Many “new justice” ideas, which had been on the legal drawing board since the late nineteenth century and World War One, were again transformed through new innovations, showing how changed circumstances and new social and political problems produced new legal responses. ‘The court, whose statute came into effect in 2002, has an independent prosecutor who can

initiate investigations without approval from the UN Security Council.*' Legal architects during the first half of the twentieth century had avoided this, believing that they had to accommodate the demands of state governments in order to get them to agree to a court. The independent prosecutor therefore represents a new °° Marlies Glasius, Zhe International Criminal Court: A Global Civil Society Achievement (London and New York: Routledge, 2006), 10-16. 40 Glasius, The International Criminal Court, 22-60. “| The Security Council may defer investigations and prosecutions for a one-year, renewable period, but it is only supposed to exercise this authority if they hinder efforts to restore or maintain international peace and security. See William Schabas, An Introduction to the International Criminal Court, 2nd edn (New York: Cambridge University Press, 2004), 83.

284 The Birth of the New Justice factor in both international politics and the history of the state-system, because the prosecutor can use preliminary investigations as a warning to perpetrators to cease their conduct and can prosecute individuals who were largely untouchable during the twentieth century: government ministers, army commanders, and rebel military leaders.

The permanent International Criminal Court (ICC) has jurisdiction over war crimes, crimes against humanity, and genocide (and may, in the future, have jurisdiction over the crime of aggression)**—legal terrain developed during the first half of the twentieth century. It also utilizes a special concept of “complementarity:” national tribunals have primacy in prosecuting these crimes, and the ICC only comes into play if a state party to the treaty is unwilling or unable to prosecute. Many “new justice” ideas from the 1919-1950 period—individual criminal liability under international law, the legitimacy of international prosecution, the definition of new crimes, the combination of international/national tribunals—are now employed in tandem with the older liberal legal concepts of the right to a fair trial, the right of appeal, the right to have qualified defense counsel, etc. Still, the ICC does not have universal jurisdiction over all states: its reach only applies to those which have ratified the Rome Treaty. Because several permanent members of

the UN Security Council did not want the court to have automatic jurisdiction over their nationals, they negotiated in secret during the Rome Conference to limit the court's authority. According to Dutch political scientist Marlies Glasius, they presented a highly restrictive jurisdictional package with three components: Britain

insisted that the court would need the consent of the state where the crime occurred, the U.S. demanded that the suspect’s state could deny the court’s jurisdiction if the alleged crime was actually “an official act,” and France proposed that a state could opt out of the court’s jurisdiction over war crimes and crimes against humanity for ten years (with the possibility of renewal).** This extreme formula, greatly reducing the reach of the court, was rejected by many other states and civil society groups. It did not prevail. The final compromise gives the ICC jurisdiction over the territories of state parties to the treaty and over their nationals (even if they commit the above-mentioned crimes on the territories of states that are vot party to the treaty). Put another way, the prosecutor must have the consent of the state where the crime occurred or the consent of the suspect’s state to prosecute a case. The prosecutor may also investigate situations and prosecute cases for crimes committed in the territory and by nation-

als of states that are not party to the treaty, but only if the UN Security Council “ Tn 2017, state parties to the Rome Treaty will decide whether to add the crime of aggression, based on a 1974 definition, to the court’s jurisdiction. The crime of aggression would allow the court to prosecute individuals for military invasions, aerial bombardment, sea blockades, or the use of mercenaries in an aggressive invasion; any of these actions would have to violate the UN Charter. Prosecutions would be restricted to individuals who had “effective” control of a state’s military or political action. However, individuals from non-state parties would not be subject to prosecution, and existing state parties to the ICC could choose to remain outside the court's jurisdiction. See Review Conference

of the Rome Statute of the International Criminal Court. Kampala, 31 May-11 June 2010. Official Records, RC/9/11 (The Hague, 2010), 17-19. 43 Glasius, The International Criminal Court, 73.

Epilogue 285 refers these situations to the prosecutor. ‘The final terms also eliminated the U.S. concept that a state could reject the court’s jurisdiction for what it considered an “ofhcial act,” and it changed the French “opt-out” concept so that a state could only opt out of the court’s jurisdiction for war crimes (and only for seven years at a time). Glasius’ analysis of the negotiations notes several problems: the intertwined issues of jurisdiction and state consent were very difficult to communicate to the public in a few catch-phrases; the legal issues and formulae were complex; non-governmental

organizations wavered between supporting a German proposal for universal jurisdiction and the more pragmatic South Korean proposal that actually prevailed; and the permanent members of the Security Council negotiated in secret and at the lastminute, making their views very hard to challenge. In light of the history described in The Birth of the New Justice, this is extremely interesting because it demonstrates again that Great Power interests and state sovereignty are not the only factors that determine a particular international legal solution. It also depends on the lobbying organizations mission and their strategies. Glasius, for example, points out that if non-governmental organizations had gone public with the Security Council states’ proposal, instead of agreeing to keep it confidential, they might have been able to take advantage of a very brief window to mobilize for a progressive jurisdiction. In her view, that progressive option meant that the ICC would only need the consent from one of the following to prosecute: the state where the crimes occurred; the state whose national was accused; a state whose nationals were victims; or the state which actually held the suspect in custody (even if it was not involved in any other way). In 2006, she considered the final outcome “the worst of all worlds” because it allowed the U.S. to sign special agreements with weaker states, in which they pledge that they will not deliver U.S. nationals to the court. Plus, the current scheme does not allow the ICC to open prosecutions with only the consent of the state representing the victim group, which could be potentially important if the crimes are committed in territories of a state that is not party to the court.“ International criminal law scholar William Schabas, on the other hand, argues that the court’s more limited reach prompted more states to sign the treaty, thereby establishing the court more rapidly. Plus, it gained jurisdiction over some of the hot spots around the world where crimes were most likely.“? Another scholar of international criminal law, Maximo Langer, forcefully argues that while the ICC has greater legitimacy than national tribunals that may prosecute similar crimes under universal jurisdiction, it may lack the capacity to handle certain prosecutions or may be thwarted for political reasons. Therefore, national prosecutions under universal jurisdiction still have an important role to play in filling gaps missed by the ICC, extending the reach of international justice.*° “4 Glasius, The International Criminal Court, 74-6. “5 Schabas, An Introduction to the International Criminal Court, 75—6. “© Maximo Langer, “The Archipelago and The Hub: Universal Jurisdiction Domestic Prosecutions and the International Criminal Court,” in The First Global Prosecutor: Constraints and Promise, ed. Martha Minow, Cora True-Frost and Alex Whiting (Ann Arbor, Michigan: University of Michigan Press, forthcoming 2014). According to Langer, through 2009 there were twenty-seven such national trials under universal jurisdiction for genocide, crimes against humanity, and war crimes separate from “grave breaches’ of the Geneva Conventions of 1949.

286 The Birth of the New Justice Separately from the ICC, there is a profusion of various special tribunals under international supervision, different from the post-World War Two period when different forms of national justice prevailed. In addition to the tribunals for Rwanda and the former Yugoslavia, there is a special hybrid United Nations-Cambodian tribunal to prosecute former members of the Khmer Rouge, and a Special Tribunal for Sierra Leone, which prosecutes crimes committed during that country’s civil war in the 1990s. It could be decades or longer before the effects of all these courts are understood. They have set several significant precedents and evoked much criticism. They have demonstrated that the International Military Tribunal at Nuremberg was nota one-time occurrence. Generals, political leaders, soldiers, paramilitaries, and guerrillas have been prosecuted for war crimes, crimes against humanity, and genocide. Individuals have been held responsible for committing crimes directly, for

ordering them, and failing to prevent them. Although genocide prosecutions are considered difficult because they require proof of intent to destroy the group, the law has been successfully applied. The first occasion was in 1998, when the International Criminal Tribunal for Rwanda prosecuted Jean-Paul Akayesu, a small-town mayor

who came from the Hutu ethnic group. When the Hutu-led genocide against the Tutsi ethnic group began in Rwanda in April 1994, Akayesu first tried to keep Hutu militias out of his town, but then he ended up collaborating with them. He was found guilty of genocide, in part because he had read the names of supposed Tutsi “enemies” from a list at public meetings, and this was considered a form of inciting genocide.*” The new legal framework has also been able to encompass ethnic cleansing, the

process of driving persons from their homes and attacking them because of their ethnic identity. An appellate panel of judges on the Yugoslav tribunal ruled that the grave breaches provisions of the Geneva Conventions of 1949, dealing with willful killing, torture, and the unlawful confinement of civilians, applied to the conflict as a non-international armed conflict, and penal sanctions could therefore be applied. Furthermore, prosecutors now hold that these crimes are part of customary law and can be punished whether a conflict is civil or international. ‘The Yugoslav tribunal was the first to have a case in which a defendant pleaded guilty to rape, which was explicitly treated as a crime against humanity. Prosecutors are now applying this idea in the International Criminal Court. In a precedent-setting ruling, judges on the Rwandan tribunal declared that systematic rape committed against an ethnic group qualifies as a type of genocide, in that it causes severe mental and physical harm. The special court for Sierra Leone found rebel leaders guilty of conscripting child soldiers, which had not been prosecuted internationally before.

In 2009-2010, the Extraordinary Chambers in the Courts of Cambodia, a joint tribunal comprised of Cambodian and foreign judges, reopened the painful history of the Khmer Rouge era (1975-79), convicting Kaing Guek Eav (known as Duch) for his role in supervising interrogations and training interrogators to use torture at Tuol Sleng prison, where at least 12,273 people were tortured and “7 Thierry Cruvellier, Court of Remorse: Inside the International Tribunal for Rwanda, trans. Chari Voss (Madison: University of Wisconsin Press, 2010), 20-8.

Epilogue 287 murdered. Although the judges ruled that the evidence was not sufficient to prove that Duch had personally committed torture and murder, he was sentenced to thirty years for crimes against humanity due to his participation in a joint criminal enterprise of political persecution, a concept established by other international tribunals.** Duch appealed against his sentence in 2011, his lawyers arguing that he was compelled to follow orders under threat of death. In 2012 the appellate chamber upheld his conviction and increased his sentence to life in prison.” The new international courts are not without problems. At the permanent International Criminal Court, the trial of Thomas Lubanga, a former Congolese military commander prosecuted for forcibly recruiting child soldiers, suffered several major complications because the prosecution did not give his defense potentially exculpatory evidence, even though the judges ordered it to do so. The lower court ordered the case to be thrown out but an appellate panel ruled it had to continue. He was finally sentenced to fourteen years in prison.”” Since there is no international police force, it has been difficult to arrest and extradite suspects, especially when they are harbored by sympathetic governments. In 2008, thirteen years after his initial indictment, Radovan Karadzi¢, the former president of the separatist Bosnian Serb Republic in Bosnia, was finally arrested by Serb authorities in Belgrade and transferred to The Hague to stand trial for charges related to the 1992-95 war in Bosnia, including the shelling of Sarajevo and his alleged responsibility for the genocide of 8,000 Muslim men and boys in the town of Srebrenica. The prosecution phase of the trial was lengthy (from April 2010 to May 2012), and attempted to prove that Karadzi¢ and his military commanders intended to forcibly expel Muslims and Croats from Serb-controlled areas of Bosnia, as well as prove that Karadzi¢ possessed genocidal intent based on his statements and actions while in office. At the time of this writing, Karadzic, a former psychiatrist, had completed one part of his defense. (He chose to defend himself, though he was assisted by outside counsel in his attempt to have the genocide charges thrown out by the court, a legal move which ultimately failed.)?' He has partly relied on witnesses who claimed that Serb forces acted in self-defense, while he himself claims that Bosnian Muslim forces were responsible for the shells that fell on Sarajevo—despite the fact that in an earlier case against Stanislav Gali¢, the Bosnian Serb military commander of the division that shelled and sniped at Sarajevo civilians, the tribunal ruled that Bosnian Serb forces had waged a terror campaign against Bosnian Muslim civilians, and the number of Serb attacks was far “8 Extraordinary Chambers in the Courts of Cambodia, Transcript of Trial Proceedings, Trial Chamber Judgment Hearing, Kaing Guek Eav “Duch,” Case File No. 001/18-07-2007-ECCC/TC, July 26, 2010, 17-18. © ‘Thierry Cruvellier, “The Khmer Rouge’s Perfect Villain,” New York Times, February 8, 2012.

© Case Information Sheet, International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, September 13, 2012. > For his counsel’s argument that prior tribunal cases had not found that genocide occurred in Bosnia and Herzegovina, see Prosecutor v. Radovan Karadzié YY-95-5/18, transcript, June 11, 2012, 28569-28580. For the Appeals Chamber ruling that reinstated the genocide charge, see Rule 98 bis Appeals Judgement Summary in the case of Radovan Karadzi¢, July 11, 2013.

288 The Birth of the New Justice greater than those that Bosnian Muslim forces might have launched to gain international sympathy.” The defense phase of the trial dealing with the genocide charges began in the fall of 2013. While the overall case is very important for its historical record, for the interplay of accounts about how the war began and what occurred, and for the opportunity for victims to give their testimony, historians will have to wait to see the results of the case and the logic behind the verdict before offering a balanced final assessment. Problems aside, some international lawyers, human rights advocates, and the Secretary General of the United Nations believe the “age of impunity” has ended, meaning that heads of state and military leaders will be prosecuted for ordering mass atrocities.** They contend that these tribunals help create a historical record, give victims a voice, and will serve as a deterrent in the future. Other advocates are more skeptical, taking a “wait and see” position.** They acknowledge that new legal

precedents have been set, but they note that international tribunals are often opposed by die-hard local populations, have not always followed proper procedures, and may really be fig-leaves for major states that did not want to intervene militarily to prevent atrocities. Other supporters of international justice argue that it must be applied equally to all countries and cannot become a double standard that does not apply to Western states and their clients.” There are moderates who believe that international trials may sometimes be useful after a war or transition to a new regime, but tribunals should not get in the way of negotiating an end to a raging war, nor should they be imposed without giving victims the right to consider other options, such as public investigating committees, financial reparations, religious ceremonies, and social rituals.” Finally there are the arch-opponents, coming from different positions. Certain African and Arab leaders have wielded the rhetoric of anti-colonialism to deny the validity of the ICC’s mission, claiming that international courts are instruments of ” Prosecutor v. Stanislav Galié, YY-98-29-T, Judgement and Opinion (December 5, 2003), para. 206-225,

733-752. °> The phrase has been used by writers on several continents. See M. Cherif Bassiouni, “The International Criminal Court-Court is No Threat to Us,” Chicago Tribune, July 14, 2002; Geoffrey Robertson, “Playing the Odds in the Justice Game,” The Guardian, December 19, 2002; Rosa Brooks, “The Age of Impunity Is Gradually Coming to an End,” The Times, July 25, 2005; “Africa's Despots Put on Notice,” Japan Times, April 5, 2006; Samuel Olara, “Spin-Doctoring Impunity And Lawlessness in Acholi,” The Monitor, November 16, 2006; Ban Ki-moon, “A Stronger United Nations for a Better World,” U.N. Secretary-General’s Address to the General Assembly, September 25, 2007; Gordon Brown, “I Want to Tell the Regime: Stand Down the Troops. ‘The Age of Impunity Is Over,” The Independent, September 27, 2007; Jonathan FE. Fanton, “International Justice,’ New York Times, September 28, 2007; Mariana Pena of the International Federation for Human Rights, quoted in Alix Rijckaert, “ICC Holds Confirmation Hearing for Two Congolese Militiamen,” Agence France-Press, June 25, 2008. *€ See Ramesh Thakur, “Injustice across Borders?,” The Japan Times, July 31, 2001, who warned, “Ad hoc tribunals leave the process of international law more vulnerable to the pursuit of power politics than would be possible in the ICC.”

°° Rami G. Khouri, “Indict Bashir, Arab Justice Would Gain,” The Daily Star, July 16, 2008; Robert Skidelsky, “A Warrant of Hypocrisy,” Daily News, March 19, 2009. °° Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); Fredrick Ssemwanga, “Traditional Courts Cannot Handle War Crimes Effectively,” New Vision, July 15, 2009.

Epilogue 289 Western political power imposed on former colonized or subjugated regions.”’ The

problem with this position is that in countries such as Uganda, a governmentsponsored amnesty for members of the Lord’s Resistance Army did not lead to social reconciliation or a full accounting for crimes. Sections of the population therefore support prosecution by the International Criminal Court.”* In the former

Yugoslavia, in the 1990s and early 2000s, it was highly unlikely that ultranationalists would have been prosecuted by their own state’s courts, especially as

many within Croatia and Serbia were regarded as heroes, so the International Criminal Tribunal for the former Yugoslavia fulfilled a vital function.” Another group of opponents consists of diplomats from China, Russia, and the U.S., who have not been assuaged by the fact that the court only comes into play if a state is unable or unwilling to prosecute its own nationals.® These three states reject the court’s jurisdiction over their nationals. For various reasons—China’s suppression of Tibetan protestors, Russias past war against Chechen rebels, and the U.S. “war on terrorism” and violations of international laws against torture— these three powers are unlikely to join the ICC, not because the court would have retroactive jurisdiction against their nationals, but because all have justified these types of actions as necessary for state security and want a free hand in the future. Thus, powerful states with large militaries remain opposed to individual criminal liability under international law when it does not suit their interests.

*” See the fourth resolution of the World Mathaba Summit in Tripoli in 2000, opposing membership in the ICC, in “Libya: Summit of African Leaders, World Figures Issues Statement,” JANA News Agency, September 1, 2000; the Arab National Congress’ 2005 condemnation of U.N. Security Coun-

cil resolutions concerning Sudan and the alleged genocide in Darfur, in “The 16th Arab National Congress (Algiers, April 6-9, 2005),” The Daily Star, April 18, 2005; Rwandan President Paul Kagame’s condemnation of the International Criminal Court, cited in “Rwandan President Says ICC Targeting African Countries,” Sudan Tribune, August 4, 2008; Stephen Asiimwe, “International Court Wrong On Bashir Indictment,” New Vision, August 5, 2008; and “Bashir Attacks West over Warrant,” March 5, 2009, Aljazeera.net, . 8 Tim Allen, Trial Justice: The International Criminal Court and the Lords Resistance Army (London: Zed Books, 2006). » Slavenka Drakuli¢, They Would Never Hurt a Fly: War Criminals on Trial in the Hague (New York: Viking, 2004). °° Barbara Slavin, “Jurisdiction Worry Puts U.S. Off Court Pact. Entity’s Purpose Is to Try War Crimes,” USA Today, July 23, 1998; John R. Bolton, “The Global Prosecutors: Hunting War Criminals in the Name of Utopia,” Foreign Affairs 78, no. 1 (1999): 157-64; John R. Bolton, “Unsign That

Treaty,’ Washington Post, January 4, 2001; Bing Bing Jia, “China and the International Criminal Court: The Current Situation,” Singapore Yearbook of International Law 10 (2006): 87-97; “ICC’s Arrest Warrant Disturbs Sudan's Stability, Says Chinese Envoy,” Xinhua News Agency, March 5, 2009.

Conclusion This book contributes to a richer understanding of the evolution of the international system and the prosecution of serious crimes. It explains the development of the new philosophy of international prosecution and punishment as it developed between 1919 and 1950, illustrating the specific historical problems and intellectual trends that gave rise to this new way of thinking. It analyzes the birth of the “new justice” at the Paris Peace Conference, the catalysts for proposals for interna-

tional criminal courts in the 1920s, and the role of the interwar international criminal law movement in formulating new measures to repress terrorism. It contextualizes and evaluates the work of Vespasien Pella and Raphael Lemkin, revealing new information about the movements in which these figures were involved. It reveals the contribution of other groups, such as the World Jewish Congress and the Institute of Jewish Affairs, proving that the first Nuremberg trial was not exclusively shaped by government advisors and prosecutors. It analyzes the addition of criminal enforcement to the Geneva Conventions of 1949, showing why the International Committee of the Red Cross was initially reluctant to pursue this project and then warmed to it. The book also challenges the views that international criminal courts were always designed to limit state sovereignty, international criminal jurists always espoused liberal causes, and Great Power support was the only factor that mattered in the success or failure of legal projects. At the Paris Peace Conference, the European Allies did not want merely to prosecute Germans, Bulgarians, and Turks for violations of the laws and customs of war in response to retributive urges, atrocity propaganda, or the pressure of public opinion, though these certainly affected the delegates’ and advisors’ policies. Juriststatesmen on the Commission on Responsibilities had a variety of motives. The French and British legal advisors believed that tribunals would re-establish interna-

tional legal standards, enforcing them through prosecution. Trials were also envisioned as vehicles that could expose the terror-warfare of the enemy and prove

that they had violated international law as matter of policy. Real crimes had occurred, and the European delegates believed that the laws and customs of war would have no meaning unless violators were punished. Still, they made certain political recommendations, advising that the ex-Kaiser and German officials should not be prosecuted for violating neutrality treaties, as this could lead to a complex international case in which the Allies’ pre-war diplomacy would be scrutinized, possibly placing some of the blame for the outbreak of the war on them. Allied political leaders also made their preferences known: the Austrians should not be prosecuted, despite the Serbian demand that Austria should be formally condemned

Conclusion 291 because it refused to submit its dispute concerning the responsibility for the Franz Ferdinand assassination to international arbitration. The Balkan delegates on the Commission had different motives from the West Europeans. The Balkan states at the Peace Conference were enmeshed in conflicts concerning the political control and possible national integration of various regions in southeastern Europe and Asia-Minor. Charges of denationalization were partly advanced to justify border changes, as well as expose the Turks and Bulgarians, who had allegedly planned and executed large-scale operations to deport, eliminate, or change the nationality of Armenians, Greeks, and Macedonians. Despite Politis’ claim that international tribunals would help states in the region improve their poisoned relations, the Greeks wanted to use international tribunals against the Turks and Bulgarians when they were the injured party, yet they wanted to use their own military procedures to deal with their own crimes in Smyrna. Overall, then, there was a mixture of political and legal motives that led the European delegates to support international tribunals for war crimes. The U.S. delegation advanced various legal arguments against the legitimacy of this move, though Lansing and Wilson were not purely motivated by principles of justice and strict legal positivism. They wanted to avoid a harsh peace in the short-term to prevent socialist revolution in Germany, yet Wilson eventually capitulated to Euro-

pean political leaders who wanted an international trial of the ex-Kaiser and national military tribunals (not an international tribunal) for alleged German war criminals. The U.S. thought it could avoid setting a legal precedent with a trial of the ex-Kaiser by concocting a special political charge that referred to morality and international policy. The use of national tribunals for war criminals meant that the U.S. would not have to get involved in European proceedings. Plus, it could avoid setting a precedent that might interfere with its own historical use of military tribunals under presidential authority. In the end, however, there was no trial of the ex-Kaiser, because he had escaped to Holland and the Dutch refused to extradite him. The British threat to prevent the Netherlands from entering the League was a bluff. The episode revealed a serious problem in prosecuting a sovereign after a conflict: there were no guarantees that he would be extradited. Regarding the Allies’ demand that Germany deliver alleged war criminals to stand trial, the Allies changed position in 1920 and allowed the Weimar government to hold its own trials, believing that conservative military opposition to an extradition request could destabilize the Weimar government. In fact, the Weimar government had prepared for holding its own trials by passing a national law at the end of 1919 that forbade the extradition of any German national to stand trial before a foreign power. The government accommodated the Allies’ demands by agreeing to prosecute its own, a decision that occurred during a period of deep economic crisis and social conflict in Germany. One new facet illuminated by this book is the position of the League Secretariat toward the extradition crises. League officials were unwilling to get involved in the dispute between the Allies and the Netherlands and the negotiations between the Allies and Germany, as they did not want to seem partial and damage the reputa-

tion of the new institution. But this left them in a peculiar situation, as they

292 The Birth of the New Justice supported the section of the Versailles Treaty that created the League, but not the part that contained penalties. This was the beginning of a pattern in which the Secretariat shied away from punitive legal measures. Throughout the interwar period, the Secretariat’s Legal Section was timid and unadventurous when it came to new ideas about international criminal law. The Secretariat preferred to act as a backchannel in political negotiations and never advocated extending the competence of the Permanent Court to criminal cases. “Crimes of denationalization” and “crimes against humanity” did not immediately become key concepts of the “new justice” in the early 1920s for several reasons. Ihe Armenian, Greek, and Serbian delegations legally defined these in

different ways at the Paris Peace Conference and did not reconcile the differences. The lack of international trials after World War One meant that courts did not build jurisprudence around them. Several successor governments in the Balkans used military tribunals after World War One to purge political opponents

rather than deal with crimes of denationalization. On the international level, international lawyers and diplomats favored other legal and quasi-legal methods to deal with nationality problems: population transfer agreements and the minorities treaties. This book has demonstrated that the catalyst for developing an international criminal court in the ’20s was not merely Allied frustration with the Leipzig trials. In fact, the movement to build a court began before those trials even started. In the summer of 1920, jurists such as Descamps wanted to complete the international system with a criminal court to defend the new international order, which meant protecting the system against communist attacks. Second, the European movement to develop a court in the 1920s recognized that there were problems in the construction of the Versailles penalty clauses. The rules of a tribunal were not determined in advance. ‘The victor states would supply both prosecutors and judges, while neutral states would play no role. The existing conventions governing the laws of war did not specify individual penalties and or state that belligerents could try enemy individuals after a conflict. Third, jurists such as Pella were motivated by the idea that the League system should be strengthened by holding states and individuals responsible for acts of aggression. This should not only be done with sanctions but with a trial system and penalties, applying the mechanisms of the administrative constitutional state to international politics. Political scientist, K S. Northedge, argues that the League was built on nineteenth century liberalism, which idealized a peaceful world of free trade. The machinery of the state was supposed to fade in importance, while international social and labor agencies would act as “night-watchmen” to protect the world’s peoples against the excesses of capitalism. He notes that the realities of the 1930s were much different, as states engaged in trade and tariff wars, refused to reduce their armaments for fear of diminishing their security, and turned toward corporatist and Keynesian policies.’ This is true, yet the international criminal jurists of ' E S. Northedge, Zhe League of Nations: Its Life and Times 1920-1946 (New York: Leicester University Press, 1986), 167-9.

Conclusion 293 the 1920s and ’30s, as staunch League supporters, did not regard the League as a benevolent guardian which would supplant the nation-state. Their key idea was a collective international system which adapted the mechanisms of the nation-state while still preserving state power in the area of criminal enforcement. National and global institutions were supposed to be joined, functioning according to definitive rules and penalties. The proposed international criminal court and League Council, which would have the final say in deciding whether a case could proceed to the court, would combine a system of judicial enforcement with a higher political authority. States would have to submit voluntarily, but there would come a point at which they would have to give up the unconditional right to make war. They would also have to accept that their own officials could be held liable for violating treaties and ordering (or condoning) violations of the laws of war. Moreover, the system was more complex than merely a Super-State that would trump state sovereignty. Many international criminal jurists supported universal jurisdiction for human trafhicking, drug trafficking, terrorism, and counterfeiting, meaning that states should have the power to punish non-nationals for these crimes, wherever they were committed. On both the national and international level, the idea of the strong hand of judicial and political authority was evident. Another contribution of this book is its analysis of the work of Pella and his circle, which has received little critical historical examination. The group’s goal of preventing war seemed utopian, and the idea that social defense should serve as the unifying principle for national penal codes seemed progressive. But the strong support of Central and Eastern European jurists for these ideas was also founded on national interests: they wanted to secure their relatively small states against future ageression (from Germany, Hungary, or the Soviet Union); and they wanted to modernize their penal codes at a time when their states were trying to integrate new territories and populations. Additionally, there were a number of conservative trends that ran through the thought and actions of jurists who supported an international criminal court. Pella, like many jurists, was anti-communist, and he also wanted to criminalize trade unions. De Vabres believed immigrants were partly responsible for a rise in postwar crime in France, and he suggested that a convention preventing genocide should protect the few against a riotous underclass. Pella and Carton de Wiart courted the Nazis in the late 1930s, and Pella remained in the

diplomatic service of Romania even under the brutal phase of the Antonescu regime. He told Lemkin that he had accepted his post as Minister of Romania in Switzerland to extricate Romania from the war; yet remaining in the service of that government seems contrary to the principles in his writings. Apparently he thought he could exert some influence from the inside. Pella’s analysis of the development of the aggressive state was based on an interpretation of German militarism from the First World War era. He mainly applied this concept to Nazism, overlooking its fundamental differences. Additionally, he did not discuss the role of other Eastern European states in the war and the influence that native fascist movements played in exclusionary and exterminatory policies against the Jews. On the practical and positive side after World War Two, he was able to serve the UN Secretariat as a Romanian observer and technical advisor,

294 The Birth of the New Justice and he continued to advocate a permanent international criminal court. He was less politically effective than Lemkin, but in the new Cold War environment, establishing a court was more difficult than passing the Genocide Convention, which itself was a tough task. Great Power support or rejection for proposed international criminal courts and new criminal laws was not the only factor in the success or failure of those plans. The jurists’ intellectual preparation was extremely important: this was lacking when Descamps introduced his idea for a High Tribunal to the Advisory Committee of Jurists in 1920. Jurists in the International Law Association and the Association Internationale de Droit Pénal held multiple conferences and published many articles refining their ideas about international crimes. Their joint work on the draft statute for an international criminal court in 1928 was the result of long labors. Yet

they never thought about trying to mobilize the public or bring their ideas to a broader audience around the world. They spoke to each other—lawyers, professors, penal experts, government ofhcials—and viewed themselves as the guides and experts whom society should follow.

By contrast, Lemkin formed links to religious, civil, labor, and other nongovernmental organizations when he began working on the Genocide Convention. These organizations were not merely minor players. Some of them, such as the World Jewish Congress, the World Federation of United Nations Associa-

tions, and the U.S. Committee for a UN Genocide Convention, contributed ideas to the convention and met with government delegates to bring the convention to fruition. Furthermore, they utilized the radio and press, petition drives, and letter-writing campaigns. This had far more in common with anti-slavery movements in the nineteenth century, peace movements at the turn of the century, and the disarmament movement in the 1920s and ’30s than with professional legal associations. Still, the work of lobbyists and non-governmental organizations and their use of media should not be over-rated. In fact, the final decisions always lay in the hands of governments. For this reason, jurists and advocates were more successful if the

scope of the project was limited and the meaning could serve a self-interested national purpose. An international criminal law project was more likely to pass muster with governments if they could parade its symbolic value and possibly use the law to their own advantage at some point in the future. Furthermore, conventions which involved minimal obligations for states, such as those that allowed them to maintain their current extradition practices, had greater appeal. The actual implementation of the Genocide Convention showed that states largely integrated it into their domestic legislation in whatever way their leaders or legislatures found appropriate. In some cases, states imported the convention's provisions into their penal codes wholesale while, in other cases, states declared that all the acts covered by the convention were already covered by existing domestic legislation. Since the

convention did not insist on primary jurisdiction for an international criminal court, give the Secretary General new powers, or require mandatory sanctions for states that failed to comply, it was a safer proposition than a court which could prosecute state officials and military leaders for aggressive war.

Conclusion 295 This book has shown that the history of the Genocide Convention was not merely the history of Lemkin’s ideas and lobbying. In some areas, he was not the

first on the scene. Llewellyn Jones proposed giving an international criminal court the power to prosecute violations of the minorities treaties in 1926, and Pella used the concepts of barbarity and vandalism for international crimes in 1929, which Lemkin applied to the area of protecting “certain collectivities” in 1933. Yet sorting out the intellectual history of concepts is not the most important point. The broader historical development is that Pella’s group wanted to use international criminal law to secure the Versailles system borders, stave off revisionist threats from Hungary and Italy, and protect states against counterfeiting and terrorism. Lemkin, Robinson, and others worked to broaden international criminal law and war crimes law to deal with a different area: the breakdown of the League system to protect minorities and the problem of crimes committed by state agents against its own population in “peacetime.” Jurists adopted “new justice” concepts for a distinct problem, responding to a distinct crisis; it was not a linear development. Many legal groups made contributions, large and small, to the ideas and institutions realized at Nuremberg, whose underlying concepts were not as new as sometimes assumed. Previous scholars have made this point, and the evidence I have assembled adds to it. Skeptics may claim that the Commission on Responsibilities at the Paris Peace Conference, the Association Internationale de Droit Pénal, the United Nations War Crimes Commission (UNWCC), and the World Jewish Congress were not very important, because U.S. policy-makers developed their trial plan independently, and the decisive historical development was the Allies’ negotiation of the International Military Tribunal’s Charter in London in August 1945. However, a significant amount of theoretical work and consideration of the problems had been considered prior to that. This is not simply a claim that ideas were “in the air.” Government policy-makers in the U.S. and Europe were aware of the plans incubated by the UNWCC; they had delegates in that organization, even though they frequently tried to hinder its work and ultimately did not give it the authority to plan post-war trials. There was another route of influence: the WJC’s Institute of Jewish Affairs provided dossiers, draft indictments, and legal briefs to American prosecutors. Furthermore, the channels between some of the pre-war developments and Nuremberg are clear. De Vabres, France’s judge, was deeply involved in the interwar movement and helped develop its doctrines, and Lemkin assisted Allied prosecutors at Nuremberg. While Lemkin did not shape prosecutors’ cases to the extent that Robinson did with Walsh, he did introduce the concept of genocide into the proceedings. Robinson and Lemkin wanted to steer prosecutors and the court to realize that Nazi extermination was not the same as reprisal killings or civilian massacres committed by out-of-control soldiers. ‘Their goal was to demonstrate that genocide began with administrative measures before the war started, and direct killing was only one aspect of the process. Multiple agencies participated in criminal policies to eliminate and replace certain national and religious groups. Lemkin believed the Nazis targeted multiple nationalities, while Robinson and the Institute emphasized that the

296 The Birth of the New Justice Jews were targeted with unique measures, such as ghettoization and reduced food rations. Lemkin argued that the Nazis were pursuing a new demographic ideology, while Robinson crafted the strategic legal argument that the Nazis targeted the Jews in order to eliminate them as obstacles to their war plans. The strong intentionalist views of Robinson and the Institute (the notion that the Nazi leadership intended in 1933 to exterminate the Jews) are not supported by historiography today, yet the Institute’s reporting and analysis of the Jewish situation in multiple countries in Europe deserves greater attention. This was an extremely difficult task due to travel restrictions, the overall complexity of events in multiple countries, and government censorship. During World War Two, the Institute was a think-tank which produced contemporary reports and analysis; it

collected information on which its political and rescue departments relied for action. Once the group began trying to influence war crimes policy, it changed from providing background analysis and intelligence reports to serving as a sort of advisory prosecutor behind the scenes. There is no question that many of the subtleties of the Institute’s own analyses were lost in the process of trying to construct a case for the first Nuremberg trial, which required that the prosecutors show how crimes against humanity were connected to an overarching conspiracy to commit aggressive war. Furthermore, the first trial only involved Germans, while the Institute had carefully followed developments throughout Central and Eastern Europe and recognized during the war that the extermination of the Jews was not centrally directed from Berlin. Future

research could examine the role the Institute and the WJC played in other war crimes trials and analyze how those efforts were linked to reconstruction and reparations efforts. Regarding the revision of the Geneva Conventions in 1946—49, the book proved that the International Committee of the Red Cross was not a determined advocate of criminal prosecution at the outset. An increasing number of scholars are becoming aware of the organization's conservative and pro-German leanings in the 1930s. These influenced its caution and reservations about the Allies’ war crimes tribunals,

but so did its own interests in trying to rebuild the German Red Cross. Yet the ICRC began to change its tune as a result of pressures from multiple directions: calls from within the Red Cross movement for the Geneva Conventions to codify criminal enforcement; legal irregularities in war crimes trials; and the ICRC’s perception that if it did not erect legal safeguards for the accused, criminal prosecution might violate the rights of POWs in the future. Thus, there was an interesting cultural and legal clash between the drive to establish prosecution as a standard (the “new justice”) and the ICRC’s traditional determination to protect the POW, even if he were quite possibly a war criminal (as in the case of the German generals). Furthermore, this book explained why an international criminal court was not

given primary jurisdiction in the Geneva Conventions. It was not only because Britain opposed it on grounds of sovereignty and the domestic legal difficulties it might have posed. ‘The U.S. opposed it too, and the ICRC was willing “to jettison

the ballast to save the boat”—meaning it considered an international criminal court and the explicit prohibition of superior orders as a defense less important

Conclusion 297 than trying to win support for the main goal: revising the conventions overall and trying to realize a new convention to protect civilians in warfare. Future research might examine the ICRC’s position on criminal prosecution in non-international conflicts during the Cold War. This book has additionally elucidated the way that the history of international criminal law followed a separate path from movements involved in human rights and the codification of laws of war. At the Paris Peace Conference, the Commission on Responsibilities recognized that the laws and customs of war were designed to protect injured soldiers, war prisoners, and the life and property of civilians under occupation. Criminal enforcement was supposed to re-establish the validity of the principles. Yet the obligations of belligerents in wartime are separate from constitutional or common law protections of civil and political rights; war crimes prosecution did not deal with this area. Proposals to establish an international criminal court in the 1920s did not cover it either. The goal there was to prevent ageression, deal with possible jurisdictional conflicts that could lead to war, and give states new tools to fight international crimes. While citizens and subjects would obviously benefit if states maintained peaceful relations and crime was reduced, the goal of an international criminal court was not to protect individuals

when their own municipal courts failed and their governments turned against them. If it had been, then Pella’s 1928 draft statute would have allowed individuals and non-governmental organizations to have standing before the court. Furthermore, the 1937 League conventions defining international terrorism and establishing an international criminal court were not human rights instruments. They were never implemented, so any discussion of their effects is hypothetical. Still, in light of the rightward shift of many European governments in the 1930s, the abolition

of democratic systems in most of continental Europe, and the involvement of police in political affairs, there is good cause to doubt whether the convention would have been used to protect people against the most rampant form of violence in the era, radical rightist violence. As for the figures and groups involved in the Genocide Convention, their posi-

tion on a new, enforceable system of human rights varied. Lemkin, as is wellknown, dismissed the UN Declaration on Human Rights and opposed any system which would have given the UN powers of criminal prosecution to enforce civil liberties. When some of his associates who worked on the convention, such as James Rosenberg, got involved in the early stage of the American civil rights movement in the 1950s, Lemkin considered them traitors. He refused to countenance any project that would supposedly dilute the Genocide Convention. In part this was tactical, because he believed that if the Genocide Convention was associated with human rights, it would never overcome objections in the U.S. Congress, where there were strong isolationist and pro-segregationist currents. Right-wing and conservative opponents argued that the Genocide Convention would make U.S. officials criminally liable for discrimination, segregation and, especially, lynching. But for Lemkin, it went deeper than this. It seemed that all that mattered was “the right to existence,’ while civil and political rights, in his view, were the sole domain of nation-states. There was a contradiction here. State

298 The Birth of the New Justice agents should not have impunity to commit grave crimes against a group with the intent to destroy it, yet state authorities should be left to govern themselves should they violate citizens’ rights without actually killing them off or destroying their cultural institutions. The World Jewish Congress was a different case, because the group had tried

to protect minority rights through advocacy, petitions, and court proceedings during the 1930s. International criminal law was not the only answer. When the war ended and the new UN was being built, the WJC’s Legal Department and the Institute of Jewish Affairs wanted to construct a system of international human rights. One of their proposed ideas, which was not accepted, was that prospective UN member states would have to pass a “test of citizenship,” designed

to keep out human rights violators. The question, however, is whether their advocacy for Jewish rights was linked to a universalist project of human rights. In my view, the particular needs of Jews were primary in the WJC’s political work. In the war-time crisis, when Jews were stripped of their jobs and resources and had very limited possibilities of immigrating to Allied and neutral states, the WJC concentrated on rescue and relief for Jews, as their needs were dire. After all, the protection of Diaspora Jews was the WJC’s central mission. Following the war, the WJC wanted human rights enforcement at the UN, but it probably would have preferred an international law prohibiting anti-Semitism. Its construction and enforcement certainly would have been a challenge, as later efforts in the UN to eliminate discrimination and racism proved to be. More concretely, once the partition of Palestine looked as if it would become a reality in 1947, the WJC supported the creation of a Jewish state. In the aftermath of the Holocaust, it fought for restitution of seized Jewish property and lost earnings, as well as reparations for the destruction of lives and property. The group considered it

possible that some Jews would return to their former homes in Central and Eastern Europe. In conclusion, this book has offered a history of the development of international criminal law during the first half of the twentieth century, considering the role of various lawyers, jurists, associations, and advocacy groups in international institutions and political settings. The idea of a permanent international criminal court was developed, refined, and rejected in this period, though ad hoc tribunals were established in Nuremberg and Tokyo. Between 1919 and 1950, the concept was re-tooled to fit different political problems and social goals, including retribution for war crimes, the prevention of war, the neutral prosecution of international terrorists, and a forum to expose types of crimes, such as genocide, that had not been formulated as legal concepts previously. Although jurists and lawyers engaged in many legal conflicts over particular issues, a new political—legal viewpoint emerged, combining ideas from classical penal law, humanitarian war crimes

law, social defense, and the protection of minorities. A general philosophy of international prosecution and punishment started to take shape: precisely defined laws; an impartial tribunal; cooperation among states in extradition and prosecution; and a belief that no one stood above the law. Different historical situations catalyzed the development of this philosophy. Advocates were motivated by the

Conclusion 299 needs of their national governments, utopian ideals of peace, fears about new forms of international crime, the necessity of protecting their own minority group, the desire to create new types of international authority to counter threats posed by the nation state, and an interest in avoiding ex post facto war crimes prosecutions and private vengeance. The organizations and activists who developed the “new justice” traversed many distinct landscapes in this period, offering a variety of ways to implement this philosophy.

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