CHAPTER XXXVIII ENFORCEMENT OF INTERNATIONAL LAW; 8578. The Problem Stated; § 579. Lack of Effective Sanctions; § 580. Indemnity for Damages; § 581. Penal Clauses of the Treaty of Peace; § 582. The Principle of Personal Responsibility of Soldiers for Criminal Acts; § 583. Provisions of Military Manuals; § 584. Difficulties of Application; § 585. Punishment of Crimes Committed in Foreign Territory; § 586. Jurisdiction of Crimes on the High Seas; § 587. Trial of Offenders in their Absence; § 588. The Plea of Superior Command; 589. Responsibility of Chiefs of States; $590. Decision of the Peace Conference regarding the Trial of the German Emperor; § 591. Decision of the Peace Conference Considered; § 592. Precedents for the Trial of Chiefs of States; 593. Immunity of Chiefs of States; § 594. New Attitude toward Violations of International Law; § 595. Outlook for the Future. § 578. The Problem Stated. More important than the task of reconstructing international law is the problem of making it more effective, that is, of devising means for compelling respect for its commands and prohibitions. As Mr. Root has aptly remarked, the civilized world must now determine whether what we call international law is to be continued as a mere code of etiquette or whether it is to be a real body of laws imposing obligations much more definite and inevitable than they have been heretofore.1 It hardly seems possible that international law can ever be made effective in the sense in which municipal law is effective. Nevertheless, there would seem to be several ways by which its binding force can be materially strengthened and its value as a body of law enhanced. In the first place, as stated above, the body of law itself must be reconstructed and elaborated, and to this end there should be provided a more efficacious machinery for making international law and for revising it, from time to time, as changing conditions require. In the second place, an effort should be made to establish an international organization with appropriate agencies for enforcing its prescriptions. Third, 1 See his address on "The Outlook for International Law," in the Proceedings of the Amer. Soc. of Int. Law, 1915. provision should be made for the compulsory investigation of international disputes of a political character and the compulsory arbitration of those of a justiciable character. Finally, there should be an agreement among the powers to employ their moral and economic, and if necessary their armed, strength to compel disputing nations to have recourse, except in cases of self-defence, to the one or the other of these expedients, depending on the nature of the controversy. In short, the making of war, except in case of self-defence, should be declared illegal and the disputants should be restrained by the joint action of the body of States from attacking each other and thereby disturbing the general peace, until they have made a sincere attempt to settle their disputes by conciliation or arbitration. The realization of this scheme will necessarily involve the assumption of new and unprecedented obligations on the part of States as well as the loss of a certain portion of what is commonly described as their sovereignty. But there is really nothing new in this principle, since all States by entering into treaties and by becoming parties to general international conventions assume thereby new obligations and at the same time relinquish in the common interest a portion of their own liberty of action. Civil society was founded on this principle, many political unions have been organized in this way, and whatever progress has thus far been achieved in the direction of international organization and administration, and it is much larger than it is generally supposed, has come through the common assumption of new obligations and the mutual relinquishment by States of their own freedom of action in certain particulars. The only possible way by which a real society of States can be formed and a system of law and justice substituted in the place of force is through the further extension of this sound and necessary principle. The body of States must consent to give up the barbaric right to be their own judges in controversies with other States and to make war upon their neighbors for any reason which may seem to them sufficient, and those which refuse to 1 Compare the suggestions of Professor J. B. Moore in the American Political Science Review, vol. 9, pp. 1 ff. See also the observations of Dr. Alvarez in his book Le Droit International de l'Avenir, chapters 14 ff. Dr. De Louter, in the article referred to above, makes the suggestion that war should be regarded not as a result of law but as an attack upon the law and that its benefits should be denied to those who by provoking an unjust war are aggressors against the law. LACK OF SANCTIONS 467 do so voluntarily,' in the general interest of civilization, must be compelled by the joint action of the rest, in accordance with the principle that was adopted in the organization of civil society itself. The proposed League of Nations unfortunately meets the situation only in a partial degree. It provides for the investigation of disputes, it undertakes to guarantee the territorial integrity and political independence of States against external aggression, it provides for the use of joint force against a member which disregards its covenants; but instead of providing for the compulsory arbitration of justiciable disputes it creates an obligation to arbitrate only disputes which the parties recognize to be suitable for submission to arbitration." There is, therefore, no obligation to arbitrate anything, but merely an agreement to arbitrate whenever the parties choose to do so.2 $579. Lack of Effective Sanctions. The want of effective sanctions has always been and remains the chief weakness of international law, and one of the necessary tasks of the future is to provide such sanctions. Heretofore, so far as there has been any sanction at all, it has been the force of public opinion: 1 Compare on this point the interesting book of Mr. David Jayne Hill, entitled the Rebuilding of Europe, in which he attacks the "monstrous" and "wicked" dogma of absolute sovereignty as the "real enemy that must be destroyed." The world, he says, must be freed from this sinister inheritance through a modern reconstruction of the State; States must be brought under the dominion of the law and their conduct regulated by obligatory rules and their legal right to make war for any or no reason must be taken away from them. M. Alvarez, in his suggestive treatise, Le Droit International de l'Avenir, dwells upon the necessity of a reorganization of society on juridical bases rather than on the basis of force, but unlike Mr. Hill, he maintains that the existing sovereignty of States must be respected (p. 73). If sovereignty be interpreted to mean the absolute freedom of States to do what they will, it is difficult to see how that freedom can be maintained under the proposed reorganization. It is safe to assume, however, that M. Alvarez does not interpret the term in this unrestricted sense. Professor De Louter, in the article cited above, argues against a form of international reorganization that will destroy the existing sovereignty of States. The retention of their sovereignty, he contends, is not only not an obstacle to the progress of international law but is a necessary instrument. The difficulty rather lies in the false conception of sovereignty which is interpreted to include the right of States to determine their own standards of international conduct, to be the judges of their own controversies with other States, and to pursue policies that are subversive of the rights and interests of their neighbors. It is this view of sovereignty that should be abandoned and not the right of each State to determine for itself its own internal policies which is all that true national sovereignty embraces (p. 88). 2 Compare the incisive analysis and criticism of Mr. Root in a letter published in the N. Y. Times of March 31, 1919. . the national sensitiveness to the disapprobation of the civilized world, the regard for what Jefferson called "a decent respect for the opinions of mankind," the unwillingness to incur the odium and the obloquy which follow non-conformity to the standards of international conduct set by the civilized world, and the like. In the past this feeling has often proved a powerful deterrent to national wrong-doing and has exerted a potent influence in causing States to respect their international obligations. But the numerous and shocking violations of international law and breaches of treaty engagements during the late war have rudely shaken the faith of us all in the potency of this force and have accentuated the demand for the creation of more effective sanctions. The rules of international law, as is well known, are devoid of penal sanctions. Like the rules of the criminal law they lay down commands and prohibitions, but unlike the criminal law, they do not prescribe penalties for their violation. Thus the Hague convention respecting the laws and customs of war on land forbids certain acts such as the maltreatment of prisoners, the use of poison or poisoned weapons, the use of projectiles which diffuse asphyxiating gases, the refusal of quarter, the bombardment of undefended towns, assassination, pillage, violations of family honor, and the like, but they prescribe no penalties for the commission of such acts, nor do they even affirm the obligations of belligerents to punish the members of their armed forces for committing such acts or recognize the right of belligerents to try and punish the soldiers of the adversary for having committed them.2 Professor Renault stated shortly before his death that the draft of the réglement was hastily passed over by the Conference, a few changes of detail being made here and there, and that the question of penal sanctions was overlooked. He expressed the opinion, however, that the silence of the réglement on this point afforded no basis for the claim that the criminal law cannot be 1 Compare the address of Mr. Root entitled "Sanctions of International Law," Amer. Jour. of Int. Law, vol. II, pp. 451 ff. 2 The Geneva convention of 1906, however, affirms the principle of penal responsibility by a declaration that in the event the military penal laws of the contracting parties are insufficient they "engage to take or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of pillage, and ill treatment of the sick and wounded of the armies." (Art. 28.) The Hague convention of 1907 for the adaptation of the principles of the Geneva convention to maritime warfare repeated this recommendation. (Art. 21.) CIVIL SANCTIONS 469 applied to acts of war that are in fact crimes and he added that it was the right and duty of each belligerent not only to punish infractions committed by his own troops, but also those committed by persons belonging to the forces of the enemy.1 § 580. Indemnity for Damages. The second Hague Conference undertook to provide a form of civil sanction for the violation of the laws of war by establishing an obligation on the part of belligerents to indemnify individuals for injuries done them in contravention of the prohibitions of the Hague convention respecting the laws and customs of war on land. Article 3 of this convention provides that "a belligerent party which violates the provisions of the regulations annexed to the said convention shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." By a singular irony this article was proposed by the German delegation and it afforded a legal basis for the decision of the peace conference to exact an indemnity from Germany for the injuries committed by her armed forces in violation of the regulations annexed to the convention. The responsibility created by the article is clearly civil and not penal in character, that is, it is to be satisfied by the payment of compensation for the injuries committed; it does not contemplate the trial and punishment of individuals who commit acts in violation of the law nor the commanders who are responsible for them. It would also seem that the responsibility is not directly to the injured individual, but to the State of which he is a national. It is therefore for the victim's State to make the demand of the offending belligerent and to collect the damages due.2 The adoption of this provision marks an important 1 De l'Application du Droit Pénal aux Faits de Guerre, 25 Rev. Gen. de Droit Int. Pub. (1918), pp. 15-17; also 39 Rev. Pén., p. 413. 2 See the interpretation of Professor Weiss of the University of Paris in the Temps of May 1, 1915, and of M. Lémonon in an article entitled La Sanction de Droit des Gens, published in Le Parlement et l'Opinion, May, 1915. Professor Weiss, in an address before the Société Générale des Prisons on May 19, 1915 (39 Revue Pénitentiare et de Droit Pénal, p. 461), made the suggestion that the amount of compensation for damages claimed by the Allied powers of Germany under the above-mentioned provision of the Hague convention should be determined by the Hague Tribunal of Arbitration. He thought such a stipulation should be inserted in the treaty of peace and in case Germany refused to agree to submit the matter to the Hague Tribunal, the Allies alone should do it and the Tribunal should render judgment, fix the amount of the indemnity, and even publish the names of the guilty offenders, "for the enlightenment of the public |