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Ÿþr E P O R T O N T H E Q U E S T I O N O F I N T E R N a T I O N a L C R I M I N a L J U R I S D I C T I O Document:- A/CN.4/15 and Corr.1 Report on the Question of International Criminal Jurisdiction by Ricardo J. Alfaro, Special Rapporteur Topic: Question of international criminal jurisdiction Extract from the Yearbook of the International Law Commission:- 1950 , vol. II Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations INTERNATIONAL LAW COMMISSION DOCUMENTS OF THE SECOND SESSION, INCLUDING THE REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY QUESTION OF INTERNATIONAL CRIMINAL JURISDICTION DOCUMENT A/CN.4/15* Report by Ricardo J. Alfaro, Special Rapporteur [Origina/ Text: English} [3 March 1950} CONTENTS Page I. INTRODUCTION ....................................................................... 2 II. EVOLUTION or THE IDEA OF AN INTERNATIONAL CRIMINAL JURISDICTION .................... 2 (1) Human reaction to the horrors of the First World War .......................... 2 (2) Action by the Peace Conference — The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 1919 ........................ 2 O) The Advisory Committee of Jurists, 1920 ........................................ 3 (4) The International Law Association, 1922-1926 .................................. 4 (5) The Inter-Parliamentary Union, 1925 ............................................ 4 (6) The International Association of Penal Law, 1926-1928 .......................... 4 (71 The Geneva Conventions for the Prevention and Punishment of Terrorism and for the Creation of an International Criminal Court, 1937 .......................... S (8) The London International Assembly, 1941 ...................................... S (P) The International Commission for Penal Reconstruction and Development 1942 .... S (10) The St. James Declaration, 1942 .............................................. S (11) The Moscow Declaration, 1943 .................................................. 6 (12) The United Nations War Crimes Commission, 1943 .............................. 6 (13) The Nürnberg and Tokyo International Military Tribunals, 194S, 1946 ............ 7 (14) The United Nations Committee on the Progressive Development of International Law and its Codification, 1947 ...................................................... 7 (15) The International Criminal Jurisdiction as discussed in connexion with the Genocide Convention, 1946-1948 .......................................................... 8 (16) The Commission on Common International Law, 1948 .......................... 9 (17) Correlation of the questions of International Criminal Jurisdiction, formulation of the Nürnberg Principles and elaboration of an International Code of Offences .......... 9 III. THE CONTEMPORARY OPINION ON THE QUESTION OF UNIVERSAL REPRESSION OF INTERNATIONAL CRIMES AND THE CRIMINALITY OF WAR .............................................. 9 Basic concepts (1) The concept of war as a crime ................................................ 9 (2) International crimes other than war ............................................. 13 (3) Necessity to define by international convention all crimes against mankind ........ 14 (4) The necessity to have an international jurisdiction vested with power to try and punish persons responsible of international crimes .............................. IS IV. CONCLUSIONS ........................................................................ 16 The three questions (1 ) Desirability of the International Judicial Organ ................................ 16 (2) Possibility of the International Judicial Organ .................................. 16 (?) Possibility of Establishing a Criminal Chamber of the World Court .............. 17 V. FINAL WORDS ........................................................................ 17 ' Incorporating document A/CN.4/lS/Corr. 1. Yearbook of the International Law Commission, Vol. II I. INTRODUCTION against the atrocities perpetrated in violation of the laws and customs of war, as embodied in the unwritten law 1. The General Assembly of the United Nations, by of humanity and civilization as well as in the positive resolution 260 B (III), adopted 9 December 1948, provisions of The Hague and Geneva conventions and requested the International Law Commission " to study other international agreements. But, after all, the atro- the desirability and possibility of establishing an inter- cities resulting from the actual conduct of hostilities and national judicial organ for the trial of persons charged the occupation of invaded countries were an effect of the with genocide or other crimes over which jurisdiction basic crime of planning and waging a war in violation of will be conferred upon that organ by international international law. This crime constitutes the root of the conventions ", and in carrying out this task, " to pay problem. It is this crime that the community of States attention to the possibility of establishing a Criminal must stamp out of international life. Chamber of the International Court of Justice ". 2. The International Law Commission, in turn, at its (2) ACTION BY THE PEACE CONFERENCE. THE COM- meeting of 3 June 1949, charged Judge A.E.F. Sandstrom, MISSION ON THE RESPONSIBILITY OF THE AUTHORS of Sweden, and myself to present reports on the question OF THE WAR AND ON ENFORCEMENT OF PENALTIES, stated in the resolution, for consideration at the second 1919 session of the Commission, to be opened at Geneva, 5 June 1950. 7. The reaction against the crime of bringing about the war of 1914-18 and its attendant horrors took a 3. According to the terms of reference, the topic of concrete expression in the efforts made during the Peace my report comprises the following points: Conference of 1919 to set up an international tribunal (1 ) The Commission must study whether it is desirable for the trial of crimes committed by the Central Powers and possible to establish an international judicial organ and by their civil and military authorities. A body was for the trial of certain crimes; created for the purpose of considering the question, under (2) The General Assembly contemplates the trial of the name of Commission on the Responsibility of the persons charged Authors of the War and on Enforcement of Penalties and (a) with genocide; and this Commission divided such crimes into two classes, namely: (b) with other crimes over which jurisdiction will be T conferred upon the judicial organ by international (a) Acts which provoked the World W ar and accom- conventions; panied its inception. (3) The Commission must also study the possibility of (b) Violations of the laws and customs of war and the establishing a Criminal Chamber of the International laws of humanity. Court of Justice. 8. Long and interesting debates took place in which 4. It seems right to assume that with regard to the no agreement was reached among the victorious powers crimes referred to in 2 (b), the General Assembly had in on the subject of establishing the proposed tribunal for mind those which are the subject matter of the charter the exercise of an international jurisdiction of a general of the Nurnberg Tribunal and its judgment, as well as character. There was agreement, however, on the point those liable to be defined in a code of offences against the that the German Kaiser should be arraigned as respon- peace and security of mankind. The formulation of such sible for the war and its horrors, and such agreement was principles and the drafting of such a code were entrusted embodied in article 227 of the Treaty of Versailles, which to the International Law Commission, by resolution 177 reads as follows: (II) of 21 November 1947. The inference is that the " The Allied and Associated Powers, publicly General Assembly had in mind, besides genocide, the arraign William II of Hohenzollern, formerly German crimes dealt with by the Nurnberg Tribunal and its Emperor, for a supreme offence against international judgment, to wit: crimes against peace; war crimes; morality and the sanctity of treaties. crimes against humanity. " A special tribunal will be constituted to try the 5. Therefore, the three points of the resolution consti- accused, thereby assuring him the guarantees essential tute in fact the broad question of the creation of an to the right of defence. It will be composed of five international criminal jurisdiction for the trial of crimes judges, one appointed by each of the following Powers: affecting the supreme interests of mankind. Such a namely, the United States of America, Great Britain, question is answered by me in the terms set forth in France, Italy and Japan. the following pages. "In its decision the tribunal will be guided by the highest motives of international policy, with a view to II. EVOLUTION OF THE IDEA OF AN INTER- vindicating the solemn obligations of international undertakings and the validity of international morality. NATIONAL CRIMINAL JURISDICTION It will be its duty to fix the punishment which it (1) HUMAN REACTION TO THE HORRORS OF THE FIRST considers should be imposed. WORLD WAR " The Allied and Associated Powers will address a 6. After the termination of the First World War, the request to the Government of the Netherlands for the conviction crystallized in the minds of thinking people surrender to them of the ex-Emperor in order that he that the horrors of war must be spared to men, that war may be put on trial. " is a crime against humankind and that such a crime 9. This provision of the Versailles Treaty became a must
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