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Fordham Review

Volume 34 Issue 1 Article 1

1965

Crimes Against Peace

Manuel R. García-Mora

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Recommended Citation Manuel R. García-Mora, Against Peace, 34 Fordham L. Rev. 1 (1965). Available at: https://ir.lawnet.fordham.edu/flr/vol34/iss1/1

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Crimes Against Peace

Cover Page Footnote This article, intended as a chapter of a book, was originally entitled, "Crimes Against Peace in : An Attempt at Clearification from Nürnberg to the Present." Other chapters of the book, which was incomplete at the time of Professor García-Mora's death, will appear throughout the year in other legal periodicals. His intended book was to explore not only the law of extraditable offenses, but also the concept of political (nonextraditable) offenses. * Late Professor of Law, Fordham University School of Law.

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol34/iss1/1 FORDHAM LAW REVIEW

1965-1966 VOLUME XXXIV

@ 1966 by Fordham Universitv Prezs EDITORIAL BOARD

PHmip R. FORLENzA Editor-in-Chief

ROBERT A. FERms JoNrx A. LANZETTA Articles Editor Articles Editor ROBERT A. FoRuzzo MAURICE M. McDEPxoTr HENRY P. WASSEaSTEIN Case Notes Editor Case Notes Editor Case Notes Editor MAuREzN R. DaiscoL MicHAE D. GRoss Comments Editor Comments Editor Runoa HRADECKY III Managing Editor

MEMBERS OF THE BOARD

JON C. Atmoio ARTHUR D. GRAY RICHARD T. McDmuxon STEpHEN P. BoNA.ARTE DENIS R. HURLEY EDWARD C. MENDRZYCXI JOEL A. BRANDT PATRICIA M. HYNas ANTroNY V. NANNi PAUL R. BRENNER RicuAm L. KANDELL CHEARLES J. NEOARO CmsrToPHER F. DsARIE JAxEs M. KEsTENA-um RITA H. QuAsxAN FRAcis J. D~vm. JosEpH J. KLOVEXORN RONALD S. RAUCIIBERO JoHN A. DoNovA CnRISToP ER LANE JOuN J. REIux JORDAN J. FIsKE CYIN rHA LEsow HARoLD L. SCHINEIER THomAs FITZPATRICK NoRAN Lm~v CRMo M. SMELDS DAmEL W. FID-uxA GARY MAIMAN RIcARD I. Woiwrr VINCENT A. MAlno

ANN V. Su=AxAN Business Secretary

EDITORIAL AND GENERAL OFFICES Lincoln Square, New York, N.Y. 10023 Published four times a year-October, December, March, and May. Member, National Conference of Law Reviews. Printed by the Heffernan Press Inc., Worcester, Massachusetts. Second class postage paid at Worcester, Mass. SuBsemPTioN PRICE $5.00, Si nE Issum $2.00. Make checks payable to FoRDIIA. LAW REviEw. Subscription renewed automatically unless notified to contrary. TABLE OF LEADING ARTICLES-TITLES

AssAumr, B.%msr AN MAIMG W Nnw Yo=: FnoIX CoM-MoNT LAw O=nzG-s To E'cLIGHmEN-m RIXIsio. Robert M. Byrn ...... 613 TzE Bxrr.upT , TAx-rn Ico-s An'D T TRusirr r B, nUrcyt. Sydney Krause and Arnold Y. Kapioff ...... 401 Cn s AoeazsT Pxcr. Manuel R. Garcia-Mora ...... 1 Dombrowski v. Pfister: Fx.DmepL Iiq-uNcroNs A.mG sT ST.= Pnos =rxo's r.T Civ RIGHTS CAsEs-A NEW Turm ni Fxnm.- -STm Jui)icmI R AwiXozI3. Bradley R. Brewer ...... 71 FNs Am AILowmqcEs To ATroprins ni Bmm~umyIr A Cirnn = PRncMna;Gs. William J. Rudin ...... 3S7 FoREworm. Charles Seligson ...... 3S3 FRom United States Realty To American Trailer Rentals: THm AvALADu=w or Dzmo% REIrIE FOR TE MaDE-SZED ConpsonAiox. Benjasnin Weintraub and Harris Levin 419 TE NEGRo REvoLuTIoz u TH Lw or CoI.ECm B.%a. , ;. William B. Gould 207 PBIvAcr A"D = FsT Aznrncum. Isidore Silver ...... 553 Tm PaorosD TwE"n-F m A Eim-mmh-T To THm Co=S-imrnozN. John D. Feeric ... 173 A RADicAL REsTAT , r or T=E Lw or SEIXW's D.mmmcs: Nnw Yonx RESULTs Como.AED. Robert J. Harris ...... 23 THE RIGHTS .ND ST.Tus or Sunrnns Il BAmmo'prcy C.sns or Co ,n.crons. Harry S. Gldc' ...... 451 SEcunyT AsPECTs or CHATTR Lr.ASES In BA'mmurTc. Russell L. Hiller ...... 439 SuaRvvG SpousE's RI;Hr or Eu~cnou ni NEw YoR War,TRusT k;co= Mmz BE D=TmEO: Tim NEm FOz A Ftmrm Cmumw. Francis X. Conway ...... 593 THE VAIIT or GB T-BAcx Ao -Ts Umrn Tim )x-n-Musr Lw3. Paul G. Chevigny ...... 5G9

TABLE OF LEADING ARTICLES-AUTHORS

BE En=, BwRD= R., Dombrowd-d v. Pfister: Federal Injunctions Against Stale Prosecutions in Civil Rights Cases-A New Trend in Fcdcral-State Judicial Reld- tions ...... 71 BY-n, RoERT Al., Assault, Battery and Maiming in New Yorh: From Origins to Enlightened Revision ...... 613 CHEwViGz, PAUL G, The Validity of Grant-Bach Agreements Under the Antlitrust 5G9 CoNWAY, FaRiis X., Surviving Spouse's Right of Election in New Yorh Where Trust Income May Be Diverted: The Need for a Further Change ...... 593 FtmEcl, Jonir D., The Proposed Twenty-Fifth Amendment to the .... 173 GAnLc -MoRA., MAmnuE R, Crimes Against Peace ...... 1 GLEIC , MAR S., The Rights and Status of Sureties in Cases of Con- tractors ...... 451 GouTz, Wnx iAI B, The Negro Revolution and the Law of Collective Bargaining .... 207 HE[Rs, RoBR J., A Radical Restatement of the Law of Seller's Damages: New Yorh Results Compared ...... 23 EhI=- Russrz L., Security Aspects of Chattel Leases in Bankruptcy ...... 439 KAPmorr, AmioIxD Y, Am KRAusr, SYD.E, The Bankrupt Estate, Taxable Income and the Trustee in Bankruptcy ...... 401

iff iv FORDHAM LAW REVIEW [Vol. 34

KRAUSE, SYDNEY, AND KArro, ARNOLD Y., The Bankrupt Estate, Taxable Income and the Trustee in Bankruptcy ...... 401 LEvTN, H .ns, AND WErFmAuB, BEN~ya.n, From United States Realty to American Trailer Rentals: The Availability of Debtor Relief for the Middle-Sized Cor- poration ...... 419 RUDiN, W.LIAM J., Fees and Allowances to Attorneys in Bankruptcy and Chapter XI Proceedings ...... 387 SEUIGsoN, CHmRLEs, Foreword ...... 383 SILVER, ISmORE, Privacy and the First Amendment ...... 553 WEINTRAUB, BENJA2,MN, AND LEVIN, HARRIS, From United States Realty to American Trailer Rentals: The Availability of Debtor Relief for the Middle-Sized Cor- poration ...... 419

TABLE OF BOOKS REVIEWED

CowANS: BANKRUPTCY LAW AND PRACTICE. Edgar H. Booth ...... 547 FOGELMAN: WEsT'S McINNwEY's FORMS: BUsINEss CORPORATION LAW. Thomas A. H arnett ...... 378 FRmDAN: SOUTHERN . Bradley R. Brewer ...... I ..... 775 HIRsCH & KRAUSE: BANKRUPTCY ARRANGEMENTS UNDER CHAPTER XI. John M. Fried- m an ...... 546 HOLLANDER: THE ENGLISH : A PRIESTHOOD. Robert A. Kessler ...... 375 MULDER & FORMAN: BANKRUPTCY AND ARRANGEMENT PROCEEDINGS. John M. Friedman 546 NOONAN: CONTRACEPTION: A HISTORY OF ITS TREATMENT BY TIlE CATHOLIC THEOLOGIANS AND CANONiSTS. Charles M. Whelan, SJ...... 779 PROCEEDINGS OF SECOND SEMINAR FOR REFEREES nr BANXRUPTCY. Alexander L. Paskay 543 SIMON: THE TRADITION OF NATUA'L LAW: A PHILOSOPHER'S REFLECTIONS. Charles E. R ice ...... 165 SUTHERLAND: CONSTITUTIONALISM IN AMERICA: ORIGIN AND EVOLUTION OF ITS FUNDA- MENTAL IDEAS. Arthur Selwyn Miller ...... 373 WHrE: THE USE oF EXPERTS BY INTERNATIONAL TRmulALS. Gordon B. Baldwin .... 167

COMMENTS

APPOINTING A TRUSTEE: A SECOND CHANcE FOR CrDITORS? ...... 488 BUYER's LiABrrry FOR INDUCING VIOLATIONS oF SECTIONS 2(d) AND 2(c) or TH ROBINSON-PATMAN ACT ...... 676 CONSENT TO SUM MARY ...... 469 A CONTEMPORARY VIEW OF THE CONDITIONAL VENDOR'S RIGHT TO RECLAMATION .. . 20 EXCLUSION OF GROUP LIFE INSURANCE PROCEEDS FROM INSURED'S GROSS ESTATE FOR ESTATE TAX PURPOSES ...... 269 NEW DIMENSIONS or THE UNIoN-ANTITRUST CoNFLICT ...... 286 THE NEW YoRy LAW CONTROLLING THE DISSEMINATION OF OBSCENE MATERIALS TO M INORS ...... 692 NEW YORK'S MIsTREATMENT OF BURDEN OF PROOF AND THE PRESUmPTION AGAINST SUICIDE ...... 305 PosT-PETTrioN INTEREST ON TAX CLAIMS ...... 504 1965-66] INTDEX TO VOLUME XXXIV v

RACE Dim1Ao-N AzNDTHE FirsT AiND~- ...... 653 Smi.RTioN AcnoNs NE W Yorx: DOES ADuLTEry CoNS'rTUE TxE EXCLUSI TO .' AcroN Fou.%)ED ON ADULTERY? ...... 121 UsE or BAD Cipcn. L.D Prior CoNnacIONs To LIprEAcH A DEFIr.I-Wrns .. 107 VWiAGEEA.n- BA. -x PTcY: A NEGcCTE RIZEDY? ...... 528 FORDHAM LAW REVIEW [Vol. 34 INDEX D'I(GEST ADULTERY -Competing Licensor 583 See Separation -Scope of the Grant-Back 583 -Discouraging Invention by the Licensco ANTITRUST LAW 586 Buyer's Liability for Inducing Violations -Proof of Monopolistic Intent or Effect 589 of Sections 2(d) and 2( e)e of the ( Proof of Intent 589 Robinson-Patman Act (Comment) -Objective 676 -Restrictive Practices 589 589 -Introduction 676 -Group Licenses of Patents 590 -Elements of a Violation 680 -Market-dominant Patent 591 -Knowingly Induce 680 -Conclusion -Competing Customers 680 ARBITRATION AND AWARD -Benefit tl 682 -Available on Proportiona By Equal See Labor Law Terms 684 -Defenses 686 ARREST -The "Max Factor Approad h" 690 See -Conclusion 691 New Dimensions of the Union-Antitrust ASSAULT AND BATTERY Conflict (Comment) 286 Assault, Battery and Maiming in New -Introduction 286 York: From Common Law Origins to -The Conflict 287 Enlightened Revision 613 -Union Activity in the Labor Market -Assault, Battery and Maiming: In 288 General 614 -Union Activity in the Product Market -From Common Law Origins to 1900 288 616 -The Resolution 289 -Assault 617 -Labor Market 289 -Battery 628 -Product Market 290 -Maiming 629 -The Hutcheson-Allen Bradley Rule -The Twentieth Century 630 291 -Assault in the First Degree 631 -United States v. Hutcheson 291 -Assault in the Second Degree 632 -Allen Bradley Co. v. Local 3, Int'l -Assault in the Third Degree 635 Bhd. of Elec. Workers 295 -The Accumulated Problems 637 -UMW v. Pennington-Local 189, -The Revised Penal Law 638 Amalgamated Meat Cutters v. Jewel -Intentional Battery 638 Tea Co. 297 -Attempted Battery 640 -Conclusion 304 -Proximity 641 The Validity of Grant-Back Agreements -Impossibility 643 Under the Antitrust Laws 569 -Tortious Assault and Conditional -The Transwrap Case 570 Threats 644 -The Lawful Scope of Grant-Back -Negligent Assault and Battery 646 Agreements 577 -Reckless Battery 647 -The Problem of Multiple Licensees 579 -Reckless Assault 648 -The Problem of the Competing -Criminally Negligent Battery 648 Licensor 582 -Depraved Assault and Battery 649 -Non-competing Licensor and Multiple -Battery Upon a Peace Officer 651 Licensees 582 -Conclusion 652 1965-66] INDEX TO VOLUME XXXIV

ATTAINDER -Development of the Consensual See Theory 470 -In General 470 BANKRUPTCY -The Old View 471 See also Bankruptcy: Referees; Bank- -Proof of Claim 471 ruptcy: Trustees; Corporate Reor- -Petition for Reclamation 473 ganization -The Turning Point-The Alexander The Bankrupt Estate, Taxable Income Case 474 and the Trustee in Bankruptcy 401 -Development Since Alexander 475 -The Trustees Obligation To Notify -Petition of Reclamation 475 the Treasury of His Qualification 402 -Proof of Claim 476 -The Obligation of Trustees in Bank- -The Preference CaEes 477 ruptcy To File Income Tax Returns -The Katchen Case and the Future of and Pay Taxes On Behalf of the Bank- the Consensual Theory 479 rupt Estates of Corporations 403 -Resolutions and Recommendations 431 -The Obligation of Trustees in Bank- -The Argument for Expansion 431 ruptcy To File Income Tax Returns -Expeditious Administration 431 and Pay Taxes on Behalf of the Bank- -Avoidance of Multiplicity of Suits 432 rapt Estates of Individuals 406 -Protecting the Claimant 483 -Availability of the Bankrupt's Net -The Argument Against Summary Operating Losses to the Trustee in Jurisdiction 4S4 Bankruptcy 413 -The Seventh Amendment 4Z4 -Who Should Bear the Burden of the -The Assault on the Referee 48S Tax in Bankruptcy Proceedings 416 -Conclusion 426 -Conclusion 417 Fees and Allowances to Attorneys in Bankruptcy and Arrangement Proceed- Bankruptcy and Chapter M Pro- ings, A Book Review 546 ceeding. 387 Bankruptcy Arrangements Under Chap- -Straight Bankruptcy 3ss ter XI, A Book Review 546 -Attorney for the Bankrupt and the Bankruptcy Law and Practice, A Book Petitioning Creditors 3SS Review 547 -Attorney for the Receiver and Trustee A Contemporary View of the Condi- 391 tional Vendor's Right to Reclamation -Chapter XI Proceedings 392 (Comment) 520 -Attorney for the Debtor and the -Introduction 520 Debtor in Possession 392 -The Lake's Laundry Case 521 -Attorney for the Creditors' Commit- -The Bankruptcy Act 523 tee 393 -Reoranization Proceedings 523 -The Thrust of Section C0D 395 -In General 524 -Quantum of Compensation 397 -The Voidable Preference 524 -Conclusion 40 -Section 70 526 Post-Petition Interest on Tax Claims -The Effect on Lake's Laundry 526 (Comment) 504 -The Inference From State Law-The -Historical Background 504 Uniform Commercial Code 527 -Taxes: A Fourth Exception? Rsl -Section 9-102 527 -City of New York v. Saper 505 -- Section 9-202 527 -Application of the Saper Rule to Ar- Consent to Summary Jurisdiction (Com- rangements and Reorganizations 503 ment) 469 -The Government as Secured Creditor -Nature of Summary Jurisdiction-In 510 General 469 -Interest on Tax Claims Arking During FORDHAM LAW REVIEW [Vol. 34

the Administration of the Bankrupt I BIRTH CONTROL Estate 513 Contraception: A History of Its Treat- -The Debtor's Personal Liability for ment by the Catholic Theologians and Interest on Tax Claims 515 Canonists, A Book Review 779 -A Suggested Approach 518 The Rights and Status of Sureties in BURDEN OF PROOF Bankruptcy Cases of Contractors 451 See -The Obligation of the Surety 451 -The Right of Subrogation 452 CAPITAL GAINS TAX -The PrairieState Bank Case 455 See Taxation -The Henningsen Case 456 -The Munsey Trust Co. Case 457 CHATTEL MORTGAGES -Priority Between Surety and Trustee See Bankruptcy 458 -Restriction on Subrogation 463 CIVIL RIGHTS -Surety's Rights Under Assignments 463 See also Freedom of Speech; Labor -Against the Trustee 463 Law; Right to -Against the Government 466 Dombrowski v. Pfister: Federal Injunc- -The Trustee's Injunctive Remedy 467 tions Against State Prosecutions in -Conclusion 467 Civil Rights Cases-A New Trend In Security Aspects of Chattel Leases in Federal-State Judicial Relations 71 Bankruptcy 439 -Introduction 71 Wage Earner Bankruptcy: A Neglected -The Facts of the Case and Its Proce- Remedy? (Comment) 528 dural Background 74 -Introduction 528 -The Supreme Ruling: The -The "Six Year Discharge" Problems Reasoning of Majority and Dissent 530 80 -Prior Discharge in Bankruptcy 532 -Possible Limitations of the Holding In -Subsequent Discharge in Bankruptcy Dombrowski 91 533 -- Some Relevant Considerations and Im- -Resolution 534 plications of the Decision 94 -Secured Creditors' Liens 535 -Does 42 U.S.C. § 1983 Constitute a -The Proposed Amendments 539 Statutory Exception to 28 U.S.C. -Conclusion 542 § 2283? 97 -Conclusion 103 BANKRUPTCY: REFEREES Southern Justice, A Book Review 775 Proceedings of Second Seminar for Ref- COLLECTIVE BARGAINING erees in Bankruptcy, A Book Review 543 See Labor Law COMMUNISM BANKRUPTCY: TRUSTEES See Constitutional Law See also Bankruptcy Appointing a Trustee: A Second Chance CONDITIONAL SALES for Creditors? (Comment) 488 See Bankruptcy -Introduction 488 -Fails To Qualify 490 -After a Vacancy Has Occurred 496 Babcock Rule Applied To Deny Applica- -A Comparative View 501 tion of New York Law In Guest- -Conclusion 502 Passenger Action (Case Note) 711 1965-66] INDEX TO VOLUME XXXIV CONSTITUTIONAL Holding Union Office Held Unconstitu- AMENDMENTS tional As Bill of Attaindcr (Case The Proposed Twenty-Fifth Amendment Note) 325 to the Constitution 173 Televising Criminal of Widezpread -Historical Development 174 Public Interest Inherently Deprives De- -Presidential Inability 174 fendant of Due Procez3 of Law (Case -Xice-Presidential Vacancy 173 Note) 329 -Legislative Development 1.SO CORPORATE -18S1-1962 150 REORGANIZATION -1963-1964 1S3 -1965 156 See also Bankruptcy -Analysis of the Proposed Amendment From United States Really to American 196 Trailer Rentals: The Availability of -Section 1 196 Debtor Relief for the Middle-Sized -Section 2 196 Corporation 419 -Section 3 197 -The United States Really Case 421 -Section 4 199 -From United States Realty to Gecera! -Conclusion 203 Stores 424 -Appendix A 204 -The Mecca Temple Ca_e 424 -Appendix B 204 -The Trans-e4ion Case 425 -Appendix C 205 -The General Stores Case 425 -From General Stores to American CONSTITUTIONAL LAW Trailer Rentals 427 See also Civil Rights; Freedom of -The Wilcox-Gay Case 427 Speech; Libel and Slander; Obscenity; -The Liberty Case 422 Right of Privacy; Right to Counsel -Several Miscellaneous Cases 428 Constitutionalism in America: Origin -The American Trailer Rentals Case 432 and Evolution of Its Fundamental -Conclusion 435 Ideas, A Book Review 373 -Appendix 437 Constitutionality of Conscientious Ob- CORPORATIONS jector Exemption From Ser- ,ice Upheld-Construction of the Test See also Corporate Rcorganization of Religious Training and Belief for Venue Exemption (Case Note) 129 West's McKinney's Forms: Buinzs Cor- Eighth Amendment Held Not To Forbid poration Law, A Book Review 378 Imprisonment for Self-Administration of Narcotics (Case Note) 321 CREDITORS' RIGHTS 's and 's Comments on See Bankruptcy Defendant's Failure To Testify Violate CRIMINAL LAW the Fifth Amendment (Case Note) 134 Parolee's Right to Fourth Amendment See also Assault and Battery Protection Against Unreasonable Defendant's Right to Controvert a War- Search and Seizure (Case Note) 139 rant Valid on Its Face (Case Noto Section 4(e) of the Voting Rights Act of 743 1965 Held Unconstitutional (Case DAMAGES Note) 735 A Radical Restatement of the Law of State Department Restricting Seller's Damages: New York Re mli, Travel to Cuba Held Constitutional Compared 23 (Case Note) 143 -Introduction 23 Prohibiting Communists From A Single General Rule 23 FORDHAM LAW REVIEW [Vol. 34 -Consistency With Conventional Paro- Its Inculpatory Value Alone Hold To chial Rules 29 Be Admissible (Case Note) 746 -Policies Governing Burden of Proof Use of Bad Character and Prior Con- 32 victions To Impeach a Defendant- -Policies Governing Valuation 36 Witness (Comment) 107 -Abandonment and Completion Ap- -History 107 proaches 37 -The Present Law in New York 108 -Components Valuation 43 --Where Defendant Has Not Taken the -Entity Valuation 52 Stand 108 -Minor Valuation Adjustments and --Where Defendant Has Taken the Incidental Damages 58 Stand 111 -Lost Volume 59 -In General 111 -Confusion of Lost Volume Adjustment -Bad Acts 111 and Components Approach 65 -Good Faith 112 -Conclusion 69 -Constitutional Privilege 114 -Prior Convictions 115 DEFAMATION -Judicial Restraints on Inquiry 116 -The Law in Other 117 See Libel and Slander -State 117 -Federal 118 DOMESTIC RELATIONS -Conclusion 119 See Separation FREEDOM OF RELIGION DUE PROCESS OF LAW See Constitutional Law See Constitutional Law FREEDOM OF SPEECH See also Libel and Slander ESTATE TAX First Amendment Held Not To Protect See Group Life Insurance Burning of a Draft Card at a Public Rally (Case Note) 717 EVIDENCE GROUP LIFE INSURANCE New York's Mistreatment of Burden of Exclusion of Group Life Insurance Pro- Proof and the Presumption Against ceeds From Insured's Gross Estate for Suicide (Comment) 305 Estate Tax Purposes (Comment) 269 -Introduction 305 -Introduction 269 -The Quandary 306 -The Policy 270 -Burden of Proof 306 -Incidents of Ownership 271 -The Presumption Against Suicide 307 -Divestment of Incidents of Ownership -The Development of the Law in New by Assignment 273 York 308 -Power To Change the Beneficiary 274 -The Early Decisions 308 -Conversion Privilege 274 -The Maturity of the Presumption 310 -Power To Cancel by Terminating Em- -Some Enigmatic Opinions 311 ployment 276 -The Achievement of Judicial Concord -Power To Cancel by Discontinuing 313 Premiums 279 -The Disintegration 315 -Reversionary Interest 280 -The Aftermath 318 -Transfer in Contemplation of Death -Conclusion 320 281 Search and Seizure-Evidence Seized for -Assignment of the Policy 282 1965-66] INDEX TO VOLUME XXXIV

-Payment of Premiums Over the Objection of a Regional Di- -Conclusion rector of the NLRB (Case Note) 752 Federal Pre-emption-New York's Rail- INCOME TAX road Full Crew Laws Held To Be See Taxation Constitutional and Not Superseded by Binding Arbitration Award Made Pur- INSURANCE suant to Federal Statute (Case Note) See also Evidence; Group Life Insurance 143 Conditional Receipt-Life Insurance The Negro Revolution and the Law of Company Held Liable for Death Bene- Collective Bargaining 207 fits Where Applicant Reasonably -The 's Answer: The Stcde Believed That a for Tempo- Doctrine 210 rary Insurance Had Been Negotiated -Taft-artley and FEPC 213 (Case Note) 336 -Section 8(b) (2) 214 -Section 3(b)(1) (A) 231 INTERNATIONAL -Section 3(b) (3) 235 AND -Section 9 237 The Use of Experts by International -Title VII of the Civil Rights Act 242 Tribunals, A Book Review 167 -The Question of Jurisdiction 246 -The New Substantive Law 253 INTERNATIONAL LAW -Membership 253 Crimes Against Peace 1 -11ring 257 -The Nature of Crimes Against Peace 1 -Seniority 20 -Crimes Against Peace in the Draft -Plant and Union Fadlitie 265 Code of Offenses Against the Peace -Racial Appeals in NLRB Elections 265 and Security of Alankind 10 -Concluion 263 -Crimes Against Peace in the Constitu- tion of Some States 14 LEGAL AID -Crimes Against Peace and Political See Right to Counsel Offenses 15 -Conclusion 22 LEGAL PROFESSION The English Bar: A Priezthood, A Book; Review 375 See LIBEL AND SLANDER JURISDICTION See also Right of Privacy New York "Long-Arm" Statute-Tor- "New Forh Tirne' Privilege of Fair tious Injury Within New York Held Comment-Supreme Court FaiLs To Not Tantamount to Tortious Act- Draw Precise Lines for 'Tublic Oi- Transacting Business Provision Held cial" Rule (Case Note) 761 To Cover Out-of-State Manufacturer Race Defamation and the First Amend- Soliciting Mail Orders in New York ment (Comment) 653 (Case Note) 344 -The Nature of the Problem 653 -Criminal Sanctions as a Remedy 653 -The Common Law of Criminal Ia'bl See International Law; in England 653 -In General 653 LABOR LAW -As Applied to Claz-e 654 See also Antitrust Law -The American Approach 657 Arbitration or Enforcement of an Alleged -The States 657 "eHot Cargo" Agreement Enjoined -Common-law Deri,ation 657 FORDHAM LAW REVIEW [Vol. 34

-Specific Statutory Enactment 660 REMAINDERS -The Federal Government 667 See Real -The Civil Remedy 669 -Injunction Against Abuse 669 REVERSIONS -Damages 670 See Real Property -Clear and Present Danger and Fight- ing Words 671 RIGHT OF PRIVACY -The World View 674 See also Libel and Slander -Conclusion 675 Privacy and the First Amendment 553 MAIMING RIGHT TO COUNSEL See Assault and Battery Indigent Defendant Not Deprived of Effective Assistance of Counsel Where NATURAL LAW He Is Not Represented by the Same The Tradition of Natural Law: A Phi- Attorney Throughout Criminal Pro- losopher's Reflections, A Book Review ceedings (Case Note) 725 165 SEARCH AND SEIZURE OBSCENITY See Constitutional Law; Evidence The New York Law Controlling the Dissemination of Obscene Materials to SECURED TRANSACTIONS Minors (Comment) 692 See Bankruptcy -The Basic Assumption 693 -The Guidelines are Drawn 694 SELF-INCRIMINATION -Vagueness and Scope 694 See Constitutional Law -What is Obscene? 695 -Scienter 697 SEPARATION -The Community Standard 698 Separation Actions in New York: Does -The Prior New York Law 699 Adultery Constitute the Exclusive De- -The Present New York Law 702 fense to an Action Founded on Adul- -Section 484-h 702 tery? (Comment) 121 -Section 484-i 705 -Introduction 121 -Conclusion 708 -Historical Development of the Doc- trine of Recrimination 121 PATENTS -The Doctrine in New York 123 See Antitrust Law -The Doctrine in Other States 126 -Conclusion 128 PRESUMPTIONS SURETYSHIP AND GUARANTY See Evidence See Bankruptcy RAILROADS TAXATION See Labor Law See also Bankruptcy; Group Life In- surance REAL PROPERTY Legal Fees Expended in Unsuccessful Statute Requiring Recording of Declara- Criminal Defense Held Deductible as tion of Intention To Preserve For- an Ordinary and Necessary Business feiture Restrictions on Land Held To Expense (Case Note) 155 Be Unconstitutional When Retroac- Seller's Proceeds of "Bootstrap Sale" to tively Applied (Case Note) 352 Tax-Exempt Organization Held Tax- 1965-66] INDEX TO VOLUME XXXIV

able at Capital Gains Rates (Case Any District in Which the Corporation Note) 353 Is Doing BusineEs (Case Note) 36S

TELEVISION VERDICTS See Constitutional Law; Trade Regula- Affidavits of Jurors Averring Their Orm tion Misconduct Not Admisible as Grounds for Granting a New Trial (Case Note) See Libel and Slander; Right of Privacy 7G9 TRADE REGULATION VOTING See also Antitrust Law See Constitutional Law Sales-Commission Agreement Held Un- fair Method of Competition (Case WAR CRIMES Note) 160 See International Law Use of Undisclosed Mock-Up in Tele- vision Commercial Demonstration WILLS Held To Be Deceptive Practice in Violation of Federal Trade Commis- Surviving Spouse's Right of Election in York Where Trust Income May sion Act (Case Note) 362 New Be Diverted: The Need for a Further TRUSTS AND TRUSTEES Change 593 See Vills -The Problem, 594 -The Decisions 596 UNFAIR COMPETITION -Decisions Dealing Generally With See Trade Regulation Trust Income 597 -Accrued Income Caszes 599 UNIONS -Allocation of Dividends Cases coz See Antitrust Law; Labor Law -Supervisory Power of the Surro- gate 6076 VENUE -The Relevance of the Marital Deduc- Definition of Corporate Residenca Under tion 09 the Jones Act Expanded To Include -Suggested Statutory Change3 611 FORDHAM LAW REVIEW [Vol. 34 TABLE OF CASES Case names prefixed with an asterisk are the subjects of Case Notes

Aaronson, In the Matter of Estate Arnett v. Seattle Gen. Hosp ...... 259 of ...... 600 A. Shiffman ...... 361 Abby Kent Co ...... 691 Atalanta Trading Corp. v. FTC 681, 688 Abel v. United States ...... 751 Atkins Saw Div., Borg-Warner Achille F. Israel, Estate of ...... 284 Corp ...... 267 Adams v. People ...... 108 *Atlantic Ref. Co. v. FTC ...... 161 Adams Dairy Co. v. St. Louis Dairy Auten v. Auten ...... 711 Co...... 293, 297 Automatic Canteen Co. of America Adkins v. Children's Hosp ...... 357 v. FTC ...... 678 Alabama, Marsh v...... 240 Automobile Workers Union ... 263-64 Alabama, Powell v ...... 728-29 Autry, In the Matter of ...... 533 Alexander v. Hillman ...... 471, 474-79 Babcock v. Jackson ...... 712-16 *Alfinito, People v...... 740 *Baer, Rosenblatt v ...... 762 *Allen v. Metropolitan Life Ins. Co. 336 Baileson, Matter of ...... 600-02 Allen v. Trust Co ...... 285 Bailey v. Baker Ice Mach. Co. 524-25 Allen Bradley Co. v. Local 3, Int'l Baker Ice Mach. Co., Bailey v. 524-25 Bhd. of Elec. Workers ... 286, 295-305 Bardes v. Hawarden Bank ..... 472-73 Allen, Towne & Heath, Inc., Kousse- *Barnes & Reinecke, Inc., Longines- vitzky v ...... 556, 558, 560, 567 Wittnauer Watch Co. v...... 344-47 American Communications Ass'n v. Bass v. Equitable Life Assur. Soc'y Douds ...... 328 of United States ...... 315 American Fed'n of Musicians, Chi- Bass, United States v ...... 511 cago Fed'n of Musicians v...... 256 Beacon Theatres, Inc. v. Westover . 485 American Fed'n of Musicians, United Beauharnais v. Illinois .... 664, 666-67, States v. 0 ...... 292 671, 674 American Fed'n of Television & Begley v. Prudential Ins. Co. of Radio Artists, McLeod v ...... 760 America ...... 315-20 American Mfg. Co., United Steel- Benton v. Commissioner ...... 445 workers v ...... 227 Berman v. United States ...... 131-33 American Nat'l Ins. Co., NLRB v.. 229 Bethlehem-Alameda Shipyard, Inc. American Radiator & Standard 237-38 Sanitary Corp., Gray y ...... 350 Biltmore Village, Inc. v. Royal .... 358 American Ship Bldg. Co. v. NLRB 218 Bingham, In the Matter of ...... 532 American Trailer Rentals Co., SEC *Bisaccia, State v ...... 746 v ...... 419, 421, 432, 434-35 Block v. United States ...... 500-01 Anderson v. Corall ...... 141 Blunt v. Blunt ...... 123-24, 127-28 Anderson Dairy Inc...... 362 Board of Educ., Brown v .... 105, 238, Angelo, People v ...... 637 240-41 Animated Displays Co ...... 222-23 *Board of Educ. v. Miles ...... 352 Anthony Cornero Stralla ...... 157 Board of Elections, Lassiter v. .. 736-39 Apex Hosiery Co. v. Leader .. 290, 301 Board of Elections, United States v. 738 Aptheker v. Secretary of State Bolger v. Prudential Ins. Co. of 145, 147-48 America ...... 312-13 Archer Laundry Co ...... 267 Bommer, In the Matter of Estate of 603 Aristocrat Linen Supply Co ...... 267 Borden Co., FTC v ...... 689 Armored Car Chauffers Union 222-23 Boteler v. Ingels ...... 513-14 1965-66] INDEX TO VOLU.ME XXXIV

Boyce Mlach. Corp ...... 266 City of Concord, Palmer v ...... 65S Boyd v. United States ...... 747-4S City of Jeannette, Douglas v. 73, 79, 31, Bransby, People v ...... 623-25, 644 S3, 35-33, 101, 103 Brinegar v. United States ...... 745 City of New York v. Sapar Brotherhood of R.R. Trainmen -v. 507-03, 512, 514, 516, 518, 520 Howard ...... 211, 255 City of New York, StdnItzcro v. 772-74 Browder v. Gayle ...... 102 Clark, In the Matter of Will of ... 597 Brown v. Board of Educ .... 105, 238, Clay B. Brown ...... 359-CO 240-41 Cohoes Fibre Mills, Inc., Erlanger *Brown, Commissioner v ...... 353 Mills, Inc. v...... 343 *Brown, United States v ...... 325 5 Colgate-Palmolive Co., FTC v .... 362 Brulotte v. Thys Co ...... 570-71, 577, Colorado Anti-Discrimination 5SO, 532, 53 Comm'n v. Continental Air Lines, Bruning v. United States ...... 517-20 Inc...... 251 Burdett, The King v ...... 654 Columbia Broadcasting Sys., Inc., Burmingham, Duffy v ...... 361 Youszoupoff v ...... CO-G2 Burton, SEC v ...... 434 Comingor, Louisville Trust Co. v. Burton v. Wlmington Parking Au- 472-73 thority ...... 254 Commercial Travelers Mut Acc. Butler v. Michigan ...... 709 Ass'n of America, Jahn v ...... 314 Butterworth, Helvering v ...... 412 CommLs.iona, Benton v...... 44S Buzzi, People v ...... 113 -Commissioner v. Brown ...... 35 Caldwell, Central Republic Bank & Commissioner v. Heininger ..... 16-CO Trust Co. v ...... 469 Commissioner, Lilly v ...... 153-CO 'California, Griffn v ...... 134, 137 Commissioner, Nassau Lens Co. v. 359 California, Kerv ...... 750 Commissioner, Osterrach v ...... 447 California, Robinson v ...... 321-25 'Commissioner, Tellier v...... 155, ICO California, Stromberg v ...... 71S Commissioner v. Tower ...... 359 *Camacho, People v...... 725 Commissioner v. Treganovan ..... 277 Campbell, Harvey v ...... 361 Comm-ioner, Western Contracting Canandaigua Enterprises Corp., SEC Corp. v ...... 446 v ...... 431, 434 Confidential, Inc., Goelet v.... S, 54 Cantwell v. Connecticut ...... 672 Conley v. Gibson ...... 213 Carrington, Entick v ...... 743 Connecticut, Cantwell v...... 672 Carrington v. Rash ...... 737 Connecticut, Griswold v...... 565 Carroll, People v ...... 750 Connor, People v...... 624-26, 633 Carshadon, Pierce v ...... 326 Conrad, Rubin & Le-ser v. Pender 396 Carter Mfg. Co ...... 23S Construction Laborers Dist. Coun- The Case De Libelis Famosis ..... 654 cil, Stout v ...... 20 Castle v. United States ...... 324 Continental Air Lines, Inc., Colo- Central of Ga. Ry. v. Jones ...... 226 rado Anti-Discrimination Comn'n Central Republic Bank & Trust Co. v...... 251 v. Caldwell ...... 469 Conmy v. Union Bank of Switzer- Chaplinsky v. New Hampshire .... 673 land ...... 477 Chicago, Terminiello v ...... 673-74 Cooper v. Hutchinson ...... I00 Chicago Fed'n of Musicians v. Corall, Anderzon v ...... 141 American Fed'n of Musicians .... 256 County Bd. of Elections, United Chicago & Nw. Ry., Order of R.R. States v ...... 733 Telegraphers v ...... 294 Crown Cartridge Corp., In the Children's Hosp., Adkins v...... 357 Matter of ...... 443 FORDHAM LAW REVIEW [Vol. 34

Crumpton Builders, Inc., SEC v. 430-31 Fidelity & Cas. Co., Traphagen v. . 313 Cummings v. Missouri ...... 326-28 Fidelity & Cas. Co., Whitlatch V. Cunningham, Jones v ...... 142 309, 313 Curley, In the Matter of Estate of 608 Fink v. New York Life Ins. Co. 311-13 Daily Mirror, Inc., Lahiri v. 567-68 First Nat'l Bank v. Phillips ...... 448 Daniel v. Guaranty Trust Co ...... 475 First Wis. Trust Co., Operators' Darrock, Mecca Temple v ...... 424 Piano Co. v ...... 473-74 Davie v. Green ...... 507 Fitch v. Richardson ...... 471-72 Davis, Morrison v...... 102 Florance v. Kresge ...... 476 Daye v. Tobacco Workers ...... 256 *Food Employers Council, Inc., De Burgh v. De Burgh ...... 127 Retail Clerks Union v ...... 752 *De Lucia, People v ...... 769 Ford Motor Co. v. Huffman ...... 212 Dent v. West Virginia ...... 327 Foster v. People ...... 630 Dilbert's Quality Supermarkets, Inc., Fourco Glass Co. v. Transmirra In Re ...... 429 Prods. Corp ...... 369-70 Dombrowski v. Pfister 72-73, 84, 86-97, F-R Publishing Corp., Sidis v. 557, 559 100, 103-06 Fred Meyer, Inc ...... 686 Douds, American Communications Frey v. Feller ...... 282 Ass'n v...... 328 FTC, Atalanta Trading Corp. v. 681, 688 Douglas v. City of Jeannette *FTC, Atlantic Ref. Co. v ...... 161 73, 79, 81, 83, 85-88, 101, 103 FTC, Automatic Canteen Co. of Dreyfus, Sexton v...... 504 America v ...... 678 Drozda v. State ...... 658-59 FTC v. Borden Co ...... 689 Du Byk, People v...... 113 *FTC v. Colgate-Palmolive Co. ... 362 Duffy v. Burmingham ...... 361 FTC, Giant Food Inc. v ...... 680 Dulles, Kent v...... 144-47 FTC, P. Lorillard Co. v ...... 683 Dumbra v. United States ...... 744 FTC, R. H. Macy & Co. v ...... 683 Durant Sportswear, Inc ...... 266 FTC v. Simplicity Pattern Co .... 681 *Dym v. Gordon ...... 711 FTC, Tri-Valley Packing Ass'n v... 681 Edens, United States v ...... 510 Garland, Ex parte ...... 326-28 Edmondson, People v ...... 658 Garmon, San Diego Bldg. Trades Edwards, In the Matter of Estate of Council v ...... 251 608-09 Gaunt v. John Hancock Mut. Life E.I. duPont de Nemours & Co. v. Ins. Co ...... 339-41, 343 United States (Cellophane) ... 585-86 Gayle, Browder v ...... 102 Eloise Curtis, Inc., In the Matter of Gaynor v. Rockefeller .... 254-55, 260 490, 492, 494 Gaynor News Co., NLRB v... 221, 223 Empire Storage & Ice Co., Giboney General Am. Life Ins. Co., Young v. 276 v...... 720-21 General Elec. Co ...... 685 Entick v. Carrington ...... 748 General Elec. Co., United States v. 589 Equitable Life Assur. Soc'y of General Eng'n & Mfg. Co., United United States, Bass v ...... 315 States v ...... 510 Erie Resistor Corp., NLRB v ...... 215 General Motors Corp., NLRB v. .. 242 Erlanger Mills, Inc. v. Cohoes Fibre General Stores Corp. v. Shlensky Mills, Inc ...... 348 421, 423-25, 427-30, 432, 434-35 *Estes v. Texas ...... 329 Giant Food Inc. v. FTC ...... 680 Fairme's Case ..... 620, 622, 625, 634 Giboney v. Empire Storage & Ice Co. Fearon v. Metropolitan Life Ins. Co. 275 720-21 Feathers v. McLucas ... 344-45, 348-51 Gibson, Conley v ...... 213 Feller, Frey v ...... 282 Gideon v. Wainwright ...... 104, 734 1965-66] INDEX TO VOLUME XXXIV

Ginzburg v. United States ...... 696 Hill v. Hayes ..... 556-57, 561, 565-63 Glasser v. United States ...... 72S Hillman, .Mesander v. .... 471, 474-79 Globe Indem. Co., Weil v... 310-12, 314 Hogan, Malloy v...... 134-35, 750 Goelet v. Confidential, Inc .... 560, 564 Houe of Lord's Inc ...... 6S6 Goldstein, People v ...... 117 Housing, Inc...... 236 Gonzales, International Ass'n of Howard, Brotherhood of R.R. Machinists v ...... 251 Trainmen v ...... 211, 255 Goodwin's Case ...... 621 Hudson & MI.LR., In the Matter of *Gordon, Dym v ...... 711 393, 4CO Gormley, People v ...... 641 Huff Co., In re ...... 50309 Gouled v. United States ...... 749, 751 Huffman, Ford Motor Co. v...... 212 Grand Union Co ...... 679 Humphrey v. Moore ...... 228, 251 Granquist, Simonson v ...... 512-13 Hutcherson v. United States ...... 323 Grant, Metropolitan Life Ins. Co. Hutcheson, United States v...... 342 291-95, 297, 299, 302, 305 Gray v. American Radiator & Stan- Hutchinson, Cooper v...... 10 dard Sanitary Corp ...... 350 H3yman, In the Matter of Estate of C03, Grayson-Robinson Stores, Inc. v. 605-03, 611 SEC ...... 429-30 Hyser v. Reed ...... 141 Green, Davie v ...... 507 ILGWU v. NLRB ...... 234 Greene, In the Matter of Estate of 60-9 Illinois, Beauharnais v. ... 664, 666-67, Greenstein v. National Skirt & 671, 674 Sportswear Ass'n ...... 299 Illinois & Miss. TeL Co., Wright v. 770 Gregory v. Helvering ...... 359 Independent *etal Worhers Union *Griffin v. California ...... 134, 137 (Hughes Tool Co.) .... 213, 219-21, Griswold v. Connecticut ...... 565 224-29, 231-39, 241-42 Guaranty Trust Co., Daniel . .... 475 246, 249, 251-53, 255, 265 Hale, People v ...... 635 Industrial Comm'r, Sword Line, Hare, In re ...... 497-98 Inc. v ...... 515-16, 519 Harris v. United States ...... 749, 751 Ingels, Boteler v ...... 513-14 Harvey v. Campbell ...... 361 International Ass'n of Machinists Hassett, Liebmann v ...... 284 v. Gonzales ...... 251 Hawarden Bank, Bardes v ...... 472-73 International Salt Co. v. United Hawker v. New York ...... 327 States ...... 163 Hawley, Estate of ...... 362 Inter-State Nat'1 Bank v. Luther .. 479 Hayes, Hill v .... 556-57, 561, 565-6S Iowa v. McFarland ...... 359 Hays v. People ...... 622-24, 625 Isham, United States v...... 359 Haytian Corp. of America, Lane v. Jack-son, Babcock v...... 712-16 393-94 Jacobson, United States v ...... 132 ...... Hearst Corp., Sutton v 556 Jahn v. Commercial Traveler, Mut. Heininger, Commissioner v.... 156-60 Ace. Ass'n of America ...... 314 Helvering v. Butterworth ...... 412 Jaques' Case ...... 6:3 Helvering, Gregory v ...... 359 Helvering v. 117iliam Flaccus Oak Jewel Tea Co., Local 1S9, Amalga- Leather Co ...... 359 mated Meat Cutters v. Henningsen v. United States Fid. & 286, 291, 297-99, 303, 3ZI Guar. Co ...... 456, 459-60 J. I. Case Co. v. NLRB ...... 211 Herold Radio & Electronics Corp., John C. Whitworth, Estate of .... 273 In re ...... 429 John Hancock MuL Life Ins. Co., Herts, In the Matter of Estate of ... 604 Gaunt v...... 339-41, 343 FORDHAM LAW REVIEW [Vol. 34

John Hancock Mut. Life Ins. Co., *Lefkowitz, New York Cent. R.R. v. 149 Wellisch v ...... 316-18 Leith v. Oil Transp. Co ...... 369 Johnston, People v...... 114 Leon Myart (Motorola, Inc.) Joint Anti-Fascist Refugee Comm. 257, 259, 263 v. McGrath ...... 81 Lewensohn, In re ...... 496-98, 501 Joint Apprenticeship Comm. of the Liberty Mortgage Corp., In the Steel Workers, Todd v. 252, 254, 260 Matter of ...... 420 Jones, Central of Ga. Ry. v ...... 226 Liberty Baking Corp., SEC v ...... 428 Jones v. Cunningham ...... 142, 728 Liebmann v. Hassett ...... 284 Judson Mills ...... 443 Lilly v. Commissioner ..... 158-59, 160 Julian Messner, Inc., Spahn v. ... 557, Line Material Co., United States v. 589 559-62, 565-68 Lines, Peters v ...... 478 Kahan, People v...... 701 Lloyd v. United States ...... 323-24 Kalishman, United States v .... 514-15 Local 3, Int'l Bhd. of Elec. Workers, Kallak, In re ...... 506-08 Allen Bradley Co. v .... 286, 295-305 Katchen v. Landy ...... 479, 481 Local 24, Int'l Bhd. of Teamsters Katz, People v ...... 632 v. Oliver ...... 293-94, 299 *Katzenbach, Morgan v ...... 735 Local 50, Am. Bakery Workers, Kauten, United States v ...... 130, 132 NLRB v ...... 230 Kearney & Trecker Corp. v. United Local 189, Amalgamated Meat Cut- States ...... 443 ters v. Jewel Tea Co. Kellar, In re ...... 498 286, 291, 297-99, 299, 303-04 Kent v. Dulles ...... 144-47 Local 282, Int'l Bhd. of Teamsters 230 Ker v. California ...... 750 Local 294, Int'l Bhd. of Teamsters, Kilberg v. Northeast Airlines, Inc. 711 NLRB v ...... 231 The King v. Burdett ...... 654 Local 357, Int'l Bhd. of Teamsters The King & Osborn ...... 655-58 v. NLRB ...... 217-19, 260 Kirby, In the Matter of ...... 409-10 Local 639, Drivers Union, NLRB v. Kapprott, State v ...... 660-61 234-35 Knapp, People v ...... 634 Local 1367, Int'l Longshoremen's Knickerbocker Leather & Novelty Ass'n ...... 225, 241 Co., In the Matter of ...... 390-91 Local 1976, United Bhd. of Carpen- Koussevitzky v. Allen, Towne & ters v. NLRB (Sand Door) ..... 754 Heath, Inc ...... 556, 558, 560, 567 Loehr, In Re ...... 409 Kraemer, Shelley v ...... 239-40 *Longines-Wittnauer Watch Co. v. Kresge, Florance v...... 476 Barnes & Reinecke, Inc ...... 344-47 Kunc, In the Matter of Estate of Louisiana, Rideau v ...... 331, 332 604-07, 609, 611 Louisville & N.R.R., Steele v. Lahiri v. Daily Mirror, Inc.... 567-68 210-13, 218, 233, 241, 252, 255 Lake's Laundry, Inc., In re .... 521-28 Louisville Trust Co. v. Comingor Landy, Katchen v ...... 479, 481 472-73 Lane v. Haytian Corp. of Amer- Lovett, United States v ...... 327-29 ica ...... 393, 394 Luther, Inter-State Nat'l Bank v... 479 Larr Optics & Electronics Corp., Maddox, Republic Steel Corp, v... 228 Matter of ...... 449 Mallory v. Travelers' Ins. Co. 308, 312 Larus & Brother ...... 238, 240 Malloy v. Hogan ...... 134-35, 750 Lassiter v. Board of Elections ... 736-39 Manufacturing Photo-Engravers Lea Fabrics, Inc., In re ...... 428 Ass'n, Philadelphia Record Co. v. Leader, Apex Hosiery Co. v... 290, 301 296-97 Lee, People v ...... 622-25 Mapp v. Ohio .... 104, 742, 745, 749-50 1965-66] INDEX TO VOLUME XXXIV

Marsh v Alabama ...... 240 Nassau Lens Co. v. CommiIoner 359 Martorella v. Prudential Ins. Co. of Nathan, In re ...... 477-73 America ...... 311, 312, 319 Nathan v. New York Life Ins. Massachusetts v. Thompson ...... 509 Co ...... 318-19 Masterton v. Mayor of the City of National Skirt & Sportswear A--'n, Brooklyn ...... 66, 63 Greenstein v...... 299 Max Factor & Co ...... 690-91 Near v. Minnesota ex rJ. Ohon ... 669 Mayor of the City of Brooklyn, Nebbia v. New York ...... 354 Masterton v...... 66, 63 New Hamp--hire, Chaplinky v ... 673 McCray v. United States ...... 723 New Jerzey, Twining v...... 135 McFarland, Iowa v...... 359 New York, Hawker v ...... 327 McGrath, Joint Anti-Fascist Refu- New York, Nebba v...... 354 gee Comm. v ...... S1 New York, Winters v ...... 563-4, McKenzie, People v ...... 724-25 666, 692, 694 McLeod v. American Fed'n of Tele- *New York Cent. R.R. v. Lefowitz 149 vision & Radio Artists ...... 760 New York Life Ins. Co., Fink v. McLucas, Feathers v. ... 344-45, 348-51 311-13 Mecca Temple -. Darrok ...... 424 New York Life Ins. Co., Nathan v. Medo Photo Supply Corp. v. NLRB 211 318-19 Merchants Natl Bank & Trust Co. New York Times Co. v. Sullivan v. State Mut. Life Ins. Co. of 553, 562, 564, 567-4i , America ...... 320 762, 764-63 Mercury Eng'r Co., In Re ...... 476 Nicholas, United States v...... 514-15 Messner, Wichelman v ...... 357 NLRB v. American Natl Ins. Co... 2Z9 *Metropolitan Life Ins. Co., Allen v. 336 NLRB, American Ship Bld3. Co. v. 213 Metropolitan Life Ins. Co., Fearon NLRB v. Eric Restor Corp ...... 215 v...... 275 NLRB v. Gaynor News Co. .. 221, 223 Metropolitan Life Ins. Co. v. Grant 342 NLRB v. General Motors Corp... 242 Metropolitan Life Ins. Co., Stein- NLRB, ILGWU v...... 234-35 ann ...... 314-15 NLRB, 3. I. Cawe Co. v ...... 211 Metropolitan Life Ins. Co., Wood v. 342 NLRB v. Local 50, Am. Bakery Michigan, Butler v ...... 709 Workers ...... 220 tMiles,Board of Educ. v...... 353 NLRB v. Local 294, Int'l Bhd. of *Miller, United States v ...... 717 Teamsters ...... 231 Minnesota ex rel. Olson, Near v. ... 669 NLRB, Local 357, Intl Bhd. of Miranda Fuel Co. 218-19, 221-25, 227, Teamsters v ...... 217-19, 201 230, 232, 235, 263 1N\LRB v. Local 639, Driver, Union Mississippi ex rel. Knox, Superior 234-35 Oil Co. v...... 359 NLRB, Local 1976, United Bhd. of Missouri, Cummings v .... 326-27, 323 Carpenters v. (Sand Door) ..... 754 Molineux, People v...... 112 NLRB, Medo Photo Supply Corp. v. 211 Moore, Humphrey v...... 22S, 251 NLRB, Radio Offcers' Union v. Moore, People v...... 117 215, 217-13, 221 Morehouse, People v ...... 6 24-26 NLRB, Republic Aviation Corp. v. *Morgan v. Katzenbach ...... 735 214-17 Morrison v. Davis ...... 102 NLRB, Wallace Corp. v. 212, 218, 22' Mulligan v. Travelers Ins. Co .... 283 NLRB v. Washington Aluminum Co. 23 Muns-ey Trust Co, United States v. Northeast Airlines, Inc., Kilbarg v. 711 457, 460, 466 Northern Pac. Ry. v. United States 163 Murdock v. Pennsylvania ...... 85 The Nuarco Co ...... 63 FORDHAM LAW REVIEW [Vol. 34 O'Connell, People v .... 627, 631, 634 People v. McKenzie ...... 624-25 Oesterreich v. Commissioner ...... 447 People v. Molineux ...... 112 Ohio, Mapp v. ... 104, 742, 745, 749-50 People v. Moore ...... 117 Oil Transp. Co., Leith v ...... 369 People v. Morehouse ...... 624-26 Oil Workers Union, Syres v ...... 212 People v. O'Connell ..... 627, 631, 634 Oliver, Local 24, Int'l Bhd. of Team- People v. Peckens ...... 117 sters v ...... 293-94, 299 People v. Powers ...... 619 Olson, Near v. Minnesota ex rel. ... 669 *People v. Randazzo ...... 139 Operators' Piano Co. v. First Wis. People v. Redmond ...... 113 Trust Co ...... 473-74 People v. Russell ...... 116 Order of R.R. Telegraphers v. Chi- People v. Ryan ...... 626-27 cago & Nw. Ry ...... 294 People v. Sharp ...... 109 Osborn, The King & ...... 655-58 People v. Slover ...... 113 Osborne, In the Matter of ...... 603 People v. Sorge ...... 112-13, 117 Osofsky, In re ...... 399-400 People v. Sullivan ...... 624 Owl Drug Co., In re ...... 397 People v. Terrel ...... 624, 633 Palmer v. City of Concord ...... 658 People v. Thompson ...... 726, Parchem, In the Matter of ...... 511 728-30, 733-34 Parrish, West Coast Hotel Co. v. .. 354 People v. Whitmore ...... 773-74 Paschen Contractors, Inc., Waters v. 260 People v. Wood ...... 633 Pearlman v. Reliance Ins. Co. People v. Young ...... 635-36 458, 460-62, 466 People v. Zackowitz ...... 109, 116 Peckens, People v...... 117 Perry, In the Matter of ...... 532 Pender, Conrad, Rubin & Lesser v. 396 Peter v. United States ...... 132 Penn. Mut. Life Ins. Co., Ranson v. Peters v. Lines ...... 478 341-43 Pfister, Dombrowski v...... 72-73, 84, Pennington, UMW v .... 286-87, 291, 86-97, 100, 103-06 297-98, 301-04 Philadelphia Record Co. v. Manu- Pennsylvania, Murdock v ...... 85 facturing Photo-Engravers Ass'n People, Adams v ...... 108 296-97 *People v. Alfinito ...... 740 Phillips, First Nat'l Bank v...... 448 People v. Angelo ...... 637 Pierce v. Carskadon ...... 326 People v. Bransby ...... 623-25, 644 Pioneer Bus. Co ...... 238-39 People v. Buzzi ...... 113 P. Lorillard Co. v. FTC ...... 683 *People v. Camacho ...... 725 Powell v. Alabama ...... 728-29 People v. Carroll ...... 750 Powers, People v ...... 619 People v. Connor ...... 624-26, 633 *People v. De Lucia ...... 769 Prairie State Bank v. United States 455-56, 459-60 People v. Du Byk ...... 113 Provoo, United States v...... 119 People v. Edmondson ...... 658 People, Foster v ...... 630 Prudential Ins. Co. of America, People v. Goldstein ...... 117 Begley v ...... 315-20 People v. Gormley ...... 641 Prudential Ins. Co. of Amercia, People v. Hale ...... 635 Bolger v ...... 312-13 People, Hays v ...... 622-25 Prudential Ins. Co. of America, People v. Johnston ...... 114 Martorella v ...... 311-13, 319 People v. Kahan ...... 701 Prudential Ins. Co. of America, People v. Katz ...... 632 White v ...... 309, 312 People v. Knapp ...... 634 *Pure Oil Co. v. Suarez ...... 368 People v. Lee ...... 622, 625 Quaker Oats Co ...... 689 1965-66] INDEX TO VOLUME XXXIV

Radio Officers' Union v. NLRB SEC v. Canandaigua Enterprises 215, 217-13, 221 Corp ...... 431, 434 *Randazzo, People v...... 139 SEC v. Crumpton Builders, Inc. 430-31 Ransom v. Penn. Mut. Life Ins. Co. SEC, Grayson-Robinson Stores, Inc. 341-43 v...... 429-30 Rash, Carrington v...... 737 SEC v. Liberty Baking Corp ...... 428 Redmond, People v ...... 113 SEC v. United States Realty & Reed, Hyser v ...... 141 Improvement Co ...... 419, 421, *Reinck% United States ex rel. Swan- 423-25, 423, 434 son v...... 321 Second Coronado Case ...... 290 Reliance Ins. Co., Pearlman v. Secretary of State, Apthcher v. 458, 460-62, 466 145, 147-43 Republic Aviation Corp. v. NLRB *Seeger, United States v ..... 129, 132-33 214-17 Segal v. Rochelle ...... 414 Republic Steel Corp. v. Maddox ... 223 Selective Draft Law Cases ...... 130 *Retail Clerks Union v. Food Em- Sernau, In the Matter of Estate of 599 ployers Council, Inc ...... 752 Sexwedl Mfg. Co ...... 265-6S Reynolds v. Sims ...... 737 Sexton v. Dreyfus ...... 504 R. H. acy & Co. v. FTC ...... 633 Sharfsin v. United States ..... 499-501 Richardson, Fitch v ...... 471-72 Sharp, People v...... IC9 Rideau v. Louisiana ...... 331-32 Shelley v. Kraemer ...... 239-40 Robinson v. California ...... 321-25 Shlensky, General Stores Corp. v. Rochelle, Segal v...... 414 421, 423-25, 427-30, 432, 434-35 Rockefeller, Gaynor v .... 254-55, 260 Shupach, In the Matter of WYi1l of 597 *Rosenblatt v. Baer ...... 762 Sidis v. F-R Publishing Corp. 557, 559 Roth v. United States ..... 695-97, 701 Simonson v. Granquist ...... 512-13 Royal, Biltmore Village Inc. v. ... 353 Simplicity Pattern Co., FTC v.... 631 Royal Farms Dairy Co. (Tax Court) 362 Sims, Reynolds v...... 737 Royer's Bakery, Inc., In the Mat- Singer v. Walker ..... 345, 347-43, 351 ter of ...... 443 Skinitzero v. City of New York 772, 774 Rubber Workers Union .... 220-21, 223, Slover, People v...... 113 225-26, 223-30, 232, 249 Smith v. V'illage of Lansing ...... 102 Rugendorf v. United States ...... 743 Sorge, People v...... 112-13, 117 *Rusk, Zemel v ...... 143, 143 Spahn v. Julian Mecsmer, Inc. .... 557, Russell, People v...... 116 559-62, 565-63 Ryan, People v ...... 626-27 Standard Oil Co. v. United States .. 163 San Diego Bldg. Trades Council v. *State v. Bisaccia ...... 746 Garmon ...... 251 State, Drozda v ...... 658-59 Saper, City of New York v. State v. Klapprott ...... 6CO-61 507-03, 512, 514, 516, 513, 520 State Mut. Life Ins. Co. of America, Sarah Backer ...... 155, 159 Merchants Nat'l Bank & Trust Schenck v. United States ...... 671 Co. v...... 320 Schiller, United States v...... 119 Steck, In the Matter of ...... 409 Schiageter, In the Matter of ...... 532 Steele v. Louisville & N.R.R. Schmidt, In the Matter of Estate of 599 210-13, 213, 233, 241, 252, 255 Seattle Gen. Hosp., Arnett v...... 259 Steinmann v. Metropolitan Life Ins. SEC v. American Trailer Rentals Co ...... 314-15 Co ...... 419, 421, 432, 434-35 St. Louis Dairy Co., Adams Dairy SEC v. Burton ...... 434 Co. v...... 293, Z97 FORDHAM LAW REVIEW [Vol. 34

Stokes & Smith Co., Transparent- Travelers Ins. Co., Mulligan v. 283 Wrap Mach. Corp. v. (Trans- Treganowan, Commissioner v. 277 wrap) ...... 569-71, 575-80, 582-83, TriValley Packing Ass'n v. FTC ... 681 585-86, 588-89, 590-92 Trust Co., Allen v ...... 285 Stout v. Construction Laborers Dist. Twining v. New Jersey ...... 135 Council ...... 260 Uhlfelder, In the Matter of Estate of 607 Stromberg v. California ...... 718 UMW v. Pennington ...... 286-87, 291 *Suarez, Pure Oil Co. v ...... 368 297-98, 301-04 Sullivan, New York Times Co. v. 553, Union Bank v. United States ..... 362 562, 564, 567-68, 762, 764-68 Union Bank of Switzerland, Con- Sullivan, People v ...... 624 way v ...... 477 Superior Oil Co. v. Mississippi ex rel. United Rubber Workers ...... 263-65 Knox ...... 359 *United States ex rel. Swanson v. Susquehanna Coal Co., Tauza v. ... 345 Reincke ...... 321 Sutton v. Hearst Corp ...... 556 United States, Abel v ...... 751 *Swanson v. Reincke, United States United States v. American Fed'n of ex rel ...... 321 M usicians ...... 292 Sword Line, Inc. v. Industrial United States v. Bass ...... 511 Comm'r ...... 515-16, 519 United States, Berman v ...... 131-33 Syres v. Oil Workers Union ...... 212 United States, Block v ...... 500-01 Tanner Motor Livery, Ltd .... 233-34 United States, Boyd v ...... 747-48 Tauza v. Susquehanna Coal Co .... 345 United States, Bingar v...... 745 *Tellier v. Commissioner ...... 155, 160 *United States v. Brown ...... 325 Terminiello v. Chicago ...... 673-74 United States, Bruning v ...... 517-20 Terrell, People v...... 624, 633 United States, Castle v...... 324 *Texas, Estes v...... 329 United States v. County Bd. of Thomas A. Joseph ...... 157-58 Elections ...... 738 Thompson, In re ...... 533 United States, Dumbra v...... 744 Thompson, Massachusetts v ...... 509 United States v. Edens ...... 510 Thompson, People v...... 726, 728-30, United States v. EI. duPont de 733-34 Nemours & Co. (Cellophane) Thys Co., Brulotte v .... 570-71, 577, 585-86 580, 582, 588 United States v. General Electric Co. 589 Tobacco Workers, Daye v ...... 256 United States v. General Eng'r & Todd v. Joint Apprenticeship Comm. Mfg. Co ...... 510 of the Steel Workers .. 252, 254, 260 United States, Ginzburg v ...... 696 Torcaso v. Watkins ...... 132 United States, Glasser v ...... 728 Tower, Commissioner v ...... 359 United States, Gouled v...... 749-751 Transcontinental Indus., Inc., Mat- United States, Harris v ...... 749, 751 ter of ...... 449 United States, Hutcherson v ...... 323 Transmirra Prods. Corp., Fourco United States v. Hutcheson Glass Co. v ...... 369-70 291-95, 297, 299, 302, 305 Transparent-Wrap Mach. Corp. v. United States, International Salt Co. Stokes & Smith Co. (Transwrap) v...... 163 569-71, 575-80, 582-83, United States v. Isham ...... 359 585-86, 588-92 United States v. Jakobson ...... 132 Transvision, Inc., In the Matter of United States v. Kalishman .... 514-15 425, 427-28 United States v. Kauten ..... 130, 132 Traphagen v. Fidelity & Cas. Co. .. 313 United States, Kearney & Trecker Travelers' Ins. Co., Mallory v. 308, 312 Corp. v ...... 443 1965-66] INDEX TO VOLUME XXXIV

United States v. Line Material Co. SS9 Waters v. Paschen Contractors, Inc. 260 United States, Lloyd v ...... 323-24 Watkins, Torcaso v ...... 132 United States v. Lovett ...... 327-29 NV1l v. Globe Indem. Co. 310-12, 314 United States, McCray v...... 723 Welisch v. John Hancock Mut. Life *United States v. Miller ...... 717 Ins. Co...... 316-13 United States v. Munsey Trust Co. West Coast Hotel Co. v. Parrh ... 354 457, 460, 466 West Virginia, Dent v ...... 327 United States v. Nicholas ...... 514-15 Western Contracting Corp. v. Com- United States, Northern Pac. Ry. v. 163 missioner ...... 446 United States, Peter v ...... 132 Westover, Beacon Theatres, Inc. v. 485 United States, Prairie State Bank v. White v. Prudential Ins. Co. of 455-56, 459-60 America ...... 3Z9, 312 United States v. Provoo ...... 119 White Plains Ice Serv., Inc., In re 522 United States, Roth v .... 695-97, 701 Whitfield v. United Steftorkers of United States, Rugendorf v...... 743 America ...... 261-62, 264 United States, Schenck v ...... 671 Whitlatch v. Fidelity & Cas. Co. United States v. Schiller ...... 119 309, 313 *United States v. Seeger ... 129, 132-33 Whitmore, People v ...... 773-74 United States, Sharfsin v ...... 499-501 Wichenman v. Me sner ...... 3S7 United States, Standard Oil Co. v. 163 Vrilcox-Gay Corp, In the Matter United States, Union Bank v. .... 362 of ...... 427-23, 434 United States, Wilson v. .. 135-36, 133 Vrlliam Flaccus Oak Leather Co, United States Fid. & Guar. Co., Helvering v...... 359 Henningsen v ...... 456, 459-60 Wilmington Parking Authority, Bur- United States Realty & Improve- ton v...... 2S4 ment Co., SEC v. .. 419, 421, 423-25, , rilon v. United States .... 135-36, 133 423, 434 Winters v. New York ...... 563-64, United Steelworkers v. American 601, 692, 694 Mfg. Co...... 227 Wood v. Metropolitan Life Ins. Co. 342 United Steelworkers of America, Wood, People v...... 633 Whitfield v...... 261-62, 264 Wright v. Illinois & Miss. Tel. Co.... 770 Village of Lansmg, Smith v...... 102 Young, Ex parte ...... 4 Wainvright, Gideon v ...... 104, 734 Young v. General Am. Life Ins. Co. 276 Wal-Feld Co, In the Matter of 393-400 Young, People v...... 635-36 Walker, Singer v. .... 345, 347-43, 351 Youssoupoff v. Columbia Broad- Wallace Corp. v. '.LRB. 212, 21S, 233 casting Sys, Inc ...... 5 0-62 Washington Aluminum Co., NLRB Zackowitz, People v...... 109, 116 v...... 233 *Zemel v. Ruq ...... 143, 143

CREIES AGAINST PEACE- MANUEL R. GARCfA-MORA* O F the three charges contained'in the of the International .Military that sat at Niirnberg,l the so-called "crimes against peace" have undoubtedly caused the greatest controversy. Techni- cal questions concerning the novelty of this charge and the retroactive character of the law applied by the Tribunal were vigorously contested by international jurists at the time.- And even after the execution of the Niirnberg , difficulties remained regarding the nature of crimes against peace and the application of the Niirnberg in future international law.3 Today, after almost two decades, these problems persist. In addition, crimes against peace are likely to be regarded as political offenses, thus giving rise to the denial of extradition where the offenders have taken refuge in a foreign country. This particular problem arose in the post-war era when the prosecution of the Nazi leaders responsible for the war was undertaken. Moreover, these problems are specially relevant in connection with contemporary schemes designed for the maintenance of peace. It is necessary to determine, therefore, the precise nature of crimes against peace as construed by the Niirnberg and other military tribunals, and to discuss the development of this concept in subsequent international instruments. These crimes will then be viewed from the standpoint of political offenses.

I. THE NATU=E OF CRnIs AGAINST PEACE According to the Niirnberg Charter, crimes against peace consist in the "planning, preparation, initiation or waging of a , or a

i This article, intended as a chapter of a book, was originally entitled, "Crimes Against Peace in International Law: An Attempt at Clearification from Niirnberg to the Present." Other chapters of the book, which was incomplete at the time of Professor Garcia-Mora's death, will appear throughout the year in other legal periodicals. His intended book was to explore not only the law of extraditable offenses, but also the concept of political (non- extraditable) offenses. * Late Professor of Law, Fordham University School of Law. 1. For text of the Charter, see 1 Trial of the Major War Criminals Before the Inter- national Military Tribunal 10 (1947) [hereinafter cited as International Trial]. 2. For a refutation of some of these objections, see Glueck, The Nuernberg Trial and Aggressive War, 59 Harv. L. Rev. 396, 407-1S (1946). For a contrary view, see Raja Gabaglia, Guerra e Direito Internacional 114-15 (1949). 3. See Kelsen, Will the Judgment in the Nueremberg Trial Constitute a Precedent in In- ternational Law, 1 Int'l L.Q. 153 (1947). See also Rousseau, Droit International Public 578- 79 (1953) ; Stone, Legal Controls of International Conflict 35S-63 (rev. ed. 1959); Schvarzen- berger, The Judgment of Nuremberg, 21 Tul. L. Rev. 329, 344-51 (1947). FORDHAM LAW REVIEW [Vol. 34 war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing. . . ."I Essentially the same perspective may be seen to infuse the Charter of the International Military Tribunal for the Far East,5 under which the Japanese leaders were tried and punished; and the Control Council Law No. 10 enacted on December 20, 1945,0 by the Four Powers occupying Germany, for the trial of the so-called minor war criminals.' The application of the NUrnberg provision was generally revealed as inept for the specific circumstances of the cases.8 The prin- ciples involved proved embarrassing to the presiding and led them to base their determinations upon two assumptions, the validity of which has been seriously questioned. The first of such assumptions consists in the belief that a war of aggression was an international before the London Agreement of August 8, 1945, under which the International Military Tribunal at Nfirnberg was established. The Tribunal succinctly stated that, in its opinion, "aggressive war is a crime under international law."' 0 Unfortunately, however, the Niimnberg Judgment did not ade- quately deal with this assertion, thus leaving the matter subject to much speculation and doubt. Instead, the Tribunal contented itself with stating that "the law of the Charter is decisive, and binding upon the Tri- bunal,' and that, since the Charter made "the planning or waging of a war of aggression or a war in violation of international treaties a crime .. . ." it was not "strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement."'1 2 It did say, however, that "to initiate a war of aggression .. . is not only an international crime; it is the supreme international

4. Charter of the International Military Tribunal at Nuremberg art. 6, para. (a); see note 1 supra. 5. Charter of the International Military Tribunal for the Far East art. 5, para. (a). There is a slight modification in the wording of the provision, for the Tokyo Charter conferred jurisdiction on the Tribunal to try "Crimes against Peace: Namely, the planing, prepara- tion, initiation or waging of a declared or undeclared war of aggression, or a war in viola- tion of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing . . . ." For text of this Charter, see In re Hirota, [19483 Ann. Dig. 356, 357-58 (No. 118) (Japan). 6. For the text of this law, see Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Under Control Council Law No. 10, at 250 (1949). 7. Control Council Law No. 10, art. II, § 1, para. (a). 8. Professor Percy E. Corbett states that those who wrote the decision "were catching at straws." Corbett, Law and Society in the Relations of States 231 (1951). 9. For the text of this Agreement, see Sohn, Cases on Law 858-59 (1956). 10. 1 International Trial 224. See also 22 International Trial 467. Long before 1945, Professor H. Donnedieu de Vabres had maintained that "a war of aggression is a crime." de Vabres, Les Princip6s Modernes du Droit Pnal International 426 (1928). 11. 1 International Trial 218. 12. 22 International Trial 461. .1965] CRIMES AGAINST PEACE crime ....113 The Tribunal supported its position by citing such pre-war agreements as the Kellogg-Briand Pact of August 27, 192S, outlawing war as an instrument of national policy; the Draft Treaty of Mutual Assist- ance sponsored by the in 1923, providing, in Article 1, "that aggressive war is an international crime"; the Preamble to the League of Nations Protocol for the Pacific Settlement of International Disputes of 1924, stating that a war of aggression constitutes a violation of the solidarity between nations and is, therefore, an international crime; the declaration adopted by the Assembly of the League of Nations on September 24, 1927, that war is an international crime; and the resolution unanimously adopted on February 18, 1928, by the twenty-one American Republics at Havana, providing that "war of aggression constitutes an international crime against the human species."'14 This is an impressive list indeed, but it should be added, however, that, apart from the Kellogg- Briand Pact, which at the outbreak of the war was in force between sixty-three States, the other instruments mentioned by the Tribunal either never came into force or else were mere resolutions without any binding force. And even in respect to the Kellogg-Briand Pact, no specific con- demnation of aggressive war nor an individual criminal liability for this offense is found therein.' 5 The assumption, therefore, that a war of ag- gression is an international crime remains, in the main, highly con- jectural.0 The second important assumption underlying the Niirnberg Judgment concerns the criterion of aggression adopted by the Tribunal. The Tri- bunal seemed to have assumed that aggression was a well established and fairly precise concept in international criminal law. Yet, unlike domestic criminal , where crimes are precisely defined so that indiduals may know exactly the limits of permissible behavior, the crime of aggres- sion is a most vague and general concept not yet defined nor described by any international instrument. 7 The Niirnberg Charter itself offered no criterion of aggression for the guidance of the Tribunal, nor did the latter 13. Id. at 427. 14. 1 International Trial 222. 15. Monaco, Manuale di Diritto Internazionale Pibblico 163 (19C0). But see Pompe, Ag- gressive War, An International Crime 2.53-54 (1953). 16. Stone, op. cit. supra note 3, at 325; see 2 Guggenheim, Trait de Droit internatioral public 42-43 (1954); 2 Podesti Costa, Derecho Internacional PNblico 322-23 (3d ed. 1955); Schwarzenberger, op. cit. supra note 3, at 346. See also the disenting opinion of Judgze Roling in the Tokyo judgment, where he maintains that aggressive war, although perhaps the subjczt of moral condemnation, was "'not considered a true crime before and in the beginning of this war and could not be considered as such for lack of those conditions in international relations on which such a view could be based.'" In re Hirota, [194S] Ann. Dig. 356, 375 (Xo. 113) (Japan). But see Wright, The Law of the Nuremberg Trial, 41 Am. J. Int'l L. 33, 72 (1947). 17. Memorandum of Ricardo J. Alfaro on the Question of Defining Aggrezion, Ur . Doc. No. A/C.4/L.8 (1951). FORDHAM LAW REVIEW [Vol. 34 ever formulate any criteria in the course of its decisions. 8 As the United Nations International Law Commission subsequently observed, what the Tribunal did was to review the historical events before and during the war in an effort to determine whether aggression had been committed by the defendants. 19 From such a broad and flexible orientation, the Tribunal found that certain of the defendants had committed acts of aggression in seizing Austria and Czechoslovakia,2 0 and war of aggression against Poland, Belgium, Denmark, Norway, Holland, Luxembourg, Yugoslavia, Greece, the Soviet Union, and the United States.21 The Tribunal signifi- cantly added that these findings made it unnecessary to discuss in detail whether these aggressive wars were also " 'wars in violation of inter- national treaties, agreements, or assurances' " within the terms of the Charter.2 2 It is thus obvious that a war of aggression may technically exist quite independently of a war " 'in violation of international treaties, agreements, or assurances.' " It may also be noted that these two kinds of war constitute two separate and independent categories of crimes against peace. Despite the broad generalizations of the Niirnberg Judgment, certain legal principles can be readily perceived which reveal more clearly the nature of crimes against peace as understood by the Tribunal. Turning again to the Niirnberg Charter, it will be recalled that crimes against peace embrace a series of offenses consisting in the planning, preparation, initiation, or waging of a war of aggression, or participation in a common

18. Stone, Aggression and World Order: A Critique of United Nations Theories of Ag- gression 136 (1958). The Tokyo Charter did not offer a definition of aggression either. However, the Tribunal did formulate some kind of a criterion. Thus, in describing the war of aggression which Japan launched on December 7, 1941, against Britain, the United States, and the Netherlands as "unprovoked attacks, prompted by the desire to seize the possessions of these nations," the Tribunal continued, "Whatever may be the difficulty of stating a comprehensive definition of 'a war of aggression,' attacks made with the above motive can- not but be characterized as wars of aggression." For this part of the Tokyo Judgment, see Sohn, op. cit. supra note 9, at 915. 19. See Formulation of the Niirnberg Principles, International Law Comm'n, Report, U.N. Gen. Ass. Off. Rec. 5th Sess., Supp. No. 12 (A/1316), at 11-14 (1950). 20. These aggressive actions were regarded as steps in the plan to wage aggressive war. See 22 International Trial 433-39. However, some of the decisions of the American Military Tribunals established at Niirnberg under Control Council Law No. 10 regarded the seizure of Austria and parts of Czechoslovakia as aggressive in the case of Austria and as aggressive invasion in the case of Czechoslovakia, and, in both cases, as crimes against peace. See, e.g., United States v. von Weizsaecker, 14 Trials of War Criminals Before the Nueren- berg Military Tribunals 314, 336-37 (1949). For an excellent discussion of this distinction, see Woetzel, The in International Law 223-24 (1960). 21. 22 International Trial 439-58. 22. 1 International Trial 216. 1965] CRIMES AGAINTST PEACE plan or conspiracy for the accomplishment of the preceding acts?3 Although, at first, it may appear that each one of these acts constitutes a separate and distinct crime against peace,2 4 in practice, however, the guilt of the defendants was judged on the basis of two counts whose precise limits are difficult to mark in specific cases. '3 Count one dealt with a common plan or conspiracy to plan, prepare, initiate and wage aggres- sive war, while count two was concerned with the planning, preparation, initiation and waging of specific wars of aggression.2 The vague and clumsy drafting of these two counts left the Niirnberg Charter open to wide and flexible interpretation which was sometimes productive of highly undesirable results. The separate discussion of the two counts will adequately support this conclusion. Wholly apart from the fact that the Charter did not define conspiracy2, international jurists have agreed that there was no crime of conspiracy in international law in 1939, and that, even in domestic legal systems other than those of the common-law world, this crime is largely un- known. 8 Yet it must not be assumed that the Tribunal regarded con- spiracy within the meaning of Anglo-American criminal law?3 The Tri- bunal considered conspiracy as a number of closely related acts developed from 1919 to 1945 and including the formation of the Nazi Party in 1919 as "'the instrument of cohesion among the Defendants . . .. " the over- throw of the Treaty of Versailles, secret rearmament by Germany, and the planning and waging of aggressive actions."" What seems particularly sig- nificant is that these acts in themselves did not constitute a criminal con- spiracy under the unless they were a part of a plan to wage aggressive war. The Tribunal was most explicit in this connection. [T]he conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. The planning, to be criminal, must not rest merely on the declarations of a party program. such as are found in the 25 points of the Nazi Party, announced in 1920, or the political affirmations espressed

23. Charter of the International Military Tribunal at Nuremberg art. 6, para. (a); see note 1 supra. 24. Greenspan, The Modern Law of Land Warfare 445 (1959). 25. The Tribunal said: "We shall... discuss both Counts together, as they are in sub- stance the same." 1 International Trial 224. 26. Id. at 29, 42. The counts actually overlap. See Leventhal, Harris, Woolsey & Farr, The Nuernberg , 60 Harv. L. Rev. S57, SS1-S2 (1947). 27. The Tokyo judgment defined conspiracy as "an agreement" to wage aggrezsive var. Sohn, op. ciL supra note 9, at 910. 28. For discussion, see Stone, op. cit. supra note 3, at 361. 29. See generally Perkins, Criminal Law 527 (1957); Williams, Criminal Law § 212 (2d ed. 1961). 30. 1 International Trial 224-25. FORDHAM LAW REVIEW [Vol. 34 in Mein Kampf in later years. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan.8' It can be readily seen, therefore, that the crime of conspiracy cannot be isolated from the crime of waging concrete wars of aggression under count two of the indictment. Yet it has already been seen that conspiracy to commit aggression and the waging of specific wars of aggression are, in principle, two separate and distinct crimes against peace. The technical difficulty faced by the Tribunal in the crime of describing conspiracy can be clearly seen in another portion of the Judgment. While the notion of conspiracy in Anglo-American criminal law signifies a combination between two or more persons to commit an unlawful act or to do a lawful act by criminal or unlawful means, thus implying the exist- ence of a "unity of design and purpose,"3 2 the Nirnberg Judgment apparently could not point to one single combination embracing one single master plan to commit crimes against peace. What it did find were separate plans, which were nothing more than "a series of connected events"3 leading up to the commission of aggressive wars. The Tribunal sharply stated: It is not necessary to decide whether a single master conspiracy between the defendants has been established by the evidence .... [T]he evidence establishes with certainty the existence of many separate plans rather than a single conspiracy em- bracing them all. . . . It is immaterial to consider whether a single conspiracy to the extent and over the time set out in the Indictment has been conclusively proved. Continued planning, with aggressive war as the objective, has been established beyond 4 doubt.3 Conceivably, therefore, conspiracy could exist even though no specific combination for the accomplishment of the unlawful act was present." A distinguished jurist has suggested that this rather flexible interpretation may well have been adopted to allow more latitude in the proof of the other counts than would otherwise be permitted under the conspiracy con- cept in Anglo-American law. 6 The force of this suggestion can be most clearly seen when remembering that not a single defendant was convicted on the conspiracy count alone, and that conviction on this count was only had when connected with the planning and preparation for specific wars 31. Id. at 225. 32. Perkins, op. cit. supra note 29, at 530. 33. Brownlie, International Law and the Use of Force by States 201 (1963). 34. 1 International Trial 225. 35. In United States v. Von Leeb, 11 Trials of War Criminals Before the Nuerenberg Military Tribunals 462, 488-89 (1948), a United States Military Tribunal stressed the neccs- sity of proving the existence of a concrete plan in order to constitute the crime of conspiracy to commit a crime against peace. 36. Stone, op. cit. supra note 3, at 361. 1965] CRIMES AGAINST PEACE of aggression under count two.3 7 It thus becomes clear that the conspiracy count was rather unnecessary and superfluous, since the criminal liability of the defendants could have been adequately judged on the basis of planning and preparation for specific wars of aggression under count two of the indictment3 8 This observation is of critical importance, for any assessment of the future of the crime of conspiracy in international law must take account of the confusion and uncertainty underlying the Niirn- berg Judgment. On such a basis, the assertion that there is a notion of conspiracy to commit a crime against peace can hardly be supported 39 The second count of the Niimberg Indictment embraces in its widest sweep all the component steps leading to the commission of a war of ag- gression. More specifically considered, these components include the "plan- ning," "preparation," "initiation," and "waging" of aggressive war. While these concepts might logically be expected to differ in their technical import, the Niirnberg Judgment did not distinguish between "planning" and "preparation," and, further, failed to give a separate consideration to the concept of "initiation." The operative reality of these four con- ceptions are essentially reduced by the Judgment to "preparation" and "waging" of aggressive war."0 This certainly reflects the atmosphere of ambiguity and abstraction in which the Niirnberg Charter was framed. Looking comprehensively at the Judgment, some light may be shed upon the meaning of the above conceptions. Thus, "planning" and "preparation" were considered by the Tribunal as embracing all the stages necessary for the initiation of a war of aggression. The Tribunal clearly said that "planning and preparation are essential to the making of war."" It will naturally follow that "planning" and "preparation" cannot be regarded as elements of guilt under the counts of the Indict- ment unless they are a part of a specific plan for the making of aggressive war. Clearly then, the "planning" and "preparation" for a nebulous and future plan of aggression, unconsummated by a concrete aggressive war, is not sufficient to engage the criminal responsibility of the individuals concerned.4 2 The trial of Schacht is particularly instructive in this con- nection for, while the Tribunal recognized that he was largely responsible 37. It is also interesting to note that, though count one alho charged conspiracy to com- mit war crimes and , the latter conspiracy variant was disrearded by the Tribunal. See 1 International Trial 226. 3S. Brownlhe, op. cit. supra note 33, at 201. 39. Brand, The Trials and the Laws of War, 26 Brit. Yb. Intl L. 414, 419-21 (1949). 40. See Kelsen, Principles of International Law;, 135 (1932), w.here the view is ad- vanced that "planning," "preparation" and "initiation" of v."ar are new international crimes 41. 1 International Trial 224. 42. Brownlie, op. cit. supra note 33, at 196. FORDHAM LAW REVIEW [Vol. 34 for the rapid rearmament of Germany after 1933, he was nevertheless acquitted on both counts. This portion of the Judgment is specially significant, for the Tribunal unmistakably made the crime of "planning" and "preparation" for aggressive war entirely dependent upon the waging of such a war. The Tribunal thus stated: "But rearmament of itself is not criminal under the Charter. To be a Crime against Peace under

Article 6 of the Charter it must be shown that Schacht carried 4out this rearmament as part of the Nazi plans to wage aggressive wars. 7 3 From this passage, it should be evident that, if "planning" and "prep- aration" are found to exist in a specific case, criminal responsibility is still no necessary result. In these terms, "planning" and "preparation" really represent the beginning of a particular pattern of behavior, which can be characterized as criminal if functionally related to aggressive war. It may be noted additionally that implicit in the Schacht decision is the distinction between actions and policies in support of the war effort which are criminal, and those which are not.44 The decisive test in this connection is whether such actions and policies are directly connected with plans of aggression. In contrast with "planning" and "preparation," the "waging" of aggres- sive war is by itself a crime against peace, even if not directly connected with the former. Thus conceived, the "waging" of aggressive war is totally independent of "planning" and "preparation." The opinion of the Tribunal in respect to Admiral Donitz illustrates this point well, for he was convicted under count two alone for waging aggressive submarine warfare, even though no connection with the "planning" and "prepara- tion" of such war could be found.4 5 Moreover, the conviction on this charge of civilians, such as industrialists and financiers, as well as military men, strikingly indicates that the crime of waging unlawful war is not limited to the exclusive military facets of a war.40 It finally remains to observe that, although the crime of waging aggres- sive war would seem to be fairly broad in that its existence is not neces- sarily dependent upon any other factor, the Tribunal significantly con- victed on this charge only those defendants who were so close to Hitler as

43. 1 International Trial 309. 44. Thus, the Tribunal acquitted Speer who became head of the armament industry. "His activities in charge of German armament production were in aid of the war effort In the same way that other productive enterprises aid in the waging of war; but the Tribunal is not prepared to find that such activities involve engaging in the common plan to wage aggressive war as charged under Count One or waging aggressive war as charged under Count Two." 1 International Trial 330-31. 45. Id. at 310-11; see 22 International Trial 556-57. 46. Besides military men, such civilians as Frick, Rosenberg and Von Neurath were con- victed under count two. See 22 International Trial 544-47, 539-41, 579-82. 1965] CRIMES AGAINST PEACE 9 both to possess concrete knowledge of his aggressive plans and to col- laborate intimately with him47 It would seem inexorably to follow, therefore, that the aggressive war charge applies only to high-ranking military personnel and high State officials and, consequently, not every- one in uniform who fights in a war of aggression can be charged with the crime."5 This is certainly a most reasonable construction, for the concep- tion of "waging" would seem to imply the ability to influence policy de- cisions, a power which personnel below the top echelon of the State do not possess. 49 It may thus be submitted that, in assessing the guilt of the defendants under the charge of aggressive war, the Niirnberg Tri- bunal adopted a fairly narrow test of responsibility, thereby substantially limiting the scope of the crime.00 From the foregoing exposition, the most conspicuous facts about crimes against peace are both their vague and general description, and the utter lack of agreement regarding their criminality under international law.0' For an accurate consideration of this point, it is highly relevant to con- trast, briefly, crimes against peace with war crimes and crimes against humanity-both of which were also punishable under the Niirnberg Charter. 2 The conception of war crimes was not new in 1945, but has reference to specific violations of the laws and customs of war made punishable by domestic legislation and international conventions.p Similarly, crimes against humanity consist of acts generally recognized as criminal by the penal law of all civilized States-1 Therefore, war crimes and crimes against humanity refer to clearly defined offenses, whose criminality was recognized long before 1945, so that the charge of ex

47. See 22 International Trial 463-69. 4S. This was the assumption of the International Law Commission in formulating the Ninberg Principles; see note 19 supra. 49. This point was repeatedly stressed in the trials of the so-called minor war criminals by American Military Tribunals. See United States v. Von Leeb, 11 Trials of War Criminals Before the Nuerenberg Military Tribunals 462, 4S3-S9 (1943). In United States v. Krupp, 9 Trials of War Criminals Before the Nuerenberg Military Tribunals 393 (1950), the proszcu- tion did not discharge its burden of proof on this point, and, therefore, the charge of crimes against peace was dismissed by the Tribunal. 50. de Vabres, Le Procis de Nuremberg Devant les Principes du Droit Pnal Interna- tional, 70 Hague Recuel 477, 528 (1947). 51. See authorities cited note 3 supra. 52. Charter of the International Military Tribunal at Nfirnberg art. 6, paras. (b)-(c); see note 1 supra. 53. See Garcia-M ora, War Crimes and the Principle of Non-extradition of Political Of- fenders, 9 Wayne L. Rev. 269, 270-75 (1963). 54. See Garcia-Mora, Crimes Against Humanity and the Principle of Nonextradition of Political Offenders, 62 lich. L. Rev. 927 (1964). FORDHAM LAW REVIEW [Vol. 34 post facto legislation could not possibly be applied to them.", Crimes against peace, on the other hand, were rather novel in 1945, thus giving rise to the charge5" of ex post facto legislation; and, even after Niirn- berg and the other war crimes cases, they have remained largely un- defined, and, therefore, considerable controversy and doubt still attend their determination. Subject to this qualification, the general effect of the charge of crimes against peace is somewhat weakened by the uncertainty underlying its application and, thus, can scarcely be a hopeful subject for an international agreement in the near future.

II. CRIMES AGAINST PEACE IN THE DRAFT CODE OF OFFENSES AGAINST THE PEACE AND SECURITY OF MANKIND Partially in recognition of the above considerations, and in an attempt at clarification, the United Nations General Assembly requested the International Law Commission in 1947 (a) to formulate the principles of International law recognized in the Charter and in the Judgment of the Niirnberg Tribunal, and (b) to prepare a Draft Code of Offenses against the Peace and Security of Mankind, indicating clearly the place to be accorded to the above principles."1 While the formulation of the International Law Commission regarding the Judgment of the Nirnberg Tribunal reproduced in almost identical terms the provision of the Niirn- berg Charter concerning crimes against peace so that no progress was made in this regard,5" the real innovation of the Commission consisted in the adoption of a Draft Code of Offenses against the Peace and Security of Mankind in its third session in 1951.1 The most important aspect of this Code is its attempt to impute criminal responsibility to individuals for acts which previously only engaged the responsibility of the State.60 After providing that "offenses against the peace and security

55. See generally Paoli, Contribution h l'tude des Crimes de Guerre et des Crimes Contre l'Humanit6 en Droit P6nal International, 49 Revue G6nral de Droit International Public 129 (1945). 56. For the view that this charge was not really new, see Maridakis, Un pr6cedent du Proc&s de Nuremberg tir6 de l'histoire de ]a Grace ancienne, 5 Revue Hell6nique de Drolt International 1 (1952). 57. U.N. Gen. Ass. Off. Rec. 2d Sess., Res. No. 177 (A/519) (1947). 58. See Principle VI, which incorporates the Niirnberg provision. For text, see note 19 supra. 59. For text, see International Law Comm'n, Report, U.N. Gen. Ass. Off. Rec. 6th Sess., Supp. No. 9 (A/1858), at 10-14 (1951) [hereinafter cited as Draft Code]. This Code was revised in 1954. For the Amendments, see Sohn, op. cit. supra note 9, at 998-1001. 60. For a discussion of the Draft Code from the standpoint of individual responsibility, see Garcia-Mora, International Responsibility for Hostile Acts of Private Persons Against Foreign States 36-46 (1962). 1965] CRIMES AGAIST PEACE of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punishable,""' the Draft Code proceeds to enumerate the acts which fall into this forbidden cate- gory. A careful reading of these acts at once reveals three fundamental departures from the Niirnberg Charter and Judgment. First, while the Draft Code evidently seeks to project much the same policy that the Niirnberg Charter sought to apply in respect to crimes against peace, it has, however, enlarged the scope of such crimes by linking them with other offenses which affect the security of mankind. It is for this reason that war crimes and crimes against humanity, which under the Niirnberg Charter were separate crimes, are now included within the category of the general offenses described in the Code. 2 The offenses against the peace and security of mankind, therefore, go far beyond the acts giving rise to responsibility for crimes against peace under the Niirnberg Charter. Secondly, while both the Niirnberg Charter and Tribunal failed to give a definition of a war of aggression, the Draft Code, on the other hand, has attempted a general and inexhaustive description of aggressive acts. It says in this connection that an act of aggression includes "the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations.", 3 It may significantly be added that such other acts as any threat to resort to an act of aggression,14 preparation for the em- ployment of armed force against another State,c5 incursion of armed bands into foreign territory,"0 fomenting civil strife, 7 and encouragement of terrorist activities against another State are also regarded as offenses against the peace and security of mankind and, foreseeably, as acts of aggression. The comments on every one of these offenses specifically state that the offenses thus defined can only be committed by the author- ities of the State, although the criminal responsibility of private persons is similarly envisaged. Third, included in the Draft Code are notions of conspiracy, incite- 61. Draft Code art. 1. 62. Id. art. 2, paras. (10)-(11). In paragraph (9), is also included as an of- fense. 63. Id. para. (2). 64. Ibid. 65. Id. para. (3). 'Preparation" was used here in the same sense as it was used by the Niirnberg Tribunal. Thus, in this offense, "preparation" includes "planning." 66. Id. para. (4). 67. Id. para. (5). 6S. Id.para. (6). FORDHAM LAW REVIEW [Vol. 34 ment, attempt, and complicity to commit the offense which are difficult to grasp, unless related to the actual determinations of the Niirnberg Tribunal.69 The Draft Code thus states that the following shall constitute punishable offenses: (i) Conspiracy to commit any of the offences defined in the preceding paragraphs of this article; or (ii) Direct incitement to commit any of the offences defined in the preceding paragraphs of this article; or (iii) Attempts to commit any of the offences defined in the preceding paragraphs of this article; or (iv) Complicity in the commission of any of the offences defined in the preceding 70 paragraphs of this article. The comment on this provision clearly indicates that the notion of "con- spiracy" was taken from the Niirnberg Charter and, therefore, carried with it the uncertainties of the Niirnberg Judgment. The notions of "incitement," "attempt," and "complicity" are not found in the Niirn- berg Judgment but were subsequently incorporated into the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations General Assembly on December 9, 1948,7' and ratified by a substantial number of States. It is thus obvious that, as regards these offenses, the Draft Code goes beyond the Niirnberg prece- dent. But this provision of the Code is of considerable scope and im- portance for another reason; namely, that, although the Niirnberg Judgment seemed to have linked the criminal responsibility of individuals with the delinquent character of the activity engaged in by the State,72 the Draft Code, on the other hand, apparently proceeds on a differentia- tion between State and individual responsibility. This observation can be supported on two grounds. First, though perhaps difficult to mark in practice, the Draft Code foresees the possibility that the authorities of the State may become criminally responsible at a different stage than that at which the responsibility of the State arises. In fact, there is scarcely any doubt that, in respect to certain individuals, criminal lia- bility may be entirely absent. These assertions are instructively illustrated by the comment on Article 2, paragraph (12) of the Code, which states: In including "complicity in the commission of any of the offences defined in the preceding pargraphs" among the acts which are offences against the peace and security 69. Brownlie, op. cit. supra note 33, at 207. 70. Draft Code art. 2, para. (12). 71. Convention on the Prevention and Punishment of Genocide, Dec. 9, 1948, art. 3, U.N. Gen. Ass. Off. Rec. 3d Sess., 1st pt., Res. No. 260, at 174 (A/81) (1948) (effective Jan. 12, 1951). 72. For discussion, see Bowett, Self-Defense in International Law 266, 267 (1958). 73. Cf. Wright, The Prevention of Aggression, 50 Am. J. Int'l L. 514-22 (1956). 1965] CRIMES AGAINST PEACE of manldnd, it is not intended to stipulate that all those contributing, in the normal exercise of their duties, to the perpetration of offences against the peace and security of mankind could, on that ground alone, be considered as accomplices in such crimes. There can be no question of punishing as accomplices in such an offence all the members of the armed forces of a State or the workers in war industries.74 It is to be further noted that the criminal responsibility of the author- ities of the State will not arise at all if it can be shown that the individual charged with State functions did not have a moral choice in fact open to him. 7' It is clear, therefore, that a member of the government com- mitting any of the crimes enumerated in the Code will be criminally liable only if, in light of the prevailing circumstances, it was quite pos- sible for him to act contrary to .7 And, secondly, while the criminal responsibility of the State is en- forced by sanctions provided for by the Charter of the United Nations," in respect to the individual, the penalty for any of the offenses defined in the Code is to be determined by the Tribunal exercising jurisdiction over the accused.7 In this connection, the Code envisages international criminal jurisdiction over individuals, but, pending its establishment, measures7 may be adopted for the application of the Code by national courts. 1 It is highly relevant to note that, according to the Draft Statute for an International Criminal Court, drafted by the United Nations Committee on International Criminal Jurisdiction in 1951 and revised in 1953, in the trial of persons accused of crimes against international law, in which crimes against peace are clearly included, the court is to apply international criminal law and, when appropriate, national law. This would seem to suggest that the trial of persons is to take effect without any reference to principles of State responsibility.," The com- bined operation of these principles would seem to establish beyond any vestige of doubt that a criminal individual liability may exist without 74. International Law Comm'n, Report, supra note 59, at 13. 75. Draft Code art. 4. This is identical with Article S of the Nilrnberg Charter. See In- ternational Law Comm'n, Report, supra note 59, at 13. 76. This is brought out in Draft Code art. 4, comment, in International Law Comm'n, Report, supra note 59, at 13. 77. U.N. Charter ch. VII. 78. Draft Code art. 5. 79. International Law Comm'n, Report, supra note 59, at 11. So. Draft Statute for an International Criminal Court art. 2, in Report of the Commit- tee on International Criminal Jurisdiction, U-'. Gen. Ass. Off. Rec., 7th Sess., Supp. No. 11 (A/2136), Annex I, at 21-25 (1952). See generally, Carjeu, Quelques Aspects du Nouveau Projet de Statut des Nations Unies pour une Jurisdiction Criminelle Internationale, Co Revue Ci6ral de Droit International Public 401-15 (1956). 81. Cf. Johnson, The Draft Code of Offences Against the Peace and Security of Man- kind, 4 Int'l & Comp. L.Q. 445, 461 (1955). FORDHAM LAW REVIEW [Vol. 34 any degree of connection with State responsibility. 2 It will be recalled that under the Niirnberg Judgment the responsibility of the State and of the individual were indissolubly linked. In summing up the discussion of the Draft Code, it may be stressed that the type of criminal responsibility found therein is, in respect to crimes against peace, decidedly more far-reaching than that seen in the Niirnberg Charter and Judgment. It is in this sense that the provisions of the Draft Code are innovatory rather than declaratory of existing law. It may well be that the Draft Code represents an attempt to over- come the difficulties raised with respect to the retroactivity charge of the Niirnberg Charter. However, the broader basis upon which the criminal responsibility of individuals is predicated may be open to the objection that it is vague and general in the extreme, and that, in the area of international crimes, more precise conceptions are required to avoid the charges of retroactivity and of violation of the maxim, nulla poena sine lege, repeatedly lodged against the Niirnberg trial.83 These criticisms are likely to arise as long as there is no international to enact the law and no international criminal court to achieve uniformity of decision. 4 But, even conceding such objections, it should be quite evident that underlying the Draft Code is the attempt to tighten up the obligations of individuals in respect to acts which vitally engage the peace and security of mankind.

III. CRIMES AGAINST PEACE IN THE CONSTITUTION OF SOME STATES It should be clear from the preceding observations that the Inter- national Law Commission presented its proposal de lege ferenda and, hence, the provisions of the Code are far from being binding upon the States. But apart from the Draft Code, it should be mentioned that the national of a number of States explicitly recognize the criminality of aggressive war. As a vivid illustration of a typical con- stitutional provision, the Constitution of Italy may particularly be noted, for it states: Italy renounces war as an instrument of offense to the liberty of other peoples or as a means of settlement of international disputes, and, on conditions of equality 82. Cf. Bowett, op. cit. supra note 72, at 268. 83. This is likely to arise in view of the fact that the Draft Code does not provide for the punishment of the offenses. Thus, Article 5 states: "The penalty for any offence defined in this Code shall be determined by the tribunal exercising jurisdiction over the individual accused, taking into account the gravity of the offence." Draft Code art. S. See Stone, Legal Controls of International Conflict 370-71 (rev. ed. 1959). 84. See generally Fenwick, Draft Code of Offenses Against the Peace and Security of Mankind, 46 Am. J. Int'l L. 98, 100 (1952). 1965] CRIMES AGAINST PEACE with other states, agrees to the limitations of her sovereignty necessary to an organization which will assure peace and justice among nations, and promotes and encourages international organizations constituted for this purpose.ea In varying formulations, the same principle has been incorporated in the constitutions of many other States.!G It follows from this exposition that, even if no universally binding convention imposes upon the States the obligation to punish the preparation and waging of a war of aggres- 7 sion, the domestic legislation of the States may explicitly prohibit it.8 The provisions of the constitutions here cited, concurrent with the con- ventions previously mentioned, show that there is a firm conviction among governments that aggressive war should be made an international delinquency. Although some may argue that the matter was definitely settled at Niirnberg, nevertheless, it may be observed that the Niirnberg Judgment stands as a sober reminder that the future possibility of legally imputing criminal responsibility to individuals for planning and waging aggressive war still needs to be determined by a more explicit principle of existing international law."5 This conclusion is not only inescapable, but the world community cannot safely afford to ignore it.83

IV. Cpn s AGAINST PEACE AND POLITICAL OFFENSES That crimes against peace may most accurately be described as purely political offenses and, therefore, nonextraditable, can scarcely be disputed. This position was forcefully suggested by Judge Roling in his

85. Constitution of the Italian Republic, 1947, art. 11. For text, see 2 Peaskee, Constitu- tions of Nations 279-S0 (1950). 86. See the following constitutional provisions: Basic Law of the Federal Republic of Germany, 1949, arL 26; Constitution of the German Democratic Republic, 1949, art. 5; Constitution of Japan, 1946, art. 9; Constitution of the Philippines, 1947, art. 2, § 3; Con- stitution of the Republic of Korea, 1948, art. 6; Constitution of the Union of Burma, 1947, § 211; Constitution of Venezuela, Preliminary Declaration. 87. In addition, some laws punishing offenses against the peace and security of mankind were enacted by the Soviet Union, East Germany, Czechoslovakia, Albania, Bulgaria, Hun- gary, Poland, Roumania, and the Outer Mlongolian Republic. These laws, however, deal with war propaganda, which is punishable as a criminal offense. For the texts of these laws, see 46 Am. J. Int'l L. Supp. 34, 99-105 (1952). See generally Garcia-Mora, International Re- sponsibility for Subversive Activities and Hostile Propaganda by Private Persons Against Foreign States, 35 Ind. L.J. 306, 322-24 (1960); Grzybowshi & Pundefi, Soviet Bloc Peace Defense Laws, 46 Am. J. Int'l L. 537 (1952). SS. The reference to acts of aggression in Article 1 and the limitation upon force in Article 2 of the United Nations Charter would seem to be of little help here. U.N. Charter arL 1, para. 1; art. 2, para. 4. For discussion of these provisons, see Goodrich & Hambro, Charter of the United Nations: Commentary and Documents 59, 67 (1946). 89. McDougal & Feliciano, Law and Alinimum World Public Order: The Legal Regula- tion of International Coercion 59-62 (1961). FORDHAM LAW REVIEW [Vol. 34 dissenting opinion from the Tokyo Judgment. As his words bear directly upon the subject under consideration, it may be useful to quote them here in full. Dealing with crimes against peace, he stated: Crime in international law is applied to concepts with different meanings. Apart from those indicated above, it can also indicate acts comparable to political crimes in domestic law, where the decisive element is the danger rather than the guilt, where the criminal is considered an enemy rather than a villain, and where the punishment emphasizes the political measure rather than the judicial retribution. In this sense should be understood the 'crime against peace,' referred to in the Charter ... As long as the dominant principle in the crime against peace is the dangerous character of the individual who committed this crime, the punishment should only be determined by considerations of security. 90 The above characterization of crimes against peace would seem to be in accord with more recent authoritative opinion." It may be mentioned, in addition, that this opinion is not without precedent to support it, for when the Treaty of Versailles attempted to lay down the basis for the prosecution of Kaiser Wilhelm II and other German leaders for "a su- preme offense against international morality and the sanctity of trea- ties,"" and a demand for the surrender of the Kaiser was made to the Dutch Government in whose territory he had taken refuge, the latter refused his extradition on the ground that the Dutch tradition had been always to offer asylum to those conquered in international conflicts. 3 Much the same position was maintained by the neutral nations after World War II when faced with the possible extradition of Nazi officials found within their jurisdiction. 4 Clearly then, there is respectable author- ity for the view that persons accused of crimes against peace are purely political offenders and, therefore, not subject to surrender. Four reasons of legal policy would seem to give additional support to this conclusion. First, as the previous discussion of crimes against peace has shown, the offenses included in this category are too vague to give definite and concrete results, and are productive of questionable consequences in specific cases. It may be argued, therefore, that, in the absence of a precise definition of crimes against peace, the persons accused of such offenses do not in fact know the unlawful character of the acts in 90. For the text of this opinion, see Sohn, Cases on United Nations Law 931-38 (1956). 91. See Woetzel, The Nuremberg Trials in International Law 168-69 (1960). 92. Treaty of Versailles arts. 227. For text, see 13 Am. J. Int'l L. Supp. 151 (1919). 93. See Garner, Punishment of Offenders Against the Laws and Customs of War, 14 Am. J. Int'l L. 70, 91 (1920); Wright, The Legal Liability of the Kaiser, 13 Am. Pol. Sci. Rev. 120 (1919). 94. See in this connection the communications of neutral governments in 12 Dep't State Bull. 190 (1945). 1965] CRIMES AGAINST PEACE question. This argument is particularly relevant in reference to the re- quirement of mens rea as a condition of criminal responsibility." The absence of wens rea has been seen to underlie the nature of political offenses. Since it is a basic element of a crime that the offender act with criminal intent, the conclusion seems inevitable that this factor is utterly absent where individuals do not know of the unlawfulness of the acts that they commit? Crimes against peace, therefore, lack an essential element of an ordinary crime and, consequently, must be regarded as political. Even if it be assumed that aggression is a clearly defined crime under international law, there is always a large subjective element in the determination of an aggressor so that the most precise description of aggression is likely to result in highly unjust decisions.?7 Certainly, situations may arise where a leader of a country resorts to a war on the belief that this is the only way to give his country "a place in the sun" or, perhaps, to prevent an imminent attack from foreign territory s While there may be doubts as to the justice of the war in the first in- stance and to the right of self-defense in the second, the fact still remains that the act in question excludes the mens 7ca on the leader's part, and in criminal law this is likely to be so regardless of whether or not the belief is well-founded.- This reasoning is indicative of the kind of con- sideration that underlies the political nature of crimes against peace. It also illustrates the reason why foreign governments are reluctant to surrender persons accused of such offenses. It may be relevant to add that the determination of an aggressor has to be made after a war has

95. For a discussion of mens rea as an element of crimes, see Perkins, Criminal Law 654 (1957). 96. In United States v. Von Leeb, 11 Trials of War Criminals Before the Nuerenberg Military Tribunals 462 (1949), a United States 'Military Tribunal stated: "EWe are of the opinion that as in ordinary criminal cases, so in the crime denominated agqcresive war, the same elements must all be present to constitute criminality .... If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offense. If, however, after the policy to initiate and wage aggressive wars was formulated, a defendant came into posses- sion of knowledge that the invasions and wars to be waged, were aggressive and unlawful, then he will be criminally responsible if he, being on the policy level, could have influenced such policy and failed to do so." Id. at 4SS. 97. Corbett, Law and Society in the Relations of States 233 (1951). 98. This last possibility has been said to be the eaxercise of the right of self-defense guaranteed by international law. This point is thoroughly discussed in Bowett, op. Cit. zupra note 72, at 1SS-S9. For a contrary position, see Garcia-Mora, op. cit. supra note CO,at 11S- 19. 99. For discussion of such situations in the area of common crimes, see Williams, The Sanctity of Life and the Criminal Law 177 (1957). FORDHAM LAW REVIEW [Vol. 34 terminated, and, thus, there is the ever present danger of imputing a mens rea retroactively to the offender. 10 This certainly would be equiva- lent to a unilateral decision by the victor.' The injustice implicit in this determination is reasonably clear, for it involves the punishment of acts to which a mens rea could not be imputed at the time of their commission. These are considerations of that must attend the prose- cution even of the most hardened criminal. Secondly, the perpetrator of a political offense is fundamentally moti- vated by reasons of public concern and patriotic sentiments, and not at all by personal considerations.'0 2 It has been seen that these are pre- cisely the motivations of a political offense. The crimes against peace prosecuted at Niirnberg and other war crimes trials would seem to indi- cate that, even if the offenders could be regarded as misguided individ- uals, still, their motivation was inextricably linked with what they re- garded as the welfare of their own people. Therefore, as in domestic politics, an alleged international offender may well fight a war of aggres- sion for the sake of his political convictions. In such a case, as long as he remains within the provisions of the laws and customs of war, and does not violate the laws of humanity in the conduct of hostilities, the acts of initiating and waging such a war, by themselves, fall within the scope of purely political offenses. Moreover, the very nature of crimes against peace makes it almost impossible for an offender to commit them for his own personal advantage. Crimes against peace in the manner already seen are intimately connected with high level policy decisions on behalf of the State and, thus, from the standpoint of motivation, their political criminality ought not to be open to doubt. While it is quite true, as the Niirnberg Judgment pointedly observed, that to plunge humanity into a war is the greatest of all crimes,03 considerable controversy may exist as to the individuals responsible for such a condition,' 0 4 and, as long as doubts remain on this question, the principle of nonextradition to political offenders affords some measure of protection against possible injustice. Thirdly, a political offense is directed against the political and social organization of the State.105 More specifically viewed, in a purely political offense, the rights affected are those of the State, and there is no violation

100. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression 141 (1958). 101. Raja Gabaglia, Guerra e Direito Internacional 113-16 (1949). 102. Re Cimpora, [1957) Int'l L. Rep. 518, 521 (Chile). 103. 22 International Trial 427. 104. See note 98 supra. 105. See In re Gatti, [1947] Ann. Dig. 145 (No. 70) (Fr.). 1965] CRIMES AGAINST PEACE of the rights of private individuals. Recalling the crimes against peace for which the Nazi leaders were prosecuted, it immediately becomes clear that such acts as initiating and waging a war of aggression, planning and preparation for such a war, and the infinite variety of acts that fall within these concepts are exclusively directed against foreign States. Unlike war crimes and crimes against humanity, which are directed against individuals and which are wholly unnecessary to and unconnected with the preparation and waging of war, crimes against peace aim at changing a given power position between the States and it really makes no difference whether or not the reason for such a policy can be legally justified. These are political decisions of the highest order, in which the very existence of the State may be vitally at stake. Thus viewed, crimes against peace are not merely incidental to an international upheaval; they are in fact the means of bringing about such a disturbance. These offenses are very much in the manner of treason, sedition and espionage, where the State is the exclusive target of the offense, although public officials and private individuals may become incidentally involved. Crimes against peace, therefore, have a political objective and even the most stringent extradition practice is likely to regard them as political."" Finally, in the absence of an impartial international criminal court endowed with jurisdiction to try individuals charged with crimes against peace, and since history indicates that "post-war justice is unilateral,"'u 6 serious legal questions arise as to whether persons accused of crimes against peace should be surrendered by the asylum State. It was indeed historically in this context that the neutral nations in the last war ex- pressed apprehension."' It is also in this context that the principle of nonextradition of political offenders most clearly retains continued valid- ity, for it is necessary to protect individuals not only against the exercise of jurisdiction over such vague and general crimes by Tribunals uni- laterally established by the victor, but also against violations of such well-settled safeguards of criminal justice as prohibition of retroactive legislation and of meting out a penalty for which there was no law at the time of the commission of the offense. However, a convincing argu- ment may be made that crimes against peace are excluded from the category of political offenses by The Universal Declaration of , which states that the right of asylum "may not be invoked in the case of prosecutions genuinely arising from non-political crimes or 106. See the Swiss practice. Federal Extradition Law of Jan. 22, 1s92, art. 10, in Har%-ard Research in International Law, Extradition, 29 Am. 3. Int'l L. Supp. 66, 423 (1935) (Svit) (unofficial translation). 107. Corbett, op. cit. supra note 97, at 229. 10. For communications to this effect, see 12 Dep't State Bull. 190 (1945). FORDIJAM LAW REVIEW [Vol. 34 from acts contrary to the purposes and principles of the United Na- tions."' 09 It may be submitted, nevertheless, that the future surrender of persons responsible for crimes against peace may only be accepted by the States-especially by the neutral States-if prosecution is to be had in the objective atmosphere of an international criminal court itself com- posed of judges not directly identified with the interests of the prosecuting governments. 110 From this standpoint, the expectation will be warranted that justice can be done entirely free from any doubt."' Unfortunately, however, this is not the only assumption which will ensure that crimes against peace might be regarded as common offenses for which extradition will be granted. In order to avoid the criticisms to which the Nirnberg trial was subjected, the advance enumeration of the crimes against peace for which individuals are criminally liable is a condition sine qua non of an international criminal jurisdiction that seeks to administer justice in the world community on a technically sound legal basis. Perhaps even more important is a reasonable consensus among the members of the world community upon the offenses to be punished." 2 This require- ment seems entirely proper if the obligation is imposed upon the States to extradite persons accused of crimes against peace. These are problems that still await clarification and which, as long as they remain unsolved, give powerful support to the view that crimes against peace are political offenses. From a broader perspective, insofar as the issues of trial and punishment of aggressor individuals are concerned, this question of the political character of crimes against peace may become deeply involved with peace enforcement measures, thereby depriving the latter of much of their effectiveness and force. The difficulties that may arise in this connection have largely been ignored. It is perhaps in recognition of the foregoing considerations that the Peace Treaties which ended World War II imposed upon the, defeated nations the obligation to surrender persons accused of crimes against peace found within their jurisdiction. Thus, according to the Peace Treaty with Italy,"' Italy agreed to "take all necessary steps to ensure the ap- prehension and surrender for trial of: (a) Persons accused of having committed, ordered or abetted war crimes and crimes against peace or

109. The Universal Declaration of Human Rights, art. 14, para. (2) (1948); 43 Am. J. Int'l Supp. 127, 129 (1949). (Emphasis added.) 110. Miele, Principi di Diritto Internazionale 276 (2d ed. rev. 1960). 111. Stone, op. cit. supra note 83, at 370. 112. Wright, Proposals for an International Criminal Court, 46 Am. J. Int'l L. 60, 65 (1952). 113. Peace Treaty with Italy, Feb. 10, 1947, 61 Stat. 1245, T.I.A.S. No. 1648 (1950) ; 42 Am. J. Int'l L. Supp. 47 (1948). 19651 CRIMES AGAINST PEACE humanity." '14 Identical provisions are found in the Peace Treaties with Roumania,"' Bulgaria,"" ,"-, and Hungary."'9 Athough the con- ception of crimes against peace in the Niirnberg sense has been clearly incorporated in these treaties in a more enduring form, the obligation to surrender persons charged with these offenses is limited to the defeated nations and, thus, it is not a general rule of international law. Even in respect to the defeated nations, the rule has not always been observed."n In principle, however, these nations are obliged to surrender fugitives accused of crimes against peace, and, to this extent, the peace treaties go beyond the traditional conceptions of extradition law. But the mere fact that this obligation had to be incorporated into treaties puts beyond surmise that, treaty apart, the State of refuge cannot be legally com- pelled to grant the extradition of persons charged with crimes against peace, and, therefore, their surrender in future extradition law remains a matter of doubt. Perhaps of more contemporary significance is the Convention Re- lating to the Status of Refugees adopted in Geneva on July 28, 1951, 1 by a United Nations Conference of Plenipotentiaries. In excluding from its benefits persons guilty of crimes against peace, the Convention ex- plicitly states: The provisions of this Convention shall not apply to any person vdith rezpect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against human- ity, as defined in the international instruments drawn up to make provision in respect of such crimes . 121..

114. Id. art. 45, para. (1)(a). 115. Peace Treaty with Roumania, Feb. 10, 1947, art. 6, para. (1) (a), 61 Stat. 1757, TJA.S. No. 1649, 42 U.N.T.S. 34 (1949); 42 Am. J. Int'l L. Supp. 252, 254 11948). 116. Peace Treaty with Bulgaria, Feb. 10, 1947 art. 5, para. (1)(a), 61 Stat. 1915, T.I.A.S. No. 1650, 41 U.N.T.S. 50 (1949); 42 Am. J. Int'l L. Supp. 179, 1OE(1948i. 117. Peace Treaty with Finland, Feb. 10, 1947, art. 6, para. (1)(a), 4S UN.T.S. 228 (1950); 42 Am. J. Int'l L. Supp. 203, 205 (1948). 118. Peace Treaty with Hungary, Feb. 10, 1947, art. 6, para. (1)(a), 61 Stat. 2055, T.IJA.S. No. 1651; 42 Am. J. Int'l L. Supp. 225, 228 (194S). 119. Even in respect to the defeated nations, however, it is not certain that the sur- render of persons charged with crimes against peace can be so easily effected, for, in 1949, Italy refused to extradite to Yugoslavia a person accused, inter alia, of having committed war crimes and crimes against peace and humanity. This result was achieved depite the provision of the Peace Treaty with Italy. See In re Rukavina, [1949] Ann. Dig. 273 (No. SS) (Italy). 120. U.N. Conf. of Plenipotentiaries on the Status of Refugees and Stateezle Persons, Final Act and Convention Relating to the Status of Refugees (A/C.2/108), at 17 41951) (effective April 22, 1954). 121. Id. art. 1, para. (f). FORDIJAM LAW REVIEW This provision is certainly related to the categories of crimes against peace found in the Niirnberg Charter and undoubtedly assumes that the make-up of these crimes is clear and unmistakable. The Convention should be limited, however, to recognizing the criminality of aggressive war, for it neither punished this crime nor provides for its extradition, thus removing much of the apparent definitiveness of the provision. For the meaning of crimes against peace, the Niirnberg Judgment and the deter- minations of the other war crimes trials are still the only available authorities. It may be pertinent to add that, since the only international instruments that have thus far imposed the obligation to surrender per- sons guilty of crimes against peace are the peace treaties above reviewed, the general rule still remains whereby crimes against peace are political offenses. V. CONCLUSION The preceding pages have unfolded the development of crimes against peace as originally postulated in the Niirnberg Charter down to the present time. It is believed that enough evidence has been adduced to support the proposition that, though the notion of crimes against peace is most vital in a future punishment of aggression, unfortunately, the tribunals that have dealt with these crimes have left them rather vague and uncertain, thus casting serious doubts upon whether there are such crimes in international law. 2' International legislation on the subject has similarly met insuperable difficulties, largely because the gener- alities of the Niirnberg Charter and Judgment have permeated its pre- scriptions. From the standpoint of extradition law, the most regrettable result of this situation is the lack of legal obligation on the part of the asylum States to surrender fugitives accused of these offenses. This con- clusion is unavoidable in view of the fact that crimes against peace have been classified as political offenses for which extradition is not granted. Although, admittedly, the exclusion of crimes against peace from the category of political offenses may be a useful development as a means of deterring the commission of aggression, to apply this limita- tion without first determining the exact make-up of these offenses would be likely to result in highly unjust decisions. It is, therefore, the im- mediate task of international legislation to implant the conception of crimes against peace with as much clarity and precision as it can reason- ably muster. Only then is it possible to limit substantially the political nature of crimes against peace, thus ensuring the surrender of offenders. 122. See Woetze], op. cit. supra note 91, at 170.