Two illustrations of the working of these rules in the present war are reported—namely, the harsher treatment of French prisoners in German hands to penalize the alleged unhealthful employment of German captives in North Africa, and the use of asphyxiating gas in retaliation for its use by Germany. Plainly these rules are open to criticism. For one thing, they may be one sided, because the physical power to carry them out may be wanting. If Germany uses asphyxiating gases in war with Serbia, how can Serbia retaliate? How could the Boers reply to British devastation by wasting England?

Again, being founded upon a reciprocal illegality, they disturb the mind, though this may be balanced in some cases by their furnishing a speedy, spectacular, and workable remedy for a wrong. They are confessedly very limited in application. If State A permits or orders its soldiers to terrorize a popu lation by violence to women, by killing noncombatants or shielding a body of men behind them, by waste and destruction of property, retaliation by B is neither logical nor civilized. If A bombards Rheims cathedral, shall B knock down the cathedral of Cologne?

In this lack of authoritative rules let us try to apply right reason with future legislation in view. May we not say, for instance, that retaliation should only apply to the person, only to combatants, only to serious offenses, only after careful investigation, and only when those committing or ordering the offense are out of reach. Even so, we shall be in danger of drifting into Lieber's "internecine war of savages."

Take a hypothetical case. Submarine attack upon a merchant ship without warning and care for its occupants, in the opinion of most of our body, is murder. Who is guilty? The man higher up who devised and ordered it? He is out of reach. Therefore a prisoner shall pay the penalty in his place. What prisoner is so suitable as the guilty man's son, and so Von Tirpitz, the son, is hanged for his father's crime. All this is in accord with the rules. But one may be very sure that several English prisoners would be made to atone for Von Tirpitz's death, and so on in deadly reciprocity. When the first submarine captives were set apart in England as if for special treatment, a similar number of English prisoners in Germany was segregated, awaiting details. It was inevitable.

And, therefore, I would add to the rules governing retaliation the suggestion that evidence of the offense complained of be laid before some neutral body whose verdict alone should authorize the injured belligerent to undertake the retaliating act. Subject to this condition, retaliation to punish certain offenses and prevent their repetition is a just, prompt, and effective weapon.

In most cases, however, crime should be punished, not by another crime, but by ferreting out, trying, and punishing the criminal, which brings me to the second head, the punishment of war crimes.

Simple crimes of pillage, of lust, of arson, and of violence, committed by soldiers, with no military object, should be tried and punished by their own authorities, and this is usually the case, if for no other reason, because without such discipline a force soon loses value. If unpunished, the perpetrators if known and captured may be punished by an enemy. A certain quantity of such crime seems inseparable from war. These, however, are but a small frac tion of the violations of the rules of civilized war, of which the victims have a right to complain.

There may be destruction of property out of all proportion to the alleged act which it is intended to penalize.

There may be slaughter of wounded or refusal of quarter in accordance with orders.

There may be new and illegal methods of destruction, or the deliberate breach of old rules.

There may be calculated terrorism.

In such cases it is the principal rather than the agent, or along with the agent, who most deserves punishment. Unfortunately it will not always happen that the fortune of war makes the punishment of such principal a practicable thing. Are we to be content with the punishment of vanquished delinquents only? That would be one-sided justice.

Moreover, the definition of war crimes; the penalty due for property damage as well as for damage to the person; the ascertainment of fact when atrocities are charged; the treatment of prisoners; the intent and justification when religious, educational or charitable institutions are bombarded: these and other questions are too delicate, too intense for ex parte determination. They require the judicial attitude as well as the judicial mind.

And so the conclusion is reasonable that the whole matter of trying and punishing war crimes should, if possible, be placed in neutral hands. That is, that an international court, perhaps through its own referees and assessors, in accordance with a system previously agreed to in treaty form, should on complaint, investigate, judge, and affix the penalty to crimes, the said penalty to be executed by that belligerent which happened to have the body of the delinquent in its power.

Two basic theories of punishment are suggested as reasonable: (1) Crimes against the person shall meet with personal penalties-imprisonment or death; while crimes involving property shall be punished by fine, individual or national. (2) The scale of penalty shall be that fixed by the penal law of the country of the accused. The distinction between crimes against the person and crimes involving property damage seems to me fundamental. To kill one's own soldiers for looting may be essential to military discipline and therefore necessary. But the object which we are contemplating is not military efficiency. It is the protection of the noncombatant from abuse and of the person of the combatant from illegal methods of war. The problem therefore approximates a civil rather than a military character. To reckon illegal property damage in terms of imprisonment or death, and conversely to punish personal damage (sniping or railway wreck, for instance) in terms of property destruction, seems to me both illogical and unjust. The ideal is to punish violators of the laws of war and so prevent a repetition of the offense. If you punish murder by death, devastation by national indemnity, and minor property damage by personal fine, assessing such penalties as the civil and criminal laws of the accused require, are you not most likely to attain this ideal? And, if practicable, crimes should be tried by this international court in the midst of arms, without waiting for the return of peace. Something like this was the sugges tion of the Carnegie Commission to inquire into the atrocities of the Balkan wars, a committee of inquiry to accompany belligerent forces, the details of the scheme not being worked out.

Whether such an international court in the heat of conflict or even after a war could be made workable, could really gather evidence, could have its jurisdiction respected, its penalties enforced, is of course uncertain. Even if agreed to in time of peace, what assurance could we have that in the passion of war It would be respected? Would public opinion be a strong enough backing? Should pledges of property be given in anticipation? Where should the power and duty of executing the law reside? Such questions are easy to ask, but hard to solve. I am only outlining an ideal. Nevertheless, unless something like this ideal is realized we may well despair of the future of international

law as relating to war. Punishment must follow crime with sufficient certainty to impress the criminally inclined. Punishment of the vanquished only, though better than nothing, fails of this certainty. It will be interpreted as revenge. Punishment of law breakers amongst the victors, as human nature goes, is unlikely except through neutral agencies.

The CHAIRMAN. We will continue the discussion of the topic before us, and I have pleasure in calling upon Mr. Edward A. Harriman, of the bar of New Haven, Conn., formerly of the law faculty of Northwestern University, and of the faculty of Yale University, and one who has been conspicuously identified with the international law societies of both this country and Europe.

WHAT MEANS SHOULD BE PROVIDED AND PROCEDURE ADOPTED FOR AUTHORITATIVELY DETERMINING WHETHER THE HAGUE CONVENTIONS OR OTHER GENERAL INTERNATIONAL AGREEMENTS, OR THE RULES OF INTERNATIONAL LAW, HAVE

BEEN VIOLATED?

By EDWARD A. HARRIMAN,

Of the Bar of New Haven, Conn.

The simplest way to answer this question is to ask another: What means exist and what procedure has been adopted for authoritatively determining whether any agreement, or any rule of law, has been violated? The means ordinarily provided is a judicial tribunal and the procedure adopted is a Judicial procedure. The means, therefore, for determining whether an international agreement or a rule of international law has been violated should be a court, and the procedure before that court should be judicial procedure. It must be noted that so far as persons within the jurisdiction of the United States are concerned the courts and the procedure already exist for the determination of questions of international law. To quote from one of our most distinguished American jurists, Simeon E. Baldwin,'

We were the first power to recognize in the Constitution of our Government the existence of such a thing as international law and the duty of enforcing it. That instrument, it will be recollected, declares that Congress shall have power to define and punish "offenses against the law of nations." Under this provision our Supreme Court has said: "A right secured by the law of nations to a nation or its people is one the United States as the representatives of the nation are bound to protect." It is not necessary for Congress in passing a statute to punish an offense against that law, to declare it to be an offense against it. That it is such an offense is to be determined by reference to the law of nations itself. Congress simply gives it a further buttress.

Whatever international law may mean to other peoples, therefore, to us it is and always has been an acknowledged body of authoritative rules entitled to enforcement by the United States.'

The Constitution of the United States is, of course, subject to amendment, and the proposition laid down by Mr. F. E. Smith in his International Law (fourth edition, p. 15) that “international law is not administered by municipal tribunals unless it has been adopted by the State legislature, and such adoption

1 American Bar Assn. Journal, I, 521.

See The Paquete Habana, 175 U. S., 677, 700; Hilton v. Guyot, 159 U. S., 113, 163; U. S. v. Arizona, 120 U. S., 487, 488.

will not be presumed," holds good even in this country; but the adoption by the people as the supreme legislative body in their organic law, the Federal Constitution, of international law as part of the municipal law of the United States was not a temporary adoption, but, as we believe, an adoption for all time. This adoption is a self-imposed limitation on the rights of the United States as a sovereign power. With the independence of our three departments of government it may be that the executive or the legislative department can violate the rules of international law without effective interference by the judicial department, but the control which the judicial department in any case can exercise over the executive or legislative depends not upon the physical force of the nine men who constitute the Supreme Court of the United States, but upon the force of the popular will which supports the powers of the judiciary. Our sovereign, the people, voluntarily recognizes the obligations of international law. Other sovereigns, less humble, may or may not do the same. When the sovereign is an individual monarch ruling by divine right and speaking in his edicts as the mouthpiece of the Almighty, recognition of international law as limiting his freedom of action might be embarrassing. To a free people, however, with a democratic government, the assertion of rights under international law and the acceptance of obligations under the same law are inseparable acts essential for the preservation of the reign of law upon which, as opposed to the reign of force, free civilization must always depend.

Conceding, then, that international law in any country depends for its effect upon its adoption by the municipal law of that country, there is no inherent obstacle to the adoption by all free countries of international law as a part of their municipal law. It is probable that all of the American republics could be induced to follow the example of the United States in this respect, if they have not already done so, and it does not seem at all impossible that England, France, and several of the smaller European countries should follow suit. The mere adoption, however, of the rules of international law as part of the municipal law of various nations will have but limited practical results. The courts of the different nations would disagree as to what those rules are, and to establish a uniform rule, a supreme judicial tribunal would be necessary. It seems entirely out of the question at the present time to constitute a tribunal having the broad powers with reference to nations which the Supreme Court of the United States has with reference to the States. It was difficult enough for the American colonies, speaking the same language and inheriting the same institutions, to form a federal government. It seems out of the question for nations with different languages and different institutions to abdicate their sovereignty so far as to create any supreme federal tribunal. It is not an impossible thing, however, for nations which disagree to submit by treaty particular controversies to the judicial determination of a tribunal selected for that purpose. Plans for the organization of such a tribunal have not fully matured and have been postponed by the great war.

There are some people who are now making very merry over what seems to them the absolute failure of all attempts at the settlement of international controversies in a peaceful manner. "Inter arma silent leges" is an ancient maxim which is proving all too true, but there never was any such maxim and never will be as "Post arma silent leges," which seems to be the creed of some of the worshippers of Mars. The existence of law is not disproved by the violation of the law. This is the true answer to those who say that there is no international law, and yet, we Anglo-Saxon lawyers are by tradition impatient with any theories of law that have no practical application. "Ubi jus, ubi remedium," is the basis of the reasoning of the lawyer, as distinguished

from that of the philosopher. Our jurisprudence has developed, not from principle, but from procedure. The evolution of rights has followed the evolution of writs. We demand, therefore, that if international law is to mean anything there shall be some practical redress for those who are injured by its violation. It is needless here to elaborate all the arguments which have been made and which the American Society for the Judicial Settlement of International Disputes has done so much to promulgate to show that it is perfectly possible for nations to agree upon the organization of a judicial tribunal and to agree to submit for the determination of that tribunal specific controversies to be determined according to rules of law agreed upon to govern the tribunal. Beyond this we can not as yet go, but certain further steps in the same direction are possible and desirable. The first is an agreement upon an international code or upon portions of an international code by as many nations as possible. When the principles of law which are to govern the controversy are agreed upon it will be easier in the first place for the parties themselves to settle the controversy by agreement upon the application of those rules to the particular case; and, in the second place, if they can not agree as to the result, to agree that an impartial judicial tribunal shall apply the rules of law to the facts of the particular controversy.

Another step in advance which is not at all impossible is an agreement upon a court or a permanent organization from which in some manner the judges of the particular controversy shall be chosen, perhaps as a struck jury is chosen, by striking from the panel those to whom the other party objects. Instead of beginning with the ideal of a federation of the world, a parliament of man and a supreme court of humanity, we must begin with the particular and the specific if we are to accomplish anything of important practical value. Probably a code of international law for the world is out of reach at the present time or in the near future, but it is by no means certain that a code of international law for the American republics is out of reach, or that the labors of those jurists who are now at work on such a code will prove in vain. The Hague court of arbitral justice at the present time is hidden by the battle smoke that floats so near the Palace of Peace, but a Pan American court for the decision of controversies between American Republics does not seem to be an empty dream. At present we are witnessing in Europe not simply a war of great powers, but a war of ideals. It is one of the great crises of the world's history when the struggle is not merely between nations at war, but between creeds—the creed of the freebooter, "The good old creed, the simple plan, that he should take who has the power, and he should keep who can," and the creed of the lawyer that the power of the sword exists for the protection of human rights, which the sword may destroy but does not create. The most pacific advocate of the reign of law does not despise the protection of a policeman against the highwayman, but he does not bow down and worship the policeman, nor does one who advocates adequate preparation for national defense thereby become, as some would have us think, a believer in militarism. The essential limitations on the jurisdiction of any international court are sometimes overlooked by those who advocate the creation of such a court. Certain positions not recognized as part of international law have been taken as a matter of policy by particular nations from self-interest or from a desire for self-preservation. It is too much to expect that these nations will agree to abandon claims which they have thus made simply because such claims are not consonant with the general principles of international law. Thus, for example, the Monroe doctrine of the United States is a doctrine in support of which the United States in the past has been willing to fight. If the United States should