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The document discusses the evolution of international criminal law and the establishment of the International Criminal Court (ICC) since the 1990s, highlighting the tension between state sovereignty and the enforcement of international law. It emphasizes the importance of accountability and the challenges faced by the ICC in achieving its goals amidst political and strategic interests of states. The study aims to critically assess the relationship between international criminal law and the existing international system to understand the prospects for effective enforcement and justice.

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Introduction

University Press Scholarship Online

Oxford Scholarship Online

International Justice and the International Criminal

Court: Between Sovereignty and the Rule of Law
Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

Introduction
Bruce Broomhall

DOI:10.1093/acprof:oso/9780199274246.003.0001

Abstract and Keywords

This introductory chapter begins with a brief discussion of the developments that the
international criminal law has undergone since the early 1990s and the movement to
establish a permanent international criminal court (ICC). It then presents the central
theme of this book, which is the tension, conflicting demands, and contradiction in the
relationship between international criminal law and the international system. An overview
of the subsequent chapters is presented.

Keywords: international law, criminal law, ICC

Since the early 1990s, international criminal law has undergone a pace of development
unknown since the days of the Nuremberg Tribunal. Norms have been refined and
expanded, institutions established, and seminal judgments handed down both nationally
and internationally. Above all, these developments crystallized in the July 1998 adoption

Page 1 of 6

of the Rome Statute of the International Criminal Court (the ‘Rome Statute’ or ‘the
Statute’)1 which entered into force with unforeseen rapidity on 1 July 2002.

The movement to establish a permanent international criminal court (‘ICC’), revived after
almost half a century‘s dormancy, has enjoyed broad and enthusiastic support from
governments and non-governmental organizations (‘NGOs’) alike. This is a surprising
turnaround for an institution that during the Cold War tended to be derided as Utopian,
when it was mentioned at all. Great hopes have now been vested in the Court. United
Nations Secretary-General Kofi Annan called the ICC ‘a gift of hope for future
generations’2 and (with many others) lauded it as a means to promote the rule of law, to
render accountable the perpetrators of the worst atrocities, and to deter future abuses.
If fulfilled in the Court‘s actual practice, such achievements would make its establishment
a major turning point in the development of the post-War international legal order.3
Rather than turning a blind eye to egregious acts of governments against the population
of their own or other countries, the international system of the twenty-first century will,
we are led to hope, respond effectively to redress and even to prevent the heinous acts
which so plagued the twentieth.

Are these hopes justified? How likely is the promise attributed to the ICC to be fulfilled?
Accountability for abuse of power, the prevention of atrocities, and reparation for victims
are to be wished and striven for, without doubt. (p.2) Nonetheless, oversimplifications
will not achieve these aims. This study hopes to go beyond the seemingly straightforward
statements proffered in support of the ICC and of international justice generally:
statements which conceal a host of assumptions about international law, the international
system, and inter-State relations which are anything but simple and indisputable. To
accept such assumptions without reflection in fact hampers our ability to foresee
accurately the problems and promise of the emerging system of international justice and,
more importantly, to find the means of making the system work more effectively. One
might be excused for believing that the need for a just and effective means of enforcing
the legal norms within ICC jurisdiction, for want of which millions have died in the past
half-century, demands a clear-eyed assessment of the international system and its
dynamics. To strive, if imperfectly, towards such an assessment can only facilitate the
discernment of the regime best able, given the present system and its present
constraints, of halting and redressing the abuses that have so far regularly—even
systematically—taken place. Ultimately, the task is therefore to ask, if the system has not
so far been able or willing to enforce international criminal law with regularity, on what
terms will it be willing and able to do so in the foreseeable future, and does the system
coalescing around the ICC fulfil those terms? Such questions can only be approached
through a careful understanding of both the emerging machinery of international criminal
law and the international system in which it is embedded.

It is a central theme of this work that between international criminal law and the
international system as it presently exists there is a relationship of tension, of conflicting
demands, sometimes of contradiction. Between the sovereignty-limiting rationale of the
Nuremberg legacy and the sovereignty-based control over enforcement that continues

Page 2 of 6

to characterize the present, essentially Westphalian, system there lies a gulf that is yet to
be spanned, even in the wake of the Rome Statute's entry into force. The regular
enforcement of criminal law has always required coercion, and the authority to deploy
coercive power internationally remains firmly in the hands of States—States that make
their decisions on the basis of national interest calculations bearing no necessary
relationship to the needs of international justice. It may be that the tension between
regular enforcement and the discretion of sovereign States will lessen over time as the
end of the Cold War, the establishment of the ICC, and the process of globalization bring
about changes in the international environment of legitimation in which States operate.
Enforcement decisions take place in an increasingly ‘legalized’ context in which pressure
to vindicate the rule of law is sometimes great. Nonetheless, the fundamental conditions
of the modified Westphalian system of the post-War era show little sign of radical change,
and extra-legal (economic, strategic, and political) factors related to national interest
continue to inform crucial decisions. Important changes have been wrought and great
progress toward account- (p.3) ability made, but an institutionalized rule of law, in the
robust sense, remains fundamentally at odds with the world system as it now exists.
Taken to its logical extreme, routine enforcement of international criminal law would call
for a qualitatively different approach to the deployment of coercive power, that is, to the
management of international peace and security; but such deployment remains a pre-
eminently ‘politicized’ area of international law. Given that a fundamental change in the
system is unlikely (and indeed looks less and less likely in the context of the counter-
terrorism drive which has followed the events of 11 September 2001) the best remaining
hope for the entrenchment of international criminal law as a regular feature of the
international system is the development of a deeply rooted culture of accountability that
leads to a convergence of perceived interests and of behaviour on the part of the States
responsible for enforcing this law. The ICC and related developments may in fact
contribute to the emergence of such a culture, although the present signals are not
uniformly positive.

This study consists of this Introduction and three further parts. In Part I, the
Nuremberg legacy is set apart from other areas of law that are sometimes included
under the rubric of ‘international criminal law’. The unique character of this legacy
appears in setting the ‘core crimes’ of international criminal law apart from the primarily
domestic law that has developed to deal with the burgeoning phenomenon of
transnational crime (‘inter-State criminal law’), as well as from the international
instruments that call on States to prohibit conduct domestically (‘suppression
conventions’) and the norms that apply to States rather than to individuals (so-called
‘international crimes of State’). The distinguishing features deriving from Nuremberg lie
in the engagement of individual responsibility directly under international law, and in the
subsidiary doctrines that make the effective imposition of that responsibility possible. The
latter doctrines include the absence of the defences of prior legality and of superior
orders, as well as loss of immunity for acts committed in the course of official functions.
Having described the unique cluster of doctrines that make up ‘international criminal law’
in this narrow sense, Part I goes on to examine how the principles of clarity and non-
retroactivity have been brought to bear upon international criminal law, in particular in

Page 3 of 6

the negotiation of the Rome Statute of the ICC. It then treats the rationale that legitimates
the intrusion of international criminal law into the otherwise sacrosanct domain of
sovereignty. This rationale rests on two basic principles underlying the core of
international criminal law: ‘international peace and security’ and ‘the collective conscience
of humankind’. While of uncertain scope, these principles can be characterized as a
condition of membership in the international community and as justifying an infringement
of sovereignty to that extent.

With the scope of international criminal law so defined. Part I concludes by raising
questions that the enforcement of this law provokes. By calling (p.4) for the regular
enforcement of international criminal law, is the accountability literature calling for the
international recognition of ‘the rule of law’?4 If so, the proposition need not be
controversial so far as the formal aspects of this doctrine (clarity, non-retroactivity,
impartial and nondiscriminatory application of the law, etc.), originally developed with a
view to municipal law, are concerned. Yet calls for the ‘rule of law’ with respect to
international criminal law often carry with them an express or implied endorsement of a
reduction in sovereignty and an increased willingness to use force in support of this law.
As such, this trend in opinion comes into conflict with basic characteristics of the post-War
modified ‘Westphalian’ system. The latter system establishes a divide between the
increasing legal regulation of areas once considered purely sovereign or internal, and the
abiding role of the independent discretion of States acceding to, interpreting, and
applying international law in practice. State discretion is not unfettered, free of all
constraints, but it is a discretion in which law is but one constraint, and in which
diplomatic, economic, strategic, and other ‘political’ factors also have an integral role.

Part II examines, in six chapters, how this tension between the normative curb on
sovereignty represented by the doctrines of international criminal law and the factual role
of State discretion in the processes of international law has played out, and is likely to play
out, in the development of select areas essential to the promotion of international justice.
Chapter IV finds in the basic features of the Rome Statute a balance between the needs
of a credible system of justice and the desire to induce wide State support for the ICC,
with the result that real strengths in the definitions, general principles, and some of the
mechanisms of the Rome Statute are tempered by the fact that the ultimate effectiveness
of the Court remains in the hands of States, individually and collectively. In Chapter V the
‘complementarity’ mechanism of the Rome Statute, whereby States (and particularly
those where the crime took place, or those of which the nationals stand accused) are
given priority in proceeding against international crimes, is shown to be one of the real
potential strengths of the ICC regime, although issues such as the role of prosecution in
relation to peace and reconciliation remain, along with the related question of amnesties
that it raises. Should the territorial or national State fail to act, Chapter VI argues that the
Rome Statute provides at least an indirect rationale for the use of universal jurisdiction
by other States, although serious questions arise in attempting to apply this (p.5)
doctrine in practice. In Chapter VII a potential block to national proceedings is examined,
as the developing law of immunities reveals something of a conflict between the needs of
justice and the functioning of inter-State relations, with the result that one of the central

Page 4 of 6

tenets of the ‘accountability’ school (that immunities are unavailable with respect to
international crimes) must now at least in part be brought into question. Should national
proceedings for any reason be blocked, the ICC will become the main forum for ensuring
accountability, and Chapter VIII shows how the Rome Statute mechanisms for State (and
Security Council) cooperation, essential to the functioning of the ICC, leave the likelihood
of effective enforcement open to question. More than this, the ultimate success of the
Court will, it seems, depend on the willingness of the Security Council to support the
enforcement of JCC decisions. Yet Chapter IX shows that the United States has to date
made strenuous efforts against a Court that could have even an extremely narrow
jurisdiction over its own nationals, seriously reducing the prospects for Security Council
backing.

The concluding part of this study, Part III, offers a discussion of whether the changes
that have taken place or are underway in the international system are likely to lead to
increased regularity in future enforcement practice. It is sometimes asserted that the
end of the Cold War, globalization, or the alleged decline of sovereignty could lead
towards an international society significantly more committed to strong and regular
compliance with international law. Yet while the end of the Cold War did broaden the
possibilities for Security Council action, and accelerated the development of international
criminal law, it did not fundamentally alter the role of State decision-making in the key
decisions underlying the enforcement of international criminal law and of international
peace and security. As to the decline of sovereignty and globalization, which have given
rise to extensive debates, it can be asserted that the institution of sovereignty, at least in
areas relevant to international criminal law, is in no danger either of being replaced or of
its importance being radically diminished in the foreseeable future. Indeed, the relatively
secondary role of the United Nations in the U.S.-led response to the events of 11
September 2001 makes it clear that the development of robust multilateral institutions in
the area of peace and security is less likely than ever. Recent developments thus do not
provide evidence of the formal changes to the international legal order that would be
required in order to establish the preconditions for regular, impartial enforcement.
Nonetheless, the growth of international civil society and an intensified interdependency
between States has (especially in light of the end of the Cold War) created a new
‘legitimation environment’ in which States are under increased pressure to justify their
decisions and account for their conduct towards their own citizens. The international rule
of law is therefore related to the concept of legitimacy and it is possible that, although
deep changes to the international system are unlikely, (p.6) developments in the
decision-making environment in which States operate may considerably heighten future
support for enforcement. It is in this context that the impact of the ICC and international
criminal law are most likely to be felt. (p.7)

Notes:
(1) 17 July 1998, U.N. Doc. A/Conf. 183/9, as corrected by the procès-verbaux of 10
November 1998 and 12 July 1999; reprinted in M. Cherif Bassiouni, The Statute of the
International Criminal Court: A documentary history (Ardsley, NY: Transnational, 1998)
39. For a survey of efforts to establish an international criminal court up to and through

Page 5 of 6

the Rome Diplomatic Conference, see M. Cherif Bassiouni, ‘Historical Survey: 1919–
1998’ in ibid. 1; for the negotiating dynamics of the Conference, see Philippe Kirsch and
John T. Holmes, ‘The Rome Conference on an International Criminal Court; The
negotiating process’ (1999)93 A.J.I.L. 2; a detailed examination of the negotiation of
various parts of the Statute is found in Roy S. Lee, ed., The International Criminal Court:
Issues, negotiations, results (The Hague: Kluwer, 1999); an article by article explication
of the Statute is found in Otto Triffterer ed., The Rome Statute of the International
Criminal Court: Observers' notes, article by article (Baden-Baden: Nomos, 1999).

(2) ‘Secretary General says establishment of International Criminal Court is major step in
march towards universal human rights, rule of law’ U.N. Press Release L/2890 (20 July
1998), at 4.

(3) Lamberto Dini (‘… it will mark not only a political but a moral stride forward by
international society’), ibid. at 5, and M. Cherif Bassiouni, ‘Preface’ in Triffterer (1999), n.
1 above, at xix (‘… the United Nations' most significant accomplishment since its
establishment in 1945’).

(4) For example, Diane Orentlicher, ‘Settling Accounts: The duty to prosecute human
rights violations of a prior regime’ (1991) 100 Yale L.J. 2537; M. Cherif
Bassiouni,‘Searching for Peace and Achieving Justice: The need for accountability’ in M.
Cherif Bassiouni and Madeline Morris, eds., Accountability for International Crime and
Serious Violations of Fundamental Human Rights (1996) 59 and Madeline H. Morris,
‘International Guidelines Against Impunity: Facilitating accountability’ in M. Cherif
Bassiouni and Madeline Morris, eds., Accountability for International Crime and Serious
Violations of Fundamental Human Rights (1996) 59 Law & Contemp. Probs. 9 and 29
respectively.

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University Press Scholarship Online

Oxford Scholarship Online

International Justice and the International Criminal

Court: Between Sovereignty and the Rule of Law
Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

(p.v) General Editors' Preface

Globalization and the decline of State sovereignty are prominent among the clichés of the
age. The rise of ‘International criminal law’ and in particular of international criminal
tribunals is often said to reflect these phenomena. The extent to which this represents the
reality of international criminal law is a question of importance, both for the future of
attempts to promote the broad aims of international justice, and more generally for the
understanding of the bases upon which international law rests. Dr Broomhall's study
subjects these developments to a critical analysis, and offers a balanced and informed
assessment of their true significance. His sharply focused study of one particular aspect
of globalization is a valuable contribution to the contemporary debate.

AVL (p.vi)

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International Justice and the International Criminal

Court: Between Sovereignty and the Rule of Law
Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

(p.vii) Preface
As this work was being finalized, press releases from governments, non-governmental
organizations and the United Nations celebrated the entry into force of the Rome Statute
of the International Criminal Court, even as the newspapers and broadcast news were
filled with reports of escalating violence in Israel and the Occupied Territories and of a
potential shift of military action towards Iraq in the next phase of the American-led ‘war on
terrorism’. In an important—if often oblique—sense, the work that follows is about the
stark divide between the former celebrations and the latter crises.

This work takes the developing field of international criminal law as a prism through which
to view a basic tension at work in the world today: that between the sovereignty of States
—and especially of very powerful ones—and the pursuit of collective goods like peace,
justice, and human rights. With some adjustments, the international regulation of climate
change, of peace and security, of HIV/AIDs, or of weapons of mass destruction (to name
but a few) might equally have made the point. Nonetheless, this work looks at specific
aspects of the emerging system of international justice, and in particular of the
International Criminal Court, to underscore the point that the pursuit of global responses
to common problems has not prevented States from fundamentally shaping these
responses in ways that serve their own interests, notwithstanding claims of ‘globalization’,

Page 1 of 2

the ‘decline of sovereignty’, and the ascendancy of ‘international civil society’. The events
of September 11, 2001 and their aftermath have only made us more aware of the fragility
of efforts to establish collective, multilateral regimes for contemporary international
crises.

An underlying assumption of this author is that the machinery of international justice that
is presently putting down roots and articulating its institutions and principles in the
international system is ultimately viable; international justice could work. There will be
those who say it should not work (as among conservative circles in the United States and
elsewhere) and there will be some who say it cannot work, urging that we turn our
attention instead to truth commissions or processes of democratization or something
else. There will be many who say that international justice could, should, and will work,
but who will offer no or unrealistic solutions for, and little or no acknowledgement of, the
enormous difficulties facing the project. International justice can work; but to work in a
legitimate and a politically, legally, and financially viable way requires that problems be
honestly appraised and the first steps taken towards defining solutions. At this early
stage, with the Rome Statute having just entered into force, this work aims to provide a
modest step towards such an approach.

(p.viii) This book arose from a Ph.D. thesis produced at the School of Law of King's
College London and, like any thesis, it owes its positive qualities to many people (its
negative ones being solely my own). I owe warm thanks to my supervisor, Professor Rein
Müllerson, for his unfailing support and rich juridical imagination. My work in the human
rights community has also enriched my thinking, and for that I owe deep thanks to the
Lawyers' Committee for Human Rights and its Executive Director, Michael Posner. For
their many years of love and support, I dedicate this work to my parents, Sylvia and
Norman.

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International Justice and the International Criminal

Court: Between Sovereignty and the Rule of Law
Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

Title Pages
OXFORD MONOGRAPHS IN INTERNATIONAL LAW OXFORD MONOGRAPHS IN
INTERNATIONAL LAW INTERNATIONAL JUSTICE AND THE INTERNATIONAL
CRIMINAL COURT: BETWEEN SOVEREIGNTY AND THE RULE OF LAW
General Editors: Professor Ian Brownlie CBE, QC, FBA

Former Chichele Professor of Public International Law in the University of Oxford and
Member of the International Law Commission, and Professor Vaughan Lowe, Chichele
Professor of Public International Law in the University of Oxford and Fellow of All Souls
College, Oxford

INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL COURT

The aim of this series is to publish important and original pieces of research on all aspects
of international law. Topics that are given particular prominence are those which, while of
interest to the academic lawyer, also have important bearing on issues which touch upon
the actual conduct of international relations. None the less, the series is wide in scope and
includes monographs on the history and philosophical foundations of international law.

Page 1 of 4

RECENT TITLES IN THE SERIES

Just War or Just Peace? Humanitarian Intervention and International Law

Simon Chesternum

State Responsibility for Transboundary Air Pollution in International Law

Phoebe Okowa

The Responsibility of States for International Crimes

Nina H. B. Jorgensen

The Law of International Watercourses: Non-navigational Uses

Stephen C. McCaffrey

Human Rights in International Criminal Proceedings

Salvatore Zappalà

FORTHCOMING TITLE:

Universal Jurisdiction: International and Municipal Legal Perspectives

Luc Reydams

(p.iv)

Great Clarendon Street, Oxford OX2 6DP

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First Published 2003

Published new in paperback 2004

All rights reserved. No part of this publication may be reproduced,

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International Justice and the International Criminal

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Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

Scope
Bruce Broomhall

DOI:10.1093/acprof:oso/9780199274246.003.0002

Abstract and Keywords

This chapter defines the scope of international criminal law. It outlines the limits of three
potential definitions of ‘international criminal law’ (inter-state criminal law, suppression
conventions, and ‘international crimes of state’), and highlights the special character of the
fourth (the core ‘Nuremberg’) doctrines. It shows that the link between the ‘core
crimes’ and the fundamental interests of international order is one of the source of the
very problems that has beset efforts to put this area of law into practice.

Keywords: inter-state criminal law, suppression conventions, international crimes of state, Nuremberg
doctrines, international law

‘International criminal law’ in the broadest sense cannot be considered a unified or

coherent body of law. While one area of this law has, over the last decade of the twentieth
century, enjoyed increasing cohesion and developed with unprecedented rapidity

Page 1 of 18

through the establishment of the tribunals for the Former Yugoslavia and Rwanda and
through the process of establishing an International Criminal Court, overall developments
have often had an ad hoc, fragmentary character. The different areas of this law, as most
broadly conceived, and the distinct dynamics of those areas reflect the divergent, and
sometimes conflicting, nature both of international law and of the global system from
which it emerges. Around a core of agreed customary or treaty norms lies a wide
penumbra of what is either disputed custom, ‘soft law’, mere proposal, or treaties
binding on some but not on all (or substantially all) members of the international
community.

Schematically speaking, the phrase ‘international criminal law’ encompasses increasingly

narrow concentric rings of doctrine. Outermost is the whole area of comparative
transnational or inter-State criminal law, that is, of national laws that deal with the
international or cross-border aspects of substantive and procedural criminal law. Next is
the area of the ‘suppression conventions’, whereby international treaties define offences
(such as drug trafficking or hijacking) and set out procedures (including the characteristic
obligation to extradite or prosecute) that States agree to follow in taking action through
their national systems. In this case, individual responsibility arises only under national law,
while a State's failure to act (whether by passing laws or by commencing proceedings
under those laws) gives rise to its own international responsibility in accordance with the
ordinary principles of international law. A related but sui generis phenomenon is that of
proposed ‘international crimes of State’, which would apply criminal responsibility not to
individuals but to the abstract collective entity of the State. Finally, at the core of
international criminal law are the doctrines by which international law imposes criminal
responsibility directly upon individuals, regardless of the national law.1

Unless otherwise indicated, this work uses the term ‘international criminal law’ in the
latter, narrow sense, focusing on the ‘core crimes’ derived from the (p.10) legacy of
Nuremberg (crimes against peace, war crimes, crimes against humanity, and genocide).
With the ‘core crimes’, unlike most of the other crimes that might legitimately fall within a
broader conception of international criminal law, individual responsibility arises directly
under international law, with no need (as a matter of international law) to have domestic
legislation in place. As a result, individuals accused of these few, most serious crimes are
subject to prosecution either by a successor regime in his or her own State, by foreign
authorities acting on the basis of universal jurisdiction, or by an international (including a
Security Council) tribunal, regardless of whether national law prohibited (or indeed
permitted or required) the conduct at the time and place of its commission. The
justification for this departure from the requirement of domestic legality—of prohibition at
national law as a precondition to imposing criminal responsibility upon individuals—lies in
the assumption that these crimes undermine the international community's interest in
peace and security and, by their exceptional gravity, ‘shock the conscience of humanity’.
It is through this link to deep principles of the international order that these crimes are
often considered to be violations of jus cogens norms giving rise to obligations erga
omnes. The underlying premise, of course, is that criminal prohibition acts as a general
deterrence, thus promoting stability and basic norms of conduct, especially by

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governments. While, as a practical matter, one might challenge aspects of these basic
assumptions, the contemporary resurgence of international criminal law, culminating in
the establishment of the International Criminal Court, ensures a distinct doctrinal place
for the core crimes.

By outlining the limits of three potential definitions of ‘international criminal law’ (inter-
State criminal law, suppression conventions, and ‘international crimes of State’) the
discussion below highlights the special character of the fourth (the core ‘Nuremberg’
doctrines). At the same time, the link between the ‘core crimes’ and the fundamental
interests of international order (in particular, that of international peace and security) can
be seen as one source of the very problems that have beset efforts to put this area of
law into practice (see pp. 44–51 below).

1. INTER-STATE OR TRANSNATIONAL CRIMINAL LAW

The broadest definition of international criminal law would catch within the phrase all
national law relating to crimes with transboundary elements and to inter-State legal
cooperation in criminal matters. In recent decades, rapidly developing transportation and
communication technology have enormously enhanced the ability of crime (and especially
organized crime) to traverse borders and of suspects to evade authorities. National
legislatures, courts, and enforcement authorities have responded with new doctrines of
law and (p.11) innovative enforcement strategies while a multi-layered international
machinery for coordinating policy development and enforcement has developed,
producing international agreements, and international friction, in a number of areas.2
Where international agreements have arisen, they focus on procedural and jurisdictional
questions to allow national authorities to respond more effectively to conduct that
remains criminal only under domestic law. Particularly noteworthy, in this regard, are the
treaty-making efforts of the Council of Europe, which has undertaken more concrete
work to promote mutual assistance than any other intergovernmental organization,3 as
well as the proliferation of instruments in response to the needs of U.S. law enforcement
agencies.4

As with private international law, there are as many potential ways to regulate this area as
there are States to regulate it.5 In the words of Doudou Thiam:

There has developed within internal law a discipline which is wrongly called, in
French at least, ‘international penal law[’], but which is in fact an internal discipline,
its subject matter being the internal laws which delimitate [sic] the jurisdiction of
foreign courts and the authority of judgements outside the territory of the State in
which they are rendered. The fact that, because of the need for co-operation in this
field, countries (p.12) decided to make the principle of territoriality of penal law
less rigid may have been misleading, and this discipline was styled ‘international
penal law’. But the crimes to which the discipline relates are, as a rule, crimes
under internal law, the courts competent to try them are national courts, and they
may become international crimes only by virtue of conventions or of the
circumstances in which they are committed. In this respect, they are different from
crimes that are international by their very nature, which fall directly under

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international law irrespective of the will of States.6

As Derby remarks, ‘[w]ell might one puzzle about the genesis of “international law
irrespective of the will of States” …’; 7 the basic thrust of the passage is nonetheless
accurate. ‘Comparative transnational’ or ‘interjurisdictional’ criminal law would best
describe this important sphere of contemporary legal inquiry.

2. SUPPRESSION CONVENTIONS
International obligations pursuant to what are sometimes called ‘suppression
conventions’ often impel governments to pass national laws bearing on crimes with
transboundary implications.8 Such conventions impose on States Parties the obligation to
prohibit certain conduct.9 The conduct, such as terrorist-related activities or drug
trafficking, invariably has an international component or global impact that attracts State
interest in the first place.10 These treaties typically include provisions requiring parties to
exercise jurisdiction over a specified crime or crimes and to provide cooperation to other
States Parties.11

A distinguishing feature of many of these treaties, or at least of modern ones, is their

recognition of what is often described (inaccurately) as ‘universal jurisdiction’, which
permits, or more often obliges, States Parties either to prosecute individuals suspected
of the relevant crime or to extradite them to States Parties willing to do so, regardless of
their nationality or of where the (p.13) crime took place (see pp. 105–27 below).12 The
jurisdiction created by the duty aut dedere aut judicare (‘either to extradite or to
prosecute’) embedded in these conventions is not truly ‘universal’ but is in fact
jurisdiction between the parties (inter partes); non-States Parties are not obliged to act
unless so required under customary law or another applicable treaty. At the same time, it
appears that the ‘extradite or prosecute’ requirement arising under suppression
conventions could result in the arrest and extradition or arrest and trial of individuals
accused of a relevant crime, provided they are within the jurisdiction of the arresting
State, and regardless of whether they themselves are citizens of a State Party.13

The obligations under these conventions, for example to take measures to suppress
certain conduct, arise at international law while the enforcement of prohibitions against
individuals takes place only through national judicial systems. Failure to enact the
requisite domestic laws could therefore either constitute or lead to a breach of a State's
obligations and give rise to its international responsibility. Yet it does not follow that any
international responsibility attaches to the individual engaging in the conduct aimed at by
the instrument. Suppression conventions by themselves impose no duties and no
responsibility directly on the individual; only a State exercising jurisdiction under national
legal systems prohibiting the conduct (and not, for example, an international tribunal in
the absence of such laws) could normally prosecute her or him.

The phrase ‘international criminal law’ sometimes encompasses suppression

conventions.14 This broader conception is not unjustifiable, given the internationally
important subject matter of these conventions, although the discussions do not always
adequately distinguish the levels at which individual responsibility arises. Yet because

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there is no direct link between international law and individual responsibility in this area,
the present study touches on suppression conventions only where they affect the
operation of the ‘core crimes’ of international criminal law, which do entail such a link.
(p.14) The dividing line between the responsibility of individuals imposed by
international law and the responsibility of States to prohibit conduct under national law is,
however, not always easy to draw, with the result that suppression conventions
inevitably bear upon discussions of the ‘core crimes’. Treaties requiring States Parties to
exercise ‘universal jurisdiction’ over certain acts may support the emergence of
international custom imposing individual responsibility for the same acts, as the 1949
Geneva Conventions did in part.15 This movement from responsibility imposed by
conventional obligation under national law to responsibility directly under international
law is discussed further below (at pp. 25–6 and pp. 34–9). Multilateral conventions may
also articulate a duty for States Parties to exercise jurisdiction over acts already giving
rise to individual responsibility under customary law, as did the 1984 Convention Against
Torture.16 Suppression conventions thus clarify the national legal consequences that
should flow from international crimes, and also define crimes for purposes of national
prohibition in a way that might over time give rise to individual responsibility directly
under international law.

3. ‘INTERNATIONAL CRIMES OF STATE’

Another use of the phrase ‘international criminal law’—not adopted here—would
encompass the responsibility of States, characterized as criminal responsibility, arising
from certain exceptionally serious violations of international law. This approach arose in
the course of the work of the International Law Commission (‘ILC’) on the subject of
State responsibility for breaches of international obligations. First appearing in 1976, the
category of ‘international crimes of State’17 was set out in the Draft Articles on State
Responsibility provisionally adopted at first reading by the ILC in 1996.18 Article 19 of
that draft bears the title ‘International crimes and international delicts’ and declares that:
‘2. An internationally wrongful act which results from the breach by a State of an
international obligation so essential for the protection of fundamental interests of the
international community that its breach is recognized as a crime by that community as a
whole constitutes an international crime.’

(p.15) Sub-article (3) provides a non-exclusive list of areas of law giving rise to such
‘essential obligations’, and included, among others, the prohibitions of aggression,
slavery, genocide, apartheid, and massive pollution to the natural environment.

From its first appearance, this proposed category of international responsibility was
highly contentious.19 In particular, critics debated the status of the category (whether it
exists or is emerging, and within what scope, or whether it is antithetical to the
international system as now constituted), its desirability, as well as the normative and
institutional elaboration to which it should be subject.

These debates finally led the ILC, first, to suspend consideration of Article 19, owing to a
lack of consensus on its inclusion, to return to it at a later date,20 and then, in adopting on
second reading its renamed Draft Articles on Responsibility of States for Internationally

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Wrongful Acts, to drop all references to ‘crimes’. Instead, the Commission chose to refer
to ‘serious breaches of obligations under peremptory norms of general international law’
and to provide that such breaches ‘can attract additional consequences, not only for the
responsible State but for all other States’ and that ‘all States are entitled to invoke
responsibility for breaches of obligations to the international community as a whole’.21
States have a duty to cooperate by lawful means to bring an end to, and have a duty not
to recognize as lawful a situation created by, a serious breach of a peremptory norm
(Article 41); with regard to obligations ‘owed to the international community as a whole’,
the Draft Articles allow any State to seek cessation of the offending conduct, guarantees
of non-repetition, as well as performance of the obligation of reparation on (p.16) behalf
of those entitled (Article 48). The Draft containing these provisions was forwarded to the
General Assembly, which took note of the Draft Articles ‘without prejudice to their future
adoption or other appropriate action’.22 While the latter language fell short of the ILC's
request that the Assembly ‘consider, at a later stage, … the possibility of convening an
international conference of plenipotentiaries … with a view to adopting a convention on the
topic’, it is not impossible that further action will be taken on the Draft Articles in future.23
Thus, while it appears unlikely, the notion of ‘international crimes of State’ may yet
resurface.

There is good reason to set ‘international crimes of State’ to one side when considering
‘international criminal law’ either narrowly or broadly. It is true that, if international law
came to recognize such crimes, there would be some reason to treat them under the
broad rubric of ‘international criminal law’, as the same subject matter and overlapping
norms would often be involved. Crimes of State would nevertheless define a unique sub-
field of their own, applying to legal rather than natural persons, and ultimately forming a
part of the international law of State responsibility rather than that of individual criminal
responsibility. It is unlikely that crimes of State will enjoy such recognition in the
foreseeable future, owing to the deeply rooted difficulties to which ‘international crimes
of State’ will surely give rise if they become the subject of concerted State negotiations.
Three such difficulties may be touched upon here.

First, not all the acts that would give rise to this criminal responsibility can be said to be
stipulated under international law with the uniform clarity needed to satisfy the principle
of nullum crimen sine lege, and thus to win the support of States.24 It would be no easy
task, for example, to arrive at a list of those obligations, related to self-determination or to
the protection of the natural environment, the violation of which a substantial majority of
States could agree should give rise to their criminal responsibility. The threshold for
agreement would certainly be very high, and negotiations arduous.25

Secondly, there is no institution with jurisdiction to try and convict States accused of such
crimes. The main possibilities discussed by the ILC include the International Court of
Justice, the Security Council, an Arbitration (p.17) Tribunal (perhaps preceded by the
finding of a Conciliation Commission) and individual States (as an initial step). Arbitration
was the most favoured option, but none is without serious problems.26 Conferring
jurisdiction on either of the first two presents issues regarding the scope of the mandate

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set out in their constituent instruments. Apart from this, it would be very difficult
politically to give adjudicative responsibility to the Security Council for the same reasons
that its role was contentious during the drafting of the ICC Statute (see pp. 70–6 below).
As discussed below (pp. 52–62) with regard to the potential for embedding the rule of law
in the international system, the legitimacy of the system as a legal one encourages that
criminalization be followed by enforcement that is both reasonably consistent and seen to
be so. It is doubtful that judicial powers put directly in the hands of the Security Council
could ever satisfy this standard, however far current practice mimics this.27 Whatever
process was decided upon, the legitimacy of the enterprise would require (a) that
measures be reasonably effective, (b) that the power of States to take countermeasures
be subject to constraints aimed at preventing further significant disruption to
international relations, and (c) that the coordinating potential of the Security Council (in
the absence of any alternative) be given primacy, while (d) the rights of individual States
to respond to violations of their fundamental rights (for example, by exercising their right
to self-defence) not be impaired. Importantly, (e) the system as a whole would have to be
seen to function at an acceptable level of fairness to sustain the support of States.
Creating a mechanism or set of mechanisms to satisfy all of these demands in the current
state of international law and international relations would be a delicate and challenging
task. One might be forgiven for believing that the international system is not ready for
such developments at present.

Thirdly, identifying the appropriate consequences of such acts has been contentious, to
the extent that there has been ‘no development of penal consequences for States’ with
respect to breaches of peremptory norms, not even to the extent of providing for
punitive damages.28 Even if the aim of creating a category of ‘international crimes of State’
was to ‘visit a crime with the same consequences as an ordinary delict, but to add further
“punitive” (p.18) consequences’,29 the question of ensuring the adequacy and justness
of such consequences remains. The 1996 ILC draft was willing to contemplate a right on
the part of an injured State to seek restitution even if it were ‘out of all proportion to the
benefit the injured State would gain from obtaining restitution in kind rather than
compensation’, or if it were to ‘seriously jeopardize the political independence or
economic stability’ of the offending State; similarly, the injured State would have been
entitled to satisfaction even were its demands to impair the dignity of the State in
question.30 While some within the Commission may have been ready to contemplate
restoration ‘however painful or burdensome’ to the State in question,31 such a stance,
even were it ethically justified, would risk disregarding the overriding need to see that
the system of State responsibility promotes, rather than undermines, international peace
and security. The same is true of the humanitarian concern arising from the attempt to
define effective responses to egregious violations of international law while avoiding the
imposition of collective punishments on the subject population of the State in question.32
Needs such as these require more nuanced measures and a more circumspect
consideration of elusive factors, such as dignity and stability, than the rush to
‘criminalization’ always allows.

As the ILC's development of clear rules for ordinary forms of State responsibility has

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been arduous and slow, it is hard to believe that governments, gathered together in
greater numbers and often with less expertise than in the LLC, could easily reach
agreement on even weightier forms of State responsibility. Such considerations may have
led the Commission, in its second reading (2001) Draft Articles, to seek instead greater
clarity on the distinct consequences flowing from serious breaches of peremptory norms
and of obligations owed to the international community as a whole. This approach, without
setting up a new category of ‘crimes’, is likely to take on momentum as a result of the
evolution of international criminal law, which will focus international attention on many of
the same norms.

(p.19) There is good reason to support the emergence of effective legal means of
redressing and preventing the most disruptive violations of international law, even if the
term ‘crimes’ is ill suited to describe acts of States and misleading with respect to the
process that should address these acts. Clear consequences in the area of fundamental
norms, applied with enhanced consistency, and reinforced by the international law of
individual responsibility, would be a significant mark of the maturity, strength, and
legitimacy of the international legal apparatus as a whole. Even with such formal
elaboration, however, regular and impartial enforcement cannot be expected to be
imminent. The norms included under the ILC formulation of ‘international crimes of State’
include those that have hitherto been least subject to legal and most to political (if any)
regulation (such as aggression). Moreover, the closer international regulation of political
and diplomatic power implicit in attempting to adopt such rules would require a
fundamental shift in priorities on the part of a number of influential States. Even were the
rule of law to evolve piecemeal internationally, ‘international crimes of State’ are not likely
to be at the front line.

4. THE NUREMBERG PRINCIPLES

The Nuremberg Principles comprise a cluster of principles that has defined the core of
international criminal law from the time of the International Military Tribunal to the Rome
Statute.33 These Principles mark out a doctrinal field establishing what was, at the end of
the Second World War, a new relationship between the individual, the State, and the
international community based on an awareness that national interdependence and
industrialized warfare created new exigencies and demanded new and stronger
safeguards for the stability of international life. In this, the Principles joined the UN
Charter as part of the revolution in public consciousness that followed the return to
peace following the War.

Several features of ‘international criminal law’, understood as a coherent body of

doctrine surrounding the ‘core crimes’, stand out. First, the responsibility of the
individual (for crimes against humanity, genocide, war crimes, (p.20) and crimes against
peace)34 arises immediately under international law. Secondly, criminal responsibility
attaches regardless of the official position of the individual. Thirdly, responsibility reaches
the individual regardless of whether national law is silent, condones, or actually requires
the behaviour in question (through superior orders or otherwise). Fourthly, this form of
criminal responsibility gives rise to the potential for enforcement through international

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(including Security Council) tribunals as well as through national courts exercising

universal jurisdiction. Finally, and of key importance, there are close historical, practical,
and doctrinal links between the core prohibitions of this law and the foundations of the
post-War international order.

International law does not apply solely to States, although this was the position of leading
theorists for much of its history.35 Yet States remain the subjects par excellence of
international law, having a fuller range of rights and obligations than any other entity
recognized as having (limited) international legal personality. Such other entities do exist
and include, to a greater or lesser extent, intergovernmental organizations, ‘peoples’,
and individuals.36 It is the application to individuals that is of concern here. While public
international law has been known to confer rights upon individuals from time to time, and
does so increasingly in the context of human rights protection, it is in the case of
international criminal prohibition that this law strikes most forcefully what was traditionally
the strictly national sphere of the individual: ‘Although international law generally
establishes rights and duties between and among states, international criminal law
imposes obligations on individuals, making them liable to criminal punishment’.37

In the famous, if not gender-neutral, words of the judgment of the International Military
Tribunal which sat at Nuremberg to apply international and not German law to the
defendants before it: ‘Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced’.38

(p.21) At Nuremberg, the justification for so invading the normally circumscribed

sphere of the individual depended greatly on the status of the individuals involved (i.e. as
officials) and on the link between the core crimes and fundamental interests of the
international community (see pp. 44–51 below).

As accused persons will most often be real or de facto State agents rather than private
individuals, the suspension of sovereign immunity is essential to the effective
enforcement of international criminal, and hence to any movement towards the rule of law
in this sphere. Individual responsibility for the commission of these acts in the
performance or purported performance of official functions was central to the conceptual
innovation represented by Nuremberg. The abuse of power inherent in these acts
aggravated their heinous character while the deployment in their commission of the
resources available to the State made possible a threat to international peace. The
Nuremberg Charter ‘pierces the veil’ of State sovereignty, making officials directly
responsible as individuals under international law for the acts they carry out in the name
of the State. The aim was, of course, to control State conduct by controlling the conduct
of the officials behind the State, thus indirectly promoting international peace.

Under the Nuremberg doctrines, the status of an accused as a Head of State or

otherwise is immaterial. The doctrines of ‘act of State’ and of immunity were effectively
dismissed, while command responsibility and the absence of any defence of superior
orders or of prior legality was confirmed. Thus, at least in principle, the individual was

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exposed to investigation and prosecution by successor regimes, by foreign authorities

using universal jurisdiction, or by international tribunals (whether treaty-based, such as
the Nuremberg Tribunal or the ICC, or based on resolutions of the Security Council),
regardless of the condition of national law at the time and place of the alleged crime.
Individual responsibility could not be left to national law precisely because it would not be
enforced by the totalitarian regimes at which aim was taken. Nor could responsibility
under international law be made effective unless immunities were unavailable and unless
national law provided no excuse, whether by making the acts in question legal (prior
legality) or by binding an individual with orders to commit the acts (superior orders). It
must be added, however, that the law of immunity has not and is not likely to reflect this
doctrinally coherent view for some time (see pp. 128–50 below).

The jus cogens roots frequently asserted for the core of international criminal law testify
to the link between this law and the foundations of the post-War international order.39
Such an assertion is tantamount to grounding this law in the constitutional order of the
international community, at the foundations of which lie the fundamental interests in
international peace and (p.22) security and ‘the collective conscience of humanity’. Like
much that stems from the Nuremberg Principles, these roots, while coherent at the level
of principle, do not correspond to any straightforward subsequent development of the
law (see pp. 41–3 below). Also, the underlying rationales of this law have diversified, with
the result that while the perpetration of relevant crimes by the State, pursuant to policy,
in the context of an armed conflict, remains important, no one of these factors is now
indispensable to the character of a core crime under international law, as they were at
the time of Nuremberg (see pp. 44–51 below).

Without each of the above factors forming a coherent doctrinal whole, the core of
international criminal law would not have had the elements necessary at the level of
principle to fulfil its proclaimed purposes of deterrence and punishment. The link between
the Nuremberg Principles' affirmation of the international responsibility of individuals and
basic rationales of international order justifies the distinction between the ‘core crimes’
and other crimes within ‘international criminal law’ (as broadly conceived), and is essential
in assessing how core crimes might best be enforced, given the involvement of highly
political as well as legal issues in the consideration of these crimes (see pp. 41–3 below).
In criticizing a study that treated ‘international crimes’ (widely defined) in an
undifferentiated manner,40 Derby was right to state that:

[g]iving the same consequences and label to such disparate forms of conduct not
only fails to correspond to past and existing practice but also fails to reflect a clear
and acceptable policy basis. It… seems to establish that straightforward principles
operating on the international plane and seeking to provide a single definition for
international crimes' may have limited utility.41

Rather than adopt a definition of international criminal law that offers no differentiation but
between procedure and substance,42 or one that offers a great (p.23) deal of
differentiation but ultimately fails to justify its approach,43 the present work takes the
view that by distinguishing from the entire pool of ‘international crimes’ those ‘core

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crimes’ having the strongest ‘peace and security’ element or the strongest link to ‘the
collective conscience of humanity’, one can understand better both why these
prohibitions have not been—and how they might be—better enforced.

5. NOTE: PIRACY AND SLAVERY

Piracy and slavery have both been identified as crimes under customary international
law, and indeed as jus cogens crimes. Piracy on the high seas, the oldest recognized
crime under international law, has had that status since at least the seventeenth century,
and was most recently codified in the 1982 Convention on the Law of the Sea, which
defines the crime and commits all States Parties to its repression, permitting universal
jurisdiction to be exercised over the offenders.44 Slavery, slave-trading, and slavery-
related practices, while initially prohibited on the basis, essentially, of territorial and
(p.24) national jurisdiction under international instruments dating back to the early
nineteenth century, has been prohibited by twentieth century law as well.45 By
comparison to the times in which these prohibitions arose, both of these crimes have
been radically curtailed, although neither has been eliminated. Trade liberalization and
other factors have given rise to a marked increase in piracy in recent years, particularly
in the South China Seas.46 Similarly, slavery itself and a range of slavery-like practices
(such as debt bondage and trafficking in persons) continue to occur around the world.47

Despite ongoing incidents of each crime, they are not treated as part of the ‘core crimes’
for purposes of this work, simply because these crimes are, on their own, less a focus of
international concern than they were in times past, with the result that the contemporary
discussion on accountability has largely neglected these crimes (with the exception of the
inclusion of enslavement and sexual slavery within the Rome Statute definition of crimes
against humanity).48

Notes:
(1) See generally D. H. Derby, ‘A Framework for International Criminal Law’ in M. Cherif
Bassiouni, ed., International Criminal Law (3 vols.) (Dobbs Ferry, NY: Transnational,
1986) (vol. I) 33; also M. Cherif Bassiouni, ‘The Sources and Content of International
Criminal Law: A theoretical framework’, in M. Cherif Bassiouni, ed., International Criminal
Law (2d ed., 3 vols.) (Ardsley, NY: Transnational Publishers, 1999) [‘Bassiouni(1999b)’]
(vol. I) 3.

(2) For a sampling of discussions from Europe and the United States, see Roman Boed,
‘United States Legislative Approach to Extraterritorial Jurisdiction in Connection with
Terrorism’, and Bert Swart, ‘The European Union and the Schengen Agreement’, both in
Bassiouni (1999b) (vol. II) 145 and 177. In 1990, the United Nations produced a model
instrument: Model Treaty on Mutual Assistance in Criminal Matters, 14 December 1990,
Annex to G.A. Res. 45/117, U.N. Doc. A/45/49, G.A.O.R., 45th Sess., Supp. No. 49A, at 215;
see Herman F. Woltring, ‘The United Nations’, in Bassiouni (1999b), n. 1 above, (vol. II)
795.

(3) Ekkehart Müller-Rappard, ‘Inter-State Cooperation in Penal Matters within the

Council of Europe Framework’ (surveying twenty treaties and many resolutions and

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recommendations over forty years) and Peter Wilkitzki, ‘Council of Europe’ (reviewing
the Council's efforts towards integrated codification of mutual legal assistance), both in
Bassiouni (1999b) n. 1 above, vol. II 331, 755; M. Cherif Bassiouni and Ekkehart Miiller-
Rappard, eds., European Inter-State Cooperation in Criminal Matters: The Council of
Europe's legal instruments (Dordrecht: Martinus Nijhoff, 1993).

(4) Alan Ellis, Robert L. Pisani, and David S. Gualtieri, ‘The United States Treaties on
Mutual Assistance in Criminal Matters’, in Bassiouni (1999b), n. 1 above, (vol. II) 403.

(5) On the distinction between private and public international law, see Sir Robert
Jennings and Sir Arthur Watts, eds., Oppenheim's International Law (9th ed.) (London:
Longman, 1994) at 5–7: ‘Whereas [public international law] governs the relations of states
and other subjects of international law among themselves, [private international law]
consists of the rules developed by states as part of their domestic law to resolve the
problems which, in cases between private persons which involve a foreign element, arise
over whether the court has jurisdiction and over the choice of the applicable law: in other
terms, public international law arises from the juxtaposition of states, private international
law from the juxtaposition of legal systems’ (at 6–7). As North and Fawcett remark,
‘[t]here is, at any rate in theory, one common system of public international law … but …
there are as many systems of private international law as there are systems of municipal
law’: P. M. North and J. J. Fawcett, Cheshire and North's Private International Law, (12th
ed.) (London: Butterworths, 1992) at 12–13. Of course, the words ‘between private
persons’ in the passage from Jennings and Watts makes clear that the analogy to criminal
law is inexact.

(6) First Report on the Draft Code of Offences Against the Peace and Security of
Mankind, U.N. Doc. A/CN. 4/364 (29 April 1983) at 9, cited in Derby, n. 1 above, at 57 n.
108.

(7) Ibid.

(8) See for example national legislation implementing the obligations under the Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September
1971, 974 U.N.T.S. 177 [‘1971 Montreal Convention’]: see Criminal Code, R.S. 1985, c.C-
46, ss.7(1) and 7(2) (Canada); 18 U.S.C. s. 32 (United States).

(9) 1971 Montreal Convention, Art. 1 (definition of offences), Art. 3 (‘Each contracting
State undertakes to make the offences mentioned in Article 1 punishable by severe
penalties’).

(10) 1971 Montreal Convention, Preamble, para. 1 (‘unlawful acts against the safety of
civil aviation … undermine the confidence of the peoples of the world in the safety of civil
aviation’). Art. 4 (establishing various international jurisdictional requirements, e.g. that
the place of take-off or landing is situated outside the territory of the State of registration
of the aircraft).

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(11) 1971 Montreal Convention, Art. 5 (duty to establish jurisdiction under national law),
Art. 6 (duty to arrest), Art. 7 (duty to submit case to competent authorities for
prosecution if the individual is not extradited), Art. 8 (extradition), Art. 11 (mutual
assistance).

(12) The emergence of this innovation in the modern treaties, beginning with the 1949
Geneva Conventions, is carefully traced by Roger S. Clark. ‘Countering Transnational and
International Crime: Defining the agenda’, in Peter J. Cullen and William C. Gilmore, eds.,
Crime Sans Frontiers: International and European legal approaches (Hume Papers on
Public Policy, vol. 6, nos. 1 & 2) (Edinburgh: Edinburgh University Press, 1998) 20 at 25–
8; and idem. ‘The Development of International Criminal Law’, paper presented at the
conference ‘Just Peace? Peace making and peace building in the new millennium’, Massey
University, Auckland, New Zealand, 24–8 April 2000 (unpublished).

(13) For a review of US legislative and judicial practice in cases of international drug
trafficking and terrorism, see the discussion in Michael P. Scharf, ‘The ICC's Jurisdiction
over the Nationals of Non-Party States: A critique of the U.S. position’ in Madeline
Morris, ed., The United States and the International Criminal Court (2000) 63 Law &
Contemporary Problems 67.

(14) See ‘Introduction’ in M. Cherif Bassiouni, International Criminal Law Conventions

and their Penal Provisions (Irvington-on-Hudson, NY: Transnational, 1997) 14; and
Bassiouni (1999b), n. 1 above.

(15) See Theodor Meron, ‘Geneva Conventions as Customary Law’, in Theodor Meron,
War Crimes Law Comes of Age: Essays (Oxford: Clarendon, 1998) [‘1998b’] 154.

(16) See Chapter VI below at n. 21 and related text.

(17) Report of the international Law Commission on the Work of its Twenty-Eighth
Session, 3 May-23 July 1976, U.N. Doc. A/31/10, G.A.O.R., 31st Sess., Supp. No. 10 (1976)
175 [‘1976 ILC Report’].

(18) Draft Articles on State Responsibility, in the Report of the International Law
Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996, U.N. Doc.
A/51/10, G.A.O.R. 51st Sess., Supp. No. 10 (1996) [‘1996 ILC Report’] at 125.

(19) See in particular the consideration of Art. 19 in the 1976 ILC Report, n. 17 above,
226–92, as well as the Report of the International Law Commission on the Work of its
Fiftieth Session, 20 April-12 June 1998, 27July-l4 August 1998, U.N. Doc. A/53/10,
G.A.O.R., 53d Sess., Supp. No. 10 (1998) 118–47 [‘1998 ILC Report’]; and Joseph H.H.
Weiler, Antonio Cassese, and Marina Spinedi, eds., International Crimes of State: A
critical analysis of the ILC's Draft Article 19 on State Responsibility (Berlin: Walter de
Gruyter, 1989). Further, see the Symposium on State Responsibility, and in particular:
Georges Abi-Saab, ‘The Uses of Article 19’; Giorgio Gaja, ‘Should All References to
International Crimes Disappear from the ILC Draft Articles on State Responsibility?’; Alain

Page 13 of 18

Pellet, ‘Can a State Commit a Crime? Definitely, yes!’, in (1999) 10 E.J.I.L. 339, 365, 425.
See also Derek William Bowett, ‘Crimes of State and the 1996 Report of the International
Law Commission on State Responsibility’ (1998) 9 E.J.I.L. 163 at 164, 167; Ian Brownlie,
System of the Law of Nations: State responsibility. Part 1 (Oxford: Clarendon, 1983) at
32-3; N. Jorgensen, The Responsibility of States for International Crimes (Oxford:
Oxford U.P., 2000); Robert Rosenstock. ‘An International Criminal Responsibility of
States?’ in International Law on the Eve of the Twenty-First Century: Views from the
International Law Commission (New York: United Nations, 1997) 265; and C.
Tomuschat, ‘International Crimes by States: An endangered species?’, in K. Wellens, ed.,
International Law: Theory and practice: Essays in honour of Eric Suy (The Hague,
Nijhoff, 1998).

(20) 1998 ILC Report, at 147.

(21) Report of the International Law Commission on the Work of its Fifty-Third Session,
23 April-1 June, 2 July 10 August 2001, U.N. Doc. A/56/10, G.A.O.R., 56th Sess., Supp. No.
10 (2001) [‘2001 ILC Report’] at 282.

(22) G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (12 December 2001), para. 3.

(23) 2001 ILC Report, at page 42, paras. 72–3.

(24) Bowett (1998), n. 19 above, at 164, 167; for the State interest in seeing the
requirements of the nullum crimen principle satisfied in the context of crimes included
within the jurisdiction of the International Criminal Court, see pp. 30–4 below.

(25) The 2001 ILC Report speaks of the prohibitions related to aggression, slavery and
the slave trade, genocide, racial discrimination and Apartheid, torture, basic rules of
international humanitarian law applicable in armed conflict, and the obligation to respect
the right of self- determination, as giving rise to peremptory norms: at 283–4, paras. 4–5.
Definitions with respect to some crimes could be borrowed from various sources (for
the ICC PrepCom's work on the crime of aggression, see Chapter II below at n. 85 and
related text). This does not resolve the problem with respect to all possible ‘crimes’,
however.

(26) See Bowett, n. 19 above, at 168–71.

(27) Bowett, n. 19 above, at 166, argues in reply to the view that the Council's capacity to
deal with international crimes was demonstrated by the measures it imposed in response
to Iraq's invasion of Kuwait, that this was not dealt with as a crime per se, but as a breach
of international peace and security. To have dealt with the situation as criminal in a directly
judicial manner would have exceeded the Council's powers, in his view. He also points
out, at 170, that the Council has not always been impartial in exercising its powers. One
can see that the same measures might have been applied had Iraq's acts been treated as
crimes, but due process considerations would then have played a greater role.

(28) 2001 ILC Report, at 279, para. 5; also Jennings and Watts (1994), n. 5 above, at 533,

Page 14 of 18

para. 157; Brownlie (1983), n. 19 above, at 32–3; Ian Brownlie, International Law and the
Use of Force by States (Oxford: Clarendon, 1963) 150–66, esp. 152–4; 1998 ILC Report,
at 141.

(29) Bowett n. 19 above, at 171. Whether the consequences suggested by the ILC are
properly labelled ‘punitive’ is open to question. Theodor Meron, in ‘Is International Law
Moving Towards Criminalization?’ (1998) 9 E.J.I.L. 18 (‘1998a’) at 21, states that
‘International crimes [of State] do not necessarily have penal consequences. Rather,
these articles address certain obligations for all states and reinforce the principle that an
injured state's entitlement to restitution or satisfaction is not subject to certain
restrictions stated in the articles.’ Professor Abi-Saab adds, importantly, that the concept
is intended also ‘to emphasize that such violations cannot be reduced to a mere bilateral
relation between the victim and the perpetrator …’: George Abi-Saab, ‘The Concept of
“International Crimes” and its Place in Contemporary International Law’, in Weiler et al.
(1989), n. 19 above, 141 at 146. Rosenstock, n. 19 above, at 280, points out that this is
true of any erga omnes violation, and that the concept of ‘crimes of State’ is not needed
to make the point.

(30) 1996 ILC Report, at 142–3, Art. 52, Art. 43(c) and (d), and Art. 45(3).

(31) 1996 ILC Report, at 168.

(32) 1998 ILC Report, at 141, para. 315.

(33) Charter of the International Military Tribunal, Annex to the Agreement for the
Prosecution and Punishment of Major War Criminals of the European Axis, London (8
August 1945), 82 U.N.T.S. 279, reprinted in (1945) 39 A.J.I.L. (Supp.) 257 and in M. Cherif
Bassiouni, Crimes Against Humanity under International Law (Dordrecht: Martinus
Nijhoff, 1992), at 579 [‘Nuremberg Charter/Tribunal’]; for formulation and consideration
of the Nuremberg Principles by the International Law Commission and the General
Assembly respectively, see Part II Introduction, n. 4 and related text below; see also
Judgment, Trial of the Major War Criminals before the International Military Tribunal,
Nuremberg, 14 November 1945–1 October 1946 (Nuremberg: I.M.T., 1947) (vol. 1) 171,
reprinted in (1947) 41 A.J.I.L. 172.

(34) Nuremberg Charter, Art. 6(a), (b) and (c) respectively. ‘Crimes against peace’ are
now more commonly referred to as ‘the crime of aggression’. Genocide, an offshoot of
crimes against humanity, was given definitive recognition apart from crimes against
humanity by the 1948 Genocide Convention (see Part II Introduction, n. 6 and related
text below).

(35) Jennings and Watts (1994), n. 5 above, at 16ff. It was ‘well established’ in the
eighteenth century that individuals could be punished for certain breaches of the law of
nations, but support for this approach declined in the positivist consensus of the
nineteenth century, which restricted both the sources and the binding effects of
international law to States, until the human rights and humanitarian developments which

Page 15 of 18

followed World War II lent it new vigour: Diane Orentlicher, ‘Settling Accounts: The duty
to prosecute human rights violations of a prior regime’ (1991) 100 Yale L.J. 2553.

(36) Jennings and Watts (1994), n. 5 above, at 16ff. and 85, n. 29.

(37) Orentlicher (1991), n. 35 above, at 2552 (footnotes omitted).

(38) Judgment, n. 33 above, at 223.

(39) See, e.g. M. Cherif Bassiouni, ‘International Crimes: Jus cogens and obligatio erga
omnes’ in Bassiouni and Morris eds., Accountability for International Crime and Serious
Violations of Fundamental Human Rights (1996) 59 Law and Contemp. Probs. 63.

(40) M.C. Bassiouni, International Criminal Law: A Draft international criminal code
(Alphen aan den Rijn, The Netherlands: Sijthoff & Noordhoff, 1980).

(41) Derby, n. 1 above, at 45.

(42) G.O.W. Mueller and D.J. Besharov, ‘Evolution and Enforcement of International
Criminal Law’, in Bassiouni (1986), n. 1 above, (vol. 1) 59 at 61, state:

… I.C.L. seems to consist of (1) adjective criminal law (accommodation norms) [i.e.
matters of mutual assistance, extradition, conflict of laws, etc., referred to at pp.
10–12 above as ‘comparative transnational or interjurisdictional law’] and (2)
substantive criminal law (deviant conduct regulation which sovereigns have ceded
to higher authority or general international supervision) [including Nuremberg law,
piracy, the range of treaty-based offenses, and even human rights standards
involving international scrutiny into criminal justice areas].

That this distinction lacks sufficient subtlety, or even a clear distinction, is apparent.
G. Schwarzenberger, in The Problem of an International Criminal Law' (1950) 3
Current Leg. Probs. 262 set out six possible meanings of the phrase international
criminal law'. Derby, n. 1 above, at 34, complained that ICL as a discipline had yet to
decide which of these meanings was ‘appropriate’.

(43) Even as accomplished a thinker as Bassiouni has declared that ‘there are no common
or specific doctrinal foundations that constitute the legal basis for including a given act in
the category of international crimes1, making the broad assertion that: ‘… an empirical or
experiential observation supports the conclusion that an international crime is any
conduct which is designated as a crime in a multilateral convention with a significant
number of state parties to it, provided the instrument contains one of the ten penal
characteristics described below’.

The ‘ten characteristics1 include criminalization of the conduct, duty or right to

prosecute, establishment of criminal jurisdictional basis, and so forth. Bassiouni would, in
this study, require that international crimes’ have nothing more in common than that they
possess at least one (but share perhaps none) of these characteristics: M. Cherif

Page 16 of 18

Bassiouni, ‘Characteristics of International Criminal Law Conventions’, in Bassiouni (1986)

n. 1 above, (vol. I) at 2–3. Bassiouni believes that all of his ten characteristics should
ideally be present in every 1CL convention, and remarks (at 4) that ‘those crimes
containing a significant ideological or political component have the least number of the ten
penal characteristics, while those that are devoid of it have the largest number (compare
aggression with drugs …)’. Annex 2 to the same essay (at 11–13) provides a table in
which aggression is listed as involving a direct threat, while other crimes (including war
crimes, crimes against humanity, and racial discrimination or Apartheid) involve a threat
to world peace and security. He does not take the next step and conclude that the threat
to peace and security empirically does or normatively should lead to a difference in
approach, however. This reflects a shortcoming in applying a pure criminal justice model
to matters involving international peace and security. The same approach is carried
forward to Bassiouni (1999b), n. 1 above, which asserts the need to differentiate
between and to establish a hierarchy among international crimes, and which then
provides five different lists with a total of 26 different criteria for so doing. None of these
give adequate weight to the peace and security interest or to the related
international/national distinction in locating the source of individual responsibility (at 95–
100). Such an agglomerative approach results in an unhelpfully undifferentiated pool
of‘international crimes’.

(44) Chapter VI, n. 6 see more generally Bassiouni, n. 1 above, at 83; Clark, ‘Countering
Transnational and International Crime: Defining the agenda’, n. 12 above, at 25–7;
Jennings and Watts (1994), n. 5 above, at 746–55; Jacob W.F. Sundberg, ‘Piracy’, in
Bassiouni (1999b) n. 1 above, (vol. I) 803; and Kenneth C. Randall, ‘Universal Jurisdiction
under International Law’ (1988) 66 Tex. L. Rev. 785, at 791–8.

(45) M. Cherif Bassiouni, ‘Enslavement in Bassiouni (1999b), n. 1 above, 663; Clark, n. 12

above; Jennings and Watts (1994), n. 5 above, at 979; relevant provisions of the
applicable conventions are reproduced in Bassiouni (1997) n. 14 above, at 637–733.
Jennings and Watts (1994) at 981–2, acknowledge the customary law status of the
prohibition of slavery, but express doubt as to whether slavery, and particularly
‘slavery-like practices’ have jus cogens status; Sunga affirms such status for slave-trading
and slavery, based in part on the ICJ's classification of the prohibition of slavery as an
obligation erga omnes (see Chapter II, n. 117 below): Lyal S. Sunga, Individual
Responsibility in International Law for Serious Violations of Human Rights (Dordrecht:
Martinus Nijhoff, 1992), at 92. See also Randall (1988), at 798–800.

(46) International Maritime Organization, ‘IMO acts to combat piracy’ (Press Release,
February 1998); also Keith Harper, ‘Violence threatens booming world sea trade’ The
Guardian (18 September 1999).

(47) See e.g. Report of the Working Group on Contemporary Forms of Slavery on its
Twenty-Sixth Session. U.N. Doc. E/CN.4/Sub.2/2001/30 (16 July 2001); and ‘Despite
abolition efforts,’ slavery persists, says Secretary-General, calling for united action to
outlaw all forms1, U.N. Press Release SG/SM/7649 OBV/188 (1 December 2000).

Page 17 of 18

(48) Rome Statute Art. 7(I)(c) and (g); the crime of enslavement as a crime against
humanity was the object of trial and conviction by the International Criminal Tribunal for
the Former Yugoslavia in the Foca case: Prosecutor v. Dragoljub Kunarac et al.,
Judgment, ICTY Case No. IT % 23-T & IT⃛96–23/1-T (22 February 2001), in particular
paras. 515–43.

Access brought to you by:

Page 18 of 18

University Press Scholarship Online

Oxford Scholarship Online

International Justice and the International Criminal

Court: Between Sovereignty and the Rule of Law
Bruce Broomhall

Print publication date: 2004

Print ISBN-13: 9780199274246
Published to Oxford Scholarship Online: January 2010
DOI: 10.1093/acprof:oso/9780199274246.001.0001

From National to International Responsibility

Bruce Broomhall

DOI:10.1093/acprof:oso/9780199274246.003.0003

Abstract and Keywords

This chapter examines how the principles of clarity and non-retroactivity have been
brought to bear upon international criminal law, in particular in the negotiation of the
Rome Statute of the ICC. It then treats the rationale that legitimates the intrusion of
international criminal law into the otherwise sacrosanct domain of sovereignty. This
rationale rests on two basic principles underlying the core of international criminal law:
‘international peace and security’ and ‘the collective conscience of humankind’.

Keywords: clarity, non-retroactivity, international criminal law, Rome Statute, ICC, sovereignty

Once it is acknowledged that there is a core of international criminal law that imposes
responsibility upon individuals directly under international law, the question arises how
individuals become responsible under international and not merely under national law. In
other words, how do crimes rise to the level of being core crimes, particularly from

Page 1 of 31

being crimes under suppression conventions?

That a crime be of concern to the international community is, of course, a prerequisite to

its being subject to international regulation at all. Normally, some cross-boundary
element in the crime itself (or occurrence outside the jurisdiction of any State, as with
piracy on the high seas) or the prevalence of cross-boundary factors in the occurrence of
the crime (as with international drug trafficking and terrorism) is what engenders the
concern. Such international concern underlies both cooperation regimes, including
suppression conventions, and core crimes. To distinguish a core crime, attracting
responsibility without the intermediation of national law (pp. 19–23 above), something
more is required. That a State is responsible under international law for failing to
suppress torture or drug trafficking clearly does not by itself decide whether individuals
are or are not also internationally responsible.

Any suppression convention prohibition could in principle give rise over time to direct
individual responsibility under international law. States would be reluctant to recognize
new developments in international responsibility as legitimate, however, unless the effect
of the conduct in question on fundamental interests of the international community was so
great and so immediate as to warrant it. This was the case following the Second World
War, when prior legal developments, the official position of the accused, the monumental
disruption of international peace, and the enormity of the acts charged all converged to
justify what amounted to a quantum leap in the progressive development of the law.

While the type of leap represented by Nuremberg is not impossible in the present day, it
is more likely that gradual efforts towards codification through multilateral negotiations, in
particular through amendment of the Rome Statute of the ICC, will characterize the
expansion of international criminal law in future. This is not least because of expectations
that will have been established by the decision, taken early in the course of ICC
negotiations, to include express definitions of crimes within the Rome Statute. Before
examining again the question of how prohibitions rise to join the ‘core’ of crimes under
international law (at pp. 34–9 below) the principle of legality (p.26) (or nullum crimen
sine lege) and its role in promoting the codification of international criminal law is
reviewed.

1. CLARITY AND PROSPECTIVITY

(a) The Principle nullum crimen sine lege in international law

Clarity and non-retroactivity are key components of the principle of legality, nullum
crimen sine lege (‘no crime without law’), a basic maxim of any criminal justice system
claiming to be guided by the rule of law.1 It is now codified in Article 22 of the Rome
Statute.

The principle of legality promotes a legal system's legitimacy by limiting the interventions
of its criminal process to those clearly prescribed in advance by law. It assumes a
rational, autonomous legal subject and a known or knowable law. It posits that the
deterrent potential of the law, its power to influence the decision-making of individuals in a

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socially constructive way, arises from its rational and knowable character. Where legal
subjects make choices relying on the apparent sense of the law, and nonetheless find
themselves tried and convicted, the law has effectively been applied ex post facto to
them, and the administration of justice is accordingly brought into disrepute.2 A system
supporting retroactive application and vagueness in definition lends increasing discretion
to the judiciary and (in national systems) to the police. In its extreme form, neglect of this
principle coincides with an abandonment of the rule of law and is a characteristic of
unfettered authoritarianism.3

The principle plays a ‘constitutional’ role in maintaining the separation of powers as well.
As a principle of legislation, nullum crimen sine lege constrains law-makers to set out their
intentions clearly and in advance of the conduct over which they wish the courts to
exercise jurisdiction.4 It thereby seeks to protect the subjects of the law from
indeterminate executive interference. As a principle of interpretation, nullum crimen aims
to limit the power of the (unelected) judiciary to extend the interference with liberty
beyond that which a reasonable individual could infer from the words of the relevant
prohibition. Just as subjects are presumed capable of knowing and have a duty to (p.27)
obey the law, so too is the law-maker responsible for making the law clear and
ascertainable, while the judiciary is obliged in principle to refrain from penalizing conduct
not intended by the legislator to be criminal.5

As is the case with criminal law doctrine generally, the principle of legality and its
corollaries originated in municipal law. Its lineage can be traced to Roman law, although in
its modern manifestation it is a product of the Enlightenment. Its entrenchment as a
cornerstone of national law took place over the course of the late eighteenth and in the
nineteenth centuries.6 By the start of the First World War, it was recognized in the legal
systems of all developed countries and their dependent territories, although not always
in the same way. In particular, there was a major difference between common law
jurisdictions—in particular the United Kingdom—and Continental (Romano-Germanic)
systems. For the former, the rule against retroactivity was a presumption that could be
refuted by clear statutory wording. In the latter, the principle was more firmly adhered
to. In the former, crimes could be developed by analogy as part of the gradual
development of the law, while in the latter, such development was strictly limited to minor
infractions. Its Constitution made the United States an exception among the common law
systems, since retroactivity was constitutionally prohibited.7

The movement from being a principle primarily of national law to being one clearly and
firmly entrenched in international law was a product of the Second World War and its
aftermath. Between the wars, some jurisdictions retreated from the principle as
totalitarian governments sought to extend the powers of a politicized judiciary by
recognizing broad powers to criminalize by analogy. Such efforts led, at the end of the
Second World War, to the recognition of the principle of legality in the judgment of the
Nuremberg Tribunal, in the Universal Declaration of Human Rights (‘UDHR’), and later
in the International Covenant of Civil and Political Rights (‘ICCPR’).8

(p.28) Article 15(1) of the ICCPR recognizes nullum crimen in its usual form as

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protecting against retroactivity, and echoes Article 11(2) of the UDHR.9 Article 15(2)
emphasizes that absence of criminal prohibition under national law is no bar to
prosecution for conduct criminal under international law at the time of its commission.10
That the state of national law is not determinative for purposes of international criminality
is a necessary corollary of the prohibition of any defense of prior legality in the
Nuremberg Charter. The latter ‘defense’, and the objection that national law did not
prohibit the international crime at the time it was committed, may sometimes be raised on
the basis of nullum crimen, but only by misunderstanding the principle's proper scope.11
The international criminal law pertaining to the ‘core crimes, recognized from the Charter
and Judgment of the Nuremberg Tribunal to the Rome Statute of the International
Criminal Court is based on the assumption of individual responsibility directly under
international law. As such, the international principle of nullum crimen,12 at least with
respect to these crimes, does not require prohibition by national law. To allow otherwise
would be to allow individual States to legislate their agents out of their international
responsibility.13

(b) The Draft Code of Crimes Against the Peace and Security of Mankind
The first effort to establish a definitive codification of international criminal law was the
work of the International Law Commission on a Draft Code of Crimes Against the Peace
and Security of Mankind.

The Draft Code shares common origins with the Nuremberg Principles and the
International Criminal Court. The General Assembly first asked the ILC to prepare a draft
Code in the same resolution that asked it to formulate the principles of international law
recognized in the Nuremberg Charter and (p.29) Judgment.14 After submitting its
formulation of the Nuremberg Principles to the General Assembly in 1950,15 the
Commission adopted draft Codes in 1951 and 1954.16 Despite this early progress, the
draft Code fell victim to Cold War paralysis in the same way as did the establishment of a
permanent ICC.17 It was not until 1981 that the ILC, at the General Assembly's
request,18 resumed the project, intensifying its work to adopt provisionally at first
reading a draft Code in 1991 and to adopt at second reading a further and substantially
modified draft in 1996. While the 1991 draft contained twelve categories of crimes, the
1996 draft contained only five (aggression, genocide, crimes against humanity, crimes
against United Nations and associated personnel, and war crimes). The Commission
reduced the scope of the Draft Code in response to the interest of adoption of the Code
and of obtaining support by Governments'.19 The Commission recommended that the
General Assembly decide whether the Code be adopted as an international convention,
be incorporated into the Statute of an international criminal court, or be adopted as a
declaration of the General Assembly.20 Understandably, the General Assembly has not
proceeded with the Code. Once the decision was made to make the Rome Statute of the
International Criminal Court a de facto criminal code by including exhaustive definitions of
crimes, defenses, and general principles of criminal law, the impetus to bring the Draft
Code to fruition could only diminish (see below).21 The provision in the Rome Statute of a
clause allowing inclusion of further crimes at a later date (Article 121(5)) increased the
potential of the Statute to deplete the Draft Code of any (p.30) Independent raison

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d'etre. As a result, one can conclude that the half-century effort to adopt a Draft Code
has now been superseded by the negotiation of the Rome Statute for the ICC.

(c) Nullum crimen in the negotiation of the Rome Statute

As a principle of legislation, nullum crimen was brought to bear on the processes leading
to the adoption of the Rome Statute. Offering a means both of limiting exposure to the
obligations imposed by the Statute and of fostering codification and development of the
law, the principle encouraged clearer stipulation of procedural detail, exhaustive
definitions of crimes, movement of general principles from the proposed Rules to the
Statute, and much else.22 This function of the principle was merely a continuation of its
role in driving efforts to codify international criminal law, primarily through the work of
the International Law Commission, from 1946 onwards.23 It similarly reflected a desire to
forestall any repetition of the criticisms aimed at the Nuremberg Tribunal, which had
already been taken into account in the establishment of the ICTY and ICTR.24

The 1994 Draft Statute of the International Law Commission25 applied the nullum crimen
principle so as to reflect that Draft's proposed jurisdictional distinction between crimes
under general international law (which applied directly to individuals) and treaty crimes
(which normally applied only through national law). With respect to the former, Article
39(a) provided that an accused would not be held guilty of genocide, aggression, serious
violations of the laws and customs applicable in armed conflict, or crimes against (p.31)
humanity unless the act or omission in question constituted a crime under international
law at the time it occurred. It therefore did no more than apply the prohibition against
retrospective application of the criminal law. Provided the conduct was criminal under
international law at the time of occurrence, the ICC would be able to exercise
jurisdiction, even where national courts, because of a failure to incorporate the relevant
prohibitions into national law26 or because of national laws contrary to them, could not.

As a constraint on law-making, the principle of legality was relied upon by those seeking to
have the crimes within the jurisdiction of the Court defined expressly in the Statute,
rather than leaving the Court to interpret general international law. The rationale was that
general international law might not set out the elements of the offences with sufficient
precision, particularly where the crime in question was not defined by a general treaty
(as with aggression).27 The result was a move towards the vision, finally affirmed in the
Rome Statute, of a Court whose subject-matter jurisdiction is exhaustively defined in its
constitutive instrument. Motivated in part by legitimate uncertainty as to customary
international law's definitions of the offences in question, the move also resulted from the
awareness of governments that they were designing an institution that could possibly
bring indictments against even their highest-ranking officials. This awareness put a
premium on the clear delimitation of Court jurisdiction.

Responding to such pressures, the ILC replaced its earlier proposal to define the
Court's jurisdiction by reference to ‘crimes under general international law’28 with a list
specifying four such crimes (as well as treaty crimes).29 Despite acceding to Sixth
Committee criticisms on this point, the ILC maintained that the Statute should be

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‘primarily an adjectival and procedural instrument. It is not its function to define new
crimes. Nor is it the function of the Statute authoritatively to codify crimes under general
international law1.30 Thus, the Court would determine the exact contents of the (p.32)
listed prohibitions by resort to the relevant sources of international law. While the ILC
was willing to contemplate a gradual, judicially led process to determine the scope and
content of much of the ICC's legal substance and procedure, the subsequent process
saw the adoption of a more cautious approach, in which express and near-exhaustive
definitions of crimes, of defenses, and of most principles of criminal law were included in
the Statute itself. The ILC approach aimed to keep the task of establishing the ICC from
becoming bogged down in the elaboration of a de facto criminal code, thus taking
advantage of the delinking of the ICC from the Draft Code of Crimes Against the Peace
and Security of Mankind, with which it had been paired off and on since 1948.31 The ILC
may have been concerned in part that too firm a link between the Draft Code and the ICC
might prove fatal to the negotiation of the latter.

Concerns about the ILC approach were raised in the 1995 Ad Hoc Committee, where
the view was expressed that the principle of legality required the definition and not
merely the enumeration of crimes, and indeed that it required definitions of general
principles, defenses, and the applicable procedural and evidentiary law as well.32 At the
1996 Preparatory Committee, there was widespread agreement that ‘the crimes within
the jurisdiction of the Court should be defined with the clarity, precision and specificity
required for criminal law in accordance with the principle of legality (nullum crimen sine
lege) and that the fundamental principles of criminal law and the ‘general and most
important rules of procedure and evidence should be clearly set out in the Statute for
the same reason.33 Only by knowing the scope of the crimes and defenses, and the basic
principles involved, could States gauge the extent to which their leaders and agents
would be vulnerable to international prosecution.34

The 1996 Preparatory Committee text contained three proposals. The first changed little
of the content of the ILC Draft,35 but introduced the precursor to the present Article
22(3) and a stipulation that the more lenient law would (p.33) apply in case of an
amendment between the commission of the offence and final judgment. It also introduced
the requirement that any commission of a ‘core’ crime occur after the entry into force of
the Statute. The second and third proposals also contained this latter requirement.36 The
second proposal contained a further prohibition on the use of analogy in construing
punishable conduct or imposing sanctions.

With the moving of the provisions on jurisdiction ratione temporis into a separate
provision, the February 1997 Preparatory Committee text reflected a modified version
of the first 1996 proposal, with a two-pronged paragraph on non-retroactivity of core
crimes and treaty crimes, a bracketed paragraph prohibiting analogy, and a precursor to
paragraph 22(3).37 This version, the basis for the present Article 22, appeared without
significant changes in the text prepared at the inter-sessional Zutphen meeting in January
1998.38 The same wording appeared with insubstantial changes in the final Preparatory
Committee Draft that was placed before the Diplomatic Conference.39

Page 6 of 31

At the Diplomatic Conference, the basic structure devised for Article 22 by the
Preparatory Committee underwent little change. The suggested text of Per Saland, Chair
of the Working Group on General Principles of Criminal Law,40 added to the prohibition
on analogy in the second paragraph the requirement of strict construction and disallowed
the proscription of conduct not clearly prohibited by the Statute.41 A note pointed out
that the principle of legality would apply equally to all crimes within the jurisdiction of the
Court, including crimes against the integrity of justice.42 The Working Group Report
which followed 43 incorporated the strict construction requirement and, with the changes
made by the Drafting Committee subsequently,44 (p.34) resulted in the wording of the
Bureau's Draft Statute45 and finally of the adopted text. The Working Group, Drafting
Committee, and Bureau versions reflected the growing sense that treaty crimes would
not be included in the initial Statute, and so omitted provision for them.

(d) Article 22 of the Rome Statute, and the ‘treaty crime’/‘core crime’ distinction
As finally adopted, Article 22 sets out the core prohibition on retroactive application of the
criminal law, as well as two major corollaries of this prohibition, namely the rule of strict
construction (including here the forbidding of extensions by analogy of the definitions of
crimes) and the requirement that ambiguities be construed in favour of the suspect or
accused. It reads:

Article 22

Nullum crimen sine lege

1. A person shall not be criminally responsible under this Statute unless the
conduct in question constitutes, at the time it takes place, a crime within the
jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be
extended by analogy. In case of ambiguity, the definition shall be
interpreted in favour of the person being investigated, prosecuted or
convicted.
3. This article shall not affect the characterization of any conduct as criminal
under international law independently of this Statute.

‘Without law’ in the phrase ‘no crime without law’ does not of course mean that any law
whatsoever will suffice. It requires a law reasonably ascertainable in advance: hence the
corollaries to the principle expressly listed in Article 22. The rule of strict construction,
which is not free from uncertainty and has been irregularly applied in common law
jurisdictions,46 aims to ensure that criminal prohibitions are read to the advantage of the
person being investigated or prosecuted, in accordance only with their clear meaning and
with residual ambiguities resolved in favour of the defence. The prohibition on extending
the definitions of crimes by analogy similarly ensures that individuals will only be
convicted with respect to conduct making out the offence in question, not conduct making
out something similar or analogous to that offence. Each of these corollaries is based on
notions of fair warning to the subjects of potential criminal sanction and on an awareness

Page 7 of 31

of the inequality (p.35) of power between the individual and (under municipal law) the
State. Each has the ‘constitutional’ rationale of ensuring that the judiciary interprets and
applies, but does not make law.47

As embodied within Article 22, nullum crimen will act as a principle both of legislation and
of interpretation. Legislatively, the Article will remind States Parties of the need for care
in drafting amendments or additions to the crimes within the jurisdiction of the Court, as
the Court will have only such scope of jurisdiction as the reasonably ascertainable and
non-retroactive meaning of the words defining it. In this connection, it is interesting to
note that the Court is not given the power to strike down crimes or otherwise refrain
from giving effect to laws of indeterminate scope. There is no ‘Void for vagueness’
doctrine in the law of the ICC. This is not because the safeguards of Article 22 are
comprehensive: a strictly construed, non-retroactive law may still be vague. The absence
of any remedy for vagueness is presumably the result of both the general trend towards
limiting rather than expanding the power of the judges vis-a-vis States Parties, and the
feeling that States Parties as legislators could be trusted to delineate clearly the crimes
that might ultimately be charged against their own agents.48 The latter feeling is given
weight by the exhaustive attention paid to definitions during negotiations: a product, in
large measure, of nullum crimen arguments.

As already stated, the nullum crimen principle provides certainty to both individuals and
States. Individuals face the possibility of prosecution only with respect to the crimes that
States Parties have clearly and exhaustively provided for in the Statute. For their part,
States Parties are under an obligation to cooperate with the Court and to surrender
jurisdiction to it in accordance with the complementarity provisions only in clearly
delineated statutory circumstances. This is not because the provisions relating to the
obligation to cooperate (for example) are subject to the rule of strict construction, but
because such provisions will only come into play when crimes within the jurisdiction of the
Court, which are so subject, are being addressed. It was largely because of this ability to
clarify and to limit the obligations of States, and because of the likelihood that many
defendants will be State agents, that the principle of legality was incorporated into the
Statute as explicitly as it was.

As a result of its codification, one must now carefully distinguish the principle of nullum
crimen sine lege as it exists under general international law from its manifestation in
Article 22 of the Statute. As to the former, it will remain the case that individual
responsibility arises directly under international law as it did before the entry into force
of the Statute, and that the (p.36) principle of legality, as an principle of international law
apart from Article 22, is satisfied with respect to such crimes as they exist outside the
Statute. The international principle is broader in some respects than that inscribed in
Article 22. One commentator asserts that it encompasses a broader allowance for
prohibitions by analogy than do most domestic systems and is, in general, less rigid than
its Article 22 manifestation.49 The international principle is adapted to the much less
systematic arena of general international law.50 One result is that, anticipating indirect
(national) rather than direct (international) enforcement, the principle as it exists at

Page 8 of 31

international law relies on supplementation by national law, and consequently does not
require exhaustive international provision of applicable principles of procedure and
evidence. In the case of the statute of an international court or tribunal, the principle may
call for just such express provision.51

Should the Statute be amended at some future date to incorporate crimes set out in
international treaties (such as drug trafficking or terrorist acts), nullum crimen as a
principle of general international law may be interpreted so as to lead to the imposition of
special requirements with respect to such crimes. Such requirements may then lead to
the amendment of Article 22.

The ILC Draft adapted nullum crimen to the particular needs of treaty crimes in its Article
39(b). This provided that no accused would be held guilty of one of these crimes unless
the treaty in question was ‘applicable’ to his or her conduct at the time of the relevant act
or omission. Thus, a specification of applicability was added to the prohibition on
retrospectivity that Article 39(b) shared with Article 39(a). The ILC understood that for
the nullum crimen principle to be satisfied in the case of treaty crimes, the conduct in
question would not only have to come within the words of the treaty's prohibition, but
the treaty itself would have to apply to the conduct of the accused through the relevant
State(s) being party to the instrument and, crucially, through the prohibition having been
made a part of the law of the relevant State Party.52

(p.37) This acknowledges that not all treaties calling for the prohibition of certain
conduct also entail the internationally enforceable criminal responsibility of individuals,
absent some form of incorporation of the international agreement into national law.53
Agreements to prohibit conduct are relatively common between States, with the parties
agreeing to penalize certain behaviour in their national legal systems and otherwise to
cooperate in its suppression (see pp. 12-14 above). Such ‘suppression conventions’
create law of a different sort from prohibitions entailing individual responsibility directly
under international law. With respect to treaty crimes, the ILC Draft intended in essence
to provide international enforcement for national prohibitions. Under this vision, States
would agree to the ICC as a supplementary enforcement mechanism, with no intention of
creating international responsibility as such. Where the latter exists- for example, in the
case of the ‘core crimes’ or ‘international crimes sensu stricto’ which originated in the
Nuremberg Charter 54 —there is no need for the prohibition to be made applicable to the
accused under national law. But such a requirement does exist for many conventions
including, to name but one, the 1988 Vienna Convention on Narcotic Drugs.55

Thus conduct falling within a treaty prohibition may not entail individual criminal
responsibility if the prohibition did not apply as law to the accused. The Court would have
to decide in a given case whether the treaty in question was applicable to the individual.
There is no single means by which international agreements come so to apply. Ratification
and the passage of implementing legislation carrying the prohibition into national law is
one, but not the only, method. A State might not be party to a treaty or, being party,
might not have made it part of domestic law.56 It may be applicable to an accused on
more than one basis of jurisdiction (national, territorial, etc.) and the Court would have to

Page 9 of 31

examine each case individually to construe the intention (p.38) of the drafters. A
relevant question is whether the parties to the treaty, in concluding it, intended that the
prohibition in question apply directly to individuals, or whether it was intended only to
entail State responsibility (i.e. for any failure to prohibit the conduct under national law).57

Article 22 is better suited in its present form to crimes under international law in the
strict sense, that is, to the ‘core crimes’ now listed in Article 5 of the Statute. In the event
that treaty crimes are incorporated into the Statute, Article 22 will have to be amended
accordingly to give expression to the requirement that the treaty be ‘applicable’ to the
conduct of the accused as the ILC, the Preparatory Committee, and the Diplomatic
Conference all foresaw. Article 21 (applicable law) may also have to be amended to
provide an expanded role to national law where treaty crimes are concerned.

To do otherwise—to amend the Rome Statute, to include e.g. terrorism or drug

trafficking, without modifying the terms on which the Court holds an individual criminally
responsible—would be to assume that the treaty crime had risen to the level at which
responsibility is imposed directly upon individuals as a result of customary international
law. A treaty prohibition may become so applicable to the individual through the action of
custom or through the application of ‘general principles of law’; nonetheless, it should not
be assumed lightly. Rather, the determination as to which of the many norms of
international law, proscribing conduct of one sort or another, have joined the ‘core
crimes’ would ideally be guided by a test distinguishing when those prohibitions impose
international responsibility directly on the individual, and when they rely upon enactment
through national law. In this vein, Meron writes:

whether international law creates individual criminal responsibility depends on such

considerations as whether the prohibitory norm in question, which may be
conventional or customary, is directed to individuals, whether the prohibition is
unequivocal in character, the gravity of the act, and the interests of the
international community. Those factors are all relevant for determining the
criminality of various acts.58

This assessment relies, of course, on judgements as to ‘gravity’ and ‘interests’, which are
inherently subjective.59 Nonetheless, this type of normative, multi-issue assessment
might prove more useful than striving for quasi-algebraic exactness in isolating the factors
involved.60 Among ‘the interests of the international (p.39) community’ to which Meron
refers, it is argued below that ‘shocking the conscience of humankind’, disrupting
‘international peace and security’, and, related to these, ‘State action or policy’ are key
factors upon which international criminalization rests. Such factors, however, can never
be exhaustively defined and can, at best, provide only very tentative benchmarks by
which to assess developments, as their deployment by the international community is
subject to a range of circumstantial political and other forces. Because the judgement of
States, individually and collectively, is subject to diverse extra-legal influences, the
process of international criminalization will always be less orderly than its conceptual
formulation. It is ultimately States that determine what constitutes an international crime,
just as they are the ultimate arbiter of what comprises a ‘threat to international peace and

Page 10 of 31

security’, and what ‘shocks the conscience of humanity’. This potential circularity finds its
limit in the pressure of legitimation applied between States and applied to States ‘from
below’ by civil society.

(e) Is ‘terrorism’ a crime under international law?

‘Terrorism’ is not treated in the present work as a ‘core crime’ under international law
for the simple reason that this author does not believe that it currently gives rise to
individual responsibility directly under international law. States proposed to include
‘terrorism’ within the Rome Statute, and a definition was discussed in the process leading
to adoption of the Statute.61 The only result was the commitment made, in the Final Act of
the Diplomatic Conference, to re-consider the definition and inclusion of this crime, along
with that of drug trafficking, at the first Rome Statute Review Conference.62

Rather than being a crime under international law, ‘terrorism’ is best viewed, at least at
the present stage of development of international law, as a catch-all category for a
number of crimes under suppression conventions. These crimes (hostage taking, aircraft
sabotage, etc.) are punishable, (p.40) according to the applicable treaties, only under
national law.63 While the international response to the destruction of the World Trade
Center and related attacks within the United States on 11 September 2001 has made
‘terrorism’ the object of unprecedented world wide attention and condemnation,
attempts to define a distinct crime with this name have been no more successful after 11
September than they were before.64 Recent international instruments,65 as well as
domestic laws passed since 11 September, indicate that a comprehensive definition of
‘terrorism’ may yet emerge, albeit with a breadth of definition and a focus on the
purported intent of perpetrators that raise real concerns about the definition's potential
use against legitimate dissidents; it remains to be shown that the term can be applied
impartially.66 For the present, it appears adequate that genocide, war crimes, and crimes
against humanity define most of the acts that a definition of ‘terrorism’ might
encompass.67 The only acts not covered by these crimes are those not committed in
armed conflict, as part of a widespread or systematic attack on a civlian population, or
with intent to destroy an identifiable group. Given the narrowness of the remaining ‘gap’
(if such it is) the drive to define a crime of terrorism is better viewed as politically rather
than legally driven.

(p.41) 2. JUS COGENS, SOVEREIGNTY AND THE INTERNATIONAL INTERESTS

UNDERLYING INTERNATIONAL CRIMINAL LAW

(a) Jus cogens and sovereignty

The core crimes of international criminal law are often cited as part of jus cogens, or
peremptory norms of international law.68 The sources, nature, and implications of the
concepts of jus cogens and obligations erga omnes have been much debated.69 As will be
pointed out in relation to universal jurisdiction, the consequences sometimes ascribed to
the jus cogens character of international crimes does not necessarily correspond to the
reality of State behaviour in the contemporary international system.70 Nonetheless, the
(p.42) concept of jus cogens may be helpful as showing a coherent view, at least at the

Page 11 of 31

doctrinal level, of the legal stature and consequences of these crimes.

The characterization of the core crimes of international criminal law as jus cogens has
been conceived as an indication of how these crimes inhabit the ‘constitutional’ level of the
international system, or of an emerging international system. Thomas Franck has
articulated the idea of fundamental rules such as those underlying international criminal
law as forming conditions on membership in the international community that, contrary to
the ordinary practice of international law, are not themselves subject to the specific
consent of States, except in the very act of accepting membership in the community itself.
According to Franck, such ‘associative’ norms are part of an ‘ultimate canon’, acting as
preconditions to the very recognition of sovereignty that constitutes a given State as a
participant in the international community.71

The consistency of this idea with what was done at Nuremberg should be noted. At and
parallel to Nuremberg, it was the interest of the Allies in preserving peace and security—
an interest seen with unparalleled clarity after the catastrophic destruction of the War—
that justified overriding previously sacrosanct doctrines of immunity and sovereignty.
This broadening of international criminal law represented a movement within international
law parallel to that which gave birth to the modern system of human rights protection,
and which arose out of the same historical circumstances. The importance of Nuremberg
therefore extends beyond the confines of international criminal law to underpin the
relationship between sovereignty and the international system in the post-War era:

The principles of Nuremberg were not only the victory of justice over the
intolerable fiction of the unassailable state, as well as an affirmation of the
supremacy of a higher positive law; they were also the base upon which a positive
international law of human rights could be built, namely, the identification of duties
for those sharing in the exercise of power to respect, at least to a minimal extent,
the dignity of those subject to that power.72

The imposition of individual responsibility would, it was hoped, provide a moral vindication
and a practical support for the maintenance of international order. By marking the point at
which sovereignty gives way to the (p.43) prerogatives of the international community,
international criminal law's affirmation of the underlying interests of that community
confirmed respect for these interests as a minimum condition of membership in
international society.73

The idea that sovereignty does not arise in a vacuum, but is constituted by the
recognition of the international community, which makes its recognition conditional on
certain standards, has become increasingly accepted in the fields of international law and
international relations.74 Such limits are held always to have been imposed by the
community on the recognition of its members, but to be subject to development over
time. From this perspective, crimes under international law can be understood as a
formal limit to a State's legitimate exercise of its sovereignty, and so in principle justify a
range of international responses (subject to the rest of international law, including that
relating to the use of force).

Page 12 of 31

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osteria in the Via Appia Nuova. Ahlin, Heggen, Gram, and Miss Palm,
the Danish nurse, made up the party.
From the tram terminus they walked two and two along the sunny,
white road. Spring was in the air, the brown Campagna had a
greyish-green tinge; the daisies, which had been blossoming more
or less all the winter, began to spread all over in silvery spots, and
the impatient clusters of tender green shoots on the elder bushes
along the fences had grown.
The larks hung trembling high up in the blue-white sky, and there
was a haze over the city and the ugly, red blocks of houses it had
sprinkled over the plain. Beyond the massive arches of the canal, the
Alban mountains, with small white villages, showed faintly through
the mist.
Jenny walked in front with Gram, who carried her grey dust-coat.
She was radiantly beautiful in a black silk dress; he had never seen
her in anything but her grey dress or coat and skirt. It seemed to
him almost as if he walked with a new and strange woman. Her
waist was so small in the shiny black material that her form above it
seemed round and supple; the bodice was cut open in a deep
square in front, and her hair and skin were dazzlingly fair. She wore
a big black hat, in which he had seen her before, but without
specially noticing it. Even her pink beads looked quite different with
the black dress.
They ate out of doors in the sunshine under the vine, which threw
a shadow in the form of a fine bluish net over the tablecloth. Miss
Palm and Heggen wanted to decorate the table with daisies; the
macaroni was quite ready, but the others had to wait until they came
back with the decorations. The food was good and the wine was
excellent; Cesca had brought fruit, and coffee, which she was going
to make herself, to make sure it should be good. After dinner Miss
Palm and Heggen investigated marble reliefs and inscriptions that
had been found on the site and fitted into the masonry of the house.
After a while they disappeared round a corner. Ahlin remained sitting
at the table smoking, his eyes half shut against the glare.
The osteria lay at the foot of a small hill. Gram and Jenny walked
up the slope at random. She picked small wild flowers that grew in
the yellow earth.
“There are masses of these at Monte Testaccio. Have you been
there, Mr. Gram?”
“Yes, several times. I went there yesterday to have a look at the
Protestant cemetery. The camelia trees are covered with blossoms,
and in the old part I found anemones in the grass.”
“Yes, they are out now. Somewhere at Via Cassia, beyond Ponte
Molle, there are lots of them. Gunnar gave me some almond
blossoms this morning; they have them already at the Spanish
stairs, but I daresay they are forced.”
They reached the top and began strolling about. Jenny walked
with her eyes on the ground; the short grass was springing up
everywhere, and variegated thistle-leaves and some big, silver-grey
ones were basking in the sun. They walked towards a solitary wall,
which rose out of a mound of gravel; the Campagna extended
around them in every direction, grey-green below the light spring
skies and the warbling larks. Its boundaries were lost in the haze of
the sun. The city beyond them seemed a mirage only, the mountains
and the clouds melted together, and the yellow arches of the canal
appeared, only to vanish again in the mist. The countless ruins were
reduced to small, glistening pieces of walls, strewn about on the
green, and pines and eucalyptus trees by the red or ochre houses
stood solitary and dark on this fine day of early spring.
“Do you remember the first morning I was here, Miss Winge? I
imagined I was disappointed, and I believed it to be because I had
longed so much and dreamt so much that everything I was going to
see would be colourless and poor, compared to my dreams. Have
you noticed how on a summer day, when you lie in the sun with your
eyes closed, all colours seem grey and faded when you first open
them? It is because the eyes are weakened by not being used and
cannot at once grasp the complexity of the colours as they really
are; the first impression is incomplete and poor. Do you understand
what I mean?”
Jenny nodded.
“It was my case in the beginning here. I was overwhelmed by
Rome. Then I saw you passing by, tall and fair and a stranger. I did
not pay any attention to Francesca then—not till we were in the
tavern. When I sat there with you, who were all strange to me—it
was really the first time such a thing happened to me. Up till then
my association with strangers had been only an occasional meeting
on my way between school and home. I was confused; it seemed
impossible to speak to people. I almost longed for home and all it
meant—and I longed for Rome as I knew it from hearsay and from
pictures. I thought I could not settle down to anything but look at
pictures made by others—read books other men had written—made
the best use of the work of others and live in a world of fiction. I felt
desperately lonely among you. You once said something about being
lonely; I understand now what you meant.
“Do you see that tower over there? I went there yesterday. It is
the remnant of a fortress from the Middle Ages, from feudal times.
There are a good many of them in the city and round about. You see
sometimes an almost windowless wall built in between the houses in
a street. It is a bit of the Rome of the robber barons. We know
comparatively little about that time, but I am very interested in it at
present. I find in the records names of dead people, of whom
sometimes nothing is known but their names, and I long to know
more about them. I dream of Rome in the Middle Ages, when they
fought in the street with fierce cries, and the town was full of
robber-castles, where their womenfolk were shut up—daughters of
those wild beasts and with their blood in their veins. Sometimes they
broke away from their prison and mixed in the life, such as it was,
inside the red-black walls. We know so little about those times, and
the German professors do not take great interest in them, because
they cannot be remade so as to convey abstract ideas; they are
simply naked facts.
“What a mighty current of life has washed over this country!—
breaking into billows round every spot with town and castle on it.
And yet the mountains rise above it bare and desolate. Think of the
endless number of ruins here in the Campagna only; of the stacks of
books written on the history of Italy—and on the history of the
whole world for that matter—and think of the hosts of dead people
we know. Yet the result of all these waves of life, rolling one after
the other, is very, very small. It is all so wonderful!
“I have talked to you so often and you have talked to me; yet I
don’t really know you. You are just as much a mystery to me as that
tower.—I wish you could see how your hair shines where you are
standing now. It is glorious.
“Has it ever struck you that you have never seen your face? Only
the reflection of it in the glass. We can never see what our face
looks like when we sleep or shut our eyes—isn’t it odd? It was my
birthday the day I met you; today it is yours. Are you glad to be
twenty-eight, you who think that every year completed is a gain?”
“I did not say that. I said that you may have had so much to go
through the first twenty-five years of your life that you are glad they
are over.”
“And now?”
“Now....”
“Yes; do you know exactly what you want to attain during the next
year—what use you are going to make of it? Life seems to me so
overwhelmingly rich in possibilities that even you, with all your
strength, cannot avail yourself of them. Does it ever occur to you,
and does it make you sad, Jenny?”
She only smiled in answer, and looked down. She threw the end of
her cigarette on the ground and put her foot on it; her white ankle
showed through the thin black stocking. She followed with her eyes
a pack of sheep running down the opposite slope.
“We are forgetting the coffee, Mr. Gram—I am sure they are
waiting for us.”
They returned to the osteria in silence; on the slope, which
stretched right down to where they had been lunching, they noticed
that Ahlin was lying forward over the table, his head on his arms.
Francesca in her bright green gown bent over him, her arms round
his neck, trying to lift his head.
“Oh, don’t, Lennart! Don’t cry. I will love you. I will marry you—do
you hear?—but you must not cry like that. I will marry you, and I
think I can be fond of you, only don’t be so miserable.”
Ahlin sobbed: “No, no—not if you don’t love me, Cesca; I don’t
want you to....”
Jenny turned and went back along the slope. Gram noticed that
she flushed a deep red down to her neck. A path took them down by
the other side of the house into the orchard. Heggen and Miss Palm
were chasing each other round the little fountain, splashing each
other with water. Miss Palm shrieked with laughter. Helge saw the
colour again mount to Jenny’s face and neck as he walked behind
her between the vegetable beds. Heggen and Miss Palm had made
peace.
“The same old round,” said Helge; “take your partners.”
Jenny nodded, with the shadow of a smile.
The atmosphere at the coffee-table was somewhat strained. Miss
Palm alone was in good spirits. Francesca tried to make conversation
while they were sipping their liqueurs, and, as soon as she decently
could, proposed that they should go for a walk.
The three couples made for the Campagna, the distance between
them increasing, until they lost sight of one another altogether
among the hills. Jenny walked with Gram.
“Where are we going really?” she said.
“We might go to the Egeria grotto, for instance.”
The grotto lay in quite an opposite direction to the one chosen by
the others. They started to walk across the scorched slopes to the
Bosco Sacro, where the ancient cork trees stretched their dark
foliage to the burning sun.
“I ought to have put on my hat,” said Jenny, passing a hand over
her hair. The ground of the sacred grove was covered with bits of
paper and other litter; on the stump of a tree near the edge two
ladies were seated, doing crochet work, and some little English boys
played hide-and-seek behind the massive trunks. Jenny and Gram
turned out of the grove and walked down the slope towards the ruin.
“Is it worth while going down?” said Jenny, and without waiting
for an answer, sat down on the slope.
“No; let us stay here,” and Helge lay down at her feet on the
short, dry grass, took off his hat, and, steadying himself on his
elbow, looked up at her in silence.
“How old is she?” he asked suddenly. “I mean Cesca.”
“Twenty-six.” She sat looking at the view in front of her.
“I am not sorry,” he said quietly. “You have noticed it, I daresay. A
month ago I might have.... She was so sweet to me once, so kind
and confidential, and I was not used to that kind of thing. I took it
as—well, as l’invitation à la valse, you see, but now ... I still think
she is sweet, but I don’t mind in the least if she dances with
somebody else.”
He was lying looking at her: “I believe it is you, Jenny, I am in love
with,” he said suddenly.
She turned half-way towards him, with a faint smile, and shook
her head.
“Yes,” said Helge firmly; “I think so. I don’t know for certain, for I
have never been in love before—I know that now—although I have
been engaged once.” He smiled to himself. “It was one of my
blunders in the old foolish days.
“This, I am sure, is love. It was you, Jenny, I saw that evening—
not her. I noticed you already in the afternoon when you crossed the
Corso. I stood there thinking that life was new, full of adventure,
and just then you passed me, fair and slender, and stranger. Later,
when I had wandered about in this foreign town, I met you again. I
also noticed Cesca, of course, and no wonder I was a little flustered
for a moment, but it was you I saw first. And now we are sitting
here together—we two.”
Her hand was close to him as she sat leaning on it; suddenly he
stroked it—and she drew it away.
“You are not cross with me, are you? It is really nothing to be
cross about. Why should I not tell you that I believe I am in love
with you? I could not resist touching your hand—I wanted to feel
that it was real, for it seems to me so wonderful that you are sitting
here. I do not really know you, though we have talked about many
things. I know that you are clever, level-headed, and energetic—and
good and truthful, but I knew that the moment I saw you and heard
your voice. I don’t know any more about you now, but there is of
course a great deal more to learn—and perhaps I shall never learn
it. But I can see for myself, for instance, that your silk skirt is
glowing hot, and that if I laid my face in your lap I should burn
myself.”
She made an involuntary movement with her hand across her lap.
“It attracts the sun; there are sparks in your hair, and the sunrays
filter through your eyes. Your mouth is quite transparent; it looks like
a raspberry in the sun.”
She smiled, looking a little embarrassed.
“Will you give me a kiss?” he said suddenly.
“‘L’invitation à la valse?’” She smiled lightly.
“I don’t know—but you cannot be cross with me because I ask
you for one single little kiss—on a day like this. I am only telling you
what I am longing for, and, after all, why could you not do it?”
She did not move.
“Is there any reason why not?—I shall not try to kiss you, but I
cannot see why you should not bend down for a second and give me
a tiny little kiss as you sit there with the sun right on your lips. It is
no more to you than when you pat a bambino on the head and give
him a soldo. It is nothing to you, Jenny, and to me it is all I wish for
—just this moment I long for it so much,” he said, smiling.
She bent suddenly down and kissed him. Only for a second did he
feel her hair and lips brush his cheek, and he saw the movement of
her body under the black silk as she bent down and rose again. Her
face, he noticed, which was smiling serenely as she kissed him, now
looked embarrassed, almost frightened. He did not move, but lay
still, musing contentedly in the sunshine. She became herself again.
“There, you see,” he said at last laughingly, “your mouth is exactly
as before; the sun is shining on your lips, right into the blood. It was
nothing to you—and I am so happy. You must not believe that I
want you to think of me—I only want you to let me think of you,
while you may sit and think of anything in the world. Others may
dance—to me this is much better—if only I may look at you.”
They were both silent. Jenny sat with her face turned away,
looking at the Campagna bathing in the sun.
As they walked back to the osteria, Helge chatted merrily about all
sorts of things, telling her about the learned Germans he had met in
the course of his work. Jenny stole a glance at him now and again;
he used not to be like that, so free and easy. He was really
handsome as he walked, looking straight ahead, and his light brown
eyes were radiant like amber in the sun.

VIII
Jenny did not light the lamp when she got in, but, putting on an
evening cloak in the dark, she went out to sit on the balcony. The
night was cold, the skies stretched over the roofs like black velvet,
covered with glittering stars. He had said when they parted: “I may
come up tomorrow and ask you to go with me for a trip in the
Campagna?”
Well, nothing had really happened—she had merely given him a
kiss, but it was the first kiss she had ever given to a man, and it had
not happened in the way she had expected. It was almost a joke—
kissing him like that. She was not in love with him, yet she had
kissed him. She had hesitated and thought: I have never kissed, and
then a strange sensation of indifference and soft languor stole over
her. Why be so ridiculously solemn about it?—and she did it—why
not? It did not matter; he had asked for it quite candidly, because he
thought he was in love with her and the sun was bright. He had not
asked her to love him, and he had made no further advances; he
had not claimed anything, only that one little kiss, and she had given
it without a word. It was altogether beautiful; she had done nothing
to be ashamed of.
She was twenty-eight, and she would not deny to herself that she
longed to love and to be loved by a man, to nestle in his arms,
young, healthy, and good to look upon as she was. Her blood was
hot and she was yearning, but she had eyes that saw clearly, and
she had never lied to herself. She had met men now and then and
had asked herself: Is he the man?—one or two of them she might
have loved if she had tried, if she could have closed her eyes to the
one little thing that always was there, making her feel an opposition
which she had to master. She had not met any one whom she felt
compelled to love, so had not risked it. Cesca would let one man
after another kiss and fondle her, and it made no difference; it
merely grazed her lips and skin. Not even Hans Hermann, whom she
loved, could warm her strangely thin, chilly blood.
She herself was different; her blood was red and hot, and the joy
she coveted should be fiery, consuming, but spotlessly clean. She
would be loyal and true to the man to whom she gave herself, but
he must know how to take her wholly, to possess her body and soul,
so that not a single possibility in her would be wasted or left
neglected in some corner of her soul—to decay and fester. No, she
dared not, would not be reckless—not she. Yet she could understand
those who did not trouble their heads about such things; who did
not subdue one instinct and call it bad, and give in to another, calling
it good, or renounce all the cheap little joys of life, saving up all for
the great joy that after all might never come. She was not so sure
herself that her road led to the goal—not sure enough not to be
impressed sometimes by people who quite cynically admitted that
they had no road, no goal, and that to have ideals and morals was
like trying to catch the moon on the water.
Once, many years ago, a man had asked her one night to go with
him to his rooms, much in the same way as he would have offered
to take her out to tea. It was no temptation to her—she knew,
besides, that her mother was waiting up for her, which made it quite
impossible. She knew the man very slightly, did not like him, and
was cross because he was to see her home; and it was not because
her senses were stirred, but from purely mental curiosity, that she
turned the question for a moment over in her mind: what if she did?
—what would be her feelings if she threw overboard will, self-
control, and her old faith? A voluptuously exciting shiver ran through
her at the thought. Was that kind of life more pleasant than her
own? She was not pleased with hers that evening; she had again sat
watching those who danced, she had tasted the wine and had
listened to the music, and she had felt the dreadful loneliness of
being young and not knowing how to dance or how to speak the
language of the other young people and share their laughter, but she
had tried to smile and look and talk as if she enjoyed it. And when
she walked home in the icy-cold spring night she knew that at eight
o’clock next morning she had to be at the school to act as substitute
for one of the teachers. She was working that time at her big
picture, but everything she did seemed dull and meaningless, and at
six o’clock she had to go home and teach mathematics to her private
pupils. She was very hard worked; she sometimes felt her nerves
strained to the utmost, and did not know how she would be able to
carry on till the long vacation.
For an instant she felt herself drawn by the man’s cynicism—or
thought she was—but she smiled at him and said “no” in the same
dry and direct way that he had asked her. He was a fool, after all, for
he began preaching to her—first commonplace flattery, then
sentimental nonsense about youth and spring, the right and freedom
of passion, and the gospel of the flesh, until she simply laughed at
him and hailed a passing cab.
And now—she was old enough now to understand those who
brutally refused to deny themselves anything in life—who simply
gave in and drifted, but the greenhorns, who boasted of having a
mission to fill, when they enjoyed life after their fashion, the
champions of the eternal rights of nature, who did not trouble to
brush their teeth or clean their nails—they could not impose on her.
She would be true to her own old moral code, which aimed at
truth and self-control, and originated from the time she was sent to
school. She was not like the other children; even her clothes were
unlike theirs, and her little soul was very, very different. She lived
with her mother, who had been left a widow at the age of twenty,
and had nothing in the world but her little daughter. Her father had
died before she was old enough to remember him. He was in his
grave and in heaven, but in reality he lived with them, for his picture
hung above the piano and heard and saw everything they said and
did. Her mother spoke of him constantly, telling her what he thought
of everything and what Jenny might or must not do because of
father. Jenny spoke of him as if she knew him, and at night, in bed,
she spoke to him, and to God as one who was always with father
and agreed with him about everything.
She remembered her first day at school, and smiled at the
recollection. Her mother had taught her herself until she was eight
years old. She used to explain things to Jenny by comparison; a
cape, for instance, was likened to a small point near the town, which
Jenny knew well, so when the teacher asked her in the geography
lesson to name some Norwegian capes, she answered without
hesitation: “Naesodden.” The teacher smiled and all the pupils
laughed. “Signe,” said the teacher, and another girl stood up briskly
to answer: “Nordkap, Lindesnaes, Stat.” Jenny smiled in a superior
way, not heeding their laughter. She had never had child friends, and
she never made any.
She had smiled indifferently at their sneering and teasing, but a
quiet, implacable hatred grew in her towards the other children, who
to her mind formed one compact mass, a many-headed savage
beast. The consuming rage which filled her when they tormented
her was always hidden behind a scornful, indifferent smile. Once she
had nearly cried her eyes out with rage and misery, and when on
one or two occasions she had lost control of herself, she had seen
their triumph. Only by putting on an air of placid, irritating
indifference could she hold her own against them.
In the upper form she made friends with one or two girls; she was
then at an age when no child can bear to be unlike others, and she
tried to copy them. These friendships, however, did not give her
much joy. She remembered how they made fun of her when they
discovered that she played with dolls. She disowned her beloved
children and said they belonged to her little sisters.
There was a time when she wanted to go on the stage. She and
her friends were stage-struck; they sold their school books and their
confirmation brooches to buy tickets, and night after night they went
to the gallery of the theatre. One day she told her friends how she
would act a certain part that interested them. They burst out
laughing; they had always known she was conceited, but not that
she was a megalomaniac. Did she really believe that she could
become an artist, she, who could not even dance? It would be a
pretty sight indeed to see her walk up and down the stage with that
tall, stiff skeleton of hers.
No, she could not dance. When she was quite a child her mother
used to play to her, and she twisted and turned, tripped and
curtseyed as she liked, and her mother called her a little linnet. She
thought of her first party, how she had arrived full of anticipation,
happy in a new white dress which her mother had made after an old
English picture. She remembered how she stiffened all over when
she began to dance. That stiffness never quite left her; when she
tried to learn dancing by herself her soft, slim body became stiff as a
poker. She was no good at it. She was very anxious to go to a
dancing class, but it never came to anything.
She laughed at the recollection of her school friends. She had met
two of them at the exhibition at home, the first time she had got one
of her pictures hung and a few lines of praise in the papers. She was
with some other artists—Heggen was one of them—when they came
up to congratulate her: “Didn’t we always say you’d be an artist? We
were all sure that some day we should hear more of you.”
She had smiled: “Yes, Ella; so was I.”
Lonely! She had been lonely ever since her mother met Mr. Berner,
who worked with her in the same office. She was about ten at that
time, but she understood at once that her dead father had departed
from their home. His picture was still hanging there, but he was
gone, and it dawned upon her what death really meant. The dead
existed only in the memory of others, who had the power
conditionally to end their poor shadow life—and they were gone for
ever.
She understood why her mother became young and pretty and
happy again; she noticed the expression on her face when Berner
rang the bell. She was allowed to stay in the room and listen to their
talk; it was never about things the child could not hear, and they did
not send her out of the room when they were together in her home.
In spite of the jealousy in her little heart, she understood that there
were many things a grown-up mother could not speak about with a
little girl, and a strong feeling of justice developed in her. She did not
wish to be angry with her mother, but it hurt very much all the
same.
She was too proud to show it, and when her mother in moments
of self-reproach suddenly overwhelmed her child with tenderness
and care, she remained cold and passive. She said not a word when
her mother wanted her to call Berner father and said how fond he
was of her. In the night she tried to speak to her own father, with a
passionate longing to keep him alive, but she felt she could not do it
alone; she knew him only through her mother. By and by Jens Winge
became dead to her too, and since he had been the centre of her
conception of God, and heaven, and eternal life, all these faded
away with his picture. She remembered quite distinctly how, at
thirteen, she had listened to the Scriptures at school without
believing anything, and because the others in her form believed in
God and were afraid of the devil, and yet were cowardly and cruel,
and mean and common—in her opinion at least—religion became to
her something despicable, cowardly, something associated with
them.
She got to like Nils Berner against her will; she preferred him
almost to her mother in the first period of their married life. He
claimed no authority over his step-daughter, but by his wise and
kind, frank ways he won her over. She was the child of the woman
he loved—that was reason enough for him to be fond of Jenny.
She had much to thank her stepfather for; how much, she had not
understood till now. He had fought and conquered much that was
distorted and morbid in her. When she lived alone with her mother in
the hothouse air of tenderness, care, and dreams, she had been a
nervous child, afraid of dogs, of trams, of matches—afraid of
everything—and she was sensitive to bodily pain. Her mother dared
scarcely let her go alone to school.
The first thing Berner did was to take the girl with him to the
woods; Sunday after Sunday they went to Nordmarken, in broiling
sunshine or pouring rain, in the thaws of spring, and in winter on
ski. Jenny, who was used to conceal her feelings, tried not to show
how tired and nervous she was, and after a time she did not feel it.
Berner taught her to use map and compass, he talked to her as to
a friend, and he taught her to observe the signs of wind and clouds,
which brought about a change in the weather, and to reckon time
and distance by the sun. He made her familiar with animals and
plants—root and stalk, leaf and bud, blossom and fruit. Her sketch-
book and his camera were always in their knapsack.
All the kindness and devotion her stepfather had put into this work
of education she appreciated now for the first time—for he was a
well-known ski-runner and mountaineer in the Jotunheim and
Nordlandstinderne.
He had promised to take her there too. The summer when she
was fifteen, she went with him grouse-shooting. Her mother could
not go with them: she was expecting the little brother by that time.
They stayed in a solitary mountain saeter below Rondane. She
had never been so happy in all her life as when she awoke in her
tiny bunk. She hurried out to make coffee for her stepfather, and he
took her to the Ronde peaks, into the Styg mountains, and on
fishing tours; and they went down together to the valley for
provisions. When he was out shooting, she bathed in the cold
mountain brooks and went for endless walks on the moors; or sat in
the porch knitting and dreaming, weaving romances about a fair
saeter maiden and a huntsman, who was very like Berner, but young
and handsome, and who could tell about hunting and
mountaineering like Berner used to do in the evening by the fire.
And he should promise to give her a gun and take her up to
unknown mountain-tops.
She remembered how tormented, ashamed, and unhappy she was
when she knew that her mother was going to have a baby. She tried
to hide her thoughts from her mother, but she knew she only partly
succeeded. Berner’s anxiety about his wife as the time drew near
brought a change in her feelings. He spoke to her about it: “I am so
afraid, Jenny, because I love your mother so dearly,” and he told her
that when she herself was born her mother was very ill. The belief
that her mother’s condition was unclean and unnatural left her when
he spoke, but with it went also the feeling that the bond between
her mother and herself was mysterious, supernatural. It became
everyday, commonplace; she had been born and her mother had
suffered; she had been small and needed her mother, and because
of that her mother had loved her. Another little child was soon
coming, who needed her mother more. Jenny felt she had grown up
all at once; she sympathized with her mother as well as with Berner,
and comforted him in a precocious way: “It will pass off quite well; it
always does, you know. They scarcely ever die of it.”
When she saw her mother with the new child, who took all her
time and care, Jenny felt very forlorn, and she cried, but by and by
she became very fond of the baby, especially when little Ingeborg
was over a year old and was the sweetest, darkest little gipsy doll
you could imagine—and her mother had another tiny infant.
She had never considered the Berner children as her sisters; they
were exactly like their father. Her relationship to them was more that
of an aunt—she felt herself almost as an elderly, sensible aunt to her
mother as well as to the children.
When the accident happened her mother was younger and weaker
than she. Mrs. Winge had become young again in her second happy
marriage, and she was a little tired and worn after her three
confinements in the comparatively short time. Nils was only five
months old when his father died.
Berner fell one summer when out mountaineering, and was killed
on the spot. Jenny was then sixteen. Her mother’s grief was
boundless; she had loved her husband and been worshipped by him.
Jenny tried to help her as much as she could. How deeply she
herself mourned her stepfather she never told anybody; she knew
that she had lost the best friend she had ever had.
When she had finished school she began to take drawing lessons,
and helped her mother in the house. Berner had always been
interested in her drawings; he had been the first to teach her
perspective and such things—all he knew about it himself. He had
believed she had some talent.
They could not afford to keep his dog. The two little puppies were
sold, and Mrs. Berner thought Leddy ought to be sold too—it cost so
much to feed her. But Jenny objected; nobody should have the dog,
which was mourning for its master, if they could not keep it, and she
had her way. She took the dog herself one evening to Mr. Iversnaes,
Berner’s friend, who shot and buried Leddy.
What Berner had been to her—a friend and a comrade—she tried
to be to his children. As the two girls grew up, the relations between
them and Jenny became less intimate, though still quite friendly, but
the great difference in age made a breach between them which
Jenny never tried to cross.
They were now quite nice little girls in their teens, with anæmia,
small flirtations, friendships, parties, and all the rest of it—a merry
pair, but somewhat indolent. The friendship between Nils and her
had grown in strength as time went on. His father had called the tiny
baby Kalfatrus; Jenny had adopted the name, and the boy called her
Indiana.
During all those sad years now behind her, the rambles in
Nordmarken with Kalfatrus were the only occasions when she could
breathe freely. She enjoyed them specially in spring or autumn,
when there were few people about, and she and the boy sat quietly
gazing into the burning pile of wood they had made, or lay on the
ground talking to one another in their particular slang, which they
dared not use at home for fear of vexing their mother. Her portrait of
Kalfatrus was the first of her paintings to please her; it was really
good.
Gunnar scolded her for not exhibiting it; he thought it would have
been bought for the picture gallery at home. She had never painted
so good a picture since.
She was to have painted Berner—papa. She had begun to call him
thus when his own children started to talk, and also to call her
mother mamma. This marked to her mind the change that had taken
place in the relations between her and the mother of her brief
childhood.

The first part of the time out here, when at last she was freed
from the constant strain, was not pleasant. She realized that her
every nerve was quivering from the strain, and she thought it
impossible ever to regain her youth. From her stay in Florence she
remembered only that she had been cold, felt lonely, and been
unable to assimilate all that was new around her. Little by little the
endless treasure of beauty was revealed to her, and she was seized
by a great longing to grasp it and live in it, to be young, to love and
be loved. She thought of the first spring days when Cesca and
Gunnar took her to Viterbo—of the sunshine on the bare trees and
the masses of anemones, violets, and cowslips in the faded grass. Of
the steppe-like plain outside the city, with fumes of boiling, strongly
smelling sulphur springs wafted through the air, and the ground all
round white with curdling lime. The thousands of swift emerald-
green lizards in the stone walls, the olive trees in the green
meadows, where white butterflies fluttered about. The old city with
singing fountains and black mediaeval houses, and the towers in the
surrounding wall with moonlight on them. And the yellow, slightly
effervescent wine, with a fiery taste from the volcanic soil on which
it was grown.
She called her new friends by their names. In the night Francesca
made a confession of her young, eventful life, and crept into her bed
at last to be comforted, repeating time after time: “Fancy, you being
like this! I was always afraid of you at school. I never thought you
could be so kind!”
Gunnar was in love with both of them. He was full of fire, like a
young faun in spring-time, and Francesca let herself be kissed, and
laughed and called him a silly boy.
But Jenny was afraid, though not of him. She dared not kiss his
hot, red mouth, for the sake of something intangible, intoxicating,
frivolous, which would last only while they were there amid sun and
anemones—something irresponsible. She dared not put aside her old
self; she felt that she could not take a flirtation light-heartedly, and
neither could he. She had already seen enough of Gunnar Heggen to
know that in his affairs with other women he was such as they were
—and yet not quite—for in his inmost self he was a good man, much
better than most women are. His infatuation had soon turned into
friendship, and during the lovely, peaceful time in Paris, when they
had worked hard, and afterwards out here, it had grown stronger
and stronger.
It was quite a different matter with Gram. He did not arouse any
adventurous fancies or wild longings in her. He was not at all stupid,
as she had thought at first; it was only that he seemed almost
stunted, checked in mental growth, when he came out here, and she
at least ought to have understood it. There was something gentle
and young and sound about him, which she liked—he seemed more
than two years her junior. His talk of being in love with her was
nothing but a surplus of the joy he felt at the freedom of his new
life. There was no danger in it, either for him or for her. They were
fond of her at home, of course, and Gunnar and Francesca were
fond of her too, but did any one of them think of her tonight? She
was not altogether sorry to know that there was some one who did.

IX
When she awoke in the morning she told herself that he would
very likely not come at all, and so much the better—but when he
knocked at her door she was pleased all the same.
“I have had nothing to eat yet, Miss Winge. Could you give me a
cup of tea and some bread?”
Jenny looked about her in the room.
“Yes, but the room isn’t done yet.”
“I’ll shut my eyes while you lead me on to the balcony,” said Gram
from behind the door. “I am dying for a cup of tea.”
“Very well, half a minute.” Jenny covered her bed with the
counterpane, tidied the dressing-table, and changed her dressing-
jacket for a long kimono. “Come in, and please go and sit on the
balcony while I get your tea.” She brought out a stool and placed
some bread and cheese on it.
Gram looked at her bare, white arms in the long, fluttering sleeves
of the dark blue kimono with a pattern of yellow and purple iris.
“What a pretty thing you have on. It looks like a real geisha
dress.”
“It is real. Cesca and I bought these in Paris to wear at home in
the morning.”
“It is a capital idea, I think, to go about like that and look pretty
when you are alone. I like it.”
He lit a cigarette and gazed at the smoke as it rose in the air.
“Ugh! At home the maid and my mother and sister used to look
like anything in the morning. Don’t you think women ought always
to make themselves look as pretty as possible?”
“Yes, but it isn’t always possible when you have to do housework.”
“Perhaps not, but they might at least do their hair before breakfast
and put on a thing like that, don’t you think?”
He was just in time to save a cup, which she was on the point of
brushing down with her sleeve.
“You see how practical it is. Now, drink your tea; you said you
were thirsty.”
She discovered suddenly that Cesca’s whole stock of coloured
stockings were hanging to dry on the balcony, and she removed
them a little nervously.
While he was having his tea he explained:
“I lay awake last night thinking, almost until dawn, and then, of
course, I overslept, so had no time to stop at the latteria on my way.
I think we should go to Via Cassia to that anemone place of yours.”
“Anemone place.” Jenny laughed. “When you were a boy did you,
too, have special places for violets and bluebells, and kept them a
secret from the others and went there all alone every year?”
“Of course I had. I know a beech grove by the old road to
Holmenkollen, where there are real scented violets.”
“I know it too,” she interrupted triumphantly, “to the right, just
before the road branches off to Sorkedal.”
“Exactly. I had some other places too, on Fredriksborg and——”
“I must go in and put on my dress,” said Jenny.
“Put on the one you had yesterday, please!” he called after her.
“It will get so dusty”—but she changed her mind in the same
moment. Why should she not make herself look nice? The old black
silk had been her best for a good many years; she need not treat it
with such deference any more.
“I don’t care! but it fastens at the back, and Cesca’s not in.”
“Come out here and I’ll button it for you. I am an expert at it. It
seems to me I have done nothing all my life but fasten mother’s and
Sophy’s buttons at the back.”
She could manage all but two, and she allowed Gram to help her
with them. As she stood by him in the sunshine while he fastened
her dress, he became aware of the faint, mild fragrance of her hair
and her body. He noticed one or two small rents in the silk, which
were carefully darned, and the sight of it filled his heart with an
infinite tenderness towards her.
“Do you think Helge a nice name?” he asked, when they were
having lunch at an osteria far out on the Campagna.
“Yes; I like it.”
“Do you know that it is my Christian name?”
“Yes; I saw you had written it in the visitors’ book at the club.” She
blushed slightly, thinking he might believe that she had looked it up
on purpose.
“I suppose it is nice. On the whole, there are few names that are
nice or ugly in themselves; it all depends if you like the people or
not. When I was a boy we had a nurse called Jenny; I could not
bear her, and ever since I thought the name was hideous and
common. It seemed to me preposterous that you should be called
Jenny, but now I think it so pretty; it gives one an idea of fairness.
Can you not hear how delicately fair it sounds?—Jenny—a dark
woman could not be called that, not Miss Jahrman, for instance.
Francesca suits her capitally, don’t you think? It sounds so
capricious, but Jenny is nice and bright.”
“It is a name we’ve always had in my father’s family,” she said, by
way of an answer.
“What do you think of Rebecca, for instance?”
“I don’t know. Rather harsh and clattering, perhaps, but it is
pretty, though.”
“My mother’s name is Rebecca,” said Helge. “I think it sounds
hard, too. My sister’s name is Sophy. She married only to get away
from home, I am sure, and have a place of her own. I wonder
mother could be so delighted to get her married, considering the
cat-and-dog life she herself has led with my father. But there was no
end of a fuss about the Rev. Arnesen, when my sister got engaged
to him. I can’t stand my brother-in-law, neither can father, I believe,
but mother!...
“My fiancée—I was engaged once, you know—her name was
Catherine, but she was always called Titti. I saw she had that name
put into the papers, too, when her marriage was announced.
“It was a stupid thing altogether. It was three years ago. She was
giving some lessons in the school where I was teaching. She was not
a bit pretty, but she flirted with everybody, and no woman had ever
taken any notice of me—which you can easily understand, when you
think of me as I was here at first. She always laughed at everything
—she was only nineteen. Heaven knows why she took to me.
“I was jealous, and it amused her. The more jealous she made
me, the more in love was I. I suppose it was less love than male
vanity, having a sweetheart very much in demand. I was very young
then. I wanted her to be exclusively taken up with me—a very
difficult proposition as I was then. I have often wondered what she
wanted me for.
“My people wanted our engagement to be kept secret, because
we were so young. Titti wanted it made public, and when I
reproached her for being too much interested in other men, she said
she could not spend all her time with me, as our engagement was a
secret.
“I took her home, but she could not get on with my mother. They
always quarrelled, and Titti simply hated her. I suppose it would
have made no difference to mother if I had been engaged to
somebody else; the fact that I was going to marry was enough to
put her against any woman. Well—Titti broke it off.”
“Did it hurt you very much?” Jenny asked quietly.
“Yes, at the time. I did not quite get over it till I came here, but I
think it was mostly my pride that suffered. Don’t you think that if I
had loved her really, I should have wished her to be happy when she
married another? But I didn’t.”
“It would have been almost too unselfish and noble,” said Jenny,
smiling.
“Oh, I don’t know. That is how you ought to feel if you really love.
Don’t you think it is strange that mothers never care for their sons’
sweethearts? They never do.”
“I suppose a mother thinks no woman is good enough for her
boy.”
“When a daughter gets engaged it is quite different. I saw that in
the case of my sister and the fat, red-haired clergyman. There was
never much sympathy between my sister and myself, but when I
saw that fellow making love to her, and thought that he.... Ugh!
“I sometimes think women who have been married some time
become more cynical than we men ever are. They don’t give
themselves away, but you notice it all the same. Marriage to them
means merely business. When a daughter marries they are pleased
to have her saddled on to some one who can feed and clothe her,
and if she has to put up with the shady side of marriage in return,
it’s not worth making a fuss about. But if a son takes upon himself
the same kind of burden for a similar return, they are not so
enthusiastic about it. Don’t you think there is something in it?”
“Sometimes,” said Jenny.
When she came home that evening she lit the lamp and sat down
to write to her mother to thank her for the birthday greetings and
tell her how she had spent the day.
She laughed at herself for having been so solemn the night
before. Heaven knows, she had had difficulties and been lonely, but
so had most of the young people she knew. Some of them had been
worse off than she. She thought of all the young girls—and the old
ones—who had taught at the school; nearly all of them had an old
mother to support, or sisters and brothers to help. And Gunnar?—
and Gram? Even Cesca, the spoilt child from a rich home, had fought
her way, since she had left home at twenty-one and kept herself on
the little money left her by her mother.
As to loneliness, she had chosen it herself. All said and done, she
had perhaps not been quite sure about her own powers, and to
deaden her doubts, had held by the idea that she was different from
other people—and they had been repelled. She had made some
headway since, had proved to herself that she could do something,
and had grown more friendly, less reserved, than before. She was
obliged to admit that she had never made any advances, either as a
child or since; she had always been too proud to take the first step.
All the friends she had—from her stepfather to Gunnar and Cesca—
had first stretched out their hands to her. And why had she always
imagined that she was passionate? Such nonsense! She who had
reached twenty-eight without ever having been the least in love. She
believed that she would not be a failure as a woman, if once she
were fond of a man, for she was healthy, good looking, and had
sound instincts, which her work and outdoor life had developed. And
very naturally she longed to love and be loved—longed to live. But to
imagine that she would be able, from sheer rebellion of her senses,
to fall into the arms of any man who happened to be near at a
critical moment was utter nonsense. It was only because she would
not admit to herself that she was dull sometimes and wished to
make a conquest and flirt a little just like other girls—a pastime
which in reality she did not approve of—that she preferred to
imagine she was consumed by a thirst for life and clamouring
senses. Such high-flown words were only invented by men, poor
things, not knowing that women generally are simple and vain, and
so stupid that they are bored unless there is a man to entertain
them. That is the origin of the legend of the sensual woman—they
are as rare as black swans, or disciplined, educated women.
Jenny moved Francesca’s portrait on to the easel. The white
blouse and the green skirt looked hard and ugly. It would have to be
toned down. The face was well drawn, the position good.
This episode with Gram was really nothing to be serious about. It
was time she became reasonable. She must do away with those silly
notions that she was afraid of every man she met—as with Gunnar
in the beginning—afraid of falling in love with him, and almost more
of his falling in love with her: a thing she was so unused to that it
bewildered her.
Why could one not be friends with a man? If not, the world would
be all a muddle. She and Gunnar were friends—a solid, comfortable
friendship.
There was much about Gram that would make a friendship
between them quite natural. They had had much the same
experiences. He was so young and so full of confidence in her; she
liked his “Is it not?” and “Don’t you think?” He had talked yesterday
about being in love with her—he thought at least he was, he said.
She smiled to herself. A man would not speak to her as he had done
if he had really fallen in love with a woman and wanted to win her.
“He is a dear boy; that’s what he is.”
Today he had not broached the subject. She liked him when he
said that if he had been really fond of the girl he would have wished
her happiness with the other man.

X
Jenny and Helge were running hand in hand down Via
Magnanapoli. The street was merely a staircase, leading to the
Trajan Forum. On the last step he drew her to him and kissed her.
“Are you mad? You mustn’t kiss people in the street here.”
And they both laughed. One evening they had been spoken to by
two policemen on the Lateran piazza for walking up and down under
the pines along the old wall kissing each other.
The last sunrays brushed the bronze figures on top of the pillar
and burned on the walls and on the tree-tops in the gardens. The
piazza lay in the shade, with its old, rickety houses round the
excavated forum below the street level.
Jenny and Helge leaned over the railing and tried to count the fat,
lazy cats which had taken their abode among the stumps of pillars
on the grass-covered plot. They seemed to revive a little as the
twilight began to fall. A big red one which had been lying on the
pedestal of the Trajan pillar stretched himself, sharpened his claws
on the masonry, jumped down on to the grass, and ran away.
“I make it twenty-three,” said Helge.
“I counted twenty-five.” She turned round and dismissed a post
card seller, who was recommending his wares in fragments of every
possible language.
She leaned again over the railing and stared vaguely at the grass,
giving way to the pleasant languor of a long sunny day and
countless kisses out in the green Campagna. Helge held one of her
hands on his arm and patted it—she moved it along his sleeve until
it rested between both of his. Helge smiled happily.
“What is it, dear?”
“I am thinking of those Germans.” She laughed too—quietly and
indifferently, as happy people do at trifles that do not concern them.
They had passed the Forum in the morning and sat down a moment
on the high pedestal of the Focas pillar, talking in whispers. Beneath
them lay the crumbled ruins, gilded by the sun, and small black
tourists rambled among the stones. A newly married German couple
were walking by themselves, seeking solitude in the midst of the
crowd of travellers. He was fair and ruddy of face, wore
knickerbockers and carried a kodak, and read to his wife out of
Baedeker. She was very young, plump, and dark, with the inherited
stamp of hausfrau on her smooth, floury face. She sat down on a
tumbled pillar, posing to her husband, who took a snapshot of her.
And the two who sat above, under the Focas pillar, whispering of
their love, laughed, heedless of the fact that they were sitting above
the Forum Romanum.
“Are you hungry?” asked Helge.
“No; are you?”
“No—but do you know what I should like to do?”
“Well?”
“I should like to go home with you and have supper. What do you
say to that?”
“Yes, of course.”
They walked home arm in arm through small side streets. In her
dark staircase he drew her suddenly to him, and kissed her with
such force and passion that her heart began to beat violently. She
was afraid, and at the same time angry with herself for being so,
and whispered in the dark: “My darling,” to prove to herself that she
was calm.
“Wait a moment,” whispered Helge, when she was going to light
the lamp, and he kissed her again. “Put on the geisha-dress; you
look so sweet in it. I will sit on the balcony while you change.”
Jenny changed her dress in the dark; she put the kettle on and
arranged the anemones and the almond sprigs before she called him
in and lighted up.
He took her again in his arms and said:
“Oh, Jenny, you are so lovely. Everything about you is lovely; it is
heavenly to be with you. I wish I could be with you always.”
She took his face between her two hands.
“Jenny—you wish it—that we could be always together?”
She looked into his beautiful brown eyes:
“Yes, Helge; I do.”
“Do you wish that this spring—our spring—never would end?”
“Yes—oh yes.” She threw herself suddenly into his arms and
kissed him; her half-open lips and closed eyes begged for more
kisses; his words about their spring, that should never cease, awoke
a painful anxiety in her heart that the spring and their dream would
come to an end. And yet behind it all was a dread, which she did not
try to explain to herself, but it came into existence when he asked if
she wished they could always be together.
“I wish I were not going home,” said Helge sadly.
“But I am going home soon too,” she said softly, “and we shall
probably come back here together.”
“You are quite determined to go? Are you sorry that I have upset
all your plans in this way?”
She gave him a hurried kiss and ran to the kettle, which was
boiling over.
“No, you silly boy. I had almost made up my mind before, because
mamma wants me badly.” She gave a short laugh. “I am ashamed of
myself—she is so pleased that I am coming home to help her, and it
is really only to be with my lover. But it is all right. I can live cheaper
at home even if I help them a little, and I may be able to earn
something. What I can save now, I shall want here later.”
Helge took the cup she gave him and seized her hand:
“But next time you come here you will come with me; for I
suppose you will—you mean—that we should marry?”
His face was so young and so anxiously inquiring that she had to
kiss him several times, forgetting that she had been afraid of that
word, which had not been mentioned between them before.
“I suppose that will be the most practical plan, you dear boy, since
we have agreed to be together always.”
Helge kissed her hand, asking quietly: “When?”
“When you like,” she answered as quietly—and firmly.
Again he kissed her hand.
“What a pity we can’t be married out here,” he said a moment
after in a different voice.
She did not answer, but stroked his hair softly. Helge sighed:
“But I suppose we ought not to, as we are going home so soon in
any case. Your mother would feel hurt, don’t you think, at such a
hurried marriage?”
Jenny was silent. It had never occurred to her that she owed her
mother any account of her doings—her mother had not consulted
her when she had wanted to marry again.
“It would hurt my people, I know. I don’t like to admit it, but it is
so, and I should much prefer to write and tell them that I am
engaged. As you are going home before me, it would be nice of you
to go and see them.”
Jenny bent her head as if to shake off a disagreeable sensation,
and said:
“I will, dear, if you wish me to—of course.”
“I don’t like it at all. It has been so lovely here—only you and I,
nobody else in all the world. But mother would be so vexed, you
see, and I don’t want to make things worse for her than they are
already. I don’t care for my mother any longer—she knows it, and is
so grieved at it. It is only a formality, I know, but she would suffer if
she thought I wanted to keep her out in the cold. She would think it
was vengeance for the old story, you know. When we are through
with all that, we will get married, and nobody will have anything
more to say. I wish so much that it would be soon—don’t you?”
She kissed him in answer.
“I want you,” he whispered, and she made no resistance when he
caressed her. But he let her go suddenly and, buttering his biscuit,
began to eat.
Afterwards they sat by the stove smoking, she in the easy-chair
and he on the floor with his head in her lap.
“Isn’t Cesca coming back tonight either?” he asked suddenly.
“No; she is staying in Tivoli till the end of the week,” Jenny
answered a little nervously.
“You have such pretty, slender feet.”
“You are so lovely—oh, so lovely—and I am so fond of you. You
don’t know how I love you, Jenny—I should like to lie down on the
floor at your feet.”
“Helge! Helge!” His sudden violence frightened her, but then she
said to herself: he is my own darling boy. Why should I be afraid of
him.
“No, Helge—don’t. Not the shoes I stamp about with in those dirty
streets.”
Helge rose—sobered and humble. She tried to laugh the whole
matter away. “There may be many dangerous bacilli on those shoes,
you know.”
“Ugh! What a pedant you are. And you pretend to be an artist.”
He laughed too, and to hide his embarrassment, he went on
boisterously: “A nice sweetheart you are. Let me smell: I thought so
—you smell of turpentine and paint.”
“Nonsense, dear; I have not touched a brush for three weeks. But
you will have to wash, sir.”
“Have you any carbolic, in case of infection?” While he was
washing his hands he said: “My father used to say that women are
utterly destitute of poetry.”
“Your father is quite right.”
“And they can cure people by ordering cold baths,” he said, with a
laugh.
Jenny became suddenly serious. She went to him, put her hands
on his shoulders, and kissed him: “I did not want you at my feet,
Helge.”
When he had gone she was ashamed of herself. He was right. She
did want to give him a cold bath, but she would not do it again, for
she loved him. She had played a poor part tonight. She had thought
of Signora Rosa. What would she have said if anything had
happened? It was rather humiliating to realize that she had been
afraid of a scene with an angry signora—and tried to get out of her
promise to her lover. In accepting his love and responding to his
kisses she had as good as bound herself over to give him all he
asked. She, of all people, would not play a game where she took
everything and gave but little—not more than she could easily
withdraw, if she changed her mind.
It was only nerves—this dread of something she had never tried.
But she was glad he had not asked for more than she could willingly
give, for there would come a moment, she thought, when she
herself would wish to give him all.
It had all come so slowly and unnoticeably—just like spring in the
south—and as steadily and surely. No sudden transition, no cold and
stormy days that made one long desperately for the sun, for wealth
of light and consuming heat. There had been none of those
tremendously clear, endless, maddening spring nights of her own
country. When the sunny day was past, night came quietly, the cold
and darkness bringing peaceful sleep between the bright, warm days
—each new day a little warmer than the one before, each day with
more flowers on the Campagna, which did not seem greener than
yesterday, yet was much more green and mellow than the week
before.
Her love for him had come in the same way. Every night she
looked forward to the next sunny day with him on the Campagna,
but gradually it was more himself and his young love that she longed
for. She had let him kiss her because it gave her pleasure, and from
day to day their kisses had grown more frequent, till at last words
faded away and kisses took their place.
He had become more manly and mature from day to day; the
uncertainty and the sudden despondency of the earlier days had
quite left him. She herself was brighter, friendlier, more sure of
herself, not the coldness of youth, always ready to fight, but more a
calm confidence in herself. She was not disappointed with life now
because it would not shape itself according to her dreams, but
accepted each day, trusting that the unknown was right and could
be turned to advantage.
Why should not love come in the same way, slowly, like the
warmth that grows day by day, thawing and tempering, and not as
she had always believed it would come—as a storm that would
change her at once into a woman she did not know, and whom her
will could not control.
Helge accepted this slow, sound growth of her love quite naturally
and calmly. Every night when they parted her heart was filled with
gratitude to him, because he had not asked for more than she could
give that day.
Oh, if they could have stayed here till May—till summer—the
whole of summer, so that their love might ripen until they belonged
to one another completely. They would go together to the mountains
in the summer; the marriage could take place here later, or at home
in the autumn, for they would marry, of course, in the ordinary way,
since they were fond of each other. When she thought of her
journey home, she was almost afraid that she would awake as from
a dream, but she told herself such thoughts were nonsense, since
she loved him and he loved her. She did not like the disturbing
elements of engagements, visiting relations, and so on, though they
were trifles after all.
Heaven be praised for this blessed spring in Rome that had
brought them together—they two alone on the green Campagna
among the daisies.
“Don’t you think Jenny will be sorry some day that she ever got
engaged to that Gram?” asked Francesca one evening when she was
sitting in Heggen’s room.
He shook the ashes from his cigarette without answering. He
discovered all of a sudden that it had never struck him as indiscreet
to speak about Francesca’s affairs to Jenny. But to speak about
Jenny’s to Francesca was quite another matter.
“Can you understand what she wants with him?” she asked again.
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