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 OX F O R D S T U D I E S I N
M O D E R N E U RO P E A N H I S TO RY

General Editors
s imon di xon ma rk m a zowe r
and
ja mes reta ll ack
 The Birth of the
New Justice
The Internationalization of Crime
and Punishment, ­­­­1919–1950

MARK LEWIS

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Mark Lewis 2014
The moral rights of the author have been asserted
First Edition published in 2014
Impression: 1
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a retrieval system, or transmitted, in any form or by any means, without the
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 Acknowledgments

This book began as a dissertation in European history at the University of California,

Los Angeles. I was very fortunate to work with an outstanding group of scholars,
Ivan T. Berend, Saul Friedländer, and Russell Jacoby of the History Department,
Máximo Langer of the Law School, and David C. Rapoport of the Political Science
Department. I thank them for reading and critiquing my draft proposals and chap-
ters and offering strong encouragement at all stages. As I expanded the project into a
book, researching new areas and writing new chapters, Profs. Berend and Langer
again read my work and offered suggestions for improvements. I feel deeply indebted
to them. A group of other scholars, including Mark Mazower, Peter Holquist, and
David P. Forsythe, deserve special thanks for reading proposals and/or chapters,
­critiquing my work, and suggesting other works to read. As a graduate student,
I benefited from the advice of Ritika Prasad and Pablo Vivanco, both of whom read
my work. All the aforementioned individuals, themselves very dedicated and crea-
tive, gave me the confidence to proceed.
My thanks also extend to scholars at the City University of New York and the
College of Staten Island, which I joined in 2009. I was very fortunate to participate
in the Faculty Fellowship Publication Program, participating in a writing group
with Cristina Balboa, Aaron Freundshuh, Jennifer Onyedum Johnson, Teresita
Levy, Isabel Martinez, Megan Moran, and our inspiring mentor Virginia Sanchez-
Korrol. This group of creative scholars, all coming from different fields, read sev-
eral chapters of this book, offered a wealth of comments, and helped keep me on
track during the revision process. My colleagues in the History Department at the
College of Staten Island—Zara Anishanslin, John Dixon, Marcela Echeverri, Ben
Mercer, and John Wing—critiqued an early draft introduction to this book, helping
me rethink the enterprise. Catherine Lavender provided some excellent references
concerning U.S. history. I would especially like to thank Jonathan Sassi, chair of
the History Department at the time, and Associate Provost Deborah Vess for arrang-
ing financial assistance for a trip to Switzerland, which allowed me to add a chapter
about the revision of the Geneva Conventions in 1946–49.
­­­­ Other institutions also
provided financial support for my research and writing: the Bernard and Audre
Rapoport Fellowship (Jacob Rader Marcus Center of the American Jewish
Archives), the Center for European and Eurasian Studies at UCLA, the University
of California Institute on Global Conflict and Cooperation, and the UCLA/Mellon
Program on the Holocaust in American and World Culture, made possible by a
grant from the Andrew W. Mellon Foundation.
Many archivists helped me in my search for materials. I thank the following
individuals and their institutions: Hans-Robert Ammann (the Cantonal Archives
of Valais, Switzerland), Fabrizio Bensi (Historical Archives of the International
Committee of the Red Cross, Geneva), Rémi Dubuisson (Records and Manage-
ment Section of the United Nations Office, New York), Michaela Follner (the
vi Acknowledgments

Austrian State Archives, Vienna), Carol Leadenham (Hoover Institution Archives,

Stanford), Bernhardine Pejović (now retired from the League of Nations Archives,
Geneva), Kevin Proffitt (the Jacob Rader Marcus Center of the American Jewish
Archives, Cincinnati), Kati Radics (Young Research Library, UCLA), David P.
Rosenberg (Center for Jewish History, New York), Lyn Slome (Archives of the
American Jewish Historical Society, New York), Esther Trippel-Ngai (the Records
and Archives Sub-Unit of the United Nations Office, Geneva), and John Wilson
(UCLA Law Library). I also wish to thank the Inter-Library Loan staff at the Col-
lege of Staten Island’s Library, the New York Public Library, Bobst Library at New
York University, and the Manhattan Research Library Initiative.
At Oxford University Press, Christopher Wheeler, Stephanie Ireland, Cathryn
Steele, and Emma Barber were consistently supportive and helpful. I gratefully
acknowledge the useful comments and suggestions of the anonymous readers who
critiqued my manuscript. Additional thanks go to copy editor Nicholas Bromley
and proofreader Andrew Hawkey for their diligent work.
Many people offered warm hospitality and friendship during my travels abroad,
including Rémi Dubuisson in Switzerland, Bernhard Tuider in Austria, and the
Spiropulo-Tschudi family (Alejandra, Pierre-Alain, Paloma, Nico, and Julia) in
Switzerland. Finally, my family, including Betsy Garfinkle, Karen Lewis, and Sue
Reith, persistently encouraged me and took an interest in my work. I especially
want to acknowledge the multi-faceted help of my wife, Kimi Reith. She read vari-
ous parts of this work, listened to me read and explain sections, and offered several
insights which caused me to include certain new angles. I appreciate her magical
creativity.
 Table of Contents

Abbreviations ix
Footnote Key xi

Introduction 1
1. Nineteenth Century Precursors of an International
Criminal Legal System 14
2. The Birth of the New Justice at the Paris Peace Conference 27
3. Crimes against Humanity and Crimes of Denationalization:
The Victory of Political Expediency Over Justice 64
4. Blueprints for International Criminal Courts and
Their Political Rejection in the 1920s 78
5. International Terrorism in the 1920s and ’30s: The Response
of European States through the League of Nations and
the Attempt to Create an International Criminal Court 122
6. The Search for a Victim-Centered New Justice, ­­­­1942–1946:
The World Jewish Congress and the Institute of Jewish Affairs 150
7. The Genocide Convention: The Gutting of Preventative
Measures, ­­­­1946–48 181
8. Revising the Geneva Conventions, ­­­­1946–49:
Synthesizing the Old and New Justice 229
Epilogue 274
Conclusion 290

Bibliography 301
Index 335
 Abbreviations
AJA American Jewish Archives
AJHS American Jewish Historical Society
AIDP Association Internationale de Droit Pénal (International Association of
Penal Law)

CICR Comité international de la Croix-Rouge (French name of the International

Committee of the Red Cross)
CRT Committee for the Repression of Terrorism (in the League of Nations)

ECOSOC Economic and Social Council (of the United Nations)

ICPC International Criminal Police Commission, Vienna (Internationale

Kriminalpolizeiliche Kommission)
ICRC International Committee of the Red Cross (English name of the Comité
international de la Croix-Rouge)
ILA International Law Association
ILC International Law Commission
IMT International Military Tribunal at Nuremberg

LNA League of Nations Archives, Geneva

OSS United States Office of Strategic Services

PV Procès-verbaux (minutes)

UN United Nations
UNWCC United Nations Commission for the Investigation of War Crimes

WFUNA World Federation of United Nations Associations

WJC World Jewish Congress
 Footnote Key
In citing works in the notes, short titles have generally been used after the first reference.
Works and archives frequently cited have been identified in the following way:

AICRC, CR. 238-6 Archives of the International Committee of the Red

Cross, Box number-Folder number.
AJHS/P-154/2/12 Raphael Lemkin Collection, P-154/Box No./Folder
No., Collection of the American Jewish Historical
Society, Newton Centre, MA, and New York, NY.
Cour permanente. Procès-verbaux  League of Nations, Cour permanente de justice
internationale. Comité consultatif de juristes. Procès-
verbaux des séances du comité, 16 juin–24­­­­ juillet
1920, avec annexes. Permanent court of international
justice. Advisory committee of jurists. Procès-verbaux
of the proceedings of the committee, June ­­­­16th–July
24th, 1920, with annexes (La Haye: Van
Langenhuysen frères, 1920).
C.R.T./P.V. 3(1), 21 League of Nations, Comité pour la Répression
Internationale du Terrorisme. Première Session tenue
du 30 avril au 8 mai 1935. Procès-verbaux revises,
C.R.T./P.V. Meeting No., page number.
Drayton Report Report of the Bulgarian Atrocities in Serbia, William
A. Drayton Papers, Box 1, Folder: “Bulgarian
Military Occupation of Serbia, ­­­­1915–1918.” Hoover
Institution Archives.
ICRC/CR.94-1/Examen, Doc. No. International Committee of the Red Cross Archives,
CR.94-1, Examen des violations Conv. de Genève
pendant la guerre (Circ. 203) ­­­­ 1921–1922,
Document Number.
La Documentation Internationale, La Documentation Internationale. La Paix de
La Paix de Versailles. Responsabilités Versailles. Responsabilités des auteurs de la guerre
des auteurs de la guerre et sanctions et sanctions. Edited by Albert de Lapradelle. Vol. 3.
Paris: Les Éditions Internationales, 1930.
Lemkin-AJA/60/1/3  Raphael Lemkin Papers, Manuscript Collection
No. 60, 1942–1959,
­­­­ Box No./Folder No., Jacob
Rader Marcus Center of the American Jewish
Archives, Cincinnati Campus, Hebrew Union
College, Jewish Institute of Religion.
LNA/586/10481/9557  League of Nations Archives, Geneva, Box No.,
Document No., Dossier No.
Report of the Ad Hoc United Nations. Economic and Social Council.
xii Footnote Key
Committee on Genocide Ad Hoc Committee on Genocide, Report to
the Economic and Social Council on the
Meetings of the Committee Held at Lake
Success, New York, from 5 April to 10 May
1948, 26 May 1948 (Lake Success, New
York), UN Document E/794.
UN Archives, Geneva, SOA 318/2/03 A United Nations Office Geneva, Records and
Archives Sub-Unit, File Reference Code.
United Nations. General Assembly, United Nations. General Assembly. Official
Sixth Committee, Summary Records (1948) 
Records of the Third Session of the General
Assembly, Part I. Legal Questions. Sixth
Committee. Summary Records of the Meetings,
21 ­­­­September–10 December 1948. Paris,
1948.
WJC/C174/10  World Jewish Congress Collection,
Manuscript Collection No. 361, Box No.,
Folder No., Jacob Rader Marcus Center of
the American Jewish Archives, Cincinnati
Campus, Hebrew Union College, Jewish
Institute of Religion.
 Introduction

Historians, legal scholars, and political scientists present different reasons why
states began to support war crimes trials after World War One. Extrapolating from
the British historian, Geoffrey Best, late Enlightenment thinkers wanted to reduce
suffering in war, international lawyers codified this idea during the nineteenth
century, and it therefore seemed logical to enforce the laws after World War One.1
According to U.S. historian, James Willis, the atrocities of World War One stimu-
lated a public demand for trials in Allied countries, but so did a change in percep-
tion, in which the press and public clamored that the war itself was a gigantic
crime.2 Contrary to Willis, German historian Walter Schwengler argues that the
European Allies applied victors’ justice against a fragile German republic, an ex
post facto exercise that completely broke with the legal traditions of hospitality and
amnesty of the early modern period.3 Swiss historian Daniel Marc Segesser explains
that the notion of prosecuting violations of the laws and customs of war was not
merely a reaction to World War One: the Geneva Convention of 1864 established
protections for wounded and sick soldiers, and when these rules were violated in
the Franco-Prussian War of 1870, certain Red Cross figures proposed that an inter-
national tribunal should be established in the future to punish, and thereby pre-
vent (repress) violations of the convention. After this, generations of legal scholars
and academics debated the concept of war crimes and the best means to punish
them with impartiality and fairness.4 For U.S. political scientist, Gary Bass, the
western Allies wanted to implement trials after World Wars One and Two to project
the liberal principles of “fair play” and legal retribution in order to demonstrate the
legitimacy of their institutions and norms—while the actual implementation of
trials depended on political conditions.5 Legal scholar, Gerry Simpson, argues that
the origin of the concepts of the war criminal, international outlaw, and terrorist
are rooted in the concept of the pirate, whom states in the early modern period

1
Geoffrey Best, Humanity in Warfare (New York: Columbia University Press, 1980).
2
James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of
the First World War (Westport, Connecticut: Greenwood Press, 1982).
3
Walter Schwengler, Völkerrecht, Versailler Vertrag und Auslieferungsfrage. Die Strafverfolgung wegen
Kriegsverbrechen als Problem des Friedensschlusses 1919/20 (Stuttgart: Deutsche Verlags-Anstalt,
1982).
4
Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen
in der internationalen wissenschaftlichen Debatte 1872–1945 (Paderborn: Ferdinand Schöningh,
2010).
5
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton,
N.J.: Princeton University Press, 2000).
2 The Birth of the New Justice

defined as a violator of the law of nations. Further, counter to Bass, he contends

that war crimes trials are negotiations between “liberal cosmopolitanism (empha-
sizing individual responsibility, the rule of law, internationalism, tolerance of one’s
adversaries) and an illiberal or romantic nationalism (emphasizing collective guilt,
national prerogatives, procedural anti-formalism, and exemplary justice for out-
laws).”6 Finally, legal scholar Duncan Kennedy proposes a framework of two peri-
ods of the globalization of legal consciousness in 1850–1968: the second phase was
the effort by Western European/Anglo-American lawyers to disseminate a “social
consciousness” concerned with social welfare and social stability.7 One might apply
this concept to the post-World War One period and argue that attempts to pros­
ecute the laws and customs of war after World War One were part of this trend.
However, a study of new forms of criminal prosecution and punishment in the
international arena should look beyond the question of, “Why trials?” and expand
the inquiry to crimes other than “war crimes.” First, between 1919 and 1950, legal
organizations and international bodies experimented with different strategies to
deal with these crimes: adding criminal prosecution to existing international laws
while expanding their interpretation of restraints based on customary warfare;
drafting new laws and adding new mechanisms of criminal enforcement; drafting
plans for permanent international criminal courts; and creating new directives in
international law that states would then enforce through their own courts. Second,
efforts to structure the international system with criminal enforcement dealt with
more than war crimes and the laws of war. The projects that came off the drafting
table and were put before governments and international conferences between
1919 and 1950 addressed diverse problems, not only war crimes. Taking some of
the concepts roughly in the order they appeared, the historian finds: “the crime
of violating international treaties;” “violations of the laws and customs of war;”
“violations of the laws of humanity;” “crimes against humanity;” “crimes of dena-
tionalization;” “crimes against the international order;” “crimes creating a common
danger;” “international terrorism;” “crimes of barbarity;” “crimes of vandalism;”
“crimes against the peace;” “the collective conspiracy to exterminate a group;”
“genocide;” “grave breaches of the law of nations;” “grave breaches of the laws of
war;” and “crimes against international peace and security.” These did not all rep-
resent the same types of problems, nor did they all stem from the same historical
conditions. Therefore, a historical explanation for the advent of individual crimi-
nal liability and the creation of international criminal courts must account for the
historical responses to different types of social and political violence. Although
jurists often used certain legal concepts to argue that all these crimes should be
subject to an international or universal jurisdiction, the purposes of their argu-
ments varied, including humanitarian moral concerns, political goals (such as pro-
tection against the revolutionary left or radical right), nationalist objectives,

6
Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law
(Cambridge: Polity Press, 2007), 24.
7
Duncan Kennedy, “Two Globalizations of Law and Legal Thought: 1850–1968,” Suffolk Univer-
sity Law Review 36 (2003): 631–79.
 Introduction 3

utopian concepts of international order, and the establishment of historical inter-

pretations of past crimes.
From the end of World War One until the beginning of the Cold War, was there
one legal consciousness that simply spread the imperative to punish violations of
the laws and customs of war to other areas, such as aggressive war, terrorism, and
genocide? Was this a liberal legalism? This was not the case, because certain propo-
nents who called for new international laws (backed by criminal enforcement)
were not necessarily liberal, and some of their plans for new criminal jurisdictions
might have had illiberal consequences. In some cases, the groups and figures behind
these plans had goals that were different from either creating a liberal legal order or
forming an international system simply to serve the interest of their own states.
The liberal–conservative dichotomy is too limited to explain the intellectual milieu
and historical situations that led different groups to formulate their ideas. One
should go beyond the question of war crimes, and beyond the polarity of liberal
cosmopolitanism versus romantic nationalism and ask: “Why was the concept of
prosecution and punishment applied to so many different areas, ranging from war,
war crimes, terrorism, genocide, cross-border crimes, and crimes affecting the
international order?” “Were the projects linked or separate?” “Can they be attrib-
uted to one central set of concepts that were then transformed for new situations,
or did they come from many directions and many contexts, independently of each
other?” Finally, “What were the actual historical situations that catalyzed these new
applications and transformations, and why were some legal organizations more
successful than others in transforming the international system?”
The Birth of the New Justice argues that there was a central set of concepts that
emerged from World War One, which was then heavily modified and applied to
many new situations in the decades that followed. This was a result of the fact that
different legal groups, with different values, historical missions, and goals took
them up, as well as the fact that historical situations changed. Proponents of new
criminal laws and new jurisdictions did not always have the same historical inten-
tions, and every plan for an international criminal court did not aim to solve the
same problems. There was no one legal liberal template in which the domestic
institutions of crime and punishment were simply internationalized; there were
multiple transformations coming from different directions.
This book proposes that European jurists at the Paris Peace Conference created
a set of concepts, which I call the “new justice.”8 Other legal organizations, some-
times consciously, sometimes only by way of receiving these ideas through other
sources, expanded, contracted, or changed them to address various historical crises
and legal–political problems during the inter-war period, during World War Two,
and after World War Two. The “new justice” meant more than simply trials instead
of summary execution or banishment. It included the ideas that: individual ­criminal

8
Chapter 2 explains the origin of the term, which came from a debate in the Dutch press about
whether the Dutch government should extradite former German Kaiser Wilhelm II to stand trial
before an international tribunal formed by the World War One victors, or whether he was entitled to
political asylum.
4 The Birth of the New Justice

liability for violations of international law was valid; prosecuting a head of state,
government official, or military officer was legitimate; a state should extradite cer-
tain types of perpetrators after a war if it wanted to return to the community of
nations; international tribunals conferred more advantages than national tribunals
(more legitimacy, a grander stage to present an historical interpretation, or perhaps
more impartiality); and international law could be altered according to social and
political demands, even if there was no positivist basis on which to do so.
The concepts comprising the “new justice” were repeatedly transformed by vari-
ous legal organizations between 1919 and 1950 to fit distinct political and social
problems. These included the reconstruction of 19th century morality, the estab-
lishment of a new international system after World War One, the protection of the
post-Versailles borders, the search for stability during the economic and political
crises of the 1930s, the construction of a grand trial of the Nazis after World War
Two to convey special political and historical messages, the attempt to solve the
problems of the old League of Nations’ system to protect national and religious
minorities, and the reconfiguration of the international system after World War
Two to give states the symbolic opportunity to declare their opposition to certain
serious crimes, such as genocide and “grave breaches” of the Geneva Conventions.
At the same time, many of the groups involved in these projects were linked: one
group responded to the problems left by a previous group. Certain individuals
worked on multiple projects in different groups, creating a network effect. Different
groups shared certain intellectual concepts, which they wanted to apply to specific
problems that most concerned them.
The composition of these groups, their legal bases, methods of working, and
goals were widely different in the 1919–1950 period. First, some were ad hoc
organizations convened for a particular task while others had a permanent exist-
ence (or their founders hoped they would). Second, their composition and rela-
tionships to centers of legal and political power were different. Some organizations
were comprised of state representatives (the League of Nations and the United
Nations); some were non-governmental “scientific organizations” (the Interna-
tional Law Association and Association Internationale de Droit Pénal ); one was a
minority-rights/pressure group (the World Jewish Congress); and one, the Inter-
national Committee of the Red Cross (ICRC), was a private Swiss charity that
was part of the Red Cross movement, comprised of national Red Cross Societies
and other organizations that competed with the ICRC for power. Third, all had
different types of relationships with governments, as well as different relation-
ships with the League of Nations and United Nations—open avenues, blocked
paths, or a parallel existence. Because of the differences one cannot treat them all
as one type of organization with similar structural features, but one can compare
the legal ideas generated by these organizations and their success or failure in
implementing criminal enforcement projects. This book considers five factors
that contributed to the success or failure of the different projects: the extent of
the problem the groups wished to address (whether it was specific or dealt with
a broad system change); the level of credibility and legitimacy of their ideas in
the eyes of governments, other legal organizations, and domestic societies; the
 Introduction 5

groups’ strategies for lobbying ­governments, the League, and/or the UN, and
their strategies for involving the public (if they tried at all); the existence of
­competing projects that could hinder them; and the level of obligation their
solutions placed on states.
There is a tendency in contemporary thought and journalism to assume that
movements devoted to the pacific settlement of inter-state disputes, the develop-
ment of the laws of war, the development of international criminal law, and the
promotion of political and civil rights shared the same objectives and philosophies,
and therefore can be wrapped into one history. Actually, what I term the four
strands of international legal movements (pacific, rights, laws of war, and interna-
tional criminal law) were largely separate movements from 1919 to 1950, and in
many cases, continued to be so through the Cold War. While there were some
points of convergence, legal organizations involved in these four different strands
were aware of their differences. The pacific strand contained a multitude of organi-
zations devoted to pacifism, the reduction of armaments, and the creation of the
Permanent Court of Arbitration and the League of Nations. They stemmed from
many different political ideologies and are not the subject of this book. However,
their demands and plans for new international organizations and pacts to maintain
peace and prevent war formed the pre-history of some of the movements discussed
in this book and intersected with debates on international criminal prosecution in
the 1920s–30s.9 The rights strand was similarly diverse and cannot be character-
ized as a single progressive history leading from the natural law theory of the
Enlightenment to the human rights organizations of the post-1945 and Cold War
periods.10 They too are largely left out of this book because, during 1919–1950,

9
See Segesser, Recht statt Rache oder Rache durch Recht, 245–51 and 261–82, for summaries of the
positions of legal scholars on whether the outlawry of war under the Geneva Protocol of 1924 and the
Kellogg-Briand Pact of 1928 created a new crime of aggression and whether national or international
courts could prosecute individuals for this crime. A few jurists discussed the use of diplomatic and
economic sanctions against states that violated the Kellogg-Briand Pact, though most did not analyze
the question of criminal liability for individuals in detail. A small minority of jurists considered
whether the laws and customs of war were still necessary if war itself was outlawed, with the most
realistic analysts recognizing that since defensive wars under the League of Nations Charter were still
legal, the laws of war were still important.
10
This is clearly argued by Jean H. Quataert, Advocating Dignity: Human Rights Mobilizations in
Global Politics (Philadelphia: University of Pennsylvania Press, 2009) who explains that the multitude
of groups in the nineteenth and early twentieth century that mobilized for rights did so with different
objectives and legal concepts, and emerged from various social contexts. Samuel Moyn, The Last Uto-
pia: Human Rights in History (Cambridge, MA: Belknap Press, 2010) makes a similar argument about
pre-World War Two rights organizations, and then argues that the rights agenda was effectively taken
over by Catholic organizations after the war as an anti-communist ideology. Effective human rights
enforcement was denied in the U.N. because anti-colonial movements and former colonies that gained
statehood supported popular sovereignty under the nation-state concept rather than a system to
defend universal guarantees against torture, political imprisonment, and civil liberties. However,
Moyn does not deal with criminal enforcement, contending that the significant change in the 1970s
was that human rights organizations represented a replacement utopia for capitalist democracy and
communist egalitarianism. He admits that human rights movements during that time had little practi-
cal impact (and ignored the Cambodian genocide); he claims their main impact was to substitute
“morality” for politics, which of course was insufficient for post-World War Two jurists who believed
in international criminal enforcement.
6 The Birth of the New Justice

they were not the prime movers of new ideas of international criminal prosecution,
universal jurisdiction, or the “new justice” generally. The quest for minority rights
is one segment of the rights history, and even here, only certain groups involved
with this, such as the World Jewish Congress, made a substantial contribution to
the “new justice.” Legal organizations concerned with the laws of war form another
strand, which also supported diverse objectives. One of the main organizations
concerned with creating and maintaining international legal conventions designed
to protect military combatants and eventually civilians, the International Committee
of the Red Cross, had a checkered history during 1919–1950 when it came to
investigating violations of the Geneva Conventions.11 As the chapter on the Geneva
Conventions shows, it had a variety of interests that made it take a dim view of the
Allies’ war crimes trials after World War Two. The fourth strand includes crimino-
logical jurists who began building the field of international criminal law during the
interwar period. This group, led by Vespasien Pella, a Romanian jurist, was largely
occupied with the prevention of aggressive war and the reform of penal law accord-
ing to a reformist doctrine known as “social defense,” not with new systems to
guarantee the rights of minorities. In fact, as the chapter on the Genocide Conven-
tion discusses, the creator of the concept of genocide, Polish-Jewish attorney
­Raphael Lemkin, emerged from the margins of this movement. Some of his ideas
were actually first laid out by other jurists, and even his idea of various modes of
genocide was first described by lawyers working for the research division of the
World Jewish Congress.
The four strands of legal movements (pacific, rights, laws of war, international
criminal law) did not converge in one legal agenda in this period. The fact that
some were not involved in criminal enforcement at all, and others were more inter-
ested in international agreements and civil processes, indicates that this was not a
mono-directional process of building one type of liberal institutionalism aimed at
ending impunity for serious crimes.12 Additionally, since the criminological jurists,
who did much of theoretical work in the 1920s–30s, were not involved with inter-
national guarantees for civil and political rights, the history related in this book
should be considered separately from the debate about whether human rights
began with the French Revolution, in the nineteenth century, during 1945–48,
or in the 1970s. The legal theories and activism that propelled “new justice”
ideas aimed at different problems. Although some of the jurists wanted to use
inter­national criminal enforcement to defend Great Power political interests and
supported the creation of homogenous nation-states—just as some jurists and

11
Rainer Baudendistel, Between Bombs and Good Intentions: The Red Cross and the Italo-Ethiopian
War, 1935–1936 (New York: Berghahn Books, 2006) effectively argues the ICRC was manipulated
by the Italian fascists into not taking a forceful stand against the Italian air attacks against Red Cross
hospitals and use of poison gas, but the ICRC also took an excessively legalistic approach and was
too influenced by its ties to the Swiss government, which did not want to disturb relations with its
Italian neighbor.
12
For the view that all the legal developments formed a single “river” of development, see Benjamin
J. Schiff, Building the International Criminal Court (New York: Cambridge University Press, 2008),
14–41.
 Introduction 7

statesmen who created the League of Nations and United Nations did13—other
organizations and jurists had distinct concerns and objectives. I am therefore reluc-
tant to interpret the history merely as an expression of self-interest and colonial
imperialism, just as I am critical of the view that the legal organizations all acted
out of humanitarian, pacific, reformist, or utopian motivations.
The historical presentation in this book is informed by several other concepts
and theories in historical, legal, and social science scholarship. First, the construc-
tion of legal systems is not a neutral undertaking that occurs in a historical vacuum,
drawing only from pure legal theory and legal texts: each has its own political and
social context. Government authorities may deploy justice against political oppo-
nents or use it to establish the legitimacy of successor regimes. They may use it to
create historical interpretations about the past and attempt to set out the proper
values that must be upheld in the future.14 While this can be done with trials, this
book contends that this process also occurred when jurists formed new laws, inter-
national conventions, and draft statutes for international criminal courts. How-
ever, justice in its historical context is not always exclusively a political instrument;
often the construction of new laws and new legal theories is an attempt to deal
with historical crises and legal shortcomings. They can therefore be construed as
ways to repair the social fabric and alter the political system to prevent the recur-
rence of problems. When analyzing the construction of legal solutions in this way,
the historian must account for the underlying political and social values in legal
arguments. These have changed as different legal schools of thought adopted new
views about the basis and purpose of international law. In the nineteenth and
twentieth century, these included: assumptions about the historical validity of the
state as a logical and desirable form of rational, national development; the imperi-
alist assumption that non-Western people had to be trained and educated by Euro-
pean colonizers before they could assert themselves as sovereign nations and gain
certain legal rights; the belief that economic and social interdependence necessarily
created a form of international solidarity that must be codified in law; the view that
the individual must be protected under international law, particularly after two
world wars in which the belligerents had trampled the individual’s security and
dignity; and the skeptical, real-political view that international law after World
War Two was a matter of technique and interpretation, where the international
system was actually built on hegemonic power relations.15
The concept of sovereignty must also be contextualized to consider the nature of
the political authorities that use it to advance a particular legal solution, the inter-
ests of the legal organizations that seek to challenge it or accommodate it, and the

13
For the argument that the UN rehashed World War One-era colonialism, and the Great Powers
intentionally constructed a system that would not interfere with racist policies in their own countries
and empires, see Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of
the United Nations (Princeton: Princeton University Press, 2009), 28–65.
14
Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, N.J.:
Princeton University Press, 1961).
15
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law,
1870–1960 (Cambridge: Cambridge University Press, 2002).
8 The Birth of the New Justice

particulars of the historical situations that brought up the question in the first
place.16 The negotiations between advocates of state sovereignty and proponents of
international law, as well the intersections between political interests and justice,
are not historical constants. Attempts to implement war crimes trials are condi-
tioned by debates over where trials should be held, whose national needs must be
met, which cultural priorities should be fulfilled, and which political interests must
be accounted for.17 Similarly, these questions influence legal projects to create new
international criminal laws and new international legal directives that call for
national and international criminal prosecution. The task of an historical inquiry
is to determine how those influences have changed and why. Since the seventeenth
century, the state’s financial, bureaucratic, military, educational, and judicial capac-
ities have expanded.18 Territorial states have gradually absorbed the power of
­defining crimes and meting out punishment, functions formerly held by feudal
lords, religious officials, and towns. During the constitutional era, states developed
different types of jurisdictions (based on territory, the national identity of the indi-
vidual, and security and economic interests). Prior to World War One, some inter-
national lawyers sought to restrict state power in international relations, while at
other times they sought to justify new arrangements of state power.
This book does not assume that between the second half of the nineteenth century
and the first half of the twentieth century, there was a consistent transformation in
which state sovereignty was restrained and limited. While that was theoretically true
in certain areas, the period is filled with complex interchanges in which certain states
wanted to extend their power outside their borders while limiting the power of
others. State representatives made joint decisions at certain international conferences
to accept restrictions in warfare, followed by actual wars in which they were violated.
After World War One, they attempted to create a new system of collective security
and open diplomacy without going so far as to create automatic obligations of inter-
national intervention or criminal prosecution of state officials. Additionally, the
jurists and legal organizations that supported enforcement through criminal prosecu-
tion were often minority voices within the field of international law. Some of the
most significant individuals did not come from Western Europe, but Eastern Europe
and the Balkans, where the problems of war, irredentist nationalism, and mixed
­ethnic populations had produced social and political crises.19
Importantly, the developing field of international criminal law, as well as the
idea of setting criminal penalties in international law for violating Red Cross con-
ventions, was controversial between 1919 and 1950. Rather than attempting to
assert an absolute historical process in the period—that sovereignty was definitely
restricted and all the rules of the game had changed by 1950—there were zig-zags

16
Hent Kalmo and Quentin Skinner, eds., Sovereignty in Fragments: The Past, Present and Future of
a Contested Concept (New York: Cambridge University Press, 2010), 7–14.
17
Simpson, Law, War and Crime, 30–53.
18
Paul Münch, “The Growth of the Modern State,” in Sheilagh Ogilvie, ed., Germany: A New
Social and Economic History. 1630–1800 (New York: Arnold, 1996), 2: 196–222.
19
Ivan T. Berend, Decades of Crisis: Central and Eastern Europe before World War II (Berkeley, Calif.:
University of California Press, 1998).
 Introduction 9

and sometimes retreats in the process. The main accomplishments in the period
were the development of arguments, ideas, and plans. Certain legal conventions
were passed that could be invoked in the future, though they often contained
terms that intentionally did not place extraordinary obligations on states. By the
early 1950s, the prospects for implementing “the new justice” in its maximal
form—a complete global penal code backed by a permanent international criminal
court—did not look promising. Instead, the new justice was synthesized with the
old justice: international directives that established certain types of international
crimes and obligations to punish, with implementation left to states, using, in
theory, courts that guaranteed rights for defendants.
The European focus of this book is due to the fact that “new justice” projects
between 1919 and 1950 often (but not exclusively) originated in Europe, as jurists
and non-governmental legal organizations interested in internationalizing crime
and punishment responded to wars, mass killings, assassinations, and terrorism in
Europe, which they then conceptualized as international problems of interest to all.
I do not claim that their ideas were the only important ones. A broader study could
also include the development of the customs and laws of war in the Ottoman
Empire and in imperial Japan and their jurists’ responses to the idea of individual
criminal liability. I have had to limit the inquiry geographically, however. My Euro-
pean focus also stems from the fact that I concentrated on those legal projects that
prominently asserted new ideas about the criminal enforcement of international
law, and on projects that were brought to the point of near or successful fruition at
the Paris Peace Conference, the League of Nations, the United Nations, and the
conferences to revise the Geneva Conventions. I wanted to study attempts to realize
the ideas, and especially the viewpoints and historical trajectories of the non-­
governmental organizations, not only the development of legal discourse. Still, as
this book notes in various places, non-European and non-U.S. ideas were often
excluded or given little weight because the European and U.S. victors of the two
world wars asserted their own interests over those of others. The Western intellec-
tual viewpoint held that Western legal ideas represented higher, supposedly more
advanced standards of impartiality and humanity; and many non-governmental
legal organizations that claimed to be international actually had limited affiliations
with groups outside of Europe and North and South America. Furthermore, con-
cerning the development of the idea of the international criminal court and the
concept of criminal enforcement for international offenses, lawyers and legal organ-
izations from Europe and the U.S. considered their own views and needs to be the
most important, even when they opposed their own governments’ positions that
state sovereignty was sacrosanct and new laws governing warfare should not go too
far. Although some non-European lawyers in the nineteenth century began to appro-
priate Western legal concepts of state sovereignty and the equality of states to chal-
lenge European and American military intervention, colonization, and extraterritorial
jurisdiction,20 more historical investigation is needed to assess the degree to which

20
Arnulf Becker Lorca, “Universal International Law: Ninteenth-Century Histories of Imposition
and Appropriation,” Harvard International Law Journal 51, no. 2 (2010): 475–552.
10 The Birth of the New Justice

international lawyers from Central and South America, China, and Japan critiqued
and/or developed ideas about international criminal law to advance their own states’
claims to sovereignty and inclusion into the community of “civilized” states, or
whether they too believed that a better system of enforcement of international law
would protect the general peace and security across borders. Furthermore, the post-
1950 period is ripe with opportunities to investigate how international criminal law
has been championed, criticized, and transformed in Africa.21 This, however, is
beyond the temporal scope of this book.
Finally, this book is informed by the concept that particular forms of political
violence (uncoordinated scattered attacks, the ritualized violence of executions and
blood feuds, state-sponsored mass violence, and other types) may be transformed
into other forms of political violence depending on the social actors involved and
the state authorities’ level of control over domestic politics.22 However, it does not
appear that all collective violence stems from contentious politics, in which differ-
ent political groups make competing claims against each other and come into
conflict due to their set identities and us/them boundaries. Some of the victim
groups in this book were not involved in contentious politics but were perceived as
threats and internal enemies. Numerous factors set constraints that determine the
level of co-ordination of political violence and its extent. These include the degree
of government control, the resources available to networks of potentially violent
actors, and the coherence of these networks.
Chapter 1 outlines some of the basic nineteenth century precursors to an inter-
national criminal system and argues that both state sovereignty and the historical
formation of the constitutional state hindered its development. Chapter 2 explains
the emergence of “new justice” ideas at the Paris Peace Conference, arguing that a
group of Allied jurists and diplomats, the Commission on the Responsibility of the
Authors of the War and on the Enforcement of Penalties, formulated the basic
concepts for special political, moral, and historical purposes. Chapter 3 deals with
two types of crimes raised at the Paris Peace Conference, “crimes of denationaliza-
tion” and “crimes against humanity,” arguing that these did not become funda-
mental components of the “new justice” in the inter-war period because of the
implementation of alternative solutions and special problems in the Balkans.
Chapter 4 argues that multiple organizations after World War One sought to deal
with the legal problem of war, and violations of the laws of war, in different ways:
the new League of Nations charged the Advisory Committee of Jurists, a body
of international jurists, with writing the rules for a permanent international court
(a non-criminal court) in 1920; the Red Cross movement attempted to form an

21
On this subject, see Tim Allen, Trial Justice: The International Criminal Court and the Lord’s
Resistance Army (London: Zed Books, 2006), who shows why the Ugandan government turned to the
International Criminal Court in The Hague after trying a general amnesty for members of the Lord’s
Resistance Army, and why some Ugandans believe that international criminal prosecutions are neces-
sary. Thierry Cruvellier, Court of Remorse: Inside the International Tribunal for Rwanda, trans. Chari
Voss (Madison: University of Wisconsin Press, 2010) exposes many of the political and prosecutorial
shortcomings of this tribunal.
22
Charles Tilly, The Politics of Collective Violence (New York: Cambridge University Press, 2003).
 Introduction 11

international commission to investigate violations of the Geneva Conventions

committed by all sides during World War One; the International Law Association
(ILA), a group of practicing, business-minded lawyers, worked in the 1920s on a
plan for an international tribunal for war crimes prosecutions; and the Association
Internationale de Droit Pénal (AIDP), comprised of criminal law specialists, worked
on a plan in the interwar period for a permanent international criminal court to
prevent aggression and solve jurisdictional conflicts between states. This period saw
the formation of a new field (international criminal law) and the development of
several statutes for international criminal courts, but also a transformation of the
“new justice” away from some of the original intentions to repress war crimes and
aggressive war. Chapter 5 explains the genesis of a 1930s League of Nations anti-
terrorism convention and the proposal for an optional international criminal court
to prosecute accused terrorists. It argues that this project, which was not imple-
mented for political reasons, had illiberal aspects, challenging the notion that the
“new justice” was purely a liberal undertaking.
Chapter 6 argues that an organization originally concerned with minority rights,
the World Jewish Congress, created a “victim-centered” new justice in order to coun-
ter silence about anti-Jewish crimes in Europe committed before and during World
War Two. The organization transformed “new justice” ideas in ways that the crimi-
nological jurists of the 1930s had largely ignored. The World Jewish Congress sup-
ported post-war national prosecutions in some cases but wanted international
tribunals to deal with Nazis and collaborators in Axis states in part to create a legal
precedent that could be used when constructing a new system to replace the failed
League of Nations’ system to protect minorities. Chapter 7 traces the formation and
negotiation of the United Nations Convention on the Prevention and Punishment
of Genocide of 1948, arguing that the original drafters’ goal of creating a legal instru-
ment to prevent genocide was thwarted because of their legal disagreements, political
disputes in the UN about the exercise of international authority, and the willingness
of certain non-governmental organizations to accept a convention that did not
include an international criminal court. Chapter 8 explains the formation of the
“grave breaches” provisions in the revised Geneva Conventions of 1949, which codi-
fied individual criminal liability for violations of the laws and customs of war for the
first time. The chapter argues that the International Committee of the Red Cross
only embraced this idea reluctantly, then helped steer the project in accordance with
its own interests and those of certain Great Powers. A short summary chapter follows
about the grim prospects for the formation of a permanent international criminal
court in the 1950s, arguing against the view that the wave of war crimes trials after
World War Two fundamentally changed the international legal system.
This book is based on published and unpublished institutional records from the
League of Nations and United Nations, unpublished archives of the International
Committee for the Red Cross, unpublished archives of the World Jewish Congress,
private papers of jurists (including Nicolas Politis, Raphael Lemkin, and Jean
Graven), diplomatic archives of the Swiss Federal Government, private papers in
the Hoover Institution Archives, and published proceedings of the International
Law Association, Association Internationale de Droit Pénal, and International Bureau
12 The Birth of the New Justice

for the ­Unification of Criminal Law. I also synthesize material from previous studies
that deal with the positions of governments and non-governmental organizations
toward war crimes trials, international law, and international criminal law.
Although the main argument of the book concerns the development of the “new
justice,” I wish to alert the reader to some smaller unique findings. Nicolas Politis,
a Greek international jurist who was a strong advocate of an international tribunal
after World War One for Bulgarian crimes against its Balkan neighbors, also drafted
an international agreement for a compulsory population transfer between Greece
and Turkey at the Lausanne Conference in 1923, showing both the progressive and
illiberal aspects of international law.23 Raphael Lemkin was not the first jurist to
propose criminal prosecution under international law for violence against minori-
ties: an obscure Welsh lawyer (Frederick Llewellyn Jones) advocated international
prosecution for perpetrators of pogroms several years before Lemkin called for an
international law to prohibit attacks against religious and national groups. One
interesting figure who called on the League of Nations to prosecute an interna-
tional terrorism case in the 1930s was Leon Trotsky, who asked the League Secre-
tariat to prosecute Josef Stalin for ordering the assassination of Trotskyites around
the world. The Secretariat ignored the request, since it did not want to disturb rela-
tions with the USSR. In 1945, the Institute of Jewish Affairs (the research branch
of the World Jewish Congress) wrote an important criminal indictment of major
Nazi criminals that was used by the U.S. Office of Strategic Services; this suggests
that arguments about the impact of intelligence services on war crimes prosecu-
tions may need to be revised to reflect the input of non-governmental organiza-
tions.24 This book also includes new information about why Vespasien Pella
remained a diplomat in Romania’s foreign ministry through 1944, despite the fact
that Romania sided with the Axis. Evidence from the Swiss Federal Archives (not
only from Pella’s post-war correspondence) shows that he hoped to negotiate with
the Western Allies and take Romania out the war, though he was then fired by
Marshal Ion Antonescu. Pella’s controversial position may help explain some of the
complex reasons for the bitter relations that developed between Pella and Lemkin
after World War Two. Both had worked together on international criminal law
projects since the 1920s and helped write the first draft of the U.N. Genocide
Convention in 1947, which includes concepts that they had developed in the
1930s. Pella’s role in this is somewhat underappreciated.25 Finally, ICRC records

23
Eric D. Weitz, “From the Vienna to the Paris System: International Politics and the Entangled
Histories of Human Rights, Forced Deportations, and Civilizing Missions,” American Historical
Review 113, no. 5 (2008): 1313–43, also discusses this dichotomy. He argues that the construction of
the post-World War One system of mandates, minority rights, population transfers, and homogene-
ous nation-states was based on a concept of “population politics” that developed from both liberalism
and colonialism in the nineteenth century.
24
Compare with Michael Salter, US Intelligence, the Holocaust and the Nuremberg Trials: Seeking
Accountability for Genocide and Cultural Plunder (Boston: Martinus Nijhoff, 2009), vol. 1, 1–55, who
argues that the main information channel was between the US Office of Strategic Services and US war
crimes prosecutors.
25
John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave
Macmillan, 2008), 19, 89–91, 131–2, 194.
 Introduction 13

suggest that its legal department in 1949 played a role in ensuring that the revised
Geneva Conventions would not require the use of an international criminal court;
instead the organization preferred the use of national tribunals. This indicates that
the British government was not the only party responsible for cutting an explicit
reference to an international criminal court.26

26
Geoffrey Best, War and Law Since 1945 (New York: Oxford University Press, 1994), 162–3.
 1
Nineteenth Century Precursors
of an International Criminal Legal System

During the long nineteenth century, there were several forerunners to the concept
of an international criminal legal system, though they were aimed at specific prob-
lems and their ultimate application, if successful at all, was limited. These included
mixed courts to suppress the slave trade, the development of international conven-
tions establishing rules of war, a proposal for an international criminal court,
attempts to institute international arbitration to solve inter-state disputes, and the
beginnings of transnational police co-operation to repress anarchist and socialist
terrorism. Different social groups, including government representatives, upper
middle-class lawyers, businessmen, and police officials, supported these projects,
inspired by Enlightenment ideas of progress, paternalistic humanitarianism, the
notion that human affairs could be regulated by rules and bureaucracy, and a fear
of social revolution. This chapter will present a brief overview of the main precur-
sors in order to show that although various groups advanced internationalist ideas
in the field of law and international order, attempts to marry international law
with criminal prosecution were considered premature or risky for several reasons.
The ideological tenet of state sovereignty was dominant in international relations:
the standard practice after a war was to exchange prisoners and grant amnesty, not
prosecute them for violations of the laws and customs of war. The idea that states
should share legal principles for collective security in their own self-interest was a
new concept that was only gradually incorporated into international institutions.
The basis of criminal prosecution was the municipality, imperial state, or ­nation-state,
not an international authority.
The courts of mixed commission that Britain established with Portugal, Spain,
the Netherlands, Brazil, and the United States between 1817 and 1871 were inter-
esting forerunners to a sort of multi-national legal system. These bi-national courts
were designed to repress the slave trade, which these countries had outlawed
between 1807 and 1830. The courts, sitting in Rio de Janeiro, Havana, Surinam,
Freetown (Sierra Leone), and elsewhere, decided whether the seizure of a slave ship
was legal and whether the African prisoners on board could be liberated. Accord-
ing to historian Leslie Bethell, the courts had considerable success, taking over six
hundred ships out of commission and liberating almost 80,000 slaves. However,
the actual implementation of the system was not international: Britain provided
the naval patrols to find slave ships, and only Britain halted and searched ships
outside its territorial waters. The mixed courts had no power to prosecute or p ­ unish
 Nineteenth Century Precursors 15

the captains, crews, or ship owners, who were supposed to be delivered to their
own states for trial. Furthermore, after 1839, British vice-admiralty courts, not the
mixed commissions, became the main bodies that decided the legality of seizures.
This occurred because Anglo-Portuguese negotiations for a new treaty to suppress
the Portuguese slave trade to Cuba and Brazil broke down, and Portuguese slavers
began sailing without flags and papers, leading Britain to take matters into its own
hands and seize Portuguese ships unilaterally. Additionally, the mixed commissions
became unreliable, because non-British commissioners favored vessels owned and
operated by their co-nationals and were opposed to the British idea that ships
merely outfitted for slaving could be seized, even if they had no prisoners aboard.
Thus this was an international idea whose enforcement largely depended on the
actions of the world’s major sea power, acting unilaterally, and there was no com-
ponent of an international court that punished the people responsible for slave-
trading.1
Some basic rules of warfare, aimed at ensuring the neutrality of medical corps
and prohibiting further injury to soldiers who were sick and wounded, were codi-
fied in the mid-nineteenth century. In 1859 a Swiss businessman, Henri Dunant,
witnessed the harsh reality of warfare at the Battle of Solferino, where 6,000 sol-
diers were killed in a major battle that was part of the Italian struggle for unifica-
tion against the Austrian empire. For Dunant, who organized a makeshift hospital
to care for a portion of the wounded (there were a total of 40,000), the central
problem was the lack of organized relief to care for the dying and wounded: they
were left for days in the field because transportation was insufficient, there was a
shortage of doctors, and the nearby villages were overwhelmed with suffering com-
batants. Two years later, Dunant published a famous book that proposed the idea
that neutral organizations, recognized by an international convention, could care
for the wounded. The idea was not to eliminate warfare, which Dunant and others
did not think realistic, but to reduce the suffering of combatants and convince bel-
ligerent states that it was in their interest to agree officially to treat volunteer medi-
cal corps as non-combatants. Dunant, along with Swiss jurist Gustave Moynier
and other private Swiss doctors of Calvinist background from prominent Geneva
families, formed a “Geneva Committee” to assist the victims of warfare. Inspired
by the values of Christian charity and dependent on Swiss government neutrality
in international relations, this group became the International Committee of the
Red Cross. It drafted and help negotiate a very basic, yet important, set of rules
contained in the Geneva Convention of 1864—prohibiting attacks on wounded
and sick soldiers, requiring a belligerent state to care for enemy sick and wounded
who were captured, and forbidding all attacks on medical personnel wearing a
white armband with a red cross insignia.2

1
Leslie Bethell, “The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in
the Nineteenth Century,” The Journal of African History 7, no. 1 (1966): 79–93.
2
François Bugnion, The International Committee of the Red Cross and the Protection of War Victims,
trans. Patricia Colberg, Edward Markee, and Nicolas Sommer (Oxford: Macmillan Education, 2003),
6–28.
16 The Birth of the New Justice

Yet there were some fundamental limitations to this new legal system and the
role of the International Committee, which are important to bear in mind when
understanding the later evolution of the idea of international criminal prosecution
for violations of the laws and customs of war. First, the Geneva Convention of
1864 offered no explicit protections to prisoners of war (this only came into being
with a separate convention, the Hague Conventions of 1907), nor did it offer any
protections for civilians who were under occupation or found themselves in a war
zone during hostilities. (Rudimentary rules in that area also only came into being
with the Hague Conventions of 1907 and, even then, they did not forbid the
­taking of hostages or the use of reprisals against a civilian population.) Second, the
International Committee’s main task in the nineteenth century was delivering aid
and urging respect for the rules, not enforcing them with criminal penalties.
Its work was highly practical, transporting supplies to the sick, the wounded,
and prisoners of war in the Franco-Prussian War of 1870. It was also a legal guard-
ian, defending the 1864 Convention when various parties wanted to revise it (and
weaken it). However, its nineteenth century efforts to enforce the convention were
piecemeal and ineffective. During the Russo-Turkish War of 1875–78, it tried to
use private diplomacy to urge the Ottoman Empire to adhere to the convention,
but when this failed, it went public with a one-sided, unverified set of accusations
against the Turkish army. According to Red Cross authority, François Bugnion,
this “resulted only in a macabre and sterile controversy; it doesn’t seem as though
anything was done to establish the facts, nor to punish those guilty of violating the
convention.”3 Prior to World War One, the organization did not have a consistent
policy for violations of the convention.4 During the war it simply published the
complaints and answers of each belligerent, taking the position that to do anything
else would jeopardize its neutrality and hinder its ability to carry out its main tasks
of delivering supplies and tracking the wounded, sick, and prisoners of war, which
required good relations with all sides.
The third great problem regarding the enforcement of the Geneva Convention
of 1864 was significant resistance from both government officials and certain inter-
national lawyers to creating an international tribunal that would investigate viola-
tions of it. On the one hand, two prominent jurists supported the idea. As historian
Daniel Marc Segesser describes, Gustave Rolin-Jaequemyns, a Belgian lawyer and
liberal-radical politician, proposed in 1871 that either an international tribunal or
an international investigating committee could examine violations of the conven-
tion, an idea inspired by ardent German accusations in 1870 that the French had
misused the red cross insignia, and French accusations that the Germans had failed
to respect it. In 1872, Moynier, then President of the International Committee of
the Red Cross, wrote a statute for an international tribunal in which judges (com-
prised of representatives from the belligerent states, plus neutral ones) would hear
cases brought forward by a belligerent state that alleged the 1864 Convention had
been violated. The court would have ruled on the guilt or innocence of individuals

3
Bugnion, The International Committee of the Red Cross, 39–41.
4
Bugnion, The International Committee of the Red Cross, 51.
 Nineteenth Century Precursors 17

(an important first) while the state that had taken them into custody would carry
out the punishment. Only two governments, the Spanish and the Italian, sup-
ported further discussion of the idea, and several prominent jurists at the time—
Francis Lieber, who had written famous rules of warfare for the Union Army of the
United States at President Abraham Lincoln’s request, and John Westlake, a found-
ing English member of the Institute for International Law—raised critical ques-
tions. Wouldn’t the court limit state sovereignty? And wouldn’t witnesses who had
been traumatized by the battlefield provide unreliable testimony in court? Franz
von Holtzendorff, a German international lawyer, welcomed the idea but noted a
hard reality in the world of constitutional states: governments were not willing to
extradite their nationals to another state to stand trial in peacetime, so they were
hardly likely to do so in wartime.5
The overall reasons for the lukewarm reception to Moynier’s idea were threefold.
This was the age of strong nationalism and the relatively recent build-up of the
state’s legal bureaucracy, whose power should not be challenged. Additionally, the
sovereign state was the basis of the nineteenth century international order, and
disrupting that with an unpredictable international institution was risky.6 Finally,
there was no existing legal institution that already served some type of interna-
tional judicial function (such as commerce or international relations) that could be
extended to the conduct of warfare. The bourgeois lawyers’ distrust of old imperial
institutions, arbitrary and unchecked, haunted their consciousness.
The more extensive Hague Convention of 1899 (the Convention with Respect
to the Laws and Customs of War on Land) limited the types of weapons and
attacks that could be used against enemy soldiers, and forbid pillaging and attacks
on civilians.7 These rules were extended by the 1907 Hague Convention, which
was signed by forty-four states. However, that convention did not specify that a
state or military could put an enemy individual on trial for violating these rules.
It only stated that a belligerent would pay compensation to another belligerent if
its armed forces committed violations. Louis Renault—France’s leading interna-
tional jurist and an important contributor to the two Hague conventions—noted
in 1918 that Hague delegates in 1907 had passed over the question of penal liabil-
ity too quickly. They only thought of enforcement in terms of civil responsibility,
not international crime, which would incur an individual penalty. Renault thought
that applying criminal penalties against enemy forces during a conflict was more
just than reprisals, arguing that the idea of criminal liability had already been
implied in 1874, when a French general at an international conference in Brussels
proposed that states harmonize their military codes and apply proportional penal-
ties. But this was an esoteric legal argument, not the practice of the time. Renault
acknowledged in 1918 that reprisals could be used in extreme cases, but the danger

5
Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen
in der internationalen wissenschaftlichen Debatte 1872–1945 (Paderborn: Ferdinand Schöningh, 2010),
90–4.
6
Segesser, Recht statt Rache oder Rache durch Recht?, 140–1.
7
Benjamin B. Ferencz, An International Criminal Court: A Step Toward World Peace—A D­ ocumentary
History and Analysis (Dobbs Ferry, N.Y.: Oceana Publications, 1980), vol. 1, 9–15.
18 The Birth of the New Justice

was that if the French employed them, they would soil their reputation in the eyes
of neutral states, which would forget who had initiated the violations of the laws
and customs of war in the first place. France would then run the risk of being con-
fused with Germany, “the propagators of Kultur,” he concluded ironically.8
The provision that a state should pay reparations for violations of the laws of war
was actually introduced by the German delegation at the Hague Conference in
1907, because Germany had been sharply criticized for a book that its Great Gen-
eral Staff had issued in 1902. This work, Kriegsbrauch im Landkriege, disparaged
the nineteenth century trend to “humanize warfare,” arguing that the command-
er’s decisions and reliance on “knightly” custom trumped international legal codes
of war. In fact, the author cynically claimed that all attempts to create a binding set
of laws of war had “completely failed.”9 Reprisals, the use of violent counter-­
measures, were the only measures that the enemy understood. Although the book
did state that the Geneva Convention of 1864 absolutely had to be obeyed, and
that prisoners of war had to be interned in decent conditions, the book also sug-
gested that the Hague Regulations, including the rules dealing with the treatment
of a civilian population, were really voluntary, not obligatory.10 For international
­lawyers who opposed the most ardent European militarists (who were not only
German), this was an outrage. During the Hague Conference of 1907, therefore,
Germany proposed financial sanctions for states that violated the Hague rules to
show that it took the obligatory character of the rules seriously.11 But the Hague
rules had a convenient loophole for all the powers who pledged their allegiance to
them. They only had to be obeyed “as far as military requirements permit”—a
defense used by both the Allies and Central Powers in the First World War. Fur-
thermore, five belligerents in the First World War—Turkey, Italy, Greece, Serbia,
and Bulgaria—had either not accepted or not ratified the two Hague Conventions.
This created a legal problem because the Fourth Hague Convention of 1907 stated
that the convention’s rules of war only applied if all the belligerents were parties to
the convention.12 Allied Jurists and statesmen at the Paris Peace Conference in
1919 conveniently circumvented this fact by claiming that those conventions had
simply “declared” the existing laws and customs of war, which were already part of
the “law of nations.”13

8
Louis Renault, “De l’application du droit pénal aux faits de guerre,” Revue Générale de Droit
International Public 25 (1918): 29.
9
Grosser Generalstab. Kriegsgeschichtliche Abteilung I, Kriegsbrauch im Landkriege, vol. 31,
Kriegsgeschichtliche Einzelschriften (Berlin: Ernst Siegfrief Mittler und Sohn, 1902), 2.
10
Ibid., 1–3, 9, 15, 25. For the transmission of these ideas into German officer training, see John
Horne and Alan Kramer, German Atrocities, 1914: A History of Denial (New Haven and London: Yale
University Press, 2001), 148–51.
11
Louis Renault, “War and the Law of Nations in the Twentieth Century,” American Journal of
International Law 9, no. 2 (1915): 6–7; Geoffrey Best, Humanity in Warfare (New York: Columbia
University Press, 1980), 146, 176–9.
12
Article 2, Convention (IV) respecting the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land. The Hague, October 18, 1907.
13
Plenary session, Commission on Responsibilities, March 24, 1919, La Documentation Interna-
tionale, La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions, ed. Albert de Lapradelle
(Paris: Les Éditions Internationales, 1930), 3: 419–22.
 Nineteenth Century Precursors 19

Although Moynier’s attempt to generate serious consideration of his idea for an

international court to prosecute violations of the Geneva Convention was not suc-
cessful, international lawyers in the later nineteenth century advocated the creation
of a sort of international court that would hear cases involving disputes between
states. The fundamental idea was that in case of disputes over the right to seize
ships, the location of borders, or the interpretation of treaties, an impartial body of
learned legal and political authorities could hear evidence from both sides and then
issue a ruling which both states would voluntarily accept—and avoid going to war.
This idea gained traction because European, North American, and South Ameri-
can states had increased their business connections during the nineteenth century.
In light of the colonial wars of the eighteenth century and the Napoleonic wars
and economic blockade of the nineteenth century, lawyers, government officials,
and bankers recognized that wars disrupted trade, caused shortages, and led to a
loss of investments. Plus, intellectually, international lawyers believed that the
processes used to settle disputes in capitalist society—analyzing contracts, bringing
parties before a legal authority to give evidence in a case, using legal professionals
to inform a judge about how similar cases had been handled according to custom
and tradition—could be applied on the international level. Various national legis-
latures passed resolutions in favor of compulsory arbitration, and a few treaties
supported the concept of arbitration, such as the 1871 Treaty of Washington
between the United States and Britain (requiring arbitration to settle a dispute over
Civil War damages caused by an American Confederate ship built by Britain), and
the 1890 Pan American Treaty of Arbitration. Between 1815 and 1900, two hun-
dred interstate disputes were submitted to arbitration and were settled without
recourse to war,14 and this trend gave international lawyers and some diplomats the
hope that the process could be regularized and even required for certain types of
disputes. Thus in 1899, as part of a large-scale peace and armaments-reduction
conference at The Hague, twenty-six states negotiated the Convention on the
Pacific Settlement of International Disputes, which established the Permanent
Court of Arbitration.
This was not a true permanent court, however, as its mediation was not binding,
meaning governments did not have to accept its decisions, and its scope only
included disputes “involving neither honor nor essential interests.” If the dispute
involved a state’s security, economic needs, or status, the state did not have to use
the Permanent Court, which was actually a panel of judges that states could call
upon as arbitrators. In 1907, forty-four states met at The Hague and tried to extend
the panel into a true court, but they could not agree to make the court compulsory
or expand the definition of justiciable disputes.15 Purely “legal disputes,” based on
treaties, for example, were considered suitable for legal judgment, while “political
disputes” dealing with national aspirations or essential interests were deemed

14
F. P. Walters, A History of the League of Nations (Westport, Connecticut: Greenwood Press, 1986
[1952]), 9–10.
15
On the First and Second Hague Conferences, see Ferencz, An International Criminal Court:
A Step Toward World Peace—A Documentary History and Analysis, 1: 5–20.
20 The Birth of the New Justice

o­ utside the scope of a court.16 In 1907, states did succeed in negotiating a Code of
Naval Law and an International Prize Court, designed to hear cases concerning the
search and seizure of neutral ships, but no state ratified the agreement.
The supreme test of arbitration came in the summer of 1914, when the British
Foreign Minister, Edward Grey, belatedly proposed that Austria and Serbia use
arbitration to settle their volatile dispute over Serbian responsibility for the Franz
Ferdinand assassination. Yet the main powers behind them, Germany and Russia,
did not lean on them to accept arbitration. The multiple factors leading to the
war—­ Germany’s internal social conflicts and drive for world-political status,
­Austria’s ­interest in crushing Serbia as a Balkan upstart, the simmering colonial
conflicts ­outside Europe, the polarization of the alliance systems—made it unlikely
that ­ international arbitration would have been accepted. Nevertheless, some
­international lawyers expressed the view after 1918 that, if only the major states
had been able to establish a court prior to 1914, the whole catastrophe could have
been avoided. Thus the determination to regulate international diplomacy through
international legal processes was actually strengthened by the colossal carnage of
World War One.
Diplomats and international lawyers were not the only ones interested in
­creating an international legal system. Police officials in the nineteenth century
from around the world were interested in formalizing bilateral contacts, escaping
the constraints of legal jurisdictions, and dealing firmly with the socialists and
anarchists who traveled through Europe and North and South America. After
1848, police co-operation was mainly based on individual police contacts, though
German states formed a Police Union to track liberals, nationalists, and commu-
nists, all considered threats to absolutist rulers. By the 1860s, some European
police forces were gaining administrative independence from their political over­
seers and wanted to establish formal systems to exchange information that did not
have to travel through government ministries, which was time-consuming and
subject to legal restrictions. In the 1880s and ’90s, police began routinely using
photographs, head and face measurements of suspects, and fingerprints—informa-
tion they could share by mail and telegraph.17 Simultaneously, they faced a new
revolutionary threat: Russian socialist revolutionaries; Russian and German anar-
chist bomb-throwers; and the growing power of trade unions. Then, when an Ital-
ian anarchist assassinated the Austrian Empress Elizabeth in Geneva in 1898,
police and state officials decided to hold the “International Conference in Rome
for Social Defence against Anarchism.” There, government and police officials
from twenty-two states called for the deportation of foreign anarchists and
expressed the desire to share more surveillance information.
Yet there were major legal, procedural, and cultural obstacles to creating an
international legal regime that would crack down on bomb-throwers, anarchist

16
On the history of the debate concerning legal versus political disputes, see Hersch Lauterpacht,
The Function of Law in the International Community (Oxford: Oxford University Press, 1933), 51–60,
particularly the views of Goldschmidt and Trendelburg.
17
Mathieu Deflem, Policing World Society: Historical Foundations of International Police Cooperation
(New York: Oxford University Press, 2002), 49–51, 57–62, 93–4.
 Nineteenth Century Precursors 21

worker groups, and pamphlet publishers. First, every state had its own legal juris-
diction and in some cases claimed jurisdiction over its nationals when they com-
mitted a crime abroad. There was no universal system of extradition, and some
states were not willing to deliver a suspect if the act was not a crime according to
their legal code. Furthermore, in trying to devise an overarching plan to expel
anarchists and strengthen laws against them, state officials and police had to agree
whether publishing anarchist writings and holding meetings to discuss anarchist
ideas were crimes. The Swiss and British governments, coming from liberal tradi-
tions, opposed this. Finally, Swiss neutrality created a special problem, because
Switzerland was willing to grant asylum to foreign anarchists and socialists if they
were willing to abjure all violence against their homeland while residing in Switzer-
land. All these hurdles meant that police were unable to develop a centralized
international police agency or an international legal jurisdiction—one legal frame-
work giving different police forces and national courts that same power of arrest,
detention, and prosecution—for “terrorists.”18
Apart from these diverse legal projects, two organizations, the Institute of
International Law (the Institut de droit international, founded in 1873) and the
International Union of Criminal Law (the Internationale Kriminalistische Vereini-
gung, founded in 1888), contributed a set of ideas, moral values, and interest in
political engagement that spread to later generations devoted to developing inter-
national criminal law. The Institute developed international law as a new disci-
pline based on a sociological intent to help European public law progress according
to social changes, rather than remain static and deal only with the mechanisms
and formalities of diplomatic relations. The group was formed by liberal-minded
European publicists, lawyers, humanitarians, and politicians, some of whom were
shocked by the harshness of the Franco-Prussian War of 1870–71. Others were
seized by a new spirit of internationalism that accompanied the second wave of
European industrialization, urbanization, transnational migration, and trade lib-
eralism in the later nineteenth century. Its founding figures included the above-
mentioned Rolin-Jaequemyns, Westlake, and Moynier, as well as a Dutch lawyer,
Tobias Asser, the German international lawyer, Johann Caspar Bluntschli, and the
Italian Foreign Minister Pasquale Mancini. This constellation of lawyers, activists,
and politicians sought to liberalize states by abolishing servitude, establishing the
right to free assembly, and reforming harsh penal laws; they also wanted to codify
private law to establish international rules for contracts and disputes among indi-
viduals from different countries. Regarding colonialism, they were opposed to
private companies ruling colonies as their sovereign territories, which they believed
led to excesses and inter-state conflicts. Instead, they believed that states had a
duty to occupy and directly govern colonial regions in the interest of “civilizing”
the colonial subjects. This was supposed to have the benefit of both imparting the
cherished European legal concept of sovereignty to them, as well as supposedly
preventing the power conflicts that arose when states did not “effectively” occupy

18
Hsi-huey Liang, The Rise of Modern Police and the European State System from Metternich to the
Second World War (Cambridge: Cambridge University Press, 1992), 155–69.
22 The Birth of the New Justice

their colonies.19 They did not reject nationalism as a destructive or exclusivist force,
but embraced it as a positive development that existed universally in all peoples.
However, World War One dissolved the movement, which separated into national-
ist camps and multiplied into new intellectual trends in international law.20
Although the Institute’s thinkers and activists were involved in different projects,
three elements from their politics, ideology, and cultural viewpoint are impor-
tant for later developments after the First World War. The first was their liberal-­
conservative orientation. On the liberal side, they believed international law should
progress according to changing social values (and they saw themselves as the keep-
ers, or the “conscience” of those values), while on the conservative side, they were
staunchly anti-revolutionary and opposed to socialism. Second, although Institute
members did not share a single theory about the operation of a state, its relation-
ship to its citizens, and the foundation of its laws, they viewed the state as a positive
development in the history of civilization. While their liberalism left room for the
protection of individual rights, the contemporary postmodern view of the state—
that it is an institution of control, brutality, and violence—was a far cry from their
concepts. Third, the nineteenth century international lawyers believed in gentle-
manly conduct in international affairs (among European nations, the only group
that truly qualified as equals), and war as a matter of honor (especially since it had
to be fought according to civilized rules). This was vastly at odds with the actual
politics and conduct of the time, but this belief in an elite, civilized manner of
conducting the business of governance and diplomacy persisted in later jurists’
ideology that systems and laws could regulate the world’s problems.
While the Institute expressed its spirit of internationalism by attempting to
codify private law and reform European states along liberal lines, the International
Union of Criminal Law (die Internationale Kriminalistische Vereinigung) wanted to
reform criminal laws so that punishment would “correct” the criminal’s behavior
and render him or her safe for society, rather than merely imposing retribution to
uphold principles of right and wrong.21 The group was founded in 1888 by three
professors of criminal law: the Austrian, Franz von Liszt (1851–1919, active in
Germany), the Dutchman, Gerardus van Hamel (1842–1917), and the Belgian,
Adolphe Prins (1845–1919). Earlier in the nineteenth century, European coun-
tries had reacted to the social effects of industrialization and urbanization by ­adding
new crimes and harsher penalties to their penal codes. For the founders of the

19
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law,
1870–1960 (Cambridge: Cambridge University Press, 2002), 144–55.
20
On the history of the Institute, see Koskenniemi, The Gentle Civilizer of Nations, 65–79, 95–7.
On the fate of the Institute, see Martti Koskenniemi, “Nationalism, Universalism, Empire: Interna-
tional Law in 1871 and 1919” (paper presented at “Whose International Community? Universalism
and the Legacies of Empire,” Columbia University, Department of History, April 29–30, 2005),
24–5.
21
J.A. Van Hamel, “The International Union of Criminal Law,” Journal of the American Institute of
Criminal Law 2, no. 1 (1911): 22–7; Marc Ancel, “The Collection of European Penal Codes and the
Study of Comparative Law,” University of Pennsylvania Law Review 106, no. 3 (1958): 356; Elisabeth
Bellmann, Die Internationale Kriminalistische Vereinigung (1889–1933) (Frankfurt am Main: Peter
Lang, 1994), 14–31.
 Nineteenth Century Precursors 23

International Union, the classical school of penal law failed to consider the socio-
logical causes of crime, the make-up of the criminal and his intentions, and the
role punishment should play in preventing crime and recidivism. The group grew
to over two hundred jurists, lawyers, doctors, and psychiatrists from around
Europe. By organizing congresses and publications, they helped develop the idea
that juveniles should be treated differently from adults, the state should employ
reformatory schools and workhouses, not only prisons, and repeat offenders should
be removed from society to prevent them from doing further damage to it. Between
the end of the nineteenth century and the first decades of the twentieth, jurists
were influenced by this school of “social defense” and integrated its concepts into
European legal systems.22
Although the Union fell apart due to tensions between the German-Austrian
and French-Belgian sides during World War One, the group’s intellectual views
influenced jurists who wanted to build a new field of international criminal law in
the 1920s and ’30s. While some of the International Union’s ideas sound enlight-
ened and “liberal” to the modern sensibility—the notion that punishment should
be tailored to the criminal’s age and past record, and that in many cases, reduced
sentences and probation may modify behavior more than a penitentiary sentence—
many of the jurists, who were liberal in the sense that they supported parliamen-
tary democracy, still gave a strong role to the state as an administrator and controller
of behavior. For example, von Liszt hoped that the new “socialist” orientation
(meaning the idea of protecting society, not Marxist socialism) would overcome
liberalism and lead to a reformed criminal code in Germany. In 1893, he wrote:
“Liberal individualism, which affirms the interests of the individual against the
collective, the spirit of the Enlightenment and the great French revolution that
emerged from it[,] have brought us a sharp limitation of penal authority; will this
be able to resist the incoming socialist current? I welcome this current and I would
then welcome it if it should wash away the [old] penal code together with its
authors and its adherents.”23
The Union also debated whether “habitual criminals,” vagrants, and “inebriates”
could be imprisoned before they actually committed a crime, because they alleg-
edly posed a danger to “common safety.” The German members of the Union sup-
ported these measures, while the French and Russian members argued that the
rights of the individual should be protected against “elastic formulas or arbitrary
confinements.”24 During the 1920s and ’30s, international criminal lawyers con-
tinued this same debate about taking preventative measures to guarantee public
safety, but they discussed the problem in the context of how best to repress and
punish cross-border terrorism, human traffickers, and drug smugglers. Hence
internationalism had another side. It was not only the liberalism of international
institutions devoted to peace, arbitration, and the regulation of warfare. It was also
the development and refinement of repressive mechanisms that could be used for

22
Ancel, “The Collection of European Penal Codes and the Study of Comparative Law,” 358–68.
23
Quoted in Bellmann, Die Internationale Kriminalistische Vereinigung (1889–1933), 17.
24
Van Hamel, “The International Union of Criminal Law,” 26.
24 The Birth of the New Justice

a variety of social and political purposes by states, as a collective group, to maintain

their internal social structure and moral boundaries.
Another important consequence stems from the demise of the International
Union and its division into a Francophone/Eastern European camp and a Ger-
manic camp after World War One. French jurists started a new organization, the
International Association of Penal Law (Association Internationale de Droit Pénal ),
in 1924, but did not invite German and Austrian jurists to join.25 The German
government refused to send delegates to the association’s first congress in Brussels
in 1926, and this continental separation persisted during the interwar period. The
greatest separation, however, came as a result of the Paris Peace Conference and the
Versailles Treaty system. As the next chapter will explain, Allied jurists and diplo-
mats advanced the concept of an international tribunal to punish German viola-
tions of the laws and customs of war (as well as the unleashing of the war itself ),
which meant that imperial Germany became the basic model for the type of state
and military that would order and condone such actions. The issue is not whether
it was fair to exclude the German delegates and jurists from the Peace Conference
negotiations, or whether the Allied attempt to punish was one-sided. Rather, the
use of Germany as the model of an aggressive state whose rulers and generals dis-
regarded international laws meant that the German case became the yardstick for
the development of legal theories and legal machinery. Jurists focused on order-
givers, order-followers, military staffs, and occupation policies, but did not analyze
non-military organizations or the exact connections between ideological political
parties and the perpetration of mass crimes. These problems had existed during the
1890s—the Turkish massacre of Armenians in 1895, the formation of Balkan ter-
rorist groups and irregular armed bands, the influence of xenophobic nationalist
and religious hatred on collective violence—but they became even more wide-
spread in Europe during the 1930s–40s. Certain theories of criminal behavior and
war-time conduct that emerged between the 1880s and the 1920s did not fit them
particularly well. Thus, one of the intellectual-historical problems that this work
will later address is how particular historical situations shaped a set of legal ideas,
and jurists then tried to fit these ideas to new political situations and expanded
forms of collective violence, usually with mixed success.

* * * * *
Stepping back from the individual internationalist projects in the pre-World War
One period, there are some general reasons why criminal prosecution remained
national and municipal in this period, and why, in an age of expanding colonial-
ism, postal unions, telegraph unions, transcontinental railways, and transoceanic
passenger ships, an international concept of prosecution and punishment did not
decisively emerge. First, the independence of the sovereign ruler had been an
accepted part of diplomacy since the end of the Thirty Years War in Europe (1648),
when it was agreed that territorial rulers had the right to undertake their own
diplomacy (separately from the Holy Roman Emperor) and that they had the right

25
Bellmann, Die Internationale Kriminalistische Vereinigung (1889–1933), 138–46.
 Nineteenth Century Precursors 25

to determine the religion in their territories. The absolutist state of the seventeenth
and eighteenth centuries strove to expand its borders, regularize military service,
and centralize taxation for the purposes of fighting wars and protecting trade
routes. Legal theorists and publicists distinguished between a state’s right to make
war and the rules that the military should follow when conducting the war. The
military was under the control of the monarch, and only with the gradual intro-
duction of constitutional regimes was it placed under parliamentary control, in
some cases (such as Germany) not until after World War One. This meant that
military discipline and punishment for violations of military legal codes were
strictly internal matters, not subject to the legal processes of other states. Following
wars, states customarily exchanged prisoners and granted amnesty; they did not
prosecute enemy soldiers for acting dishonorably, failing to follow customs, or
violating the victorious state’s military regulations.
Second, the military in Europe, even after the bourgeois constitutional revolu-
tions of 1848–49, remained a powerful caste, holding great status and authority.
Its leaders held that certain rules of warfare were acceptable as long as commanders
in the field could exercise their judgment about when they should be applied. They
did not want their hands tied when the possibility of quick victory was in sight, or
when it seemed legitimate to take reprisals against the enemy to punish him for
some violation of customary law. In the nineteenth century era of guerrilla warfare,
when partisans, villagers, and bandits formed their own self-defense organizations
(common in the Spanish war of liberation against Napoleon in 1808, the Serbian
revolution of 1804, and the Greek revolution of 1821), military leaders did not
want to recognize irregular soldiers as deserving protection as prisoners of war
unless they were under a centralized command, wore a distinctive insignia, and
carried their weapons openly. Additionally, between 1890 and 1914, military lead-
ers claimed that if they had the freedom to conduct a war “according to military
necessity,” they could fight a faster war, which would mean a shorter war with sup-
posedly fewer casualties. This required that the military leader should have discre-
tion over which “customs” of warfare should be followed. As the German manual
stated, the officer must use all means necessary to achieve his objective; secondary
considerations came from “the precepts of religion, civilization, and honor,” not
international law.26 The reality, however, was that in colonial wars, such as the Ger-
man military’s scorched earth and genocidal policy against the Herero and Nama
people in southwest Africa in 1904, German military commanders shared an insti-
tutional culture that prioritized the total destruction of the enemy, believing that
the only way to eliminate the causes of colonial rebellion root and branch was to
take no prisoners and deliberately murder the civilian population.27
Third, European lawyers and legislators reformed their penal codes within the
framework of the state and municipality’s authority. Unifying the principles of
criminology and punishment across the European continent did not mean ­creating

26
Grosser Generalstab. Kriegsgeschichtliche Abteilung I, Kriegsbrauch im Landkriege, 31: 9.
27
Isabel V. Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany
(Ithaca, NY: Cornell University Press, 2005), 2–3, 28–33.
26 The Birth of the New Justice

a universal jurisdiction or an international legal system. The reason for this was
that municipal prosecution developed from the privileges and the rights of the
town, and the town’s patricians, merchants, and craftsmen had fought to maintain
these rights against the expanding power of the prince or king in the early modern
period. Additionally, after the revolutions of 1848–49 and the new constitutions
that followed, states gradually introduced new penal codes and bureaucratized
their legal systems. The educated male bourgeois believed that the legal safeguards
over trial and punishment should be the same for all, irrespective of social caste or
class. This hard-won right became part of the core of the national tradition and its
institutions. The legal process was housed in the cherished hall of justice (proudly
displayed in most European cities), not the lord’s manor or the king’s court. There-
fore, it was both a conceptual leap and a risk to propose that individuals, who had
only gained definite legal safeguards in criminal proceedings over the last century,
should now become subject to international law and possibly an international
court. This was further backed up by the central doctrinal concept of international
law prior to World War One: the law of nations dealt with sovereign states, not the
subjects and citizens who actually peopled them.
 2
The Birth of the New Justice
at the Paris Peace Conference

The atrocities of the First World War, the political requirements of the peace
­settlement, and the war’s destruction of European legal ideas and moral conventions
catalyzed three approaches to deal with war and war crimes between 1919 and 1922.
The first was the Allies’ attempt in 1919–20 to establish post-war international war
crimes trials, the subject of this chapter. There were two other political-legal responses
as well, which Chapter 4 will analyze: the Hague negotiations to write the statute for
the Permanent Court of International Justice in 1920, when an official Commit-
tee of Jurists debated creating a permanent international criminal chamber, and a
proposal by certain national Red Cross societies in 1921–22 to create a neutral inter-
national commission which would investigate violations of the laws and customs of
war committed by any belligerent during the First World War.
Previous historians have analyzed the facts and cultural interpretations of Ger-
man atrocities, the history of the Paris Peace Conference negotiations, the work of
the Commission on Responsibilities (a body of legal advisors which formulated
two competing plans for post-war punishment), the extradition negotiations, and
the failure to implement the penalty clauses of the Versailles Treaty.1 My analysis
concentrates on the Commission on Responsibilities, a technical body which
advised the Paris Peace Conference on the issue of criminal penalties, in order to
demonstrate the variety of motives and moral positions at work and the difficulties
the delegates faced in hammering out legal and political solutions.2 The European

1
James Morgan Read, Atrocity Propaganda 1914–1919 (New York: Yale University Press, 1941);
James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First
World War (Westport, Connecticut: Greenwood Press, 1982); Walter Schwengler, Völkerrecht, Versailler
Vertrag und Auslieferungsfrage. Die Strafverfolgung wegen Kriegsverbrechen als Problem des Friedensschlusses
1919/20 (Stuttgart: Deutsche Verlags-Anstalt, 1982); John Horne and Alan Kramer, “German ‘Atroci-
ties’ and Franco-German Opinion, 1914: The Evidence of German Soldiers’ Diaries,” Journal of Modern
History 66 (1994): 1–33; Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes
Tribunals (Princeton, N.J.: Princeton University Press, 2000); Nigel J. Ashton and Duco Hellema,
“Hanging the Kaiser: Anglo-Dutch Relations and the Fate of Wilhelm II, 1918–20,” Diplomacy and
Statecraft 11, no. 2 (2000): 53–78; John Horne and Alan Kramer, German Atrocities, 1914: A History of
Denial (New Haven and London: Yale University Press, 2001); Binoy Kampmark, “Sacred Sovereigns
and Punishable War Crimes: The Ambivalence of the Wilson Administration towards a Trial of Kaiser
of Wilhelm II,” Australian Journal of Politics and History 53, no. 4 (2007): 519–37.
2
At least four sources contain the Commission minutes and documents. The French version, La
Documentation Internationale, La Paix de Versailles. Responsabilités des auteurs de la guerre et sanctions,
ed. Albert de Lapradelle, vol. 3 (Paris: Les Éditions Internationales, 1930) contains subcommission
and plenary session minutes from 3 February through 29 March, memos on crimes (submitted to the
28 The Birth of the New Justice

jurists on the Commission sought post-war trials for the German ex-Kaiser and
many major German military and political figures, who were to be prosecuted for
violating the laws and customs of war and the “laws of humanity.” This would have
required that Holland extradite the ex-Kaiser and Germany extradite high-ranking
military figures, which had never before occurred after a war. American jurists and
legal advisors to the Peace Conference were opposed, arguing that a sovereign
could only be held responsible by his people (not a group of outside states) and
that the punishment of enemy officers and soldiers could best be handled by
the military tribunals of each sovereign state. Behind both legal positions were a
variety of political and moral justifications for and against post-war prosecution,
demonstrating that punishment was closely connected to divergent visions of the
post-war international order and the construction of the history of the war.
During their debates at the Paris Peace Conference, the European jurists and
politicians did not speak with one voice, as there were many complex legal prob-
lems they had to work out. However, those who supported post-war trials
advanced a new type of criminalizing imperative: the domestic institutions of
criminal liability, trial, and punishment should be applied to the international
state system. There are several reasons why I term this a criminalizing imperative,
rather than merely referring to it as the application of liberal legal institutions, or
legalism, as American political scientist Gary Bass does in his analysis of war
crimes trials and as Swiss historian Daniel Segesser, following Bass, does in his
analysis of legal scholars’ debates over the definition of war crimes and what types
of legal processes should be used to deal with them.3
First, there were numerous signs in the planning for trials that they were to serve
multiple, sometimes contradictory purposes, not merely legitimize liberal ideas
and express “universal humanitarianism,” as Bass claims.4 These purposes included:

Subcommission on Criminal Acts), and draft and final versions of the Commission’s overall reports.
The minutes represent the delegates as speaking in the first person and include longer statements and
exchanges (except for 24 March, which probably is not a verbatim transcription). The American version
in English, Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties.
Minutes of the Meetings of the Commission, in Yale University Library, Manuscripts and Archives, Frank
L. Polk Papers (MS 656), Box 30, summarizes the delegates’ remarks and puts them into the third
person; they are considerably shorter than the French version. It also does not contain the minutes of
the first subcommission (on Criminal Acts). However, this version contains materials not in the French
version, such as certain documents used by subcommissions, subcommission draft reports, and plenary
sessions from July (dealing with the Balkan tribunal). My analyses rely on these two versions. A third
set, Conférence de la Paix 1919–1920. Recueil des actes de la Conférence, Partie IV: Commissions de la
Conférence (Procès-verbaux, rapports et documents), B. Questions générales, (2) Commission des responsabil-
ités des auteurs de la guerre et sanctions (Paris 1922), was the official version released by the French For-
eign Ministry in 1922. This also contains condensed delegate statements in the third person. (See
Schwengler, Völkerrecht, 91, n. 89.) A fourth version is the unedited stenographic minutes, found in the
National Archives and Records Administration, Washington, D.C., RG 256, used by Peter Holquist,
“ ‘Crimes Against Humanity’: Genealogy of a Concept (1815–1945),” 31–40, paper presented to
“Europe, 1815–1914. Between Restoration and Revolution, National Constitutions and Global Law:
An Alternative View on the European Century 1815–1914.” Helsinki, March 6, 2012.
3
Bass, Stay the Hand, 20–34; Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die
Ahndung von Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872–1945 (Pader-
born: Ferdinand Schöningh, 2010), 20.
4
Bass, Stay the Hand, 23.
 Birth of the New Justice 29

redefining the war so it would not appear to be a colossal waste to the populations
on the winning side; a political means of dismantling the German Great General
Staff and discrediting the German Kaiser; and a cultural–moral process of rebuild-
ing and crucially expanding international law. Second, trial plans proposed by
jurists at the Paris Peace Conference and the discussions by the Council of Four
show that safeguards for the accused were a secondary consideration, when they
were considered at all. The British delegation had put forward a detailed plan for
an international tribunal, guaranteeing a number of rights for the defendants: pub-
lic trials in which the accused would have the right to legal representation; the right
to know in advance the charges, a summary of the evidence, and the witnesses; and
the right to cross-examine the witnesses.5 Yet the final European report made no
mention of any of these, and penalty clause 229 of the Versailles Treaty only stated
the right of the defendant to appoint his own counsel.6
This does not mean that I accept the view of German historian, Walter Schweng-
ler, who argues that the attempt to extradite German nationals after the war was a
French–British act of vengeance that completely violated pre-existing international
law and custom.7 Nor do I contend that the European jurists who supported the use
of post-war trials intended to hold “show trials.” As legal theorist Otto Kirchheimer
argues, a political power can hold a political trial to rebuke or warn its political ene-
mies, reinterpret the past, or construct a wall of morality between past and present
regimes.8 In doing this, the trial does not have to go so far as to involve forced confes-
sions or a pre-determined verdict; it can still have many elements of “fair play.” Fur-
ther, I agree with German legal historian Gerd Hankel, who argues that the Allies’
demands for post-war prosecution were not a stage play to quiet the public or wreak
vengeance, but stemmed from a sincere desire to prevent crimes, such as massacres in
Belgium or the use of unrestricted submarine warfare, in the future.9
However, I would like to explain and analyze several ideas within the European
jurists’ project to expand the notions of crime and punishment to international law
in order to show their eventual contribution to what became the new field of inter-
national criminal law. This requires a historical analysis that does not only ana-
lyze the issue of trials as part of the legal–political history of the post-war peace
settlement, or only answer the question, “Why trials instead of executions or

5
Memorandum submitted by the British Delegates, Annex IV to Minutes of the Second Meeting
of the Plenary Commission, February 7, 1919, Commission on the Responsibility of the Authors of the
War and on the Enforcement of Penalties. Minutes of the Meetings of the Commission, 31–2 in Yale Uni-
versity Library, Manuscripts and Archives, Frank L. Polk Papers (MS 656), Box 30. Future references
to these minutes will be cited as Commission, Polk Papers.
6
Carnegie Endowment for International Peace, Violation of the Laws and Customs of War: Reports
of Majority and Dissenting Reports of the American and Japanese Members of the Commission of
Responsibilities, Conference of Paris, 1919 (Oxford: Clarendon Press, 1919), viii, 24–5.
7
Schwengler, Völkerrecht, 50–5, 71–80, 150–5, 190–4, 343.
8
Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, N.J.:
Princeton University Press, 1961), 46–118, 308–19. When creating a moral dividing line between
past and present, a political power may also limit prosecutions to prevent them from getting out of
control and creating an unstable political situation.
9
Gerd Hankel, Die Leipziger Prozesse. Deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung
nach dem Ersten Weltkrieg (Hamburg: Hamburger Edition, 2003), 14–15.
30 The Birth of the New Justice

b­ anishment.” Instead, I will argue that the European jurists (from the Allied side)
on the Commission on Responsibilities outlined a set of rough proposals to trans-
form several aspects of the international system. They wanted to convert violations
of customs and legal conventions into crimes incurring individual penal liability,
restrict a sovereign head of state’s immunity, limit the power of the military and
state in certain situations, and advance a blueprint for an international tribunal for
crimes whose victims were nationals of multiple countries.
I call this new type of enforcement regime, “the new justice.” The term comes
from a Dutch debate in the popular press in 1919 about the legitimacy of the
Allies’ demand that Holland extradite Wilhelm II, but I have expanded its meaning.
Originally, Joost Adriaan van Hamel, a Dutch law professor, political editor-in-
chief of the weekly De Amsterdammer, and a legal advisor to the new Secretariat of
the League of Nations, published an article that stated that the Dutch government
should not go down in history as shielding the ex-Kaiser from a court of nations.
He admitted there were technicalities in the interpretation of Dutch asylum law,
and some in Dutch government circles wanted the Allies to guarantee an impartial
proceeding. But van Hamel thought all these problems should be cast aside. The
situation demanded “justice according to the spirit. . . . It must be understood also
by jurists that this matter cannot be dealt with according to set rules, made for
entirely other circumstances. This is an enormous historical and moral problem
concerning millions of people. It is a question of responsibility of a ruler . . . for the
misery of the world war and for the injustice with which it was commenced.”10 But
a Handelsblad article on October 25, 1919 forcefully took issue with van Hamel
and the “new justice,” which the anonymous author defined as the demand for
punishment for violating treaties and waging war. What would happen to the
principles of the “old justice,” which were hard-won and equally important? “There
is the principle that punishment may be inflicted only by a judge guaranteeing
absolute impartiality; that the accuser and the judge may not be the same person;
that nobody may be punished other than for specified crimes after a proper inves-
tigation of the proof submitted; that no extradition may take place on the ground
of so called political offences.”11
Van Hamel had called for “justice according to the spirit,” in which the old
rules had to be adjusted to fit a “new morality,”12 while his opponent defended the

10
Robertson (The Hague) to Curzon, July 3, 1919 (Doc. 17) in Michael L. Dockrill, ed., British
Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print. Part II.
From the First to the Second World War. Series I. The Paris Peace Conference of 1919. Vol. 5. Reports of the
Peace Conference Commissions: Internal Conditions in Germany; Saar Valley Question; France and the
Conference (Frederick, Maryland: University Publications of America, 1989).
11
“The Legal Position of the Emperor and Crown Prince,” translated from Handelsblad, January
30, 1919 (Doc. 18) in Dockrill, ed., British Documents on Foreign Affairs: Reports and Papers from the
Foreign Office Confidential Print. Part II. From the First to the Second World War. Series I. The Paris Peace
Conference of 1919. Vol. 5. The date in the translation must be incorrect, because the text refers to the
signing of the peace treaty and mentions that General Smuts had expressed discontent about the
Allies’ intention to prosecute the ex-Kaiser. It was probably published in the fall of 1919.
12
Van Hamel used the phrase “new morality and a new law” in a League of Nations memo,
­February 6, 1920, League of Nations Archives, Geneva, R1273, Document No. 2944, Dossier
No. 2944. Future references to these archives will be abbreviated as LNA/1273/2944/2944.
 Birth of the New Justice 31

European burghers’ idea of constitutional protections. Advocates of the new jus-

tice wanted to transform the concept of violations (as defined by international
law) into crimes, utilize prosecution instead of moral censure, employ trials
instead of political condemnation, and replace absolute state sovereignty with
limited sovereignty. But defenders of the old justice wanted to preserve the ideals
of impartial criminal trials, maintain national traditions, uphold the state’s right
to grant political asylum, and protect its nationals against politically-motivated
prosecution. Due to these complexities, one should resist seeing this historical
process as a simple one of innovation versus conservation or an expansion of law
versus the retention of state power. The “new justice” was an attempt to prosecute
individuals, regardless of their rank, under international law and even broader
standards (“the laws of humanity”), yet it was also filled with political decisions
and moral messages about the meaning of the war. When Allied political leaders
attempted to implement it, they were more interested in redressing injuries and
injustices sustained by the past war than creating a complete mechanism that
would prevent future aggressive war and violations of the laws of war.

T H E A L L I E S ’ R E A S O N S F O R P O S T - WA R
I N T E R N AT I O N A L P RO S E C U T I O N S

Historians have offered various reasons why the Allies sought to impose punish-
ment after the war, when post-war trials had never been imposed before and
victors had never demanded the extradition of enemy nationals. James Morgan
Read, an American scholar, contends in a 1941 book, Atrocity Propaganda 1914–
1919, that the European demand for punishment was stimulated by atrocity prop-
aganda, most of which was exaggerated, save for the massacres of Belgian civilians
by German forces, the deportation of Belgian workers to Germany, and the
Armenian massacres, as the genocide of 1915–16 was then called. Writing before
U.S. involvement in World War Two, Read suggests that a moderate peace could
have prevented the resurgence of German militarism.13 James Willis, an Ameri-
can diplomatic historian, recognizes the role of propaganda, domestic political
outrage over certain high-profile atrocities, and the late nineteenth century trend
of seeing aggressive war as a crime.14 German historian, Walter Schwengler, holds
that the push for post-war trials and extradition was advanced by the British and
especially the French, who sought severe peace terms to satisfy domestic public
opinion rather than for legitimate legal or humanitarian reasons. Emphasizing
that these demands were unprecedented in European history, he maintains that
granting amnesty to German soldiers and commanders would have been more
just and in accordance with existing international law. Since the U.S. opposed
an international trial of a head of state and the international prosecution of
individuals for alleged war crimes on the legal grounds that heads of state were

13
Read, Atrocity Propaganda 1914–1919, 285.   14 Willis, Prologue, 4–15, 27–32.
32 The Birth of the New Justice

only responsible to their domestic populations, and that positive international

law at the time did not specify the criminal prosecution of individuals before
an international tribunal, Schwengler believes that the American political-legal
foundation at the Peace Conference was more just than the European Allies’
demands.15
Gerd Hankel, a German legal scholar, disagrees with this view, arguing there
were three broad reasons for the Allies’ insistence on legal punishment. First,
Germany’s militarism, disruption of the European balance of power, and unlawful
violation of Belgian neutrality turned it into an outcast nation. Second, he claims
that before the war, peace movements influenced government circles in liberal
parliamentary states to support the creation of a permanent international court,
but Germany allegedly opposed this more fervently than other states. This is a
problematic argument, since Hankel does not explain the influence of peace
movements on the punishment issue specifically. Third, the progressive develop-
ment of the laws and customs of war, such as the Hague Convention and the
1906 Geneva Convention (which permitted the application of punishments to
soldiers who robbed and mistreated the wounded and sick), erected binding
international norms.16 This is quite true, but it does not explain why the E
­ uropean
victors sought international tribunals, rather than domestic courts or military
commissions, to enforce international law.
As a matter of war-time practice, after the Battle of the Marne, French military
tribunals tried and sentenced German soldiers who fell into their hands, but the
French government halted legal proceedings when Germany instituted reprisal
measures against French prisoners of war. In August 1916, the two governments
sought to end this escalation, so they negotiated an agreement that stated that
sentences imposed before September 1, 1916 would not be carried out until after
the war. They also agreed that they would give the same treatment to prisoners of
war found guilty of war crimes and “normal” prisoners of war. In April 1918,
judicial sentences that had been handed down after September 1916 were sus-
pended until after the war.17 Thus the imperative to prosecute and punish was
moderated in the interest of protecting prisoners held by the enemy. The British
also had to change their war crimes policy during the war to adapt to military
exigencies. On February 4, 1915 Germany announced that it would sink enemy
merchant ships without guaranteeing that subs would warn merchant crews and
passengers in advance. In response, when the British navy destroyed U-boats, it
arrested and imprisoned German crews, but instead of holding them as normal
prisoners of war to be released when the conflict ended, it treated them as viola-
tors of international law who would eventually be put on trial. Germany, how-
ever, claimed its crews were simply acting under orders and should not be treated
as criminals. Retaliating against British policy, Germany changed its treatment of

15
Schwengler, Völkerrecht, 103–6.   16 Hankel, Die Leipziger Prozesse, 34–40.
17
French politicians and jurists also discussed codifying the Geneva and Hague conventions into
French domestic criminal law, as well as ways to try German soldiers and officers in absentia, but
neither was realized. Schwengler, Völkerrecht, 63–5.
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