International Law and Totalitarian Lawlessness. By Geo Schwarzenberger. (Cape. Jos.
6d.)
War Crimes and Punishment
THE chief value of this study is its discussion of the modes of punishing the Axis Powers for the war crimes committed by them and their agents. The topic is preceded by an examination of such rules of International Law as already exist in relation to it The difficulties of the machinery for securing trial of offenders and of deciding what defences should be admissible are fully appreciated by the learned author, but quite rightly he refuses to regard them as insuperable. He seems to incline towards the creation of an International Court for the purpose, and, although there is no blinking the objections that may be raised to this, I should favour it as the best solution of the problem ; but I should not go so fat as to link it up with the creation of a federalism among States immediately after the war, for, however desirable such federalism may be, it is such a much wider project that it may take many years before it can be established, and punishment of criminals, whether national or international, ought to be swift.
Three other outstanding problems are, first, what law ought the Court to administer ; secondly, whether the defence of superior orders ought to be valid ; thirdiy, whether political Heads of States ought to be amenable to the jurisdiction of the Court. Naturally, the author does not offer any final solution of these problems, although he discusses them ably. My own tentative suggestions are as follows: (t) The basis of the law administered should be the rules of the Laws of War as represented by the Hague Conven- tions and general International Law ; the Axis Powers are just as much bound by these as are the Allied Powers. (2) The plea of superior orders should be no defence to liability, but if the accused can prove that he carried them out under reasonable fear of immediate death in the event of disobedience, the punishment might be mitigated accordingly. (3) The Heads of States guilty of authorising war crimes had better be punished by political action rather than by judicial trial. The worst punishment that can befall people of the type of Hitler and Mussolini is the contempt and hatred of those whom they once governed, and if they were immured for the rest of their lives at some place like St. Helena, that would be far more effective than the infliction of penalties that would probably make martyrs of them.
Dr. Schwarzenberger's book is well documented and is an important contribution to the discussion of a problem the solution of which is vital to the progress of International Law.
P. H. WINFIELD.
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