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Home > Journals > Michigan Law Review > MLR > Volume 23 > Issue 5 (1925)

 

Abstract

It is not necessary to enumerate exactly what may now be considered war crimes or violations of the laws of war. The list will change from time to time, by the addition of new offences and the omission of those now so considered. Most of the Hague Conventions and rules and regulations are sufficiently well furnished with the signatures of world wide plenipotentiaries and adequately ratified to insure of their being accepted as international law on the points covered. There are only a few exceptions. In general the precepts are valid. Indeed, most modern writers on international law, when they come to this subject, simply reproduce the appropriate paragraphs from the international engagements of 1907. At times they deem it necessary to explain. At times they cite historical examples. But-in general terms at least-the law is written and accepted. We do not have to depend upon precedent and practice and opinion to discover what it is or is supposed to be. The question of punishment. is, however, not in so settled a condition. It is true that article 3 of Convention IV, states that: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." Yet this is not enough. It is merely a way of saying that jurisdiction over these things lies in the field of diplomacy, that enforcement shall be the function of peace delegates and negotiating commissioners who will see that the appropriate paragraphs are written into the treaty that ends the war. It is a formal phrasing of the doctrine that international law holds states responsible for the conduct of persons. If this were all, the treaties drawn up to govern the means and methods of carrying on hostilities would be of no value. They would be reinterpreted at the close of each conflict by the victor as the victor wished. There must be some way of enforcing these regulations during the war, as well as after the war, of enforcing them upon individual transgressors as well as upon the responsible sovereignty. They must be enforced on the field of battle as well as across the polished tables of diplomacy. And not only must these war laws be enforced, but also many municipal laws which, common to all times and all places, insure decent morality, decent respect for persons and property, and the maintenance of modern standards of humanity and life. We must go further than the state and see how the individual may be held responsible. We must find by what laws and by what means individuals must be proceeded against.

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