« PreviousContinue »
in four boats and that, consequently, still other fragments, that is a comparatively large number, struck above the water line.
The Commission does not deem it possible to fix the point where the explosion of the torpedo took place by judging only by the size and form of the hole. Nevertheless, in view of the size of the hole and the importance of the damage within the ship, it seems to the Commission more likely that the explosion of the torpedo took place several meters below the water line.
10. The thesis developed by the agent of the German Government according to which the Tubantia was struck by a floating torpedo, a thesis based on the indication of No. 2033 in the list of torpedoes that had been launched, is disputed by the agent of the Dutch Government, who opposes it with the possibility of an error. In truth, it must be admitted that such an error could easily be made, given the fact that this number had to be transcribed several times. The supposition that the error would have been found during the inspection of the torpedoes at Kiel and that then a claim would have been made upon the commander of the U. B. 13 is hardly compatible with the difficulties and exigencies of the war. It may be readily understood that errors could creep into the registers of torpedoes that had been launched.
However this may be, the fact that the same torpedo number is found in the list of torpedoes launched and on the torpedo fragments found in the boats of the Tubantia is not of sufficient importance to invalidate the depositions made by the officers and sailors of the said vessel.
V 11. In the last place, the Commission has had to consider the possibility of the torpedoing of the Tubantia by a vessel belonging to a power hostile to Germany.
Several witnesses relate that some hours after the catastrophe of the Tubantia the occupants of the life boats perceived a group of lights in the direction opposite that of the light-ship Nord-Hinder. Since the submarines belonging to the flotilla stationed at Zeebrugge had no search-lights on board, the presence of a non-German vessel of war must be concluded.
However, this fact can in no way justify the suspicion that some would wish to deduce therefrom. It is not at all surprising that after the explosion a non-German vessel of war should have approached the place of the disaster and should have desired to throw its search-lights about in the vicinity.
Moreover, there is not the least proof for admitting that a vessel of a power hostile to Germany torpedoed the Tubantia and that, subsequently, fragments of the German torpedo No. 2033, recovered by the enemy vessel, were surreptitiously placed in the boats. It is evident that such a procedure, as complicated as it is perfidious and destined to prejudice Germany in the eyes of the neutral countries and to provoke anti-German feelings there, could never be presumed. In default of all proof this hypothesis must be discarded. VI 12. After weighing all the proofs, the Commission has reached the conviction that the Tubantia was sunk on March 16, 1916, by the explosion of a torpedo launched by a German submarine. The question of determining whether the torpedoing took place knowingly or as the result of an error of the commander of the submarine must remain in suspense. It has not been possible to determine that the loss of the Tubantia was caused by striking a torpedo that had remained afloat. Although it can not be denied that a certain number of indications militate in favor of the latter possibility, the Commission, after examining them conscientiously and comparing them with the other proofs, can not recognize that these indications are conclusive and have the force of proof.
No indication permitting the assumption of any other cause for the loss of the Tubantia could be produced.
Done at The Hague, in the Palace of the Permanent Court of Arbitration on January 27, 1922.
Introduction à l'Etude du Droit Pénal International. By H. Donnedieu de
Vabres. Paris: Librairie de la Société du Recueil Sirey. 1922. pp. 482.
This book is the latest contribution to the increasing literature dealing with what the author calls the new science of international criminal law. It is a work of high scientific value and contains evidence of painstaking research and of historical erudition. At the outset he emphasizes the "frightful progress of international criminality” resulting from the development of facilities for communication and the invention of new instrumentalities for the commission of international crimes. The time has therefore arrived when the world must establish an organized, internationalized system of repression to prevent the further spread of this rapidly increasing criminality. The existing system under which the criminal law is regarded, in the main, as strictly national and territorial and in accordance with which each state punishes criminal acts (with a few exceptions) committed only within its own territories is totally inadequate to meet the situation today. The list of “extra-territorial” crimes should be enlarged and a system of international repression should be organized. M. Donnedieu, however, does not enter in details as to this. His work is mainly historical. He reviews the doctrines of the jurists, the legislation of states and the jurisprudence of the courts, principally of Rome, Greece, France, Germany, the Netherlands and Italy, from early times to the present, in regard to the competence of the courts concerning crimes committed abroad by the state's own nationals and by foreigners either against its nationals or against the security of the state itself.
The birth of modern international criminal law, he tells us, dates from the conclusion of an extradition treaty in the year 1376 between the King of France and the Count of Savoy, which he seems to regard as the first of the kind of which there is any record. (Professor J. B. Moore, however, refers to an English-Scotch extradition treaty in the twelfth century.) Grotius, who advocated the extradition of offenders against the common law including even the state's own nationals, and who recognized the right of asylum only for those who were the victims of an “undeserved hatred," he considers to have been “the most illustrious representative, after Covarruvias, of the principle of universal repression," although the earlier doctrines of Bartolus exerted great influence on the conceptions of later centuries. Throughout history there have been, he says, two opposing and contradictory ideas concerning the extra-territorial competence of the courts and as to the whole problem of international criminal repression. The first was the imperialistic or nationalistic conception which dominated the Roman law and inspired the French jurisprudence of the seventeenth century. It was based on the doctrine of the "interest of the state" which alone determined the competence of the courts and the duty of extradition. The second was the cosmopolitan or universalist doctrine of the Greeks, which was also the doctrine of Grotius and his school, based on the idea of community of rights and obligations and which made the “duty of the state" the test of the competence of the courts. It reflected the notion of the universal repercussion of crime and the legal obligation of states to extradite criminals taking refuge in their territories. It could be summed up in the “universality of the right to punish.”
The conviction which one has after reading M. Donnedieu's treatise is that there is little or no international criminal law in the real sense of the term. There is some legislation and some rules regarding the competence of courts in respect to certain extra-territorial crimes, but aside from a few acts, such as piracy, the slave trade, the white slave traffic, the circulation of obscene publications, etc., there is no international criminal legislation, nor is there as yet any international judicial or police machinery of repression. The recommendation of the recent Peace Conference Commission on Responsibility of the Authors of the War that penal sanctions should be provided for outrages against the elementary principles of international law, and of the Advisory Committee of Jurists which drafted the statute of the Permanent Court that a high court of criminal justice be established to try crimes against international law, indicate a growing sentiment in favor at least of the creation of an international criminal jurisdiction. The Permanent Court, as finally established, however, was given no such jurisdiction. The so-called international criminal law, therefore, remains, as M. Donnedieu admits in his definition, un droit interne, it is merely “the science which determines the competence of the criminal courts of one state vis a vis the courts of foreign states, the application of its criminal laws in respect to the places and persons which they regulate, and the authority, within its territory, of foreign repressive judgments (p. 6). It is, in short, mainly a matter of conflict of laws as between different states. He does not go to the length of saying as much, though it may be inferred from his criticism of the existing state of the law, that he would agree with M. Travers in his more constructive recent work (Le Droit Pénal International), who proposes, in effect, to transfer a large part of the criminal law to the domain of international law, and instead of leaving its enforcement to the sporadic and isolated action of states acting separately, to entrust its execution to an international organization and machinery. Thus the criminal law would in part, be made international, if not supernational, and its execution would cease to be a matter of local or national interest but would become the concern of the whole body of states or of groups of states. There is nothing to indicate, however, that a reform so radical is likely to find many advocates, at least in the immediate future.
JAMES W. GARNER.
International Law chiefly as interpreted and applied by the United States. By
Charles Cheney Hyde. 2 vols. Boston: Little, Brown, and Company. 1922. pp. lix, 832; xxvii, 925. $25.00.
This work is first and foremost a law book, not a philosophical treatise, or an essay upon international ethics, or a Tendenzschrift of any sort. It was intended to be what it is: a systematic text from the positive point of view, wherein one trained in legal ways of reasoning and expression might find a statement as to what the law is. As such its first appeal ought to be to lawyers, whose interest in the subject is primarily professional. Among the mass of general texts on international law there is none quite like this, either in content or in method. The title indicates this difference. To consider international law chiefly as interpreted and applied by the United States is to provide a basis by which the author is enabled to set forth what one not inconsiderable person in international law has authoritatively considered and set forth as its conception of international rights and duties. Not that there is a special international law for the United States (that would be a body of privileges), or, as Mr. Alvarez would have, even for America. The volumes "express an attempt primarily to portray what the United States, through the agencies of its executive, legislative and judicial departments, has deemed to be the law of nations."
Moore's Digest, of course, in a way opened the path. Mr. Hyde frankly acknowledges his obligation to that great work. But he has not merely prepared a text from the Digest, although that alone might have been well worth doing. This work is neither a distillate nor a supersession of Moore's Digest. If there is an adjudicated case, or printed diplomatic document, or any piece of source material throwing light upon the attitude of the United States in reference to any question of international law and omitted by Mr. Hyde, the reviewer confesses his inability to detect the omission. The citations are not restricted to American documents; foreign texts and materials are referred to in sufficient abundance to direct the student farther. It is fair to say, therefore, that here is a legal text, not based upon subjective prepossessions, but one prepared with careful and judicial objectivity in order to show what the United States has officially set forth as its conception of international law. Such a plan may seem strange to many continental jurists, but what obligations all those interested in international law would lie under if the same sort of treatise could be done for international law chiefly as interpreted and applied by Great Britain, and another for France, and another, say, for Japan, and so on, with an ultimate synthesis upon the basis of universality? But no other country has as yet put forth a work comparable with Moore's Digest to prepare the vay for such an undertaking.
Noting, then, this determination on the part of the author to be objective in spirit as well as positive in method, we may well expect the result to be