a General (Transnational) Danger Considered as Offences Against the Law
By Raphael Lemkin, lecturer on comparative law at the Institute of Criminology of the Free University of Poland and Deputy Prosecutor of the District Court of Warsaw.
Additional explications to the Special Report presented to the 5th Conference for the Unification of Penal Law in Madrid (14 -20 October 1933)
CONCEPT of offences against the law of nations (delicta iuris gentium)
comes from the interdependent struggle of the civilized world community
against criminality. From the formal point of view, this solidarity appears
in the principle of universal repression, based upon the principle that
an offender can be brought to justice in the place of where he is apprehended
(forum loci deprehensionis), independently of where the crime was
committed and the nationality of the author. According to this principle,
if an offense of this type is committed on the territory of State A, and
the author is apprehended on the territory of the State B, it is State B
which will judge him for an offense committed elsewhere. This is because
such a perpetrator is regarded as the enemy of the whole international community
and in all States he will be pursued for crimes universally harmful to all
the international community.
The principle of universal repression does not apply to all crimes, but only those considered so particularly dangerous as to present a threat to the interests, either of a material nature or of a moral nature, of the entire international community (offences against the law of nations). That offenses in this category are universally prohibited attests to the fact that there is a legal conscience of the civilized international community. Let us recall, in support of this thesis that unquestionable violations of law committed in the territory of State A, cause spontaneous reactions in other States, appearing in the voices of the press, or in the mass public protests, or even in diplomatic actions on behalf of the victims of such violations (humanitarian interventions).
The list of the offences against the law of nations, drawn up by in 1st Conference for the Unification of Penal Law meeting in Warsaw in 1927, is as follows:
a) piracy,This list has been added to by later Congresses (inter alia by 1st Congress of Comparative Law at the Hague in 1932). Furthermore, ongoing investigation has resulted in the construction of new offences against the law of nations, for example, prohibiting of propaganda for a war of aggression, initiated by Prof E. St. Rappaport.
It would be wrong, however, to regard this list in its current state
as complete. The foresight and imagination of the legislator is less rich
than the ingenuity of criminals. The abundance and variety of phenomenon
forces certain acts upon the attention of the legislator only after they
became a danger to society.
FOLLOWING A SPECIAL INVITATION on behalf of the Steering Committee, an invitation of for which I feel flattered, I have the honor of presenting to this distinguished conference a report on this question, which, having been many times discussed during International Conferences for the Unification of the Criminal Law, could not until now lead to consensus and agreement among the many erudite and eminent opinions expressed on this subject.
This question is related to the initiative of the Conference of Warsaw (1927), which placed among the offences of law of nations "intentional use of any instrument capable of producing a public danger" [l'emploi intentionnel de tous moyens capables de faire courir un danger commun].
The 3rd Conference for the Unification of the Criminal Law (Brussels, 1930) considered the question of creating a code of offences, using the formula of the Conference of Warsaw as starting point for their deliberation. The Steering Committee of the Conference of Brussels added to the Warsaw Formula, between brackets, the word "terrorism." This accidental supplement later became of such importance, that it then was treated as the principal subject, to the detriment of the original question; one ceased dealing with the intentional use of any instrument capable of producing a public danger, instead attempting to codify a new offence, terrorism (1).
These efforts succeeded neither in Brussels, nor in Paris. The task could not be accomplished, because terrorism does not have a synthetic legislative form. "Terrorism" does not constitute a legal concept; "terrorism," "terrorists," "acts of terrorism" are expressions employed in the daily speech and the press to define a special state of mind among the perpetrators who still carry out from their actions the particular offences. Therefore Professor Rocco was right to raise the point during the discussion with the Conference of Paris, that terrorism does not present a uniform design, but embraces a large variety of different criminal acts.
In this state of affairs, we are of the opinion that the creation of a new offence against the law of nations called terrorism would be useless and superfluous; it is rather mutatis-mutandis necessary to return to the formula of Warsaw, and by way of analysis to create a series of provisions, relating to acts so harmful and dangerous to the international community that their character as offences against the law of nations would be considered by tone as indicated and necessary and could not raise any objection. But the notion of public danger on which the Warsaw Formula is based, is much too limited and should be widened still further. It is not particularly a question of public danger [danger commun], but of a broader concept, general danger, that we want to call transnational danger [danger interetatic]. Public danger threatens personally indeterminate individuals or an indeterminate quantity of the goods on a given territory, while general (transnational) danger threatens the interests of several States and their inhabitants. (2)
Thus, for example, the arson of a house is an act which presents a public danger, because fire may be transferred to neighboring houses, but this act cannot be regarded as an offence against the law of nations, because it does not present any threat to the interests of the international community.
On the basis of the Warsaw Formula, modified slightly as follows: ". . . intentional use of any instrument capable of producing a general (transnational) danger," [. . . emploi intentionnel de tous moyens capables de faire courir un danger général (interétatique)], I have the honor of proposing to this distinguished conference to place among the offences of law of nations the following offences:
IF WE ANALYZE THE DRIVING IDEAS of certain offences against the law of nations, like trade in slaves and trade in women and children, we see that if these offences are regarded as punishable, it is due to humane principles. In these cases the principles are, above all, to protect the freedom and the dignity of the individual, and to prevent human beings from being treated as merchandise.
Some other provisions relating to the offences against the law of nations relate to the protection and maintenance of the normal peaceful relations between collectivities, for example the offence of the propaganda for a war of aggression. The prohibitions of such attacks have as a goal to assure good cultural and economic relations between nations.
Therefore we find that some offences concern attacks on individual human rights (when they are of such importance that they interest the entire international community), while other offences relate to the relations between the individual and the collectivity, as well as the relationship between two or more collectivities.
However, there are offences which combine these two elements. In particular these are attacks carried out against an individual as a member of a collectivity. The goal of the author [of the crime] is not only to harm an individual, but, also to cause damage to the collectivity to which the later belongs. Offenses of this type bring harm not only to human rights, but also and most especially they undermine the fundemental basis of the social order. (3)
LET US CONSIDER, first and foremost, acts of extermination directed against the ethnic, religious or social collectivities whatever the motive (political, religious, etc.); for example massacres, pogroms, actions undertaken to ruin the economic existence of the members of a collectivity, etc. Also belonging in this category are all sorts of brutalities which attack the dignity of the individual in cases where these acts of humiliation have their source in a campaign of extermination directed against the collectivity in which the victim is a member.
Taken as a whole, all the acts of this character constitute an offense against the law of nations which we will call by the name "barbarity." Taken separately all these acts are punishable in the respective codes; considered together, however, they should constitute offenses against the law of nations by reason of their common feature which is to endanger both the existence of the collectivity concerned and the entire social order.
The impact of acts like these usually exceed relations between individuals. They shake the very basis of harmony in social relations between particular collectivities.
Considering the contagious character of any social psychosis, actions of this kind directed against collectivities constitute a general (transnational) danger. Similar to epidemics, they can pass from one country to another. The danger formed by these actions has the tendency to become stable since the criminal effects, which cannot be addressed as an isolated punishable act, require, on the contrary, a whole series of consecutive responses.
It should be stressed here that the act of barbarity not only injures
the moral interests of the international community, but, also its economic
interests. Indeed, acts of barbarity carried out in an organized and systematic
fashion, often cause the emigration or the disorganized flight of the
population of one State to another which can cause damaging repercussions
in the economic situation in the State of immigration, given the difficulties
of finding work and the lack of means of existence among immigrants. Moreover
this milieu of the uprooted is a fertile ground for all kinds of asocial
tendencies (see for example the recent assassination of the President
of the French Republic [Paul Doumer was assassinated
in May 1932 by Dr. Paul Gourgoulov, a Russian emigre]
AN ATTACK TARGETING A COLLECTIVITY can also take the form of systematic and organized destruction of the art and cultural heritage in which the unique genius and achievement of a collectivity are revealed in fields of science, arts and literature. The contribution of any particular collectivity to world culture as a whole, forms the wealth of all of humanity, even while exhibiting unique characteristics.
Thus, the destruction of a work of art of any nation must be regarded as acts of vandalism directed against world culture. The author [of the crime] causes not only the immediate irrevocable losses of the destroyed work as property and as the culture of the collectivity directly concerned (whose unique genius contributed to the creation of this work); it is also all humanity which experiences a loss by this act of vandalism.
In the acts of barbarity, as well as in those of vandalism, the asocial
and destructive spirit of the author is made evident. This spirit, by
definition, is the opposite of the culture and progress of humanity. It
throws the evolution of ideas back to the bleak period of the Middle Ages.
Such acts shock the conscience of all humanity, while generating extreme
anxiety about the future. For all these reasons, acts of vandalism and
barbarity must be regarded as offenses against the law of nations.
Voluntary interruption of the exploitation of the telegraph, the telephone, post office and T. S. F. - Propagation of the contaminations.
AS A HIGHLY DESIRABLE good for the international community it is necessary to recognize without any doubt the security of international communications, whether by ground, sea or air. The provocation of a railway catastrophe in one State at the same time impacts international communications, without failing to mention that citizens of several States can be victims. These acts constitute a general danger of the greatest importance.
The many recent cases of catastrophic railway disasters (the attempt to derail the train near Basel, the affaire Matuschka), testify to a certain predilection of criminality in the direction of attacks easy to carry out and incalculable in consequences. What could be easier than placing on the railway, in a deserted place, stones or other obstacles? It is very difficult to apprehend the author and the consequences are expressed in the deaths of hundreds of innocent victims.
While establishing repression for the offences of this type, the legislator must start from the point of view of prevention as broad as possible, the facility to commit such a crime, as we mentioned above, being very large and the chances to discover the culprit, tiny. It is thus necessary to try to deter the criminals in a special fashion. This is why in the event of the provocation of a catastrophe in ground, sea or air communications, the most severe penalty envisaged by the Code in question will have to be applied.
It is also necessary to recognize as a good of international value the security of the postal, telephone telegraphic and T. S. F. communications. Acts directed against these installations cause a disturbance in international relations and cause obstacles to international life. The rupture of a telephone line in a small sector in any State, simultaneously stops the connection between many States linked by the damaged sector.
In the same way, it is necessary to regard as
an offense against the law of nations the spread of the human, animal
or vegetable contagions. This offense introduces a general (transnational)
danger, because these diseases can so easily spread and propagate from
one country to another and cause serious disasters.
IN VIEW OF the above
mentioned considerations, I have the honor of proposing to the 5th Conference
for the Unification of Penal Law the following project of legislative
text for the above-mentioned offenses, which were approved by the President
of the Polish Commission for International Legal Co-operation, Professor
E. St. Rappaport.
Art. 1) Whoever, out of hatred towards a racial, religious or social collectivity or with the goal of its extermination, undertakes a punishable action against the life, the bodily integrity, liberty, dignity or the economic existence of a person belonging to such a collectivity, is liable, for the offense of barbarity, to a penalty of . . . unless punishment for the action falls under a more severe provision of the given Code.
IT IS DESIRABLE AND NECESSARY that an
International Convention is concluded to ensure the repression of
all the above-mentioned offenses.
1) In this matter, see the brilliant reports of Professor Gunzburg to the Conference in Brussels, and of Professor Radulesco to the Conference in Paris, and my modest report presented to the Conference in Paris.
Translation and Introduction copyright by James T. Fussell