1942: International Law

Governments in Exile.

Eight foreign governments have been established in England — Belgium, Czechoslovakia, Greece, Luxembourg, The Netherlands, Norway, Poland and Yugoslavia. Rights of sovereignty exercised within the territorial supremacy of another state were permitted by Parliament in order to facilitate utmost cooperation among the United Nations. Thus the refugee governments on foreign soil have diplomatic status, the power to make and enforce treaties and laws, control of labor, maintenance of armed forces and conscription, and the administration of justice. The obstacle of sovereignty to the development of international order has in these cases not been insuperable.

However, the co-existence of two or more sovereign governments on the same territory creates unusual problems of law and functioning. One difficulty has been solved through the maritime courts created in England by the governments-in-exile for trying and punishing offenses committed on their national ships. These courts differ from the United States military courts which try members of the armed forces for crimes committed in Great Britain, since the latter reflect the traditional extraterritorial status of foreign armed forces. Parliament on August 4 granted this jurisdiction over all 'visiting' American military and naval forces.

Prize Courts and Prize Laws.

Thus far American prize courts have functioned little. The United States District Court for the Southern District of New York, however, issued in January a somewhat antiquated set of 'Prize Rules and Standing Interrogatories in Prize' which, by following nineteenth-century rules, seems out of date in totalitarian and air warfare. While American courts had few prize cases during World War I and consequently left their procedure unaltered, the British rules were revised four times between 1914 and 1917 under active use, and the new set issued in 1939 has had considerable application. New German and French rules for prize procedure were promulgated in 1939.

War Criminals to Be Tried.

Nine of the United Nations, European governments-in-exile, announced on January 13 resolutions declaring as a principal war aim the punishment, through the channel of organized justice, of persons guilty and responsible for war crimes whether through order, perpetration or participation. In response to their formal request, President Roosevelt not only gave solemn warning on August 21, but stated, October 7, that after the war, war criminals would be surrendered to the United Nations for trial before law courts — not concerned with mass reprisals, but with the punishment of ringleaders responsible for organized murder of the innocent. This referred chiefly to treatment of so-called hostages, who in occupied countries have been taken and shot for acts alleged to have been committed by unidentified civilians, as in the notorious slaughter of all the inhabitants of Lidice, Czechoslovakia, in partial reprisal for the murder of Heinrich Heydrich on May 27. Now, on December 17, this intention has been applied to Germany's 'policy of cold-blooded extermination of the Jews' through a new joint declaration of eleven United Nations and the French National Committee, including the United States and Great Britain. War crimes legally include also violations of recognized rules of warfare by the armed forces.

The attempt made in the Treaty of Versailles to punish notorious violations of recognized rules of war met with little or no success. The attempt to try the Kaiser for war responsibility had to be abandoned, and the Allies, unable to secure delivery of German officers deemed guilty of war crimes, could only compromise by accepting trial in Germany of some of the officers charged, with paltry and perfunctory results. The present move to secure international criminal prosecution of violators of international law, including persons guilty of 'barbaric crimes against civilian populations,' reflects the long-felt need for an international criminal code and a world court of criminal justice.

Treatment of Prisoners of War.

Inhumane and illegal treatment of prisoners of war also received attention following the October commando raid on Dieppe. After two months of mutual charges and threats regarding the shackling of prisoners by Germany and by Great Britain and Canada, the British government announced on December 11 that it would untie any shackled German prisoners in response to the proposal of the Swiss government that both governments should release their prisoners and abide by the Geneva Convention of 1929, to which the states involved are parties. No reply from Germany has yet been published. Japan is not a party to the convention.

Aliens in the United States.

The great number of aliens in the United States creates an unusual problem during wartime. While international law does not permit a belligerent to require from aliens military service directed against their own governments, it is not equally clear regarding services connected with the war effort or the right to draft neutral aliens for military service. From the liability to training and service imposed upon 'every male alien residing in the United States who has declared his intention to become' a citizen, the amended Selective Service Act now exempts aliens who have applied for exemption before induction, but penalizes them by taking away the right ever to acquire American citizenship. Registration has been required of all aliens, including those temporarily in the United States except specially exempt persons like non-resident students. Non-declarant aliens may choose service in the armed forces of a co-belligerent country, like Canada, with which the United States has so agreed. The amended Nationality Code facilitates the naturalization of resident aliens after honorable service in the armed forces during the present war, chiefly by not requiring a declaration of intention or a definite period of residence. The privilege of naturalization is denied to any alien dishonorably discharged and to a conscientious objector who performed no military duty or refused to wear the uniform.

The fact that so many aliens in the United States are refugees, hostile to the régime in their own countries, has emphasized the need for a practical distinction separating the friendly enemy alien from the alien enemy. On October 12, Attorney General Francis Biddle announced that about 600,000 unnaturalized resident Italians would no longer be classed as enemy aliens because of their loyalty to the United States — only 228 Italians have had to be interned. Notwithstanding Mr. Biddle's admission that the new treatment formed part of the country's psychological warfare, it has placed a large number of aliens in a better legal and humanitarian situation, and in many cases it will both aid aliens to secure employment and expand the labor supply. This action leaves in the United States 263,930 Germans, of whom half are said to be refugees, and 47,963 Japanese alien enemies. In addition, the government has regulated the activities of some 125,000 first and second-generation Japanese, largely for their personal and economic protection. Since the war began, 11,372 alien enemies have been taken into custody as dangerous to national security, and of these 3,617 were ordered interned — 1,228 Germans, 2,151 Japanese, 228 Italians, 2 Rumanians, 1 Bulgarian, and 7 Hungarians.

Future of International Law.

The future of international law has its place in current discussion. In December, 1941, the Grotius Society of London issued a brief report on the future of international law, summarizing the results of a prolonged inquiry and discussion. In the main its conclusions emphasize the function of international law as preserving peace and order, its inadequacy regarding this, its needed development, like municipal law, by limitations on national sovereignty and by means analogous to legislation, jurisdiction, and execution, and its extension to economic and social, as well as political, matters. In the United States a group of jurists, assisted by the Carnegie Endowment for International Peace, is already examining the premises of international law, and research into inter-American law is being conducted at the University of Michigan.

The Supreme Court and the Fifth Amendment.

In the case of U. S. v. Pink, appealed from the New York Supreme Court, the United States Supreme Court on February 2 decided a matter arising from the recognition of Soviet Russia in 1933. The court held that assets of over one million dollars belonging to the New York branch of the First Russian Insurance Company had reverted to the United States government rather than to the branch itself or the parent company, by virtue of the assignment in 1933 of Russian claims here to the government. Thus the sum would form a small part of the total American claims against Russia, rather than be distributed to foreign creditors of the bank as ordered by the New York court. In brief, the Supreme Court regarded the first decision as a collision between State policy under the Fifth Amendment and the foreign policy of the Federal Government exercised in recognizing Soviet Russia. It denied to the States any share in the exclusive power of the Federal Government over foreign affairs and any right of subjecting to judicial inquiry the national enforcement of this constitutional power. By its judgment the court has apparently taken the unprecedented position of giving effect to a foreign confiscatory decree as applied to property outside its jurisdiction, since Russian law attempted to confiscate assets of this branch company in the United States; the court thereby rested the Soviet title to assign this private property on Russian rather than New York law. It has also placed the executive agreement, used when the Soviet was recognized, on a par with treaties as the supreme law of the land and hence dominating State law. It further interprets the Fifth Amendment as permitting the United States to demand a preference for itself and its nationals over the owners and creditors of foreign private property against which it has claims. On these and other grounds international lawyers criticize the decision, which may later cause difficulties if European governments after the war issue confiscatory decrees involving property situated in the United States.