21 Nov. 45
This principle of personal liability is a necessary as well as
logical one if international law is to render real help to the
maintenance of peace. An international law which operates only on
states can be enforced only by war because the most practicable
method of coercing a state is warfare. Those familiar with American
history know that one of the compelling reasons for adoption of our
constitution was that the laws of the Confederation, which operated
only on constituent states, were found ineffective to maintain order
among them. The only answer to recalcitrance was impotence or war.
Only sanctions which reach individuals can peacefully and effectively
be enforced. Hence, the principle of the criminality of aggressive
war is implemented by the Charter with the principle of personal
responsibility.
Of course, the idea that a state, any more than a corporation,
commits crimes, is a fiction. Crimes always are committed only by
persons. While it is quite proper to employ the fiction of
responsibility of a state or corporation for the purpose of imposing
a collective liability, it is quite intolerable to let such a
legalism become the basis of personal immunity.
The Charter recognizes that one who has committed criminal acts
may not take refuge in superior orders nor in the doctrine that his
crimes were acts of states. These twin principles working together
have heretofore resulted in immunity for practically everyone
concerned in the really great crimes against peace and mankind. Those
in lower ranks were protected against liability by the orders of
their superiors. The superiors were protected because their orders
were called acts of state. Under the Charter, no defense based on
either of these doctrines can be entertained. Modern civilization
puts unlimited weapons of destruction in the hands of men. It cannot
tolerate so vast an area of legal irresponsibility.
Even the German Military Code provides that:
"If the execution of a military
order in the course of duty violates the criminal law, then the
superior officer giving the order will bear the sole responsibility
therefor. However, the obeying subordinate will share the punishment
of the participant: (1) if he has exceeded the order given to him, or
(2) if it was within his knowledge that the order of his superior
officer concerned an act by which it was intended to commit a civil
or military crime or transgression." (Reichsgesetzblatt,
1926 No. 37, P. 278, Art. 47)
Of course, we do not argue that the circumstances
under which one commits an act should be disregarded in judging its
legal effect. A conscripted private on a firing squad cannot expect
to