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Volume III · Page 970
If there exists a body of international law, which states, from a sense of legal obligation do in fact observe in their relations with each other, and which they are unable individually to alter or destroy, that law must necessarily be regarded as the law of each political entity deemed to be a state, and as prevailing throughout places under its control. This is true although there be no local affirmative action indicating the adoption by the individual state of international law. |
| " This universality and superiority of
international law does not necessarily imply universality of its enforcement.
As to the punishment of persons guilty of violating the laws and customs of war
(war crimes in the narrow sense), it has always been recognized that tribunals
may be established and punishment imposed by the state into whose hands the
perpetrators fall. These rules of international law were recognized as
paramount, and jurisdiction to enforce them by the injured belligerent
government, whether within the territorial boundaries of the state or in
occupied territory, has been unquestioned. (Ex parte Quirin, supra; In
re: Yamashita, 327 U.S. 1, 90 L. ed.) However, enforcement of international law
has been traditionally subject to practical limitations. Within the territorial
boundaries of a state having a recognized, functioning government presently in
the exercise of sovereign power throughout its territory, a violator of the
rules of international law could be punished only by the authority of the
officials of that state. The law is universal, but such a state reserves unto
itself the exclusive power within its boundaries to apply or withhold
sanctions. Thus, notwithstanding the paramount authority of the substantive
rules of common international law, the doctrines of national sovereignty have
been preserved through the control of enforcement machinery. It must be
admitted that Germans were not the only ones who were guilty of committing war
crimes; other violators of international law could, no doubt, be tried and
punished by the state of which they were nationals, by the offended state if it
can secure jurisdiction of the person, or by an international tribunal if of
competent authorized jurisdiction. Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany. Nor is the apparent immunity from prosecution of |
* Hyde, op. cit., pages 16 and 17.
