Terrorism Court (1937)
Michael D Callahan
- World War I to World War II — Terrorism — Extradition and mutual assistance — International courts and tribunals, procedure — International criminal courts and tribunals, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 The formal proposal for the establishment of the world’s first international criminal court to try accused terrorists was made in response to a terrorist attack that sparked an international crisis in Europe in 1934 (Terrorism). While some legal experts had been advocating expanding the role of the League of Nations in unifying criminal law among States in order to prevent and punish certain forms of political violence, there were no international efforts to criminalize State-supported terrorism before the attack. Guided by a proposal from the French government, jurists and officials from several different countries spent nearly three years to produce two international anti-terrorism conventions in 1937. The first classified specific terrorist acts, as well as conspiracies to commit them, as international crimes. The second provided for the establishment of an International Criminal Court (‘Terrorism Court’ or ‘TC’) to punish terrorists (International criminal courts and tribunals). Neither convention received enough ratifications to take effect before the outbreak of war in Europe in 1939. As a consequence, the Terrorism Court of 1937 never operated (Failed international courts and tribunals).
2 On 9 October 1934, King Alexander I of Yugoslavia was assassinated as he arrived in Marseille to begin an official visit to France. Evidence quickly established that anti-Yugoslav terrorist groups based in Italy and trained in Hungary had carried out the attack. Much like the shooting of the Archduke Franz Ferdinand at Sarajevo by a member of a terrorist group 20 years before, Alexander’s murder threatened the peace of Europe. According to the preamble of the Covenant of the League of Nations (‘Covenant’), the organization’s main purposes were ‘to promote international co-operation and to achieve international peace and security.’ In November 1934 the Yugoslav government cited Article 11 (2) of the Covenant, exercising their right to bring to the attention of the Assembly or to the Council of the League ‘any circumstance’ threatening ‘to disturb international peace or the good understanding between nations upon which peace depends’. The Yugoslavs accused ‘certain Hungarian authorities’ of assisting the terrorists who murdered Alexander (Request by the Yugoslav Government under Article 11, paragraph 2, of the Covenant, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1765–66). As a consequence, Yugoslavia declared that peace with Hungary was now endangered. The Yugoslav government demanded accountability for Alexander’s murder as well as an international effort to prevent and punish future terrorist attacks. Two of Yugoslavia’s allies, Czechoslovakia and Romania, supported the Yugoslav appeal. The Hungarian government flatly rejected the accusations and Italy backed Hungary’s demand to defend itself before the Council of the League.
3 With strong leadership from Britain and France, the League made it possible for States to adopt a unanimous resolution in early December 1934 that preserved the peace that all sides wanted. During this successful mediation, the Council of the League also decided to confront the serious problem of international terrorism. The Council admitted that ‘the rules of international law concerning the repression of terrorist activity are not at present sufficiently precise to guarantee efficiently international co-operation in this matter’ (League of Nations, Monthly Summary, vol 14, 283). As a consequence, the Council decided to explore ways to classify specific terrorist acts, and conspiracies to commit them, as international crimes as well as consider new legal procedures for prosecuting those accused of such crimes.
1. Historical Context
4 The proposal to restrict and punish State-supported terrorism by convention and judicial process was not new in 1934. Similarly, ideas for creating special tribunals for the trial and punishment of individuals for certain types of international offences had been proposed before, including during the Paris Peace Conference in 1919 (Special Tribunal for the trial of Wilhelm II; Ottoman State Special Military Tribunal). The concepts of ‘terrorism’ and international criminal jurisdiction, however, were a source of much controversy among legal scholars, police forces, national governments, and international penal law associations before 1934. Some jurists and legal experts, particularly in Britain, rejected the idea that there was an international criminal law recognized by all nations, much less one that applied to States in their relations with each other. Certain provisions of the Treaty of Peace between the Allied and Associated Powers and Germany, 1919 (‘Treaty of Versailles’), the establishment of the Permanent Court of International Justice (PCIJ), and the adoption of international agreements such as the Kellogg-Briand Pact (1928) convinced a number of other legal experts that an international criminal law already existed and had jurisdiction over States as well as individuals in certain circumstances. As early as 1926, the Romanian government proposed that the Member States of the League of Nations expand this jurisdiction to criminalize acts of terrorism under international law. Many States opposed the suggestion with Britain insisting that such acts were already punished under domestic law. In 1927 jurists attending the first international conference for the unification of penal law, in Warsaw, compiled a list of specific ‘offences against the law of nations’ that included the ‘intentional use of any instrument capable of producing a public danger’ (Potulicki, 1929, 59–67, 116–30). During a subsequent conference held in Brussels in 1930, the word ‘terrorism’ was added in brackets after this category in an effort to clarify the phrase. This addition proved contentious. Many delegates insisted that the word ‘terrorism’ was neither defined nor a legal concept (Sasserath, 1931, 43–48, 114–17, 173–75, and 194–95).
5 After much debate during that conference in Brussels in 1930 and at another the following year in Paris, delegates decided to invite a group of jurists to study the phrase ‘acts of terrorism’ and present their conclusions in Madrid in October 1933 (Donnedieu de Vabres, 1933, 48–68, 133–52, 302, 353–64). Several prominent specialists delivered reports. Jean-André Roux, a judge on the French Court of Cassation and the Secretary-General of the International Association of Penal Law, argued that ‘terrorism’ was indeed a useful legal term and proposed that States begin establishing penalties in national criminal law in order to punish this offence (Roux, 1933). Delegates from France, Belgium, Spain, and several eastern European countries agreed. (López-Rey, 1933, 42–56).
6 The Polish lawyer Raphael Lemkin (1900–1959), a lecturer on comparative law and with prosecutorial experience, was among those who did not agree with Roux’s conclusions (Segesser and Gessler, 2005, 457–58). Lemkin argued that efforts to define the term had failed because ‘terrorism’, ‘terrorists’, and ‘acts of terrorism’ were expressions used in the daily speech and press to define a special state of mind among perpetrators who still carried out with their actions the particular offences. Therefore, ‘terrorism’ did not present a uniform design, but embraced a wide range of different criminal acts. For Lemkin, this fundamental conceptual problem required a series of new provisions relating to acts so harmful to the international community that their character as offences against the law of nations would not raise any objection. He called such acts ‘transnational dangers’ since they threatened the interests of several States and their inhabitants. The specific offences he suggested should fall into this wider category were ‘acts of barbarity’ including ‘acts of extermination’ directed against ethnic and religious groups (Lemkin would later coin the term ‘genocide’), acts of vandalism, ‘provocation of catastrophes in international communications’, and ‘the propagation of human, animal or vegetable contagions’ (Lemkin, 1933). He offered a draft convention designed to repress such ‘transnational dangers’, but did not expressly include attacks directed against either a State or a head of State nor did he propose the creation of a special criminal court to prosecute those accused of ‘transnational dangers’ (Lemkin, 1933).
7 While ‘terrorism’ was not an international crime before 1934, there were thus already Member States of the League and specialized organizations such as the International Association of Penal Law and the International Bureau for the Unification of Criminal Law endorsing the concept of an international criminal jurisdiction and encouraging the creation of a multilateral framework within the League of Nations in order to expand it. There were also influential jurists and others who were determined to advance proposals for new international laws that criminalized acts intentionally threatening States and their inhabitants. At the same time, some powerful Member States of the League, principally Britain, remained hostile to such notions and were extremely sceptical about the value of international conventions in decreasing crime except in tightly limited and well-defined areas such as counterfeiting, human trafficking, and the illicit drug trade (Letter from the British Foreign Office to League, 11 April 1933).
8 Further complicating the debate surrounding the suppression and punishment of ‘terrorism’ before 1934 was that the subject of extradition and the concept of a ‘political crime’ were particularly thorny. Most international legal experts admitted that, in the absence of specific treaty terms, there was no obligation under international law to extradite so-called ‘political criminals.’ In general, States granted extradition for acts which were criminal under the law of the extraditing as well as the applicant State. A number of States had long traditions of granting asylum to ‘political refugees.’ Many governments included assassination within the category of non-extraditable political offences. But there was no universally accepted definition of ‘political crimes’ or of how a State should regulate foreigners in its territory bent on harming other States (Saul, 2006, 85–87).
2. The French Memorandum of 9 December 1934
9 Despite these various legal ambiguities and controversies, on 9 December 1934, French Foreign Minister Pierre Laval (1883–1945) submitted a memorandum on behalf of his government to the Council of the League of Nations as part of the organization’s effort to preserve peace after the terrorist attack that killed King Alexander. The memorandum, entitled, ‘Bases for the Conclusion of an International Agreement with a View to the Suppression of Crimes Committed for the Purposes of Political Terrorism’, aimed at satisfying Yugoslavia’s demands for League action against international terrorism (Letter from the French Government to the Secretary-General, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1839–40). It not only laid down general principles for combating ‘political crimes of an international character’, but included a list of ‘criminal acts directed against persons and property and constituting terrorist action with a political object’, such as the attempted assassination of heads of State, members of governments, officials, judges, or ‘private persons by reason of their political attitude’ (Letter from the French Government to the Secretary-General, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1839). Other acts of terrorism included attempts to destroy public buildings, railways, ships, aircraft, or other means of communication. The French proposal criminalized membership in terrorist associations, possession of firearms and explosives with intent to commit terrorist acts, and incitement to carry out such acts. It suggested provisions for the control of passports and identity papers as well as the obligation of States to inform foreign governments of terrorist plots. It also recommended that governments insert in their extradition treaties a clause excluding assassination from the category of non-extraditable political offences (Letter from the French Government to the Secretary-General, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1840).
10 In addition, the French memorandum suggested the creation of an ‘International Criminal Court’ with the power to try individuals accused of any act of terrorism. While France insisted that the suppression of terrorism would still rest with the courts of each State, a new terrorism court would meet ‘the double requirement’ of safeguarding ‘impartial justice in specially delicate cases’ and ensuring that States carry out their responsibility ‘to try crimes of this kind’ (Letter from the French Government to the Secretary-General, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1840). As proposed by France, this court would be composed of five members and established on a permanent basis, but meeting only when prosecutions were instituted relating to matters which fell within its competence. In particular, the new court would try individuals charged with an act of terrorism where the accused had taken refuge in a country other than that which desired to prosecute him, and the country of refuge preferred to bring up the accused for judgment before the new court rather than grant extradition to the State applying for it. Further, the new court would try those where the State on whose territory the terrorist act was committed preferred to waive prosecution before its own courts in the particular case concerned. On the pronouncement of each sentence, the projected court would decide which of the contracting States must provide for the execution of the sentence. The right to pardon, (Amnesties) in connection with the sentences pronounced by this court, would be exercised ‘by the Council of the League of Nations, on the motion either of the State in which the sentence was to be carried out, or of the State against which the acts were directed, or of the State of which the sentenced person is a national’ (Letter from the French Government to the Secretary-General, in League of Nations, Minutes of the Eighty-Third (Extraordinary) Session of the Council, 1840).
11 The Council of the League of Nations accepted the French memorandum as part of an unanimous resolution that resolved the dispute between Yugoslavia and Hungary on 10 December 1934. Anthony Eden (1897–1977), the British Member of the Council who was serving as rapporteur for the dispute, suggested that a ‘committee of experts’ study the problem and produce a preliminary draft convention ‘to assure the repression of conspiracies or crimes committed with a political or terrorist purpose’ (League of Nations, Monthly Summary, vol 14, 283). This committee would have experts from Britain, France, Italy, and the Soviet Union, the four most powerful Member States of the League. Several other governments interested in the question were invited to participate, including Belgium, Chile, Hungary, Poland, Romania, Spain, and Switzerland. The French memorandum containing the suggestion for the creation of a terrorism court would serve as the starting point of this expert committee’s work.
1. The Committee for the International Repression of Terrorism
12 The Committee for the International Repression of Terrorism (‘CRT’) first met in Geneva in early 1935 to begin drawing up a preliminary draft of an international convention to suppress and punish terrorism. As an indication of how seriously governments took the League’s technical and advisory functions, most chose respected legal scholars, foreign policy advisers, government officials, or diplomats with experience at Geneva to serve on the CRT. France selected Jules Basdevant (1877–1968) who, in addition to serving in the Ministry of Foreign Affairs, was a law professor at the University of Paris. He had helped the French delegation draft the original Council resolution as well as France’s memorandum of 9 December 1934. Britain appointed Sir John Fischer Williams (1870–1947). A former official in the Home Office specializing in questions concerning the control of aliens, he had served as British legal representative on the Reparation Commission under the Treaty of Versailles from 1920 to 1930. He had written a number of scholarly essays on international law and the League of Nations. He would later become a Member of the Permanent Court of Arbitration (PCA) at The Hague.
13 The CRT’s other Members were similarly distinguished. Italy appointed Baron Pompeo Aloisi (1879–1970), its delegate to the League Council and President of the Chamber of Italy’s Court of Cassation. Switzerland sent Ernst Delaquis (1878–1951), a professor at the University of Geneva and President of the International Union of Penal Law. Dr Slavko Stoyković, a Yugoslav and professor at the Faculty of Law in Belgrade, assisted the Romanian Member. The Members from Chile, Hungary, Poland, and the USSR were drawn from their respective foreign ministries, embassies, justice ministries, or official delegations to the League.
14 Two of the most prominent Members of the CRT were Henri Carton de Wiart (1869–1951) of Belgium and Vespasien V Pella (1897–1960) of Romania. They held common views about international criminal law and universal criminal jurisdiction. Carton de Wiart was the President of the International Association of Penal Law in 1934. Formerly the Prime Minister and Minister of Justice of Belgium, Carton de Wiart was also the chairman of the International Bureau for the Unification of Criminal Law. As the Belgian delegate to the League of Nations since 1928, he was a persistent proponent of legal reform. Pella was a leading figure in both the International Bureau for the Unification of Penal Law and the International Association of Penal Law. In addition to serving in the Romanian parliament in the 1920s, Pella had a notable career teaching criminal law. He had been a member of Romania’s delegation to the Assembly of the League since 1925 and had helped draft the International Convention for the Suppression of the Counterfeiting of Currency of 1929, the act the League Council recommended as a model for the CRT’s task. Carton de Wiart chaired the CRT and Pella served as rapporteur.
15 Guided by the French memorandum, the CRT approved several articles of an anti-terrorism convention in 1935. These successful deliberations demonstrated that the League could foster international cooperation, but they also exposed deep divisions between—and within—Member States over the definition of ‘terrorism’, the limits of extradition law, the rights of political refugees, and the practicality of an international criminal court. Britain never supported the idea of a new terrorism court. The Chilean, Hungarian, Italian, Polish, Soviet, and Swiss Members of the CRT also were opposed. The only active support was that given by the Belgian, French, Romanian, and Spanish Members. Pella was the staunchest champion. In addition, both the British and Swiss governments opposed any new restrictions on the right to asylum or free speech. They also remained dubious about adopting any new domestic legislation to criminalize international terrorism (Report to the Council on the First Session of the Committee for the International Repression of Terrorism, 8 May 1935).
16 The CRT held its second session in early 1936. All of the original Members, including those from Italy and Hungary, participated. Their efforts, however, became increasingly technical and symbolic as governments considered other threats to global peace and security more important. Still, the League’s experts drafted two conventions: one to criminalize international terrorism and the other to establish an international criminal court. The CRT’s third and final session was in April 1937. After more than two years of work, the Council accepted the CRT’s revised drafts and agreed to summon a diplomatic conference on terrorism in November to invite States to sign the conventions, a decision that fulfilled all conditions of the Council’s resolution of 10 December 1934 (League of Nations, Minutes of the Ninety-Seventh Session of the Council, 308–10).
2. The International Conference on the Repression of Terrorism
17 The International Conference on the Repression of Terrorism opened in Geneva on 1 November 1937 (League of Nations, Proceedings of the International Conference on the Repression of Terrorism, 1–218). Carton de Wiart of Belgium was President of the conference and Pella the General Rapporteur. France’s delegate was Basdevant who was also a Vice-President. Fischer Williams was the British delegate. Altogether, thirty-five Member States of the League, along with an observer from Brazil, attended. Instead of further delaying or diluting the organization’s efforts, the delegates largely preserved—and in certain respects even strengthened—the CRT’s original drafts. After much debate and revision, the conference ultimately produced two international conventions designed to suppress and punish State-supported terrorism (League of Nations, Monthly Summary, vol 17, 284–95). The first, the Convention for the Prevention and Punishment of Terrorism, 1937 (‘Terrorism Convention’), was the most important modern attempt to classify terrorism as an international crime. The second, the Convention for the Creation of an International Criminal Court, 1937 (‘Court Convention’), provided for the establishment of the world’s first permanent international penal court to try accused terrorists.
18 Twenty-five governments from across Europe, Latin America and the Caribbean, the Middle East, and Asia signed the Terrorism Convention. Among the signatories were Argentina, Belgium, Czechoslovakia, the Dominican Republic, Egypt, France, India, Romania, the Soviet Union, Turkey, and Yugoslavia. The Terrorism Convention contained twenty-nine articles. According to Article 1, ‘acts of terrorism’ were defined as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.’ The list of criminal offenses identified in Article 2 included not only attempts to kill political leaders and public officials, but also the destruction of public property and ‘any wilful act calculated to endanger the lives of members of the public.’ Article 3 criminalized conspiracies to commit any terrorist act as well as ‘[d]irect public incitement’ to any of the acts mentioned in Article 2, ‘whether the incitement be successful or not’ (League of Nations, Monthly Summary, vol 17, 284). Article 8 concerned extradition. According to paragraph 1, the High Contracting Parties would include all of the offences listed in Articles 2 and 3 as extradition crimes to any existing or future extradition treaty, but paragraph 4 stipulated that the obligation to grant extradition remained subject to ‘any conditions and limitations recognised by the law or the practice of the country to which application is made’ (League of Nations, Monthly Summary, vol 17, 284).
19 Most governments, however, continued to oppose the proposed international criminal court. Many considered the idea premature and insisted that, if established, the new court should not be placed under the auspices of the League of Nations. The Court Convention was eventually signed by only thirteen Member States: Belgium, Bulgaria, Cuba, Czechoslovakia, France, Greece, Monaco, the Netherlands, Romania, Spain, Turkey, the USSR, and Yugoslavia. After signing it, the Czechoslovak delegate attempted to put the best face on it he could by observing that the fact that States representing ‘upwards of a hundred million persons’ had accepted the idea of an international criminal court to try accused terrorists was ‘a landmark in the development of international criminal law’ (League of Nations, Proceedings of the International Conference on the Repression of Terrorism, 178). France claimed a diplomatic victory and made sure to remind everyone that both conventions were based on a French proposal (League of Nations, Proceedings of the International Conference on the Repression of Terrorism, 180).
20 In the end, India was the only signatory to ratify the Terrorism Convention. None ratified the Court Convention. Britain did not sign either one. Denmark and Mexico considered adhering to both conventions early in 1939, but never did so. Only five of the original eleven governments who appointed experts to the CRT signed the conventions. Neither ever came into force. Nonetheless, delegates from several smaller powers defended the League’s anti-terrorism project. Pella called the conclusion of the two conventions ‘a red-letter day’ for the development of international criminal jurisdiction and international cooperation (League of Nations, Proceedings of the International Conference on the Repression of Terrorism, 179–80). The Yugoslav delegate reminded everyone that the League had not only settled the international crisis resulting from the terrorist attack at Marseille in 1934, but had fulfilled its duty to address the underlying cause of that crisis. Yet, for the Yugoslavs, the value of the conventions was ‘primarily as a moral achievement’ and ‘a demonstration of international solidarity’, not as effective instruments to suppress and punish State-supported terrorism. In a reference to the darkening international climate, the Yugoslav delegate expressed a hope that the ‘moral force and preventative influence’ of the two conventions might serve ‘the future happiness of generations more fortunate than our own’ (League of Nations, Proceedings of the International Conference on the Repression of Terrorism, 175–6).
21 The final version of the Court Convention signed at Geneva contained fifty-six articles. According to the preamble, the signatories desired to create an international criminal court ‘with a view to making progress in the struggle against offences of an international character’ (League of Nations, Monthly Summary, vol 17, 289), but Article 1 made clear that the scope of the new court was limited to prosecuting persons accused of an offence only dealt with in the Terrorism Convention. Each contracting State was entitled, instead of prosecuting before its own courts, to commit an accused terrorist for trial to the Terrorism Court. Further, each contracting State could, in cases where that State was unable to grant extradition in accordance with the Court Convention, commit the accused for trial to the Court if the State demanding extradition was also a party to the Court Convention. According to Article 3, the Court was to be ‘a permanent body, but shall sit only when it is seized of proceedings for an offence within its jurisdiction’ (League of Nations, Monthly Summary, vol 17, 289).
22 Since Britain and a number of other governments strongly opposed linking the new international criminal court to the League of Nations, delegates attending the International Conference on the Repression of Terrorism in 1937 decided that the Terrorism Court’s seat should be at The Hague, not Geneva. For any particular case, the President of the Terrorism Court ‘may take the opinion of the Court and the Court may decide to meet elsewhere’ (League of Nations, Monthly Summary, vol 17, 289).
23 In a further concerted effort by opponents to separate the Terrorism Court from the League, the PCIJ was given the power to select the judges and would choose the regular and deputy judges from those so nominated by States. According to Article 5 Court Convention, the TC was to be composed of judges chosen from among jurists who were acknowledged authorities on criminal law and who were or had been members of courts of criminal jurisdictions. It was also possible to serve as a judge if one possessed ‘the qualifications required for such appointments in their own countries’ (League of Nations, Monthly Summary, vol 17, 290). The TC was to consist of five regular judges and five deputy judges, each belonging to a different nationality, but all had to be nationals of States party to the Court Convention. Each judge was expected to exercise their powers impartially, enjoy diplomatic privileges and immunities when engaged on the business of the TC, and hold office for ten years. A judge of the Terrorism Court could not be dismissed unless in the unanimous opinion of all the other judges, including both regular and deputy judges. All expenses of the TC, including the salaries of judges and all cost of the proceedings, were to be defrayed from a common fund created by contributions from the contracting parties of the Court Convention, not from the general budget of the League of Nations (League of Nations, Monthly Summary, vol 17, 293).
3. Procedural Aspects
24 According to Article 21 Court Convention, the substantive criminal law to be applied by the Terrorism Court was to be the national law which was ‘least severe’ (League of Nations, Monthly Summary, vol 17, 291). In determining what that law was, the TC was to take into consideration the law of the territory on which the terrorist act was committed and the law of the country which committed the accused terrorist to it for trial. Any dispute as to what substantive criminal law was applicable was to be decided by the Terrorism Court. If the TC had to apply, in accordance with Article 21, the law of a State of which no sitting judge was a national, it could invite a jurist who was an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor. The Terrorism Court was to have the power to pronounce sentences involving fines, the loss of liberty, and even death (Death Penalty). If a sentence of death was pronounced, the State designated by the TC to execute the sentence was entitled to substitute the most severe penalty provided by its national law which involved the loss of liberty. The State which had to enforce the penalty also was to have the right to pardon.
25 In terms of the anticipated proceedings of the Terrorism Court, the State which committed the accused terrorist to the TC was to conduct the prosecution unless the State against which the offence was directed or, failing that State, the State on whose territory the offence was committed expressed a wish to prosecute. The accused terrorist had the right to be defended ‘by advocates belonging to the Bar and approved by the Court’ (League of Nations, Monthly Summary, vol 17, 291). If the accused did not choose an advocate, the TC was to assign one to each accused person. While the parties could submit to the TC the names of witnesses and experts, the judges were to be free to decide whether they would be summoned and heard. The Terrorism Court was also free, even of its own motion, to hear other witnesses and experts. The same rules were to apply as regards any other kind of evidence as well. Similar to other criminal courts, the decisions of the TC ‘shall be by majority of the judges’ (League of Nations, Monthly Summary, vol 17, 292).
26 Hearings before the Terrorism Court were to be public, but the body had the power to decide if a hearing would take place in camera. Judgments were to be pronounced in a public hearing. Every judgment or order of the TC was to specify the reasons for the judgment or order and be read at a public hearing by the President of the Court. Any disputes between contracting States relating to the interpretation or application of the Court Convention, and if such a dispute could not be satisfactorily solved by diplomatic means, could be settled in conformity with the relevant provisions of the League Covenant or by the PCIJ. Finally, the Court Convention could be denounced on behalf of any contracting party by a notification in writing addressed to the Secretary-General of the League of Nations, who would inform all the Member States of the League. Such a denunciation was to take effect one year after the date of its receipt (League of Nations, Monthly Summary, vol 17, 295).
27 While neither the Terrorism Convention nor Court Convention received enough ratifications to take effect and a ‘Terrorism Court’ was never established, the League’s efforts to suppress and punish international terrorism in the 1930s were significant milestones in the history of modern international law and legal procedure. In the short term, France’s original proposal for the creation of an international criminal court to try accused terrorists offered an innovative solution to a difficult international problem within the framework of the League of Nations. It allowed all sides of a serious international dispute involving the problem of State-supported terrorism to save face while appeasing the principal antagonists. Much of the French memorandum of 9 December 1934 was purposely ambiguous and incomplete, thus offering a credible basis for continuing discussion of the issue. It reflected both the immediate practical needs of States, particularly those of Yugoslavia and its allies, as well as some of the most progressive ideas in the debates surrounding international criminal jurisdiction during the interwar period. The suggestion to create an international criminal court to try accused terrorists was a political expedient that nonetheless represented a further internationalization and reformation of criminal law. It also had important implications for how international organizations addressed transnational crimes. Yet like other international conventions adopted under League auspices during the interwar period, the French proposals were limited. Their aim was to define the problem, promote collaboration in confronting it, create effective means for reducing its occurrence, and gradually change how States and the wider public viewed this particular form of political violence in international relations.
28 In the longer term, the international criminal court originally proposed by France as part of the League’s larger anti-terrorism project, was a success only in the narrowest, mostly technical and symbolic, sense. While France’s suggestion to create the court helped to preserve peace in 1934, the League’s capacity to settle international disputes of any sort rapidly dissipated after 1935 as great powers abandoned the organization and smaller ones lost faith in it. Erosion of political support within a shifting international context also severely undercut the League’s ability to confront political issues, including State-supported terrorism. A web of government advisers, League officials, and legal experts working through the organization’s imperfect machinery invested an enormous amount of time and energy over several years in this attempt to suppress and punish terrorism. Their work proved productive, but by the time it was accomplished most Member States of the League had starkly different and more immediate security concerns. Terrorism was still a serious danger to peace, but everyone knew that the League’s anti-terrorism project, particularly a new international criminal court to try accused terrorists, could do nothing to stop Europe’s dictators.
29 Nonetheless, the League’s two anti-terrorism conventions were significant for a number of reasons. One recent legal scholar notes that the central definition of terrorism in the Terrorism Convention of 1937 has proven remarkably resilient and ‘served for many years as a benchmark’ (Saul, 2006, 102). Another scholar argues that the League’s efforts helped to contribute to new concepts of international justice and laid some of the groundwork for the Nuremberg trials as well as subsequent attempts to develop modern international criminal procedure (Lewis, 2014, 150–80). Together, the League’s draft conventions, if ratified, might have given States a way to reduce acts of terrorism by putting greater pressure on governments that harboured terrorists, increasing international police collaboration and intelligence sharing, and making it more difficult for terrorists to acquire weapons and false passports. The League’s proposals also could have given governments a means for criminalizing conspiracies to commit terrorist acts while providing an external and more neutral process for prosecuting accused terrorists.
30 While a number of States still belonging to the League agreed that the organization’s anti-terrorism project was ‘a moral achievement’, many also understood that there remained much division and ambiguity over key provisions of the two conventions the organization produced. Among the most controversial were the definition of ‘terrorism’, the list of ‘acts of terrorism’ and related crimes, and the clauses concerning extradition. As noted above, the final version of the Terrorism Convention defined ‘acts of terrorism’ as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.’ The decision to add ‘in the minds of’ did little to clarify the abstract and highly subjective nature of the concept. The obligation under the Terrorism Convention either to extradite or prosecute and punish foreign nationals for committing terrorist offences also remained confusing, and contingent on a number of qualifications and exceptions. As a consequence, neither the Terrorism Convention nor the Court Convention did anything to alter existing law on extradition.
31 British legal experts and government officials were among the harshest critics of the creation of an international criminal court to try accused terrorists. Many of their criticisms remain compelling. In public, the British government insisted in 1936 that the time was ‘not yet ripe’ for such a court, much less one created with so little international support (League of Nations, International Repression of Terrorism: Observations by Governments, 4). Britain also declared that harm was done to international institutions generally ‘by the establishment of an institution which was not supported by the general assent of public opinion’ (League of Nations, International Repression of Terrorism: Observations by Governments, 4). In private, Fischer Williams told the British Foreign Office (FO) that the unpopular Court Convention could undermine the League’s already diminishing prestige, particularly if the TC, once established, immediately failed given its limited jurisdiction or by never having a case referred to it (Letter from Fischer Williams to FO, 11 Mar. 1936). The British Year Book of International Law in 1938 noted disapprovingly that the proposed Terrorism Court would apply no single system of substantive law and did not contemplate the presence of a jury (Hurst, 1938, 216–17). Fischer Williams was convinced that the TC would perform, ‘probably at an increased cost and with a cumbrous organization, work which could be done more efficiently by national courts if a general system of extradition were established’ (Letter from Fischer Williams to FO, 11 Mar. 1936).
32 The Terrorism Convention and the Court Convention never prevented or punished State-supported terrorism. Both texts were deeply divisive and seriously flawed, largely divorced from the political realities of the late 1930s. The achievements of the Conference on the International Repression of Terrorism at Geneva in 1937 went largely unnoticed. This was not, however, a ‘failure’ of the League of Nations. The organization made it possible for States to come together and discuss ideas for confronting the common danger of international terrorism. If individual governments ultimately decided not to adopt any of these ideas, it was not the fault of the League as an organization.
33 Despite devoting decades to the subject of combating the threat of international terrorism, the United Nations has yet to resolve many of the same dilemmas surrounding the problem that the League identified in the 1930s. Not only have States not agreed on a universal definition of terrorism, but the controversies over how to distinguish a ‘terrorist’ from an ‘insurgent’, much less a ‘rebel’, or ‘militant’, or ‘saboteur’, or someone committing a ‘political’ crime or participating in a particular social movement or sparking a civil war, remain unresolved. They are perhaps unresolvable. ‘Terrorism’ continues to mean different things to different people and is often used—as well as abused—to describe very different forms of organized violence, intimidation, or resistance. It also continues to prove a highly effective tactic, at least in the short term, for some individuals, groups, and governments. Establishing an international criminal court that could effectively prosecute accused ‘terrorists’ proved tantalizing but elusive in the 1930s. The idea remains no less tantalizing but elusive today.
M Potulicki (ed), Actes de la Iére Conférence d’Unification du Droit Pénal (Varsovie, 1–5 Novembre 1927) (Recueil Sirey Paris 1929).
S Sasserath (ed), Actes de la IIIe Conférence Internationale pour l’Unification du Droit Pénal (Bruxelles, 26–30 Juin 1930) (Office de Publicité Brussels 1931).
H Donnedieu de Vabres (ed), Actes de la IVe Conférence Internationale pour l’Unification du Droit Pénal (Paris, 27–30 Décembre 1931) (Recueil Sirey Paris 1933).
R Lemkin, Les actes constituant un danger général (interétatique) considerés commes delits des droit des gens (Pedone Paris 1933)
M López-Rey (ed), Actes de la Vème Conférence Internationale pour l’Unification du Droit Pénal (Madrid 14–20 Octobre 1933) (Pedone Paris 1933).
J-A Roux, Terrorisme (Madrid 1933).
C Hurst, ‘Notes: The Convention for the Creation of an International Criminal Court’ (1938) 19 BYIL 216–7.
DM Segesser and M Gessler, ‘Raphael Lemkin and the International Debate on the Punishment of War Crimes (1919–1948)’ 7 Journal of Genocide Research (2005) 453–68.
B Saul, ‘The Legal Response of the League of Nations to Terrorism’ (2006) 4 JICJ 78–102.
MA Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (OUP Oxford 2014).
WGC Hall, Political Crime: A Critical Essay on the Law and Its Administration in Cases of a Certain Type (Allen & Unwin London 1923).
JL Brierly, ‘Do We Need an International Criminal Court?’ (1927) 8 BYIL 81–88.
G Ottlik, Annuaire de la Société des Nations 1937 (Editions de l’Annuaire de la Société des Nations Geneva 1937) 349–50.
A Zimmern, The League of Nations and the Rule of Law 1918–1935 (2nd edn Macmillan and Co London 1939).
MO Hudson, International Tribunals: Past and Future (Carnegie Endowment for International Peace and Brookings Institution Washington DC 1944).
FP Walters, A History of the League of Nations (OUP Oxford 1952).
MD Dubin, International Terrorism: Two League of Nations Conventions, 1934–1937 (Kraus International Publications Milwood, NY 1991).
‘Great Britain and the Anti-Terrorist Conventions of 1937’ (1993) 5 Terrorism and Political Violence 1–29.
W Laqueur (ed), A History of Terrorism (Transaction Publishers Piscataway, NJ 2002).
G Marston, ‘Early Attempts to Suppress Terrorism: The Terrorism and International Criminal Court Conventions of 1937’ (2002) 73 BYIL 293–313.
B Saul, Defining Terrorism in International Law (OUP Oxford 2006).
RB Jenson, ‘The International Campaign against Anarchist Terrorism, 1880-1930s’ (2009) 21 Terrorism and Political Violence 89–109.
P Knepper, International Crime in the 20th Century: The League of Nations Era, 1919–1939 (Palgrave Macmillan Basingstoke 2011).
M Housden, The League of Nations and the Organisation of Peace (Pearson New York 2012).
C Townshend, ‘“Methods which all Civilized Opinion Must Condemn”: The League of Nations and International Action against Terrorism’ in JM Hanhimäki and B Blumenau (eds), An International History of Terrorism: Western and Non-Western Experiences (Routledge London/New York 2013) 35–50.
I de la Rasilla del Moral, ‘An International Terrorism Court in nuce in the Age of International Adjudication’ (2017) 1 Asian Yearbook of Human Rights and Humanitarian Law 76–108.
MD Callahan, The League of Nations, International Terrorism, and British Foreign Policy, 1934–1938 (Palgrave Macmillan Basingstoke 2018).