Lewis applied the “Page 99 Test” to his new book, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950, and reported the following:
What’s the best way to prevent war crimes? Ensure an army is well-supervised and understands the culture of the civilians in an occupied area? Or establish international rules that should be enforced by criminal courts?Learn more about The Birth of the New Justice at the Oxford University Press website.
From the late 19th through the 20th century, international legal organizations such as the Red Cross, the International Law Association, and the International Association of Penal Law took different positions on this question. As a result of World War One, a new idea emerged: serious violations should be prosecuted by an international tribunal to restore morality and the validity of international law. The Birth of the New Justice argues that legal organizations took this idea and applied it to areas other than war crimes, such as aggressive war, terrorism, and genocide—not to create a liberal international order, but to deal with pressing problems that fit the organizations’ own historical missions.
Page 99 deals with the International Law Association (ILA), which began in the 1870s as a group of radical pacifists but mellowed to become business-minded lawyers interested in creating global legal codes. After World War One, a British member of the ILA, Hugh H.L. Bellot, wrote a plan for an international criminal court for war crimes because he was dissatisfied with German war crimes trials in the 1920s. Bellot’s plan also called for the court to prosecute international crimes such as “white slave” trafficking and piracy. Lawyers argued these actions offended international morality and disrupted international commerce, reflecting the attitudes of the European bourgeoisie before and after World War One. Some lawyers in the ILA wanted a more powerful court that would also have jurisdiction over aggressive war and attacks against minorities, but the ILA rejected these ideas, as a majority of members believed that the League of Nations would never approve such a court.
In fact, they were right, since the dominant trend in the 1920s was to use the League to regulate diplomatic disputes, not subject individuals to criminal prosecution. States were not ready to accept that their own officials could be held criminally liable for starting wars. A system to prosecute state agents for violence against minorities was an equally hard-sell. Central and Eastern European states were already obligated to uphold certain “minorities treaties” and did not want additional international pressure to enforce them.
Other legal organizations pressed for the creation of an international criminal court in the 1930s and ‘40s. The idea was partially realized at Nuremberg in 1945-46, but that court was not permanent and did not rely on a statute that all the world’s states had agreed upon before World War Two. Even after that war, the dominant mode of enforcement remained domestic courts. The idea of international enforcement had emerged as an intellectual theory and cause for activism, though the Cold War and the doctrine of state sovereignty were serious obstacles.