relating to land ownership, mine ownership, and the licensing of atomic energy for peaceful pursuits, let me draw your attention to page 25 of the statement before this committee by the Attorney General last Tuesday:

One cannot help but speculate upon what such a constitutional amendment will do

And there he refers to Senate Joint Resolution 1 again

to any effort of the United States to achieve genuine international control in important fields relating to peace and safety of the world. For example, the United States proposal of 1945, rejected by the Soviet Union, of an international agency for the control and development of atomic energy included broad powers in the international agency for the management and ownership of all atomic activity potentially dangerous to world security as well as power to control, inspect, and license all other atomic activities.

Mr. FINCH. I would simply answer in the same vein I have already stated, if that is the present contention of this administration, I think that is an additional reason why we should adopt the amendment.

Now, Mr. Chairman, I have dealt on page 16 with the question of an international criminal court. I covered that yesterday. Instead of going over that again, I would like to submit for the record another article which I wrote covering that subject very comprehensively in the American Bar Association Journal for August 1952.

In that journal Judge Parker, who is for the international criminal court, gives his reasons why we should have it, followed by an article by me why we should not have it.

The CHAIRMAN. We will see that that is printed in full.
Senator SMITH. Both articles are going in?

The CHAIRMAN. Yes; right at this point in his remarks.
(The material referred to follows:)

AN INTERNATIONAL CRIMINAL COURT: THE CASE FOR ITS ADOPTION

(By John J. Parker, Chief Judge of the United States Court of Appeals for the Fourth Circuit)

(In this issue of the Journal, we publish two opposing views on the proposed draft statute for an international criminal court. The draft statute, which was drawn last year by a committee appointed by the General Assembly of the United Nations under the chairmanship of George Maurice Morris, former President of the American Bar Association, is hailed below by Judge Parker as a great forward step in the establishment of law in international affairs. On page 644, George A. Finch, editor in chief of the American Journal of International Law, presents the case for those who fear that creation of an international criminal court is a serious menace to the rights of American citizens, guaranteed by the Constitution. At the midyear meeting, the house of delegates voted to take no action on the proposal at this time.)

A great step forward in the development of international law was taken when the Committee on International Jurisdiction appointed by the General Assembly of the United Nations met in Geneva in August 1951 and agreed upon a draft statute for the creation of an international criminal court. It should be a matter of pride to the lawyers of this country that George Maurice Morris, of the District of Columbia, a former president of the American Bar Association, was chosen to act as chairman of the commission and that under his virile leadership agreement was reached upon the terms of a statute which should be highly satisfactory to those who believe in the reign of law in the world community. As the commission met, there were those who were saying that it was impossible to create a court of this character. The draft statute is a triumph of American leadership in a delicate area of international affairs and one which will mean much to the future peace of the world if it is given the support which it deserves by the people of this country.

In establishing world order based on law, nothing is of greater importance than provision for the exercise of judicial power in the enforcement of law in the world community. The International Court of Justice provides machinery for the juridical settlement of justiciable controversies arising between sovereign states. It is given no jurisdiction, however, to deal with individuals who have committed crimes against international law such as were dealt with at Nuremberg and Tokyo. The world community has become so integrated and its various nations so interdependent that world peace is endangered by individuals who commit crimes of an international character; and the time has come when a permanent international tribunal should be set up to try those who are guilty of such crimes. This requires that crimes against the laws of nations be defined, that jurisdiction to try persons guilty of such crimes be established by international agreement and that judicial machinery be provided for the exercise of the jurisdiction conferred.

This draft statute deals only with judicial machinery, leaving to future agreements the conferring of jurisdiction on the court and the defining of that jurisdiction. Article 1 of the statute provides that the court is established "to try persons accused of crime under international law, as may be provided in special agreements among states parties to the present statute." The International Law Commission has been engaged in defining crimes against the laws of nations; and that matter is not dealt with by the draft statute here under consideration. Articles 26 and 27 of the statute make it very clear that the court is not to have jurisdiction to try any person unless the state of which he is a citizen has by agreement separate from that creating the court consented that it be given jurisdiction to try the crime with which he is charged. Those sections provide: "ARTICLE 26. Attribution of Jurisdiction. Jurisdiction may be conferred upon the Court, by States parties to the present Statute, by convention or, with respect to a particular case, by special agreement or by unilateral declaration.

"ARTICLE 27. Recognition of Jurisdiction. No person shall be tried before the Court unless jurisdiction has been conferred upon the Court by the State or States of which he is a national and by the State or States in which the crime is alleged to have been committed."

These provisions might be amended to advantage, I think, by providing that any state having in its custody persons charged with crimes of an international character may, by unilateral declaration, confer on the court jurisdiction to try such persons, without the consent of the state of which they are nationals. Such a provision would not only assure a fair trial to such persons, but would enable the state having them in custody to free itself of the embarrassment which might result from trying them in its domestic courts.

In providing the machinery of an international court, without attempting at the same time to prescribe its jurisdiction over persons or define the crimes subject to that jurisdiction, the committee of the United Nations has acted with great wisdom, I think, and has approached the difficult task of establishing an international criminal court in the only practicable way. If adequate judicial machinery is provided, it will command respect and confidence and there will be greater willingness on the part of nations to enter into agreements vesting it with jurisdiction than there would be to accept jurisdiction in advance of knowledge of the sort of court by which the jurisdiction was to be exercised. With such machinery at hand, nations would unquestionably commit to it the trial of such cases as were heard at Nuremberg and Tokyo. They would gladly avail themselves of it for the trial of persons in their custody charged by them with offenses against international law, where, as often happens, national feelings are aroused over the cases, and trial before an impartial international tribunal would inspire confidence. It is not too much to expect that with the passage of time such a tribunal would through its decisions so commend itself to the conscience ard intelligence of mankind that its jurisdiction would be accepted as a matter of course by all civilized nations.

The machinery provided for the international criminal court meets the highest standards of jurisprudence; and I see no reason to think that it will not work efficiently or justly. The provisions of the draft statute relate to (1) the con stitution of the court, (2) institution of prosecutions, and (3) procedure. I shail consider these in the order named.

THE STATUTE PROVIDES FOR A COURT OF NINE JUDGES

The court is to have 9 judges elected for 9-year terms, 3 of which expire every third year. The states parties to the statute nominate and elect the Judzes, wo are required to possess the qualities required in their respective countries for

the highest judicial office or be jurisconsults of recognized competence in international law. Judges are not permitted to engage in occupations which interfere with their judicial duties or are incompatible with the judicial function. A judge may be dismissed by the unanimous decision of the other judges that he has ceased to fulfill the conditions of his tenure of office. A judge may disqualify himself from sitting in a particular case or may be disqualified by the submission of a party and the decision of the court. The judges are paid travel expenses and a daily allowance when the court is in session. They are also paid an annual compensation, which, it is said, is to be a mere token payment and not a substantial amount, the idea being that the judge is to be paid substantial compensation only when he is performing services.

It has been argued that it will be difficult to secure proper judges for the court with such indefinite promise of compensation. The honor of serving upon an international court of this character is so great, however, and the opportunity of rending important public service is so challenging that lawyers and judges of the highest standing will gladly accept appointments to the court, just as they have accepted appointments to other international tribunals without thought of the compensation involved. If, however, it should be found that more definite compensation is necessary, this can be provided without change of the statute. Prosecution before the court is not left to individuals or even to nations. Proceedings before the court can be instituted only by the General Assembly of the United Nations, an organization of states so authorized by the United Nations or a state a party to the statute creating the court. Prosecution may be had only upon indictment based upon facts certified by a committing authority composed of nine members elected in the same way and possessing the same qualification as the judges. A prosecuting attorney is to be chosen by a panel of 10 persons elected at the same time and in the same manner as the judges. He must have the qualifications of a judge. Before certifying facts as a basis for prosecution by the prosecuting attorney the committing authority must examine the evidence offered by the complainant and afford the accused an opportunity to be heard and to produce evidence.

The provision made for the committing authority supplies the place of a grand jury in the practice with which we are familiar. Before there can be a trial before the court there must be an indictment on findings which the committing authority has certified. As the committing authority is to be composed of nine members having the qualifications of judges, this is ample safeguard against ill-advised or partisan prosecutions.

The provision for the committing authority obviates any ground for providing an appeal from the decision of the court; for this provision means that, before there can be a conviction, two panels of judges shall have passed upon the law and the facts of the case, one for the purpose of determining whether there should be a prosecution and at the same time allowing the accused a hearing, and the other for determining the question of guilt or innocence. After two such hearings, there would be no reason for allowing an appeal to another court.

THE PROCEDURE PROVIDED BY THE STATUTE IS SIMPLE AND FAIR

The procedure prescribed is simple and eminently fair to the accused. Notice of the indictment must be given to the accused and the state of which he is a national sufficiently in advance of trial to enable him to prepare his defense. He has the right to be present at all stages of the proceedings. He is presumed innocent until proved guilty. He has the right to conduct his own defense or to be represented by counsel of his own choosing and to have his counsel present at all stages of the proceedings. He has the right to have the expense of his defense including fees of counsel paid by the court, if the court is satisfied that he is financially unable to engage counsel. He has the right in person or by counsel to interrogate any witness or examine any document offered against him, to introduce oral or other evidence in his defense, to have the proceedings of the court including documentary evidence translated into his own language and to have the assistance of the court in obtaining access to material relevant to the issues before the court. He has the right to be heard by the court but may not be compelled to speak. The hearings of the court shall be public but its deliberations private. The court shall have all power necessary to conduct the trial, including the power to issue warrants of arrest and to require the attendance of witnesses and the production of documents. Trial shall be by the court without a jury, and final judgment shall require a majority vote of the Judges participating in the trial. The judgment shall set forth the reasons

upon which it is based, and where it does not represent the unanimous opinion of the court any judge shall be entitled to deliver a separate opinion.

It has been said in criticism that there is no provision for jury trial; but manifestly a trial before a jury of the vicinage as at comomn law could not be provided in an international criminal court. It is believed that the draft statute adequately safeguards the rights of the accused so as to insure him a fair and just trial before a tribunal which would be better qualified than a jury could possibly be to pass upon the issues which would be presented to a court trying the complicated sort of cases which would be presented to an international criminal court.

Questions have been raised as to the conflict between the draft statute and provisions of the Constitution of the United States. There is nothing in the Constitution, however, which limits the power of the United States to join with other nations in setting up a court to try those who have committed crimes against the law of nations. The fact that Congress may provide for the trial of such crimes does not mean that the creation of an international criminal court would impinge upon the power of Congress, just as the punishment of larceny by the States is no infringement of the power of Congress to punish larceny in interstate commerce. The vital principles of the Bill of Rights, such as due process of law, public trial, right to the assistance of counsel and witnesses, etc., are preserved, as we have seen, in the draft statute.

So far as requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in Federal courts and can have no application to an international court set up by a group of nations in the exercise of their treatymaking power. They are not limitations upon the power of the States. (Spies v. Illinois, 123 U. S. 131, 166; Howard v. Kentucky, 200 U. S. 164, 172; Betts v. Brady, 316 U. S. 455, 461). They do not apply in consular courts or in a court established by the United States by international agreement in China. In re Ross, (140 U. S. 453); Casement v. Squier, Warden, (46 F. Supp. 296). They do not apply to military tribunals set up to try violations of the laws of war. Ex parte Quirin, (317 U. S. 1, 45). If courts may be created in the exercise of the legislative power to which these provisions do not apply (see Ex parte Bakelite Corporation (279 C. S. 438)), there is no reason why such courts may not be created in the exercise of the treatymaking power.

There are a number of provisions in the statute which I might have drawn somewhat differently if I had been engaged in the task and had had the final voice in the matter. The practical question presented, however, is not whether improvements might be made in the statute, but whether as drawn it should have the support of the American bar. That question, it seems to me, should be answered in the affirmative. If we must wait in the setting up of judicial machinery to try international crimes until all the lawyers of this country can agree on the precise terms of a statute, we shall indeed wait forever. The statute presented sets up adequate judicial machinery with adequate safeguards If adopted, any changes which may be needed can be made in the light of experience. Its adoption will be fraught with no possible danger to our liberties, since the court will be vested with only such jurisdiction over our nationals as may be conferred upon it by subsequent agreements or declarations. Under the leadership of an American lawyer we have made a great step forward toward the establishment of law in international affairs. His work should not be nullified by the groundless fears of those who oppose the proposal because it is new without any real consideration of its merits.

AN INTERNATIONAL CRIMINAL COURT: THE Case Against ITS ADOPTION

(By George A. Finch, of the District of Columbia Bar)

(Mr. Finch's article is a reply to that of Judge Parker, beginning at page 641 of this issue, calling for support of the draft statute for an International Criminal Court. Mr. Finch finds in the proposed text of the statute large departures from accepted principles of international law and a threat to constitutional r 25% which are basic concepts of Anglo-American law. Judge Parker and Mr Frh disagree about the wisdom of the creation of an International Criminal Court at least at this time; they agree on the tremendous importance of the issue. The ultimate American answer to the problem raised on these pages can be obta ned only by the political processes that finally determine all great policies of a re-esta lic. Lawyers, who are among the foremost leaders in those processes, shun d give long and careful consideration to the views set forth here.)

The draft statute for an International Criminal Court was drafted by a committee of the United Nations at Geneva in August 1951, pursuant to a resolution adopted by the General Assembly on December 12, 1950. The purpose of the proposed International Criminal Court is "to try persons accused of crimes under international law." All crimes now in this category are punishable in national courts, and the committee decided not to include any mention of them in the draft statute. It left the proposed International Criminal Court without jurisdiction except "as may be provided in conventions or special agreements among States parties to the present statute." (Art. 1.)

For some idea of the character of crimes that may be tried by the proposed court one must recur to the resolution of the General Assembly of the United Nations adopted November 21, 1947, which entrusted to the International Law Commission "the formulation of the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." The Commission was elected by the General Assembly the following year and was directed to "prepare a draft code of offenses against the peace and security of mankind." It is also necessary to bear in mind article VI of the Genocide Convention approved by the General Assembly on December 9, 1948, which provides that persons charged with genocide shall be tried by national courts "or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction."

The draft statute is accompanied by a report explaining the general purpose and the detailed provisions of the proposals. (U. N. Doc. A/AC. 48-4, Sept. 5, 1951).

When the committee met, a minority doubted the desirability and possibility of establishing an international penal tribunal at this time. It proposed that the General Assembly be informed that the setting up of such a court now would involve very real dangers to the future development of international good feeling and cooperation. It asked “whether it was conceivable that criminal proceedings could be instituted against an aggressor with whom the United Nations for that very purpose wanted to reach a negotiated settlement?" The majority held that the committee's task was to elaborate concrete proposals for the consideration of the General Assembly and it was for that body to make decisions on broad questions of principle. The committee agreed to proceed on the understanding that no member, by participating in the deliberations and voting on any text, would commit his government to any decisions that might be adopted (report, pp. 7-9). To answer the question raised by the minority, an article was inserted in the draft statute providing that “No jurisdiction may be conferred upon the court without the approval of the General Assembly of the United Nations" (art. 28). Access to the court was restricted to proceedings instituted by the General Assembly, by any organization of states so authorized by the General Assembly, or by states parties to the statute (art. 29).

The draft statute was reported with the following caveat:

"*** The committee does not wish to give these proposals any appearance of finality. They are offered as a contribution to a study which in the committee's opinion has yet to be carried several steps forward before the problem of an international criminal jurisdiction, with all its implications of a political as well as a judicial character, is ripe for decision" (report, p. 9).

THE DRAFT STATUTE ABANDONS SAFEGUARDS HERETOFORE REGARDED AS ESSENTIAL In the organization of the proposed International Criminal Court the draft statute abandons safeguards heretofore regarded as essential to insure adequate representation of the great powers upon the bench. The judges of the existing International Court of Justice at The Hague are elected separately in the General Assembly and Security Council of the United Nations. In the Assembly the members are represented on the basis of legal equality, while in the Council the great powers by reason of their permanent representation have a proportionately greater voice. In the draft statute under review the nine judges of the proposed International Criminal Court would be elected by an absolute majority of the signatories present and voting at meetings called for the purpose of holding elections (art. 11). The same method would be followed to elect a committing authority of 9 members to act as a sort of grand jury (art. 33), and to choose a panel of 10 persons who in turn would elect the prosecuting attorney (art. 34). The latter would draw up the indictment based on the findings of the committing authority.