The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 by Mark Lewis (review)

The field of “international criminal law” generally is treated as a post-World War II creation. Finding its first and most important articulation in the charter, proceedings, and decision of the International Military Tribunal at Nuremberg (IMT), international criminal law has gained fuller expression in conventions—notably the Genocide Convention of 1948 and the Geneva Convention of 1949—as well as in the case law of the ad hoc UN tribunals created in the 1990s to deal with war crimes and atrocities committed in the Balkans and Rwanda. For many, the most visible sign of how far the field has come was the 2002 creation of the fledgling International Criminal Court, the first permanent international criminal adjudication body in human history.

In his excellent book The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 Mark Lewis takes a step back, tracing the growth of international criminal law to the early decades of the twentieth century, and specifically to the legal debates that raged in the wake of World War I. Indeed, the term “new justice” comes from one such debate: in 1919, a leading Dutch newspaper disparaged the “new justice” that called for the extradition of deposed Kaiser Wilhelm II of Germany, who had found asylum in the Netherlands with the Reich’s collapse, to stand trial “for a supreme offence against international morality and the sanctity of treaties.” For Lewis, however, the new justice is neither a term of derision nor exactly one of praise. Less normative than historical, Lewis’s book examines under the rubric of New Justice the constellation of efforts to render state actors responsible for violations of international law, to establish a positive doctrinal base for international incriminations, and to create international courts and processes capable of trying those accused of aggression and/or atrocity.

In describing the emergence of the new justice, Lewis scrupulously steers clear of Whiggish teleology. There was nothing preordained or inevitable about the creation of a body of international law that could condemn state officials for acts committed during times of peace against members of their own domestic population. To the contrary, as Lewis’s granular history makes clear, numerous groups with distinct agendas and often working at cross purposes contributed to the lurching development of international criminal law. These groups included societies of jurists such as the Association Internationale de Droit, which supported the creation of a permanent criminal court to deal with international aggression; and the International Law Association, a London-based organization that wanted an international court to focus more narrowly on established war crimes. Other crucial groups included the Institute of Jewish Affairs, the legal arm of the World Jewish Congress, which was responsible for translating evidence of Nazi atrocity into a language of legal wrongdoing; and the International Committee of the Red Cross (ICRC), which, narrowly concerned with the rights of POWs, showed little enthusiasm toward the Nuremberg project that sought to try select POWs as war criminals.

As Lewis makes clear, not only did such organizations have different motivations and goals, but their efforts often did not necessarily manifest a march of liberal legality toward cosmopolitan and enlightened principles. Here again it is worth mentioning the record of the ICRC, which during World War II refused to allow ships carrying Jewish refugees to display the Red Cross emblem. Prominent jurists also saw little contradiction between their robust commitment to international justice and their support of practices dramatically at odds with human rights. In 1920 Eduard Descamps, a prominent Belgian jurist who proposed an international criminal court with jurisdiction over international aggression and war crimes, aggressively defended King Leopold’s murderous exploitation of the Congo. Nicholas Politis, a prominent Greek jurist who likewise supported the creation of an international criminal court in the wake of World War I, soon supported compulsory population transfers between Greece and Turkey. Jurists who shared...