Revisiting Schwarzenberger today: The problem of an international criminal law

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 393-414
• Citation: (2003) 16 SACJ 393
• Author: Adele E Erasmus

Revisiting Schwarzenberger today:

The problem of an

international criminal law

ADELE E ERASMUS*

ABSTRACT

This article canvasses some of the main points raised by Schwarzenberger in a famous

article written in the 1950s. The central objection he had to the idea of an international

criminal law arose from the structure of the system of international law itself, which

has no central authority to enforce its proscriptions. This article explores the concept

of individual and state criminal responsibility and considers the characteristics which

all international crimes cumulatively embrace. It considers recent evidence of

international criminal law offered by the establishment of the

ad hoc

Tribunals and

the International Criminal Court. It attempts to chart the progress made by the

international community in this field since the 1950s but concludes, as did

Schwarzenberger, that international criminal law is not universally applicable.

Introduction

In a world of uncertainty, we can be certain that the article, The problem of

an international criminal law' by Georg Schwarzenberger,

1

will be prescribed

reading for the introductory lecture on what is international criminal law in

any course on that subject. A further certainty is that the world in 2003 is a

very different place to that of 1950 when his article was first published,

particularly because it is no longer divided into two diametrically opposed

camps as it was during the Cold War.

Schwarzenberger's article is a useful teaching tool because he challenged

the meaning and value of 'international criminal law'. He began by

dismissing the claim that 'international criminal law' had been established

'unequivocally as a technical term'.

2

In support of this dismissal,

Schwarzenberger analysed several different meanings attributed to the term

'by those who consider international criminal law to form part of the existing

law of nations'.

3

*



BA LLB (UCT) LLM (Leiden),

Department of Criminal Justice, University of

Cape

Town.

1

G Schwarzenberger 'The problem of an international criminal law' (1950) 3

Current Legal

Problems

263-96.

2

Op cit (n1) 264.

3

Ibid.

393

(2003) 16 SACJ 393

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394



SACJ •

(2003) 16

First, there was 'international criminal law' as the ability of states to extend

the territorial scope of their municipal criminal law beyond their boundaries.

Secondly, 'international criminal law' had been equated with internationally

prescribed municipal criminal law that in some instances, but not all,

4

led

when violated to internationally authorised domestic prosecutions. Finally,

he noted that 'international criminal law' had been understood as

international co-operation in the administration of municipal criminal

justice. We are struck by the repetition of the proponents of an

'international criminal law' in locating the meaning of international criminal

law within 'municipal criminal law'. Surely we would expect international

criminal law to imply an international criminal justice system? Schwarzen

berger, therefore, concluded that these meanings were 'merely a loose and

misleading label for topics that comprise anything but international criminal

law'.

5

Schwarzenberger had two main objections to 'international criminal law'.

First, for 'international criminal law' to exist in a true or material sense, it

should consist of 'rules germane to international law with two essential

characteristics ... a prohibitive character and ... endowed with penal

sanctions'.

6

As with criminal law in municipal jurisdictions, he expected that

the conduct prohibited and sanctioned by international criminal law would

'strike at the very roots of international society'

7

and be strengthened by the

threat of having penal sanctions imposed by a superior authority when the

law was infringed.

Secondly, Schwarzenberger's main objection was the absence of a strong

central power in international society. In the 1950s, 'any attempt to enforce

an international criminal code against either the Soviet Union or the United

States ... would be war under another name'.

8

For him, both the 'swords of

war and of justice [were] ... annexed to the Sovereign Power'

9

and it was

only '[i]f, and when, the swords of war [were] taken from their present

guardians ... [that] the international community [would] be strong enough to

wield the sword of universal criminal justice'.

10

4

Schwarzenberger only discusses piracy

Pure gentium

and war crimes, which until the 1940s

were the only crimes punishable under international law. See op cit (n1) 268-9 and A Cassese

International Criminal Law

(2003) 16.

5

Schwarzenberger op cit (n1) 268-9.

6

Op cit (n1) 274.

Op cit (n1) 273.

8

Ibid.

9

Op cit (n1) 294.

10 Op cit (n1) 296.

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