Kutner, Luis

English

ValpoScholar

Valparaiso University Law Review 
Volume 8 
Number 3 Spring 1974 pp.719-723 
Spring 1974 
M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International 
Criminal Law 
Luis Kutner 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Luis Kutner, M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International Criminal Law, 8 Val. U. L. 
Rev. 719 (1974). 
Available at: https://scholar.valpo.edu/vulr/vol8/iss3/9 
This Book Review is brought to you for free and open 
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Valparaiso University Law Review by an authorized 
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please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
A TREATISE ON INTERNATIONAL CRIMINAL LAW. By M.
Cherif Bassiouni and Ved P. Nanda. Springfield: Charles C.
Thomas. 1973. Vol. I Pp. 751. Cloth $26.50, Paper $19.75; Vol. II Pp.
426. Cloth $19.75, Paper $15.95.
These two impressive volumes are the first comprehensive compila-
tion of materials on the subject ever to be published. Judge Dautri-
court, a noted European scholar who reviewed these books stated
that for at least ten years to come this work will remain a most
valuable contribution.' In the United States only one other book
carries a similar title and was published in 1965.2 It is a compilation
of previously published materials and some original writings put
together by Professor Gerhard Mueller of N.Y.U. and Ed Wise of
Wayne State. (Mueller and Bassiouni are probably the most re-
nowned experts on international criminal law in the country and
they are also internationally recognized in this field).3
The subject of international criminal law is by no means novel,
even though some publicists still debate its existence.4 Depending
upon one's definition of the subject,5 it can be retraced to Aristotle,
Cicero, St. Augustine and Grotius. Surely since it encompasses the
legitimacy of force, it has its foundation in the writings of early
Greek philosophers. Its inclusion of the justness of war, for example,
can be traced to the writings of St. Augustine. Limitations on the
use of force, its instrumentalities and its conduct can be found in
many earlier writings.6 Certain international crimes such as piracy
have also been the subject of writings by Hugo Grotiss in the sev-
enth century (who also extensively dealt with issues of war and
peace)7 and others since that time.
1. 1 REVUE DE DROIT PENAL ET DE CRIMINOLOGIE 54 (1973).
2. INTERNATIONAL CRIMINAL LAW (G. Mueller & E. Wise eds. 1965).
3. Professor Mueller is Vice President of the International Penal Law Association, and
Professor Bassiouni is Deputy Secretary General. Both are frequently invited to attend inter-
national conferences and have taught at foreign universities.
4. Schwartzenberger, The Problems of an International Criminal Law, in 3 CURRENT
LEGAL PROBLEMS 263 (1950). See, however, as an illustration of the wealth of material on the
subject, B. DESCHUTTER, BIBLIOGRAPHY ON INTERNATIONAL CRIMINAL LAW (1972); see also, D.
OEHLER, INTERNATIONALES STRAFRECHT (1973).
5. See, e.g., S. GLASER, INFRACTIONES INTERNATIONALES (1957); S. PLAWSKI, ETUDE DES
PRINCIPES FONDAMENTAUX DU DROIT INTERNATIONAL PENAL (1972); 0. TRIFFTERER, DOGMATISCHE
UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VOLKERSTRAFRECHTS SErr NURNBERG
(1966).
6. I J. VERSIJL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 226 (1968).
Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International
Produced by The Berkeley Electronic Press, 1974
720 VALPARAISO UNIVERSITY LAW REVIEW
In reviewing the history of international criminal law one can
identify four basic frameworks: the regulation of international coer-
cion; humanitarian concern for individuals in time of war; interna-
tional repression of common criminality; and, protection of human
rights. The long and arduous course of international criminal law
has been made more difficult because its subject matter sought to
regulate different participants, in diverse arenas, employing various
strategies, using different structures, for the attainment of divergent
value-oriented goals.8 As an illustration one can see that controls
over aggressive war differ from the regulation of armed conflicts and
that neither of these functions should be confused with the protec-
tion of human rights (e.g., the prevention of genocide, slavery or
racial discrimination) or other international crimes such as piracy,
hijacking, terrorism and illicit international traffic in drugs. The
complexity of these diverse topics may explain why no one prior to
Bassiouni and Nanda endeavored to put all these matters under the
same umbrella. The common thread, however, appears obvious as
a more concerned world community seeks to protect itself from
aberrant and abhorent forms of behavior which threaten its exist-
ence and civility.
Heretofore writers stopped at a barrier dividing state and indi-
vidual responsibility instead of pursuing the continuum which goes
from the individual to state responsibility or vice versa. Bassiouni
and Nanda broke down that artificial barrier by framing a regula-
tory scheme which focuses on the objects of control instead of the
subjects to be controlled. Twentieth century writers such as Donne-
dieu de Vabres and Pella,' who are recognized as the most authorita-
tive European scholars on the subject, accepted certain limitations
on the scope of international criminal law. They displayed hesitance
and ambivalence about treating international criminal law as a
comprehensive subject involving international regulation of deviant
conduct requiring international penal sanction. This was mani-
fested in a semantical debate over whether the subject matter is
properly considered the criminal part of international law or the
7. Grotius, Laws of War and Peace, in CLASSICS OF INTERNATIONAL LAW (F. Kelsey transi.
1925).
8. M. McDOUcAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961).
9. H. DONNEDIEU DE VABRES, INTRODUCTION A L'ETUDE DU DROIT PENAL INTERNATIONALE
(1928); V. PELLA, LA GUERRE-CRIME ET LES CRIMINELS DE GUERRE (1964).
[Vol. 8
Valparaiso University Law Review, Vol. 8, No. 3 [1974], Art. 9
https://scholar.valpo.edu/vulr/vol8/iss3/9
BOOK REVIEW
international part of municipal criminal law-namely whether it is
Droit Penal international or Droit international Penal.'" Bassiouni
and Nanda simply bring the two together and blend them within
the framework of a new discipline whose sources are international
law and criminal law." The approach is therefore unique in that
respect, as it is in many ways.
Those volumes have writings by 47 contributing authors who
represent the views of all continents and major ideologies which in
itself exemplifies international cooperation among scholars regard-
less of ideological or political differences.' 2 As to methodology, the
two volumes are divided in such a manner as to cover in Volume I
the substantive aspects of international criminal law while Volume
II deals with its adjective or procedural aspects. The content cover-
age cuts across traditional disciplines as we see penalists and publi-
cists join in the development of this new discipline. The organiza-
tion of Volume I reveals five major divisions: (1) the foundation of
the discipline of international criminal law (Part I); (2) the protec-
tion of peace (Part II); (3) the regulation of institutional violence
(Part III); (4) the identification of common crimes against mankind
(Part IV); and (5) the prosecution of international criminal law
violations and its future (Part V). Volume II discusses theories of
jurisdiction and international cooperation, mutual assistance, and
judicial cooperation and assistance in penal matters. This volume
will be quite useful to the judge and practitioner because of its
practical aspects such as extradition and recognition of foreign judg-
ments.
The treatment of most subjects covered in both volumes is
rather exhaustive. Volume I contains 751 pages and Volume II, 426
pages. A careful reviewer of these two volumes will not fail to find,
however, that some topics deserved more ample treatment (e.g.,
genocide) '3 , but limitations due to size may explain this shortcom-
ing. These two volumes are excellent research tools bcause of the
various relevant documents, treaties and appendices and a well or-
ganized index. The references and copious citation of source mate-
10. See A. QUINTANO-RiPOLLES, TRATADO DE DERECHO PENAL INTERNACIONAL E INTERNA-
CIONAL PENAL (1957).
11. See authors' preface, volume one.
12. Id.
13. Genocide is accorded a scant seven pages: see Volume I, pp. 522-29.
19741
Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International
Produced by The Berkeley Electronic Press, 1974
722 VALPARAISO UNIVERSITY LAW REVIEW
rial in English, French, German, Spanish, Italian, Russian, Hungar-
ian, Polish and other foreign language materials make it particu-
larly helpful to the student and scholar of foreign sources. The use-
fulness of such an undertaking however must go beyond this and its
test will be whether it is used as teaching material. Since both
volumes were published in 1973 it is too soon to survey its accepta-
bility by teachers and students even though it has already stirred
much interest. One likely drawback to their use in the clessroom
may well be the size of Volume I (751 pages) and the cost of both
volumes, even though a less expensive paper back edition is avail-
able (Vol. I at $19.75 and Vol. II at $15.95). Furthermore it must be
noted that a "Part" on international protection of human rights
should have been included, particularly since Bassiouni and Nanda
are quite involved in this area." The exclusion may, however, be
explained by the length of the existing text and the reluctance of
publishers to produce expensive volumes. Nonetheless a treatment
of certain human rights remedies such as World Habeas Corpus
should have been included. 5
The two author-editors worked several years on this project and
as this reviewer came to know it, Bassiouni pioneered the effort in
1968 and was joined by Nanda in 1971. An interesting insight into
this work is the manner in which it was structured. Bassiouni pre-
pared the outline of the two volumes and then solicited the contrib-
uting authors for its various parts. Each author thus provided a part
which was prepared to fit in a whole which gives these two volumes
the continuity and consistency of a text or treatise instead of a mere
compilation of articles. Bassiouni and Nanda then edited the manu-
scripts, added the documents and appendices and wrote connecting
parts as well as some specific sections. The process took almost four
years. The appearance of these two volumes and their production
by the publisher is of the highest quality.
A word about the authors may be appropriate even though they
are well known. Professor Bassiouni, who is at DePaul University in
Chicago, was a Fullbright-Hays visiting Professor of international
Criminal Law at the University of Freiburg in Germany (1970), a
14. See, e.g., Symposium-International Human Rights, 21 DE PAUL L. REV. 271 (1971)
and numerous other writings by both authors.
15. See L. KUTNER, WORLD HABEUS CORPUS (1962); THE INDIVIDUAL RIGHT TO HUMAN
FREEDOM (1970).
[Vol. 8Valparaiso University Law Review, Vol. 8, No. 3 [1974], Art. 9
https://scholar.valpo.edu/vulr/vol8/iss3/9
BOOK REVIEW
Visiting Professor of law at N.Y.U. (1971) and a Guest Scholar in
the Woodrow Wilson International Center for Scholars (1972). Pro-
fessor Bassiouni is the author of Criminal Law and Its Processes
(1969) and The Law of Dissent and Riots (1970) as well as several
articles in scholarly journals. Professor Nanda, also a well-known
writer on international law topics, is at the University of Denver and
is its Director of International Studies.
Bassiouni and Nanda saw fit to dedicate Volume I to retired
Chief Justice Earl Warren and Professor Myres McDougal (Yale)
and Volume II to Professors Gerhard Mueller (N.Y.U.) and Hans-
Heinrich Jescheck (Freiburg) for their contributions to the respec-
tive subjects encompassed in each volume. This is a touching and
deserving tribute to all concerned. The credit deserved by Bassiouni
and Nanda for this monumental accomplishment may or may not
be sufficiently manifested in this or other reviews of their work, but
they must surely be rewarded by their intimate knowledge that they
have made a contribution to the advancement of the science of law
and to some extent to the preservation of world order. '6
Louis KUTNER*
16. See Alper, Book Review, 15 HARV. INT'L L. J. 198 (1974).
* Member of the Illinois and Indiana Bar; 1972 Congressional nominee for the Nobel
Peace Prize; former visiting Associate Professor, Yale Law School; Chairman, World Habeas
Corpus Committee, World Peace Through Law Center; Chairman, Commission for Interna-
tional Due Process of Law; former Consul, Ecuador; former Consul General, Guatemala;
former Special Counsel to the Attorney General of Illinois; and author of numerous law
journal articles and several books, including World Habeas Corpus and I. the Lawyer.
19741 723
Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International
Produced by The Berkeley Electronic Press, 1974


M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International Criminal Law

Valparaiso University

Valparaiso University Law Review Volume 8 Number 3 Spring 1974 pp.719-723 Spring 1974 M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International Criminal Law Luis Kutner Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Luis Kutner, M. Cerif Bassiouni and Ved P. Nanda, A Treatise on International Criminal Law, 8 Val. U. L. Rev. 719 (1974). Available at: https://scholar.valpo.edu/vulr/vol8/iss3/9 This Book Review is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. A TREATISE ON INTERNATIONAL CRIMINAL LAW. By M.Cherif Bassiouni and Ved P. Nanda. Springfield: Charles C.Thomas. 1973. Vol. I Pp. 751. Cloth $26.50, Paper $19.75; Vol. II Pp.426. Cloth $19.75, Paper $15.95.These two impressive volumes are the first comprehensive compila-tion of materials on the subject ever to be published. Judge Dautri-court, a noted European scholar who reviewed these books statedthat for at least ten years to come this work will remain a mostvaluable contribution.' In the United States only one other bookcarries a similar title and was published in 1965.2 It is a compilationof previously published materials and some original writings puttogether by Professor Gerhard Mueller of N.Y.U. and Ed Wise ofWayne State. (Mueller and Bassiouni are probably the most re-nowned experts on international criminal law in the country andthey are also internationally recognized in this field).3The subject of international criminal law is by no means novel,even though some publicists still debate its existence.4 Dependingupon one's definition of the subject,5 it can be retraced to Aristotle,Cicero, St. Augustine and Grotius. Surely since it encompasses thelegitimacy of force, it has its foundation in the writings of earlyGreek philosophers. Its inclusion of the justness of war, for example,can be traced to the writings of St. Augustine. Limitations on theuse of force, its instrumentalities and its conduct can be found inmany earlier writings.6 Certain international crimes such as piracyhave also been the subject of writings by Hugo Grotiss in the sev-enth century (who also extensively dealt with issues of war andpeace)7 and others since that time.1. 1 REVUE DE DROIT PENAL ET DE CRIMINOLOGIE 54 (1973).2. INTERNATIONAL CRIMINAL LAW (G. Mueller & E. Wise eds. 1965).3. Professor Mueller is Vice President of the International Penal Law Association, andProfessor Bassiouni is Deputy Secretary General. Both are frequently invited to attend inter-national conferences and have taught at foreign universities.4. Schwartzenberger, The Problems of an International Criminal Law, in 3 CURRENTLEGAL PROBLEMS 263 (1950). See, however, as an illustration of the wealth of material on thesubject, B. DESCHUTTER, BIBLIOGRAPHY ON INTERNATIONAL CRIMINAL LAW (1972); see also, D.OEHLER, INTERNATIONALES STRAFRECHT (1973).5. See, e.g., S. GLASER, INFRACTIONES INTERNATIONALES (1957); S. PLAWSKI, ETUDE DESPRINCIPES FONDAMENTAUX DU DROIT INTERNATIONAL PENAL (1972); 0. TRIFFTERER, DOGMATISCHEUNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VOLKERSTRAFRECHTS SErr NURNBERG(1966).6. I J. VERSIJL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 226 (1968).Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on InternationalProduced by The Berkeley Electronic Press, 1974720 VALPARAISO UNIVERSITY LAW REVIEWIn reviewing the history of international criminal law one canidentify four basic frameworks: the regulation of international coer-cion; humanitarian concern for individuals in time of war; interna-tional repression of common criminality; and, protection of humanrights. The long and arduous course of international criminal lawhas been made more difficult because its subject matter sought toregulate different participants, in diverse arenas, employing variousstrategies, using different structures, for the attainment of divergentvalue-oriented goals.8 As an illustration one can see that controlsover aggressive war differ from the regulation of armed conflicts andthat neither of these functions should be confused with the protec-tion of human rights (e.g., the prevention of genocide, slavery orracial discrimination) or other international crimes such as piracy,hijacking, terrorism and illicit international traffic in drugs. Thecomplexity of these diverse topics may explain why no one prior toBassiouni and Nanda endeavored to put all these matters under thesame umbrella. The common thread, however, appears obvious asa more concerned world community seeks to protect itself fromaberrant and abhorent forms of behavior which threaten its exist-ence and civility.Heretofore writers stopped at a barrier dividing state and indi-vidual responsibility instead of pursuing the continuum which goesfrom the individual to state responsibility or vice versa. Bassiouniand Nanda broke down that artificial barrier by framing a regula-tory scheme which focuses on the objects of control instead of thesubjects to be controlled. Twentieth century writers such as Donne-dieu de Vabres and Pella,' who are recognized as the most authorita-tive European scholars on the subject, accepted certain limitationson the scope of international criminal law. They displayed hesitanceand ambivalence about treating international criminal law as acomprehensive subject involving international regulation of deviantconduct requiring international penal sanction. This was mani-fested in a semantical debate over whether the subject matter isproperly considered the criminal part of international law or the7. Grotius, Laws of War and Peace, in CLASSICS OF INTERNATIONAL LAW (F. Kelsey transi.1925).8. M. McDOUcAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961).9. H. DONNEDIEU DE VABRES, INTRODUCTION A L'ETUDE DU DROIT PENAL INTERNATIONALE(1928); V. PELLA, LA GUERRE-CRIME ET LES CRIMINELS DE GUERRE (1964).[Vol. 8Valparaiso University Law Review, Vol. 8, No. 3 [1974], Art. 9https://scholar.valpo.edu/vulr/vol8/iss3/9BOOK REVIEWinternational part of municipal criminal law-namely whether it isDroit Penal international or Droit international Penal.'" Bassiouniand Nanda simply bring the two together and blend them withinthe framework of a new discipline whose sources are internationallaw and criminal law." The approach is therefore unique in thatrespect, as it is in many ways.Those volumes have writings by 47 contributing authors whorepresent the views of all continents and major ideologies which initself exemplifies international cooperation among scholars regard-less of ideological or political differences.' 2 As to methodology, thetwo volumes are divided in such a manner as to cover in Volume Ithe substantive aspects of international criminal law while VolumeII deals with its adjective or procedural aspects. The content cover-age cuts across traditional disciplines as we see penalists and publi-cists join in the development of this new discipline. The organiza-tion of Volume I reveals five major divisions: (1) the foundation ofthe discipline of international criminal law (Part I); (2) the protec-tion of peace (Part II); (3) the regulation of institutional violence(Part III); (4) the identification of common crimes against mankind(Part IV); and (5) the prosecution of international criminal lawviolations and its future (Part V). Volume II discusses theories ofjurisdiction and international cooperation, mutual assistance, andjudicial cooperation and assistance in penal matters. This volumewill be quite useful to the judge and practitioner because of itspractical aspects such as extradition and recognition of foreign judg-ments.The treatment of most subjects covered in both volumes israther exhaustive. Volume I contains 751 pages and Volume II, 426pages. A careful reviewer of these two volumes will not fail to find,however, that some topics deserved more ample treatment (e.g.,genocide) '3 , but limitations due to size may explain this shortcom-ing. These two volumes are excellent research tools bcause of thevarious relevant documents, treaties and appendices and a well or-ganized index. The references and copious citation of source mate-10. See A. QUINTANO-RiPOLLES, TRATADO DE DERECHO PENAL INTERNACIONAL E INTERNA-CIONAL PENAL (1957).11. See authors' preface, volume one.12. Id.13. Genocide is accorded a scant seven pages: see Volume I, pp. 522-29.19741Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on InternationalProduced by The Berkeley Electronic Press, 1974722 VALPARAISO UNIVERSITY LAW REVIEWrial in English, French, German, Spanish, Italian, Russian, Hungar-ian, Polish and other foreign language materials make it particu-larly helpful to the student and scholar of foreign sources. The use-fulness of such an undertaking however must go beyond this and itstest will be whether it is used as teaching material. Since bothvolumes were published in 1973 it is too soon to survey its accepta-bility by teachers and students even though it has already stirredmuch interest. One likely drawback to their use in the clessroommay well be the size of Volume I (751 pages) and the cost of bothvolumes, even though a less expensive paper back edition is avail-able (Vol. I at $19.75 and Vol. II at $15.95). Furthermore it must benoted that a "Part" on international protection of human rightsshould have been included, particularly since Bassiouni and Nandaare quite involved in this area." The exclusion may, however, beexplained by the length of the existing text and the reluctance ofpublishers to produce expensive volumes. Nonetheless a treatmentof certain human rights remedies such as World Habeas Corpusshould have been included. 5The two author-editors worked several years on this project andas this reviewer came to know it, Bassiouni pioneered the effort in1968 and was joined by Nanda in 1971. An interesting insight intothis work is the manner in which it was structured. Bassiouni pre-pared the outline of the two volumes and then solicited the contrib-uting authors for its various parts. Each author thus provided a partwhich was prepared to fit in a whole which gives these two volumesthe continuity and consistency of a text or treatise instead of a merecompilation of articles. Bassiouni and Nanda then edited the manu-scripts, added the documents and appendices and wrote connectingparts as well as some specific sections. The process took almost fouryears. The appearance of these two volumes and their productionby the publisher is of the highest quality.A word about the authors may be appropriate even though theyare well known. Professor Bassiouni, who is at DePaul University inChicago, was a Fullbright-Hays visiting Professor of internationalCriminal Law at the University of Freiburg in Germany (1970), a14. See, e.g., Symposium-International Human Rights, 21 DE PAUL L. REV. 271 (1971)and numerous other writings by both authors.15. See L. KUTNER, WORLD HABEUS CORPUS (1962); THE INDIVIDUAL RIGHT TO HUMANFREEDOM (1970).[Vol. 8Valparaiso University Law Review, Vol. 8, No. 3 [1974], Art. 9https://scholar.valpo.edu/vulr/vol8/iss3/9BOOK REVIEWVisiting Professor of law at N.Y.U. (1971) and a Guest Scholar inthe Woodrow Wilson International Center for Scholars (1972). Pro-fessor Bassiouni is the author of Criminal Law and Its Processes(1969) and The Law of Dissent and Riots (1970) as well as severalarticles in scholarly journals. Professor Nanda, also a well-knownwriter on international law topics, is at the University of Denver andis its Director of International Studies.Bassiouni and Nanda saw fit to dedicate Volume I to retiredChief Justice Earl Warren and Professor Myres McDougal (Yale)and Volume II to Professors Gerhard Mueller (N.Y.U.) and Hans-Heinrich Jescheck (Freiburg) for their contributions to the respec-tive subjects encompassed in each volume. This is a touching anddeserving tribute to all concerned. The credit deserved by Bassiouniand Nanda for this monumental accomplishment may or may notbe sufficiently manifested in this or other reviews of their work, butthey must surely be rewarded by their intimate knowledge that theyhave made a contribution to the advancement of the science of lawand to some extent to the preservation of world order. '6Louis KUTNER*16. See Alper, Book Review, 15 HARV. INT'L L. J. 198 (1974).* Member of the Illinois and Indiana Bar; 1972 Congressional nominee for the NobelPeace Prize; former visiting Associate Professor, Yale Law School; Chairman, World HabeasCorpus Committee, World Peace Through Law Center; Chairman, Commission for Interna-tional Due Process of Law; former Consul, Ecuador; former Consul General, Guatemala;former Special Counsel to the Attorney General of Illinois; and author of numerous lawjournal articles and several books, including World Habeas Corpus and I. the Lawyer.19741 723Kutner: M. Cerif Bassiouni and Ved P. Nanda, A Treatise on InternationalProduced by The Berkeley Electronic Press, 1974

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