International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Fall 2017 Issue

Historic Moments in International Law

The Ire of Il Duce and the First Crisis of the League of Nations

Stephen C. NeffBy: Stephen C. Neff, Reader-in- Law, Public International Law, University of Edinburgh Law School

Under the impetuous and aggressive sway of Benito Mussolini - Il Duce (“the leader”) as he insisted on being called – fascist Italy became involved in a number of foreign military adventures, and mis-adventures. The best known was the conquest of Ethiopia in 1935-36, achieved in the teeth of economic sanctions by the League of Nations, and helped along by doses of poison gas.  Less well known, but nonetheless of great interest, was an earlier incident, shortly after Mussolini came to power in 1922.  He immediately began casting about for some suitably dramatic means of demonstrating that fascist foreign policy would be significantly more muscular than that of previous liberal governments.  His gaze settled on the Greek island of Corfu, which he resolved to seize.  All he needed was a colourable legal justification.

That soon came his way, in the form of a tragic crime committed in the course of a demarcation of the boundary of Albania.  In 1921, a self-appointed group of major powers – Britain, France, Italy and Japan – known officially as the Conference of Ambassadors - had decided that Albania’s pre-War independence status should be restored, and that there should be a demarcation of its boundary. The demarcation exercise was entrusted, fatefully, to Italy.

The process, alas, did not go smoothly.  In August 1923, the demarcation team was attacked near the town of Janina by persons unknown. Three Italians were killed, including the expedition’s leader, General Enrico Tellini, plus an interpreter.  At the time, the team was in Greek territory, although the perpetrators were never identified.  Here was Il Duce’s golden opportunity.  The Italian government whipped up demonstrations against Greece over the Janina incident, complete with mob attacks on Greek consulates and individuals.

The Italian government then, with lightning speed, dispatched an ultimatum to Greece – worryingly reminiscent of the Austro-Hungarian ultimatum to Serbia which had sparked the Great War in 1914 – demanding an apology for the attack, together with a payment in compensation of 50 million lire (c. half a million pounds sterling).  Italy also demanded a strict investigation, in the presence of an Italian military attaché, to be completed within five days, with the death penalty to be inflicted upon the culprits.  The Greek response was conciliatory, conceding most of the demands, but balking at the presence of the Italian military attaché and the 50 million lire payment.

Italy then proceeded to take action.  It sent its fleet to Corfu, where it bombarded the ancient citadel (killing a number of Armenian refugees who were based there), and then, in a swift and bloodless operation, occupying the entire island.  There was a loud outcry in the international community against this action, but Mussolini was unconcerned – and even seemed to relish the attention.  Greece promptly brought the matter to the attention of the League of Nations Council – marking the first occasion in which a serious crisis was placed in the hands of that august, but inexperienced, body.

It soon became apparent that the League’s peacekeeping mission was off to a decidedly inauspicious start.  Italy strongly contested the League’s jurisdiction to deal with the matter.  This was on the ground that the Corfu operation was not an act of war, but rather a peacetime reprisal – and since international peace was not under threat, the League had no role to play.  More pointedly, Mussolini threatened that, if the League were to become involved, the Italian occupation of Corfu would become permanent.  Italy insisted that the matter be dealt with instead by the Conference of Ambassadors (of which it was a member).

Despite Italy’s stance, the League Council did deal with the crisis, albeit in informal, rather than official, meetings.  It was agreed, with palpable reluctance, that a commission of inquiry would be formed by the British, French and Italian governments, and that the newly established World Court (the Permanent Court of International Justice) would determine the amount of

compensation owing from Greece – with Greece to place 50 million lire in a Swiss bank pending the Court’s ruling.  Greece agreed to these measures.

The Conference of Ambassadors, however, proceeded to make some changes in these arrangements that were unwelcome to the Greeks.  On the basis of a preliminary report by the commission of inquiry, the Conference concluded that there had been negligence on the part of Greece – though not direct responsibility – and that, accordingly, the entire 50 million lire deposit be paid straightaway to Italy, with no consideration by the World Court.  Greece complied with this finding, with great reluctance; and Italy duly evacuated its troops from Corfu, after an occupation of about four weeks.  Mussolini also, interestingly, gave part of the payment to the Armenian refugees.  At the League headquarters, there were loud and ill-tempered objections over the brusque sidelining of the organisation in the face of great-power deal-making.

There remained, however, some general legal issues to be disposed of – though not by the World Court.  Instead, a special commission of jurists was set up, with one member selected by each state of the League Council.  Five questions were put to the panel.  Three concerned matters about League jurisdiction, which can be neglected here.  The other two were of more general import.  One was the question of state responsibility for offences against foreigners in the state’s territory.  In its opinion of September 1923, the commission ruled firmly against strict liability, in favor of a general duty on a state’s part to take “all reasonable measures” to prevent crime and to apprehend criminals who injure foreigners.  Interestingly, though, the commission also stated that, regarding foreigners of a “public character,” such as those involved in this incident, there is a duty of “special vigilance” on the part of host countries.

The final legal issue concerned the vexed question of the legal status of coercive measures, reprisal or punitive actions which were not intended by the party taking them to institute a state of war. In particular, the question was whether such measures could amount to a “resort to war” within the meaning of the League Covenant.  On this key point, there was a certain delphic quality to the commission’s holding.  Such coercive measures, it was stated, “may or may not be consistent” with the Covenant.  In other words, the commission accepted that, at least in some circumstances, measures such as armed reprisals would not be considered to be acts of war and hence would not trigger the League’s sanctions for unlawful resort to war.  At the same time, though, it appears to have been envisaged that it was not the prerogative of the acting state unilaterally to determine that issue.  Rather, the League Council was to consider “all the circumstances of the case and the nature of the measures adopted,” in arriving at a decision as to “whether it should recommend the maintenance or the withdrawal” of the measures in question.

The effect, then, was to confirm the existence of a potentially large loophole in the League’s collective-security system.  The League’s automatic sanctions would be mobilised against a resort to war as such – but not against what are called measures short of war such as armed reprisals or punitive actions.  The United Nations Charter, in this key respect, offers an instructive contrast, in that it prohibits not (or not merely) the resort to war per se, but, more broadly, the “use of force” in general.  And that broader prohibition is generally accepted to cover measures of armed coercion short of war such as the Italian occupation of Corfu.

For those in search of a full account of this largely forgotten crisis, a valuable resource is a book by James Barros, The Corfu Incident of 1923: Mussolini and the League of Nations (1965).  More briefly, and specifically on the legal issues, is an article by Quincy Wright in volume 18 of the American Journal of International Law.

As a final note, it cannot be said that the League played a very glorious or prominent role in this inaugural crisis.  There was also disturbing evidence of genuine popular support in Italy for an aggressive foreign policy.  But at the same time, some comfort may be drawn from the fact that, in the immediate term, the escapade marked a defeat for Mussolini.  He had clearly intended to take Corfu permanently and had been frustrated.  Victories for collective security, it would appear, often come in very meagre doses.  But they are none the less welcome for that.

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with assistance from the American Society of International Law.

Editor: James G. Apple.
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