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These treaties were approved by the Senate of the United States and by the Republic of Panama. Unfortunately, the treaty between the United States and Colombia was rejected by the Congress of Colombia, to which it was submitted and the government overturned which had concluded and which advocated the treaty and the settlements of which it formed a part.
In President Taft's administration, Mr. James T. DuBois was sent as minister of the United States to Colombia. Very sympathetically and very deftly he established friendly relations with the members of the government to which he was accredited, and in a letter written on his return to Washington to Secretary of State Knox, dated September 30, 1912, he thus diagnosed the situation :
In investigating the causes of the rejection of the Root-Cortes treaty, I asked many prominent persons in various walks of Colombian life what were the serious objections to this treaty, and the replies were to this effect:
"Five years after President Roosevelt had taken Panama from us with rank injus. tice, your Government, still under his chief magistracy, offered us a paltry $2,500,000 if Colombia would recognize the independence of her revolted province, fix our frontier at a further loss of territory, open all our ports free to the refuge of vessels employed in the canal enterprise, and exempt them from anchorage or tonnage dues, renounce our rights to all of our contracts and concessions relating to the construction and operation of the canal or railroad across the Isthmus, release Panama from obligation for the payment of any part of our external debt, much of which was incurred in the interest of Panama, and enter into negotiations for the revision of the treaty of 1846, which five years before had been openly violated by the United States in their failure to help maintain the sovereignty over the rebellious province which they had solemnly guaranteed. The reply was to this, banishment of our minister who negotiated the treaty, and all South America applauded our attitude."
These are the sentiments that are universal in Colombia to-day, and they are increasing from year to year. Conversing discreetly with many persons in the Republic, I found no one free from the spell of the spirit of reproach and condemnation. I did find, however, a genuine desire among the people of all classes that the United States and Colombia should, at the earliest possible moment, reach a just and honorable settlement of this unfortunate dispute.
A great change has come to the Colombian mind within the past year. When I reached Bogota in the autumn of 1911, I found a universal demand for arbitration. When I left Bogota last July there was an open desire for direct negotiations, and it was the general belief that these should take place at the Colombian capital.
Secretary Knox conferred with President Taft, who agreed to the resumption of negotiations along the lines suggested by Mr. DuBois, as appears from the following letter, dated November 30, 1912:
The White HOUSE,
Washington, November 30, 1912. My dear Mr. Secretary:
I have your letter of November 29, with reference to the settlement of the questions between this Government and Colombia. I have read the communication of Minister Dubois and your proposed instructions to him and the suggested treaty. The proposition consists in the United States submitting to arbitration the question whether, taking into consideration the stipulations of the treaty between the United States and Panama, and the status quo of Panama, as thereby recognized, the Government of Colombia or the Government of the United States is the owner of the reversionary rights of the Panama Railway. If the arbitral tribunal shall find that this reversionary right is still owned by the Government of Colombia, then it shall be empowered to assess and award, and it shall assess and award, the amount of indemnity which shall be paid by the Government of the United States to the Government of Colombia for such right, and such sum so awarded shall be paid by the United States within one year from the date of such award.
Second. The purchase by the United States of the right to build a canal on the Atrato route for $10,000,000, the said sum of $10,000,000 to be paid to include also the lease in perpetuity to the Government of the United States of the island of Old Providence and the island of St. Andrews.
Third. The Government of the United States undertakes to act on behalf of the Government of Colombia to bring about an adjustment, by reference to an impartial tribunal of arbitration, or otherwise, of the pending question of the northwestern boundary of Colombia.
And, finally, the ratification (by Colombia) of the Root-Cortes treaty.
If I understand these four parts, it would involve the United States substantially in the payment of $10,000,000, in addition to its liability under the Root-Cortes treaty. While I think the sum stipulated to be paid is a large one, I believe the advantage of settling the questions is so great that I would not hesitate to recommend such a treaty to the Senate for its ratification.
WILLIAM H. TAFT.
Hon. P. C. Knox,
Secretary of State.
The negotiations started by Mr. DuBois did not bear fruit during the tenure of his office. Time, however, was in favor of a settlement, and, on April 6, 1914, Mr. Thomson was able to conclude on behalf of the United States a treaty with the Colombian plenipotentiaries calculated in the opinion of the contracting parties “to remove all the misunderstandings growing out of the political events in Panama in November, 1903.”
The ratification of this treaty was advised and consented to by the Senate on April 20, 1921. It is in the Department of State ready to be exchanged when Colombia shall likewise have approved the treaty and is willing to proceed to an exchange of ratifications.
That this may take place, at no distant date, must surely be the hope of those who wish to see the friendliest of relations exist between the United States of Colombia and the United States of America, and even of those who hesitate to approve the settlement, but who desire the friendliest of relations among the American republics. Rightly or wrongly, the misunderstandings growing out of political events in Panama in November, 1903, are not confined to Colombia. They have to a greater or less degree affected the relations of the republics of the western world. Whatever differences of opinion there may have been as to the propriety of the settlement, it is believed that there will be none as to its immediate and ultimate effect.
JAMES BROWN Scott.
SUPERIOR ORDERS AND WAR CRIMES An Associated Press dispatch from Leipzig, Germany, dated June 4, 1921, announces the acquittal of Lieutenant Karl Neumann, charged with the sinking of the British hospital ship Dover Castle by a German submarine under his command. The trial by the German court at Leipzig of Neumann and a few other Germans charged with war crimes, took place as the result of correspondence between the Allies and Germany regarding the execution of the penalty clauses of the Treaty of Versailles (Articles 228 to 230, inclusive).
Lieutenant Neumann, it appears, was in command of a German submarine which sank the British hospital ship Dover Castle. At the trial it appears that Neumann admitted sinking the Dover Castle in clear weather, but pleaded that he was acting under instructions from the German Government, as the vessel was not keeping to a special channel designated by Germany. It was established to the satisfaction of the court that the submarine commander had acted clearly within the instructions given him by his superiors, and he was for that reason exonerated from criminality. It is reported that in announcing the acquittal of Neumann, the presiding judge stated that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors; that the accused had carried out his orders without in any way exceeding them, and that there was nothing to prove that he had been guilty of particular cruelty as alleged in the Allies' accusations. The presiding judge added that, in the opinion of the court, there was not the slightest doubt that Lieutenant Neumann's orders were justified.
This decision will no doubt be disappointing to those who expected that the penalty clauses of the Treaty of Versailles would result in at least partial retribution for the high crimes and misdemeanors against civilization and humanity committed by the German naval and land forces in the conduct of the war. These clauses were inserted in the treaty under great pressure from the populations in the belligerent countries who had been the chief sufferers from the barbarous conduct of the war. In fact, Mr. Lloyd George was returned to power in the parliamentary elections of 1918 upon a platform the principal plank of which was the punishment of those responsible for the war and for the crimes committed during the war. The infliction of police court sentences by a German court on a few subordinates in lieu of the condign punishment of the real culprits higher up offers little satisfaction to those who believed that the penalty clauses of the Treaty of Versailles were a step in the right direction in providing a sanction for that branch of international law dealing with the laws of war.
The acquittal of Lieutenant Neumann of an act clearly prohibited by international treaty and reprehensible to the elementary instincts of humanity, on the specific ground that he was not responsible because he
acted within orders of his Government makes it, of course, impossible to punish any of the submarine commanders who acted in accordance with the instructions of their government. The same principle will logically apply to the German officers who were guilty of the violations of the laws of land warfare and those who wantonly devastated Belgium and France and Serbia, and shamefully deported their populations, can doubtless establish that these acts of barbarism were committed by orders of those higher up.
But the failure to carry out the penalty clauses of the Treaty of Versailles, even in the small measure in which it has been attempted, is not to be attributed entirely to the German judges at Leipzig. It was only necessary for Lieutenant Neumann to turn to the rules of war issued by the British Government to justify his plea that he was not responsible because he acted under superior orders. The British Manual of Military Law, issued in 1914 and reprinted in 1917, after enumerating all the possible categories of war crimes, provides as follows in Article 443 :
Members of armed forces who commit such violations of the recognized rules of war. fare as are ordered by their government or by their commander are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such order if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress.
The foregoing article was substantially copied into the Rules of Land Warfare, approved by the General Staff of the United States Army and published on April 25, 1914, for the information and government of the armed land forces of the United States. Article 366 reads as follows:
Individuals of the armed forces will not be punished for these offences in case they are committed under orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.
These articles appear to contain a new and untried provision inserted in the war manuals for the first time in 1914. The rule does not represent any decided weight of opinion outside of military circles. Among the writers on international law, Professor Oppenheim seems to be alone in defending it. In Section 253 of his work on International Law (1912), he says:
Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent government concerned. If members of the armed forces commit violations by order of their government, they are not war criminals and may
1 See Bellot, "War Crimes,” Papers read before the Grotius Society, Vol. II, p. 47, who states that the proviso occurs in no previous edition of the British Manual of Military Law. Neither is such a proviso found in Lieber's Instructions for the Government of Armies of the United States in the Field, which were supplanted by the present Rules of Land Warfare.
not be punished by the enemy; the latter may, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, there. fore, be punished as war criminals on their capture by the enemy.
The rule is vigorously assailed by Phillipson in his International Law and the Great War (1915), who replies :
It has been contended in some quarters that a combatant's acts, no matter how heinous, outrageous, and abominable, do not possess a criminal character if they are committed under orders from superior officers. But this argument carried to its logical conclusion would lead to ineptitude and absurdity; the successive shifting of responsibility would exculpate every one until we reached the ultimate cause in the case of Germany let us say, for example, the Kaiser. Can it, then, be seriously held that several millions of men may act contrary to law established, and perpetrate horrors and atrocities, and that they should be considered entirely guiltless on the ground that they carried out the admittedly illegitimate commands of their supreme authority! The safety and stability of a nation or of a family of nations are incompatible with such an exaggerated and preposterous notion of vicarious responsibility.
In further illustration of this conflict of opinion, reference may be made to the paper read by Commander Sir Graham Bower, late of the Royal Navy, before the Grotius Society of London, on May 27, 1915, in which he denies that the submarine officers and crews captured by Great Britain can be punished for sinking merchant ships contrary to the laws of war and humanity, because the German Government accepted responsibility for their acts. The opposite view was maintained before the same Society on March 24, 1916, by Dr. Hugh H. L. Bellot, who demanded that not only the instigators but also the actual perpetrators of the more heinous offences against the usages of war be brought to trial. Dr. Bellot cited the treatment of Captain Fryatt, convicted of a war crime by a German court martial and executed as a war criminal on July 27, 1916, as a refutation of the German contention that obedience to superior orders renders immune the perpetrator of a war crime.3
Judicial opinion, in so far as it exists on the subject, also seems to be divided. The question of the responsibility of a military officer in damages for the capture of a vessel under an illegal order from the Navy Department during the limited hostilities between France and the United States in 1799, came up for decision by the Supreme Court of the United States in 1804, in the case of the Flying Fish (2 Cranch 170), and Chief Justice Marshall, after weighing carefully the principle which should govern this
2 "The Laws of War; Prisoners of War and Reprisals,” Papers read before the Grotius Society, Vol. I, p. 23.
3 Ibid., Vol. II, pp. 54-55. For the trial of Captain Fryatt, see the editorial by J. B. Scott in this JOURNAL, Oct., 1916 (Vol. 10), p. 865.
For French practice during the war, and opinion on the subject, see J. W. Garner, "Punishment of offenders against the laws and customs of war," this JOUBNAL, Jan., 1920 (Vol. 14), p. 70 at p. 83 et seq.