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States in question were morally guilty, even if they were not punishable before an international tribunal, such as the one proposed, for the acts which they themselves had committed or with whose commission by others they could be justly taxed. It was a matter of great regret to the American Representatives that they found themselves subjected to criticism, owing to their objection to declaring the laws and principles of humanity as a standard whereby the acts of their enemies should be measured and punished by a judicial tribunal. Their abhorrence for the acts of the heads of States of enemy countries is no less genuine and deep than that of their colleagues, and their conception of the laws and principles of humanity is, they believe, not less enlightened than that of their colleagues. They considered that they were dealing solely with violations of the laws and customs of war, and that they were engaged under the mandate of the Conference in creating a tribunal in which violations of the laws and customs of war should be tried and punished. They therefore confined themselves to law in its legal sense, believing that in so doing they accorded with the mandate of submission, and that to have permitted sentiment or popular indignation to affect their judgment would have been violative of their duty as members of the Commission on Responsibilities.
They submit their views, rejected by the Commission, to the Conference, in full confidence that it is only through the administration of law, enacted and known before it is violated, that justice may ultimately prevail internationally, as it actually does between individuals in all civilised nations.
Memorandum on the Principles which should Determine Inhuman and Improper Acts of War
To determine the principles which should be the standard of justice in measuring the charge of inhuman or atrocious conduct during the prosecution of a war, the following propositions should be considered:—
1. Slaying and maiming of men in accordance with generally accepted rules of war are from their nature cruel and contrary to the modern conception of humanity.
2. The methods of destruction of life and property in conformity with the accepted rules of war are admitted by civilised nations to be justifiable and no charge of cruelty, inhumanity, or impropriety lies against a party employing such methods.
3. The principle underlying the accepted rules of war is the neccessity of exercising physical force to protect national safety or to maintain national rights.
4. Reprehensible cruelty is a matter of degree which cannot be justly determined by a fixed line of distinction, but one which fluctuates in accordance with the facts in each case, but the manifest departure from accepted rules and customs of war imposes upon the one so departing the burden of justifying his conduct, as he is prima Jade guilty of a criminal act.
5. The test of guilt in the perpetration of an act, which would be inhuman or otherwise reprehensible under normal conditions, is the necessity of that act to the protection of national safety or national rights measured chiefly by actual military advantage.
6. The assertion by the perpetrator of an act that it is necessary for military reasons does not exonerate him from guilt if the facts and circumstances present reasonably strong grounds for establishing the needlessness of the act or for believing that the assertion is not made in good faith.
7. While an act may be essentially reprehensible and the perpetrator entirely unwarranted in assuming it to be necessary from a military point of view, he must not be condemned as wilfully violating the laws and customs of war or the principles of humanity unless it can be shown that the act was wanton and without reasonable excuse.
8. A wanton act which causes needless suffering (and this includes such causes of suffering as destruction of property, deprivation of necessaries of life, enforced labour, &c.) is cruel and criminal. The full measure of guilt attaches to a party who without adequate reason perpetrates a needless act of cruelty. Such an act is a crime against civilisation, which is without palliation.
9. It would appear, therefore, in determining the criminality of an act, that there should be considered the wantonness or malice of the perpetrator, the needlessness of the act from a military point of view, the perpetration of a justifiable act in a needlessly harsh or cruel manner, and the improper motive which inspired it.
Reservations by the Japanese Delegation
The Japanese Delegates on the Commission on Responsibilities are convinced that many crimes have been committed by the enemy in the course of the present war in violation of the fundamental principles of international law, and recognise that the principal responsibility rests upon individual enemies in high places. They are .consequently of opinion that, in order to re-establish for the future the force of the principles thus infringed, it is important to discover practical means for the punishment of the persons responsible for such violations.
A question may be raised whether it can be admitted as a principle of the law of nations that a High Tribunal constituted by belligerents can, after a war is over, try an individual belonging to the opposite side, who may be presumed to be guilty of a crime against the laws and customs of war. It may further be asked whether international law recognises a penal law as applicable to those who are guilty.
In any event, it seems to us important to consider the consequences which would be created in the history of international law t>y the
Erosecution for breaches of the laws and customs of war of enemy eads of States before a tribunal constituted by the opposite party. Our scruples become still greater when it is a question of indicting before a tribunal thus constituted highly-placed enemies on the sole ground that they abstained from preventing, putting an end to, or repressing acts in violation of the laws and customs of war, as is provided in clause (c) of section (b) of Chapter IV.
It is to be observed that to satisfy public opinion of the justice of the decision of the appropriate tribunal, it would be better to rely upon a strict interpretation of the principles of penal liability, and consequently not to make cases of abstention the basis of such responsibility.
In these circumstances the Japanese Delegates thought it possible to adhere, in the course of the discussions in the Commission, to a text which would eliminate from clause (c) of section (b) of Chapter IV both the words 'including the heads of States,' and the provision covering cases of abstention, but they feel some hesitation in supposing the amended form which admits a criminal liability where the accused, with knowledge and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to, or repressing acts in violation of the laws and customs of war.
The Japanese Delegates desire to make clear that, subject to the above reservations, they are disposed to consider with the greatest care every suggestion calculated to bring about unanimity in the Commission.
April 4, 1919.
Provisions for Insertion in Treaties with Enemy Governments
The Enemy Government admits that even after the conclusion of peace, every Allied and Associated State may exercise, in respect of any enemy or former enemy, the right which it would have had during the war to try and punish any enemy who fell within its power and who had been guilty of a violation of the principles of the law of nations as these result from the usages established among civilised peoples, from the laws of humanity and from the dictates
of public conscience.
The Enemy Government recognises the right of the Allied and Associated States, after the conclusion of peace, to constitute a High Tribunal composed of members named by the Allied and Associated States in such numbers and in such proportions as they may think proper, and admits the jurisdiction of such tribunal to try and punish enemies or former enemies guilty during the war of violations of the principles of the law of nations as these result from the usages established among civilised peoples, from the laws of humanity and from the dictates of public conscience. It agrees that no trial or sentence by any of its own courts shall bar trial and sentence by the High Tribunal or by a national court belonging to one of the Allied or Associated States.
The Enemy Government recognises the right of the High Tribunal to impose upon any person found guilty the punishment or punishments which may be imposed for such an offense or offences by any court in any country represented on the High Tribunal or in the country of the convicted person. The Enemy' Government will not object to such punishment or punishments being carried out.
The Enemy Government agrees, on the demand of any of* the Allied or Associated States, to take all possible measures for the purpose of the delivery to the designated authority, for trial by the High Tribunal or, at its instance, by a national court of one of such Allied or Associated States, of any person alleged to be guilty of an offence against the laws and customs of war or the laws of humanity who may be in its territory or otherwise under its direction or control. No such person shall in any event be included in any amnesty or pardon.
The Enemy Government agrees, on the demand of any of the Allied or Associated States, to furnish to it the name of any person at any time in its service who may be described by reference to his duties or station during the war or by reference to any other description which may make his identification possible and further agrees to furnish such other information as may appear likely to be useful for the purpose of designating the persons who may be tried before the High Tribunal or before one of the national courts of an Allied or Associated State for a crime against the laws and customs of war or the laws of humanity.
The Enemy Government agrees to furnish, upon the demand of any Allied or Associated State, all General Staff plans of campaign, orders, instructions, reports, logs, charts, correspondence, proceedings of courts, tribunals or investigating bodies, or such other documents or classes of documents as any Allied or Associated State may request as being likely to be useful for the purpose of identifying or as evidence for or against any person, and upon demand as aforesaid to furnish copies of any such documents.
TREATY OF PEACE WITH GERMANY.
TUESDAY, AUGUST 12, 1910.
United States Senate,
Washington, D. C. The committee met, pursuant to adjournment, at 10.30 o'clock a. m., in room 426, Senate Office Building, Senator Henry Cabot Lodge presiding.
Present: Senators Lodge (chairman), McCumber, Brandegee, Fall, Harding, New, Moses, Hitchcock, Williams, Swanson, Pomerene, and Pittman.
STATEMENT OF MR. DAVID HUNTER MILLER.
The Chairman. The committee will come to order and I will ask Mr. Miller to take the stand. Mr. Miller, will you give your full name, please, to the stenographer?
Mr. Miller. David Hunter Miller.
The Chairman. You are now in the State Department?
Mr. Miller. Yes, sir; special assistant in the Department of State.
The Chairman. You are a lawyer?
Mr. Miller. Yes.
The Chairman. Will you give the name of your firm in New York?
Mr. Miller. Miller & Auchincloss.
The Chairman. You were in Paris, were you not?
Mr. Miller. I was.
The Chairman. And in what position there?
Mr. Miller. I went to Paris in November, attached to the mission of Col. House, which was then in Paris. When the American commission to negotiate peace arrived in Paris, I was attached to the American commission as one of the two techincal advisers, or legal advisers, of the commission.
The Chairman. As one of the legal advisers of the commission?
Mr. Miller. Yes, sir.
The Chairman. It was after the armistice that you arrived in Paris?
Mr. Miller. I arrived in Paris on the 19th of November. I left before the armistice, and arrived there after the armistice.
Senator Brandegee. What year?
Mr. Miller. 1918.
The Chairman. As one of the legal advisers of our commissioners, <lid you have any part in drafting the American plan for the league?
Mr. Miller. May I ask, Mr. Chairman, by "American plan "do you mean the plan which is printed in the Congressional Record?