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at hand, which had been tried and found competent, with a law and a procedure framed and therefore known in advance, rather than to create an international tribunal with a criminal jurisdiction for which there is no precedent, precept, practice, or procedure. They further believed that, if an act violating the laws and customs of war committed by the enemy affected more than one country, a tribunal could be formed of the countries affected by uniting the national commissions or courts thereof, in which event the tribunal would be formed by the mere assemblage of the members, bringing with them the law to be applied, namely, the laws and customs of war, and the procedure, namely, the procedure of the national commissions or courts. The American Representatives had especially in mind the case of Henry Wirz, commandant of the Confederate prison at Andersonville. Georgia, during the war between the States, who after that war was tried by a military commission, sitting in the city of Washington, for crimes contrary to the laws and customs of war, convicted thereof, sentenced to be executed, and actually executed on the 11th November, 1865.
While the American Representatives would have preferred a national military commission or court in each country, for which the Wirz case furnished ample precedent, they were willing to concede that it might be advisable to have a commission of representatives of the competent national tribunals to pass upon charges, as stated in the report:(a) Against persons belonging to enemy countries who have com
mitted outrages against a number of civilians and soldiers of several Allied nations, such as outrages committed in prison camps where prisoners of war of several nations were congregated or the crime of forced labour in mines where
prisoners of more than one nationality were forced to work, (6) Against persons of authority, belonging to enemy countries,
whose orders were executed not only in one area or on one battle front, but whose orders affected the conduct towards
several of the Allied armies. The American Representatives are, however, unable to agree that a mixed commission thus composed should, in the language of the report, entertain charges :(c) Against all authorities, civil or military, belonging to enemy
countries, however high their position may have been, without distinction of rank, including the Heads of States, who ordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war, it being understood that no such abster
tion shall constitute a defence for the actual perpetrators. In an earlier stage of the general report, indeed, until its finsi revision, such persons were declared liable because they abstained from preventing, putting an end to, or repressing, violations of the laws or customs of war.' To this criterion of liability the American Representatives were unalterably opposed. It is one thing to punish a person who committed, or, possessing the authority ordered others to commit an act constituting a crime; it is quite another thing to punish a person who failed to prevent, to put an end to, or to repress violations of the laws or customs of war. In
one case the individual acts or orders others to act, and in so doing commits a positive offence. In the other he is to be punished for the acts of others without proof being given that he knew of the commission of the acts in question or that, knowing them, he could have prevented their commission. To establish responsibility in such cases it is elementary that the individual sought to be punished should have knowledge of the commission of the acts of a criminal nature and that he should have possessed the power as well as the authority to prevent, to put an end to, or repress them. Neither knowledge of commission nor ability to prevent is alone sufficient. The duty or obligation to act is essential. Ther must exist in conjunction, and a standard of liability which does not include them all is to be rejected. The difficulty in the matter of abstention was felt by the Commission, as to make abstention punishable might tend to exonerate the person actually committing the act. Therefore the standard of liability to which the American Representatives objected was modified in the last sessions of the Commission, and the much less objectionable text, as stated above, was adopted and substituted for the earlier and wholly in admissible one.
There remain, however, two reasons, which, if others were lacking, would prevent the American Representatives from consenting to the tribunal recommended by the Commission. The first of these is the uncertainty of the law to be administered, in that liability is made to depend not only upon violations of the laws and customs of war, but also upon violations of the laws of humanity.' The second of these reasons is that Heads of States are included within the civil and military authorities of the enemy countries to be tried and punished for violations of the laws and customs of war and of the laws of humanity. The American Representatives believe that the Commission has exceeded its mandate in extending liability to violations of the laws of humanity, inasmuch as the facts to be examined are solely violations of the laws and customs of war. They also believe that the Commission erred in seeking to subject Heads of States to trial and punishment by a tribunal to whose jurisdiction they were not subject when the alleged offence were committed.
As pointed out by the American Representatives on more than one occasion, war was and is by its very nature inhuman, but acts consistent with the laws and customs of war, although these acts are inhuman, are nevertheless not the object of punishment by a court of justice. A judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity. The law of humanity, or the principle of humanity, is much like equity, whereof John Selden, as wise and cautious as he was learned, aptly said:
"Equity is a roguish thing. For Law we have a measure, know what to trust to: Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. "Tis all one as if they should make the standard for the measure we call a “foot” a Chancellor's foot; what an uncertain measure would this be: One Chancellor has a long foot, another a short foot, a third an indifferent foot. 'Tis the same thing in the Chancellor's conscience."
While recognising that offences against the laws and customs of war might be tried before and the perpetrators punished by national tribunals, the Commission was of the opinion that the graver charges and those involving more than one country should be tried before an international body, to be called the High Tribunal, which “shall be composed of three persons appointed by each of the following Governments:--The United States of America, the British Empire, France, Italy, and Japan, and one person appointed by each of the following Governments: Belgium, Greece, Poland, Portugal, Roumania, Serbia, and Czecho-Slovakia”; the members of this tribunal to be selected by each country "from among the members of their national courts or tribunals, civil or military, and now in existence or erected as indicated above.” The law to be applied is declared by the Commission to be “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience.” The punishment to be inflicted is that which may be imposed “for such an offence or offences by any court in any country represented on the tribunal or in the country of the convicted person.” The cases selected for trial are to be determined and the prosecutions directed by “a prosecuting commission” composed of a representative of the United States of America, the British Empire, France, Italy, and Japan, to be assisted by a representative of one of the other Governments, presumably a party to the creation of the court or represented in it.
The American Representatives felt very strongly that too great attention could not be devoted to the creation of an international criminal court for the trial of individuals, for which a precedent is lacking, and which appears to be unknown in the practice of nations. They were of the opinion that an act could not be a crime in the legal sense of the word, unless it were made so by law, and that the commission of an act declared to be a crime by law could not be punished unless the law prescribed the penalty to be inflicted. They were perhaps, more conscious than their colleagues of the difficulties involved, inasmuch as this question was one that had arisen in the American Union composed of States, and where it had been held in the leading case of United States v. Judson (7 Cranch 32), decided by the Supreme Court of the United States in 1812, that the legislative authority of the Union must first make an act a crime, allis a punishment to it, and declare the court shall have jurisdiction of the offence." What is true of the American States must be true of this looser union which we call the Society of Nations. The American Representatives know of no international statute or convention making a violation of the laws and customs of war-not to speak of the laws or principles of humanity-an international crime, affixing a punishment to it, and declaring the court which has jurisdiction over the offence. They felt, however, that the difficulty, however great, was not insurmountable, inasmuch as the various States have declared certain acts violating the laws and customs of war to be crimes, affixing punishments to their commission, and providing military courts or commissions within the respective States possessing jurisdiction over such offence. They were advised that each of the Allied and Associated States could create such a tribunal, if it had not already done so. Here then was at hand a series of existing tribunal or tribunals that could lawfully be called into existence in each of the Allied or Associated countries by the exercise of their sovereign powers, appropriate for the trial and punishment within their respective jurisdictions of persons of enemy nationality, who during the war committed acts contrary to the laws and customs of war, in so far as such acts affected the persons or property of their subjects or citizens, whether such acts were committed within portions of their territory occupied by the enemy or by the enemy within its. own jurisdiction.
The American Representatives therefore proposed that acts affecting the persons or property of one of the Allied or Associated Governments should be tried by a military tribunal of that country; that acts involving more than one country, such as treatment by Germany of prisoners contrary to the usages and customs of war, could be tried by a tribunal either made up of the competent tribunals of the countries affected or of a commission thereof possessing their authority. In this way existing national tribunals or national commissions which could legally be called into being would be utilised, and not only the law and the penalty would be already declared, but the procedure would be settled.
It seemed elementary to the American Representatives that a country could not take part in the trial and punishment of a violation of the laws and customs of war committed by Germany and her Allies before the particular country in question had become a party to the war against Germany and her Allies; that consequently the United States could not institute a military tribunal within its own jurisdiction to pass upon violations of the laws and customs of war, unless such violations were committed upon American persons or American property, and that the United States could not properly take part in the trial and punishment of persons accused of violations of the laws and customs of war committed by the military or civil authorities of Bulgaria or Turkey.
Under these conditions and with these limitations the American Representatives considered that the United States might be a party to a High Tribunal, which they would have preferred to call, because of its composition, the Mixed or United Trbunal or Commission. They were a verse to the creation of a new tribunal, of a new law, of a new penalty, which would be ex post facto in nature, and thus contrary to an express clause of the Constitution of the United States and in conflict with the law and practice of civilised communities. They believed, however, that the United States could co-operate to this extent by the utilisation of existing tribunals, existing laws, and existing penalties. However, the possibility of co-operating was frustrated by the insistence on the part of the majority that criminal liability should, in excess of the mandate of the Conference, attach to the laws and principles of humanity, in addition to the laws and customs of war, and that the jurisdiction of the High Court should be specifically extended to “the heads of States."
In regard to the latter point, it will be observed that the American Representatives did not deny the responsibility of the heads of States for acts which they may have committed in violation of law, including, in so far as their country is concerned, the laws and customs of war, but they held that heads of States are, as agents of the people, in whom the sovereignty of any State resides, responsible to the people for the illegal acts which they may have committed, and that they are not and that they should not be made responsible to any other sovereignty.
The American Representatives assumed, in debating this question, that from a legal point of view the people of every independent country are possessed of sovereignty, and that that sovereignty is not held in that sense by rulers; that the sovereignty which is thus possessed can summon before it any person, no matter how high his estate, and call upon him to render an account of his official stewardship; that the essence of sovereignty consists in the fact that it is not responsible to any foreign sovereignty; that in the exercise of sovereign powers which have been conferred upon him by the people, a monarch or head of State acts as their agent; that he is only responsible to them; and that he is responsible to no other people or group of people in the world.
The American Representatives admitted that from the moral point of view the head of a State, be he termed emperor, king, or chief executive, is responsible to mankind, but that from the legal point of view they expressed themselves as unable to see how any member of the Commission could claim that the head of a State exercising sovereign rights is responsible to any but those who have confided those rights to him by consent expressed or implied.
The majority of the Commission, however, was not influenced by the legal argument. They appeared to be fixed in their determination to try and punish by judicial process the "ex-Kaiser" of Germany. That there might be no doubt about their meaning, they insisted that the jurisdiction of the High Tribunal whose constitution they recommended should include the heads of States, and they therefore inserted a provision to this effect in express words in the clause dealing with the jurisdiction of the tribunal.
In view of their objections to the uncertain law to be applied, varying according to the conception of the members of the High Court as to the laws and principles of humanity, and in view also of their objections to the extent of the proposed jurisdiction of that tribunal, the American Representatives were constrained to decline to be a party to its creation. Necessarily they declined the proffer on behalf of the Commission that the United States should take part in the proceedings before that tribunal, or to have the United States represented in the prosecuting commission charged with the “duty of selecting the cases for trial before the tribunal and of directing and conducting prosecutions before it.” They therefore refrained from taking further part either in the discussion of the constitution or of the procedure of the tribunal.
It was an ungracious task for the American Representatives to oppose the views of their colleagues in the matter of the trial and punishment of heads of States, when they believed as sincerely and as profoundly as any other member that the particular heads of