step toward making international law something more than a code of etiquette, by expressly affirming the principle of civil responsibility for injuries committed by belligerents or members of their armed forces in violation of the commands and prohibitions of the Hague convention and by creating a legal liability upon the basis of which the injured belligerent may demand compensation. In accordance with this provision the treaty of peace required Germany not only to make compensation for injuries sustained on account of violations of the laws of war but for "all damage done to the civilian population of the Allied and Associated powers and to their property." Nine categories of acts were enumerated for which compensation might be claimed. They include damages or injuries to civilians caused by acts of war, cruelty, violence, maltreatment of prisoners, forced labor without remuneration, the seizure or carrying away of or destruction of property (except military and naval works or materials), and damages in the form of levies, fines, and other similar exactions imposed on the inhabitants of occupied territory. This is the first instance in which an attempt has been made to enforce the above-mentioned rule of the Hague convention. Happily it is an easy matter to enforce it against a defeated belligerent, but there appears to be no way by which it can be enforced against a victorious belligerent whose armed forces may also have committed violations of the convention. The remedy which it provides, however, conscience." "Humanity," he added, "would be placed in the presence of veritable international decisions which would create a precedent and a jurisprudence, which would give to the law of nations and to the Hague conventions, so impudently violated, a commentary and a sanction very energetic."

In consequence of the overwhelming defeat of Germany, the suggestion does not appear to have been considered by the peace conference and the duty of determining the amount of the indemnity was devolved upon a reparations commission composed entirely of representatives of the Allied and Associated powers which is to notify the German government on or before May 1, 1921 of the amount due. (Art. 233.)

1 The American Institute of International Law at its session at Havana in January, 1917, in its proposed code affirmed this principle. Art. 32 provides that belligerents who violate the rights of neutrals as they are set forth in the code shall pay to the injured State a pecuniary indemnity, the amount to be determined by a conference to neutrals.

2 Article 232 and Annex I. It appears from the language of the treaty (Annex I, Par. 10) that the compensation for damages in the form of fines and levies is not limited to those which were not imposed in the exercise of a lawful belligerent right, but embraces all levies whether lawful or unlawful.

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471

is only partial. Without it the victorious belligerent would still be free to exact reparation from his vanquished adversary while with it the latter will be in no position to exact compensation for injuries committed by the former.

§ 581. Penal Clauses of the Treaty of Peace. The treaty of peace between Germany and the Allied and Associated powers, signed at Versailles on the 28th of June, 1919, formally sanctioned the principle that individuals belonging to the armed or naval forces of the adversary, as well as his civil functionaries, are responsible under the criminal law for offences against the laws and customs of war and may be tried and punished for such acts. The treaty declared that Germany recognizes "the right of the Allied and Associated powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war." It added: "Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies." The treaty further required Germany to hand over to the Allied and Associated powers or to such of them as shall so request, all persons accused of having committed any act in violation of the laws and customs of war who are specified either by name or by the rank, office or employment which they held under the German authorities and to furnish" all documents and information of every kind, the production of which may be considered necessary to the full knowledge of the incriminating acts, the discovery of offenders and the just appreciation of responsibility." This appears to be the first treaty of peace in which an attempt has been made by the victorious belligerent to enforce against his defeated adversary the application of the principle of individual responsibility for criminal acts committed during war by members of the latter's armed forces against the persons or property of the other party.2

1 Articles 228, 230. Identical provisions are contained in the treaty with Austria (Arts. 173, 175), but there appear to be no such stipulations in the treaty with Bulgaria.

2 The late Professor Renault, speaking before the French General Prison Society in 1915, referred to a suggestion that he had received, to the effect that in the treaty of peace a clause should be inserted requiring the delivery up of the principal offenders against the laws of war. Regarding the suggestion M. Renault said: "I do not see how a government, even if conquered, could consent to such a clause; it would be the abdication of all its dignity; moreover, almost always, it is upon

§ 582. The Principle of Personal Responsibility of Soldiers for Criminal Acts. The principal that the individual soldier who commits acts in violation of the laws of war when those acts are at the same time offences against the general criminal law should be liable to trial and punishment by the courts of the injured adversary in case he falls into the hands of the authorities thereof has long been maintained by some writers, and in 1880 it was expressly affirmed by the Institute of International Law. Article 84 of its manual of the laws of war on land adopted at Oxford in that year declared that if any of the rules thereof were violated, "the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are." It was further added that "offenders against the laws of war are liable to the punishments specified in the penal or criminal law," whenever the person of the offender could be secured.1

The many shocking acts committed by German soldiers in Belgium and France during the late war in violation of the laws and customs of war revived interest in the subject, and already there is an extensive literature dealing with it.2 All writers who

superior order that infractions of the law of nations have been committed. I have found the proposal excessive, though I understand the sentiment that inspired it. I cite it because it shows well to what point men animated by justice and shocked by what has taken place desire that the monstrosities of which French and Belgians have been victims should not go unpunished." 25 Rev. Gén. de Droit Int. Pub. p. 25; also 39 Rev. Pénitentiaire, p. 425.

1 Annuaire de l'Institut, 1881-1882, p. 174.

2 See especially Renault, De l'Application du Droit Pénal aux faits de Guerre 25 Rev. Gén. de Droit Int. Pub. (1918), 5 ff.; also his address before the Société Générale des Prisons, 39 Rev. Pénitentiaire, pp. 406 ff. (1915); Pic, Violations des Lois de la Guerre, Les Sanctions Nécessaires, 23 Rev. Gén. 261 ff. (1916); FeraudGiraud, Recours en Raison des Dommages Causés par la Guerre; Dumas, Les Sanctions Pénales des Crimes Allemands (1916); Merignhac, Sanctions des Infractions au Droit des Gens Commisés au Cours de la Guerre Européenne, Rev. Gen. de Droit Int. Pub., 1917, pp. 10 ff.; Bellot, War Crimes, Their Prevention and Punishment, Grotius Soc'y Pubs. II, 46; Fauchille, L'Evacuation des Ters. Occupés par l'Allemagne dans le Nord de la France; Tchernoff, Revue Politique et Parlementaire, July, 1915; Nast, Les Sanctions Pénales de l'Enlèvement par les Allemands du Matériel Industriel en Territoires français et Belges occupés par leurs troupes, 26 Rev. Gén. de Droit Int. Pub. (1919), pp. 111 ff.; L. D., Des Sanctions à établir pour la Répression des Crimes commis par les Allemands en violation du Droit des Gens et des Traités Internationaux, 44 Clunet, pp. 125 ff., and the report of MMs. Larnaude and Lapradelle entitled Examen de la Responsabilité pénale de L'Empereur Guillaume II d'Allemagne, 46 Clunet, pp. 131 ff. The subject was discussed by a group of distinguished French jurists at several sessions of the Société Générale des Prisons in 1915 and 1916. See especially the addresses of Garraud, Larnaude, Garcon, Renault, Clunet, Pillet, and Weiss. English and American authorities,

RESPONSIBILITY OF SOLDIERS FOR CRIMES 473

have discussed the subject are in agreement that certain acts committed by soldiers are none the less criminal because they are committed during war. Such are acts of pillage, theft, incendiarism, violence, rape, robbery, assassination, maltreatment of prisoners and the like.1 The late Professor Renault aptly remarked that most acts of war, when the element of intent is discarded, contain all the essentials of criminal acts and if they are forbidden by the law of nations they are analogous to ordinary crimes and may be punished as such. What deprives such acts of the element of criminality is their conformity to the rules of international law. That is to say, the killing by a soldier of a person belonging to the enemy's forces or the taking of private property in occupied territory are lawful acts of war only when they are done in the manner and subject to the conditions prescribed by international law, otherwise they are murder or theft as the case may be and their authors are liable to punishment as criminals.2 In short, soldièrs as well as civilians may commit crimes during war and it would be extraordinary to hold that they are protected by their uniform against punishment. As a general rule, a soldier cannot be held criminally responsible for acts committed by him in the line of duty during war when those acts are authorized by the generally accepted laws of war; but if they are forbidden by such laws they are not legitimate acts of war and they may be crimes under the common criminal law. The United

of course, are not lacking who have supported the doctrine of individual criminal responsibility. Both prime ministers Asquith and Lloyd George publicly declared that Germans guilty of committing criminal acts against British soldiers would, in case they fell into the hands of the authorities, be tried and punished. Sir Frederick Smith, while attorney general of England, also advocated the trial and punishment of such persons. See also the remarks of Mr. E. P. Wheeler, an American lawyer, in the Proceedings of the American Society of International Law, 1917, p. 36.

1 See, for example, Pic, Art., cited p. 29; Feraud-Giraud, op. cit.; Merignhac, Art. cited p. 29; and Renault, Art. cited p. 8.

2 Art. cited p. 10. Compare also the following observations of M. Garcon, a distinguished French jurist: "The legal justification of acts committed during war is found in the customs of the law of nations. In time of war, therefore, all acts committed in the course of hostilities are justified if they are in conformity to its customs. But at the same time, all those which are contrary to the rules of international law, written or traditional, are crimes, which as regards French law are punishable under the common law. The authors of these crimes, as well as their accomplices, French and foreigners alike, may be punished." 39 Revue Pénitentiare, p. 479.

States Supreme Court has affirmed that soldiers are not liable for acts done by them in accordance with the usages of civilized warfare and by military authority. It would seem to follow logically that the authors of acts in violation of those usages may be held personally responsible.1 Most of the war manuals and military criminal codes recognize that certain acts committed by soldiers in time of war are ordinary crimes and they provide for the punishment of such acts whenever the offenders fall into the hands of the authorities. Article 249 of the French code of military justice, for example, declares that "every individual who in the zone of operation despoils a wounded, sick or dead soldier shall be punished by réclusion and every individual who commits violence on such a soldier shall be put to death." The provisions of the criminal code relative to murder, assault, and assassination are declared to be applicable to such cases. The term "every individual" is certainly broad enough to include members of the enemy's forces who commit such acts in the zone of operations.

§ 583. Provisions of Military Manuals. The American Rules of Land Warfare (1914) provide for the punishment of acts of pillage and maltreatment of the dead and wounded,2 for inflicting intentionally additional wounds upon an enemy already disabled or for killing such an enemy, whether he belongs to the army of the United States or is an enemy captured after having committed the misdeed,3 for the wanton destruction of property, for committing any one of a long list of acts such as the use of poison, refusal of quarter, killing of wounded, maltreatment of dead bodies, ill treatment of prisoners and of inhabitants of occupied territory, and many other acts.5 Crimes punishable by all criminal codes, such as arson, murder, theft, burglary, rape, and the like, if committed by an American soldier in a hostile country against its inhabitants are declared to be punishable not only as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. Except as to the wounding of disabled soldiers no express mention is made, how

1 Compare the views of Mr. C. A. H. Bartlett in an article entitled "Liability for Official War Crimes," 35 Law Quar. Review (1919), p. 186.

2 Art. 112.

Art. 181. Compare also Art. 71 of Lieber's Instructions for the Government of the United States Armies in the Field.

4 Art. 340.

Art. 366.

• Art. 378.