law," they declared, "does not recognize irresponsible authorities, even at the summit of hierarchy. It brings a State down from its pedestal and makes it submit to the rule of the judge. There can therefore be no question of saving from the judge a man who is at the summit of hierarchy either by the application of internal law or of international law." Jurists and statesmen in England also demanded the trial of the ex-Emperor, who, it was asserted, was not only responsible for starting the war, but also for many of the worst atrocities committed by his officers, soldiers and sailors. Judicial authority both in England and the United States, it may be remarked, placed upon the Emperor the responsibility for such acts as the torpedoing of the Lusitania, which resulted in the drowning of more than one thousand unoffending non-combatants, men, women and children.2

§ 590. Decision of the Peace Conference Regarding the Trial of the German Emperor. The question of the responsibility of the authors of the war, the facts as to the breaches of the laws and customs of war by the forces of the German Empire and their allies and the degree of responsibility for offences committed by persons belonging to the enemy forces, regardless of their rank or station, was made the subject of an elaborate report by a commission of the Peace Conference.3 The commission reported that the war was "premeditated by the central powers together with their allies, Turkey and Bulgaria, and was the result of acts deliberately connected in order to make it unavoidable "; and that the war was carried on by these powers by "barbarous methods in violation of the established laws and customs of war and the elementary laws of

1 Their report is published in 46 Clunet (1919), pp. 131 ff.

The coroner's jury which held the inquest over the victims of the Lusitania at Kinsale declared in its verdict that "this appalling crime was contrary to international law and the conventions of all civilized nations and we therefore charge the officers of the said submarine and the Emperor and government of Germany under whose orders they acted with the crime of wilful and wholesale murder before the tribunal of the civilized world." In the case of the Lusitania Judge Mayer of the United States District Court for the Southern District of New York (251 Fed. 715, August 24, 1918) declared that "the cause of the sinking of the Lusitania was the illegal act of the imperial German government acting through its instrument, the submarine commander, and violating a cherished and humane rule, observed until this war by even the bitterest antagonists."

'Printed in English by the Carnegie Endowment for International Peace; Div. of Int. Law, pamphlet No. 32.

PROPOSED TRIAL OF GERMAN EMPEROR 491

humanity." Regarding the personal responsibility of individual offenders against the law of nations, the commission declared: "In these circumstances the commission desires to state expressly that in the hierarchy of persons in authority, there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the heads of States." There was little doubt, the commission added, that "the exKaiser and others in high authority were cognizant of and could at least have mitigated the barbarities committed during the course of the war. A word from them would have brought about a different method in the action of their subordinates on land, at sea and in the air." To hold that the head of the State is not liable to trial for such offences when the responsibility can be traced directly to him "would involve laying down the principle that the greatest outrages against the laws and customs of war and the laws of humanity, if proved against him, could in no circumstances be punished. Such a conclusion would shock the conscience of civilized mankind. The vindication of the principles of the laws and customs of war and the laws of humanity which have been violated would be incomplete if the ex-Kaiser were not brought to trial and if other offenders, less highly placed, were punished." Moreover, the trial of the lesser offenders might be seriously prejudiced if they attempted and were able to plead the superior orders of a sovereign against whom no steps had been or were being taken. The conclusion of the commission was that "all persons belonging to enemy countries, however high their positions may have been, without distinction of rank, including chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity are liable to prosecution."

As to acts which provoked the war, although the responsibility could be definitely placed, the commission advised that the authors be not made the object of criminal proceedings. The same conclusion was reached in respect to the violation of the neutrality of Belgium and Luxemburg. No criminal charge could be brought against the Kaiser or other persons responsible for these acts. Nevertheless, "in view of the gravity of these outrages upon the principles of the law of nations and

upon international good faith" they should be made the subject of a formal condemnation by the Peace Conference. It was further recommended that as to these acts, as well as those by which the war was provoked, "it would be right for the Peace Conference in a matter so unprecedented to adopt special measures and even to create a special organ in order to deal as they deserve with the authors of such acts." Finally, it was suggested that "for the future it was desirable that penal sanctions should be provided for such grave outrages against the elementary principles of international law."

"1

The Peace Conference adopted in principle the recommendations of the commission in respect to the trial of the ex-Emperor. Article 227 of the treaty with Germany is as follows:

The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely the United States of

1 The two American members of the commission, Messrs. Lansing and Scott, dissented from certain conclusions and recommendations of the commission. They declared that they were as earnestly desirous as the other members that those persons responsible for causing the war and those responsible for violations of the laws and customs of war should be punished for their crimes, moral and legal, and that the perpetrators should be held up to the execration of mankind, but they did not consider that a judicial tribunal was a proper forum for the trial of offences of a moral nature and they objected to the proposal of the majority to place on trial before a court of justice persons charged with having violated the "principles of humanity" or the "laws of humanity." They also objected to the "unprecedented proposal" to put on trial before an international criminal court the heads of States not only for having directly ordered illegal acts of war but for having abstained from preventing such acts. This would be to subject chiefs of State to "a degree of responsibility hitherto unknown to municipal or international law, for which no precedents are to be found in the modern practice of nations." It was contrary to the doctrine of immunity of sovereigns from judicial process as laid down by Chief Justice Marshall in the case of the Schooner Exchange v. McFaddon (7 Cranch 116). "The head of a State is responsible only to the law of his own country and he cannot be subjected to trial and punishment by a tribunal to whose jurisdiction he was not subject when the alleged offences were committed."

The reasoning of the American members was in accord with the somewhat technical conceptions of American criminal law and procedure, but there are doubtless American jurists who will not concur in their line of reasoning or in their conclusions.

The two Japanese members of the Commission also dissented from certain of the conclusions of the majority and expressed doubt whether under the law of nations offenders against the laws of war, belonging to the forces of the adversary, could be tried before a court constituted by the opposing belligerents.

DECISION OF PEACE CONFERENCE

493 America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.

§ 591. Decision of the Peace Conference Considered. It will be noted that the accused was to be tried not for an offence against the criminal law nor for violation of the laws and customs of war by his subordinates, for which he might perhaps have been held responsible, but only for offences against morality and for breaches of treaty faith. In fact, the Dutch government refused to surrender him. By a note of January 15, 1920, the allied powers requested his surrender in accordance with Article 228 of the treaty of Versailles. The note called attention to "the premeditated violations of international treaties as well as a systematic disregard of the most sacred rules of the rights of man," for which the ex-Emperor was responsible and expressed the opinion that "Holland would not fulfill her international duty if she refused to associate herself with them (the Allies) within the limit of her ability, to pursue, or at least not to impede, the punishment of crimes committed." The note emphasized "the special character of their demands, which contemplate, not a juridical accusation, but an act of high international policy and they make an appeal to Holland's respect for law and justice not to cover with her moral authority violation by Germany of the essential principles of the solidarity of nations." To this request the Dutch government returned a prompt refusal. It "rejected with energy all suspicion of wishing to cover with its sovereign right and its moral authority violations of the essential principles of the solidarity of nations," but it could not "recognize an international duty to associate itself with this act of high international policy of the powers." The government, it was added, could not "admit any other duty than that imposed upon it by the laws of the kingdom and national tradition." According to these laws and traditions Holland had always been regarded as "a refuge for the vanquished in international conflicts," and the government could not refuse to the former Emperor their benefit and thus "betray

the faith of those who have confided themselves to their free institutions." Had he been surrendered and placed on trial, it is not clear what punishment could have been imposed. Since he was not charged with a crime, he would hardly seem liable to the penalties prescribed for violations of the criminal law, and since the law of nations prescribes no penalties for offences against international morality or the sanctity of treaties, it would seem that the judgment of the court would have been limited to a formal pronouncement, stigmatizing him perhaps as a treaty-breaker primarily responsible for the war and holding him up to the execration of mankind. But the Peace Conference as well as the public opinion of the greater part of the world had already pronounced him guilty of these acts and it is not quite clear what would have been gained by having a court try him on moral charges for which he had already been convicted and to have pronounced a condemnation which he had already received. It may be questioned therefore whether the decision of the Peace Conference was the best solution of the problem.

If the Conference believed that he deserved to be punished, would it not have been more logical and more in accord with the principles of criminal law and procedure to have extended the theory of responsibility for criminal acts one degree higher than it actually did, declared that the ex-Emperor was as much responsible for a criminal act which he sanctioned or permitted as a general who gave the order to commit it, and having laid down this principle, provided for the creation of a court to try him on criminal charges instead of for moral offences? But, as was pointed out by the American members of the commission on responsibilities, it is a well-established rule of the law of nations that heads of States are exempt from the jurisdiction of foreign courts and in the United States this immunity has even been interpreted to apply to ex-sovereigns.2 The latter interpretation of the immunity, however, can hardly be said to be a rule of international law, and it may be argued with

1 See the cases of Mighell v. the Sultan of Johore, 1 Q.B. 149 (1894); de Haber v. The Queen of Portugal, 17 Q.B. 196 (1851); Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); and Moore, Digest of International Law, vol. II, sec. 250. 2 Hatch v. Baez, 7 Hun. 596; and Underhill v. Hernandez, 26 U.S. App. 573 (1895). This matter is learnedly discussed by Quincy Wright in 13 Amer. Political Science Review (1919), pp. 120.