PRECEDENTS

495 reason that the exemption accorded to reigning sovereigns was never intended to shield and protect from punishment heads of States responsible for such crimes and offences against the rights of nations as those with which the German Emperor was charged. The immunity referred to was founded on considerations of international comity and public policy and was introduced for the purpose of preventing the courts of one State from interfering with the discharge by the heads of other States of their high and important duties. It may be confidently asserted that it was not intended to lay down the principle that an abdicated or deposed chief of State cannot be arraigned before an international tribunal for high crimes committed by him against other nations while he was in power. The fact is, cases like that of the former German Emperor are not governed by the established rules of international law; whether he should have been tried by an international tribunal and punished, if convicted, was rather a matter of expediency and of international policy than of municipal or international law.

§ 592. Precedents for the Trial of Chiefs of States. Precedents for the trial and punishment of ex-sovereigns are not entirely lacking. Napoleon I appears to have been regarded as liable to trial by the British courts after his abdication. In fact, he was never put on trial before a national or international court, although the congress of Vienna declared that in consequence of his violations of the convention establishing him on the Island of Elba he had "placed himself without the pale of civil and social relations and that as an enemy and a disturber of the tranquillity of the world, he had rendered himself liable to public vengeance." In August, 1815, a convention was concluded between Great Britain, Austria, Prussia, and Russia declaring him to be a prisoner of the signatory powers; he was entrusted to the custody of the British government, by which he was exiled to the Island of St. Helena.

As is well known, Jefferson Davis, ex-President of the Southern Confederacy, was indicted after the close of the Civil war, in a

1 Lord Rosebery says the admiral who had the custody of Napoleon "was chased around his own fleet through an entire day by a lawyer with a writ on account of Napoleon." Napoleon, The Last Phase, p. 59, edited by Wright, loc. cit., p. 122.

United States court for treason and the "murder of union prisoners of war and other barbarous and cruel treatment toward them." After having been held in custody for more than two years, he was admitted to bail. The case came up in December, 1868, before chief justice Chase and Judge Underwood sitting in the United States circuit court for Virginia, who heard arguments on a motion to quash the indictment. The two judges disagreed and the matter was certified to the Supreme Court. While the case was still pending Davis was released under the general amnesty of December 25, 1868.1 His case was analogous in essential respects to that of the ex-Emperor, the principal difference being that Davis was indicted for criminal acts, whereas the ex-Emperor was to have been arraigned only for offences against international morality and the sanctity of treaties; and the tribunal before which Davis was arraigned was a national court, while that which was to have tried William was an international court. The cases of Napoleon I and Jefferson Davis therefore constitute precedents which do not differ in fundamental principle from that upon which the decision of the Peace Conference was based in respect to the trial of William of Hohenzollern.

The contention of the American members of the commission on responsibilities that the proposal to set up "an international criminal tribunal " was "unprecedented" and that it "subjects chiefs of States to a degree of responsibility hitherto unknown to municipal or international law," was only true in part.2 In any case, even if there were no precise precedents for traducing former heads of States before international tribunals, that in itself would constitute no valid reason for not putting the former German Emperor on trial, for the reason that the offences with which he was charged were without precedent, and it may be remarked also that the American members of the commission on responsibilities did not hesitate to give their approval to other pro1 Rhodes, History of the United States, vol. VI, p. 57.

2 There have, of course, been a number of cases in which chiefs of State have been held personally responsible for their criminal acts and put on trial before specially created courts or other extraordinary bodies of their own country. Mary Queen of Scots was tried for conspiracy against the life of Queen Elizabeth by an extraordinary commission created by special act of Parliament. Charles I was tried by a similar commission for "traitorously and maliciously levying war against the English Parliament and people," and Louis XVI of France was tried by the convention and executed.

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visions of the treaty relating to penalties and reparations that were equally "without precedents in the modern practice of nations."

§ 593. Immunity of Chiefs of States. There is room, of course, for a difference of opinion regarding the expediency of placing the ex-Emperor on trial, whether for criminal acts or moral offences. It may be said and has been said that he was no more culpable than the German people, that he was merely their representative and that the acts with which he was charged were approved by the great majority of his people. "This prosecution of the Emperor," said Professor Zitelmann of the University of Bonn, "is an iniquitous thing. From the juridical point of view the accusation has nothing to stand on. The entire nation was back of the Kaiser when we entered the war. He had the unanimity of the national conscience. The prosecution goes beyond his personality. If any one ought to be judged, it is all Germany. One cannot separate William II from his people." The latter statement may have been and probably was true, but one is tempted to ask why, if the principle of personal responsibility should be extended to generals, admirals, members of the general staff and others high in command of the armed and naval forces, and they put on trial for criminal acts for which they were directly or indirectly responsible, the principle should not be pushed to its logical limits, extended to him who sits at the top of the hierarchy and applied to the commander-in-chief? If the principle of personal responsibility is once introduced, the attempt to draw a line between those to whom it should be applied and those to whom it should not apply must necessarily be more or less arbitrary and lead to injustice.

The Peace Conference, as stated in the early part of this chapter, set a new precedent, one that is to be highly commended in affirming the principle that individual offenders against the laws of war, whenever their acts are criminal in character, are personally responsible and liable to punishment, and in endeavoring to give practical effect to this principle by requiring German offenders during the recent war to be delivered up for trial and punishment. In relieving the chief offender, the ex-Kaiser,

1 Interview in the Journal des Débats, March 12, 1919, reproduced in 46 Clunet (1919), p. 528.

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from responsibility for criminal acts which he permitted if he did not directly approve and encourage, the conference failed, in the opinion of many persons, to go to the limit which logic, consistency, and considerations of equal justice required. Had it affirmed the elementary principle that no man, however high his station, is above the law and that heads of states who are commanders-in-chief who permit, approve, and even encourage the commission of crimes by their subordinates in the field are equally guilty and that they cannot escape responsibility by taking refuge under the plea of an immunity which was really never intended to shield them from the consequences of their crimes, the moral effect in the wars of the future would have been most salutary. It would have been tantamount to the serving of notice on chiefs of State that he who provokes an unjust war, who wages it according to cruel and barbarous methods, who permits and sanctions atrocities by his troops, who approves and even encourages shocking violations of the most elementary and long-established laws and usages of war, and who rewards by decorations and promotions their authors, does so with full knowledge that if he is defeated he will be brought to the bar of justice and punished equally with the humblest soldier who has been compelled to violate the law and who for this and other reasons may be a thousand times less responsible.

§ 594. New Attitude Toward Violations of International Law. Whatever may be the result of the attempt to enforce greater respect for international law through the application of penal sanctions, it would seem that the time has arrived when the body of States should adopt a different attitude toward violations of international law by particular States. The traditional view and practice in the past has generally been to regard violations of international law by a particular belligerent as of no concern to other States not immediately injured. In short, breaches of international law have been regarded as analogous to torts under the civil law, that is, as wrongs against only the victim who suffers the specific injury. Other States are regarded as strangers to the affair; they not only have no right to intervene for the purpose of preventing the act or for compelling reparation, but it is not even considered proper for them to protest, since it would be tantamount to a claim to sit in judgment on the merits of a controversy between other parties than

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themselves. A good illustration of this view was afforded during the recent war by the attitude of neutral powers toward the German invasion of Belgium. It does not appear that any of them formally protested or expressed a word of denunciation of this flagrant violation of a great international convention to which they were all parties. When a commission representing the Belgian government waited on the President of the United States, on September 10, 1914, and told him how the Germans, in brutal violation of the convention, had invaded their country and committed numerous shocking atrocities against the Belgian people, the President responded in a brief address in which he thanked the Commission for the documentary evidence which they had placed in his hands, promised that it should receive his thoughtful attention, expressed the opinion that where wrongs had been committed the consequences and responsibility would be assessed, and added in conclusion: "You will, I am sure, not expect me to say more." No word of condemnation or protest was uttered either by the President or the Congress and the President even went to the length of addressing an appeal to the American people to remain neutral in thought as well as in action, in the presence of this and other conduct in shocking violation of the international conventions and customs.2 This attitude of official silence on the part of neutrals was quite in accord with the traditional practice; but as Germany's violations of the law of nations and of humanity multiplied, it was abandoned and the governments of the United States, Holland, Spain, Switzerland, and other neutral powers found themselves addressing formal protests against such acts as the deportation of the civilian population from Belgium. The federal council 1 N. Y. Times, September 17, 1914.

2 Americans, however, were by no means lacking who did not approve this attitude of official silence in the presence of flagrant and inexcusable violations of international law. Ex-president Roosevelt declared that the United States should never have ratified the Hague conventions if it was not prepared to maintain them and to seal them if necessary with American blood. To stand by and allow them to be flagrantly violated without even so much as a word of protest was "the cult of cowardice and the betrayal of a solemn trust" (see the Independent, January 4, 1915). Judge Holt of the United States district court of New York took the same view (the Independent, November 23, 1914). Ex-president Eliot of Harvard University even went to the length of suggesting that the United States would have been justified in joining the Allies in a war against Germany, on the ground that it was the duty of powerful neutral States to defend small and defenceless States like Belgium against the aggressions of Germany.