(Violation of the laws and customs of war Carnegie Endowment for International Peace ; DIVISION OF INTERNATIONAL LAW, Pamphlet No. 82 Reports of Majority and Dissenting Reports of American and Japanese members of the Commission of Responsibilities. conference of Paris May 18, 1919)
p.138: The American representatives are unable to agree with one of the conclusions of the report which says:
‘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’.
The American representatives believe that this conclusion is inconsistent both with the reasoning of the section and with the first and second conclusions and that ‘in a matter so unprecedented’ they are relieved from comment and criticism.
However they observe that, if the acts in question are criminal in the sense that they are punishable under law, they do not understand why the reports should not advise that these acts be punished in accordance with the terms of the law. If, on the other hand, there is no law making them crimes or affixing a penalty for their commission, they are moral- not legal crimes and the American representatives fail to see the advisability or indeed the appropriateness of creating a special organ to deal with the authors of such acts. In any event, the organ in question should not be a judicial tribunal.
P.144: There are two reasons which, if others were lacking, would prevent the American representatives from consenting to the tribunal recommended by the Commission.
The first is the uncertainty of the law to be administered. The second 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…..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 offences were committed.. 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.
Another objection is that laws and principles o f 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.
p.145: 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.
p.146: 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.
p.147: 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 their Allies before the particular country in question has become a party in 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 those violations committed by the military or civil authorities of Bulgaria and Turkey.
p.148: 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 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 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 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 act as their agent; that he is only responsible to no other people or group of people in the world.
From the legal point of view they expressed themselves 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.
P.148/149: The majority of the Commission, however, was not influenced by the legal argument. The appeared to be fixed in their determination to try and punish by judicial process the ex-Kaiser’ 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.
p.148: 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 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 to 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 persecutions before it. They therefore refrained from taking part either in the discussion of the constitution or of the procedure of the tribunal.