Full text of ‘Violation of the laws and customs of war: reports of majority and dissenting reports of American and Japanese members of the Commission of Paris Peace Conference (1919-1920)’. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties
Violation of the laws and customs of war Carnegie Endowment for International Peace
DIVISION OF INTERNATIONAL LAW
Pamphlet No. 82
VIOLATION OF THE LAWS AND CUSTOMS OF WAR
Reports of Majority and Dissenting Reports of AMERICAN AND JAPANESE MEMBERS of the Commission of Responsibilities
CONFERENCE OF PARIS May 18, 1919
CONDITIONS OF PEACE
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 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.
The German Government 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. 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 German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an 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.
Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.
Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel.
The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders, and the just appreciation of responsibility.
COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR AND ON ENFORCEMENT OF PENALTIES
The Preliminary Peace Conference at the plenary Session on the 25th January, 1919 (Minute No. 2), decided to create, for the purpose of enquiring into the responsibilities relating to the war, a Commission composed of fifteen members, two to be named by each of the Great Powers (United-States of America, British Empire, France, Italy and Japan) and five elected from among the Powers, with special interests.
The Commission was charged to enquire into and report upon the following points:
1. The responsibility of the authors of the war.
2. The facts as to breaches of the laws and customs of war committed by the forces of the German Empire and their Allies, on land, on sea, and in the air during the present war.
3. The degree of responsibility for these offences attaching to particular members of the enemy forces, including members of the General Staffs, and other individuals, however highly placed.
4. The constitution and procedure of a tribunal appropriate for the trial of these offences.
5. Any other matters cognate or ancillary to the above which may arise in the course of the enquiry, and which the Commission finds it useful and relevant to take into consideration.
At a meeting of the Powers with special interests held on the 27th January, 1919, Belgium, Greece, Poland, Roumania and Serbia were chosen as the Powers who should name representatives. (Minute No. 2. Annex VI.)
After the several States had nominated their respective representatives, the Commission was constituted as follows:
United States of America: Hon. Robert Lansing, Major James Brown Scott.
British Empire: The Rt. Hon. Sir Cordon Hewart, K.C. M.P. or Sir Ernest Pollock, K.B.E.. K.C.. M.P., The Rt. Hon. W.F.Massey.
France: Mr. Andre Tardieu (Alternate: Captain R. Masson.), Mr. F. Larnaude.
Italy: Mr. Scialoja (Alternates: Mr. Ricci Busatti, Mr. G. Tosti.), Mr. Raimondo. Later, Mr. Brambilla (3rd February), Mr. M. d’Amelio (Fifth February).
Japan: Mr. Adatci, Mr. Nagaoka. Later, Mr. S. Taehi (15th February).
Belgium: Mr. Rolin-Jaequemyns.
Greece: Mr. N. Politis.
Poland: Mr. C. Skirmunt. Later, Mr. N. Lubienski (14th February).
Roumania: Mr. S. Rosental,
Serbia: Professor Slobodan Yovanovitch (Alternates: Mr. Koumanoudi, Mr. Novacovitch.)
Mr. Lansing was selected as Chairman of the Commission, and as Vice-Chairmen, Sir Gordon Hewart or Sir Ernest Pollock and Mr. Scialoja. Mr. A. de Lapradelle (France) was named General Secretary and the Secretaries of the Commission were:
Mr. A. Kirk, United States of America; Lieutenant-Colonel O. M. Biggar, British Empire; Mr. G. H. Tosti, Italy; Mr. Kuriyama, Japan; Lieutenant Baron .J. Guillaume, Belgium; Mr. Spyridion Marchetti, Greece; Mr.Casimir Rybinski, Poland.
Mr. G. H. Carmerlynck, Professeur agrégé of the University of France, act as interpreter to the Commission.
The Commission decided to appoint three Sub-Commissions.
Sub-Commission 1. on Criminal Acts, was instructed to discover and collect the evidence necessary to establish the facts relating to culpable conduct which (a) brought out the world war and accompanied its inception, and (b) took place in the course of hostilities.
This Sub Commission selected Mr. W. F. Massey as its Chairman.
Sub-Commission II, on the Responsibility for the War, was instructed to consider whether, on the facts established by the Sub-Commission on Criminal Acts in relation to the conduct which brought about the world war and accompanied its inception.
prosecutions could be instituted, and, if it decided that prosecutions could be undertaken, to prepare a report indicating the individual or individuals who were, in its opinion, guilty, and the Court before which prosecutions should proceed.
This Sub-Commission selected alternatively Sir Gordon Hewart or Sir Ernest Pollock as Chairman.
Sub-Commission III, on the Responsibility for the Violation of the Laws and Customs of War, was instructed to consider whether, on the facts established by the Sub-Commission on Criminal Acts in relation to conduct which took place in the course of hostilities, prosecutions could be instituted, and if it decided that prosecutions could be undertaken, to prepare a report indicating the individual
or individuals who were, in its opinion, guilty, and the Court before which prosecutions should proceed.
This Sub-Commission selected Mr. Lansing as its Chairman.
When the reports of the Sub-Commissions had been considered, a committee composed of Mr. Rolin-Jaequemyns, Sir Ernest Pollock and Mr. M. d’Amelio was appointed to draft the report of the Commission. This Committee was assisted by Mr. A. de Lapradelle and Lieutenant-Colonel O. M. Biggar.
The Commission has the honour to submit its report to the Preliminary Peace Conference. The report was adopted unanimously subject to certain reservations by the United States of America and certain other reservations by Japan. The United States Delegation has set forth its reservations and the reasons therefore in a memorandum attached hereto (Annex II) and the same course has been taken by the Japanese Delegation (Annex III).
REPORT PRESENTED TO THE PRELIMlNARY PEACE CONFERENCE BY THE COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR AND ON ENFORCEMENT OF PENALTIES
CHAPTER 1 - RESPONSIBILITY OF THE AUTHORS OF THE WAR
On the question of the responsibility of the authors of the war, the Commission, after having examined a number of official documents relating to the origin of the world war, and to the violations of neutrality and of frontiers which accompanied its inception, has determined that the responsibility for it lies wholly upon the Powers which declared war in pursuance of a policy of aggression, the concealment of which gives to the origin of this war the character of a dark conspiracy against the peace of Europe.
This responsibility rests first on Germany and Austria, secondly on Turkey and Bulgaria.
The responsibility is made all the graver by reason of the violation by Germany and Austria of the neutrality of Belgium and Luxemburg, which they themselves had guaranteed. It is increased, with regard to both France and Serbia, by the violation of their frontiers before the declaration of war.
Premeditation of the War
A. - Germany and Austria
Many months before the crisis of 1914 the German Emperor had ceased to pose as the champion of peace. Naturally believing in the overwhelming superiority of his army, he openly showed his enmity towards France. General von Moltke said to the King of the Belgians: ‘This time the matter must be settled. In vain the King protested. The Emperor and his Chief of Staff remained no less fixed in their attitude.
On the 28th.June 1914, occurred the assassination at Sarajevo of the heir-apparent of Austria. “It is the act of a little group of madmen” said Francis Joseph.
The act, committed as it was by a subject of Austria-Hungary on Austro-Hungarian territory, could in no wise compromise Serbia, which very correctly expressed its Condolences and stopped public rejoicings in Belgrade.
If the Government of Vienna thought that there was any Serbian complicity, Serbia was ready to seek out the guilty parties. But this attitude failed to satisfy Austria and still less Germany, who, after their first astonishment had passed, saw in this royal and national misfortune a pretext to initiate war.
At Potsdam a ‘decisive consultation’ took place on the 5th of July, 1914. Vienna and Berlin decided upon this plan: ‘Vienna will send to Belgrade a very emphatic ultimatum with a very short limit of time.’
The Bavarian Minister, Von Lerchenfeld, said in a confidential dispatch dated the 18th July 1914, the facts stated in which have never been officially denied:
“It is clear that Serbia cannot accept the demands, which are inconsistent with the dignity of an independent State”.
Count Lerchenfeld reveals in this report that, at the time it was made, the ultimatum to Serbia had been jointly decided upon by the Governments of Berlin and Vienna; that they were waiting to send it until President Poincare and M. Viviani should have left for St. Petersburg; and that no illusions were cherished, either at Berlin or Vienna, as to the consequences which this threatening measure would involve. It was perfectly well known that war would be the result.
The Bavarian Minister explains, moreover, that the only fear of the Berlin Government was that Austria-Hungary might hesitate and draw back at the last minute, and that on the other hand Serbia, on the advice of France and Great Britain, might yield to the pressure put upon her.
Now, ‘the Berlin Government considers that war is necessary.’ Therefore, it gave full powers to Count Berchtold who instructed the Ballplatz on the 18th July, 1914, to- negotiate with Bulgaria to induce her to enter into an alliance and to participate in the war. In order to mask this understanding, it was arranged that the Emperor should go for a cruise in the North Sea, and that the Prussian Minister of War should go for a holiday, so that the Imperial Government might pretend that events had taken it completely by surprise.
Austria suddenly sent Serbia an ultimatum that she had carefully prepared in such a way as to make it impossible to accept. Nobody could be deceived; ‘the whole world understands that this ultimatum means war.’ According to M. Sazonof, Austria-Hungary wanted to devour Serbia. M. Sazonof asked Vienna for an extension of the short time limit of forty-eight hours given by Austria to Serbia for the most serious decision in its history. Vienna refused the demand.
On the 24th and 25th July England and France multiplied their efforts to persuade Serbia to satisfy the Austro-Hungarian demands. Russia threw in her weight on the side of conciliation. Contrary to the expectation of Austria-Hungary and Germany, Serbia yielded. She agreed to all the requirements of the ultimatum, subject to the single reservation that, in the judicial enquiry which she would commence for the purpose of seeking out the guilty parties, the participation of Austian officials would be kept within the limits assigned by international law.
If the Austro-Hungarian Government is not satisfied with this, ‘Serbia’ declared she was ready to submit to the decision of the Hague Tribunal.
A quarter of an hour before the expiration of the time limit, at 5.45 on the 25th, M. Pachich, the Serbian Minister of Foreign Affairs, delivered this reply to Baron Geisl the Austro-Hungarian Minister. On M. Pachich return to his own office he found awaiting him a letter from Baron Geisl saying that he was not satisfied with the reply.
At 6.30 the latter had left Belgrade, and even before he had arrived at Vienna, the Austro-Hungarian Government had handed his passports to M. Yovanovitch the Serbian Minister, and had prepared thirty-three mobilisation proclamations, which were published on the following morning in the ‘Budapesti Kozlöni,’ the official gazette of the Hungarian Government. On the 27th Sir Maurice de Bunsen telegraphed to Sir Edward Grey: ‘This country has gone wild with joy at the prospect of war with Serbia.’ At midday on the 27th Austria declared war on Serbia. On the 29th the Austrian Army commenced the bombardment of Belgrade, and made its dispositions to cross the frontier. The reiterated suggestions of the Entente Powers with a view to finding a peaceful solution of the dispute only produced evasive replies on the part of Berlin or promises of intervention with the Government of Vienna without any effectual steps being taken. On the 24th of July Russia and England asked that the Powers should be granted a reasonable delay in which to work in concert for the maintenance of peace. Germany did not join in this request.
On the 25th July Sir Edward Grey proposed mediation by four- Powers (England, France, Italy and Germany). France and Italy immediately gave their concurrence. Germany refused, alleging that it was not a question of mediation but of arbitration, as the conference of the four Powers was called to make proposals, not to decide.
On the 26th July Russia proposed to negotiate directly with Austria. Austria refused. On the 27th July England proposed a European conference. Germany refused.
On the 29th July Sir Edward Grey asked the Wilhelmstrasse to be good enough to suggest any method by which the influence of the four Powers could be used together to prevent a war between Austria and Russia. She was asked herself to say what she desired. Her reply was evasive. On the same day, the 29th July, the Czar Nicholas II dispatched to the Emperor William II a telegram suggesting that the Austro- Serbian problem should be submitted to the Hague Tribunal. This suggestion received no reply. This important telegram does not appear in the German White Book. It was made public by the Petrograd ‘Official Gazette’ (January 1915).
The Bavarian Legation, in a report dated the 31st July, declared its conviction that the efforts of Sir Edward Grey to preserve peace would not hinder the march of events.
As early as the 21stJuly German mobilisation had continued by the recall of a certain number of classes of the reserve, then of German officers in Switzerland - and finally of the Metz garrison on the 25th July. On the 26th July the German fleet was called back from Norway. The Entente did not relax its conciliatory efforts, but the German Government systematically brought all its attempts to naught.
When Austria consented for the first time on the 31st July to discuss the contents of the Serbian Note with the Russian Government and the Austro-Hungarian Ambassador received orders to converse with the Russian Minister of Foreign Affairs. Germany made any negotiation impossible by sending her ultimatum to Russia.
Prince Lichnowsky wrote that a hint from Berlin would have been enough to decide Count Berchtold to content himself with a diplomatic success and to declare that he was satisfied with the Serbian reply, but this hint was not given. On the contrary they went forward towards war.
On the 1st August the German Emperor addressed a telegram to the King of England containing the following sentence: ‘The troops on my frontier are, at this moment, being kept back by telegraphic and telephonic orders from crossing the French frontier.’ Now, war was not declared till two days after that date, and as the German mobilisation orders were issued on that same day, the 1st August, it follows that, as a matter of fact, the German army had been mobilised and concentrated in pursuance of previous orders. The attitude of the Entente nevertheless remained still to the very end so conciliatory that, at the very time at which the German fleet was bombarding Libau, Nicholas II gave his word of honour to William II that Russia would not undertake any aggressive action during the pourparlers and that when the German troops commenced their march across the French frontier M. Viviani telegraphed to all the French Ambassadors ‘we must not stop working for accommodation.’
On the 3rd August von Schoen went to the Quai d’Orsay with the declaration of war against France. Lacking a real cause of complaint, Germany alleged, in her declaration of war, that bombs had been dropped by French aeroplanes in various districts in Germany. This statement was entirely false. Moreover, it was either later admitted to be so 1 or no particulars were ever furnished by the German Government. Moreover, in order to be manifestly above reproach, France was careful to withdraw her troops 10 kilom. from the German frontier. Notwithstanding this precaution, numerous officially established violations of French territory preceded the declaration of war.
The provocation was so flagrant that Italy, herself a member of the Triple Alliance, did not hesitate to declare that in view of the aggressive character of the war the casus foederis ceased to apply.
B. Turkey and Bulgaria
The conflict was, however, destined to become more widespread, and Germany and Austria were joined by allies. Since the Balkan war the Young Turk Government had been drawing nearer and nearer Germany, whilst Germany on her part had constantly been extending her activities at Constantinople. A few months before war broke out, Turkey handed over the command of her military and naval forces to the German General Liman von Sanders and the German Admiral Souchon. In August, 1914, the former, acting under orders from the General Headquarters at Berlin, caused the Turkish Army to begin mobilising.
Finally, on the 4th August, the understanding between Turkey and Germany was definitely formulated in an alliance.
The consequence was that when the ‘Goeben’ and the ‘Breslau’ took refuge in the Bosphorus, Turkey closed the Dardanelles against the Entente squadrons and war followed. On the 14th October, 1915, Bulgaria declared war on Serbia. which country had been at war with Austria since the 28th July, 1914, and had been attacked on all fronts by a large Austro-German army since the 6th October, l915. Serbia had, however, committed no act of provocation against Bulgaria.
Serbia never formulated any claim against Bulgaria during the negotiations which took place between the Entente Powers and Bulgaria prior to the latter’s entry into the war. On the contrary, she was offering herself ready to make certain territorial concessions to Bulgaria in order to second the efforts of the Entente Powers to induce Bulgaria to join them. According to Count Lerchenfeld’.s reports, however, Bulgaria had begun negotiations with the Central Powers as early as the 18th July 1914, with a view to entering the war on their side.
In April, 1915, the Bulgars made an armed attack against Serbia near Valandovo and Struvmitza, where a real battle was fought on Serbian territory. Being defeated, the Bulgars retired, ascribing this act of aggression to some comitadjis. An International Commission composed of representatives of the Entente discovered, however, that there had been Bulgarian regular officers and soldiers among the dead and the prisoners.
On the 6th September, 1915, Bulgaria and Austria-Hungary concluded a treaty which recited that they had agreed to undertake common military action against Serbia and by which Austria- Hungary guaranteed to Bulgaria certain accretions of territory at Serbia’s expense, and also agreed, jointly with Germany, to make to the Bulgarian Government a war loan of 200,000.000 Fr. to be increased if the war lasted more than four months.
Even after this, M. Malinoff, one of the former prime Ministers of Bulgaria, took part in negotiations with the Entente, and, while these negotiations were continuing. Bulgaria, on the 23rd September, mobilised ostensibly to defend her neutrality.
No sooner had the army been mobilised and concentrated and Bulgarian forces massed on the whole length of the Serbian frontier, than the Bulgarian Government openly and categorically repudiated M. Malinolf stating that he was in no way qualified to commit Bulgaria, and that he deserved to be subjected to the utmost rigour of his country’s laws for his conduct on that occasion. Some days later, Austro-German troops crossed the Danube and began to invade Serbia.
As soon as the Serbian troops began to retire, the Bulgars on the pretext that the former had violated their frontier, launched the attack which eventually led to the complete subjugation of Serbia.
Two documents in the possession of the Serbian Government prove that this incident on the frontier was ‘arranged’ and represented as a Serbian provocation.
On the 10th October 1915, the Secretary-General to the Foreign Office at Sofia, at the request of the Bulgarian Minister for Foreign Affairs, sent the following communication to Count Tarnovski, Austro-Hungarian Minister at Sofia:
‘In order to divest the attack on Serbia of the appearance of a preconceived plot, we shall, this evening or tomorrow morning, provoke a frontier incident in some uninhabited region’.
Also, on the 12th October, 1915, count Tarnovski sent the following telegram to Vienna:
‘The Generalissimo informs me that the desired incident on the Serbian frontier was arranged yesterday.’
Bulgaria, in fact, first attacked on the 12th October 1915, two days before the declaration of war on Serbia, which took place on the 14th October 1915. That this was the case does not prevent Bulgaria from asserting that the Serbs first crossed their frontier.
The above sequence of events proves that Bulgaria had premeditated war against Serbia, and perfidiously brought it about.
By means of German agents Enver Pasha and Talaat Pasha had, since the spring of 1914, been aware of the Austro-German plan, i.e., an attack by Austria against Serbia, the intervention by Germany against France, the passage through Belgium, the occupation of Paris in a fortnight, the closing of the Straits by Turkey, and the readiness of Bulgaria to take action.
The Sultan acknowledged this plot to one of his intimates. It was indeed nothing but a plot engineered by heads of four States against the independence of Serbia and the peace of Europe.
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