The third point submitted by the Conference is thus stated: 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.
For the purpose of dealing with this point, it is not necessary to wait for proof attaching guilt to particular individuals. It is quite clear from the information now before the Commission that there are grave charges which must be brought and investigated by a Court against a number of persons.
In these circumstances, the Commission desire 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 case of Heads of States. An argument has been raised to the contrary based upon the alleged immunity, and in particular the alleged inviolability, of a Sovereign of a State. But this privilege, where it is recognised, is one of practical experience in municipal law, and is not fundamental. However, even if, in some countries, a Sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different.
We have later on in our Report proposed the establishment of a High Tribunal composed of judges drawn from many nations, and included the possibility of the trial before that Tribunal of a former Head of a State with the consent of that State itself secured by articles in the Treaty of Peace. If the immunity of a Sovereign is claimed to extend beyond the limits above stated, it 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 off civiliced mankind.
In view of the grave changes which may be preferred against, to take one case, the ex-Kaiser, 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 he were not brought to trial and if other offenders less highly placed were punished. Moreover the trial of the 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.
There is little doubt that the ex-Kaiser and others in high authority were cognisant 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.
We desire to say that civil and military authorities cannot be relieved from responsibility by the mere fact that a higher authority might have been convicted of the same offence. It will be for the Court to decide whether plea of superior orders is sufficient to acquit the person charged from responsibility.
All persons belonging to enemy countries, however high their position 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 criminal prosecution.
CONSTITUTION AND PROCEDURE OF AN APPROPRIATE TRIBUNAL
The fourth point submitted to the Commission is stated as follows: The Constitution and Procedure of a Tribunal appropriate for the Trial of these Offences (crimes relating to the war). On this question the Commission is of opinion that, having regard to the multiplicity of crimes committed by those Powers which a short time before had on two occasions at the Hague protested their reverence for right and their respect for the principles of humanity, the public conscience insists upon a sanction which will put clearly in the light that it is not permitted cynically to profess a disdain for the most sacred laws and the most formal undertakings.
Three classes of culpable acts present themselves:
(a) Acts which provoked the world war and accompanied its inception.
(b) Violations of the laws and customs of war and the laws of humanity.
(c) Acts which Provoked the War and Accompanied its Inception.
In this class the Commission has considered acts not strictly war crimes, but acts which provoked the war or accompanied its inception, such, to take outstanding examples, as the invasion of Luxemburg and Belgium.
The premeditation of a war of aggression, dissimulated under a peaceful pretence, then suddenly declared under false pretexts, is conduct which the public conscience reproves and which history will condemn, but by reason of the purely optional character of the Institutions at The Hague for the maintenance of peace (International Commission of Enquiry, Mediation and Arbitration) a war of aggression may not be considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal such as the Commission is authorised to consider under its Terms of Reference.
Further, any enquiry into the authorship of the war must, to be exhaustive, extend over events that have happened during many years in different European countries, and must raise many difficult and complex problems which might be more fitly investigated by historians and statesmen than by a tribunal appropriate to the trial of offenders against the laws and customs of war. The need of prompt action is from this point of view important. Any tribunal appropriate to deal with the other offences to which reference is made might hardly be a good court to discuss and deal decisively.
See the declaration of Baron Marschall von Bieberstĳn who, speaking at the Hague Conference of I907 with regard to submarine mines, used the following expressions:
‘Military operations are not governed solely by stipulations of international law. There are other factors. Conscience, good sense, and the sense of duty imposed by the principles of humanity will be the surest guides for the conduct of sailors, and will constitute the most effective guarantee against abuses. The officers of the German Navy, I loudly proclaim it, will always fulfill in the strictest fashion the duties which emanate from the unwritten law of humanity and civilisation with such a subject as the authorship of the war. The proceedings and discussions, charges and counter-charges, if adequately and dispassionately examined, might consume much time, and the result might conceivably confuse the simpler issues into which the tribunal will be charged to enquire.’
While this prolonged investigation was proceeding some witnesses might disappear, the recollection of others would become fainter and less trustworthy, offenders might escape, and the moral effect of tardily imposed punishment would be much less salutary than if punishment were inflicted while the memory of the wrongs done was still fresh and the demand for punishment was insistent.
We therefore do not advise that the acts which provoked the war should be charged against their authors and made the subject of proceedings before a tribunal. There can be no doubt that the invasion of Luxemburg by the Germans was a violation of the Treaty of London of 1867, and also that the invasion of Belgium was a violation of the Treaties of 1839. These Treaties secured neutrality for Luxemburg and Belgium, and in that term were included freedom, independence and security for the population living in those countries. They were contracts made between the High Contracting Parties to them and involve an obligation which is recognised in international Law.
The Treaty of 1839 with regard to Belgium and that of 1867 with regard to Luxemburg were deliberately violated, not by some outside Power, but by one of the very Powers which had undertaken not merely to respect their neutrality, but to compel its observance by any other Power which might attack it. The neglect of its duty by the guarantor adds to the gravity of the failure to fulfill the undertaking given. It was the transformation of a security into a peril, of a defence into an attack, of a protection into an assault. It constitutes, moreover, the absolute denial of the independence of States too weak to interpose a serious resistance, an assault upon the life of a nation which resists, an assault against its very existence while, before the resistance was made, the aggressor, in the guise of tempter, offered material compensations in return for the sacrifice of honour. The violation of inter- national law was thus an aggravation of the attack upon the independence of States which is the fundamental principle of inter- national right. And thus a high-handed outrage was committed upon international engagements, deliberately, and for a purpose which cannot justify the conduct of those who were responsible.
The Commission is nevertheless of opinion that no criminal charge can be made against the responsible authorities or individuals (and notably the ex-Kaiser) on the special head of these breaches of neutrality, but the gravity of these gross outrages upon the law of nations and international good faith is such that the Commission thinks they should be the subject of a formal condemnation by the Conference.
1. The acts which brought about the war should not be charged against their authors or made the subject of proceedings before a tribunal.
2. On the special head of the breaches of the neutrality of Luxemburg and Belgium, the gravity of these outrages upon the principles of the law of nations and upon international good faith is such that they should be made the subject of a formal condemnation by the Conference.
3. On the whole case, including both the acts which brought about the war and those which accompanied its inception, particularly the violation of the neutrality of Belgium and Luxemburg, 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.
4. It is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.
Violations of the Laws and Customs of War and of the Laws of Humanity.
Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in Chapter II. on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of such cases. These courts would be able to try the incriminated persons according to their own procedure, and much complication and consequent delay would be avoided which would arise if all such cases were to be brought before a single tribunal.
There remain, however, a number of charges:
(a) Against persons belonging to enemy countries who have committed outrages against a number of civilians and soldiers of several Allied nations, such as outrages committed in prison camps where prisoners of war of several nations were congregated or the crime of forced labour in mines where prisoners of more than one nationality were forced to work;
(b) Against persons of authority, belonging to enemy countries, whose orders were executed not only in one area or on one battle front, but whose orders affected the conduct of operations against several of the Allied armies;
(c) Against all authorities, civil or military, belonging to enemy countries, however high their position may have been, without distinction of rank, including the heads of States, who ordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war (it being understood that no such abstention should constitute a defence for the actual perpetrators);
(d) Against such other persons belonging to enemy countries as, having regard to the character of the offence or the law of any belligerent country, it may be considered advisable not to proceed before a court other than the High Tribunal hereafter referred to;
For the trial of outrages falling under these four categories the Commission is of opinion that a High Tribunal is essential and should be established according to the following plan:
(1) It shall be composed of three persons appointed by each of the following Governments : The United States of America, the British Empire, France, Italy and Japan, and one person appointed by each of the following Governments: Belgium, Greece, Poland, Portugal, Roumania, Serbia and Czecho- Slovakia. The members shall be selected by each country from among the members of their national courts or tribunals, civil or military, and now in existence or erected as indicated above.
(2) The tribunal shall have power to appoint experts to assist it in the trial of any particular case or class of cases.
(3) The law to be applied by the tribunal shall be ‘the principles of the law of nations’ as they result from the usages established among civilised peoples, from the laws of humanity and from the dictates of public conscience.
(4) When the accused is found by the tribunal to be guilty, the tribunal shall have the power to sentence him to such punishment or punishments as may be imposed for such an offence or offences by any court in any country represented on the tribunal or in the country of the convicted person.
(5) The tribunal shall determine its own procedure. It shall have power to sit in divisions of not less than five members and to request any national court to assume jurisdiction for the purpose of enquiry or for trial and judgment.
(6) The duty of selecting the cases for trial before the tribunal and of directing and conducting prosecutions before it shall be imposed upon a Prosecuting Commission of five members, of whom one shall be appointed by the Governments of the United States of America, the British Empire, France, Italy and Japan, and for the assistance of which any other Government may delegate a representative.
(7) Applications by any Allied or Associated Government for the trial before the tribunal of any offender who has not been delivered up or who is at the disposition of some other Allied or Associated Government shall be addressed to the Prosecuting Commission, and a national court shall not proceed with the trial of any person who is selected for trial before the tribunal, but shall permit such person to be dealt with as directed by the Prosecuting Commission.
(8) No person shall be liable to be tried by a national court for an offence in respect of which charges have been preferred before the tribunal, but no trial or sentence by a court of an enemy country shall bar trial and sentence by the tribunal or by a national court belonging to one of the Allied or Associated States.
The Commission has consequently the honour to recommend:
1. That a High Tribunal be constituted as above set out.
2. That it shall be provided by the Treaty of Peace:
(a) That the enemy Governments shall, notwithstanding that Peace may have been declared, recognise the jurisdiction of the National Tribunals and the High Tribunal, that all enemy persons alleged to have been guilty of offences against the laws and customs of war and the laws of humanity shall be excluded from any amnesty to which the belligerents may agree, and that the Governments of such persons shall undertake to surrender them to be tried.
(b) That the enemy Governments shall undertake to deliver up and give in such manner as may be determined thereby;
(i) The names of all persons in command or charge of or in any way exercising authority in or over all civilian internment camps, prisoner-of-war camps, branch camps, working camps and ‘commandoes’ and other places where prisoners were confined in any of their dominions or in territory at any time occupied by them, with respect to which such information is required, and all orders and instructions or copies of orders or instructions and reports in their possession or under their control relating to the administration and discipline of all such places in respect of which the supply of such documents as aforesaid shall be demanded;
(ii) All orders, instructions, copies of orders and instructions. General Staff plans of campaign, proceedings in Naval or Military Courts and Courts of Enquiry, reports and other documents in their possession or under their control which relate to acts or operations, whether in their dominions or in territory at any time occupied by them, which shall be alleged to have been done or carried out in breach of the laws and customs of war and the laws of humanity;
(iii) Such information as will indicate the persons who committed or were responsible for such acts or operations;
(iv) All logs, charts, reports and other documents relating to operations by submarines;
(v) All orders issued to submarines, with details or scope of operations by these vessels;
(vi) Such reports and other documents as may be demanded relating to operations alleged to have been conducted by enemy ships and their crews during the war contrary to the laws and customs of war and the laws of humanity.
3. That each Allied and Associated Government adopt such legislation as may be necessary to support the jurisdiction of the International Court, and to assure the carrying out of its sentences.
4. That the five States represented on the Prosecuting Commission shall jointly approach Neutral Governments with a view to obtaining the surrender for trial of persons within their territories who are charged by such States with violations of the laws and customs of war and the laws of humanity.