Early during World War I, jurists and statesmen in both France and Great-Britain, such as Larnaude and Lapradelle, had advocated the German Emperor William II to be arrested and brought to trial. The principle that military officers should be held personally responsible for orders in violation of the laws and customs of war, if pushed to its logical limits, would render commanders-in-chief, that is heads of State, liable for illegal acts for which they are responsible, directly or indirectly. And in Germany, there was one commander-in-chief: the Emperor William II.
The Treaty of Versailles was one of the peace treaties at the end of World War I. It terminated war between Germany and the Allied Powers. It was signed on 28 June 1919, exactly five years after the assassination of Archduke Franz Ferdinand. The other Central Powers, being Austria-Hungary, the Ottoman Empire and Bulgaria were dealt with in the separate treaties of respectively Saint-Germain-en-Laye (Austria), Trianon (Hungary), Sèvres and Neuilly-sur-Seine. Although the armistice, signed on 11 November 1918, ended the actual fighting, it took six months of negotiations at the Paris Peace Conference to conclude the Versailles Treaty.
Versailles and International Law
The main provision in the Versailles Treaty, Article 231, known as the ‘War Guilt clause’, required Germany to accept the responsibility for causing all the loss and damage during the war. The treaty forced Germany to disarm, make substantial territorial concessions, and pay reparations to certain countries that had formed the Entente powers. An important role was to be played by international law in making this treaty work. As international law had not been able to prevent the outbreak and horrors of World War I, international lawyers were now concerned how to move on. More important than the task of reconstructing international law, was the problem of making it more effective, that is, of devising means for compelling respect for its commands and prohibitions.
Penal clauses of the Versailles Treaty
In the time it hardly seemed possible that international law could ever be made effective in the sense in which municipal law is effective. The want of effective sanctions, binding force, had always been the chief weakness of international law. So far as there had been any sanction at all, it had been the force of public opinion. And so did the war. The numerous and shocking violations of international war and breaches of treaty engagements acctentuaded the demand for the creation of more effective (penal) sanctions. The rules of international law, and in particular the Hague Conventions of 1899 and 1907 on the laws and customs of war, were devoid of penal sanctions. Like the rules of criminal law they laid down commands and prohibitions, but unlike criminal law, did not prescribe any penalties for their prohibition.
During the Paris Peace Conference, 1919, huge efforts were made to include penal sanctions in the Versailles Treaty. The treaty, signed on the 28th of June, 1919, formally sanctioned the principle of individual responsibility for criminal acts in violation of the laws and customs of war committed by members of the defeated armed forces against the persons or property of the other party. It was laid down in Part VII. Penalties (Arts. 227–230) of the treaty.
The decision of the Paris Peace Conference regarding the Trial of the German Emperor
Of the penal provisions in the treaty, a most interesting and delicate issue was formalised in Article 227: the decision to put William II of Hohenzollern, formerly German Emperor, on trial for a supreme offence against international morality and the sanctity of treaties. Article 227 of the treaty with Germany reads as follows:
"The Allied 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".
Responsibility of Heads of State
Early in the war jurists and statesmen in both France and Great-Britain, such as Larnaude and Lapradelle, had advocated the German Emperor to be arrested and brought to trial. The principle that military officers should be held personally responsible for orders in violation of the laws and customs of war, if pushed to its logical limits, would render commanders-in-chief, that is Heads of State, liable for illegal acts for which they are responsible, directly or indirectly. And in Germany, there was one commander-in-chief: the Emperor William II. Eventually, the issue was made subject of an elaborate report by a commission of the Paris Peace Conference in 1919. The commission states as follows:
"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 responsibility has been established before a properly constituted tribunal. This extends even to the Heads of States".
"... all Persons belonging to enemy countries, however high their positions may have been, without distinction of rank, incuding 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".
Precedents for the trial and punishment of ex-sovereigns, at that time, were not entirely lacking. Mary, Queen of Scots was tried for consiracy against the life of Elizabeth I of England, Charles I was tried for 'traitorously and maliciously levying war against the English Parliament and people, and Louis XVI of France was tried by the convention and executed. Nevertheless, a trial for the German Emperor was an iniquitous thing, mindful the doctrines of immunity of Heads of State.
In reading Article 227 of the Versailles Treaty, one must notice 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 - the actual prosecution for violations of the Hague Conventions would have to wait until Nuremberg -, but only for offences against international morality and the sanctity of treaties. It was a compromise, more politically motivated than legally. Great Britain had been keen on the criminal prosecution of those generally considered to be responsible for the war. There had been much pressure to go beyond violations of the laws and customs of war and to prosecute, in addition, the waging of the war itself in violation of international treaties. But the United States had been hostile to that idea, arguing that it would have been ex post facto justice. Also the concept of 'laws of humanity', formulated in the initial proposal, had been dropped.
None of the arrangements of Article 227 of the Versailles Treaty, however, were to be effectuated. At the outbreak of the German revolution late 1918, the Emperor had already fled to the neutral Netherlands, where he was granted political asylum. Despite appeals from the Allies, the Dutch government refused to extradite him, considering that the charges consisted of retroactive criminal law. He lived out his life there, in Huis Doorn, entertaining guests. Much of his time was spent chopping wood and thousands of trees were chopped down there during his stay. He died, ironically, in 1941, when his country of refuge was occupied by Nazi-Germany.
- Baldwin, S.E., “The Proposed Trial of the Former Kaiser”, Yale Law Journal, 29 (1919-1920), No. 1, pp. 75-82.
- Garner, J.W., "§ 589. Responsibility of Chiefs of State, § 590. Decision of the Peace Conference regarding the Trial of the German Emperor, § 591. Decision of the Peace Conference Considered, § 592. Precedents for the Trial of Chiefs of States, § 593. Immunity of Chiefs of States", in International Law and the World War, London, Longmans, Green and Co., Vol. II, 1920.
- Kiersch, H.J.P.A., Le Kaiser et la responsabilité de la guerre, Paris, Argo, 1931.
- Lombardi, G., “Il Trattato di Pace di Versailles ed il mancato processo al Kaiser”, in Verso un Tribunale permanente internazionale sui crimini contro l'umanità. Precedenti storici e prospettive di istituzione, Roma, EURoma 1998, pp. 31-34.
- Ministère de la Guerre, Examen de la responsabilité pénale de l'empereur Guillaume II, Paris, 1918.
- Orlando, V.E., “On the Aborted Decision to Bring the German Emperor to Trial”, Journal of International Criminal Justice, 5 (2007), No. 4, pp. 1015-1028.
- Puttkamer, E. von, "Die Haftung der politischen und militärischen Führung des Ersten Weltkriegs für Kriegsurheberschaft und Kriegsverbrechen", Archiv des Völkerrechts, 1 (1948-1949), pp. 424-449.
- Schiemann, T., Deutschlands und Kaiser Wilhelms II. angebliche Schuld am Ausbruch des Weltkrieges: eine Entgegnung an Karl Kautsky, Berlin, [s.n.], 1921.
- Viereck, G.S., The Kaiser on Trial: With a Letter from Bernard Shaw, London, 1938.